This week, I focus on the background of the issue. The American Bar Association's Forest Resources Committee is publishing the article below, which I coauthored with Jessie Marlowe, who just graduated from Florida State University's College of Law. The article summarizes the background of Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). The article is reposted in this link and below.
WILL THE SILVICULTURAL EXEMPTION SURVIVE?
AN UPDATE ON NORTHWEST ENVIRONMENTAL
DEFENSE CENTER V. BROWN
Jessica Marlowe and Jacob T. Cremer
The U.S. Supreme Court
is mulling whether to review Northwest
Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). It
may be “the most significant judicial holding to directly (and negatively)
impact private and public forest landowners, operators, managers and their
collective economic activities.” Thomas Gould, Judicial Regulation and Killing Jobs: The Ninth Circuit’s Forest Roads’
Decision—Waving Goodbye to Science-Based BMPs and More than 35 Years of
Regulatory Precedent, Evergreen Mag.
(Feb. 2, 2012), available at http://ow.ly/9nmbz.
Although review by the
Supreme Court is usually a long shot, the chances it would review Brown were much improved when the U.S.
Solicitor General agreed to the Court’s request to weigh in. If the U.S.
Supreme Court decides to grant certiorari, it will be determining, first,
whether the Ninth Circuit had proper subject matter jurisdiction to hear the
case and, second, whether a Clean Water Act (CWA) permit is required for
ditches that collect natural runoff from forest roads.
Background
The Northwest
Environmental Defense Center (NEDC) brought suit against the Oregon State
Forester, members of the Oregon Board of Forestry in their official capacities,
and various timber companies (defendants). The NEDC argued that the system of
ditches, culverts, and channels that collected stormwater on two forest
roads—owned by the Oregon Department of Forestry and the Oregon Board of
Forestry—required National Pollutant Discharge Elimination System (NPDES) permits.
The defendants contended that the timber roads and their associated natural
stormwater systems fell under the Environmental Protection Agency’s (EPA) silvicultural
rule categorical exemption and were therefore exempt from the NPDES permitting
process. In the alternative, the defendants argued that the 1987 amendments to
the CWA allowed such an exemption.
The CWA requires a
NPDES permit for the discharge of any pollutant into the waters of the United
States from a “point source.” 33 U.S.C. §§ 1311(a), 1342. The CWA defines a
“point source” to be “any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel [or] conduit . .
. from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). While
the CWA does not define what a “nonpoint source” is, the CWA does exempt
“agricultural stormwater discharges and return flows from irrigated
agriculture” from the definition of “point source.” Id. EPA promulgated a rule in 1976 that categorically exempted
certain silvicultural activities from the definition of “point source,” commonly
known as the “silvicultural rule.” The silvicultural rule limits silvicultural
point source activities to “rock crushing, gravel washing, log sorting, or log
storage facilities which are in connection with silviculture activities and
from which pollutants are discharged. . . .” 40 C.F.R. § 124.85 (1976).
Specifically enumerated in the silvicultural rule as nonpoint sources are “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.” Id.
Procedural Posture
The district court
sided with the defendants, concluding that the timber road runoff collected into
a system of ditches, culverts, and conduits and discharged into waters of the
United States were exempt from NPDES permit requirements under the silvicultural
rule. Nw. Envt’l Def. Center v. Brown,
476 F. Supp. 2d 1188 (D. Or. 2007). The district court did not address whether
the 1987 amendments to the CWA allowed such an exemption. The district court
ultimately dismissed the NEDC’s complaint for failure to state a claim. The NEDC
appealed to the Ninth Circuit. The Ninth Circuit reversed, issuing two opinions
on this case. The first opinion, issued in August 2010, addressed the validity
of the silvicultural rule. In May 2011, the court denied the petitions for
rehearing and rehearing en banc but issued a revised opinion. This second
opinion was substantially the same as the August 2010 opinion, but it sua sponte addressed subject matter jurisdiction.
