Supreme Court Holds No Permit Required for Storm-Water Run-Off

What ever happened to common sense? It seems we find ourselves asking this question these days with all of the madness in Washington. But the good news is that there is at least some sense left in the Supreme Court, as demonstrated by its recent decision rebuking the radical proposition that businesses should have to obtain costly federal permits for storm-water runoff.

Last we checked—rainfall is a naturally occurring event. So it seems downright absurd to think that businesses should have to obtain federal permits for storm-water runoff. But that is exactly what the radical environmentalist movement was arguing to the Supreme Court in Georgia-Pacific v. NEDC. Remarkably, they had prevailed with this argument in the Federal Court of Appeals for the Ninth Circuit.

The Clean Water Act (CWA) requires a federal permit for any discharge of pollutants into the waters of the United States. Accordingly, environmentalist groups were suing logging companies in Oregon for using and maintaining dirt roads without a CWA permit. Their essential argument was that these roads cause pollution problems when it rains because the storm-water will naturally find its way into streams and rivers—carrying dirt and debris along the way.

But, even the Environmental Protection Agency (EPA) recognizes that timber companies may operate on logging roads without obtaining a CWA permit. In fact the EPA made this clear by adopting rules and regulations explicitly addressing this issue and clarifying that timber harvesting activities do not require a permit under the CWA. And as if EPA’s blessing is not enough, the State of Oregon has also adopted rules and regulations governing the construction and maintenance of forest roads to ensure that the timber industry can operate consistent with what the State deems ‘best practices’ for environmental stewardship.

Nonetheless the radical environmentalist movement pushed forward with this lawsuit arguing that EPA was wrong to say that no permit should be required for storm-water runoff from forest roads. Accordingly, we filed a friend-of-the-court brief in the Supreme Court to inject some common sense into the arguments. We said that the court should resolve the case—as it ultimately did—consistent with the principles of federalism. Specifically our brief encouraged the Court to interpret the CWA with a presumption that businesses should be allowed to continue operating—consistent with state law—without obtaining a federal permit. Since the case ultimately hinged upon ambiguous language in the CWA, we argued that it would be inappropriate to interpret those ambiguities in a manner that would impede upon economic liberties.

We were pleased to see the Supreme Court agreed. And we will continue to defend constitutional principles—and common sense—in our ongoing fight for small business rights. After all, there is no shortage of bad ideas for us to challenge in the courts. In fact, bad ideas seem as common as rainfall in the Northwest these days.

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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