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Ninth Circuit Reissues Opinion Requiring NPDES Permits for Stormwater Discharges from Logging Roads

May 20, 2011

The Ninth Circuit this week affirmed an earlier decision that will effectively require many timberland owners and logging companies to obtain permits for stormwater runoff from logging roads in the western U.S. The case, Northwest Environmental Defense Center (NEDC) v. Brown,[1] involved two Oregon logging roads where stormwater runoff is collected in systems of ditches, channels, and culverts, and then discharged into adjacent rivers. The Ninth Circuit initially issued its decision in August 2010. See Stormwater Discharges from Logging Roads Require Clean Water Act Permits, Ninth Circuit Holds. The defendant-appellees then petitioned for rehearing or rehearing en banc. On May 17, the court withdrew its earlier opinion and reissued a revised version.

In the reissued opinion, the Ninth Circuit reiterated that the stormwater collection systems at issue unambiguously constitute “point sources” under the Clean Water Act (CWA), and that such discharges therefore require permits under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. In so holding, the court significantly limited a decades-old regulation that had historically been viewed as excluding logging road runoff from the NPDES program and charged EPA with developing a general permit to handle the discharges.

The court also inserted a justification for its exercise of jurisdiction over the case that may well have impacts beyond the context of logging roads in the west. Generally, challenges to EPA’s CWA regulations must be lodged in federal appellate courts within 120 days of when the regulations are issued. Based on the United States’ position in an amicus brief, however, the court held that the citizen suit plaintiffs could challenge the application of the Silvicultural Rule in this instance, despite the statutory limitations periods for challenging agency rulemaking, because the regulation was purportedly “ambiguous.” Under this standard, the court may have opened a backdoor that could allow both environmental and industry groups to challenge environmental regulations long after they have been issued on the theory that they are “ambiguous.”

Statutory and Regulatory Background

The CWA prohibits the discharge of a “pollutant” into waters of the United States from a “point source” without an NPDES permit.[2] The CWA defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged.”[3] The CWA expressly exempts “agricultural stormwater discharges and return flows from irrigated agriculture” from the definition of “point source.” It does not define “agricultural stormwater” or “nonpoint sources.”

EPA has promulgated detailed regulations under the NPDES program, some of which clarify the types of activities that require NPDES permits. EPA’s “Silvicultural Rule,” which has essentially been intact for over thirty years, defines a limited class of activities as “silvicultural point sources,” and interprets “nonpoint source silvicultural activities” as outside the NPDES program. It limits “silvicultural point sources” to “rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States.”[4] Falling outside the definition are “non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”[5]

Factual and Procedural Background

At issue in NEDC v. Brown were two logging roads in Oregon’s Tillamook State Forest. The Oregon Department of Forestry and the Oregon Board of Forestry own the roads. Various timber companies use the roads to access logging sites and to haul timber under contracts with Oregon. The timber sales contracts designate specific routes for timber hauling and require the timber companies to maintain the roads and their associated stormwater collection systems, which are ditches, culverts, and channels that collect and convey stormwater runoff from the roads to tributary streams and adjacent rivers. As is the case throughout the Pacific Northwest and other areas with high rainfall, these stormwater collection systems reduce erosion of the roads and, when properly constructed, effectively reduce the discharge of sediment to adjacent streams that would otherwise occur. An environmental group, NEDC, brought a citizen suit under the CWA, alleging that sediment discharges in stormwater from these roads negatively impact aquatic life, such as salmon and trout, and require permits under the NPDES program.

The District Court of Oregon dismissed NEDC’s lawsuit for failure to state a claim, holding that the Silvicultural Rule exempted the discharges from the NPDES program. According to the district court, “the fact that pollutants deposited on top of the roads during timber hauling end up being washed into the water bodies does not turn the road system with its associated ditches and culverts into a point source. The road/ditch/culvert system and timber hauling on it is a traditional dispersed activity from which pollution flowing into the water cannot be traced to single discrete sources.”[6]

The Ninth Circuit’s August 2010 Decision

On appeal, NEDC argued that the unpermitted stormwater discharges violate the CWA, despite the Silvicultural Rule. The Ninth Circuit also addressed a second issue that the district court elected not to, i.e., whether and to what effect the 1987 amendments to the CWA governing stormwater, and EPA’s regulations implementing those amendments, apply to stormwater runoff from logging roads.

The Ninth Circuit agreed with NEDC, holding that discharges from the logging roads require compliance with an NPDES permit. Although the court stopped short of expressly invalidating the Silvicultural Rule as a whole, the court held that the Rule does not and cannot, consistent with the CWA, exempt runoff that is collected from logging roads and discharged from a ditch or culvert to jurisdictional waters.

