Nw. Envtl. Def. Ctr. v. Brown, No. 07–35266.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: West Codenotes
• Citation: 640 F.3d 1063,2011 Daily Journal D.A.R. 7016,11 Cal. Daily Op. Serv. 5834,72 ERC 1897
• Parties: NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon nonprofit corporation, Plaintiff–Appellant,andOregon 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; Georgia–Pacific West Inc., an Oregon domestic business corporation; Swanson Group, Inc., an Oregon domestic business corporation; Tillamook County, Defendants–Appellees.
• Decision Date: 17 May 2011
• Docket Number: No. 07–35266.

640 F.3d 1063
72 ERC 1897
11 Cal. Daily Op. Serv. 5834
2011 Daily Journal D.A.R. 7016

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, an Oregon nonprofit corporation, Plaintiff–Appellant,andOregon 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; Georgia–Pacific 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.

Argued and Submitted Nov. 19, 2008.Filed May 17, 2011.

West CodenotesHeld Invalid40 C.F.R. § 122.27

[640 F.3d 1065]

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.,

[640 F.3d 1066]

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 intervenor American Forest and Paper Association; and William K. Sargent, Tillamook, OR, for intervenor Tillamook County.Marc Abrams, Erin C. Lagesen, Richard D. Wasserman, Office of the Oregon Attorney General, Salem, OR; Louis A. Ferreira, J. Mark Morford, Per Albert Ramfjord, Stoel Rives LLP, Portland, OR; William K. Sargent, Tillamook, OR, for the defendants-appellees.Damien M. Schiff and Ralph W. Kasarda, Pacific Legal Foundation, Sacramento, CA; Michele A. Dias, California Forestry Association, Sacramento, CA, for Amici Pacific Legal Foundation and California Forestry Association in support of the defendants-appellees.Bradford T. McLane, U.S. Department of Justice, Washington, D.C., William C. Carpenter, Eugene, OR, for the amici-curiae.Michael R. Lozeau and Douglas J. Chermack, Lozeau Drury LLP, Oakland, CA; Sharon Buccino, Natural Resources Defense Council, Washington, D.C., Sharon E. Duggan, Law Offices of Sharon E. Duggan, for amicus curiae Natural Resources Defense Council, Inc., and the Environmental Protection Information Center in support of the plaintiffs-appellants.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.

ORDER

This court's opinion filed August 17, 2010, and reported at 617 F.3d 1176, is withdrawn, and is replaced by the attached Opinion.

With the filing of the new opinion, the panel has voted unanimously to deny the petitions for rehearing. Judges Fletcher and Fisher have voted to deny the petitions for rehearing en banc, and Judge Breyer so recommends.

The full court has been advised of the petitions for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petitions for rehearing and rehearing en banc, filed October 5, 2010, are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.

OPINION 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

[640 F.3d 1067]

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 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

[640 F.3d 1068]

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. Subject Matter Jurisdiction

In the original version of our opinion, we did not discuss our subject matter jurisdiction. None of the parties to the suit had raised an objection to subject matter jurisdiction. In an amicus brief, however, the United States had contended that the challenged Silvicultural Rule was unambiguous and that, as a consequence, citizen-suit jurisdiction under 33 U.S.C. § 1365(a) was improper. Instead, the United States had argued, the suit should have been brought under 33 U.S.C. § 1369(b). A defect in subject matter jurisdiction is, of course, not waivable.

Without discussing subject matter jurisdiction, we held on the merits that the Silvicultural Rule is ambiguous. After we published our opinion, one of our colleagues asked us to discuss our subject matter jurisdiction. We asked for supplemental briefing. In light of our holding that the Rule is ambiguous, the United States now concedes, in a second amicus brief, that we have subject matter jurisdiction under § 1365(a). We agree with the United States.

A citizen can bring a suit under § 1365(a) against any person, including the United States, who is alleged to be in violation of “an effluent standard or limitation” under the CWA. A citizen suit may be brought against a person or entity illegally discharging a pollutant into covered waters without an NPDES permit. Id. at § 1365(f)(6). Suits under § 1365, however, are limited by the CWA's judicial review mechanism at § 1369(b). Section 1369(b) provides for the review of various actions of the EPA Administrator, including the promulgation of effluent...