By Lisa Soronen
Stormwater runoff will never rise to the cultural engagement of the newest reality show, but a runoff case that has made its way to the U.S. Supreme Court does have a federalism impact on state legislatures.
The consolidated case of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center concerns who should regulate stormwater runoff from logging roads: state and local governments or the federal government.
The State and Local Legal Center (SLLC) filed an amicus brief in this case which NCSL signed onto. The issue the SLLC focused on in its brief is whether the lower court should have deferred to the Environmental Protection Agency’s (EPA) longstanding position that channeled stormwater runoff from logging roads doesn’t require an National Pollutant Discharge Elimination System (NPDES) permit.
The Clean Water Act (CWA) requires NPDES permits for the “discharge of any pollutant” from a “point source,” which includes ditches and channels, into “navigable waters of the United States.” Since 1973, one year after the CWA was passed, the EPA has issued regulations exempting logging activity from federal permitting requirements. Yet, the Ninth Circuit held that state forest agencies and a county were required to obtain NPDES permits for stormwater runoff flowing from logging roads into ditches, culverts, and channels. The Ninth Circuit reasoned that Congress didn’t exclude logging activity from the definition of a “point source” and that the EPA could not exclude it through regulations.
The SLLC’s brief argues that the Ninth Circuit erred in concluding that an NPDES permit is required for channeled stormwater runoff from logging roads. First, the SLLC argues that under the CWA logging stormwater runoff isn’t a “point source” discharge requiring a permit. Second, the SLLC argues that assuming the CWA is ambiguous concerning whether logging runoff is a “point source,” the Supreme Court should defer to the EPA’s longstanding position that it isn’t because EPA’s rule limits, rather than expands, federal authority to regulate land and water use, which state and local governments have traditionally regulated. Finally, the SLLC’s brief points out that obtaining NPDES permits for every ditch and channel on every logging road in the United States would be extremely costly and burdensome for state and local governments that are already regulating such stormwater runoff.
A date for oral argument in this case has not yet been set. The Supreme Court will issue an opinion in this case by June 30, 2013.
And if stormwater runoff doesn’t send you into a court-watching frenzy, be advised that the Supreme Court will take up not one, but two, fourth amendment dog-sniffing cases, both from Florida, during its October, 2012 term.
Lisa Soronen is the Executive Director of the State and Local Legal Center located in Washington, D.C.
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