In addressing the Silvicultural Rule, the Ninth Circuit’s decision exhaustively reviewed the statutory definition of “point sources” under the CWA, case law interpreting the distinction between point and nonpoint sources, and the genesis and history of the Silvicultural Rule. In the Ninth Circuit, nonpoint source pollution is “the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source.”[7] Because “runoff is not inherently a nonpoint or a point source of pollution,” according to the court, the distinction between point and nonpoint source discharges turns not on the runoff itself, but on whether stormwater “is allowed to run off naturally (and is thus a nonpoint source) or is collected, channeled, and discharged through a system of ditches, culverts, channels, and similar conveyances (and is thus a point source discharge).”[8]

In the court’s view, EPA’s intent in the Silvicultural Rule was to focus on the “source of the pollutant” and not the mechanism of discharge, where “any natural runoff containing pollutants” from silvicultural activities is exempt “from the definition of point source, irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into” jurisdictional water.[9] This approach, the court opined, directly conflicts with the statutory definition of “point source” under the CWA, and is therefore invalid.

Instead of striking down the Silvicultural Rule, the court determined that the Rule is subject to a second interpretation that is consistent with the CWA, even though it neither “reflect[s] the intent of EPA” nor exempts the discharges at issue in the case. Under the latter interpretation, the Rule “exempts natural runoff from silvicultural activities …, but only as long as the ‘natural runoff’ remains natural. That is, the exemption ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into” jurisdictional waters.[10]

Having already held that the discharges require NPDES permits, the court also addressed an argument that was not decided by the district court: the impact of the CWA’s 1987 amendments and EPA’s regulations implementing those amendments. The 1987 amendments ushered in a tiered approach to addressing stormwater discharges, in what is now CWA § 402(p). Congress required EPA first to promulgate so-called “Phase I regulations” for five classes of significant sources of stormwater pollution, including “industrial activity.” Second, Congress required EPA to study stormwater discharges that were not covered by the Phase I regulations, and to issue “Phase II” regulations accordingly.

The court acknowledged that it is “within the discretion of EPA to promulgate Phase II regulations requiring, or not requiring, permits for” discharges from relatively de minimis sources, but stated that EPA lacks discretion with respect to the entities that fall within the Phase I regulations.[11] Because Congress expressly required EPA to promulgate Phase I regulations to address “discharges associated with industrial activity,”[12] the court held that, “if silvicultural activity is ‘industrial in nature,[’] § 402(p) requires that discharges from such activity obtain NPDES permits.”[13]

After reviewing EPA’s Phase I regulations, the court concluded that stormwater discharges from logging roads fall within the scope of Phase I as “storm water discharge[s] associated with industrial activity,” and therefore require compliance with the NPDES program. The court based this ruling on a provision of EPA’s regulations that specifies broad Standard Industrial Code (SIC) categories of industries considered “industrial activities,” one of which includes “logging,” defined as “establishments primarily engaged in cutting timber and in producing … primary forest or wood raw materials … in the field.”[14] The court also noted that EPA had defined “stormwater discharge associated with industrial activity” as including “immediate access roads … used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility.”[15] The court gave no significance to the first sentence of the regulatory definition upon which its analysis rested: “Storm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant.”[16]

Oregon and the timber companies advanced several arguments attempting to distinguish the typical industrial activity contemplated by the Phase I regulations from logging roads that occur in vast, often remote areas, far from a true “facility.” The court rejected these arguments, concluding that “collected runoff constitutes a point source discharge of stormwater ‘associated with industrial activity’ under the terms of § 502(14) and § 402(p).”[17] First, according to the court, and relying on EPA’s preamble to the Phase I rule, logging roads qualify as “immediate access roads,” because they are “roads which are exclusively or primarily dedicated for use by the industrial facility.”[18] Second, logging roads are “primarily dedicated” to use by the logging companies, because, although logging roads are “often used for recreation, … that is not their primary use. Logging companies not only build and maintain the roads and their drainage systems pursuant to contracts with the State. Logging is also the roads’ sine qua non: If there were no logging, there would be no logging roads.”[19] Finally, the court concluded that the Phase I rule defines “industrial activity” broadly enough to encompass other non-traditional sites that are directly related to an industrial process, including “immediate access roads.”[20] Despite EPA’s pending obligation from a prior case to determine whether the discharges should be included in EPA’s Phase II stormwater regulations, the court reiterated that logging road runoff is subject to the Phase I regulations. The court opined that EPA should be able to “effectively and relatively expeditiously” adapt the “closely analogous NPDES permitting process for stormwater runoff from other kinds of roads” to a general permit for stormwater discharges from logging roads.[21]

The Ninth Circuit’s Revised Opinion

In early October, the defendant-appellees petitioned for rehearing or rehearing en banc on multiple grounds, and various parties, including members of industry, environmental groups, local governments, and the United States submitted amicus briefs. On October 20, 2010, the court issued an order directing the plaintiff-appellants to respond to the petition, including two specific issues regarding the court’s subject matter jurisdiction over the case: (1) whether a suit challenging EPA’s interpretation of its regulations could be brought under the CWA’s citizen suit provision, 33 U.S.C. § 1365(a), as the plaintiffs did here; and (2) whether a suit challenging EPA’s decision to exempt the discharge of a pollutant from the CWA’s permitting requirements must be brought under the agency review provision in 33 U.S.C. § 1369(b).

