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Northwest Environmental Defense Center v. Brown

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In a landmark decision issued August 17, 2010, the Ninth Circuit Court of Appeals ruled that polluted stormwater generated by logging roads is subject to regulation under the Clean Water Act’s National Pollutant Discharge Elimination System.

COURT INFORMATION: U.S. Supreme Court Nos. 11-338 and 11-347; 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 & Paper Association; and Tillamook County

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.

STATUS:  In a unanimous opinion issued August 17, 2010, the Ninth Circuit Court of Appeals ruled that polluted runoff 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 U.S. Supreme Court review the case.  On December 12, 2011, the Supreme Court asked the Solicitor General to file a brief expressing the federal government’s views on the case. On June 25, 2012, the Supreme Court announced that it would review the Ninth Circuit decision and oral argument was heard December 3, 2012. On March 20, 2013, the U.S. Supreme Court reversed the Ninth Circuit and held that NPDES permits are not required for stormwater discharges from pipes, ditches and channels along logging roads.

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CASE TIMELINE:

March 20, 2013 - Today the U.S. Supreme Court reversed the Ninth Circuit and held that NPDES permits are not required for stormwater discharges from pipes, ditches and channels along logging roads. The court ruled for NEDC on three of the four issues presented, but ultimately deferred to EPA’s claim that its regulations did not designate logging or logging roads as an “industrial activity” subject to the NPDES permit requirement. Justice Scalia wrote a great dissent focused on the majority’s failure to give effect to EPA’s express designation of “logging” as an industrial activity. Read the Court's decision.

December 3, 2012 - The U.S. Supreme Court heard oral argument. On Friday, November 30, just days before the argument, EPA released a new rule that EPA contends exempts point-source discharges along logging roads from Clean Water Act permitting. Because of EPA’s new rule, the Court spent little time on the three important environmental law questions presented by our case. Instead, the Court discussed the new rule and whether or not it rendered the case moot.

NEDC argued that the case was not moot and that the Court should dismiss the petitions for review and send the case back to the lower courts to address the issues raised by the new rule. Read the argument recap on SCOTUSblog. Read the December 3 oral argument transcript.

June 2012 - The U.S. Supreme Court granted the petitions for writs of certioriari. Briefing will be complete by mid-October and argument is scheduled for December 3, 2012. Supreme Court briefing is available on the Court's blog.

December 2011 - The U.S. Supreme Court asked the Solicitor General to file a brief expressing the federal government's views on whether or not stormwater runoff from logging roads requires Clean Water Act permits.

September 2011 – In an attempt to overturn the 9th Circuit ruling, both the timber industry and the State of Oregon filed petitions for certiorari requesting that the U.S. Supreme Court review the case.  Along with co-counsel Crag Law Center, WFLC filed an opposition brief in November 2011.

August 2011 – In response to the 9th Circuit Court of Appeals’ decision requiring Clean Water Act permits for stormwater runoff from logging roads, some members of Congress introduced legislation to exempt logging roads from the Act.  Environmental organizations sponsored a newspaper advertisement urging key members of the Oregon Congressional delegation not to amend the Clean Water Act.  See the ad here.

May 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.

December 2010 - NEDC responded to the petitions for rehearing and rehearing en banc filed by defendant-appellees.  Read the response here.

October 2010 - The defendant-appellees filed petitions for rehearing and rehearing en banc.  The petitions ask the Ninth Circuit Court of Appeals to reconsider its decision.  Read the petitions here and here.  Additionally, twenty organizations asked the Court to accept four different amicus briefs in support of the petitions.

August 17, 2010 - The Ninth Circuit Court of Appeals ruled that polluted runoff from logging roads is subject to regulation under the Clean Water Act.  Learn more about this landmark decision here.

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.

September 2006 - NEDC filed a Complaint for Declaratory and Injunctive Relief in the U.S. District Court of Oregon.

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.

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.

South Fork Trask River Discharge

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:

See videos of polluted stormwater runoff.

The New York Times, “E.P.A. rule complicates runoff case for justices,” December 3, 2012

Oregon Public Broadcasting, “High Court Wades Into Logging's Muddy Waters,” December 3, 2012

The Oregonian, “U.S. Supreme Court may punt on Oregon logging road pollution case,” December 3, 2012

The Seattle Times, “High Court to decide how logging roads regulated,” December 1, 2012

EPA moves to regulate runoff from logging roads as Supreme Court eyes case, Greenwire, May 1, 2012

Justices ask Obama admin to weigh in on pollution permitting for logging roads, Greenwire, December 12, 2011

July 27, 2011 – Staff attorney Paul Kampmeier participated in a KUOW discussion of WFLC’s victory in the 9th Circuit Court of Appeals in NEDC v. Brown.  Listen to the KUOW program here.

9th Circuit declines to rehear logging-road runoff case, E&E News, May 17, 2011

Court: reaffirms that muddy water is pollution, Seattle Times, May 17, 2011

9th Circ. won't rehear logging runoff permit challenge, Law360, May 17, 2011

Appeals court: mud from logging roads is pollution, Seattle Times, August 17, 2010

Logging road runoff decision could have big implications in Northwest, Oregon Public Broadcasting, August 17, 2010

Suit to attack logging roads' dirty water, Oregonian, June 22, 2006