NEDC v Brown Responding to the 9th Circuit’s Ruling Presentation for Society of American Foresters October 29 2010 ● Albuquerque New Mexico ● SAF

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NEDC v Brown Responding to the 9th Circuit’s Ruling Presentation for Society of American Foresters October 29 2010 ● Albuquerque New Mexico ● SAF Powered By Docstoc
					                  NEDC v. Brown
         Responding to the 9th Circuit’s Ruling

Presentation for
Society of American Foresters

           October 29, 2010 ● Albuquerque, New Mexico ● SAF National Convention
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Clean Water Act & Logging Roads
• The Clean Water Act (CWA) requires a National Pollution
  Discharge Elimination (NPDES) permit for “point source”
  discharges of pollutants to navigable waters.
• Non-point source pollution is not subject to the same permitting
  requirements and generally is addressed through other CWA
  programs (e.g. TMDLs).
• There are statutory exemptions from the NPDES permit
  requirement, including for some agricultural operations, but not for
  forest management activities.
• However, by regulation EPA has long exempted silvicultural
  activities from the NPDES permit requirement of the CWA.

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NEDC v. Brown
• NEDC sued :
   – Marvin Brown (the Oregon State Forester);
   – all the members of the Oregon Board of Forestry; and
   – Hampton Affiliates, Stimson Lumber, Georgia-Pacific and
     Swanson Group—companies with state logging contracts that
     hauled logs on the roads in question.
• NEDC alleged:
   – NPDES permit required for stormwater runoff from forest roads.
• Additional parties:
   – OFIC and AF&PA intervened.

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Alleged Facts
• NEDC presented photographs allegedly showing turbid runoff
  from ditches and culverts from the Trask River Road and Sam
  Downs Road in the Tillamook State Forest of Oregon.
• NEDC alleged the state owned the roads (although one is
  owned by the county).
• NEDC alleged that the 4 companies haul logs on the road,
  thereby “grinding up the road surface and creat[ing] much of
  the sediment and other pollutants delivered to rivers and

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Plaintiff’s Legal Arguments
• Discharges from ditches and culverts associated
  with the roads are point source discharges.
• The silviculture exemption in EPA’s rules is
• Hauling logs is an “industrial activity” within the
  meaning of § 402(p) of the CWA and, therefore,
  is subject to stormwater permitting requirements.

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Silvicultural Rule
“Silvicultural point source means any discernible, confined and discrete
conveyance related to rock crushing, gravel washing, log sorting, or log
storage facilities which are operated in connection with silvicultural
activities and from which pollutants are discharged into waters of the
United States. The term does not include non-point source 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.
However, some of these activities (such as stream crossing for roads)
may involve point source discharges of dredged or fill material which
may require a CWA section 404 permit.” 40 CFR 1222.27(b).
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Silvicultural Rule
• Defendants argue Silvicultural Rule clearly applies.
• Plaintiffs argue that exemption only applies to “non-point
  sources” and that EPA cannot undermine the CWA by
  exempting point sources (citing EPIC v. PALCO, No. C01-
  2821-MHP (ND Cal. Oct. 14, 2003)).
• Defendants argue that EPA has broad authority to interpret the
  term “point source” in the Silvicultural Rule.
• Both sides cite the 9th Circuit’s Forsgren decision for support
  (League of Wilderness Defenders v. Forsgren, 309 F3d 1181
  (9th Cir. 2002)).
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Clean Water Act Section 402(p)
• Two-phase regulatory program for stormwater.
• Phase I required permits for stormwater from:
   – Industrial activity;
   – Municipal separate storm sewer serving population
• Phase II required EPA to study and identify additional sources
  as necessary to mitigate impacts on water quality. EPA
  identified and required permits from:
   – Smaller municipal separate storm sewers;
   – Construction sites >5 acres.
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EDC v. EPA, 344 F3d 832 (9th Cir. 2003)
• EDC challenged EPA’s phase II rules, including an
  argument that EPA improperly failed to include forest
• On procedural grounds, the court remanded the rule to
  EPA to reconsider, including reconsideration of whether
  forest roads should require phase II stormwater permits.
• In this case, the court and EPA clearly recognized that
  forest roads are not subject to phase I permitting
  requirements as an industrial activity.

