Case Summary
Issue:
Whether public forest roads upon which logging trucks travel need a federal Clean Water Act (CWA) permit for the stormwater runoff that enters a culvert and is released ultimately into waters of the United States?
Plaintiff:
Northwest Environmental Defense Center (NEDC)
Defendant:
Doug Decker, Oregon State Forester; Stephen Hobbs, Barbara Craig, Diane Snyder, Larry Giustina, William Heffernan, William Hutchison, Jennifer Phillippi, members of the Oregon Board of Forestry; Hampton Tree Farms, Inc.; Stimson Lumber Company; Georgiapacific West Inc.; Swanson Group, Inc.; Tillamook County, Oregon
Intervenor:
Oregon Forest Industry Council; American Forest & Paper Association
Amicus Curiae:
Mountain States Legal Foundation
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Case History
In September 2006, an environmental group filed a lawsuit in federal district court in Oregon claiming that stormwaters (largely rainwater runoff) that flow from two long-existing public roads forest roads into systems of ditches, culverts, and channels and that are discharged ultimately into forest streams and rivers are discharges from “point sources” that require a permit under the CWA. The district court dismissed the lawsuit holding that the discharges are exempt from the CWA.
In August 2010, a panel of the Ninth Circuit reversed, holding that the discharge is a point source, that the EPA’s regulation as to forest lands is contrary to the intent of Congress, and that, contrary to the EPA’s regulation, logging is an “industrial activity” and runoff from it is subject to regulation under the CWA. The case was then remanded to the district court for further proceedings.
On October 5, 2010, the defendants and intervenors filed petitions for rehearing or rehearing en banc. On October 15, 2010, MSLF filed its brief in support of a rehearing or rehearing en banc of the panel’s ruling. On December 13, 2010, NEDC filed an opposition to the petitions. On January 27, 2011, the State and Timber Companies filed replies.
On May 17, 2011, the panel withdrew its earlier opinion and issued a new, but substantially identical opinion and denied the petitions for rehearing and rehearing en banc. On September 13, 2011, the defendants filed a petition for writ of certiorari with the Supreme Court. On October 17, 2011, MSLF filed its brief in support of the petition with the Supreme Court.
