"Congress completely revamped the Clean Water Act's approach to stormwater in 1987 and it made clear that as a default point-source, stormwater is regulated by the state," he said. Permits are required only for discharges that are associated with industrial activity and a few other categories. Congress gave EPA discretion, he said, to determine what activities count as industrial and the agency has said logging is not industrial activity.
Stewart urged the Court to vacate the Ninth Circuit decision as moot.
And Jeffrey Fisher of Stanford Law School, representing the Northwest Environmental Defense Center, argued the court should dismiss the case as improvidently granted. His client, he said, will make a claim for forward-looking relief in the lower courts because it contends the EPA's new rule "simply violates the [Clean Water Act]."
Marcia Coyle writes for The National Law Journal, a Daily Report affiliate.