Environmental Lawyer Blog

In a long-anticipated decision, the Ninth Circuit Court of Appeals ruled this week that stormwater – largely rainwater – that runs off of logging roads into streams and rivers must be permitted under the Clean Water Act (CWA). This decision (Northwest Environmental Defense Center v. Brown) will have far-ranging impacts that will result in permits being required under the CWA for logging operations on both private and public land.

The case began in 2006, when the Northwest Environmental Defense Center (NEDC) brought suit against the Oregon Department of Forestry, members of the Oregon Board of Forestry in their official capacity and various timber companies contending that the defendants violated the CWA by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater runoff that flowed from logging roads into ditches, culverts, and channels and then into forest streams and rivers. The logging roads, which are owned by the Oregon Department of Forestry and Oregon Board of Forestry, are primarily used by the defendant timber companies to gain access to logging sites and to haul timber out of the forest. The logging roads were designed and constructed with systems of ditches, culverts and channels that collect and convey stormwater runoff. The court found that the stormwater eventually deposits large amounts of sediment from timber hauling on the logging roads into the streams and rivers. The sediment then adversely affects fish.
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In another recent decision on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §9601 et seq., the Ninth Circuit clarified that the “current” owner is the owner at the time that cleanup costs are incurred for purposes of imposing liability under the act. Enacted thirty years ago, CERCLA is a federal law that creates a scheme for imposing strict liability for the investigation and remediation of contaminated property.

CERCLA imposes cleanup liability on “current” owners of the contaminated property regardless of when the contamination actually occurred. For example, if a person owns a property that is contaminated with a hazardous substance, under CERCLA they are responsible to cleanup the property even if they did not cause the contamination. Past owners are only responsible if the contamination of the property occurred during their ownership.
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