Although the parties did not dispute jurisdiction, the court addressed the
issue. The case was appealed to the U.S. Supreme Court. The Court has not
granted or denied certiorari. It has, however, asked the U.S. Solicitor General
to weigh in on the issue. In late May, the solicitor general recommended
against review. According to the Solicitor General, the Ninth Circuit should
have deferred to EPA’s longstanding interpretations of the Clean Water Act and
the Silvicultural Rule. Even so, the Solicitor General recommended against
review because of efforts by Congress and EPA to address the practical effects
of the Ninth Circuit’s decision.
Subject Matter Jurisdiction
The Ninth Circuit’s
revised opinion specifically addressed subject matter jurisdiction, unlike the
original opinion. The court was concerned because it held on the merits that
the silvicultural rule was ambiguous, with no discussion of jurisdiction. 640
F.3d at 1068.
Under § 1365(a) of the
CWA, a citizen can bring suit against any person alleged to be in violation of
“an effluent standard or limitation” under the CWA. This includes persons
illegally discharging pollutants into jurisdictional waters without a NPDES
permit. However, § 1369(b) places limitations on suits that challenge the
validity of an action taken by the EPA administrator, including the
promulgation of effluent standards, prohibitions, or limitations,
determinations, approvals, issuance, or denial. Such suits must be brought
within 120 days from the date of the administrator’s action unless the basis
for the suit arose more than 120 days after the agency action. 33 U.S.C. §
1369(b)(1). Despite the silvicultural rule being on the books since 1976, the
court determined that this case came within the § 1369(b)(1) exception. The
court reasoned that since the silvicultural rule was susceptible to two
different readings, there was no way for the public to know which reading EPA
would adopt. According to the court, EPA’s filing of its initial amicus brief
first put the public on notice for which reading it would adopt. The court was
silent on the 30-plus years of EPA’s interpretation of the silvicultural rule.
Silvicultural Rule Validity
The Ninth Circuit
agreed with NEDC, holding that any runoff collected in a ditch, culvert, or the
like, regardless of its origin, is a point source. After a thorough review of
the statutory definition of “point source” under the CWA, the court looked to
case law to determine the distinction between nonpoint and point source runoff.
In one case cited, the Ninth Circuit had adopted the Tenth Circuit’s view that
“point and nonpoint sources are not distinguished by the kind of pollution they
create or by the activity causing the pollution, but rather by whether the pollution reaches the water
through a confined, discrete conveyance.” 640 F.3d at 1071. Relying on another
Ninth Circuit case, the court wrote: “Storm sewers are established point
sources subject to NPDES permitting requirements. . . . Diffuse runoff, such as
rainwater that is not channeled
through a point source, is considered nonpoint source pollution and is not
subject to federal regulation.” Id.
The Ninth Circuit also
reviewed the legislative histories of the CWA and the silvicultural rule. It
found that the term “point source” was not to be interpreted narrowly and that
Congress did not provide EPA with discretion to define any statutory terms. The
court mentioned that Congress added a statutory exemption to the NPDES
permitting system for agricultural irrigation in 1977 and that no similar
exemption has been created for silviculture. In reviewing the history of the silvicultural
rule, the court noted that the original version of the rule was found invalid
by the D.C. Circuit Court. The D.C. Circuit Court held that “the EPA
Administrator does not have the authority to exempt categories of point sources
from the [NPDES] permit requirements. . . .” 640 F.3d at 1077, citing Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir.
1977).
While the D.C. Circuit
Court was reviewing the silvicultural rule, EPA amended it. In 1976, EPA
justified its final version of the silvicultural rule—only slightly different
from today’s rule—by stating that a proper interpretation of the CWA’s
legislative history and supporting case law showed that not every ditch or the
like was meant to be a point source under the CWA. According to EPA, ditches
that served only to convey nonpoint runoff from precipitation were not intended
to be subject to the NPDES permitting program. The Ninth Circuit flatly rejected
EPA’s justification, stating that “even though not every ‘ditch, water bar, or
culvert’ is a point source within the meaning of the statute, it hardly follows
that a system of ditches, pipes and channels that collects ‘controlled water
used by a person’ and discharges it into a river is a point source, while an
identical system that collects and discharges natural precipitation is not.”
