1

No. 14-80184

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ENVIRONMENTAL DEFENSE CENTER & NATURAL

RESOURCES DEFENSE COUNCIL, INC.

ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

JOINT MOTION FOR ENTRY OF ORDER

Petitioners Environmental Defense Center (“EDC”) and Natural

Resources Defense Council (“NRDC”), and Respondent United States

Environmental Protection Agency (“EPA”) jointly move the Court to enter the 

concurrently filed Proposed Order, which resolves the merits of this case. The 

parties have reached a settlement agreement that they believe leads to a fair 

and efficient resolution of this case. That agreement requires the parties to 

move the Court to enter the Proposed Order and gives Petitioners the right to 

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withdraw from the settlement agreement if the Court does not enter the order 

within 45 days. Furthermore, EPA’s response in this case is due on August 28, 

2015. Accordingly, the parties respectfully request that the Court enter the 

Proposed Order as soon as possible. 

BACKGROUND

This proceeding is on a petition for writ of mandamus brought by

Petitioners EDC and NRDC in connection with the Court’s order in 

Environmental Defense Center, Inc. v. United States Environmental Protection 

Agency (“EDC v. EPA”), 344 F.3d 832 (9th Cir. 2003). In EDC v. EPA, the Court 

vacated and remanded to EPA certain aspects of the “Phase II” stormwater 

rule, promulgated pursuant to section 402(p) of the Clean Water Act, 33 U.S.C. 

§ 1342(p). Under that section, Congress required EPA to regulate stormwater 

discharges associated with industrial activity and “large” municipal separate 

storm sewer systems (“MS4s”) (those serving populations of more than 

250,000) by 1989, and to regulate stormwater discharges from “medium” 

MS4s (those serving populations between 100,000 and 250,000) by 1991. Id.

§ 1342(p)(2), (4). Congress also required EPA to conduct a study to identify 

unregulated stormwater discharges and the nature and extent of pollutants in 

such discharges, and to designate sources to be regulated to protect water 

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quality based on the study and in consultation with state and local officials by 

October 1, 1993. Id. § 1342(p)(5)-(6).

In 1990, EPA issued regulations regarding National Pollutant 

Elimination Discharge System (“NPDES”) permit requirements for stormwater 

discharges associated with industrial activity, and from large and medium 

MS4s, as the “Phase I” stormwater regulations. 55 Fed. Reg. 47,990 (Nov. 16, 

1990). EPA issued the “Phase II” stormwater regulations on December 8, 

1999. 64 Fed. Reg. 68,722 (Dec. 8, 1999). The Phase II rule expanded the 

NPDES permit program to include discharges from smaller MS4s in urbanized 

areas and construction sites that disturb between one and five acres of land. 

Among other things, the Phase II rule allowed permitting authorities to issue 

“general permit[s]” for small MS4 stormwater discharges, and included 

requirements for regulated MS4s submitting a “Notice of Intent” (“NOI”) to be 

regulated under the general permit. 40 C.F.R. § 122.33(b). The Phase II rule 

did not address whether or how stormwater discharges related to forest 

roads should be regulated pursuant to Clean Water Act section 402(p)(6), 

33 U.S.C. § 1342(p)(6).

A number of petitions for review of the Phase II regulations were filed, 

including three consolidated before this Court in EDC v. EPA. The Court 

rendered a decision on September 15, 2003, denying the petitions with 

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certain exceptions. 344 F.3d at 840. The Court granted the petition filed by 

EDC and NRDC, stating:

We conclude that the EPA’s failure to require review of NOIs, 

which are the functional equivalents of permits under the Phase II 

General Permit option, and its failure to make NOIs available to 

the public or subject to public hearings contravene the express 

requirements of the Clean Water Act. We therefore remand these 

aspects of the Small MS4 General Permit option so that EPA may 

take appropriate action to comply with the Clean Water Act. We 

also remand so that EPA may consider in an appropriate 

proceeding the Environmental Petitioners’ contention that 

§ 402(p)(6) requires EPA to regulate forest roads.

