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.
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 ...