Ninth Circuit Denies Rehearing In NEDC v. Brown

Overview

Last August in Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176, the U.S. Court of Appeals for the Ninth Circuit severely limited the application of the Environmental Protection Agency's ("EPA") Silviculture Rule, 40 C.F.R. § 122.27. See previously published Perkins Coie Client Update. On May 17, 2011, the court denied a petition for rehearing and rehearing en banc, leaving its prior construction of the Rule in place.

The Silviculture Rule exempted from the National Pollution Discharge Elimination System's (NPDES) permitting requirements certain "point source" silviculture (forestry) 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." Under the Rule, the EPA did not require permitting for discharges of pollutants