APPENDIX

More documents

Recommendations

Info

29a The core of the EPA and Forest Service argument was that “pest ... control” was one of the activities listed in the Silvicultural Rule as not constituting a point source discharge. We wrote: The Forest Service’s argument fails because the statute itself is clear and unambiguous. The statutory definition of point source, “any discernible, confined and discrete conveyance, including but not limited to any ... vessel,” 33 U.S.C. § 1362(14), clearly encompasses an aircraft equipped with tanks spraying pesticide from mechanical sprayers directly over covered waters. The Forest Service cannot contravene the will of Congress through its reading of administrative regulations. Forsgren, 309 F.3d at 1185–86. We pointed out that the Rule characterized a pest control discharge as nonpoint only when it was “silvicultural pest control from which there is natural runoff.” Id. Dat 1186 (emphasis in original). If pest control activity resulted in natural runoff, that runoff was not a point source discharge under § 502(14). But it was undisputed in Forsgren that aerial spraying of pesticide into streams was not “natural runoff.” We had no occasion to rule on, and did not discuss, whether silvicultural activities from which there is natural runoff that is channeled, controlled, and discharged through a “discernible, confined and discrete conveyance” is a point source under § 502(14). We emphatically “reject[ed] the Forest Service’s argument that the EPA has the authority to ‘refine’ the definitions of point source and nonpoint source
30a pollution in a way that contravenes the clear intent of Congress as expressed in the statute.” Id. at 1190. We wrote: We agree with the D.C. Circuit that the EPA has some power to define point source and nonpoint source pollution where there is room for reasonable interpretation of the statutory definition. However, the EPA may not exempt from NPDES permit requirements that which clearly meets the statutory definition of a point source by “defining” it as a non-point source. Allowing the EPA to contravene the intent of Congress, by simply substituting the word “define” for the word “exempt,” would turn Costle on its head. Id. We now reach the question not reached or discussed in Forsgren—whether discharge of natural runoff becomes a point source discharge when it is channeled and controlled through a “discernible, confined and discrete conveyance” in a system of ditches, culverts, and channels. We conclude that it does. In our view, the answer to the question before us is as clear as the answer to the questions presented in Costle and in Forsgren. The CWA prohibits “the discharge of any pollutant by any person” without an NPDES permit. 33 U.S.C. § 1311(a). The term “discharge of a pollutant” means “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A) (emphasis added). A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, con-
Page 1 and 2: APPENDIX
Page 3 and 4: 2a ORDER This court’s opinion fil
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: 28a The original Silvicultural Rule
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
Page 53 and 54: 52a by defendants that an individua
Page 55 and 56: 54a dischargers and the EPA has det
Page 57 and 58: 56a clude agricultural stormwater d
Page 59 and 60: 58a the so-called Phase I discharge
Page 61 and 62: 60a dicta found in Forsgren, a case
Page 63 and 64: 62a socs., 278 F. Supp. 2d 654, 681
Page 65 and 66: 64a Id. at *14 (internal citations
Page 67 and 68: 66a are adequately set forth to per
Page 69 and 70: 68a none that will change this anal
Page 71 and 72: 70a 33 U.S.C. § 1288. Areawide was
Page 73 and 74: 72a 33 U.S.C. § 1342. National pol
Page 75 and 76: 74a Not later than October 1, 1993,
Page 77 and 78: 76a 33 U.S.C. § 1365. Citizen suit
Page 79 and 80: 78a 40 C.F.R. § 122.26 Storm water
Page 81 and 82:
80a stone, gravel, and riprap (See
Page 83 and 84:
82a Pursuant to Local Rule 7-3(b),
Page 85 and 86:
84a with industrial activity;” (3
Page 87 and 88:
86a standard or is a significant co
Page 89 and 90:
88a Finally, PALCO’s operations a
Page 91 and 92:
90a In its Phase II regulations, EP
Page 93 and 94:
92a CONCLUSION For the reasons set
Page 95 and 96:
94a TABLE OF CONTENTS Page TABLE OF
Page 97 and 98:
96a I. INTRODUCTION The Northwest E
Page 99 and 100:
98a relevant Clean Water Act implem
Page 101 and 102:
100a (NPS). 4 Several sections of t
Page 103 and 104:
102a 40 C.F.R. § 122.27(b) (emphas
Page 105 and 106:
104a discharges or classes of storm
Page 107 and 108:
106a mand. In fact, the Ninth Circu
Page 109 and 110:
108a storm water permitting program
Page 111 and 112:
110a The Court in NRDC v. Costle fo
Page 113 and 114:
112a ral runoff’ to modify all of
Page 115 and 116:
114a 1976 regulation into the body
Page 117 and 118:
116a administer the CWA. See Ford M
Page 119 and 120:
118a tional one to preclude a court
Page 121 and 122:
120a of its section 122.27 rule, an
Page 123 and 124:
122a EPA was free to adopt any regu
Page 125 and 126:
124a C.F.R. § 122.26(b)(14) (empha
Page 127 and 128:
126a roads as excluded under 40 C.F
Page 129 and 130:
128a Second, the court found that i
Page 131 and 132:
130a amendments. Thus, EPIC’s int
Page 133 and 134:
132a tion compels EPA to use the NP
show all

APPENDIX

Create successful ePaper yourself

Delete template?

Save as template?