Environmental Law

9th Circuit permits challenge to EPA Clean Water Act decision

By STEPHEN HOLZER

On February 3, 2011, a federal 9^th Circuit Court of Appeals panel reversed a US District Court?s finding that a timber company could not challenge an EPA decision to keep a creek near Eureka, California listed as an ?impaired water body? under the Clean Water Act.  Barnum Timber Co. v. United States Environmental Protection Agency, et al., Case No. 08-17715.

            Among other things, the timber company contended that public perception of EPA?s ?onerous regulation? of the company?s property in the impaired water body area in and of itself lessens the value of the property. This perception is apparently because the use of the creek for transport of timber from the property could be threatened by EPA restrictions on the use of the creek.  As expressed in an expert declaration filed by the timber company:  ?The public has ready access to the Section 303(d) listings, including the listing of Redwood Creek. When a listing occurs, the public perceives?whether accurately or not?that the subject property will be subject to additional and onerous regulation. . . . In this case, the market reaction is such as to deem [the company?s] property to be devalued because of the § 303(d) listing.?

               The District Court had rejected this market devaluation argument; but the appellate Court found this market devaluation argument legally sufficient, at least for pleading purposes, to confer standing on the company to challenge the EPA?s decision to keep the creek under Clean Water Act regulation.  Thus, the 9^th Circuit has potentially opened the door wider than before to challenges to EPA regulation under the Act.

Originally wirtten for my column in Valley News Group.

Full post as published by Environmental Legal Blogs on February 17, 2011 (boomark / email).