Decker v. Nw. Envtl. Def. Ctr. Ga.-Pac. W., Inc.

• Decision Date: 20 March 2013
• Docket Number: 11–347.,Nos. 11–338,s. 11–338
• Citation: 185 L.Ed.2d 447,568 U.S. 597,133 S.Ct. 1326
• Parties: Doug DECKER, in his official capacity as Oregon State Forester, et al., Petitioners v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER. Georgia–Pacific West, Inc., et al., Petitioners v. Northwest Environmental Defense Center.
• Court: U.S. Supreme Court

568 U.S. 597

133 S.Ct. 1326

185 L.Ed.2d 447

Doug DECKER, in his official capacity as Oregon State Forester, et al., Petitioners

v.NORTHWEST ENVIRONMENTAL DEFENSE CENTER.

Georgia–Pacific West, Inc., et al., Petitioners

v.Northwest Environmental Defense Center.

Nos. 11–338

11–347.

Supreme Court of the United States

Argued Dec. 3, 2012.

Decided March 20, 2013.^*

Timothy S. Bishop, Chicago, IL, for Petitioners.

Malcolm L. Stewart, for the United States as amicus curiae, by special leave of the court, supporting the Respondent.

Ellen F. Rosenblum, Attorney General, Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, Counsel of Record, Erin C. Lagesen, Assistant Attorney General, Salem, OR, for Petitioners.

Paul A. Kampmeier, Washington Forest Law Center, Seattle, WA, Christopher G. Winter, Crag Law Center, Portland, OR, Kevin K. Russell, Washington, DC, Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Deborah A. Sivas, Stanford, CA, for Respondent.

Michael B. Kimberly, Mayer Brown LLP, Washington, DC, Per A. Ramfjord, Leonard J. Feldman, Jason T. Morgan, Stoel Rives LLP, Portland, OR, Timothy S. Bishop, Counsel of Record, Jeffrey W. Sarles, Richard Bulger, Chad Clamage, Mayer Brown LLP, Chicago, IL, William K. Sargent, Tillamook County Counsel, Tillamook, OR, for Petitioners.

Justice KENNEDY delivered the opinion of the Court.

These cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be "associated with industrial activity." 33 U.S.C. § 1342(p)(2)(B). The Environmental Protection Agency (EPA), with the responsibility to enforce the Act, has issued a regulation defining the term "associated with industrial activity" to cover 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."

40 C.F.R. § 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA's determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

I

A

Congress passed the Clean Water Act in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 86 Stat. 816, 33 U.S.C. § 1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§ 1311(a), 1362(12) ; EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). The Act defines "point source" as

"any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." § 1362(14).

When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The agency issued regulations exempting certain types of point-source discharges from the NPDES permitting scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA "authority to exempt categories of point sources from the permit requirements" of the Act. Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377. In response the EPA issued new regulations to define with more precision which categories of discharges qualified as point sources in the first place. Among these regulations was the so-called Silvicultural Rule. This rule is at issue here. It provides:

"Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." 40 C.F.R. § 122.27(b)(1).

Under the quoted rule, any discharge from a logging-related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U.S.C. § 1342(p), Congress has exempted certain discharges of stormwater runoff. The statutory exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage discharges of this kind. See, e.g., Natural Resources Defense Council, Inc. v. EPA, 966 F.2d 1292, 1295–1296 (C.A.9 1992). In 1987, Congress responded to these problems and adopted various stormwater-related amendments to the Act. § 405, 101 Stat. 69, 33 U.S.C. § 1342(p).

The 1987 amendments exempt from the NPDES permitting scheme most "discharges composed entirely of stormwater." § 1342(p)(1). The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges "associated with industrial activity ." § 1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as

"the discharge 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. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from ... immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility...." 40 C.F.R. § 122.26(b)(14) (2006).

The Industrial Stormwater Rule also specified that, with one exception not relevant here, "[f]acilities classified as Standard Industrial Classificatio[n] 24" are "considered to be engaging in ‘industrial activity’ for purposes of paragraph (b)(14)." Ibid . The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept. of Labor, Standard Industrial Classifications Manual, online at http://www.osha.gov/pls/imis/sic_manual.html (as visited Mar. 14, 2013, and available in Clerk of Court's case file). Standard Industrial Classification 24 identifies industries involved in the field of "Lumber and Wood Products." 2 App. 64. This includes the "Logging" industry, defined as "[e]stablishments primarily engaged in cutting timber and in producing ... primary forest or wood raw materials." Ibid .

On November 30, 2012—three days before the instant cases were argued in this Court—the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the agency's response to the Court of Appeals' ruling now under review. The amended version seeks to clarify the types of facilities within Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule. The amended Industrial Stormwater Rule does not cover all facilities within Standard Industrial Classification 24. It limits covered stormwater discharges to

"[f]acilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities ... and Industry Groups 242 through 249." 77 Fed.Reg. 72974, pt. 122, subpt. B (2012).

It should be noted, by way of explanation, that an Industry Group is a subcategory of businesses within a Standard Industrial Classification. Industry Group 241 is "Logging," while Industry Groups 242 through 245 are, respectively, "Sawmills and Planing Mills," "Millwork, Veneer, Plywood, and Structural Wood," "Wood Containers," and "Wood Buildings and Mobile Homes." Industry Group 249 is "Miscellaneous Wood Products." Industry Groups 246 through 248 are blank categories. Standard Industrial Classifications Manual, supra, Major Group 24.

It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule.

Up to this stage in the litigation, of course, the cases have been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be...