Decker v. Northwest Environmental Defense Center

In this citizen suit brought under the Clean Water Act by Northwest Environmental Defense Center (NEDC) against the Oregon Board of Forestry and several timber companies, the Ninth Circuit held that NEDC stated a claim for relief by alleging that the petitioners must comply with a stormwater regulation of EPA, 40 C.F.R. § 122.26, which requires NPDES permits for point-source stormwater discharges associated with the logging industry. The court further held that another regulation, 40 C.F.R. § 122.27, does not exclude point-source discharges along active logging roads from EPA’s stormwater regulation or otherwise rede-fine those discharges as nonpoint-source pollution that is exempt from the NPDES permit requirement.

The defendants petitioned the U.S. Supreme Court for review, asking the Court to consider whether ditches and channels that convey runoff from logging roads constitute “point sources” that require permits. Public Citizen served as co-counseled at the petition stage, urging the Court to deny the petition because it was consistent with decisions of other courts and correct on the merits.

The Court, however, granted the petition and reversed. The Court held that the Clean Water Act exempted the storm water runoff from the permitting scheme because the runoff was not associated with industrial activity.