Landmark Ninth Circuit Ruling: Logging Roads = Pollution

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Wednesday, August 18th, 2010

Landmark Ninth Circuit Ruling: EPIC Got It Right In Our Bear Creek Case: Culverts and Ditches Along Logging Roads Are ‘Point Sources’ of Water Pollution, and must be regulated under a permit system.

On August 17, the Ninth Circuit Court of Appeals issued a landmark ruling in a case from Oregon titled NEDC v Brown. The Northwest Environmental Defense Center (NEDC) is the environmental advocacy group staffed by law students at the Lewis and Clark Law School .

NEDC sued Brown, the Oregon Board of Forestry, and a handful of Oregon timber companies, among others, for their failure to obtain permits required under the federal Clean Water Act for discharges of a pollutant from a ‘point source;’ the key issue in the case is whether the culverts and ditches along the logging roads at issue are in fact ‘point sources’ under the law. In the Oregon case, the district court ruled they were not, and dismissed the case, agreeing with the timber companies, the Oregon officials, and the federal EPA.

However, in 2003, Judge Patel of the Northern District of California came to the opposite conclusion in a case that attorney Mike Lozeau argued with great skill on EPIC’s behalf against the Pacific Lumber Company.

Judge Patel concluded that stormwater runoff from logging roads that was collected in a system of ditches, culverts, and channels, and then discharged into protected water, was a point source discharge requiring an NPDES permit.

The Ninth Circuit court just agreed with J. Patel’s ruling in EPIC’s Bear Creek Point Source case that logging roads and ditches are in fact ‘point sources’ under the Clean Water Act, which means they must have permits under the NPDES permit system.

Our case died an untimely death due to PL’s bankruptcy; the Lewis & Clark law students’ group (NEDC) then brought a similar case in Oregon, which lost at the district court on the same issue. So now the 9th district has finally ruled, and said yes, ditches and culverts are ‘point sources’ subject to NPDES regulation (which means they are not left for TMDLs to cover).