Summary of a Recent
Judicial
Development in
Clean Water Act
Lack of Requisite Standing to Challenge EPA's Determination of Impaired Waters
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Barnum Timber Co. v. United States Environmental Protection Agency, No. C 08-01988 WHA, 2008 WL 4447690 (N.D. Cal. Sept. 29, 2008), the United States District Court for the Northern District of California held that a plaintiff-landowner lacked standing to challenge the Environmental Protection Agency's (EPA) inclusion of a creek adjacent to plaintiff's property on the state list of impaired waters required by the Clean Water Act (CWA), because it had failed to show a causal connection between its alleged injury and the EPA's actions.
Background
Barnum Timber Co., which owned property along Redwood Creek, challenged the EPA's inclusion of the creek on the list of impaired waters required by § 303(d) of the CWA. Id. at *1.
Arguments
Barnum argued that the California Water Board's recommendation that Redwood Creek be listed as an impaired water was based on faulty assumptions and determinations, and Barnum had suffered extra costs to satisfy land use restrictions and had suffered decreased property values as a result. Id. at *1-2.
The EPA argued that Barnum lacked standing to challenge the EPA's approval of California's Section 303(d) list; specifically, the EPA conceded there had been "injury in fact" but argued that those injuries were not traceable to its actions and would not be redressed by a ruling in Barnum's favor. Id. at *4-5.
Analysis and Holdings
The court agreed that Barnum had failed to prove the requisite causal connection between the injury and the alleged violation, and pointed out that the EPA's challenged 303(d) decision alone imposed no restrictions or obligations on Barnum's land, but instead merely fed into further planning steps under the CWA, which may or may not lead to such regulation. Id. at *4. The court stated that Barnum's conclusory and unsupported allegations did not explain a causal link to the CWA and were therefore insufficient to confer standing, and granted the EPA's motion to dismiss. Id. at *5-7.
The case was decided on September 29, 2008.