309 F.3d 1181 (9th Cir. 2002), 01-35729, League of Wilderness Defenders/Blue Mountains Bio

Docket Nº:01-35729.
Citation:309 F.3d 1181
Party Name:LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation; Kettle Range Conservation Group, a Washington nonprofit corporation; The Lands Council, a Washington nonprofit corporation; Hells Canyon Preservation Council, an Oregon nonprofit corporation; Oregon Natural Resources Council, an Oregon nonprofit cor
Case Date:November 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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309 F.3d 1181 (9th Cir. 2002)

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, an Oregon nonprofit corporation; Kettle Range Conservation Group, a Washington nonprofit corporation; The Lands Council, a Washington nonprofit corporation; Hells Canyon Preservation Council, an Oregon nonprofit corporation; Oregon Natural Resources Council, an Oregon nonprofit corporation; Northwest Ecosystem Alliance, Washington nonprofit corporation; American Lands, an Oregon nonprofit corporation, Plaintiffs-Appellants,

v.

Harv FORSGREN, in his official capacity as Regional Forester, Pacific Northwest Region, U.S. Forest Service; United States Forest Service, an agency of the United States, Defendants-Appellees.

No. 01-35729.

United States Court of Appeals, Ninth Circuit

November 4, 2002

Argued and Submitted April 2, 2002.

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Marianne Dugan, Facaros & Dugan, Eugene, Oregon; Lauren Regan, Eugene Oregon, Brent Foster, Portland, OR, for the appellants.

John C. Cruden, Acting Assistant Attorney General, Environment and Natural Resources Division, Washington D.C; Kristine Olson, United States Attorney, Thomas C Lee, Assistant United States Attorney, Val. J. McLam Black, Special Assistant United States Attorney, Portland, OR; Ellen J. Durkee, Paul S. Weiland, Environment and Natural Resources Division, Department of Justice, Washington D.C. for the appellees.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CV-00-01383-RE.

Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.

OPINION D.W. NELSON, Senior Circuit Judge:

Appellees Harv Forsgren and the United States Forest Service ("Forest Service") have underway a program of annual aerial insecticide spraying over 628,000 acres of national forest lands in Washington and Oregon. The spraying is aimed at controlling a predicted outbreak of the Douglas Fir Tussock Moth ("Moth"), which kills Douglas Fir trees.

Appellants League of Wilderness and seven other environmental groups ("Environmental Groups") filed suit in district court challenging the spraying program. They assert that the Environmental Impact Statement ("EIS") prepared by the Forest Service was inadequate and that the Forest Service failed to obtain a National Pollution Discharge Elimination System permit ("NPDES permit"), which the Environmental Groups argue is required for this type of aerial spraying. The district court granted summary judgment on the EIS and NPDES claims in favor of the Forest Service. The Environmental

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Groups appeal on both issues. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse with instructions to the district court to enter an injunction prohibiting the Forest Service from further spraying until it acquires an NPDES permit and completes a revised EIS. I. FACTUAL BACKGROUND

In the early 1970's the Moth defoliated approximately 700,000 acres in Oregon, Washington, and Idaho. After that outbreak, the Forest Service developed an early warning system to predict future Moth outbreaks. Based on its warning system, the Forest Service predicted an outbreak in 2000-2002 and designed the spraying program that is the subject of this litigation to reduce its anticipated impact. Moth outbreaks are a natural occurrence in forest ecology and serve the purpose of thinning the forest to create stand openings. However, the Forest Service concluded that the predicted outbreak would cause unacceptable levels of damage in scenic areas, critical habitat areas, and areas where the Forest Service has invested in improvements such as seed orchards.

The record reveals a number of harmful side effects associated with the aerial spraying program. Insecticide will drift outside of the area targeted for spraying and may kill beneficial species, including butterflies. Because aircraft conducting the spraying discharge insecticides directly above streams, stoneflies and other aquatic insects may be affected, reducing food supplies for salmon and other fish. The spraying could also adversely affect birds and plants.

