## Facts

- EPA issued two general NPDES permits for Alaska log transfer facilities authorizing discharges of bark and woody debris into marine waters.
- General NPDES permits are issued for a class of dischargers and proceed through rulemaking-style procedures with public notice and comment.
- In the proposal, EPA described permit conditions tied to Alaska’s then-existing “zone of deposit” concept, which contemplated a relatively limited area where debris could accumulate.
- Before EPA finalized the permits, Alaska amended its “zone of deposit” definition to allow the entire log transfer facility project area to qualify as the zone of deposit.
- EPA’s final permits incorporated Alaska’s broadened definition without issuing a revised notice or otherwise providing a focused opportunity for public comment on the change or its compliance with governing requirements.
- Environmental and community groups petitioned for direct review, arguing the final permits materially differed from the proposed permits without adequate notice and opportunity to comment.

## Issues

1. Whether EPA violated APA and Clean Water Act public-participation requirements by finalizing general NPDES permits that relied on Alaska’s newly expanded “zone of deposit” definition without additional notice and comment.
2. Whether the final permits’ adoption of the “entire project area” zone of deposit was a “logical outgrowth” of EPA’s proposed permits and supporting notice.
3. Whether EPA could treat Alaska’s post-notice regulatory change as eliminating the need for federal notice and comment on the resulting federal permit conditions.

## Decision

- The Ninth Circuit granted the petition for review in part and remanded.
- The court held EPA failed to provide adequate notice and opportunity for comment regarding the final permits’ incorporation of Alaska’s expanded zone-of-deposit definition.
- The court concluded the final permits were not a logical outgrowth of the proposal because interested parties would not reasonably have anticipated the shift to allowing the entire project area as the zone of deposit.
- The court rejected EPA’s position that reliance on Alaska’s authority over water quality standards excused EPA from federal notice-and-comment obligations for EPA-issued general permits.

## Legal Principles

- Under the APA, notice must fairly apprise interested persons of the subjects and issues so they can submit meaningful comments.
- A final rule (including a general NPDES permit issued through rulemaking procedures) must be a “logical outgrowth” of the proposed rule; otherwise, the agency must provide additional notice and comment.
- A substantial change in a permitting regime—such as expanding the allowable deposition area from a limited zone to an entire project area—generally requires renewed public participation when not foreshadowed in the proposal.
- EPA cannot avoid federal notice-and-comment requirements by adopting a material post-notice state regulatory change that significantly alters the content or operation of a federal permitting action.

## Conclusion

The Ninth Circuit held that EPA’s final general NPDES permits for Alaska log transfer facilities were procedurally defective because EPA adopted Alaska’s expanded “zone of deposit” definition without adequate notice and opportunity for public comment, and the change was not a logical outgrowth of the proposed permits.


Nat. Res. Def. Council v. U.S. EPA, 279 F.3d 1180 (9th Cir. 2002)