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June 6, 2003


The opinion of the court was delivered by: Marilyn Hall Patel, United States District Chief Judge


Motions to Dismiss

Plaintiff Environmental Protection Information Center ("EPIC"), a non-profit environmental organization in Humboldt County, California, brings this action on behalf of itself and its members against Pacific Lumber Company and Scotia Pacific Lumber Company (collectively "PALCO"), the Environmental Protection Agency ("EPA"), and Christine Todd Whitman as EPA Administrator. Pursuant to state law and the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., EPIC seeks declaratory and injunctive relief, civil penalties, and restitution for PALCO's alleged discharge of pollutants into Bear Creek in Humboldt County. EPIC also challenges an EPA regulation that allegedly excludes PALCO's actions from permitting required by the CWA. Now before the court are separate motions to dismiss by PALCO and EPA. After having considered the parties' arguments, and for the reasons stated herein, the court rules as follows.


I. Factual Background*fn1

At the heart of this action is the Bear Creek watershed, covering 5500 acres of land in Humboldt County, California. Bear Creek, a tributary of the lower Eel River, is located several miles upstream of Scotia, California. Plaintiff EPIC alleges that there has been a dramatic increase in the amount of sediment deposited into Bear Creek — from approximately 8000 tons per year, before substantial logging in the area began, to 27,000 tons per year today. EPIC attributes the increase in sediment delivery to the logging activities of defendant Pacific Lumber Company and its wholly owned subsidiary, defendant Scotia Pacific Lumber Company, both of which are Delaware corporations with their principal places of business in Scotia. PALCO owns ninety-five percent of the land in the Bear Creek watershed and engages in logging throughout the watershed.

Specifically, EPIC alleges that the sediment increase is caused by PALCO's timber harvesting and construction of unpaved roads. EPIC contends that timber harvesting removes vegetation and makes soils more susceptible to erosion and landslides, and that the construction of unpaved roads exposes soils and destabilizes slopes. According to EPIC, rain carries the exposed silts and sediments — as well as other pollutants such as pesticides and diesel fuel — into culverts, ditches, erosion gullies and other alleged channels, and from there into Bear Creek.

A study conducted by PALCO consultants in April 1998 identified at least 179 specific sites in the watershed where sediments and other pollutants are deposited into Bear Creek and its tributaries. EPIC alleges that pollutant-laden water flows through, among other channels, 156 hillside culverts and 5.5 miles of roadside ditches that drain directly into stream-crossing culverts. PALCO has not applied for any permits for these sites, which EPIC contends should be regulated as point sources under the CWA. As a result of PALCO's activities, EPIC maintains that there have been significant adverse impacts on the beneficial uses of Bear Creek, including the use of the creek by fish for nesting and rearing habitat. Moreover, EPIC believes that further activities proposed in PALCO's timber harvest plans, such as construction of additional roads, culverts and ditches, could increase the amount of sediment, silt, and other pollutants deposited into Bear Creek.

II. Statutory and Regulatory Background

Congress enacted the CWA in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The "fundamental premise" of the CWA is that "`the discharge of any pollutant by any person shall be unlawful'" unless authorized by the Act. Natural Resources Defense Council ("NRDC") v. EPA, 822 F.2d 104, 109 (D.C. Cir. 1987) (citing 33 U.S.C. § 1311(a)). The CWA primarily uses an effluent limitation approach that regulates certain sources of pollutants, known as "point sources," through technology-based standards. NRDC v. Train, 510 F.2d 692, 695 (D.C. Cir. 1974). Water quality-based standards supplement technology standards when necessary to further control pollution in a body of water. NRDC v. EPA, 822 F.2d at 110. In contrast to the "end-of-pipe" regulation of point sources, nonpoint sources of pollution are only indirectly controlled through state management programs. See Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1096-97 (9th Cir. 1998), cert. denied, 528 U.S. 964 (1999). The CWA also directs the EPA to issue information on nonpoint sources of pollution. 33 U.S.C. § 1314(f).

A. National Pollutant Discharge Elimination System

The CWA prohibits the "discharge of any pollutant" except as authorized by a National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. § 1311(a), 1342(a). NPDES permits are issued by either the EPA or a state with an approved program, such as California.*fn2 Id. § 1342(a)-(b). The term "discharge of a pollutant" is defined by the CWA as "any addition of any pollutant to navigable waters from any point source." Id. § 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, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
Id. § 1362(14). The term "pollutant" is defined broadly by the Act to include such substances as rock and sand, as well as industrial, municipal and industrial wastes. Id. § 1362(6).

