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U.S. Supreme Court Upholds Clean Water Act (CWA) Logging Roads Exemption, Endorses Citizen Suit Enforcement of Ambiguous Agency Rules

In an opinion issued on March 20, 2013, the U.S. Supreme Court upheld the U.S. Environmental Protection Agency’s (EPA) regulatory interpretation that logging road runoff is not subject to industrial stormwater permitting requirements under the Clean Water Act (CWA).  Decker v. Northwest Environmental Defense Center, No. 11-338 (U.S. Mar. 20, 2013).  The Court also found that plaintiffs had properly brought their suit under the CWA’s citizen suit provision, 33 U.S.C. § 1365, because they did not make a direct facial challenge to EPA’s regulations but instead sought to impose their interpretation of the CWA on a commercial operator where EPA’s rule on the issue was ambiguous.  The Court’s decision originated from a pair of cases from the U.S. Court of Appeals for the Ninth Circuit addressing the proper application of EPA’s Silvicultural Rule (40 C.F.R. § 122.27), one of the agency’s industrial stormwater regulations, which establishes a permitting exclusion for stormwater discharges from logging roads.

On the merits of the case, the Supreme Court rejected plaintiffs’ arguments that the CWA generally requires National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from all industrial operations, and overturned the Ninth Circuit’s findings on that point.  The Court pointed to repeated references in EPA’s stormwater regulations to “facilities, establishments, and manufacturing, processing and industrial plants” to conclude that the agency’s application of the Silvicultural Rule to “traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities,” was rational.  The Court therefore found that the text of the rule supported EPA’s decision to exclude temporary logging operations from permitting requirements and concluded that the commercial defendant had not violated the CWA by discharging stormwater from its logging roads without a NPDES permit.  The Court also found the case was not mooted by EPA’s December 2012 amendment of its industrial stormwater regulations to limit permitting requirements only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, since the plaintiffs still could seek to enforce the defendant’s alleged violations of the earlier rule.

While the narrow substantive finding of the case has garnered most of the attention, the Court’s jurisdictional ruling may pose far greater implications.  Petitioners argued that CWA Section 509(b)(1) provides the exclusive mechanism for challenging EPA’s CWA regulations, and therefore the suit should have been filed in the federal Courts of Appeals within 120 days of the Silvicultural Rule being promulgated.  See 33 U.S.C. § 1369(b)(1).  The Supreme Court disagreed.  The Court explained that Section 509(b)(1) must be used when directly challenging EPA’s actions, such as rules and permits.  On the other hand, the Section 505 citizen suit provision should be used when a plaintiff seeks to enforce “a permissible reading” of a CWA requirement against an alleged violator in the face of an ambiguous regulation on the topic.  On this point, the Court concluded that the Silvicultural Rule was ambiguous and that plaintiffs had properly brought their claim in a citizen suit against an alleged violator to enforce their interpretation of the CWA’s requirements. 

The Court attempted to limit the impact of its jurisdictional ruling by stating that direct challenges to EPA regulations still must be brought under Section 509(b)(1) of the CWA.  But the Court simultaneously held that environmental groups may use the CWA citizen suit provision to question EPA’s regulatory interpretations.  Thus, citizen groups may try to effect regulatory change by suing private companies for violating the CWA – even when those companies are operating in compliance with EPA’s regulations or with NPDES permits issued under them. 

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 94

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Richard S. Davis Clean Water Act Attorney Beveridge & Diamond Washington, DC
Principal

Richard uses his 40 years of Clean Water Act experience to find cost-effective solutions for the complex regulatory challenges that his business clients face.

Since joining Beveridge & Diamond in 1981, Richard has practiced almost exclusively under the federal Clean Water Act and its state analogues, chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, and helping direct one of the nation’s most innovative and dynamic clean water practices.

Richard has represented individual industrial dischargers and industry groups, as well as local...

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Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX
Principal

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party entities. She recently led a multi-year, complex negotiation of a consent decree for the San Antonio Water System, which was targeted for sewer overflow reductions under EPA's national "wet weather" enforcement initiative. Karen advises clients on business strategies related to increasing water scarcity and counsels clients on emerging trends in water quality programs, including initiatives such as watershed-based permitting, TMDLs, trading and allocation, and land-based impacts on coastal and ocean resources. She also has extensive experience assisting clients with conducting compliance audits and managing related disclosures, and with developing and implementing management systems for environmental compliance.

Karen also has extensive experience assisting multinational companies manage their global EHS issue portfolios. She helps clients strategically plan and manage both comprehensive and targeted EHS compliance audits, and related federal and state disclosure and corrective action strategies. Karen also has helped companies develop and implement management systems for environmental compliance, sometimes in the context of resolving a major enforcement action. Karen also teams with white collar lawyers to conduct internal investigations and assist in defending civil and criminal investigations. 

In addition to serving as a frequent speaker, writer, and planner for a variety of environmental law and policy programs, Karen has served in elected and appointed roles on numerous state bar and American Bar Association committees and task forces. Karen served on the firm's Management Committee and as the inaugural Chair of the Diversity & Inclusion Committee, and she Co-Chairs the Water Law Practice.

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W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

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Timothy M. Sullivan Environmental & Natural Resources Litigation Attorney Beveridge & Diamond Baltimore, MD
Office Managing Principal

Tim Sullivan’s practice focuses primarily on environmental and natural resources litigation before federal and state courts and adjudicatory bodies.

He represents and advises public and private clients in regulatory, litigation, and other matters involving many federal and state environmental and natural resources laws, with a particular emphasis on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Clean Water Act. Tim is the Managing Principal of Beveridge & Diamond's Baltimore office. 

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