FILED: June 8, 2001

IN THE SUPREME COURT OF THE STATE OF OREGON

ONRC ACTION,
and KLAMATH FOREST ALLIANCE,

Plaintiffs-Appellants,

v.

COLUMBIA PLYWOOD, Inc.

Defendant-Appellee.

_________________________________________________________________

ONRC ACTION,
and KLAMATH FOREST ALLIANCE,

Plaintiffs-Appellants/

Cross-Appellees,

v.

COLUMBIA PLYWOOD, Inc.

Defendant-Appellee/

Cross-Appellee.

(USDC CV-97-03087-CO; USCA 98-36233, 99-35019; SC S47437)

En Banc

On certified questions from United States Court of Appeals for the Ninth Circuit order dated April 10, 2000; certification accepted June 6, 2000.

Honorable Stephen Reinhardt, David Thompson, and Thomas G. Nelson, Circuit Judges.

Argued and submitted January 10, 2001.

William C. Carpenter, Jr., Eugene, argued the cause and filed the brief for plaintiffs-appellants.

Karen O'Kasey, of Schwabe, Williamson & Wyatt, Portland, argued the cause and filed the brief for defendant-appellee. With her on the brief was Patricia M. Dost.

Jas. Jeffrey Adams, Assistant Attorney General, Salem, filed the brief for amici curiae Environmental Quality Commission and Department of Environmental Quality.

LEESON, J.

First certified question answered.

LEESON, J.

This case is before the court on certified questions of Oregon law from the United States Court of Appeals for the Ninth Circuit. ORS 28.200 et seq.; ORAP 12.20. We accepted the certified questions. See Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991) (discussing factors court considers in exercising discretion to accept certified questions). We summarize the following facts from the Ninth Circuit's certification order and the excerpt of record filed in that court.

The federal Clean Water Act (CWA) prohibits the discharge of pollutants into navigable waters unless the discharge is allowed by a National Pollution Discharge Elimination System (NPDES) permit. 33 USC