I wrote about this case in an earlier post.
Decker involves a challenge to a Ninth Circuit ruling that runoff from logging roads into ditches requires a stormwater permit. Petitioners argue that the Ninth Circuit should not have held that channeled forest road runoff is subject to NPDES permitting. Because the EPA interpreted the definition of point source, petitioners argue that the courts accord Chevron deference to the agency's interpretation.
According the NEDC, the EPA’s interpretation of its regulations is either (a) inconsistent with the text of the regulation, or (b) the regulation would be better read to require permits. Relying on §1365 of the CWA, the NEDC brought a citizen’s suit in an attempt to eliminate the exemption from the permiting process..
The EPA has previously interpreted the CWA as exempting certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes from the permitting process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision.
Since passage of the Clean Water Act, the EPA has considered runoff of rain from forest roads - whether channeled or not - to fall outside the scope of the NPDES process, and not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.
The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.
The Ninth Circuit rejected the EPA’s longstanding interpretation. This conflicts with other circuits and gives no deference to the EPA in interpreting the statute and regulations it has expertise in.
The Superme Court held.
- Challenges to EPA action under 33 U.S.C. §1369(b) are not a jurisdictional bar, and does not prevent the District Court from entertaining a citizen's suit under §1365.
- EPA's recent amendment to the Industrial Stormwater Rule did not moot the issue of the lawsuit. The controversy continues when respondent may face penalties for past activities under the old rule even if the new rule provides that a NPDES permit is not applicable.
The Court found that the pre-amendment version of the Industrial Stormwater Rule, as construed by EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme and that the regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B).
When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation. The Court also found that another reason to accord Auer deference (519 U.S. 452, 461) to the EPA’s interpretation is that there is no indication that EPA's current view is a change from prior practice or is a post hoc justification adopted in response to litigation. The conclusions of EPA as to logging roads has been consistent over time.
The Court also noted that the CWA gives EPA discretion in the area of stormwater runoff, and EPA could have reasonably concluded that further federal regulation would be duplicative or counter-productive in light of Oregon’s extensive rules on the subject.
To the Court, the key to the case appears to be the language of §1342(p)(2)(B), associated with industrial activity. It held that it was reasonable for EPA to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14).