26 States Ask Supreme Court to Review Case On Stormwater Runoff From Logging Roads

By Alan Kovski

Twenty-six states joined in asking the Supreme Court Oct. 17 to overturn a ruling requiring regulators to treat logging roads as “point sources” of pollution whenever stormwater runoff from the roads is channeled (Decker v. Northwest Environmental Defense Center, U.S., No. 11-338, 10/17/11.

The states said a decision by the U.S. Court of Appeals for the Ninth Circuit disregarded the intent of Congress and failed to respect the Environmental Protection Agency's reasonable interpretation of the Clean Water Act.

The appeals court incorrectly reclassified silviculture—the growing and harvesting of trees—as industrial rather than agricultural activity, the states said. The appeals court also failed to recognize that Congress clearly wanted states to define and promote best management practices for forest road runoff while treating that runoff as a “non-point source” of pollution, the states said.

The 26 states filing the amicus brief are Arkansas, Alabama, Alaska, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, New Hampshire, New Mexico, Ohio, Oklahoma, Pennsylvania,South Carolina, South Dakota, Tennessee, Utah,Virginia,Washington, and Wyoming. Arkansas Attorney General Dustin McDaniel took the lead in filing the brief.

Expensive Impacts Feared

“Congress has held that states are the appropriate entities to determine best management practices for protecting our waters and wildlife from stormwater runoff related to timber harvesting,” Florida Attorney General Pam Bondi said in an announcement of the amicus filing. “The Ninth Circuit's ruling contradicts more than 30 years of practice and Congress' and the EPA's directives.”

If the appeals court decision is allowed to stand, it will require a costly and time-consuming new regime of federal permitting requirements, the states said in announcing the filing.

“There are hundreds of millions of privately and publicly owned acres of forest land in the United States, with millions of miles of forest roads having some form of water conveyance, or channeling, associated with them,” the amicus brief said.

The brief said the states' best management programs will be jettisoned in favor of a system of National Pollution Discharge Elimination System permits if the appeals court decision is allowed to stand.

“A blizzard of NPDES permit applications will, out of necessity, be filed,” the brief said.

States Defend EPA Interpretation

Congress in the Clean Water Act defined “point source” to exclude “agricultural stormwater discharges,” as specified in the U.S. Code at 33 USC 1362(14).

The Clean Water Act requires a permit system for pollution from point sources, but it leaves to EPA much discretion in deciding what constitutes a point source. EPA has treated silviculture as a type of agriculture and wrote its 1976 Silvicultural Rule into the code of federal regulations at 40 CFR 122.27.

The states said the Ninth Circuit, in refusing to defer to EPA's interpretation of the Clean Water Act, ignored the precedent established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, the 1984 Supreme Court decision that guides courts in deferring to a federal agency when the agency is acting within its area of competence and is offering a reasonable interpretation.

Congress amended the Clean Water Act in 1987 with a requirement for EPA to require permits for five categories of stormwater discharges in Phase I of a stormwater regulation program. EPA issued its Phase I regulations in 1990, and the agency has made clear that it was not including silvicultural practices and forestry roads in the regulations, according to the states' brief.

“The Ninth Circuit's defiance of Chevron warrants this Court's review,” the states said.

The amicus brief filed by 26 states at the U.S. Supreme Court in the case of Decker v. Northwest Environmental Defense Center is available at http://op.bna.com/env.nsf/r?Open=jsun-8mqtw7 .