To Point Source or Not to Point Source: Decker v. NEDC and the Silvicultural Exemption under the Clean Water Act

On Wednesday, March 20, 2013, the United States Supreme Court issued its opinion in Decker v. Northwest Environmental Defense Center (the successor to the Ninth Circuit’s Northwest Environmental Defense Center v. Brown).[1]  Deferring to EPA’s interpretation of its own regulation, the Supreme Court held that the Clean Water Act (CWA) does not require National Pollutant Discharge Elimination System (NPDES) permits for stormwater discharges from logging roads.[2]  The decision reversed the Ninth Circuit’s 2011 holding, which found that such stormwater discharges were point sources under the CWA, and thus required a NPDES permit.[3]

The action arose in 2006, when the Northwest Environmental Defense Center (NEDC), an environmental non-profit organization affiliated with Lewis & Clark Law School, filed a citizen suit against Oregon officials and timber companies.[4]  NEDC alleged that the defendants “violated [the] Clean Water Act (CWA) by discharging stormwater from ditches alongside logging roads in [the Tillamook State Forest] without NPDES permits.”[5]  The Tillamook supported multiple logging operations, which had cleared two logging roads that “provided the local silviculture industry access to logging sites and a means to haul timber out of the forest.”[6]  Systems of ditches and culverts were built alongside the roads, which channeled stormwater runoff into local rivers and streams.[7]  The stormwater contained sediment and other pollutants that diminished water quality and negatively impacted aquatic life,[8] particularly salmon and trout, by “smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food.”[9]

The district court granted the defendants’ motion to dismiss, finding that their activities were within the NPDES silvicultural exemption.[10]  The silvicultural exemption is an EPA regulation that defines and identifies silvicultural point sources, which require NPDES permits, and silvicultural nonpoint sources, which are excluded from the NPDES program.[11]  The regulation is colloquially referred to as the Silvicultural Rule.

NEDC appealed and on May 17, 2011, the Ninth Circuit Court of Appeals reversed the district court’s decision, finding that when stormwater runoff from logging roads is collected and discharged through a system of ditches and channels it “is a point source discharge for which an NPDES permit is required.”[12]  In so ruling, the Ninth Circuit undercut the silvicultural exemption.[13]  Defendants Georgia-Pacific West Inc. and Doug Decker, the Oregon State Forester (formerly Marvin Brown), separately filed petitions for writs of certiorari to the Supreme Court of the United States.[14] On June 25, 2012, the Supreme Court granted both petitions and consolidated them under Decker v. Northwest Environmental Defense Center (NEDC).[15]  The Supreme Court heard oral arguments in Decker v. NEDC on December 3, 2012.[16]

Hoping to counteract the Ninth Circuit’s ruling, EPA amended the Industrial Stormwater Rule on November 30, 2012, which clarified the Agency’s original intent to exclude silvicultural activities from requiring individual discharge permits.[17]  The rule also established “that channeled stormwater from roadside culverts falls under the umbrella of ‘natural runoff,’ and therefore does not require permits.”[18]

The Supreme Court held that the EPA rule of November 2012 did not moot the case because the timber companies could still be found liable for unlawful discharges under the pre-amended version of the Rule.[19]  The Court also afforded Auer deference to EPA’s interpretation of its own regulation, stating that “[w]hen an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.”[20]  The Supreme Court found EPA’s conclusion that logging roads are not “associated with industrial activity” reasonable because the regulation was only meant to apply to “traditional industrial buildings…[and] relatively fixed facilities.”[21]  The majority further showed its support for EPA’s interpretation by noting that EPA’s views and prior practices have consistently asserted that logging road discharges do not require NPDES permits.[22]

