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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. 

© 2019 Beveridge & Diamond PC

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Richard Davis, Environmental Lawyer with Beveridge & Diamond Clean Water Act Attorney
Principal

Richard S. Davis has practiced almost exclusively under the federal Clean Water Act and its state analogues since he joined Beveridge & Diamond, P.C. in 1981.  Chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, Mr. Davis helps to direct one of the most innovative and dynamic clean water practices in the United States.  His individual practice includes active representation of major clean water agencies on issues including permitting, TMDLs, CSO and other enforcement defense, and regulatory planning to take advantage of innovations such as water...

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Karen Hansen, Environmental Lawyer, Beveridge & Diamond Law Firm
Principal

Karen M. Hansen’s environmental law practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use.  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. Ms. Hansen 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. Ms. Hansen 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.

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W Parker Moore, Environmental Lawyer, Beveridge & Diamond Law firm
Principal

Parker dedicates his practice to successful project development. He helps clients nationwide from every economic sector navigate issues arising under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and related environmental laws.  He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound and successful legal strategies. He co-chairs B&D’s...

202-789-6028
Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm
Associate

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.

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Timothy Sullivan, Environmental Lawyer, Beveridge & Diamond Law Firm
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 CERCLA, the Endangered Species Act, and the Clean Water Act. In addition to his work for clients, Mr. Sullivan is also active in state and federal professional activities. He is an adjunct Professor of Law in the...

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