Thursday, May 19, 2011

Northwest Environmental Defense Center v. Brown

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Appeal from the United States District Court for the District of Oregon. In this case, the Appeals Court notes in an accompanying order that its opinion filed August 17, 2010 [See WIMS 8/18/10], and reported at 617 F.3d 1176, is withdrawn, and is replaced by the current opinion. With the filing of the new opinion, Appeals Court voted unanimously to deny the petitions for a rehearing en banc (i.e. the full panel).
    Northwest Environmental Defense Center (NEDC) brings suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities (collectively, State Defendants) and against various timber companies (Timber Defendants, and collectively with State Defendants, Defendants). NEDC contends that Defendants have violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning
of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).
    The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. The Appeals Court addressed both questions and conclude that the discharges require NPDES permits.
    The Appeals Court said in its opinion, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously." The Appeals Court concluded, "For the foregoing reasons, we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."
    Access the complete opinion (click here). [*Water, *Land, *CA9]

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