U.S. Supreme Court Will Review Ninth Circuit Decision Requiring Permits for Stormwater Runoff from Logging Roads
6/25/2012

Owners and operators of public and private logging roads throughout the West, Alaska and Hawaii might get relief from a court decision that threatens economic and regulatory havoc. The U.S. Supreme Court today agreed to review the U.S. Court of Appeals for the Ninth Circuit decision, Northwest Environmental Defense Center v. Brown et al. Originally issued August 17, 2010, the Ninth Circuit decision overturned 35 years of regulatory and judicial precedent by holding that stormwater runoff systems along logging roads require National Pollutant Discharge Elimination System ("NPDES") permits under the Clean Water Act.

The Supreme Court rarely grants a petition for a writ of certiorari. The Court receives approximately 10,000 petitions each year. The Court grants and hears oral argument in about 75-80 cases, less than 1 percent of all petitions filed.

Mayer Brown LLP and Stoel Rives LLP filed a petition for a writ of certiorari on behalf of Georgia-Pacific West, Inc., Hampton Tree Farms, Inc., Stimson Lumber Co., Swanson Group, Inc., American Forest & Paper Association, Oregon Forest Industries Council and Tillamook County. Timothy S. Bishop, Richard Bulger and Chad Clamage of Mayer Brown and Per A. Ramfjord, Leonard J. Feldman and Jason T. Morgan of Stoel Rives, along with William K. Sargent of Tillamook County, filed the petition.

The Ninth Circuit overturned a longstanding regulatory practice by the U.S. Environmental Protection Agency ("EPA") to treat runoff from logging roads via ditches and culverts as nonpoint source pollution to be addressed by state best management practices rather than NPDES permits. In addition, the court held that such discharges were "associated with industrial activity" and thus required NPDES permits under EPA's industrial stormwater regulations. Millions of acres of forest land in the West, including thousands of miles of roads, are affected by the decision.

The petitions for review argued that the Ninth Circuit's ruling violated Supreme Court precedent requiring judicial deference to statutory interpretations by government agencies, conflicted with decisions of other courts of appeal and erroneously exercised jurisdiction over the case. They also argued that the ruling would burden landowners and local governments with enormous compliance and permitting costs while opening the door for administrative challenges and litigation following each permit approval. A decision by the Supreme Court to affirm or reverse the Ninth Circuit's decision is expected within the next year. The timber industry petition for certiorari is available for download at www.stoel.com/files/CertiorariWrit_GeorgiaPacific.pdf. The Supreme Court's grant of certiorari is available at www.supremecourt.gov/orders/courtorders/062512d4f1zor.pdf.