National Forest Legal News Blog


9th Circuit Refuses Rehearing in NEDC Case

Posted by nationalforestlawblog on May 18, 2011 at 10:14 AM

Setting the stage for an appeal to the United States Supreme Court, the full 9th Circuit has denied a request for rehearing in the NEDC v. Brown.  The court's prior ruling essentially tossed out the silvicultural exemption to the CWA and held that run off from logging roads is a "point source" of pollution such that an NPDES permit is required.  This opinion from the 9th Circuit rejects Oregon and timber organizations' request for a rehearing before the full 9th Circuit. 


"We therefore hold that the 1987 amendments to the CWA do not exempt from the [national] permitting process stormwater runoff from logging roads that is collected in a system of ditches, culverts, and channels, and is then discharged into streams and rivers,...This collected runoff constitutes a point source discharge of stormwater 'associated with industrial activity...'" 


Interestingly, no judge within the 9th Circuit requested that it be re-heard.  That leads me to believe that even the conservative wing of the court believes that the decision is sound.  I'm just speculating though.  The conservatives could also realize that this is headed to the Supreme Court and a rehearing is nothing more than a waste of everyone's time.   

*Editorial.  This type of runoff is a drop in the bucket when it comes to water pollution.  In my city, Milwaukee, the sewarage district continually discharges billions of gallons of raw and partially treated sewage directly into Lake Michigan (see below).  Neither the feds nor environmentals say or do anything about such massive pollution, but when a farmer allows runoff from his fields into a culvert, the environmentals are all over it.  My question is why?

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1 Comment

Reply John Persell
04:37 PM on July 11, 2011 
Different conservation groups have different missions based on their members' interests and values, as well as geographic focuses. The plaintiff group in NEDC v. Brown sought less runoff into habitat for ESA-listed and other at-risk salmonid species in the Oregon Coast Range. If you have concerns regarding the discharge of sewage into Lake Michigan, have you contacted any local or regional groups about it? Have you considered forming your own group to seek enforcement of existing laws and regulations in this area or the creation of new protective measures?