Northwest Environmental Defense Center v. Brown
640 F.3d 1063
| 9th Cir. | 2011Background
- NEDC sues the Oregon State Forester and Board of Forestry and timber companies for stormwater discharges from two logging roads in Tillamook State Forest that deposit sediment into streams, allegedly via ditches, culverts, and channels.
- Discharges involve stormwater runoff collected and discharged through a system of ditches and channels into navigable waters, creating sediment pollution harming fish.
- Defendants purportedly exempt these discharges from NPDES permitting under the Silvicultural Rule (40 C.F.R. § 122.27) and, alternatively, under 1987 amendments to the CWA.
- The district court dismissed the complaint under Rule 12(b)(6); the Ninth Circuit later addresses subject matter jurisdiction, the Silvicultural Rule, and the 1987 amendments, ultimately holding that permits are required.
- The court clarifies that stormwater discharges collected and discharged through a discernible, confined and discrete conveyance are point source discharges and thus require NPDES permits under the Clean Water Act.
- The panel remands for further proceedings consistent with the opinion, reversing the district court’s dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether logging-road stormwater runoff is a point source discharge under §502(14). | NEDC contends runoff through ditches and channels constitutes a point source. | Defendants argue it is nonpoint runoff under the Silvicultural Rule or other exemptions. | Yes; such runoff is a point source when channeled through a discrete conveyance. |
| Whether the Silvicultural Rule exempts the discharge from the point-source definition. | NEDC asserts the Rule does not properly exempt channelled runoff from point-source status. | Defendants rely on the Rule to classify natural runoff as nonpoint. | No; the Silvicultural Rule does not exempt these discharges from §502(14). |
| Whether the 1987 stormwater amendments could exempt these discharges from permitting. | NEDC argues amendments do not create exemptions for silvicultural point sources. | Defendants contend amendments exempt certain stormwater by Phase I/II framework. | No; Phase I requires permits for stormwater associated with industrial activity, including logging roads. |
| Whether the court has subject-matter jurisdiction under §1365(a) or §1369(b). | NEDC argues jurisdiction under citizen-suit provision §1365(a). | Defendants and government argue for §1369(b) constraints because of agency interpretations. | The court has subject-matter jurisdiction under §1365(a) despite ambiguities in the Silvicultural Rule. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (interpretive starting point for statutory text)
- Natural Resources Defense Council v. California Department of Transportation, 96 F.3d 420 (9th Cir. 1996) (runoff from roadways subject to NPDES when in a stormwater system)
- Natural Resources Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992) (agency can regulate point sources through NPDES if industrial-like activity; nonpoint vs point)
- Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) (nonpoint vs point source distinction and regulatory approach)
- Costle v. Costle (Costle, et al.), 568 F.2d 1375 (D.C. Cir. 1977) (EPA cannot broadly exempt categories of point sources from permitting)