Supreme Court Reverses 9th Circuit on Logging Roads, Deferring to EPA on Its Industrial Stormwater Rule

The Court reached its holding without reviewing EPA’s newly amended Industrial Stormwater Rule and without considering one of the principal issues on which the Ninth Circuit based its decision: whether stormwater runoff is a “point source” under the Clean Water Act. The regulatory status quo is thus preserved in this case, with a majority of the Court supporting Auer agency deference. However, one critical aspect of the decision is the prospect, signaled in the concurring and dissenting opinions, that support for Auer deference is waning and agencies' interpretations of their own regulations will be scrutinized more heavily in future cases.

The Stormwater Regulatory Scheme

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from “point sources” into the waters of the United States without a permit.¹ Point sources are defined in the Act itself as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure [or] container … from which pollutants are or may be discharged.”² Stormwater discharges “associated with industrial activity” are governed under a set of “Phase I” regulations by the Environmental Protection Agency (“EPA”) as part of the CWA National Pollutant Discharge Elimination System (“NPDES”) program.³

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1. 33 U.S.C. §§ 1311(a), 1342.
2. § 1362(14).
3. § 1342(p)(2)(B).