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CITIZEN SUIT WATCH: Ninth Circuit Asserts Citizen Suit Jurisdiction Over Challenge To Longstanding Regulation And Reaffirms Clean Water Act Permitting Requirements For Forest Roads

May.31.2011

On May 17, 2011, the Ninth Circuit issued a revised opinion in Northwest Environmental Defense Center ("NEDC") v. Brown,1 a citizen suit in which the Court previously ruled that stormwater management systems associated with forest roads are point sources under the Clean Water Act (CWA) and are subject to the Phase I stormwater regulations that EPA issued in 1990 to implement Section 402(p) of the Act.2  In issuing its revised opinion, the Ninth Circuit reaffirmed its earlier decision on the merits in its entirety and denied petitions for rehearing and rehearing en banc.  Apart from adding a short discussion on subject matter jurisdiction, the Court's revised opinion is identical to its original opinion from August 17, 2010.

Background and Summary of Original Opinion

The plaintiff in NEDC v. Brown brought a citizen suit against the Oregon State Forester, several members of the Oregon Board of Forestry, and numerous timber companies alleging discharges in violation of the CWA.  According to the plaintiff, stormwater runoff flowing from forest roads into a system of ditches, culverts, and channels that, in turn, discharges into forest streams and rivers is a "point source" discharge within the meaning of the Act and therefore, must be permitted under the Act's National Pollutant Discharge Elimination System (NPDES).

In an opinion dated August 17, 2010, the Ninth Circuit agreed with the plaintiff and held that the "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."3  In reaching its holding, the Court held that the discharges are not exempted by EPA's Silvicultural Rule codified at 40 C.F.R. § 122.27.  After explaining that the Act "prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit," the Court examined whether the discharges at issue are point source discharges.4  The Court emphasized that whether stormwater runoff is a point source depends on whether it runs off naturally (nonpoint source) or is collected, channeled, and discharged (point source).  As the Court explained, the plain language of the statute, the legislative history, and Ninth Circuit case law all confirm that runoff that is collected, channeled, and discharged through a conveyance system appears to fall squarely within the definition of a point source discharge.

After discussing the definition of "point source" under the statute, the Court considered whether the discharges at issue are nevertheless exempted from the statutory definition because of EPA's Silvicultural Rule, adopted in 1976.5  In short, the Rule defines what constitutes silvicultural point sources that require NPDES permits, as distinguished from nonpoint source silvicultural activities that do not require NPDES permits.  The former category includes discharges "related to rock crushing, gravel washing, log sorting, [and] log storage facilities."6  The latter category includes "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."7  

The Court emphasized that the original Rule resulted in rulings8 that EPA lacked the authority under the CWA to categorically exempt all stormwater point source discharges from the requirement to obtain an NPDES permit.  The Ninth Circuit then observed that the revised (current) Rule, though less broad than the original, nonetheless continues to categorically exempt certain discharges from the statutory definition of "point source."  According to the Court, the statutory definition of "point source" does not "depend[] on the manner in which the pollutant arrives at the ‘discernable, confined and discrete conveyance.'"9  Thus, even though the discharges at issue came from natural runoff, once that natural runoff was channeled into a conveyance system, it became a point source discharge.
The Court stopped short of invalidating the Silvicultural Rule altogether.  It explained that the Rule is consistent with the CWA insofar as it exempts natural runoff from silvicultural activities and that runoff remains natural.  But, the Rule does not exempt natural runoff from the definition of "point source" once that runoff is "channeled and controlled in some systematic way" through conveyance systems such as the ones at issue in the case.10

The defendants further argued that even if the runoff at issue is deemed to be discharges from point sources, there is no requirement that they obtain NPDES permits, due to the operation of the stormwater provisions added to the CWA by the 1987 amendments, but the Ninth Circuit also rejected that argument.  The 1987 amendments established a phased approach to NPDES permitting of stormwater discharges.11  Congress required that discharges associated with industrial activity and other significant sources of stormwater pollution be addressed in Phase I stormwater regulations.  Permits for other activities were left to the discretion of EPA in Phase II, and those regulations do not include forest roads.  However, the Court opined that if forest roads are used to access an "industrial activity," then discharges from such roads require an NPDES permit.

The Court observed that EPA included Standard Industrial Classification (SIC) 24 in its definition of "industrial activity."  Because logging is covered under SIC 2411, it is an "industrial activity" within the meaning of the Phase I regulations,12 notwithstanding EPA's statement in the Phase I regulations and in its amicus brief that it meant to exclude silvicultural activities from the definition of "industrial activity."  By regulation, stormwater discharges from "immediate access roads . . . used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the [industrial] facility" require a permit.13  Upon rejecting the defendants' (and EPA's) arguments that forest roads are not "immediate access roads" and that logging sites are "industrial facilities" within the meaning of the regulations, the Court concluded that the discharges at issue constitute point source discharges associated with industrial activity and thus, require an NPDES permit under the Act.

