United States District Court, N.D. California
January 23, 2004.
ENVIRONMENTAL PROTECTION INFORMATION CENTER, a non-profit corporation, Plaintiff,
PACIFIC LUMBER COMPANY, a Delaware corporation; SCOTIA PACIFIC COMPANY LLC, a Delaware corporation; ENVIRONMENTAL PROTECTION AGENCY, a federal agency; and CHRISTINE TODD WHITMAN, in her capacity as EPA Administrator, Defendants
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge District
Motion to Dismiss
On July 24, 2001, plaintiff Environmental Protection Information
Center ("EPIC"), a non-profit environmental organization, brought a
citizen-suit action under section 505(a) of the Clean Water Act ("CWA"),
33 U.S.C. § 1365(a), against Pacific Lumber Company and Scotia
Pacific Lumber Company (collectively "PALCO"), the Environmental
Protection Agency ("EPA"), and Christine Todd Whitman as EPA
EPIC's complaint alleges that PALCO violated the CWA,
the Porter-Cologne Act, and California's Unfair Competition Law, Cal. Bus
& Prof. Code § 17200 et seq., when it discharged
pollutants without a CWA permit. For these alleged violations, EPIC seeks
declaratory and injunctive relief, civil remedies, and restitution.
On August 16, 2001, the court denied EPIC's motion for a temporary
restraining order. PALCO and EPA subsequently filed separate motions to
dismiss the action, and EPIC, in response, filed an amended complaint on
September 24, 2001, adding a third claim challenging the nonpoint source
provision of the relevant regulation. On June 6, 2003, the court denied
EPA's motion to dismiss and denied
PALCO's motion to dismiss in part, concluding that EPIC could
pursue a claim under the Administrative Procedures Act ("APA") in this
court and that EPIC's claim was not time-barred. On October 13, 2003, the
court denied EPIC's motion for summary judgment on its third claim for
relief, granting PALCO's and EPA's cross-motions and construing the
relevant EPA regulation in a manner consistent with germane federal law.
Now before the court is PALCO's motion to dismiss EPIC's remaining
claims under Federal Rule of Civil Procedure 12(b)(6). The court has
considered the parties' arguments fully, and for the reasons set forth
below, the court rules as follows.
In its opinion of October 14, 2003, the court set forth in significant
detail the factual and procedural histories of this action. To give
context and shape to the court's consideration of PALCO's motion to
dismiss, the court repeats much of this background here.
I. Underlying Facts
At the heart of this litigation is Bear Creek, a brook situated several
miles upstream of Scotia, California. A tributary of the Eel River, Bear
Creek creates a watershed that covers 5500 acres of land throughout
Humboldt County, California. Pacific Lumber Company and its wholly owned
subsidiary, defendant Scotia Pacific Lumber Company, own some ninety-five
percent of the land in the Bear Creek watershed, much of which PALCO uses
According to EPIC, substantial logging activity in the watershed area
primarily that performed by PALCO has spurred a dramatic
increase in the amount of sediment deposited into Bear Creek. Before
significant logging began, EPIC claims, Bear Creek's sediment deposit
peaked at approximately 8,000 tons per year; after logging practices
commenced, sediment deposit climbed to 27,000 tons per year. This
sediment increase, EPIC alleges, has a specific source: PALCO's timber
harvesting and construction of unpaved roads. According to EPIC, PALCO's
logging activity creates a deleterious environmental process. First, EPIC
notes, timber harvesting removes vegetation from the ground surface,
making soil more susceptible to erosion and landslides; construction of
unpaved roads then exposes more soil, which, in
turn, further destabilizes slopes. The effect of timber harvesting
and road construction, EPIC contends, is to expose far more destabilized
soil than is environmentally sustainable. When it rains, EPIC explains,
the rain water carries the exposed silts and sediments as well as
other pollutants, like pesticides and diesel fuel into culverts,
ditches, erosion gullies, and other alleged channels. From these various
water channels, silts, sediments, and pollutants flow directly into Bear
According to an April 1998 study conducted by PALCO consultants,
sediments and pollutants pile into Bear Creek and its tributaries at no
fewer than 179 specific watershed points. Among other channels,
pollutant-laden water flows through 156 hillside culverts and 5.5 miles
of roadside ditches, all of which drain directly into stream-crossing
culverts. The consequences of this system, EPIC contends, are predictable
and environmentally adverse: Beneficial uses of Bear Creek are
substantially diminished; e.g., fish are significantly less able
if able at all to use the creek as a nesting and rearing habitat.