Id. at 879. Specifically, on the MS4 issue, the Court held: 

In sum, we conclude that EPA’s failure to require review of NOIs, 

which are the functional equivalents of permits under the Phase II 

General Permit option, and EPA's failure to make NOIs available to 

the public or subject to public hearings contravene the express 

requirements of the Clean Water Act. We therefore vacate those 

portions of the Phase II Rule that address these procedural issues 

relating to the issuance of NOIs under the Small MS4 General 

Permit option, and remand so that EPA may take appropriate 

action to comply with the Clean Water Act.

Id. at 858. On the forest roads issue, the Court held: 

[W]e remand this issue to the EPA, so that it may consider in an 

appropriate proceeding Petitioners’ contention that § 402(p)(6) 

requires EPA to regulate forest roads. EPA may then either accept 

Petitioners' arguments in whole or in part, or reject them on the 

basis of valid reasons that are adequately set forth to permit 

judicial review.

Id. at 863.

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While EPA has issued guidance regarding the effect of the Court’s 2003 

decision with respect to MS4 general permits and recommendations for 

implementing that portion of the decision, it has not yet proposed or finalized 

revised regulations on remand relating to small MS4 general permits. Certain 

states with approved NPDES permit programs have adopted procedures 

regarding coverage under general permits for small MS4 stormwater 

discharges based upon those portions of the Phase II rule vacated by the Court 

in EDC v. EPA. EPA also has not yet made a formal determination regarding 

whether forest road stormwater discharges are required to be regulated 

pursuant to Clean Water Act section 402(p)(6), 33 U.S.C. § 1342(p)(6). 

On December 18, 2014, EDC and NRDC filed the Petition for a Writ of 

Mandamus in this case. ECF No. 1-2. Petitioners asked the Court to order the 

following: (1) that EPA issue a proposed rule regarding the MS4 portion of the 

remand within six months, and issue a final rule within six months of the 

proposal; (2) that EPA immediately revise the Phase II rule to direct 

permitting authorities to comply with the EDC v. EPA decision pending further 

rulemaking; (3) that EPA issue a judicially reviewable decision within six 

months on whether it will regulate forest roads under section 402(p)(6); and 

(4) that if EPA decides to regulate forest roads, it be required to propose a rule 

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to implement that decision within one year after the decision and to issue a 

final rule within a year after the proposal. ECF No. 1-2 at 21-22.

On April 15, 2015, the Court ordered EPA to file a response to the 

Petition by May 13, 2015. ECF No. 11 at 2. Based upon settlement 

negotiations then in progress, the parties filed, and the Court granted, various 

motions extending the deadline for EPA’s response until August 28, 2015. See

ECF Nos. 17, 19, 24, 26.

ARGUMENT

The parties respectfully request that the Court enter the Proposed 

Order, which resolves the merits of this case. On August 26, 2015, the parties 

signed a settlement agreement that requires EPA to meet certain deadlines for 

compliance with the Court’s 2003 order in EDC v. EPA. The settlement 

agreement, which is attached to this motion as Exhibit 1, provides that the 

parties will jointly move the Court to issue the Proposed Order. Exhibit 1 ¶ 6. 

Petitioners have the right to withdraw from the settlement agreement if the 

Court denies this motion or does not rule on the motion within 45 days. Id.

¶ 7. Additionally, EPA’s response to the Petition is due on August 28, 2015. 

ECF No. 26. Therefore, the parties ask that the Court enter the Proposed 

Order as soon as possible to relieve EPA from its briefing deadline and to 

provide certainty to the parties. 

