Some Pipes Are Not Point Sources: Supreme Court Upholds EPA Interpretation Of Stormwater Rule
For the second time this year, the U.S. Supreme Court has concluded that not all pipes and channels are regulated by the Clean Water Act, even though the act regulates “point sources” and that term is defined as “any discernible, confined and discrete conveyance including … any pipe, ditch, channel [etc.]”. The Court’s decision, in the case of Decker v. Northwest Environmental Defense Center, is about pipes and ditches used to drain water from logging roads. Two regulations were at issue: EPA’s “Industrial Stormwater Rule”, which identifies stormwater discharges “associated with industrial activity” that are subject to regulation, and EPA’s “Silvicultural Rule”, which excludes from regulation “road construction and maintenance from which there is natural runoff.” One obvious issue in the Silvicultural Rule is the word “natural”. How can artificial structures like roads and drainage ditches generate “natural” runoff? Another issue is whether EPA has the authority to declare that some pipes and ditches are not point sources, when the Clean Water Act defines the phrase to include “any” pipe and ditch.