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District Court’s Decision
• Granted motion to dismiss in favor of defendants.
• Decision based entirely on interpretation of Silvicultural Rule.
   – Relied heavily on Forsgren.
   – Concluded that Forsgren rejected application of
     Silvicultural Rule because aerial spraying of pesticides is
     not natural runoff.
   – Forsgren did not invalidate the Silvicultural Rule or
     narrowly apply it to nonpoint sources (which don’t need an
• Court did not reach the section 402(p) arguments.
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Ninth Circuit Panel
• Fletcher, Breyer and Fisher
     – Fletcher, author of NEA v. EPA overturning EPA
       exclusion of ballast water discharges from NPDES
     – Breyer, district court judge, Northern District of
       California, home of Judge Patel, who authored
       EPIC v. Pacific Lumber Co.

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Ninth Circuit’s Opinion
NEDC v. Brown, 2010 WL 3222105 (9th Cir. Aug. 17, 2010)
• Reversed District Court
• Held:
     – Silvicultural Rule cannot exclude logging road
       discharges from NPDES permitting.
     – Logging road discharges are industrial stormwater
       discharges subject to EPA Phase I NPDES

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Silvicultural Rule
• Logging road stormwater discharges fall squarely
  within the statutory definition of a point source.
     – Congress did not empower EPA to redefine what constitutes
       a point source.
     – Congress clearly wanted to regulate all point-source
• Result: The Silvicultural Rule does not exempt
  stormwater runoff from logging roads from NPDES
  permitting, and has no continuing effect in 9th Circuit.
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Industrial Discharge
• The Panel acknowledged:
     – EPA’s regulatory definition of discharges
       associated with industrial activity “purports to
       exclude forest road discharges”
     – EPA plainly intended to exclude such discharges
• But . . .

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Industrial Discharge
• The Panel found EPA could not exclude such
  discharges because:
     – EPA conceded that logging is “industrial” when it
       found that “industrial facilities” include “Lumber
       and Wood Products” facilities under SIC 24.
     – The discharges otherwise fit in the regulatory
       definition of industrial discharges.

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Industrial Discharge
• In reaching this conclusion, the Panel:
     – Ignored EPA’s plain explanation that its inclusion
       of SIC 24 was not intended to encompass logging
       activities covered by the Silvicultural Rule.
     – Ignored the fact that forest road discharges do not
       fit the definition of industrial discharges.
     – Ignored the court’s own ruling in EDC v. EPA.

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• Threshold issues:
     – What roads require permits?
        • What construction features actually constitute point sources?
        • What attributes define a logging road and distinguish from a road
          not associated with industrial activities?
     – Who needs the permit?
          • The road owner?
          • Holders of timber contracts with road maintenance requirements?
          • Anyone who uses the road?
     – General permit or source-specific permit?

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• Sweeping/uncertain permitting requirements
     – Enormous number of roads and culverts potentially
       subject to permitting
     – No established permitting system
     – No clear permitting criteria, but . . .
          • May have to meet effluent limitations (water quality
          • May require monitoring

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• Legal uncertainty and lawsuits
     – Impact on federal and state timber sales
          • Delay and/or lawsuits to enjoin timber sales
          • Possible revisions to timber sale agreements
     – Impact on private timber harvesting
          • Lawsuits to enjoin harvesting and/or hauling
          • Effects not only on private roads, but on county roads
            that could be considered “logging roads”

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• First step
     – Petition for rehearing en banc
          • Stay of the mandate pending ruling.
          • Rehearing statistically unlikely.
• Second step
     – Petition for certiorari to the U.S. Supreme Court
          • Seek a further stay of the Ninth Circuit ruling.
          • Chances to prevail are best here.

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Current Status
• Petition for en banc review filed
     – Focus on the weaker aspect of the Panel’s ruling
       that forest road stormwater is an industrial
     – Focus on the sweeping implications and
       importance of the ruling.
     – Court has asked for responsive briefing from
       plaintiffs (good sign).

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What Else Are We Doing?
• Coordination with others
     – State has filed a petition for en banc review as
       well, focusing on similar arguments.
     – EPA was unwilling to file an amicus brief but
       made clear that its position has not changed.
     – And . . .

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Amicus Briefs
• Coordination with others
     – Amicus briefs filed
          •   Pacific Legal Foundation on behalf of industry groups
          •   County organizations
          •   Mountain States Legal Foundation
          •   American Forest Resource Council
     – Focus of these briefs is on showing the scope and
       importance of the court’s ruling

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What’s Next?
• Court will act
     – Either deny or grant petition for rehearing.
     – If granted, group of 11 judges will rehear the case.
     – If denied, petition for cert. in 90 days.
• Legislative solution
     – Statutory exemption for forest operations?

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                               Thank You!

Greg D. Corbin
(503) 294-9632

         October 29, 2010 ● Albuquerque, New Mexico ● SAF National Convention

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