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The terms of the settlement agreement are just, and the entry of the 

Proposed Order will allow this Court to resolve this case in an efficient 

manner. The Court’s 2003 order in EDC v. EPA remanded two aspects of the 

rule to EPA: those relating to small MS4 general permits (the “MS4 Issues”), 

and those relating to whether the Clean Water Act requires that stormwater 

discharges from forest roads be regulated (the “Forest Road Issue”). 344 F.3d 

at 858, 863, 879; see also Proposed Order ¶ 1. The Proposed Order sets 

deadlines for EPA to act on both of these issues. First, it requires EPA to issue 

a proposed rule on the MS4 Issues by December 17, 2015, and a final rule on 

the MS4 Issues by November 17, 2016. Proposed Order ¶¶ 2, 3. Second, it

requires EPA to issue, by May 26, 2016, a determination to comply with the 

Court’s order regarding the Forest Road Issue. Id. ¶ 4. It is appropriate for the 

Court to enter a deadline for a delayed rulemaking. See In re Pesticide Action 

Network N. Am., No. 14-72794, 2015 WL 4718867, at *5 (9th Cir. Aug. 10, 

2015); In re People’s Mojahedin Org. of Iran, 680 F.3d 832, 833 (D.C. Cir. 2012); 

In re Core Commc’ns, Inc., 531 F.3d 849, 861-62 (D.C. Cir. 2008).

The Proposed Order also requires EPA to regularly inform the Court of 

the status of this case. EPA must notify the Court within five business days of 

taking the actions described above. Proposed Order ¶¶ 2, 3, 4. Furthermore, 

EPA must file reports on the status of its compliance with the order every 120 

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days. Id. ¶ 5. The Proposed Order allows the parties to extend these deadlines 

by agreement. Id. ¶ 6. In the event that the parties cannot agree to the terms 

of a requested extension, the Proposed Order allows a party, after meeting 

and conferring, to move this Court for relief. Id.

Finally, the Proposed Order provides that the Court will retain

jurisdiction over this case until EPA complies with the deadlines in the order

and to hear any motion for litigation costs, including attorneys’ fees, filed by 

Petitioners within 90 days of entry of the order. Id. ¶ 7. 

CONCLUSION

The parties believe the Proposed Order sets forth a fair and efficient 

procedure for resolving this action. Therefore, the parties respectfully 

request that the Court enter the Proposed Order as soon as possible. 

Respectfully submitted,

FOR PETITIONERS:

Dated: August 26, 2015 /s/ Jaclyn H. Prange

JACLYN H. PRANGE

MICHAEL E. WALL

Natural Resources Defense Council

111 Sutter Street, 20th Floor

San Francisco, CA 94104

(415) 875-6100

jprange@nrdc.org

mwall@nrdc.org

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Dated: August 26, 2015 /s/ Margaret Morgan Hall

MARGARET MORGAN HALL

Environmental Defense Center

906 Garden Street

Santa Barbara, CA 93101

(805) 963-1622

mhall@environmentaldefensecenter.org

FOR RESPONDENT EPA:

JOHN C. CRUDEN

Assistant Attorney General

Environment and Natural Resources 

Division

Dated: August 26, 2015 By: /s/ Daniel Pinkston

Senior Trial Attorney

Environmental Defense Section

Environment and Natural Resources

Division

999 18th Street, South Terrace, Suite 370

Denver, CO 80202

(303) 844-1804

daniel.pinkston@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of 

the Court of Appeals for the Ninth Circuit by using the appellate CM/ECF 

system on August 26, 2015.

I certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the appellate CM/ECF system.

/s/ Jaclyn H. Prange

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EXHIBIT 1

(Settlement Agreement)

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No. 14-80184

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________________________________________________________________

IN RE ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES

DEFENSE COUNCIL, INC.

ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is entered into by 

Environmental Defense Center (“EDC”) and Natural Resources Defense 

Council (“NRDC”), Petitioners in In re Environmental Defense Center, et al. v. 

