The Ninth Circuit Court of Appeals has determined that a timber company and landowner had standing to challenge an EPA decision to retain Redwood Creek as an impaired water body under the Clean Water Act. Barnum Timber Co. v. EPA, No. 0817715 (9th Cir. 2/3/11). Plaintiff’s property was located in the Redwood Creek watershed. When EPA decided to retain the impaired water body designation on the creek, plaintiff sued the agency, arguing that the decision adversely affected the property’s value and that it “suffered extra costs to satisfy land use restrictions” triggered by the retention. The district court denied plaintiff’s request to amend its complaint to add the declarations of two experts who explained that plaintiff’s property values had decreased by virtue of the retention. The court granted EPA’s motion to dismiss for lack of constitutional standing, and plaintiff appealed.

In a 2-1 decision, the appeals court ruled that appellant had demonstrated the three elements necessary to establish standing to sue: plaintiff alleged harm to a legally protected interest, that harm was “fairly traceable” to the conduct complained of, and a favorable decision could redress the alleged harm. The majority focused on the declarations by two state-registered professional foresters, who said the EPA retention “has significantly reduced the value of [plaintiff’s] timberlands in the Redwood Creek watershed.” The dissenting judge argued that plaintiff’s claims of harm were speculative and that, if they truly existed, could be caused by factors other than the EPA classification, such as the state statutes that play a role in the process of declaring a body of water impaired.