Jurisdictional Discussion in the Revised Opinion

The original opinion in this case did not include a discussion of whether the Court properly has subject matter jurisdiction over the citizen suit because none of the original parties to the suit contested jurisdiction.  But, the Court included a short discussion on jurisdiction in its revised opinion to address jurisdictional arguments that the United States raised in an amicus brief.  In its first amicus brief, filed in November of 2007, the United States argued that because the Silvicultural Rule unambiguously attempts to exempt the discharges at issue in the case, citizen suit jurisdiction under 33 U.S.C. § 1365(a) was improper.  The United States contended that the plaintiff's suit was barred because the plaintiff did not timely challenge the Silvicultural Rule under 33 U.S.C. § 1369(b), which mandates that suits seeking judicial review of certain actions by EPA under the CWA be brought within 120 days in circuit court.  Any action, including citizen suits, that could have been brought under section 1369(b) is barred by statute unless the grounds for the suit arose more than 120 days after EPA's action.14

The Ninth Circuit did not address the United States' jurisdictional challenge in its August 19, 2010 decision.  When the defendants requested rehearing, however, the Ninth Circuit asked for supplemental briefing on the jurisdictional issues.  The United States filed a second amicus brief on February 20, 2011 addressing the Court's jurisdiction.  In light of an argument raised by plaintiffs after the original amicus brief was filed and the Court's holding in its August 2010 decision that the Silvicultural Rule is ambiguous, the United States conceded that the court has jurisdiction under the citizen suit provision of the Act.

The Ninth Circuit agreed with the government's argument and concluded that it has jurisdiction under the citizen suit provision of the CWA because the grounds for the plaintiff's challenge to the Silvicultural Rule arose more than 120 days after the Rule's promulgation in 1976.  The Court reasoned that the Silvicultural Rule is susceptible to two readings: (i) the Rule does not require permits for stormwater runoff associated with silvicultural activities; or (ii) the Rule does require permits if the runoff is channeled.  Remarkably, the Court held that the United States adopted the former interpretation of the Rule for the first time when it filed its amicus brief in this case in November 2007.  Until then, the Court explained, "there was no way for the public to know which reading of the Silvicultural Rule it would adopt."  The Court concluded that the plaintiff's citizen suit was based on grounds that arose after the 120-day filing window in 33 U.S.C. § 1369(b) and hence, was not barred by that provision.

Implications

Given that the Court reaffirmed its August 17, 2010 decision on the merits in its entirety, this case continues to have far-reaching implications for both public and private entities.  Obviously those who own and/or operate forest roads within the states in the Ninth Circuit will have to evaluate whether they need to take action and seek NPDES permits in response to this decision once the Ninth Circuit issues its mandate.

The jurisdictional ruling has much broader implications beyond the narrow NPDES issue before the court, in that the ruling could be extended to any statutory scheme with similar judicial review language to 33 U.S.C. § 1369(b).  The court's analysis opens the door to additional challenges through citizen suits to purportedly ambiguous regulations that the agency may not even opine on until the litigation is underway.  It further allows such litigation to occur against the regulated entities themselves in district courts, rather than against the federal agency in the courts specified by statute.  And, it confuses, rather than clarifies, the question of which court – district or circuit – has jurisdiction and why.  The CWA is clear: the citizen-suit provision lodges citizen suit jurisdiction in the "district courts,"15 while general judicial review jurisdiction lies in the "Circuit Court of Appeals."16  The Ninth Circuit blurs these important distinctions when it states that "We" (not the district court) "have subject matter jurisdiction" under the citizen suit provision.

Finally, the ruling allows the agency to argue (as EPA did here) that even though it has taken no enforcement for decades against a certain activity under a longstanding regulation, the regulation is nevertheless ambiguous and subject to judicial review because the agency never specifically stated that the regulation exempted the activity at issue, thus hatching a perfect storm of regulatory uncertainty.


1 The Court issued its original opinion in this case on August 17, 2010.  That opinion was reported at 617 F.3d 1176.

2 33 U.S.C. § 1342(p).

3 617 F.3d 1176, 1198 (9th Cir. 2010).

4 Id. at 1181.

5 See 40 C.F.R. § 122.27.

6 Id.

7 Id.

8 See Natural Res. Def. Council v. Train, 396 F. Supp. 1393 (D.D.C. 1975), aff'd, Natural Res. Def. Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).

9 617 F.3d at 1191.

10 Id.

11 See 33 U.S.C. § 1342(p).

12 See 40 C.F.R. § 122.26(b)(14)(ii).

13 40 C.F.R. § 122.26(b)(14)(ii).

14 See 33 U.S.C. § 1369(b)(2).

15 Id. § 1365(a).

17 Id. § 1369(b).


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Kirsten L. Nathanson
Partner – Washington, D.C.
Phone: 202.624.2887
Email: knathanson@crowell.com

David Chung
Counsel – Washington, D.C.
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