Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11-338, 11-347

In the

Supreme Court of the Anited States

—+

DOUG DECKER, in His Official Capacity as Oregon

State Forester, et al., Petitioners,

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER, et al., Respondents.

GEORGIA-PACIFIC WEST, INC., et al., Petitioners,

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER.., et al., Respondents.

> a

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF ALABAMA

FORESTRY ASSOCIATION, et al., IN

SUPPORT OF PETITIONERS

M. REED HOPPER

Counsel of Record

DAMIEN M. SCHIFF

DANIEL A. HIMEBAUGH

Of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

E-mail: dah@pacificlegal.org

Counsel for Amici Curiae

[Additional amici listed on inside cover]

AMERICAN LOGGERS COUNCIL,

ASSOCIATED LOGGING CONTRACTORS-

IDAHO, ASSOCIATED OREGON

LOGGERS, BUCKEYE CONSERVANCY,

CALIFORNIA FORESTRY

ASSOCIATION, FOREST LANDOWNERS

ASSOCIATION, KENTUCKY FOREST

INDUSTRIES ASSOCIATION, MISSISSIPPI

FORESTRY ASSOCIATION,

MISSOURI FOREST PRODUCTS

ASSOCIATION, NORTH CAROLINA

FORESTRY ASSOCIATION, NORTHERN

ARIZONA LOGGERS ASSOCIATION,

OHIO FORESTRY ASSOCIATION, OREGON

WOMEN IN TIMBER, SOUTHEASTERN

LUMBER MANUFACTURERS ASSOCIATION,

TEXAS FORESTRY ASSOCIATION,

TREATED WOOD COUNCIL, VIRGINIA

FOREST PRODUCTS ASSOCIATION,

AND WASHINGTON CONTRACT

LOGGERS ASSOCIATION, INC.

QUESTION PRESENTED

Whether the Ninth Circuit should have deferred

to EPA’s long-standing position that channeled

runoff from forest roads does not require a federal

NPDES permit under the Clean Water Act, and

erred when it mandated that EPA must regulate

such runoff as industrial storm water subject to the

Clean Water Act.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................... i

Tees Che BRP gcc ccc tccccceceorcs iv

IDENTITY AND INTEREST

ey ee OE oc dew c cs eeudocoisusses 1

INTRODUCTION AND

STAT means OF Tlas CASE .. ccc cc cccccccce q

SUMMARY OF ARGUMENT ................. 10

I ae Naa Se ee ed ee 1l

I. THE PANEL DECISION WILL

CREATE AN OVERWHELMING

NUMBER OF PERMIT REQUESTS

FOR MILLIONS OF MILES OF

FOREST ROADS, LEADING TO

TREMENDOUS AND BURDENSOME

jy tf heel OR) -F\ ¢. Rae 12

A. The Ninth Circuit Decision

Will Result in a Significant

Increase in the Number of

NPDES Permitting Applications ....... 12

Be) I, sn yg oh ad wa wee ene ee 13

i: Ls ee ae 15

ie IR nrg a oe ek eae 15

OS rete ene en 16

i A ira ie ae aes le oe 17

EE re ee 19

ill

TABLE OF CONTENTS—Continued

B. The Panel's Decision Will

Impose Significant Costs on Industry

Because of the Magnitude of the New

Permitting Obligation ..............

es ie ae ek Oe eae ees 4 a ewe

APPENDIX

Declaration of James A. Hanlon,

Director of EPA’s Office of Wastewater

Management in connection with

The National Cotton Council of

America v. United States

Environmental Protection Agency,

653 F.3d 927 (Gth Cir. 2008) ...... cc cccccees

TABLE OF AUTHORITIES

Page

Cases

Chevron U.S.A. v. Nat. Res. Def.

Council, 467 U.S 837 (1984) ..............-.. 11

Nw. Envtl. Defense Ctr. v. Brown,

640 F.3d 1063 (9th Cir. 2010) ............ 10, 20

Nw. Envtl. Adovcates v. U.S. EPA,

No. C 03-05760 SI, 2005 U.S. Dist.

LEXIS 5373 (N.D. Cal. Mar. 30, 2005)........ 21

Rapanos v. United States,

og | OR, re rarer 21

Federal Statutes

OP nk dk coos esha awed Gees GA 13

Dn 22 de etatlelebe de wee eS Gab tee bh ae ae 10

Ge ee ee ES. 6 0 060 06 ov ec en deees 12

State Statutes

Wash. Admin. Code §§ 222-24-050

et le yes Cie wa dene ee 15

Rules

oF & 8: Se a ee ee eee ee 11

Miscellaneous

55 Fed. Reg. 47,990 (Nov. 16, 1990) ............ 12

TABLE OF AUTHORITIES—Continued

Butler, Brett J., Family Forest Owners

of the United States, 2006 (U.S.

Forest Serv. 2008), available at

http://nrs.fs.fed.us/pubs/gtr/gtr_nrs

27.pdf (last visited Oct. 2, 2011)........

EPA Web site on nonpoint source BMPS

for forestry, available at http://www.

epa.gov/ owow_keep/NPS/forestry. html

(last visited Oct. 14, 2010) ............

EPA nonpoint source program Web

site, available at http://www.epa.gov/

owow_keep/NPS/cwact.html

(last visited Oct. 2,2011) .............

Smith, W. Brad, et al., Forest Resources

of the United States, 2007 (2009),

available at http://nrs.fs.fed.us/pubs/

7334 (last visited Oct. 2, 2011) .........