The court also applied the D.C. Circuit Court’s reasoning used in striking down
the initial version of the rule, concluding that EPA did not have the authority
to “exempt categories of point sources from the [NPDES] permit requirements. .
. .” 640 F.3d at 1077.
The Ninth Circuit found
the silvicultural rule subject to two possible readings: one valid and one
invalid. The first reading is a reflection of EPA’s intent in adopting the rule.
Under this reading, it exempts all natural runoff from silvicultural activities
“irrespective of whether, and the manner in which, the runoff is collected,
channeled, and discharged into protected water.” 604 F.3d 1080. The court held
that this reading is inconsistent with the CWA. The CWA distinguishes between
point and nonpoint sources depending on whether the pollutant is channeled and
controlled through a “discernible, confined and discrete conveyance.” In
contrast, the silvicultural rule categorically distinguishes between discharges
depending on the source of the pollutant. The court held that the definition of
“point source” in “no way depends on the manner in which the pollutant arrives
at the ‘discernible, confined and discrete conveyance.’ That is, it makes no
difference whether the pollutant arrives as the result of ‘controlled water
used by a person’ or through natural runoff.” 640 F.3d at 1079. The court
concluded that the silvicultural rule, as EPA interpreted it, was not a
permissible interpretation of the CWA.
The second reading
“does not reflect the intent of EPA, but would allow [the court] to construe
the Rule to be consistent with the statute.” Id. Under this reading, natural runoff remains exempt from the
NPDES permitting process so long as it remains natural. According to the court,
“the exemption ceases to exist as soon as the natural runoff is channeled and
controlled in some systematic way through a ‘discernible, confined and discrete
conveyance’ and discharged into the waters of the United States.” Id. Under either reading, the court
held, the rule does not exempt the timber road stormwater runoff that is
collected into a system of ditches, culverts, and conduits from the NPDES permitting
system.
1987 Amendments to the CWA
Even if the discharges
were point sources, the defendants argue that the 1987 amendments to the CWA
approved of the silvicultural rule by failing to revise or repeal it. Because
Congress never mentioned or alluded to the rule in the legislative history, the
court held that Congress was not aware of the rule during the amendment
process. Thus, the court reasoned, Congress could not have assented to the rule.
640 F.3d at 1081.
The Ninth Circuit also
held that the 1987 amendments fundamentally changed statutory treatment of
stormwater discharges and that the relevant statutory language was “flatly
inconsistent with the Silvicultural Rule.” Id.
The court determined that the 1987 amendments were added to help EPA eventually
address all stormwater point sources. They recognized, however, that the major
contributors should be regulated first and minor sources should be studied
first. It is within EPA’s discretion to regulate de minimis sources like rain
gutters of churches, schools, and residential properties.
The 1987 amendments
added § 402(p), which established a tiered approach to permit stormwater
discharges. Phase I required the major contributors to obtain their NPDES permits
first. Among the major contributors are those “associated with industrial
activity.” 33 U.S.C. § 1342(p)(2)(B). EPA regulations defined which industrial
activities required NPDES permits, stating, “Storm water discharge associated
with industrial activity means the discharge from any conveyance that is used
for collecting and conveying storm water and that is directly related to
manufacturing, processing or raw materials storage areas at an industrial
plant.” 40 C.F.R. § 122.26(b)(14). The court noted that while this regulation
states “directly related to manufacturing, processing or raw materials storage
areas at an industrial plant,” EPA has stated that it would not limit the definition
to just those practices.
Accordingly, EPA
expanded the definition to “various types of areas that are directly related to
an industrial process (e.g., industrial plant yards, immediate access roads and
rail lines, drainage ponds . . .).” 55 Fed. Reg. 47,990, 48,007 (Nov. 16,
1990). The EPA regulation defining which industrial activities require NPDES
permits goes on to provide: “The term does not include discharges from
facilities or activities excluded from the NPDES program under this part 122.”