U.S. Environmental Protection Agency, No. 14-80184 (9th Cir.) (“In re EDC & 

NRDC”), and the United States Environmental Protection Agency (“EPA”), 

Respondent in In re EDC & NRDC, and is intended to resolve the “Petition for 

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Writ of Mandamus” (“Mandamus Pet.”) filed by EDC and NRDC on December 

18, 2014.

RECITALS

A. Pursuant to section 301(a) of the Clean Water Act (“CWA”), 33 

U.S.C. § 1311(a), “the discharge of any pollutant by any person shall be 

unlawful” except in compliance with, among other provisions, CWA section 

402, 33 U.S.C. § 1342. 

B. “Municipal and industrial stormwater discharges” are regulated 

pursuant to Section 402(p) of the Clean Water Act (“CWA”), 33 U.S.C. 

§ 1342(p). 

C. The term “municipal separate storm sewer” is defined as follows:

(8) Municipal separate storm sewer means a conveyance or 

system of conveyances (including roads with drainage systems, 

municipal streets, catch basins, curbs, gutters, ditches, man-made 

channels, or storm drains):

(i) Owned or operated by a State, city, town, borough, 

county, parish, district, association, or other public body (created 

by or pursuant to State law) having jurisdiction over disposal of 

sewage, industrial wastes, storm water, or other wastes, including 

special districts under State law such as a sewer district, flood 

control district or drainage district, or similar entity, or an Indian 

tribe or an authorized Indian tribal organization, or a designated 

and approved management agency under section 208 of the 

[Clean Water Act] that discharges to waters of the United States;

(ii) Designated or used for collecting or conveying storm 

water; 

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(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment 

Works (POTW) as defined at 40 CFR 122.2.

40 C.F.R. § 122.26(b)(8).

D. Congress required EPA to regulate stormwater discharges 

associated with industrial activity and “large” municipal separate storm 

sewer systems (“MS4s”) (those serving populations of more than 

250,000) by 1989, and to regulate stormwater discharges from 

“medium” MS4s (those serving populations between 100,000 and 

250,000) by 1991. 33 U.S.C. § 1342(p)(4). In 1990, EPA issued 

regulations regarding National Pollutant Elimination Discharge System 

(“NPDES”) permit requirements for stormwater discharges “associated 

with industrial activity,” and from large and medium MS4s, as the 

“Phase I” stormwater regulations. 55 Fed. Reg. 47,990 (Nov. 16, 1990). 

E. Congress required EPA to conduct a study to identify 

unregulated stormwater discharges and the nature and extent of 

pollutants in such discharges, and to designate sources to be regulated

to protect water quality based on the study and in consultation with 

State and local officials by October 1, 1993. 33 U.S.C. § 1342(p)(5)-(6). 

EPA issued the “Phase II” stormwater regulations on December 8, 1999. 

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64 Fed. Reg. 68,722. The Phase II rule expanded the permit program to 

include discharges from smaller MS4s in urbanized areas and 

construction sites that disturb between one and five acres of land. 

Among other things, the Phase II rule allowed permitting authorities to 

issue “general permits” for small MS4 stormwater discharges, and 

included requirements for regulated MS4s submitting a “notice of 

intent” (“NOI”) to be regulated under the general permit. 40 C.F.R. 

§ 122.33(b). The Phase II rule did not address whether or how 

stormwater discharges related to forest roads should be regulated 

pursuant to CWA section 402(p)(6), 33 U.S.C. § 1342(p)(6).