B. Regulation of Silvicultural Sources

After the CWA was enacted, EPA promulgated regulations that exempted certain categories of discharges from NPDES permit requirements, including "[u]ncontrolled discharges composed entirely of storm runoff," and some "[d]ischarges of pollutants from agricultural and silvicultural activities." 40 C.F.R. § 125.4 (1973). NRDC challenged the regulations in D.C. District Court, arguing that EPA did not have the authority to exempt categories of point sources from regulation. NRDC v. Train, 396 F. Supp. 1393, 1395 (D.C. 1975), aff'd, NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). The District Court agreed. Id. at 1396. In response to the District Court's decision, EPA promulgated a new regulation on silvicultural sources in 1976 that defined a silvicultural point source and gave examples of nonpoint sources in a comment.*fn3 41 Fed. Reg. 24,709, 24,711 (June 18, 1976). When EPA repromulgated the regulation in 1980, the agency incorporated the comment in the text with slight changes to the language. 45 Fed. Reg. 33,290, 33,44647 (May 19, 1980). The current regulation is identical to the one recodified in 1980 and defines a "[s]ilvicultural point source" as:

any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source 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.
40 C.F.R. § 122.27(b)(1) (emphasis added).
C. 1987 Amendments on Municipal and Industrial Stormwater Discharges
In 1987, Congress amended the CWA to include a section on municipal and industrial stormwater discharges. See Pub. L. No. 100-4, 101 Stat. 7 (1987) (codified as 33 U.S.C. § 1342(p)). Section 402(p)(2) mandates permits for stormwater discharges "associated with industrial activity," those from municipal storm sewer systems, and those that contribute to water quality violations or are "significant contributor[s] of pollutants." 33 U.S.C. § 1342(p)(2). In addition, section 402(p)(6) requires the EPA to designate other sources of stormwater pollution and "establish a comprehensive program to regulate" these discharges. Id. § 1342(p)(6). In 1990, the EPA issued regulations for the discharges identified in 402(p)(2), referred to as the "Phase I" regulations. 55 Fed. Reg. 47,990 (Nov. 16, 1990). The regulations were challenged and, for the most part, upheld by the Ninth Circuit. American Mining Cong. v. EPA, 965 F.2d 759, 762 (9th Cir. 1992); NRDC v. EPA, 966 F.2d 1292, 1295 (9th Cir. 1992). In 1999, the EPA issued the regulations for the remaining sources in section 402(p)(6), also referred to as the "Phase II" regulations. 64 Fed. Reg. 68,722 (Dec. 8, 1999). Once again, the regulations were mostly upheld by the Ninth Circuit against challenges. Environmental Def. Ctr. v. EPA, 319 F.3d 398, 405 (9th Cir. 2003).

D. Proposed Amendment to Silviculture Regulation

In 1999, EPA proposed revising the 1976 silviculture regulation in order to "modify [the EPA's] current interpretation of the term `point source' with respect to discharges associated with silviculture." 64 Fed. Reg. 46,058, 46,077 (Aug. 23, 1999). The proposed version would have left untouched the first sentence of the 1976 regulation, which lists the four types of sources considered to be point sources. The second sentence identifying nonpoint source activities would have been replaced. 64 Fed. Reg. at 46,088. In its stead, EPA proposed giving EPA and authorized states the opportunity to designate, on a case-by-case basis, stormwater discharges from silvicultural activities as point sources subject to NPDES permitting. Id.*fn4 The only silvicultural sources subject to the proposed revision were those Phase I stormwater discharges identified as either contributors to violations of water quality standards or as "significant contributors]" of pollutants to a body of water. Id. (requiring a designation under section 122.26(a)(1)(v), 40 C.F.R. § 122.26(a)(1)(v)); see 33 U.S.C. § 1342(p)(2)(E) (granting EPA the authority to require a permit for such discharges).

The 1999 revision was proposed in conjunction with comprehensive rulemaking on the establishment of "Total Maximum Daily Loads" ("TMDLs"). 64 Fed. Reg. 46,012 (Aug. 23, 1999). A TMDL defines the maximum amount of a pollutant that can be discharged, or "loaded," into a certain water body from all sources, including point sources, nonpoint sources and natural background sources. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995). Section 303(d) of the CWA requires states to identify bodies of water that do not meet water quality standards even with technology-based pollution controls on point sources, then establish TMDLs and submit a list of waters and the TMDLs to EPA for review. 33 U.S.C. § 1313(d). EPA proposed that its case-by-case designation of silvicultural point sources be employed only when limitations on discharges were needed to achieve a TMDL. 64 Fed. Reg. at 46,088.

After considering comments on the proposal, EPA decided to retain the second sentence of section 122.27(b)(1) as promulgated in 1976. 65 Fed. Reg. 43,586, 43,652 (July 13, 2000).

E. Judicial Review Under the Clean Water Act

The CWA, read in connection with the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., creates a bifurcated jurisdictional scheme in which jurisdiction over certain claims against EPA is vested exclusively in the circuit courts, and the remainder are vested in the district courts. 33 U.S.C. § 1365(a), 1369(b)(1). Section 509(b) gives circuit courts original jurisdiction over challenges to certain actions by EPA Administrators, including "approving or promulgating any effluent limitation or other limitation under [four enumerated sections of the Act, including section 301] and "issuing or denying any permit under [section 402]." 33 U.S.C. § 1369(b)(1)(E)-(F). If an action falls within the purview of subsection (b)(1), then it cannot be reviewed by a court in any civil or criminal enforcement action. 33 U.S.C. § 1369(b)(2). Other challenges to EPA actions may be brought in district courts either ...

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