617 F.3d 1176 (9th Cir. 2010), 07-35266, Northwest Environmental Defense Center v. Brown

Docket Nº:07-35266.
Citation:617 F.3d 1176
Opinion Judge:W. FLETCHER, Circuit Judge:
Party Name:NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon nonprofit corporation, Plaintiff-Appellant, v. Marvin BROWN, Oregon State Forester, in his official capacity; Stephen Hobbs; Barbara Craig; Diane Snyder; Larry Giustina; William Heffernan; William Hutchison; Jennifer Phillippi, (members of the Oregon Board of Forestry, in their official capacities);
Attorney:Paul A. Kampmeier, Washington Forest Law Center, Seattle, WA; Christopher G. Winter, Crag Law Center, Portland, OR, for the plaintiff-appellant. Per A. Ramfjord, Louis A. Ferreira, J. Mark Morford, Stoel Rives LLP, Portland, OR, for defendants-appellees Hampton Tree Farms, Inc., Stimson Lumber Co...
Judge Panel:Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CHARLES R. BREYER,[*] District Judge.
Case Date:August 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1176

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

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon nonprofit corporation, Plaintiff-Appellant,

and

Oregon Forest Industry Council; American Forest & Paper Association, Intervenors,

v.

Marvin BROWN, Oregon State Forester, in his official capacity; Stephen Hobbs; Barbara Craig; Diane Snyder; Larry Giustina; William Heffernan; William Hutchison; Jennifer Phillippi, (members of the Oregon Board of Forestry, in their official capacities); Hampton Tree Farms, Inc., an Oregon domestic business corporation; Stimson Lumber Company, an Oregon domestic business corporation; Georgiapacific West Inc., an Oregon domestic business corporation; Swanson Group, Inc., an Oregon domestic business corporation; Tillamook County, Defendants-Appellees.

No. 07-35266.

United States Court of Appeals, Ninth Circuit.

August 17, 2010

Argued and Submitted Nov. 19, 2008.

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[Copyrighted Material Omitted]

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Paul A. Kampmeier, Washington Forest Law Center, Seattle, WA; Christopher G. Winter, Crag Law Center, Portland, OR, for the plaintiff-appellant.

Per A. Ramfjord, Louis A. Ferreira, J. Mark Morford, Stoel Rives LLP, Portland, OR, for defendants-appellees Hampton Tree Farms, Inc., Stimson Lumber Co., Georgia-Pacific West, Inc. and Swanson Group, Inc.

Per A. Ramfjord, Louis A. Ferreira, J. Mark Morford, Stoel Rives LLP, Portland, OR, for intervenor Oregon Forest Industries Council; Ellen B. Steen, Crowell & Mooring, Washington, D.C., for the intervenor American Forest and Paper Association; and William K. Sargent, Tillamook, OR, for intervenor Tillamook County.

Michael R. Lozeau and Douglas J. Chermack, Lozeau Drury LLP, Oakland, CA; Sharon Buccino, Natural Resources Defense Council, Washington, DC; Sharon E. Duggan, for amicus curiae Natural Resources Defense Council, Inc and the Environmental Protection Informatin Center in support of plaintiff-appellants.

Bradford T. McLane, U.S. Department of Justice, Washington, D.C., William C. Carpenter, Eugene, OR, for amici-curiae United States, Matthew Thompson and Kevin Boston.

Damien M. Schiff and Ralph W. Kasarda, Pacific Legal Foundation, Sacramento, CA; Michele A. Dias, California Forestry

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Association, Sacramento, CA, for Amici Pacific Legal Foundation and California Forestry Association in support of Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding. D.C. No. CV-06-01270-GMK.

Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CHARLES R. BREYER,[*] District Judge.

W. FLETCHER, Circuit Judge:

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. We reach both questions and conclude that the discharges require NPDES permits.

