COURT INFORMATION: U.S. Court of Appeals for the Ninth Circuit, No. 07-35266; U.S. District Court of Oregon, No. 06-1270

CLIENT:  Northwest Environmental Defense Center (NEDC)

DEFENDANTS:  Marvin Brown, Oregon State Forester; Stephen Hobbs, Barbara Craig, Diane Snyder, Larry Giustina, Chris Heffernan, William Hutchinson, and Jennifer Phillippi, members of the Oregon Board of Forestry; Hampton Tree Farms, Inc.; Stimson Lumber Company; Georgia-Pacific West, Inc.; and Swanson Group, Inc.

DEFENDANT-INTERVENORS:  Oregon Forest Industries Council; American Forest and Paper Association; and Tillamook County

STATUS:  In a unanimous opinion issued August 17, 2010, the Ninth Circuit Court of Appeals ruled that polluted run-off from logging roads is subject to regulation under the Clean Water Act.  Learn more about this landmark decision here.  On May 17, 2011 the U.S. Court of Appeals for the Ninth Circuit issued an order and opinion denying the petitions for rehearing and rehearing en banc.  In mid-September 2011, both the timber industry and the State of Oregon filed petitions for certiorari requesting that the Supreme Court review the case.  Opposition brief papers are due in mid-November.

LEGAL ISSUE:  NEDC alleges that the defendants are discharging polluted industrial stormwater from pipes, ditches, and channels along logging roads in the Tillamook State Forest, and that those discharges are unlawful because they are not authorized by Clean Water Act NPDES permits.

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CASE UPDATE:

On May 17, 2011 the U.S. Court of Appeals for the Ninth Circuit issued an order and opinion denying the petitions for rehearing and rehearing en banc in Northwest Environmental Defense Center v. Brown, et al.  The Court denied the defendants' requests to reconsider its August 2010 decision requiring Clean Water Act permits for stormwater runoff from logging roads.  WFLC attorney Paul Kampmeier said the decision is “great news for our wild fish populations.” 

On October 5, 2010, the defendant-appellees filed petitions for rehearing and rehearing en banc.  The petitions ask the Court to reconsider its August 17, 2010 ruling that discharges of polluted stormwater from logging roads are subject to EPA’s Phase I stormwater rule.  Read the petitions here and here.  NEDC responded to the petitions on December 13, 2010.  Read the response here.

Additionally, on October 24 and 25, 2010, twenty organizations asked the Court of Appeals to accept four different amicus briefs in support of the petitions for rehearing and rehearing en banc.

Read the brief of the American Forest Resource Council.

Read the brief of the Association of Oregon Counties, et al.

Read the brief of the American Loggers Council, et al.

Read the brief of the Mountain States Legal Foundation. 

Learn more about this landmark decision here.

CASE DETAILS:

At least seventy percent of the Earth is covered in water.  Whether in fresh or salt form, water is vital to an innumerable number of species.  Ensuring clean water is essential to ensuring the survival of these species as well as the balance of the biotic community.

Oregon's Logging Roads

You might think of forests as having crystal-clear streams but, sadly, that is not always true.  In fact, the private and state forests of the Pacific Northwest are criss-crossed by thousands of miles of forests roads.  Many of these roads were built years ago, built cheaply, are heavily traveled by logging trucks, and fall well below today’s standards.  Many collect Pacific Northwest storm water (of which there is a lot!) and dump that water directly into forest streams.  Over the years, this sediment builds up and may destroy critical fish habitat or pollute drinking water sources.  Oregon newspapers have covered this issue (read the January 28, 2007 Statesman Journal article, "Effect of logging incident on city's drinking water spotlights forest rules").  In fact, in its 2000 National Water Quality Inventory, EPA listed forestry-related sediment as the fifth leading source of water quality impairment to rivers and streams nationwide.

Unfortunately, Oregon’s state rules governing forest practices have very weak road construction, maintenance, and road-abandonment standards.  In Washington, forest landowners at least have to develop and implement road maintenance and abandonment plans by 2015.  In Oregon, there is no comparable law.  The politically muscular timber industry has repeatedly opposed measures to clean-up forest roads.

Case Facts:

That is why WFLC has teamed up with Oregon environmental organizations in federal court to compel Oregon to take action to protect forest streams now.  On September 1, 2006, in the U.S. District Court for the District of Oregon, WFLC and the CRAG Law Center filed a Clean Water Act citizen suit on behalf of the Northwest Environmental Defense Center (NEDC), alleging that four timber companies, the Oregon State Forester, and the members of the Oregon Board of Forestry are violating the Act by discharging pollutants and/or industrial stormwater to the South Fork Trask River and the Little South Fork of the Kilchis River from ditches, pipes, and culverts along two logging roads in the Tillamook State Forest (the Trask River Road and Sam Downs Road). 

The Clean Water Act generally prohibits the addition of pollutants from point sources to waters of the United States unless authorized by and in compliance with a National Pollutant Discharge Elimination System (NPDES) permit.  A “point source” is any discernable confined and discrete conveyance like a pipe, ditch, or channel from which pollutants are discharged.  Congress enacted the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."  In doing so, Congress declared a national goal of eliminating discharges of pollutants to navigable waters by 1985.

Logging Road Discharges

Like many logging roads in Oregon State Forests, the Trask River Road and Sam Downs Road were designed and constructed to collect and deliver storm water to nearby rivers and streams.  Indeed, NEDC documented numerous discharges of Total Suspended Solids, some more than 2000 times background levels, from six “point sources” along a one-mile stretch of the Trask River Road and from five “point sources” on the Sam Downs Road.

^{Storm water being delivered to the South Fork Trask River from the Trask River Road. Photo courtesy of Chris Winter.}

These discharges are neither trivial nor harmless.  The Oregon Department of Forestry found that 39% of the road system in the Kilchis River watershed was clearly or possibly delivering sediment to streams from 459 different discharge points.  And the Tillamook Bay National Estuary Project found an elevated risk of erosion in the South Fork Trask watershed given the high density of roads there.  The Tillamook Bay National Estuary Project also notes that sediment delivered to streams can adversely affect fish by smothering salmonid eggs, reducing oxygen levels, interfering with sight-feeding, and burying the macroinvertebrate insects that provide food for fish. 

NEDC alleges that the discharges of polluted stormwater from these two roads are illegal because they are not authorized by NPDES permits.  NEDC alleges the Oregon Department of Forestry and the Oregon Board of Forestry are responsible for the discharges because they own or control logging roads in Oregon State Forests.  Additionally, NEDC alleges the four timber companies are responsible for the discharges because they haul timber on the roads—an industrial activity that grinds up the road surface and creates much of the sediment and other pollutants delivered to rivers and streams—and because their timber sale contracts with the Oregon Department of Forestry obligate them to maintain the roads on which they haul.

In March 2007 the district court dismissed NEDC’s claims, finding that the road/ditch/culvert system was not a “point source” that required NPDES permit coverage.  NEDC appealed that ruling to the U.S. Court of Appeals for the Ninth Circuit, which issued a unanimous opinion on August 17, 2010 that polluted run-off from logging roads is subject to regulation under the Clean Water Act. 

Media

Read the August 17, 2010, Seattle Times article, “Appeals court: mud from logging roads is pollution”

Read the August 17, 2010, Oregon Public Broadcasting article, “Logging road runoff decision could have big implications in Northwest”

Read the June 22, 2006, Oregonian article, “Suit to attack logging roads' dirty water"

For additional case information, please contact staff attorney Paul Kampmeier at (206) 223-4088 x 4 or pkampmeier at wflc.org.