The U.S. Supreme Court heard oral arguments last week in the case of Decker v. Northwest Environmental Defense Center (“NEDC”). What was billed as a landmark case, testing the validity of decades-old U.S. Environmental Protection Agency (“EPA”) regulations excluding certain silvicultural activities from point source stormwater permitting under the Clean Water Act, may turn out to be nothing more than a footnote in ongoing litigation over the permitting of runoff from forest and logging roads.

Expectations of the import of the case changed when—just days before the Supreme Court hearing—EPA issued a final rule amending and clarifying its longstanding interpretation that forest and logging roads are not industrial activities subject to mandatory storm water discharge permit requirements. EPA initiated the rulemaking in direct response to the Ninth Circuit’s decision in NEDC v. Brown, the underlying case under review by the Court in Decker v. NEDC. The narrow issue under review is whether the Ninth Circuit erred in holding that stormwater discharge permits are required for logging road runoff that is conducted via ditches and conduits to navigable waters. The broader issues at stake include the scope of EPA’s discretion to narrow the definition of “point sources” subject to federal stormwater regulation, and the range of circumstances under which citizen suits can be brought to enforce the Clean Water Act.

During oral argument, Chief Justice Roberts admonished the U.S. government’s attorney for not alerting the Court that the final rule would be issued just prior to the hearing. As a result of the final rulemaking and its implications to the core of the case, the Court spent much of the hearing trying to determine a proper course of action going forward. Possible outcomes from the Court could include vacating the underlying Ninth Circuit case or dismissing the case as moot due to the new EPA rule. Or, the Court could choose to decide the case on the merits, notwithstanding the new EPA rule. It is unclear how the Court will proceed.

What is known at this time is that much legal uncertainty still exists despite the clarification of EPA’s position provided by its recent rulemaking, and that all parties involved intend to continue to litigate these issues to conclusion. Legislative intervention by Congress may be required to bring about an ultimate resolution—a process that is underway, but not assured of completion.

In July 2011, in response to the Ninth Circuit’s decision in NEDC v. Brown, the House and Senate introduced bipartisan legislation, the Silviculture Regulatory Consistency bill (H.R. 2541/ S. 1369) to amend the Clean Water Act to exempt the conduct of silvicultural activities from national pollutant discharge elimination system permitting requirements, thereby affirming and preserving EPA’s longstanding policy that forest roads should be regulated as nonpoint stormwater sources. The legislation is still pending in the House.

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