I. Background

NEDC contends that discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest in Oregon are point source discharges under the CWA. The roads are the Trask River Road, which runs parallel to the South Fork Trask River, and the Sam Downs Road, which runs parallel to the Little South Fork of the Kilchis River. The roads are owned by the Oregon Department of Forestry and the Oregon Board of Forestry. They are primarily used by the Timber Defendants to gain access to logging sites and to haul timber out of the forest. The Timber Defendants use the roads pursuant to timber sales contracts with the State of Oregon. These contracts designate specific routes for timber hauling and require that the Timber Defendants maintain the roads and their associated stormwater collection systems.

Both of the logging roads were designed and constructed with systems of ditches, culverts, and channels that collect and convey stormwater runoff. For most of their length, the roads are graded so that water runs off the road into ditches on the uphill side of the roads. There are several ways these ditches then deliver water into the adjacent rivers. At intervals, the ditches empty into " cross-drain" culverts that cross under the roads. Where the roads are close to the rivers, these culverts deliver the collected stormwater into the rivers. Where the roads are at some distance from the rivers, the roadside ditches connect

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to culverts under the roads that deliver the collected stormwater into channels, and these channels then discharge the stormwater into the rivers. When tributary streams cross under the roads, the roadside ditches deliver the collected stormwater into these streams. These streams then carry the collected stormwater to the rivers.

The stormwater runoff that flows off the roads and through these collection systems deposits large amounts of sediment into streams and rivers. This sediment adversely affects fish-in particular, salmon and trout-by smothering eggs, reducing oxygen levels, interfering with feeding, and burying insects that provide food.

Timber hauling on the logging roads is a major source of the sediment that flows through the stormwater collection systems. Logging trucks passing over the roads grind up the gravel and dirt on the surface of the road. Small rocks, sand, and dirt are then washed into the collection system and discharged directly into the streams and rivers. NEDC alleged in its complaint that it sampled stormwater discharges at six points along the Trask River Road and five points along the Sam Downs Road where the Defendants use ditches, culverts, and channels to collect and then discharge stormwater runoff. Each sample contained significant amounts of sediment.

None of the Defendants has sought or received NPDES permits for these discharges into the streams and rivers. NEDC brought suit under the citizen suit provision of the CWA, 33 U.S.C. § 1365(a), which provides that " any citizen may commence a civil action on his own behalf ... against any person" alleged to be in violation of the CWA. NEDC claims that Defendants have violated the CWA by not obtaining NPDES permits. On March 1, 2007, the district court dismissed NEDC's complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. NEDC has timely appealed.

II. Standard of Review

We review de novo a district court's dismissal under Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). We accept as true all of NEDC's allegations of material facts and we construe them in the light most favorable to NEDC. Id.

We review de novo the district court's interpretation of the CWA and its implementing regulations. League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183 (9th Cir.2002). We defer to an agency's interpretation of its own regulations unless that interpretation is plainly erroneous, inconsistent with the regulation, or based on an impermissible construction of the governing statute. Auer v. Robbins, 519 U.S. 452, 457, 461-62, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). We review EPA's interpretations of the CWA under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At Chevron step one, if, employing the " traditional tools of statutory construction," we determine that Congress has directly and unambiguously spoken to the precise question at issue, then the " unambiguously expressed intent of Congress" controls. Id. at 843, 104 S.Ct. 2778. At Chevron step two, if we determine that the statute is " silent or ambiguous with respect to the specific issue," we must determine whether the agency's interpretation is based on a permissible construction of the statute. Id. at 843, 104 S.Ct. 2778. An agency interpretation based on a permissible construction of the statute controls. Id. at 844, 104 S.Ct. 2778.

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III. Discussion

NEDC contends that stormwater runoff from logging roads that is collected in a system of ditches, culverts, and channels, and is then delivered into streams and rivers, is a point source discharge subject to NPDES permitting under the CWA. Defendants, however, contend that the Silvicultural Rule exempts such runoff from the definition of point source discharge, and thus exempts it from the NPDES permitting process. Alternatively, Defendants contend that the 1987 amendments to the CWA and regulations implementing those amendments exempt such runoff from the definition of point source discharge and from the permitting process. We discuss, in turn, the definition of point source discharge, the...

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