Plugging the drain: using Northwest Environmental Defense Center v. Brown to reach other point source discharges under the Clean Water Act.

AuthorIverson, Steven T.

In Northwest Environmental Defense Center v. Brown ("NEDC"), the Ninth Circuit ruled that stormwater runoff from two logging roads, once channeled through systems of culverts, ditches, and drains, was considered a point source discharge under the Clean Water Act. As a result, the discharges were subject to the Act's permitting program aimed at controlling and eventually eliminating pollutant discharge from discrete sources. Prior to NEDC, many logging practices, including surface drainage and roadside stormwater discharge, were routinely exempted under an agency-created exemption called the Silvicultural Rule. The court in NEDC directly altered the future of logging practices by requiring both the Environmental Protection Agency and several states to tackle the permitting process for an activity once considered exempt. Additionally, the court's rationale may allow other channelized runoff to be regulated under the Clean Water Act, particularly runoff associated with select agricultural practices.

  1. INTRODUCTION

    The Clean Water Act ("CWA") is federal legislation enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (1) The CWA makes any "point source" discharge of pollutants into navigable waters illegal unless a discharge permit has been issued. (2) Nonpoint source pollution on the other hand does not fall under the discharge permitting system. (3) Nonpoint source pollution is considered to be discharge from diffuse sources and is the leading cause of water quality issues in the United States. (4) For example, runoff from precipitation carries excess fertilizers and pesticides used in agricultural practices to the nation's waterways and estuaries which can lead to increased algae blooms, decreased oxygen levels, and disruption to reproductive systems of wildlife. (5) Other pollutants, such as sediments from road construction and use, have similar detrimental effects on wildlife and water quality. (6) Instead of discharge permits, the Environmental Protection Agency ("EPA") and state environmental agencies have implemented programs aimed at reducing discharges from nonpoint sources through methods labeled as "best management practices." (7) However, the federal government lacks the same regulatory force under this section as found in the point source permitting section. (8) Further, the nonpoint source section itself has no mandated standards of performance for states. (9) Under the CWA, the EPA promulgates regulations based on its interpretations of the statute to decide whether certain types of discharges fall under the permitting requirements. (10) The EPA often creates categorical exemptions based on these interpretations. (11)

    In Northwest Environmental Defense Center v. Brown ("NEDC"), (12) the Ninth Circuit Court of Appeals considered whether timber companies were required to obtain point source permits for discharges from roadside ditches and culverts used for timber harvesting. (13) Prior to NEDC, the EPA exempted all forest road discharges caused by natural runoff. (14) However, the Ninth Circuit rejected this categorical exemption of channelized runoff from timber practices, (15) affirming precedent which has rejected other categorical exemptions that contradict the CWA. (16) Finding that the EPA's exemption for timber practices violated the CWA, the court remanded the case and asked the EPA to promulgate a permitting program for timber practices. (17) This article will examine the facts surrounding NEDC and the Ninth Circuit's rationale for finding the timber roads to be point sources. (18) In addition, it will provide background on the CWA and precedent associated with three areas of pollution discharge. (19) Lastly, this article will show why NEDC was correctly decided, and how it may be used to regulate small confined animal feeding operations and organized water drainage districts. (20)

  2. FACTS AND PROCEDURE OF NEDC

    In NEDC, several timber companies in Oregon were harvesting timber under permits issued by the state forester. (21) To harvest the timber, the companies used two timber roads within the state-owned forest. (22) The timber roads were owned by the state, but maintained by the timber companies according to timber contracts. (23) By design, the two logging roads collected storm water in roadside ditches, and then discharged the stormwater into two rivers. When the roads were some distance away from the rivers, the timber companies constructed additional channels to connect the "cross-drains" and the rivers. (24) The discharges were laden with sediments caused from logging trucks grinding up the road surfaces. (25) The discharge then entered the streams, adversely affecting fish populations by inhibiting fish reproduction and food consumption. (26)

