Supremes to Sing CWA Blues Again
In the final week of its 2011-12 term, days before its landmark decision on the constitutionality of the federal health care law, the U.S. Supreme Court agreed to add two important cases involving Clean Water Act (CWA) permitting jurisdiction to the docket for its next term, beginning in October 2012–just in time for the Act’s 40th birthday (October 18). The move is a bit of a surprise to some as the Court has issued many rulings related to CWA issues and programs over the last decade and in this instance, the Solicitor General, on behalf of the Administration, argued the Court should not agree to hear the new cases. Both involve stormwater and the scope of the CWA’s permitting requirements and have high stakes for the resources, people, and programs involved, ranging from thousands of miles of public and private sector logging roads to hundreds of communities and water management districts not currently covered by EPA’s municipal separate storm sewer system (MS4) permitting requirements under the CWA.
Decker v. Northwest Environmental Defense Center and Georgia Pacific West v. Northwest Environmental Defense Center are consolidated petitions challenging a 2010 9th Circuit Court of Appeals decision that channelized stormwater runoff from logging roads requires an NPDES permit. The Court held that EPA’s 1976 silviculture rule doesn’t exempt such discharges from regulation.
In the second case, Los Angeles County Flood County v. Natural Resources Defense Council, the 9th Circuit Court of Appeals ruled that the County must obtain an NPDES permit for urban runoff collecting in channelized river systems maintained and improved by county flood control agencies.
Both cases underscore the importance of and confusion surrounding stormwater permitting. Much of the debate is over the jurisdictional scope of the Act, the ability of an Executive Branch agency (EPA) to exempt activities when interpreting statutory coverage, and whether state and local “best management practices” can suffice in preventing significant sources of water pollution.
Stay tuned. The Alliance certainly will, just as the Alliance will continue to work with municipal, environmental, and commercial interests to find common ground and practical solutions.