Posted on June 4, 2012 by David Van Slyke
So let me get this straight. In Northwest Environmental Defense Center v. Brown, the United States took the position (as an amicus) that, under EPA’s long-standing silviculture rule, NPDES permits are not required for stormwater runoff from logging roads that ends up in ditches and culverts, and that such runoff is not associated with industrial activity. The 9th Circuit rejected that position and a number of parties (not including the United States) combined to file two different petitions for certiorari with the Supreme Court.
But in its subsequent amicus curiae brief to the Supreme Court, the United States urged the Court to reject the cert petitions — despite continuing to insist that, on the merits, the 9th Circuit erred by not giving deference to EPA’s interpretation of its own regs. The United States’ rationale? Three in number: (1) “no square circuit conflict exists;” (2) Congress has placed a short term (through September 30, 2012) moratorium on EPA implementation of the 9th Circuit decision and bills (H.R. 2541; S. 1369) on the issue are pending in both houses of Congress; and (3) EPA issued a Notice of Intent (the day before the United States filed its amicus brief) that it planned to amend its Phase 1 stormwater rules to clarify that stormwater discharges associated with logging roads did not require an NPDES Permit.
So, er, um, the timber industry should hope that the Congressional moratorium gets extended…, or one of the bills pending before Congress providing relief on this topic gets enacted…, or EPA puts its nascent rulemaking efforts into overdrive to promulgate amended Phase 1 Stormwater rules before the moratorium expires or a bill is enacted…, or the Court rejects the United States’ position, hears the case and provides some guidance.
The road ahead is muddy, at best.