Natural Resources Defense Council v. EPA

279 F.3d 1180 (9th Cir. 2002)


Logs cut in Alaska are tied together and transported by river. Where the logs are placed into the water, the logs rub against each other and sometimes against the bottom of the body of water. This causes bark and woody debris to be rubbed or broken off and released into the water. Bark and woody debris remain in the water and do not decay for many years. In areas where the water lacks strong currents or where high amounts of bark and woody debris enter the water, the bark and woody debris can accumulate into significant concentrations. These accumulations of bark and woody debris create problems for marine life and worsen the quality of the water. D identified this as a pollutant. D required new LTFs to obtain permits before discharging bark and woody debris. Eventually D came to the conclusion that the pre-1985 permits did not comply with the CWA. D proposed to modify all pre-1985 permits for LTFs in Alaska. D issued for comment a draft general permit. D also noted that Alaska proposed to allow a one-acre zone of deposit for bark and woody debris, defined by accumulations of 100 percent cover that exceed four inches' depth at any point, and to allow patchy distribution of bark beyond the one-acre zone of deposit. D sought certification from Alaska before it finalized the proposed general permit for LTFs in Alaska. D noted that 'persons wishing to comment on State Certification should submit written comments within this public notice period to ADEC.' In its final draft certification, ADEC placed no specific size limit on zones of deposit. It authorized each LTF's zone to be its 'project area,' or the entire area of water covered by its operations. D responded that this change made the requirements less stringent than they previously had been and thus did not comply with applicable antidegradation laws, which prohibit changes that degrade, rather than improve, water quality. ADEC replied that the one-acre limit did not accurately reflect what had occurred in the past. ADEC stated that the one-acre limit was impracticable in a general permit as compared to individual permits; and that other changes in the definition of zones of deposit made the proposal as effective, if not more effective, in maintaining water quality. D accepted ADEC's certification and eventually issued permits. Under the APA, D must provide the public with notice, and an opportunity to comment before it issues NPDES permits with such notice sufficient to fairly apprise interested persons of the subjects and issues before the Agency.