II. STANDARD OF REVIEW

This court reviews the district court's grant of summary judgment de novo. Hall v. Norton, 266 F.3d 969, 975 (9th Cir. 2001). We review an agency's decision from the same position as the district court. Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993). Judicial review of agency decisions under NEPA is governed by the Administrative Procedure Act ("APA"), which specifies that an agency action shall be overturned where it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We review a district court's interpretation of the Clean Water Act de novo. Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir. 1997) (holding Court of Appeals reviews district court's interpretation of a statute de novo). We review a district court's interpretation of a federal regulation de novo. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 918 (9th Cir. 1995). An agency's interpretation of its own regulations is entitled to deference unless it is plainly erroneous or inconsistent with the regulation, Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), and so long as the agency's interpretation of the regulation is based on a permissible construction of the governing statute. Id. at 457, 117 S.Ct. 905.

III. DISCUSSION

A. NPDES Claim

1. Point Source And Nonpoint Source Water Pollution And NPDES Permit Requirements.

The Clean Water Act, 33 U.S.C. §§ 1251-1387, requires that government agencies obtain an NPDES permit before discharging pollutants from any "point source" into navigable waters of the United States. 33 U.S.C. § 1323(a). This type of pollution is commonly referred to as "point source pollution." Absent the required permit, such discharge is unlawful. Point source pollution is distinguished from "nonpoint source pollution," which is regulated in a different way and does not require the type of permit at issue in this litigation.

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The issue before us is whether spraying insecticide from aircraft (as the Forest Service is doing without a permit) is point source pollution or nonpoint source pollution. If the Forest Service's aerial spraying is classified as point source pollution, then the Forest Service must obtain a permit. If the spraying is classified as nonpoint source pollution, then no permit is required. The Forest Service argues that its aerial spraying should be classified as nonpoint source pollution, while the Environmental Groups argue that it should be classified as point source pollution.

Although nonpoint source pollution is not statutorily defined, it is widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source. Because it arises in such a diffuse way, it is very difficult to regulate through individual permits. The most common example of nonpoint source pollution is the residue left on roadways by automobiles. Small amounts of rubber are worn off of the tires of millions of cars and deposited as a thin film on highways; minute particles of copper dust from brake linings are spread across roads and parking lots each time a driver applies the brakes; drips and drabs of oil and gas ubiquitously stain driveways and streets. When it rains, the rubber particles and copper dust and gas and oil wash off of the streets and are carried along by runoff in a polluted soup, winding up in creeks, rivers, bays, and the ocean. Nonpoint source pollution of this kind is the largest source of water pollution in the United States, far outstripping point source pollution from factories, sewage plants, and chemical spills. See, e.g., www.epa.gov/region4/water/nps (last visited 9/17/02).

On the other hand, point source pollution discharges that require an NPDES permit are statutorily defined. The definition, which is found in several different code sections, was deftly laid out by the United States Supreme Court:

Under the [Clean Water Act], the "discharge of any pollutant" requires a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311(a), 1323(a). . . . The term "discharge of any pollutant" is defined as

"any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12) (emphasis added).1

Pollutant, in turn, means

"dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. . . ." 33 U.S.C. § 1362(6).2

And, under the Act, a "point source" is "any discernable, confined and discrete conveyance, including but not limited to any pipe ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged." 33 U.S.C. § 1362(14) (emphasis added).

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Weinberger v. Romero-Barcelo, 456 U.S. 305, 308-09, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982).

In the present case, the insecticides at issue meet the definition of "pollutant" under the Clean Water Act, and Forest Service aircraft spray these insecticides directly into rivers, which are waters covered by the Clean Water Act. Further, an airplane fitted with tanks and mechanical spraying apparatus is a "discrete conveyance." Therefore all the elements of the definition of point...

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