Once again, the U.S. Supreme Court is choosing to shine its light on a jurisdictional fight under the Clean Water Act (CWA)—this time with foresters, land owners, flood and storm water managers, environmental advocates and CWA enthusiasts watching closely.
Just before issuing its landmark decision on the health care law in July, the court announced it would hear two new CWA cases for its upcoming 2012-13 term. Both involve the murky issue of storm water runoff and the scope of federal permitting, although in different contexts with different statutory provisions in play.
The move is a bit of a surprise to some, as the court has issued many rulings related to CWA issues and programs over the past two decades (e.g., involving adjacent wetlands and isolated waters; interstate water quality disputes; activities in agricultural fields and runoff; water quality certifications and dams; water transfers; and, most recently in the 2012 Sackett case, wetlands enforcement procedures). Also, in this instance, the solicitor general, on behalf of the administration, argued the court should not agree to hear the new cases.
Nonetheless, the court said yes—making the two cases, plus a third involving flood control not under CWA purview, the primary environmental cases for the next term. Both CWA cases involve storm water and the scope of the CWA’s permitting requirements, and both have high stakes for the resources, people and programs involved, ranging from thousands of miles of public and private sector logging roads to hundreds of communities and water management districts not currently covered by the U.S. Environmental Protection Agency’s (EPA) municpal separate storm sewer system (MS4) permitting requirements under the CWA.
Decker vs. Northwest Environmental Defense Center and Georgia Pacific West vs. Northwest Environmental Defense Center are consolidated petitions challenging a 2010 9th Circuit Court of Appeals decision that channelized storm water runoff from logging roads requires a National Pollutant Discharge Elimination System (NPDES) permit. The Supreme Court held that EPA’s 1976 silviculture rule does not exempt such discharges from regulation.
Lingering Questions
There has been a long-running debate among groups as to exactly what is and what is not regulated under NPDES and what can fall into the non-permit-driven best management practices (BMP) programs. EPA’s regulations communicate that certain activities—such as log transfer facilities, rock crushing and gravel washing—must be regulated, but the regulations exempt certain drainage involving road runoff. The U.S. Forest Service (USFS) reports there are about 376,000 road miles in the national forests. Also, there are an additional 558 million acres of private and nonfederal forestland outside of the USFS’s national system.
In the second case, Los Angeles County Flood Control District vs. Natural Resources Defense Council, the 9th Circuit Court of Appeals ruled that the county must obtain an NPDES permit for urban runoff collecting in channelized river systems maintained and improved by county flood control agencies. The case touched on issues raised in the Miccosukee water transfer case from several years ago, when the Supreme Court refused to hold that certain releases of nutrient-rich water triggered NPDES permitting requirements, based on lingering questions involving hydrologic connections between water bodies and “unitary water” legal theories. The Los Angeles County case also raises questions about the degree to which downstream water agencies should be responsible under the CWA for the water quality actions of dozens of other upstream municipalities with storm water draining into a single agency’s water management structure or facility.
Stormy Forecast
A few observations and predictions can be drawn:
- 1. It is hard for Congress and the courts to draw clear lines between permissable interpretation and impermissable expansion or contraction by executive branch agencies. Statutory exemptions or exclusions for silvicultural operations, water transfers and storm water releases are viewed through different lenses and difficult to discern; the high stakes and environmental impacts only make it harder if statutory bright lines are missing or impossible to detail.
- 2. Storm water respects gravity and geology more than politics and bureaucracy. It is obvious, but important for policymakers not to forget.
- 3. “One water” management and integrated permitting are growing in importance. Regardless of how the court decides the scope of silviculture and MS4 permitting, the trend toward area-wide general permits and beefed-up BMPs will continue. Enforceable BMPs and integrated, watershed-based permits need definition and time to help solve the jurisdictional food fights between NPDES and non-NPDES interests. The onus is on foresters, municipal water managers and others to show various environmental advocates and policymakers that state and local voluntary BMPs can suffice in preventing significant sources of water pollution.
- 4. The Supreme Court will mention in either the forestry or the urban storm water case (or both) that the CWA is beginning to reach middle age—it turns 40 on Oct. 18—and the lines and borders of its reach are softening. At least one justice will say the 40-year-old law is expanding around the middle due to agency overfeeding and at least one will say the law is in danger of becoming irrelevant if major sources of pollution are not brought within its regulatory reach. Go figure.
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