Worse still, EPIC adds, PALCO's present and future timber harvest plans
promise the construction of additional roads and the digging of
additional culverts, all of which could increase the amount of sediment,
silt, and other pollutants deposited into Bear Creek. PALCO neither holds
nor has applied for any relevant permits for these sites, sites EPIC
contends should be regulated as "point sources" under the CWA.
II. Statutory and Regulatory Background
With the goal of "restor[ing] and maintain[ing] the chemical, physical,
and biological integrity of the Nation's waters," Congress enacted the
CWA in 1972. 33 U.S.C. § 1251(a) (originally codified as the Federal
Water Pollution Control Act, 62 Stat. 1155); see Association to
Protect Hammersley v. Taylor Res., Inc., 299 F.3d 1007,
1016 (9th Cir. 2002) (noting that, in 1972, "Congress passed the Clean
Water Act amendments, 33 U.S.C. § 1251-1387, to respond to
environmental degradation of the nation's waters"); Pronsolino v.
Nastri, 291 F.3d 1123, 1126 (9th Cir. 2002) (observing that prior
federal water pollution regulation "had proven ineffective"). Built on a
"fundamental premise" that the unauthorized "discharge of any pollutant
by any person shall be unlawful,'" Natural Resources Defense
Council ("NRDC") v. EPA, 822 F.2d 104, 109 (D.C. Cir.
1987) (citing 33 U.S.C. § 131 1(a)), the CWA "establishes a
comprehensive statutory system for controlling water pollution."
Association to Protect Hammersley, 299 F.3d at 1009
(citation and internal quotation marks omitted). This broad statutory
scheme includes, inter alia, a National Pollutant
Discharge Elimination System ("NPDES") for regulation of pollutant
discharges into the waters of the United States. See
33 U.S.C. § 1311(a), 1342(a). Under the NPDES, permits may be issued by EPA or
by States that have been authorized by EPA to act as NPDES permitting
authorities. See 33 U.S.C. § 1342(a)-(b); see also
Environmental Def. Ctr., Inc. v. United States Envtl. Prot.
Agency, 345 F.3d 840, 2003 WL 22119563, *2 (9th Cir. 2003)
("[P]ollution dischargers must comply with "technology-based pollution
limitations (generally according to the `best available technology
economically achievable,' or `BAT' standard)."); NRDC v. EPA,
822 F.2d at 110 (noting that, when necessary, water quality-based
standards may supplement technology standards). California has been so
Not all pollutants or pollution sources fall under the purview of the
NPDES. Under the CWA, "discharge of pollutant" is defined as "any
addition of any pollutant to navigable waters from any point
source." 33 U.S.C. § 1362(12)(A) (emphasis added). The CWA's
and NPDES's focus, then, trains largely on pollutant discharges from
"point sources," a term the Act defines as:
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., at § 1362(14); see also id. at §
1362(6) (defining "pollutant" broadly to include substances ranging from
rock and sand to industrial, municipal, and industrial wastes).
The CWA distinguishes "point sources" from "nonpoint sources." The
NPDES recognizes and functions on the basis of this
distinction, requiring permits only for such "point source" emissions.
See. e.g., League of Wilderness Defenders v.
Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002) ("Point source
pollution is distinguished from `nonpoint source pollution, which is
regulated in a different way and does not require [the NPDES] type of
permit."). Unlike "point sources," "nonpoint sources" are regulated
indirectly: The CWA directs EPA to disseminate information regarding
nonpoint pollution sources, see 33 U.S.C. § 1314(f), but it
is often through state management programs that "nonpoint sources" are
monitored and controlled. See Oregon Natural Desert Ass'n v.
Dombeck, 172 F.3d 1092, 1096-97 (9th Cir. 1998), cert. denied.
528 U.S. 964 (1999).
A. Regulation of Silvicultural Sources and Activities
Following the passage of the CWA, EPA promulgated regulations that
exempted certain categories of discharges namely "[u]ncontrolled
discharges composed entirely of storm runoff" and some "[d]ischarges of
pollutants from agricultural and silvicultural activities" from
NPDES permit requirements. See 40 C.F.R. § 125.4 (1973).
