Logging Road Stormwater Runoff Subject to the Clean Water Act
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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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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That interference could also cost California clean energy businesses income and jobs.
Property owners rely on the protection afforded by the Takings Clause of the Fifth Amendment to the U. S. Constitution to shield them against the government improperly interfering with their property rights. The Takings Clause requires “just compensation” to be given to the property owner if the government takes property for public use. For example, if the government takes a person’s land to build a public park, the government must pay him the value of the land. A decision this month by the U.S. Supreme Court adds new uncertainty to that protection by ruling that the property owner must show that the property right allegedly taken was sufficiently “established” under state law.
deepwater wells. He also noted that current laws and practices do not ensure “adequate environmental review” and invited Congress to work with his administration to “address these issues as soon as possible.”
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Greenberg Glusker today announced that the Los Angeles Superior Court has upheld the right of its client, the City of Culver City, California, to regulate expansion and intensification of new oil well drilling in order to protect its residents. In an order issued March 26, 2010, Judge James Chalfant rejected a challenge by an oil company, Plains Exploration & Production Company (PXP), which sought a writ of mandate invaliding the City’s moratorium on new drilling.
