Update on NEDC v. Decker
June 06, 2014
Eight years after filing the complaint alleging that polluted discharges from logging roads require a NPDES permit, NEDC found itself back in the District Court of Oregon this April. How did we get here?
For details on the Supreme Court’s 2013 decision, please check out Mark Riskedahl’s article posted here.
One of the twists leading up to the Supreme Court’s 2013 decision was a last minute rule revision by the Environmental Protection Agency (EPA). EPA published a final rule late on a Friday afternoon preceding oral argument first thing the following Monday morning before the US Supreme Court. Rather than put an end to the matter, however, the Supreme Court concluded that despite the new rule, a live controversy existed over the CWA violations that NEDC had alleged.
Up to that point, the intricacies of EPA’s rules and applicable law were pretty complicated. As the case continues things get really complicated. It may be helpful to highlight the different EPA rules at issue:
- EPA’s Silvicultural Rule – The rule states that “Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.” 40 C.F.R. § 122.27(b)(1).
- EPA’s pre-amendment Industrial Stormwater Rule – This rule defines discharges “associated with industrial activity” that are not covered by the Clean Water Act’s exemption for discharges composed entirely of stormwater, 33 U.S.C. § 1342(p)(1). The Industrial Stormwater Rule states that discharges “associated with industrial activity” and thus require a CWA permit include, “but [are] not limited to, storm water discharges from … immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility … .” 40 C.F.R. § 122.26(b)(14) (2006). It also specifies that “[f]acilities classified as Standard Industrial Classificatio[n] 24” are “considered to be engaging in ‘industrial activity’ for purposes of paragraph (b)(14).” Id.
- EPA’s amended Industrial Stormwater Rule – On November 30, 2012 (3 days before the case was argued in front of the Supreme Court), EPA published an amended version of the Industrial Stormwater Rule. The revised version retains the language covering “immediate access roads,” but limits the covered stormwater discharges to “”[f]acilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities … and Industry Groups 242 through 249.” 40 C.F.R. § 122.26(b)(14)(ii) (2012).
On remand, the Court of Appeals for the Ninth Circuit formally recognized that the Supreme Court had reversed the Ninth Circuit’s decision regarding EPA’s pre-amendment rule (the Court deferred to EPA’s interpretation because it did not find the pre-amendment rule to be unambiguous like the Ninth Circuit had done). The Ninth Circuit also noted, however, that the Supreme Court’s decision did not address the impact of EPA’s amended rule. The Ninth Circuit therefore vacated the District Court’s 2007 decision and remanded for additional proceedings.
This is how NEDC, once again, found itself in the District Court of Oregon. Paul Kampmeier (Washington Forest Law Center) and Chris Winter (Crag Law Center) did an amazing job representing NEDC before the Honorable District Judge Anna Brown. Though it was a bit nerve-wracking to observe the spirited back-and-forth between Paul and Judge Brown from the gallery, in the end, our lawyers’ hard work paid off. Judge Brown denied Defendants’ motion to dismiss and ordered NEDC to prepare an amended complaint this summer. Oral argument is scheduled for August, 2014.
Looking back on NEDC’s efforts to protect Oregon’s waters from pollutants contained in logging road discharges through the pursuit of this case over the past eight years, one thing is clear: NEDC’s attorneys have shown amazing dedication and tenacity every step of the way. We thank them for their ceaseless commitment to this ongoing work.