Plugging the Drain: Using Northwest Environmental Defense Center V. Brown to Reach Other Point Source Discharges under the Clean Water Act
Iverson, Steven T., South Dakota Law Review
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.
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)
II. FACTS AND PROCEDURE OF NEDC
In NEDC, several timber companies in Oregon were harvesting timber under permits issued by the state forester. …