The U.S. Supreme Court continued its interest in the reach of the Clean Water Act (CWA) when it accepted for review two cases for its next term. Similar to the Court's decision in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001)¹ and the decision in Rapanos v. United States (2006),² in its review of Decker v. Northwest Environmental Defense Center³ and Los Angeles County Flood Control District v. Natural Resources Defense Council,⁴ the Court will consider the reach of federal power under the statute. Both of these controversial cases arise from the Ninth Circuit. Each case has the potential to significantly expand federal jurisdiction under the CWA. The Supreme Court's next term begins in October 2012.

Decker involves the breadth of the Silvicultural Rule⁵ and whether logging roads are a point source for industrial stormwater. Los Angeles County also involves a question of what constitutes a point source and a discharge. At issue is whether the Los Angeles County Flood Control District is responsible for all pollutants passing through the flood control system the County operates.

Is Stormwater Runoff from Logging Roads Industrial Stormwater Requiring a NPDES Permit?

Decker, as consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, examines whether the Ninth Circuit erred when it held that stormwater runoff from logging roads constituted industrial stormwater under the rules of the CWA and, therefore, requires a National Pollutant Discharge Elimination System (NPDES) permit.⁶ In 2010, the Northwest Environmental Defense Center (NEDC) sued Oregon Forestry officials and various timber companies for failing to obtain permits for stormwater runoff. The runoff in question flowed from logging roads into a system of ditches, culverts, and channels designed to collect the stormwater runoff and subsequently discharged the runoff into forest streams and rivers.⁷

NEDC argued this runoff represents a discharge from a point source and required a NPDES permit. The defendants asserted EPA's Silvicultural Rule exempted their activities from the definition of a point source discharge and, therefore, no permit was required under the CWA. The district court agreed with the defendants and held that the discharges were exempt from NPDES permitting under the Silvicultural Rule.⁸

On appeal, the Ninth Circuit read the Silvicultural Rule to exempt natural runoff from silvicultural activities from permitting requirements unless the runoff is channeled and controlled in some systematic way.⁹ The CWA defines a point source as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well...from which pollutants are or may be discharged."¹⁰ In contrast, the Ninth Circuit found that nonpoint sources arise from many dispersed activities over large areas, and are not traceable to any single discrete source.¹¹

As noted, the logging activities in question collected stormwater runoff through a system of ditches, culverts, and channels, which then discharged into nearby streams and rivers. Based on the facts of the case, the Ninth Circuit held that the Silvicultural Rule did not exempt this type of runoff from the definition of a point source discharge. The natural stormwater runoff became a point source when the defendants channeled it through their collection system.¹² The Ninth Circuit found that whether the pollutant arrives to any discernible, confined, and discrete conveyance as a result of "controlled water use by a person" or through natural runoff makes no difference.¹³

The defendants further argued the 1987 amendments to the CWA represented Congress' approval of the Silvicultural Rule and exempted their activities from permitting requirements. Although the Ninth Circuit acknowledged Congressional reenactment of a statute can demonstrate Congress' approval of an agency's longstanding interpretation, none of the factors for determining such approval were present in the 1987 amendments.¹⁴ The Ninth Circuit also declined to find Congress' action or inaction in relation to the Silvicultural Rule represented Congressional acquiescence to the rule.¹⁵ The Ninth Circuit noted that although Congress exempted many stormwater discharges from NPDES permitting in the 1987 amendments to the CWA, it did not exempt discharges "associated with industrial activities."¹⁶ Based on the applicable regulations, the Ninth Circuit found logging is an industrial activity.

Is There a Discharge When River Water Flows Through a Man-Made Concrete Modification and Then into a Lower Portion of the Same River?

The second case, Los Angeles County Flood Control District v. Natural Resources Defense Council, addresses the issue of whether there can be a discharge from an outfall when water flows from one portion of a river through a municipal separate storm sewer system (MS4) into a lower portion of the same river. In 2008, various environmental groups sued Los Angeles County and the Los Angeles Flood Control District (the County) alleging that the County discharged polluted stormwater runoff collected by the MS4 into four rivers located in Southern California. Pollutant levels in these rivers exceeded the limits allowed in the County's MS4 permit.

The County operates an extensive sewer and flood control system consisting of 500 miles of open channels and 2,800 miles of storm drains. Before stormwater enters the MS4, it collects pollutants such as sediments, metals, motor oil, and other contaminants. The environmental groups argued that by allowing polluted waters to pass through the MS4 unabated, the County had discharged pollutants into a navigable waterway of the United States in violation of its MS4 permit and the CWA. 

