appeal court grants standing for challenges to impaired water listing 021111

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www.siskiyoudaily.com/news/x2106597916/Appeals-court-grants-standing-for-challenges-to-impaired-water-listing

Appeals court grants standing for challenges to impaired water listing

by David Smith, Siskiyou Daily News February 11, 2011

California — The United States Court of Appeals for the Ninth Circuit has handed down a ruling that declares that landowners whose property values have been adversely impacted by the listing of impaired waters under the Clean Water Act can have standing to challenge those listings in court.

The ruling, filed Feb. 3, concerns the case (Barnum Timber Company v. United States Environmental Protection Agency), in which Barnum challenged the EPA’s listing of Redwood Creek as impaired.

According to the decision, the district court that originally heard the case denied Barnum’s suit, declaring that the company had lacked standing to bring the case against the EPA.

The appeals court decision notes that three elements must be satisfied to establish standing, including concrete and particularized and actual or imminent harm to a legally protected interest, a causal connection with another party’s conduct and the ability for the court to redress the harm.

Barnum had submitted two declarations that property value had been reduced and had argued that “‘the Section 303(d) listing has reduced the value of Barnum’s property by feeding the public’s and the market’s perception that Barnum’s timber operations are restricted by the listing,’” according to the decision.

Going on, the decision states that if the district court finds in favor of Barnum and declares that the EPA’s actions were “arbitrary or capricious,” then the court could grant declaratory and injunctive relief by ordering that the listing be removed.

By disagreeing with the lower court, the appeals court reversed the ruling and found that Barnum does have standing to challenge the EPA’s listing and ordered that the suit be heard by the district court.

One justice, James S. Gwin, cast the dissenting opinion, stating that he believes that Barnum failed to show a connection between declining property values along Redwood Creek and the EPA’s listing, and disagreed that the court could grant proper redress.

– David Smith can be reached at dsmith@siskiyoudaily.com