Decker v. Northwest Environmental Defense Center

PETITIONER: Doug Decker, in his official capacity as Oregon State Forester, et al.
RESPONDENT: Northwest Environmental Defense Center, et al.
LOCATION: Tillamook State Forest

DOCKET NO.: 11-338
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 568 US (2013)
GRANTED: Jun 25, 2012
ARGUED: Dec 03, 2012
DECIDED: Mar 20, 2013

Jeffrey L. Fisher - for the respondents
Malcolm L. Stewart - Deputy Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the petitioners
Timothy S. Bishop - for the petitioners

Facts of the case

Two logging roads in Oregon, Trask River Road and Sam Downs Road, are owned by the Oregon Department of Forestry and the Oregon Board of Forestry. The roads are used primarily by various logging companies. These roads run parallel to rivers and use a series of ditches, culverts, and channels to direct storm water runoff into the nearby rivers. This runoff deposits large amounts of sediment in the rivers, which adversely affects the fish and other wildlife that relies on the water.

The Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester, the Oregon Board of Forestry and several timber companies. The NEDC alleged that, since the runoff ditches and channels can be defined as "point sources," the petitioners violated the Clean Water Act by failing to obtain permits under the National Pollutant Discharge Elimination System. In district court, the petitioners moved for dismissal by arguing that the runoff was exempt from the permits. The district court granted the motion. The NEDC appealed the case to the United States Court of Appeals for the Ninth Circuit, which reversed the decision based on precedent that supported the NEDC interpretation of both the "point source" and the permit requirement.


1. Do the runoff ditches and channels constitute "point sources" that require permits?

2. Are the petitioners exempt from the permit requirement?

Media for Decker v. Northwest Environmental Defense Center

Audio Transcription for Oral Argument - December 03, 2012 in Decker v. Northwest Environmental Defense Center

Audio Transcription for Opinion Announcement - March 20, 2013 in Decker v. Northwest Environmental Defense Center

John G. Roberts, Jr.:

Justice Kennedy has the opinion of the Court in two cases this morning.

Anthony M. Kennedy:

The first opinion is in the cases of Decker versus Northwestern -- Northwest Environmental Defense Center, and Georgia Pacific West versus Northwest Environmental Defense Center.

The Clean Water Act established a general rule that permits are required before pollutants may be discharged from any point source into the navigable waters of the United States.

Congress later amended the Act to exempt most discharges composed entirely of stormwater because there is so much stormwater.

A few types of stormwater discharges, however, still require permits.

As relevant here, permits are required for stormwater discharges that are associated with industrial activity.

And the term “associated with industrial activity” covers only discharges under the statute, directly related to manufacturing, processing or raw materials storage areas at an industrial plant.

Petitioner Georgia-Pacific has a contract with Oregon to harvest timber from a state forest, west of Portland, Oregon.

It rains a lot in this part of Oregon, in some places more than 100 inches a year, so water runs off to logging roads used by the petitioner and into the ditches and culverts, and channels that discharge the water into nearby streams and rivers.

And the discharge often contains sediment that may be harmful to fish or other aquatic organisms.

Respondent Northwest Environmental Defense Center filed suit against Georgia-Pacific and state and local governments and officials and alleged that the defendant should have obtained permits before discharging stormwater runoff from the logging roads.

The District Court dismissed the action.

The Court of Appeals for the Ninth Circuit reversed.

The Court of Appeals held that the discharges from the logging roads did require permits.

That is because, in their view, they were associated with industrial activity.

The Court of Appeals decision was contrary to the EPA's interpretation of its regulation.

Now, just before the oral argument in these cases, the EPA issued a final version of an amendment to its storm -- to its industrial stormwater rule.

And that amendment clarified that the permit requirement applies only to a certain subset of logging operations, but not the logging roads like the ones here.

The new regulation does not make these cases moot.

The preamendment version of the regulation governed the petitioner's past discharges.

It might be the basis for the imposition of penalties even if, in the future, the discharges are allowed without a permit under the new amendment.

So in this case, the Court now turns to the preamendment version of the Industrial Stormwater Rule and the Court finds that the preamendment rule is a permissible construction by the EPA of the statutory term associated with industrial activity.

As such, it exempts from the permitting scheme, discharges of channeled stormwater runoff from the logging roads.

When 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.

This principle is often referred to as the Auer, as Auer deference, A-U-E-R, after the Court's ruling in the case of Auer versus Robbins.

Here, it was reasonable for the EPA to conclude that under the regulatory scheme, the permit requirement extends only to traditional industrial buildings such as factories and other relatively fixed facilities.

For example, a sawmill might be a site for which discharge permits are required, but these logging roads are not.

The EPA has been consistent in this position.

The judgment of the Court of Appeals is reversed.

The cases are remanded for proceedings consistent with this opinion.