Close to twenty years ago, these silviculture-related regulations spurred
a round of litigation in federal court, as NRDC challenged the exemptions
in the United States District Court for the District of Columbia.
See NRDC v. Train. 396 F. Supp. 1393, 1395 (D.D.C. 1975),
aff'd sub nom. NRDC v. Costle. 568 F.2d 1369 (D.C.
Cir. 1977). As NRDC read the CWA, EPA did not have the authority to
exempt entire categories of point sources from CWA regulation.
Id. The district court agreed, invalidating the regulation.
Id. at 1396.
In response to this 1975 court decision, EPA promulgated a new
silvicultural-source regulation in 1976. See 41 Fed. Reg.
24,709, 24,711 (June 18, 1976). Originally codified as
40 C.F.R. § 124.85, the 1976 iteration of the regulation defined the term
"silvicultural point source" in a brief comment, offering
counter-examples of nonpoint sources:
[Silvicultural point source] does not include
nonpoint source activities inherent to forest
management such as nursery operations, site
preparation, reforestation and subsequent cultural
treatment, thinning, prescribed burning, pest and
fire control, harvesting operations, surface
drainage, and road construction and maintenance
from which runoff results from precipitation
Id. EPA repromulgated this regulation in 1980.
See 45 Fed. Reg. 33,290, 33,446-47 (May 19, 1980). When it did
so, it folded the definitional comment into the text of the regulation
itself, making only slight changes to the pertinent language.
The current regulation governing silvicultural point sources is
identical to the recodified 1980 version. In significant part, the
current regulation 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). In its October 14
opinion, the court assessed the scope and meaning of section 122.27,
finding the regulation to be consistent with and controlled by
related provisions of the CWA.
B. 1987 Amendments on Municipal and Industrial Stormwater
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)). Among other things,
this provision popularly labeled "section 402" mandates
that permits be obtained for Stormwater discharges "associated with
industrial activity," for Stormwater discharges from municipal storm
sewer systems, and for Stormwater discharges that contribute to water
quality violations or are otherwise "significant contributor[s] of
pollutants." 33 U.S.C. § 1342(p)(2). In addition, subsection (6) of
section 402(p) requires the EPA to designate other sources of Stormwater
pollution and, in turn, to "establish a comprehensive program to
regulate" these discharges. Id. at § 1342(p)(6).
For the discharges identified in section 402(p)(2), EPA has issued two
batches of regulations. See 55 Fed. Reg. 47,990 (Nov. 16,
1990); 64 Fed. Reg. 68,722 (Dec. 8, 1999). The first set, issued in 1990
and often referred to as the "Phase I" regulations, prompted a number of
legal challenges; these "Phase I" regulations were, for the most part,
deemed valid by the Ninth Circuit. See, e.g.,
American Mining Cong. v. EPA, 965 F.2d 759, 762 (9th
Cir. 1992); NRDC v. EPA 966 F.2d 1292, 1295 (9th Cir. 1992).
The second set, issued in 1999 and generally labeled the "Phase II"
regulations, reached the remaining sources in section 402(p)(6).
See 64 Fed. Reg. 68,722 (Dec. 8, 1999). This second set of
regulations also produced a number of legal challenges, and, once again,
the regulations largely were upheld by the Ninth Circuit. See,
e.g., Environmental Def. Ctr., 345 F.3d at 840, 2003
WL 22119563, *1.
C. Proposed 1999 Amendment to Silviculture Regulation
In 1999, hoping to "modify [the EPA's] current interpretation of the
term `point source' with respect to discharges associated with
silviculture," EPA proposed a revision to its 1976 silviculture
regulation. See 64 Fed. Reg. 46,058, 46,077 (Aug. 23, 1999)
(noting that the proposed changes aimed to bridge a "regulatory gap in
coverage" for "a discrete category of `non-point sources' excluded from
the opportunity for regulation under the NPDES permitting program"). In
this proposed revision, EPA intended to leave unchanged the first
sentence of the 1976 regulation; as a result, the section's list of four
types of silvicultural sources considered to be point sources would be
left intact. Id.