On appeal, the Ninth Circuit reversed the district court's order granting summary judgment in favor of the County with respect to two of the four rivers. The County argued that it could not be held liable for what was essentially a transfer of water between two points of the same waterbody.¹⁷ The Ninth Circuit disagreed and found that the County violated the terms of its permit because it controlled the MS4, the point source of the pollution. Therefore, the County's action caused or contributed to a violation of the CWA.

The petitioners in Los Angeles County also asked the Supreme Court to address the issue of whether the construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer "navigable water" under the CWA. This question could have provided the Supreme Court with the opportunity to reexamine and clarify its position in Rapanos on when a waterbody was navigable and, therefore, subject to the CWA's jurisdiction. The Supreme Court, however, declined to address this issue when it granted certiorari and chose only to focus on the narrower issue related to the County's alleged discharge.

Interpreting the Tea Leaves: EPA and the Courts

Courts have increasingly turned a critical eye towards the EPA's efforts to expand its jurisdiction or aggressively exercise its enforcement powers. In November 2011, the D.C. District Court rejected EPA's efforts to require additional environmental review for mining permits issued by the U.S Army Corps of Engineers.¹⁸ EPA based this authority to impose the additional requirements on agency guidance rather than a promulgated rule. Additionally, in March 2012, the U.S. Court of Appeals for the D.C. Circuit ruled that the EPA lacked the statutory authority to invalidate a previously-issued CWA § 404 dredge and fill permit. EPA had asserted that, under CWA § 404(c), it could withdraw the specification of certain areas as disposal sites in the permit at issue at any time, even after permit issuance, without limitation. That same month, the Supreme Court unanimously rejected EPA's position that a compliance order issued under the CWA was not final agency action subject to judicial review. Additional background on these cases can be found here and here.

Interestingly, the Supreme Court granted review of both Decker and Los Angeles County over the opposition of the Department of Justice. The Solicitor General argued that the Supreme Court should not intervene in Decker because both Congress and the EPA were already taking steps to address the decision. Congress passed legislation to stay the permitting of logging roads in December, but that legislation is due to expire by October 1, 2012.¹⁹ EPA has proposed a rule that logging activities do not require NPDES because runoff from these activities is not "associated with industrial activities."²⁰ Additionally, in Los Angeles County, the Solicitor General argued against the County's claim that the Ninth Circuit's ruling represented a departure from the Supreme Court's ruling in South Florida Water Management District v. Miccosukee Tribe of Indians.  He argued that the Ninth Circuit had made a factual mistake about the location of the County's emission-monitoring stations and that the case did not represent a legal error likely to affect the outcome of future cases.

No matter what the final decision is in these cases, their disposition will have significant impacts on regulated entities and the scope of EPA's permitting authority under the CWA. We will continue to monitor these cases and provide updates as new information becomes available.

Footnotes

<sup>1 531 U.S. 159.

2 547 U.S. 715.

3 640 F.3d 1063 (9th Cir. 2011), cert.granted, __ U.S.L.W. __ (U.S. June 25, 2012) (No. 11-347).

>4 673 F.3d 880 (9th Cir. 2011), cert.granted, __ U.S.L.W. __ (U.S. June 25, 2012) (No. 11-460).

5 40 C.F.R. § 122.27.

6 The Supreme Court will also review whether a citizen can bypass review of the rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule for the first time in a citizen suit to enforce the CWA.

7 Decker, 640 F.3d at 1067.

8 Id. (citing 40 C.F.R. § 122.27).

9 Id. at 1080.

10 33 U.S.C. § 1362.

11 Decker, 640 F.3d at 1070.

12 Id.(citing 33 U.S.C. 1362(14)).

13 Id. at 1079.

14 Id. at 1081 (citing Commodity Futures Trading Comm'n v. Schor, 487 U.S. 833, 846 (1986)).

15 Id. (citing Solid Waste Agency of Northern Cook County v. U.S. Army Corp of Eng'rs, 531 U.S. 159, 162 (2001). 

16 Id. at 1083 (citing 33 U.S.C. § 1342(p)(2)(B)). 

17 The Supreme Court decided this issue in 2004 and held that such transfers did not constitute a discharge. See South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004).

18 See National Mining Association v. EPA, 816 F.Supp.2d 37 (D.D.C. 2011).

19 The Omnibus Appropriations Bill passed by Congress included a provision declaring that storm water runoff from forest roads and other silvicultural activities identified in EPA's regulations shall not be subject to NPDES permits for the duration of the fiscal year. Permanent legislation to codify the Silvicultural Rule has also been introduced. See S. 1369, 112th Cong. § 1 (2011) (http://www.gpo.gov/fdsys/pkg/BILLS-112s1369is/pdf/BILLS-112s1369is.pdf).

20 77 Fed. Reg. 30473 (May 23, 2012).</sup>

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