    Neither the state agencies nor the timber companies ever applied for point source permits for the stormwater discharges. (27) As a result of the aquatic damage, an environmental group exercised the CWA's citizen suit provision to file suit against the timber companies, claiming the companies violated the statute by not obtaining point source permits for the stormwater discharges into the two Oregon rivers. (28)

    In the District Court of Oregon the environmental group presented two connected issues. (29) The first was whether the roadside ditches and culverts channeling the runoff were point sources under the CWA. (30) If so, the second issue was whether the timber activity was "industrial activity," placing the activity in a regulated category. (31) In response, the state officials and timber companies argued the discharges in question were natural and exempt under EPA-created guidelines. (32) The district court ruled only on the first issue, holding that the discharges were not point sources. (33) The court held the stormwater discharges were correctly exempt from the permitting process under the EPA-created exemption for timber activities because the discharges were from natural runoff. (34) Even though the sediments on the road eventually washed into the roadside ditches and discharged into the rivers, the district judge ruled the pollutants could not be traced to a single discrete source, therefore making the discharges nonpoint. (35) Having ruled on the point source discharge, the district court did not reach the industrial activity issue and granted the motion to dismiss. (36)

    On appeal, the Ninth Circuit overruled the district court and held that once runoff from logging roads passed through a system of ditches and drains it became a point source discharge. (37) The court invalidated the EPA-created exemption for runoff from logging activity holding that the activity was not exempted by Congress in the CWA. (38) The Ninth Circuit reached this conclusion in a three-part analysis. (39)

    First, the court examined whether the discharges from the timber roads were point sources. (40) The court explained that discharges from timber roads can be point sources if the stormwater is not allowed to run off naturally, but instead is channeled and discharged via ditches and culverts. (41) The court determined the runoff discharge in question met the definition of point source (42) and aligned with existing precedent governing point and nonpoint storm water. (43) Also, the court examined House and Senate committee reports calling for a broad definition of point source. (44) Lastly, the court rejected a broad grant of authority to the EPA to define point and nonpoint sources. (45) Any attempt by the EPA to define a statutory term to exempt an activity that clearly falls within the definition of point source, and not specifically exempted by Congress, was a step beyond the EPA's authority. (46)

    Second, the court examined the EPA-created exemption, asking whether the Silvicultural Rule was a permissible interpretation of the CWA. (47) The Silvicultural Rule distinguished between "point" and "nonpoint" discharges based on the source of the pollutant, particularly whether discharges resulted from "controlled water used by a person." (48) However, the CWA distinguishes between the two discharges based on whether the pollutant is channeled and controlled through a "discernible, confined and discrete conveyance," not the origin of the pollutant. (49) The court held the Silvicultural Rule was invalid as the rule was inconsistent with the CWA. (50) The rule exempted certain silvicultural activities regardless of whether the runoff was collected and channeled through a discrete conveyance. (51) Accordingly, the Silvicultural Rule could only survive a narrow interpretation, exempting runoff "as long as the 'natural runoff' remain[ed] natural" and unconfined. (52)

    Lastly, the court determined that the 1987 amendments to the CWA did not exempt the channeling of stormwater from timber activities and did not allow the EPA to exempt the activity either. (53) The 1987 amendments reorganized how stormwater was regulated, requiring the EPA to regulate, among other discharges, activity from industrial sources. (54) Finding that logging activity was industrial, the Ninth Circuit held that the 1987 amendments did not exempt silvicultural activity from the permitting process, and that the EPA did not have the authority to create such an exemption. (55) After determining the discharges from the timber road ditches and culverts to be point sources, the court remanded the case and urged the EPA to enact a permitting program to regulate the channelized stormwater. (56)

  3. BACKGROUND

    1. THE CLEAN WATER ACT

      Originally passed in 1948, and significantly expanded and reorganized in 1972, the Federal Water Pollution Control Act was enacted with the objective of restoring and maintaining "the chemical, physical, and biological integrity of the Nation's waters." (57) The legislation was referred to as the Clean Water Act after the 1977 amendments. (58) The CWA "prohibits the discharge of any pollutant from a point source...

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