But the proposed revision did not aim to leave the second sentence
viz., the sentence identifying nonpoint source activity
of the 1976 regulation in place. See 64 Fed. Reg. at 46,088.
revision proposed removal of the section's entire second sentence,
inserting in its stead a sentence granting EPA and authorized States the
opportunity, on a case-by-case basis, to designate particular stormwater
discharges from silvicultural activities as point sources subject to
NPDES permit requirements. Id. (presenting the revised text as:
"This term also includes discharges composed entirely of storm water from
silvicultural activities that are designated under 40 C.F.R. § 122.26(a)(1)(v)
as requiring a 402 permit"). Two silvicultural sources were targeted
specifically by this proposed revision: one, those silvicultural sources
identified in the Phase I stormwater discharge regulations as
contributors to violations of water quality standards; and, two, those
silvicultural sources identified in the Phase I stormwater discharge
regulations as "significant contributor[s]" 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).
These proposed silvicultural-source revisions appeared in conjunction
with comprehensive EPA rulemaking on the establishment of "Total Maximum
Daily Loads" ("TMDLs"). See 64 Fed. Reg. 46,012 (Aug. 23,
1999). A TMDL, put simply, defines the maximum amount of a pollutant that
can be discharged i.e., "loaded" into a certain body of
water from all sources, whether "point," "nonpoint," or natural
background. See Dioxin/Organochlorine Ctr. v. Clarke.
57 F.3d 1517, 1520 (9th Cir. 1995). TMDLs function as a part of the CWA's
multi-step pollution control system. As a part of CWA compliance, States
are required to identify bodies of water that do not meet water quality
standards, even where technology-based pollution controls have been
placed on relevant point sources. See 33 U.S.C. § 1313(d).
After cataloging these bodies of water, States must then establish TMDLs
for those bodies, submitting a list of waters and respective TMDLs to EPA
for review. Id.
In shaping its 1999 revisions, EPA initially proposed that its
case-by-case designation of silvicultural point sources be employed only
when limitations on discharges were needed to achieve a particular TMDL.
See 64 Fed. Reg. at 46,088. After considering comments on the
proposal, however, EPA opted to retain the second sentence of section
122.27(b)(1) as promulgated in 1976. See 65 Fed. Reg. 43,586,
43,652 (July 13, 2000). The kind of case-by-case determination of point
sources contemplated by the revision was thus rejected.
D. Judicial Review Under the Clean Water Act
Read in connection with the Administrative Procedure Act ("APA"),
5 U.S.C. § 701 et seq., the CWA creates a two-pronged
jurisdictional scheme: For certain claims against EPA, jurisdiction vests
exclusively and originally in the circuit courts; these claims include
challenges to certain actions by EPA Administrators, e.g., "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).
For other challenges to EPA actions, jurisdiction resides in the district
courts, and actions may be brought either as citizen suits under section
505(a) or as APA claims on the basis of federal question jurisdiction.
See 33 U.S.C. § 1365(a); 28 U.S.C. § 1331;
Oregon Natural Res. Council v. United States Forest Serv.,
834 F.2d 842, 852 n. 16 (9th Cir. 1987).
III. Procedural History
On July 24, 2001, EPIC brought a citizen-suit action under section
505(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a), against
PALCO, EPA, and then-EPA Administrator Christine Todd Whitman. Seeking
declaratory and injunctive relief, civil remedies, and restitution,
EPIC's complaint alleges that PALCO violated the CWA, the Porter-Cologne
Act, and California's Unfair Competition Law, Cal. Bus & Prof. Code
§ 17200 et seq., when it discharged pollutants without a
On August 16, 2001, the court denied EPIC's motion for a temporary
restraining order. PALCO subsequently moved to dismiss the action, basing
its motion in part on EPA silvicultural regulation; EPIC then filed an
amended complaint on September 24, 2001, appending a third claim
challenging, pursuant to the APA, the nonpoint source provision of the
regulation. On October 23, 2001, EPIC asked the California entity
responsible for issuing CWA permits for the Bear Creak watershed area to
issue permits for "Pacific Lumber's sediment-and herbicide-laden
discharges, especially from culverts, drainage ditches, gullies, and
logging-induced erosion channels." See Lozeau Dec., Exh. A at
1. The North Coast Regional Water Quality Control Board ("Regional
Board") denied EPIC's request approximately two weeks later, expressly
citing EPA's interpretation of section 122.27 and EPA's attendant
discussion of its decision not to promulgate the proposed 1999
regulation. See Lozeau Dec., Exh. B at 1 (citing 65 Fed. Reg.
43,586, 43,651 (July 13, 2000)).
