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Industry Wins Runoff Case

Industry Wins Runoff Case

The Supreme Court recently ruled that logging roads are not subject to stringent industrial rules regarding stormwater runoff. The ruling in Decker v. Northwest Environmental Defense Center reverses a Ninth Circuit Court of Appeals decision that would have required Clean Water Act permits for stormwater that runs off logging roads.

According to Oregon Forest Industries Council, the rules would have required enormous compliance and permitting costs while opening the door for administrative challenges and litigation following every permit approval.

The Portland-based Northwest Environmental Defense Council had raised the issue in 2006 after arguing that such runoff posed threats to fish and other wildlife.

Essentially, the Supreme Court validated a recent Environmental Protection Agency interpretation of the runoff regulations. The EPA last year deemed that the stormwater permit regulation should extend only to traditional industrial buildings.

In 2006, the Northwest Environmental Defense Center sued certain timber-industry related defendants claiming that their logging activities resulted in the discharge of pollutants without a permit into streams in state forests in Oregon where they were harvesting timber. In 2010, the Ninth Circuit overturned an Oregon federal district court’s grant of a motion to dismiss the case, finding that ditches and culverts adjacent logging roads were point sources which required federal National Pollutant Discharge Elimination System (NPDES) permits.

The defendants in the case, who operated various logging roads, contended that the state’s Silvicultural Rule foreclosed the need for them to secure NPDES permits, and that potential impacts to water quality posed by the roads could be managed by state-level best management practices. Defendants also contended that, even without the Silvicultural Rule, their activities were not “industrial activities” requiring NPDES permits under USEPA’s Industrial Stormwater Rule.

The Supreme Court decision was a 7-1 vote, and written by Justice Kennedy.

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