U.S. Supreme Court to Review CWA Logging Roads Decision

On Monday, the U.S. Supreme Court announced that it would review the 9th Circuit Court of Appeals decision in NEDC v. Brown that changed the way EPA regulated stormwater pollution on industrial logging roads.  The 9th Circuit decision, first issued by a three judge panel in August 2010 and then affirmed by the full court in May 2011, provided a new interpretation of exising EPA regulations, rather than over-ruling the regulation outright.  The Supreme Court will address three main questions during its review:

The first two questions revolve around whether the Ninth Circuit got it wrong when it held that storm-water from logging roads is industrial stormwater under the CWA and EPA’s rules, even though EPA has determined that it is not industrial stormwater and whether the lower court should have deferred to that EPA interpretation that no permit was required.

The final question is more jurisdictional in nature, and addresses whether a court can correct a misinterpretation of an agency regulation while raising a challenge under the citizen suit provision of the CWA.

Now the waiting begins again...in the interim, we'll see whether EPA continues forward with its attempt to change its regulations to address the NEDC v. Brown 9th Circuit decision.