The court denied the petition for rehearing or rehearing en banc without addressing the arguments raised by the parties or amici. However, the court replaced its August 2010 decision with a version of the opinion that included a justification for its jurisdiction over the case. Although none of the parties raised the issue on appeal, the United States argued in its initial amicus brief that, because the Silvicultural Rule was unambiguous, the suit could have only been brought under § 1369(b), within the statutory timelines, and not under § 1365(a). In response to a request from “one of [the court’s] colleagues,” the court requested supplemented briefing on the two issues in its October 20 order.[22]

The court held that it properly exercised jurisdiction over the case, owing to the United States’ “concession” in its second amicus brief that the Silvicultural Rule is ambiguous. The CWA’s citizen suit provision, like those in many environmental statutes, allows any person to enforce the substantive provisions of the statute while placing guidelines on when a plaintiff can challenge EPA’s interpretation of the statute through regulations. CWA § 1365(a) allows for suits against any person alleged to be in violation of “an effluent standard or limitation” under the CWA, such as entities that discharge pollutants into jurisdictional waters without a permit. However, CWA § 1369(b) places limitations on the citizen suit provision by stating that suits against EPA regarding the promulgation of standards, prohibitions, or limitations must be brought within 120 days from the date of EPA’s determination, approval, promulgation, issuance, or denial, unless the basis for the suit arose more than 120 days after the agency action. Any action that could have been brought under 1369(b) “shall not be subject to judicial review in any civil or criminal proceeding for enforcement.”[23]

The court held that “the basis for NEDC’s challenge to the Silvicultural Rule arose more than 120 days after the promulgation of the Rule,” because the United States did not adopt the first reading of the Rule until it filed its first amicus brief in the case.[24] “Until the United States filed that brief,” according to the court, “there was no way for the public to know which reading of the Silvicultural Rule it would adopt.”[25] In contrast to its previous position, the United States’ second amicus brief adopted the view that a citizen suit under § 1365(a) is proper “where, as here, the court holds that the pertinent EPA interpretation is offered well after the regulation is promulgated.”[26] The court agreed, holding that, “because the Silvicultural Rule was subject to two readings, only one of which renders the Rule invalid, and because the government first adopted its interpretation of the Rule in its initial amicus brief in this case, this case comes within the exception in § 1369(b)(1) for suits based on grounds arising after the 120-day filing window.”[27]

This section of the opinion is in some tension with other aspects of the court’s opinion that touch on EPA’s long-standing presumptive interpretation of its own Rule. For example, the court stated that the first interpretation of the Silvicultural Rule “reflects the intent of EPA in adopting the Rule” and that, “[u]ntil 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.”[28] That is, if EPA has always intended not to regulate this sort of discharge as a point source, and has never developed an appropriate general permit, one could query how EPA’s interpretation of its Rule remained ambiguous for decades.

Implications

Despite the court’s assurance that EPA can “expeditiously” develop a general permitting program for stormwater discharges on logging roads, the sheer number of roads that would be subject to the general permit and the varied climatic conditions and geography of the areas where they exist will require significant study and review. Until then, the private and public entities that own or operate on logging roads equipped with stormwater management systems are faced with the threat of enforcement without the option of applying for coverage under a permit that is designed for their circumstances. One option is to embark on the arduous process of applying for individual permits. Another may be to attempt to shoehorn forest roads within an existing general permit, but landowners and users will have to wrestle with the potentially poor fit of permits that are designed for active industrial facilities and roads.

For more information on stormwater permitting, please contact Meline MacCurdy or any other member of Marten Law’s Water Quality practice group.

[1] 2011 WL 1844060 (9th Cir. May 17, 2011).

[2] 33 U.S.C. §§ 1311(a), 1342.

[3] Id. § 1362(14).

[4] 40 C.F.R. § 122.27(b)(1).

[5] Id. (emphasis added).

[6] Northwest Environmental Defense Center v. Brown, 476 F. Supp. 2d 1188, 1197 (D. Or. 2007) (citing League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002)).

[7] NEDC v. Brown, 2011 WL 1844060, *5 (9th Cir. May 17, 2011) (quoting League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002)).

[8] Id.

[9] Id. at *15.

[10] Id.

[11] Id. at *17.

[12] Id. (quoting 33 U.S.C. § 1342(p)(2)(B), (1342(p)(4)(A)).

[13] Id. at *18.

[14] Id. (quoting 40 C.F.R. § 122.26(b)(14)(ii)).

[15] Id. (quoting 40 C.F.R. § 122.26(b)(14)(ii)).

[16] 40 C.F.R. § 122.26(b)(14).

[17] NEDC, 2011 WL 1844060 at *19.

[18] Id. at *18 (quoting 55 Fed. Reg. 47990, 48009 (Nov. 16, 1990)).

[19] Id.

[20] Id. at *19 (quoting 55 Fed. Reg. 47990, 48007 (Nov. 16, 1990)).

[21] Id. at *21.

[22] Id. at *2.

[23] 33 U.S.C. § 1369(b)(2).

[24] NEDC, 2011 WL 1844060 at *3.

[25] Id.

[26] Amicus Curiae Brief of the United States Responding to the Court’s Questions of October 21, 2010, at 10 (Feb. 10, 2011).

[27] NEDC, 2011 WL 1844060 at *3.

[28] Id. at *15, *21.

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