Justice Scalia concurred in part and dissented in part. Scalia argued for abandoning the rule of Auer deference.[23]  Auer deference is essentially Chevron deference applied to regulations instead of statutes, Scalia stated.[24]  However, Chevron deference affords agencies the ability to interpret congressional statutes, whereas Auer deference permits agency interpretation of its own regulations.[25]  Auer is thus a violation of separation of powers in that it places “the power to write a law and the power to interpret it…in the same hands.”[26]  Justice Scalia proposed to resolve the case through statutory and textual interpretation in order to ultimately determine the fairest reading of the regulation.[27]  Scalia argued that the fairest reading is a proscription of “the conduct at issue in these cases.”[28]  Scalia stated, “[i]t is time for us to presume…that an agency says in a rule what it means, and means in a rule what it says there.”[29]

Decker v. NEDC is considered an important win for states and the logging industry.[30]


[1] Cormac Early, Thursday round-up, SCOTUSblog (Mar. 21, 2013, 9:35 AM), http://www.scotusblog.com/2013/03/thursday-round-up-170/.

[2] Id.

[3] Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011).

[4] First Amended Complaint, Nw. Envtl. Def. Ctr. v. Brown, 476 F. Supp.2d 1188 (D. Or. 2007) (No. 3:06 Civ. 01270).

[5] Nw. Envtl. Def. Ctr. v. Brown, 476 F. Supp.2d 1188 (D. Or. 2007).

[6] Andrew King, Northwest Environmental Defense Center v. Brown: Delivering the Back Cuts? The Ninth Circuit Leaves the Silvicultural Rule in the Balance, 24 Tul. Envtl. L.J. 159 (2010).

[7] Id.

[8] Nw. Envtl. Def. Ctr., 640 F.3d 1063 at 1191.

[9] Id. at 1067.

[10] Nw. Envtl. Def. Ctr., 476 F. Supp. 2d at 1197-1198.

[11] 40 C.F.R. § 122.27 (1983).

[12] Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d at 1087.

[13] EPA Signs Logging Road Rule Despite Calls to Await High Court Review, InsideEPA.com, http://insideepa.com/201212012417757/EPA-Daily-News/Daily-News/epa-signs-logging-road-rule-despite-calls-to-await-high-court-review/menu-id-95.html (Nov. 30, 2012).

[14] Petition for Writ of Certiorari, Georgia-Pacific West, Inc. v. Nw. Envtl. Def. Ctr., 133 S. Ct. 23 (2012) (No. 11-347); Petition for Writ of Certiorari, Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 22 (2012) (No. 11-338).

[15] Georgia-Pacific West, Inc. v. Nw. Envtl. Def. Ctr., 133 S. Ct. 23 (2012); Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 22 (2012).

[16] David LaRoss, Awaiting High Court, Environmentalists Sue EPA Over Logging Road Rule, InsideEPA.com, http://insideepa.com/201301072420760/EPA-Daily-News/Daily-News/awaiting-high-court-environmentalists-sue-epa-over-logging-road-rule/menu-id-95.html (Jan. 7, 2013).

[17] EPA Signs Logging Road Rule Despite Calls to Await High Court Review, InsideEPA.com, http://insideepa.com/201212012417757/EPA-Daily-News/Daily-News/epa-signs-logging-road-rule-despite-calls-to-await-high-court-review/menu-id-95.html (Nov. 30, 2012).

[18] Id.

[19] Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___ (2013) (Slip op., at 2).

[20] Id. (quoting Chase Bank USA, N.A. v. McCoy, 562 U.S. __, __) (Slip op., at 3) (Internal citations and quotations omitted).

[21] John Elwood, Opinion analysis: Too soon to say “au revoir” to Auer?, SCOTUSblog (Mar. 22, 2013, 1:09 PM), http://www.scotusblog.com/2013/03/opinion-analysis-too-soon-to-say-au-revoir-to-auer/.

[22] Id.

[23] Id.

[24] Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___ (2013) (Scalia, J., concurring and dissenting) (slip op., at 4).

[25] Id.

[26] Id.

[27] Id. at 7.

[28] Id. at 12.

[29] Id.

[30] John Elwood, supra note 21.

Leave a Reply

Your email address will not be published. Required fields are marked *