An environmental group will continue to push for Clean Water Act permits for some logging roads that are associated with “industrial activity.”
In March, the U.S. Supreme Court decided that the U.S. Environmental Protection Agency was allowed to exempt logging roads from Clean Water Act permits.
The ruling overturned a previous opinion by the 9th U.S. Circuit Court of Appeals, which held that runoff from logging roads that runs through ditches and culverts is subject to such regulation.
However, that does not appear to be the final word in the litigation, in which the Northwest Environmental Defense Center is suing the State of Oregon and several timber firms.
The 9th Circuit has now sent the lawsuit back to a federal judge in Oregon for further consideration.
The remand order points out that the Supreme Court did not completely reverse the 9th Circuit’s previous ruling.
Although the EPA can exempt logging road runoff from the Clean Water Act under the Supreme Court decision, it is still considered a “point source” of pollution, the 9th Circuit said.
The 9th Circuit is making clear that some of the environmental group’s claims remain live, said Paul Kampmeier, attorney for the NEDC.
Under the EPA’s Clean Water Act rules — which the Supreme Court upheld — rock crushing, gravel washing, log sorting and log storage are considered “industrial activities” that are subject to permits.
The environmental group now plans to argue that some roads owned by the State of Oregon and used by timber companies are associated with these industrial activities and must be regulated under the Clean Water Act, said Kampmeier.
These claims remain viable because the 9th Circuit found that runoff from logging road ditches and culverts is a “point source,” he said.
It will now be up to a federal judge to decide if the State of Oregon and timber companies are liable under the Clean Water Act for roads connected with “industrial activity,” Kampmeier said.
“How that pans out, nobody knows yet,” he said.
Per Ramsfjord, attorney for timber companies in the case, said the 9th Circuit remand order shows the judges who heard the case remain sympathetic to the environmental group’s cause.
However, it’s unlikely to bolster the environmental group’s arguments, which were soundly rejected by the Supreme Court, he said. “It doesn’t affect the overall outcome of the case.”
The significance of the 9th Circuit order remains to be seen, but it’s clear the environmental group hasn’t given up on this issue, said Scott Horngren, attorney for the American Forest Resource Council.