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1a UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07–35266. Northwest Environmental Defense Center, Plaintiff–Appellant, and Oregon Forest Industry Council; American Forest & Paper Association, Intervenors, v. Marvin Brown, Oregon State Forester, in his official capacity; et al., Defendants–Appellees. Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding. D.C. No. CV–06–01270–GMK. Argued and Submitted Nov. 19, 2008. Filed May 17, 2011. Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CHARLES R. BREYER 1 District Judge. 1 The Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation.
2a ORDER This court’s opinion filed August 17, 2010, and reported at 617 F.3d 1176, is withdrawn, and is replaced by the attached Opinion. With the filing of the new opinion, the panel has voted unanimously to deny the petitions for rehearing. Judges Fletcher and Fisher have voted to deny the petitions for rehearing en banc, and Judge Breyer so recommends. The full court has been advised of the petitions for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for rehearing and rehearing en banc, filed October 5, 2010, are DENIED. No further petitions for rehearing or rehearing en banc will be accepted. OPINION W. FLETCHER, Circuit Judge: Northwest Environmental Defense Center (“NEDC”) brings suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities (collectively, “State Defendants”) and against various timber companies (“Timber Defendants,” and collectively with State Defendants, “Defendants”). NEDC contends that Defendants have violated the Clean Water Act (“CWA”) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (“EPA”) for stormwater—largely rainwater—runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into
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Page 5 and 6: 4a Both of the logging roads were d
Page 7 and 8: 6a light of our holding that the Ru
Page 9 and 10: 8a League of Wilderness Defenders/B
Page 11 and 12: 10a “It is well settled that the
Page 13 and 14: 12a tually passes through storm sew
Page 15 and 16: 14a ing of the distinction as it re
Page 17 and 18: 16a ture, nor shall the Administrat
Page 19 and 20: 18a gram.” Id. at 1395. The distr
Page 21 and 22: 20a those silvicultural activities
Page 23 and 24: 22a (a) Definitions. For the purpos
Page 25 and 26: 24a court’s mouth. The district c
Page 27 and 28: 26a The wording of the statute, leg
Page 29 and 30: 28a The original Silvicultural Rule
Page 31 and 32: 30a pollution in a way that contrav
Page 33 and 34: 32a another, because section 122.27
Page 35 and 36: 34a longstanding administrative reg
Page 37 and 38: 36a The [FWPCA] of 1972 required al
Page 39 and 40: 38a 3. Phase I Stormwater Regulatio
Page 41 and 42: 40a engaged in cutting timber and i
Page 43 and 44: Id. 42a trial plant yards, immediat
Page 45 and 46: 44a discharges. For example, in 197
Page 47 and 48: 46a tant in a specific place and is
Page 49 and 50: 48a UNITED STATES DISTRICT COURT FO
Page 51 and 52: 50a court is not required to accept
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52a by defendants that an individua
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54a dischargers and the EPA has det
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56a clude agricultural stormwater d
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58a the so-called Phase I discharge
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60a dicta found in Forsgren, a case
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62a socs., 278 F. Supp. 2d 654, 681
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64a Id. at *14 (internal citations
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66a are adequately set forth to per
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68a none that will change this anal
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70a 33 U.S.C. § 1288. Areawide was
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72a 33 U.S.C. § 1342. National pol
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74a Not later than October 1, 1993,
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76a 33 U.S.C. § 1365. Citizen suit
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78a 40 C.F.R. § 122.26 Storm water
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80a stone, gravel, and riprap (See
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82a Pursuant to Local Rule 7-3(b),
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84a with industrial activity;” (3
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86a standard or is a significant co
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88a Finally, PALCO’s operations a
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90a In its Phase II regulations, EP
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92a CONCLUSION For the reasons set
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94a TABLE OF CONTENTS Page TABLE OF
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96a I. INTRODUCTION The Northwest E
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98a relevant Clean Water Act implem
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100a (NPS). 4 Several sections of t
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102a 40 C.F.R. § 122.27(b) (emphas
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104a discharges or classes of storm
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106a mand. In fact, the Ninth Circu
Page 109 and 110:
108a storm water permitting program
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110a The Court in NRDC v. Costle fo
Page 113 and 114:
112a ral runoff’ to modify all of
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114a 1976 regulation into the body
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116a administer the CWA. See Ford M
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118a tional one to preclude a court
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120a of its section 122.27 rule, an
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122a EPA was free to adopt any regu
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124a C.F.R. § 122.26(b)(14) (empha
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126a roads as excluded under 40 C.F
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128a Second, the court found that i
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130a amendments. Thus, EPIC’s int
Page 133 and 134:
132a tion compels EPA to use the NP
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