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ENVIRONMENTAL PROTECTION INF. CTR. v. PACIFIC LUMBER CO.

January 23, 2004.

ENVIRONMENTAL PROTECTION INFORMATION CENTER, a non-profit corporation, Plaintiff,
v.
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

Order 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 Administrator.*fn1 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 Page 2 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.

 BACKGROUND*fn2

  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 for logging.*fn3

  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 Page 3 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 Creek.

  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 Page 4 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 authorized.*fn4

  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 Page 5

  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 ...


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