Stormwater policy upended
In Decker v. Northwest Environmental Defense Center, the Supreme Court consolidated 2 cases that appeal the 9th Circuit decision that requires runoff permits for logging roads. The 9th Circuit ruling (NEDC v. Brown) had found that certain logging roads are stormwater point sources associated with industrial activity. This goes against a long standing EPA policy that runoff from logging roads is best managed through stormwater best management practices (BMPs).
In response to the 9th Circuit ruling, EPA has issued a notice of intent to revise the stormwater regulations to specify that a NPDES permit is not required fro stormwater discharges from logging activities. In addition to making the current policy part of the regulation, EPA’s notice also seeks comments concerning approaches to address water quality impacts from logging operations.
EPA also noted that it interprets the 9th Circuit decision to apply only to certain logging operations and not all forest roads and that silviculture activities (with certain exceptions) other than logging roads are still excluded from the requirement to obtain a NPDES stormwater permit. EPA has issued a fact sheet.
EPA did not want the Supreme Court to take up the issue until the regulatory process ran its course. Congress had stayed the 9th Circuit decision until the end of September 2012.
Forest owners elated
The National Alliance of Forest Owners (NAFO) has expressed its delight that the Supreme Court has decided to review the case. NAFO released a statement the same day the Supreme Court released the list of cases it will review for next year. NAFO is concerned on two levels. One that even though EPA has begun the regulatory process, that process will certainly not be completed by the end of September. Furthermore, according to NAFO, depending on how the Supreme Court rules, there may not even be a need for regulation, thus saving EPA from going down that onerous road.
Court will also laser in on water transfers
The Supreme Court has also agreed to take up the question of whether distinct waterbodies need a discharge permit when there is a transfer of water (Los Angeles County Flood Control District v. Natural Resources, et al.).
In this case, also out of the 9th Circuit U.S. Court of Appeals, the Court held that evidence shows that monitoring stations for the Los Angeles and the San Gabriel rivers are located in a channelized portion of the municipal separate storm sewer system (MS4) owned and operated by the District and after stormwater known to contain pollutant exceedances passes through the monitoring stations, it is discharged into the two rivers.
When the pollutants were detected, they had not yet exited the point source (the concrete channels of the MS4) into navigable waters. The District claims that the infrastructure of the MS4 does not generate or discharge pollutants—it just conveys the stormwater that contains the pollutants. The Court said that because the District holds the permit for the MS4, it has the legal authority to hold dischargers to the MS4 accountable for their contributions of pollutants and flows through such things as ordinances, permits, contracts, and model programs.
Transfers excluded from permit requirements
Currently, water transfers are not subject to regulation under the NPDES program. Water transfers are defined as "activities that convey or connect waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use." In addition, the water being conveyed must be a water of the United States before being discharged to the receiving water body, and it must be conveyed from one U.S. water to another water of the U.S. in order for the NPDES exclusion to apply. Conveyances that remain within the same water of the U.S. do not constitute water transfers. The exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.