January 9, 2013

Supreme Court seeks supplemental briefing on new stormwater rule in Decker

By Brian T. Hodges Senior Attorney

First comes briefing, then comes oral argument, then comes . . . more briefing?  That’s what the Supreme Court decided in Decker v. Northwest Environmental Defense Center yesterday, when it invited the parties and the Solicitor General to file supplemental briefs.

When the Court heard oral argument last month, most of the Court’s questions centered on a new rule that EPA had adopted only days before.  In the rule, EPA revised its regulations to clarify that stormwater discharges from logging roads do not constitute discharges “associated with industrial activity.”  That means the petitioners are not required to obtain NPDES permits to use and maintain logging roads, and that the case is moot, according to the federal government.

Not everyone agrees with that interpretation, however.  At oral argument, the petitioners, the feds, and the environmental respondents had different views as to how the revised rule affects the case.  The Court will now have the opportunity to fully consider the parties’ opinions on that issue.  The supplemental briefs are due by January 22.

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The issue in Decker is whether logging road owners and users must obtain federal National Pollution Discharge Elimination System (NPDES) permits to cover stormwater runoff on the roads.  PLF filed an amicus brief on behalf of the Foundation and several other organizations urging the Court to reverse the Ninth Circuit’s opinion, which held that logging road runoff is subject to NPDES permitting because it either qualifies as a “point source” discharge if channeled through ditches, or it falls under a regulated category of stormwater associated with “industrial” activity.

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