Decker v. NEDC: the CWA and Logging Roads
By: Breana BehrensThis case addresses whether stormwater runoff from a logging operation qualifies as discharge from an industrial activity, which under the Clean Water Act would require the operation to obtain discharge permits from the Environmental Protection Agency (EPA).
The Supreme Court of the United States decided March 20, 2013 Decker, Oregon State Forester v. Northwest Environmental Defense Center. This case addresses whether stormwater runoff from a logging operation qualifies as discharge from an industrial activity, which under the Clean Water Act would require the operation to obtain discharge permits from the Environmental Protection Agency (EPA). This case is an important ruling for forest landowners that engage in logging on their lands.
The facts of the case state that Georgia-Pacific West contracted with the state of Oregon to log on state forest land. The operation included logging roads with drainage and culverts. When it rained, stormwater would run off the roads, into the culverts, and eventually drain into two natural rivers. Since the stormwater contained a high level of sediment, environmental organizations, specifically NEDC, brought an action against the operation to protect the rivers and the wildlife that the rivers support. The organizations claimed that the operation needed to obtain permits before discharging stormwater into the rivers, and thus was in violation of the Clean Water Act.
Under the Clean Water Act, an operation must obtain National Pollutant Discharge Elimination System (NPDES) permit before it discharges pollutants from a point source into navigable waters of the United States. Moreover, the EPA issued regulations clarifying which logging operations need to obtain NPDES permits. Under the Silvicultural Rule, discharge which contains only stormwater is exempt from NPDES permit requirements, unless it is part of an industrial activity.
The EPA and the Supreme Court interpreted the CWA and Silvicultural Rule to not require this logging operation to obtain NPDES permits, since it is not an industrial activity. They reasoned that industrial activities include traditional and fixed industrial buildings, such as a factory, which was not present here. Moreover, the EPA has consistently stated that logging operations such as the one are not required to obtain NPDES permits. Therefore, the court found that the EPA was validly interpreting the Silvicultural Rule when it did not require this logging operation to obtain a NPDES permit for stormwater runoff.
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