Last year the NW Environmental Defense Center (NEDC) filed a citizen law suit against Marvin Brown, Oregon State Forester, the entire Oregon Board of Forestry, and four forestry businesses alleging violations of the Clean Water Act.  On March 1, 2007, Judge Garr King of the Oregon District Court dismissed the claims.   This is great news…not often do we win a court case of this importance.

Paulette, Oregonians for Food and Shelter 3/6/07

NEDC Claims Dismissed

On March 1, 2007, Judge King of the Oregon District Court issued an Opinion and Order dismissing the claims of plaintiff Northwest Environmental Defense Center (“NEDC”) asserting that state and private forestry interests were obligated to obtain NPDES permits in conjunction with the use of forest roads for timber hauling.  This is to provide a brief summary and analysis of the court’s opinion:

NEDC asserted two theories of liability.  The first theory was that the discharges at issue were regulated under EPA’s Phase I stormwater regulations as discharges associated with industrial activity, namely facilities within Standard Industrial Classification (“SIC”) 24 (lumber and wood products) and 2411 (logging).  The second theory claimed that the discharges were regulated under the Phase II stormwater regulations because the Ninth Circuit remanded the Phase II rules to EPA for consideration of whether forest road discharges should be regulated as part of its ruling in Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003) (“EDC”).

Judge King rejected both theories.  To begin with, the judge held that because the discharges at issue fall within the silvicultural regulation, they are not point sources and are not regulated as Phase I discharges under Section 402(p) of  the Clean Water Act.  This is a broader rationale than was necessary to sustain the ruling, but it is consistent with the positions that have been taken by both EPA and the industry in other cases.  In reaching this conclusion, the court noted that the language of the silvicultural rule defines discharges from silvicultural harvesting operations from which there is natural runoff, including the building and maintenance of forest roads, as nonpoint in nature.  Moreover, the court reasoned that this definition is consistent with the Ninth Circuit’s opinion in League of Wilderness Defenders/Blue Mountain Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002), which addressed the silvicultural rule in the context of the aerial spraying of a pesticides.  Specifically, the Ninth Circuit held noted that nonpoint source pollution is widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source, such as residue left on roadways by automobiles.  Considering the discharges at issue in the present case, the court then reasoned:

[T]he fact that pollutants deposited on top of the roads during timber hauling end up being washed into the water bodies does not turn the road system with its associated ditches and culverts into a point source.  The road/ditch/culvert system and timber hauling on it is a traditional dispersed activity from which pollution flowing into the water cannot be traced to single discrete sources.

Docket No. 66, at 14-15 (citing Forsgren, 309 F.3d at 1184). 

As part of its ruling, the court specifically disagreed with the Northern District of California District Court, which recently found that runoff channeled through forest road ditches and culverts required a permit, stating that the Northern District’s ruling “contradicts Forsgren’s explanation of traditional sources of nonpoint source pollution.”  See Environmental Protection Information Ctr. v. Pacific Lumber Co., No. C01-2821 (N.D. Cal. Oct. 14, 2003); Docket No. 66, at 16-17. 

With regard to NEDC’s second argument, Judge King held that the Ninth Circuit’s opinion in EDC merely remanded an EPA rulemaking for further consideration of whether forest road use should be regulated and did not reach any conclusion as to whether in fact they were regulated.  Accordingly, the court rejected NEDC’s interpretation of the case as subjecting road use to regulation pending EPA’s final decision.  Docket No. 6, at 17.

            NEDC has 60 days in which to appeal the district court’s decision.  NEDC has told us that they have not yet made a decision on whether to appeal and we will have to await their final decision to see what happens.  Stay tuned.