Decker v. Northwest Environmental Defense Center, No. 11-338; U.S. Supreme Court; opinion by Kennedy, J.; concurrence by Roberts, C.J.; partial dissent by Scalia, J.; decided March 20, 2013, together with No. 11-347, Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, both on certiorari to the U.S. Court of Appeals for the Ninth Circuit.
The Clean Water Act requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into the navigable waters of the United States. See 33 U.S.C. §§ 1311(a), 1362(12). One of the Environmental Protection Agency’s implementing regulations, the Silvicultural Rule, specifies which types of logging-related discharges are point sources. See 40 CFR § 122.27(b)(1). These discharges require NPDES permits unless some other federal statutory provision exempts them from coverage. One such statutory provision exempts "discharges composed entirely of stormwater," 33 U.S.C. § 1342(p)(1), unless the discharge is "associated with industrial activity," § 1342(p)(2)(B). Under the EPA’s Industrial Stormwater Rule, the term "associated with industrial activity" covers only discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." See 40 CFR § 122.26(b)(14). Shortly before oral argument in these cases, the EPA issued a final version of an amendment to the Industrial Stormwater Rule, clarifying that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule.
