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Northwest Environmental Defense Center v. Brown

ELR Citation: 41 ELR 20178
Nos. No. 07-35266, (9th Cir., 05/17/2011) Amended decision

The Ninth Circuit, in an amended opinion, held that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. Accordingly, the court reversed a lower court decision dismissing an environmental group's claim that the Oregon forestry department and several timber companies violated the CWA when they failed to obtain NPDES permits for the stormwater runoff at issue in this case. The lower court ruled that the Silvicultural Rule, 40 C.F.R. §122.27, categorically exempts all discharges from silvicultural activities resulting from natural runoff, thus removing the discharges from the NPDES permitting process. But the 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, as is the case here. Moreover, the collected runoff constitutes a point source discharge of stormwater "associated with industrial activity" under the terms of CWA §502(14) and §402(p). An NPDES permit, therefore, was required. The court will not rehear the case.