F. A number of petitions for review of the Phase II regulations 

were filed, including three consolidated before the Ninth Circuit Court of 

Appeals in Environmental Defense Center, Inc. v. United States 

Environmental Protection Agency (Nos. 00-70014, 00-70734, and 00-

70822) (“EDC v. EPA”). The Court rendered a decision on September 15, 

2003, 344 F.3d 832, denying the petitions with certain exceptions. The 

Court granted the petition filed by EDC and NRDC, stating that

We conclude that the EPA’s failure to require review of 

NOIs, which are the functional equivalents of permits under 

the Phase II General Permit option, and its failure to make 

NOIs available to the public or subject to public hearings 

contravene the express requirements of the Clean Water 

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Act. We therefore remand these aspects of the Small MS4 

General Permit option so that EPA may take appropriate 

action to comply with the Clean Water Act. We also remand 

so that EPA may consider in an appropriate proceeding the 

Environmental Petitioners’ contention that 402(p)(6) 

requires EPA to regulate forest roads.

344 F.3d at 879. Specifically, on the MS4 issue, the Court held: 

In sum, we conclude that EPA’s failure to require review of 

NOIs, which are the functional equivalents of permits under 

the Phase II General Permit option, and EPA's failure to 

make NOIs available to the public or subject to public 

hearings contravene the express requirements of the Clean 

Water Act. We therefore vacate those portions of the Phase 

II Rule that address these procedural issues relating to the 

issuance of NOIs under the Small MS4 General Permit 

option, and remand so that EPA may take appropriate 

action to comply with the Clean Water Act.

Id. at 858. On the forest roads issue, the Court held: 

[W]e remand this issue to the EPA, so that it may consider 

in an appropriate proceeding Petitioners’ contention that 

§ 402(p)(6) requires EPA to regulate forest roads. EPA may 

then either accept Petitioners' arguments in whole or in

part, or reject them on the basis of valid reasons that are 

adequately set forth to permit judicial review.

Id. at 863.

G. While EPA has issued guidance regarding the effect of the Court’s 

2003 decision with respect to MS4 general permits and recommendations for 

implementing that portion of the decision, it has not yet proposed or finalized 

revised regulations on remand relating to small MS4 general permits. Certain 

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States with approved NPDES permit programs have adopted procedures 

regarding coverage under general permits for small MS4 stormwater 

discharges based upon those portions of the Phase II rule vacated by the Court 

in EDC v. EPA. 

H. EPA has not yet made a formal determination regarding whether 

forest road stormwater discharges are required to be regulated pursuant to 

CWA section 402(p)(6), 33 U.S.C. § 1342(p)(6). In November 2015, EPA 

intends to publish a notice in the Federal Register seeking public comment 

and additional information on the effectiveness of existing federal and State 

regulatory and non-regulatory programs as well as private third-party 

certification programs.

I. On December 18, 2014, EDC and NRDC filed the Petition for a Writ 

of Mandamus. They seek the issuance of a writ of mandamus, and request the 

Court to order the following: (1) that EPA issue a proposed rule regarding the 

MS4 portion of the remand within six months, and issue a final rule within six 

months of the proposal; (2) that EPA immediately revise the Phase II rule to 

direct permitting authorities to comply with the EDC decision pending further 

rulemaking; (3) that EPA issue a judicially reviewable decision within six 

months on whether it will regulate forest roads under section 402(p)(6); and 

(4) that if EPA decides to regulate forest roads, it be required to propose a rule 

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to implement that decision within one year after the decision and to issue a 

final rule within a year after the proposal. Mandamus Pet. at 20-22.

J. Through this Agreement, the Parties wish to resolve the issues 

presented in the Petition for Writ of Mandamus. The Parties have negotiated 

this Agreement in good faith. If approved and implemented as set forth 

herein, and upon entry by the Court of an order in the form attached as 

Exhibit A, this Agreement will resolve all issues presented in the Petition for 

Writ of Mandamus.

AGREEMENT

1. For the purposes of this Agreement, the term “MS4 Issues” shall 

mean those matters identified by the Court in the EDC v. EPA opinion as 

grounds for its vacating and remanding portions of the Phase II rule relating 

to MS4 general permits, and “Forest Roads Issue” shall mean the Court’s 

direction that EPA consider and decide in an appropriate proceeding that 

allows for judicial review whether CWA section 402(p)(6), 33 U.S.C. 