On June 6, 2003, the court denied EPA's motion to dismiss and denied
PALCO's motion to dismiss in part, concluding that EPIC could pursue a
claim under the Administrative Procedures Act
("APA") in this court and that EPIC's claim was not time-barred. On
October 14, 2003, the court denied EPIC's motion for summary adjudication
on its third claim for relief, granting EPA's and PALCO's cross-motions
for summary adjudication and reading 40 C.F.R. § 122.27 in a manner
consistent with the governing provisions of the CWA. Now before the court
is PALCO's motion to dismiss EPIC's remaining claims.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
"tests the legal sufficiency of a claim." Navarro v. Block.
250 F.3d 729, 732 (9th Cir. 2001). Because Rule 12(b)(6) focuses on the
"sufficiency" of a claim and not the claim's substantive merits
"a court may [typically] look only at the face of the complaint
to decide a motion to dismiss." Van Buskirk v. Cable News Network.
Inc., 284 F.3d 977, 980 (9th Cir. 2002). If "a district court
considers evidence outside the pleadings" when deciding a Rule 12(b)(6)
motion, the court "must normally convert the 12(b)(6) motion into a
[Federal Rule of Civil Procedure] 56 motion for summary judgment, and it
must give the nonmoving party an opportunity to respond." United
States v. Ritchie. 342 F.3d 903, 907 (9th Cir. 2003).
Under Rule 12(b)(6), "unless it appears beyond doubt that plaintiff can
prove no set of facts in support of her claim which would entitle her to
relief," a motion to dismiss must be denied. Lewis v.
Telephone Employees Credit Union 87 F.3d 1537, 1545 (9th Cir.
1996) (citation omitted); see also Conley v. Gibson.
355 U.S. 41, 45-46 (1957) (permitting dismissal for failure to state a
claim only where "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief).
When assessing a Rule 12(b)(6) motion, the court must accept as true "all
material allegations of the complaint," and all reasonable inferences
must be drawn in favor of the non-moving party. See, e.g., Cahill v.
Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (citation
omitted). Dismissal is proper under Rule 12(b)(6) "only where there is no
cognizable legal theory or an absence of
sufficient facts alleged to support a cognizable legal theory."
Navarro, 250 F.3d at 732 (citing Balistreri v.
Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)).
The basic premise of PALCO's*fn5 motion to dismiss is that, however
defined, the pollution sources identified in EPIC's first and second
claims do not require NPDES permits. If the sources are "non-point
sources," PALCO contends, the sources fall outside the scope of the NPDES
by definition; if, by contrast, the sources are "point sources," the
sources are nevertheless a type of discharge sources the CWA and EPA have
excluded from NPDES permitting mandates. Either way, PALCO concludes,
PALCO's decision not to secure permits for Bear Creek discharge sources
is legally sustainable. And either way, EPIC's remaining claims fail to
state a ground on which relief can be granted.
PALCO's motion seems, at first blush, to depend on a misreading of
EPIC's two remaining claims. In pertinent part, EPIC's complaint alleges
that PALCO has violated and continues to violate various
provisions of the CWA through its unlawful discharge of pollutants into
Bear Creek. See First Am. CompL, ¶¶ 38-54;*fn6
33 U.S.C. § 1311(a), 1342. Far from failing to state a facially tenable legal
claim under the CWA, EPIC's complaint contends that PALCO, on its Bear
Creek site, uses a myriad of unpermitted (and, thus, unlawful) culverts,
drainage ditches, and other "point source"-like conduits to discharge
stormwater and pollutants. Id. at ¶¶ 38-48; cf.
also CompL, ¶¶ 31-34. The CWA proscribes precisely this kind of
conduct; under the terms of the CWA, then, EPIC's complaint would seem to
overcome the Rule 12(b)(6) hurdle without more.
But as PALCO reads the pertinent law, the CWA sections supposedly
informing EPIC's complaint actually preclude legal remedy. Section 402(p)
of the CWA, PALCO contends, places discharges of the type EPIC targets
outside the ambit of the NPDES and exempts such sources from the
otherwise applicable CWA permit requirements. No matter how EPIC posits
its claims, PALCO concludes, section
402(p) allows precisely the kind of non-permitted discharging PALCO
purports to perform; since the discharges are composed of "stormwater,"
and since the discharges are not "industrial" or "municipal" in nature,
the NPDES simply does not, as PALCO understands it, control.