40 C.F.R. § 122.26(b)(14). This exclusion refers to the silvicultural rule.
Again, the court points to congressional intent, stating that “Congress made
clear in § 402(p) that it did not exempt ‘discharges associated with industrial
activity.’ 33 U.S.C. § 1342(p)(2)(B). Indeed, Congress specifically mandated
that EPA establish a permitting process for such discharges.” 640 F.3d at 1083.
The Standard Industrial
Classification (SIC) defines the industries covered by the Phase I “associated
with industrial activity” regulation. It was undisputed that logging was
considered an industrial activity. The court rejected the argument that logging
sites are not “industrial facilities” because they are not typical industrial
plants. The court held that the definition of “facility” is very broad and
includes timber roads. Therefore, the court held that the reference to the silvicultural
rule in the EPA regulations defining which industrial activities require NPDES
permits cannot exempt such discharges from the Phase I regulations requiring
permits for discharges “associated with industrial activity.”
Review Before the U.S. Supreme Court
Forest owners and
managers should be concerned about whether the Brown decision stands. If it does, then EPA will be forced to
develop a NPDES permit program. This program will probably not be able to
appreciate local conditions as well as the science-based Best Management Practices
that states and the forestry industry have developed at great cost over time. See Gould, supra. Ironically, the Ninth Circuit’s opinion may lead to less
clean water. Id.
EPA seems to have recognized
this in its recent regulatory proposal. EPA recently responded to the Ninth
Circuit decision with a notice of intent to exempt logging roads from permits
under the Clean Water Act. 77 Fed. Reg. 30473. This exemption will relieve
owners and operators of logging roads from having to comply with NPDES
permit requirements. EPA plans to address the broader category of forest roads
by studying their water quality impacts further and holding public
meetings this summer. EPA is requesting comments by June 22, 2012 on approaches
for regulating forest road stormwater discharges; EPA is especially interested
in learning about the current best management practice programs across the
country. These comments will help EPA determine its regulatory approach to
forest roads.
The U.S. Supreme Court appears
likely to review Brown, the solicitor general’s recommendation notwithstanding. The
Court may wish to rule on the substance of Brown,
since the opinion seems to be in conflict with the decisions of courts in other
jurisdictions. Other courts have affirmed EPA’s regulation that forest roads
are nonpoint sources that do not require NPDES permits. See Sierra
Club v. Martin, 141 F.3d 803 (8th Cir. 1998); Newton Cnty.
Wildlife Assoc. v. Rogers, 71 F. Supp. 2d 1268, 1303 (N.D. Ga.1999). If it
takes up the case, the Court will be leery of allowing a challenge to an
agency’s long-standing statutory interpretation (of over 30 years).
Even if the Court
strikes down the Brown opinion, it
might not go so far as to explicitly affirm the validity of the silvicultural
rule. It may not be willing to overlook the procedural issues in Brown to get to the merits of the case.
The Roberts Court has emphasized restraint in its holdings, adhering to a
philosophy of judicial minimalism. See,
e.g., William J. Rinner, Roberts
Court Jurisprudence and Legislative Enactment Costs, 118 Yale L.J. (Pocket Part 177) (2009), http://thepocketpart.org/2009/03/31/rinner.html.
This suggests that, if it takes up the case, the Court may dispense with it on
subject matter jurisdiction. This would still be helpful to the forest
industry, but it may make for uncertainty because EPA might feel the need to
develop a rule that is on stronger footing. EPA’s recent regulatory proposal
appears to have been developed with this in mind.
If the Court decides
not to review Brown, or if it affirms
the Ninth Circuit’s opinion, Congress may be willing to take up the issue. Bills have been introduced that could
solve the issue. See Gould, supra. For now, Congress has stayed the
effect of this controversial decision through its Omnibus Appropriations Bill
until October 1, 2012. Id.
Jessica Marlowe is a
third-year law student at Florida State University, pursuing a Certificate in
Environmental and Land Use. She has clerked in local government, environmental,
and land use law. She holds a B.A. in environmental science from the University
of Florida.
Jacob T. Cremer practices
environmental and land use law at Hopping Green & Sams, P.A., in
Tallahassee, Florida. He assists clients with property development,
environmental permitting, and natural resource management. He is a
fifth-generation owner of timberlands in Florida.