§ 1342(p)(6), requires that stormwater discharges from forest roads be 

regulated. 

2. MS4 Issues

a. On or before December 17, 2015, EPA shall sign for 

publication in the Federal Register a notice of proposed rulemaking to 

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respond to the Court’s vacatur and remand regarding the MS4 Issues. EPA 

shall promptly transmit the notice of proposed rulemaking to the Office of the 

Federal Register, and shall notify the Court of the signature within five 

business days of the date of signature.

b. On or before November 17, 2016, EPA shall sign for 

publication a final rule regarding the MS4 Issues, to fully comply with the 

Court’s vacatur and remand regarding the MS4 Issues. EPA shall promptly 

transmit the final rule to the Office of the Federal Register for publication, and 

shall notify the Court of the signature within five business days of the date of 

signature.

3. Forest Roads Issue

On or before May 26, 2016, EPA shall sign for publication a notice 

setting forth EPA’s determination as to whether stormwater discharges from 

forest roads are required to be regulated pursuant to Clean Water Act section 

402(p)(6), 33 U.S.C. § 1342(p)(6), to fully comply with the Court’s remand 

regarding the Forest Road Issue. EPA shall promptly transmit the 

determination to the Office for the Federal Register for publication, and shall 

notify the Court of the signature within five business days of the date of 

signature. 

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4. No later than 120 days from the date of entry of the order 

described at Paragraph 6, and at 120-day intervals thereafter, EPA shall file in 

the Court reports on the status of EPA’s progress towards compliance with the 

order and implementation of the actions in paragraphs 2 and 3.

5. The Parties to this Agreement may extend the dates set forth in 

Paragraphs 2 through 4, or otherwise modify this Agreement, by written 

stipulation executed by counsel for the Parties and filed with the Court. 

Neither EDC nor NRDC shall unreasonably refuse to consent to one extension 

of no more than seven calendar days for each deadline. In the event that the 

parties cannot agree to the terms of a requested extension, any party may, 

after meeting and conferring, move the Court for relief. 

6. No later than five business days from the date that the last Party 

to this Agreement executes the Agreement, the Parties will jointly move the 

Court to issue an order that requires EPA to meet each of the deadlines set out 

in Paragraphs 2 through 4 and retains jurisdiction over the case to enforce 

that order. In addition, the Parties will request that the order also contain a 

provision providing that the Parties may extend the date set forth in the 

Court's order pursuant to Paragraph 5 of this Agreement. A copy of the order 

that the Parties will jointly move the Court to issue is attached as Exhibit A to 

this agreement.

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7. EDC and NRDC shall have the right to withdraw from this 

Agreement and reinstate their Petition for Writ of Mandamus if (a) the Court 

denies the joint motion filed in accordance with Paragraph 6, or (b) does not 

rule on the joint motion within 45 days of the filing of the joint motion.

8. No provision of this Agreement shall be interpreted as or 

constitute a commitment or requirement that the United States or any of its 

departments or agencies obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341 et seq., or in violation of any other statute, law, 

or regulation. In the event of a shutdown of EPA due to a lack of appropriated 

funds, the deadlines set forth in Paragraph 2 through 4 will be extended by 

one day for each day the shutdown continues.

9. Nothing in the terms of this Agreement shall be construed to limit 

or modify any discretion accorded to EPA by the Clean Water Act or by 

general principles of administrative law in taking the actions referred to in 

Paragraphs 2 and 3 above. EPA's obligation to perform the actions specified 

in Paragraphs 2 and 3 of this Agreement, by the dates specified therein, does 

not constitute a limitation or modification of EPA's discretion within the 

meaning of this Paragraph. Nothing in this Agreement is intended to limit or 

modify the EDC v. EPA Court’s opinion.

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10. Except as expressly provided in this Agreement, none of the 

Parties hereto waives or relinquishes any legal rights, claims, or defenses they 

may have in this proceeding. 