The court is mindful that not all discharges require permits under the
CWA. Where a discharge is otherwise in compliance with or excused
by the CWA, that discharge may not be de facto unlawful,
even if not shielded by an NPDES permit. See 33 U.S.C. § 1311(a).
According to PALCO, section 402(p) of the CWA provides such an
exemption here, absolving PALCO of its NPDES permit obligations for all
of the Bear Creek discharge sources. See 33 U.S.C. § 1342(p).
Titled "Municipal and industrial stormwater discharges," section 402(p)
(1) General rule
Prior to October 1, 1994, the Administrator or the
State (in the case of a permit program approved
under this section) shall not require a permit
under this section for discharges composed
entirely of stormwater.
Paragraph (1) shall not apply with respect to the
following stormwater discharges:
(A) A discharge with respect to which a permit has
been issued under this section before February 4,
(B) A discharge associated with industrial
(C) A discharge from a municipal separate storm
sewer system serving a population of 250,000 or
See 33 U.S.C. § 1342(p). As PALCO reads it, section
402(p) requires permits only for particular kinds of stormwater discharge
sources e.g., sources related to "industrial" or particular
"municipal" activity none of which apply here. See
33 U.S.C. § 1342(p); 40 C.F.R. § 122.26.
Section 402(p) does, as PALCO suggests, assign permitting obligations
to a select subset of potential stormwater-discharge sources.
Id. (targeting a particular type of municipal and industrial
sources). But section 402(p) does not, as PALCO implies, apply to all
pollution sources in the first instance. As the
language of the CWA and Ninth Circuit caselaw make clear, section
402(p) is not the only CWA section imposing duties and obligations on
pollution dischargers; both section 301(a) and 402(a), for example,
posit pollution-related mandates on putative polluters, including that
these polluters obtain NPDES permits for "point source" pollutant
discharges. See, e.g., 33 U.S.C. § 1342(a); id at
§ 1311. As the language of the statute and the Ninth Circuit caselaw
also make clear, two threshold inquiries govern the applicability of
section 402(p): one, whether the relevant discharges are "composed
entirely of stormwater," see 33 U.S.C. § 1342(p)
(emphasis added); and, two, whether the relevant discharges are
"currently [and properly] unregulated." See Environmental Defense
Center. 345 F.3d at 840, 2003 U.S. App. LEXIS 19073, *103. PALCO's
motion elides both of these threshold questions, ignoring the import of
related CWA sections and presupposing that section 402(p) applies.
Indeed, neither of section 402(p)'s threshold requirements are satisfied
To begin, PALCO errs to suggest that EPIC's complaint targets
discharges "composed entirely of stormwater."
33 U.S.C. § 1342(p) (emphasis added); see also 64 Fed. Reg. 68,781 (". . . the
authority to designate remaining unregulated discharges composed
entirely of stormwater for regulation. . . .") (emphasis added). In
relevant part, EPIC's complaint alleges that PALCO's Bear Creek drainage
system utilizes a number of "point sources" whether culverts,
drainage ditches, other conduits to discharge to redirect
stormwater and pollutants (i.e., something not "composed
entirely of stormwater") into Bear Creek. See, e.g., First Am.
Compl, at ¶¶ 38-54. Nowhere does EPIC claim that the discharges
consist "entirely" and exclusively of stormwater. On its face, then,
EPIC's complaint does not satisfy the "entirely of stormwater" element of
section 402(p)'s "general rule."*fn7
Nor does EPIC's complaint meet the requirement that the discharges be
otherwise "unregulated." In the preamble to the Phase II regulations, the
EPA noted that
EPA and authorized States continue to exercise the
authority to designate remaining unregulated
discharges composed entirely of stormwater
for regulation on a case-by-case basis. . . . In
[the Phase II rule], . . . individual instances of
stormwater discharge might
warrant special regulatory attention, but do
not fall neatly into a discrete, predetermined
64 Fed. Reg. 68,781 (emphasis added). The Ninth Circuit has adopted
this interpretation of the relevant regulations, noting that the Phase II
provisions merely "preserve [the] authority for EPA and authorized
States to designate currently unregulated stormwater
discharges." See Environmental Defense Center. 345 F.3d at 840,
2003 U.S. App. LEXIS 19073, *103. Categorization, treatment, and
permitting obligations of already regulated sources like
most "point sources" under section 502(14) remain importantly
unaltered; i.e., the Phase II regulations leave wholly unmodified the
terms of the CWA and the NPDES with regard to regulated
sources. See generally 33 U.S.C. § 1342(a) & (k); id at
§ 1311; H.R. Conf. Rep. No. 1004 at 157 ("The permit requirements of
the [CWA] respecting [regulated] stormwater discharges are not affected
by this amendment."); American Mining Congress v. E.P.A.,
965 F.2d 759, 767 (9th Cir. 1992) (noting that preexisting permit
requirements specifically for "point sources" remain
unchanged). Thus, for section 402(p) to apply to PALCO's discharge
sources, these sources must have been "unregulated" both as a
matter of time and as a matter of law at the time of the passage
of the 1987 amendments.
