Will Decker Hobble Future Attempts at Clean Water Act Permit Streamlining?

This session, the Supreme Court is hearing a case to which you probably hadn't paid much attention, even if you focus on environmental law - Decker v. Northwest Environmental Defense Center.  But you should, since Decker could significantly help - or hurt - future attempts by EPA to streamline the Clean Water Act permitting program.  Decker may also affect the direction of Clean Water Act citizen suits across the board - a possibility that just increased with a recent Eleventh Circuit decision.

Decker is a citizen lawsuit challenging water discharges from logging roads without a CWA permit, which is why you probably haven't heard of it unless you're in the logging or anti-logging business.  But even if you don't care about logging, you should be aware of the case, because the plaintiff in Decker is challenging EPA rules stating that logging roads don't need a CWA permit.  But the Plaintiff isn't challenging the rules by suing EPA - it's suing the entity it thinks should have gotten the permit.

Whether this approach is valid depends on the interpretation of an important, but relatively obscure, provision of the CWA which requires lawsuits regarding certain EPA actions to be filed quickly (within 120 days) and be filed directly in the Court of Appeals (not in district Court, like most cases).  The question in Decker is whether challenges to EPA rules exempting classes of actions from the requirement to obtain a CWA permit (like the logging road discharges here) have to be heard under this provision.  If so, regulated parties will know fairly quickly if they need a permit or not.  If not, they may have to wait years to find out and risk private citizen suit lawsuits while they wait for clarity.

The appellate courts are split on the question.  The Sixth and DC Circuits have held that rules exempting pesticide spraying and certain stormwater discharges are subject to the 120-day limit.  The Ninth Circuit held the other way in a case challenging EPA's CWA exemption for ballast water discharges.  On October 24, the Eleventh Circuit added to the confusion when it decided, in Friends of the Everglades v. EPA, that it didn't have jurisdiction to hear a challenge to an EPA exemption for water transfers.  As with the other cases, the Eleventh Circuit's rationale was technical and complex, but the bottom line is a ruling which allows a challenge to an EPA exemption to go forward without complying with the provision limiting challenges to the 120-day period.

So, in Decker, the Supreme Court has the chance to clarify the extent of citizen suit challenges to EPA CWA exemptions.  Such a clarification is critical to the success of any future EPA streamlining efforts - if the regulated community has to wait for individual lawsuits to arise over the course of years to challenge EPA rules limiting the classes of activities requiring permits, it will not have the certainty it needs to take advantage of any such EPA streamlining initiatives.   Let's hope the Supreme Court provides that much-needed clarity.