11. All notices and other communications required to be given in this 

Agreement shall be provided to the following:

For EDC:

Margaret Morgan Hall

mhall@environmentaldefensecenter.org

(805) 963-1622

Brian P. Segee

bsegee@environmentaldefensecenter.org

(805) 640-1832

For NRDC:

Jaclyn H. Prange

jprange@nrdc.org

Michael E. Wall

mwall@nrdc.org

(415) 875-6100 

For EPA:

Sylvia Horwitz

EPA Office of General Counsel

horwitz.sylvia@epa.gov

(202) 564-5511

Daniel Pinkston

U.S. Department of Justice

daniel.pinkston@usdoj.gov

(303) 844-1804

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EXHIBIT A

(Proposed Order)

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No. 14-80184

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ENVIRONMENTAL DEFENSE CENTER & NATURAL

RESOURCES DEFENSE COUNCIL, INC.

ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

[PROPOSED] ORDER

Upon consideration of the parties’ joint motion for entry of order, it is 

ORDERED that the motion be granted. It is further ORDERED that:

(1) For the purposes of this Order, the term “MS4 Issues” shall mean 

those matters identified by the Court in its 2003 opinion in

Environmental Defense Center, Inc. v. U.S. Environmental Protection 

Agency (EDC v. EPA), 344 F.3d 832 (9th Cir. 2003), as grounds for 

vacating and remanding portions of the Phase II rule relating to 

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municipal separate storm sewer system (MS4) general permits. 344 

F.3d at 832, 858, 879. “Forest Road Issue” shall mean the Court’s 

direction in EDC v. EPA that the U.S. Environmental Protection 

Agency (EPA) consider and decide in an appropriate proceeding that 

allows for judicial review whether Clean Water Act section 

402(p)(6), 33 U.S.C. § 1342(p)(6), requires that stormwater 

discharges from forest roads be regulated. 344 F.3d at 863, 879. 

(2) On or before December 17, 2015, EPA shall sign for publication in the 

Federal Register a notice of proposed rulemaking to respond to the 

Court’s vacatur and remand regarding the MS4 Issues. EPA shall 

promptly transmit the notice of proposed rulemaking to the Office of 

the Federal Register, and shall notify the Court of the signature 

within five business days of the date of signature.

(3) On or before November 17, 2016, EPA shall sign for publication a 

final rule regarding the MS4 Issues, to fully comply with the Court’s

vacatur and remand regarding the MS4 Issues. EPA shall promptly 

transmit the final rule to the Office of the Federal Register for 

publication, and shall notify the Court of the signature within five 

business days of the date of signature.

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(4) On or before May 26, 2016, EPA shall sign for publication a notice 

setting forth EPA’s determination as to whether stormwater 

discharges from forest roads are required to be regulated pursuant 

to Clean Water Act section 402(p)(6), 33 U.S.C. § 1342(p)(6), to fully 

comply with the Court’s remand regarding the Forest Road Issue. 

EPA shall promptly transmit the determination to the Office for the 

Federal Register for publication, and shall notify the Court of the 

signature within five business days of the date of signature.

(5) No later than 120 days from the date of this Order, and at 120-day 

intervals thereafter, EPA shall file in this Court reports on the status 

of EPA’s progress towards compliance with this Order and 

implementation of the actions in paragraphs 2 through 4.

(6) The parties may extend the deadlines set forth in paragraphs 2 

through 5 by written stipulation executed by counsel for the parties 

and filed with the Court. Neither EDC nor NRDC shall unreasonably 

refuse to consent to one extension of each deadline of no more than 

seven calendar days. In the event that the parties cannot agree to the 

terms of a requested extension, any party may, after meeting and 

conferring, move this Court for relief. 