They were not necessarily so "unregulated." When understood properly,
the "sources" identified in EPIC's complaint were (and are) of an already
regulated kind. As this court explained in its October 14, 2003,
opinion, "point sources" are, in general, an expressly regulated category
of pollution dischargers under the CWA, typically governed by the
provisions of the NPDES. See 33 U.S.C. § 1311, 1342.
Whether related to silvicultural activity or not, "point sources"
generally "fall neatly into a discrete, predetermined category" under the
CWA. See id.: see also 64 Fed. Reg. 68,781.
They are, as such, subject to the permitting provisions of the CWA; they
are not, in short, the kind of previously "unregulated" category at issue
in the Phase II regulations.*fn8 See Environmental Defense
Center. 345 F.3d at 840, 2003 U.S. App. LEXIS 19073, *42.
In its complaint, EPIC alleges that many of the pollution sources in
the Bear Creek area are "point sources," discharging both stormwater and
pollutants into the creek itself. See First Am. Compl, ¶¶
37-62. In so doing, EPIC identifies pollution sources that were not
either before 1987 or after necessarily "unregulated."
Rather, they were (and are) "point sources" like other "point sources,"
subject to the terms of the CWA and the NPDES. See, e.g.,
33 U.S.C. § 1311, 1342. That PALCO misunderstood and apparently
continues, despite the court's October 14, 2003, opinion, to
misunderstand this point does not change the validity of this
legal conclusion or the scope and effect of section 402(p). Where PALCO's
Bear Creek runoff system utilizes the kind of conduits and channels
embraced by section 502(14), this court has noted, the pollution sources
are definitively "point sources"; EPA may not alter this categorization,
and section 122.27 does not and cannot absolve
silvicultural businesses of CWA's "point source" requirements. Nor does
The Ninth Circuit recently explained that "[p]rimary responsibility for
enforcement of the requirements of the [CWA] is vested in the
Administrator of the EPA." See Environmental Defense
Center, 345 F.3d at 840, 2003 U.S. App. LEXIS 19073, *41.
Under the express terms of the statute, this administrative
"responsibility" involves, inter alia, promulgating such
"regulations as are necessary to carry out [the] functions" of the CWA,
see 33 U.S.C. § 1361(a); these "functions" include,
notably, controlling discharges of pollutants into the navigable waters
of the United States. Id. With this goal in mind, the CWA
"renders illegal any discharge of pollutants not specifically
authorized by a permit." Environmental Defense Center. 345 F.3d
at 840, 2003 U.S. App. LEXIS 19073, *41 (emphasis added);
33 U.S.C. § 1311(a). Perhaps the Eleventh Circuit put it best:
"[T]he amended CWA absolutely prohibits the discharge of any pollutant
by any person, unless the discharge is made according to the
terms of an NPDES permit." See Driscoll v. Adams,
181 F.3d 1285, 1289 (11th Cir. 1999) (alterations omitted; third emphasis
in original); see also E.P.A. v. California ex rel.
State Water Res. Control Bd., 426 U.S. 200, 205 (1976);
NRDC v. Costle, 568 F.2d 1369, 1375-76 (D.C. Cir. 1977).
Neither section 402(p)
nor the rest of the 1987 amendments to the CWA alter this driving
CWA principle or this core statutory mission. EPIC's complaint alleges
that PALCO has discharged and continues to discharge
pollutants into Bear Creek without an accompanying NPDES permit. Just as
the language of Driscoll and Environmental Defense
Center indicate, EPIC's complaint thus states a claim for which
relief may be granted.
PALCO's motion to dismiss EPIC's remaining claims under Federal Rule of
Civil Procedure 12(b)(6) is DENIED.
IT IS SO ORDERED.