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(7) The Court shall retain jurisdiction over this case to enforce this Order 

until EPA complies with the deadlines in paragraphs 2 through 5, and 

to hear any motion for litigation costs, including attorneys’ fees, by 

EDC and/or NRDC. Any deadline imposed by Ninth Circuit Rule 39-

1.6, or by any other rule or provision of law, for seeking fees and 

costs is extended until 90 days after the entry of this Order. 

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No. 14-80184

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ENVIRONMENTAL DEFENSE CENTER & NATURAL

RESOURCES DEFENSE COUNCIL, INC.

ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

[PROPOSED] ORDER

Upon consideration of the parties’ joint motion for entry of order, it is 

ORDERED that the motion be granted. It is further ORDERED that:

(1) For the purposes of this Order, the term “MS4 Issues” shall mean 

those matters identified by the Court in its 2003 opinion in

Environmental Defense Center, Inc. v. U.S. Environmental Protection 

Agency (EDC v. EPA), 344 F.3d 832 (9th Cir. 2003), as grounds for 

vacating and remanding portions of the Phase II rule relating to 

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municipal separate storm sewer system (MS4) general permits. 344 

F.3d at 832, 858, 879. “Forest Road Issue” shall mean the Court’s 

direction in EDC v. EPA that the U.S. Environmental Protection 

Agency (EPA) consider and decide in an appropriate proceeding that 

allows for judicial review whether Clean Water Act section 

402(p)(6), 33 U.S.C. § 1342(p)(6), requires that stormwater 

discharges from forest roads be regulated. 344 F.3d at 863, 879. 

(2) On or before December 17, 2015, EPA shall sign for publication in the 

Federal Register a notice of proposed rulemaking to respond to the 

Court’s vacatur and remand regarding the MS4 Issues. EPA shall 

promptly transmit the notice of proposed rulemaking to the Office of 

the Federal Register, and shall notify the Court of the signature 

within five business days of the date of signature.

(3) On or before November 17, 2016, EPA shall sign for publication a 

final rule regarding the MS4 Issues, to fully comply with the Court’s

vacatur and remand regarding the MS4 Issues. EPA shall promptly 

transmit the final rule to the Office of the Federal Register for 

publication, and shall notify the Court of the signature within five 

business days of the date of signature.

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(4) On or before May 26, 2016, EPA shall sign for publication a notice 

setting forth EPA’s determination as to whether stormwater 

discharges from forest roads are required to be regulated pursuant 

to Clean Water Act section 402(p)(6), 33 U.S.C. § 1342(p)(6), to fully 

comply with the Court’s remand regarding the Forest Road Issue. 

EPA shall promptly transmit the determination to the Office for the 

Federal Register for publication, and shall notify the Court of the 

signature within five business days of the date of signature.

(5) No later than 120 days from the date of this Order, and at 120-day 

intervals thereafter, EPA shall file in this Court reports on the status 

of EPA’s progress towards compliance with this Order and 

implementation of the actions in paragraphs 2 through 4.

(6) The parties may extend the deadlines set forth in paragraphs 2 

through 5 by written stipulation executed by counsel for the parties 

and filed with the Court. Neither EDC nor NRDC shall unreasonably 

refuse to consent to one extension of each deadline of no more than 

seven calendar days. In the event that the parties cannot agree to the 

terms of a requested extension, any party may, after meeting and 

conferring, move this Court for relief. 

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(7) The Court shall retain jurisdiction over this case to enforce this Order 

until EPA complies with the deadlines in paragraphs 2 through 5, and 

to hear any motion for litigation costs, including attorneys’ fees, by 

EDC and/or NRDC. Any deadline imposed by Ninth Circuit Rule 39-

1.6, or by any other rule or provision of law, for seeking fees and 

costs is extended until 90 days after the entry of this Order. 

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of 

the Court of Appeals for the Ninth Circuit by using the appellate CM/ECF 

system on August 26, 2015.

I certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the appellate CM/ECF system.

/s/ Jaclyn H. Prange

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