Page

IDENTITY AND INTEREST OF AMICI CURIAE

Under Supreme Court Rule 37, Amici respectfully

submit this brief in support of Petitioners Doug

Decker, Oregon State Forester, et. al., 11-338, and

Georgia-Pacific West, Inc., et. al., 11-347 (consoli-

dated).'

The Amici organizations hail from all over the

country and represent forest landowners, wood

producers, conservationists, educators, and others.

Many Amici are involved in developing, using, or

maintaining forest roads. They have joined this brief

because of their justifiable fear that the Ninth Circuit

decision will unnecessarily change forest practices

nationwide at great expense but with no added benefit

to the environment.

The Alabama Forestry Association was organized

in 1949 to promote good stewardship of renewable

forest resources for the benefit of the Nation. The

Association pursues this goal through public outreach,

safety training, industry communications, legislative

advocacy, and policy development. The Association has

more than 1,800 dues-paying members, including

landowners, foresters, trucking companies, and wood

product producers. The Association represents the

' In accordance with Rule 37, all parties have been given timely

notice of Amici’s intent to participate in this case and all parties

have consented to the filing of this brief. Letters of consent have

been filed with the Clerk of the Court.

Also, under Rule 37.6, Amici affirm that no counsel for any

party authored this brief in whole or in part, and no counse] or

party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amici, their members, or their counsel have made a monetary

contribution to the brief’s preparation or submission.

State’s largest industry that supports over 400,000

forest landowners with an estimated $15 billion in

products from over 650 producers.

The American Loggers Council was formed in 1994

to serve as a national voice for professional loggers.

The Council is made up of a coalition of regional and

state logging associations and councils and represents

more than 50,000 employees and reaches over 10,000

logging contractors. Through networking and

outreach, the Council seeks to enhance the logging

profession and further sustainable forestry practices.

Associated Logging Contractors-Idaho is a trade

organization of logging contractors. It currently has

close to 400 logging contractor businesses as members

and an additional 100 associate members who are

affiliated with the timber industry and logging

contractors. Its member companies are small, family-

owned, or closely held businesses that operate on the

forest lands of Idaho. Many are multi-generational

businesses with close ties to the land and their

communities. The Idaho forest industry makes up

4.6% of the total labor income in the state and

produces $2 billion in annual sales of primary wood

and paper products. The forest industry is an essential

component of schoo] funding in rural areas where

unemployment exceeds 20%.

Associated Oregon Loggers’ represents

approximately 1,000 contract logging companies and

businesses associated with the logging industry in the

State of Oregon. Its members are primarily small,

family-owned businesses, many of which are owned

and managed by second, third, and even fourth

generations of loggers. Members rely on a long-

established transportation system (including forest

roads) to move logs and other forest products from the

woods to processing mills and other destinations.

The Buckeye Conservancy is an organization of

family farm, ranch, and forest landowners and

resource managers in the North Coast Region of

California. The Conservancy is dedicated to the

promotion, communication, and implementation of

those ideals and policies that support the ecologic and

economic sustainability of natural resources and open

space in family ownership.

The California Forestry Association is a nonprofit,

nonpartisan organization dedicated to sustainable uses

of renewable resources and responsible forestry.

Association membership includes forest landowners,

forestry professionals, loggers, manufacturers, whole-

salers, and retailers who are engaged in the production

and distribution of wood products. These members

own 3.8 million of the 7.4 million acres of private

timberland in California and are committed to

protecting and enhancing the natural life cycle of

California’s forests. They also supply wood resources

by contracting to purchase and harvest significant

amounts of timber from public lands including the

national forests.

The Forest Landowners Association was estab-

lished in 1941 to provide its members with education,

information, and national grassroots advocacy, which

enables them to sustain their forest lands across

generations. Association members own and operate

more than 40 million acres of forest land in 48 states.

Through outreach on behalf of private forest

landowners nationwide the Association seeks to

enhance forest land management and stewardship.

The Association also provides advice, support, and

information to policy makers, educating them on how

proposed legislation could affect private forest

management, stewardship, and owners’ rights.

The Kentucky Forest Industries Association was

organized in 1965 to promote the economic welfare and

interests of Kentucky’s wood industry by advocating

conservation and sustainable forest use, and by

working with agencies to promote the forest industry.

The Association has a wide range of members

(approximately 600) including landowners, sawmills,

loggers, flooring companies, insurance companies,

financial institutions, forest/heavy equipment

companies, and numerous other support industries.

Association members directly employ over 20,000

people with a large impact on the state’s economy.

The Mississippi Forestry Association was founded

in 1938 to promote landowner rights, environmental

stewardship, member prosperity, and community

understanding through educational outreach and

advocacy. The Association has approximately 3,000

members including landowners, foresters, forest

industry companies, hunting clubs, and others.

Forestry and forestry products are a $19.2 billion

industry in the state.

The Missouri Forest Products Association was

established in 1970 to encourage the wise use and

conservation of the Nation’s resources through

education and issue advocacy. The Association has

over 300 members, comprised primarily of wood proces-

sing mills and logging businesses. Association

members contribute more than $4 billion directly to

the economy with between $10-$12 billion in induced

benefits.

The North Carolina Forestry Association was

organized in 1911. The Association actively promotes

healthy, productive forests by supporting the efforts of

forest landowners and forestry-related businesses that

responsibly manage or use forests and produce wood

and paper products. The Association is primarily

engaged in legislative and regulatory advocacy,

environmental education, logger training, and edu-

cation and public outreach. The Association has

approximately 4,000 members, including forest

landowners, forest managers, wood suppliers and

loggers, and producers of wood and paper products.

Forest products is North Carolina's largest

manufacturing industry providing over 68,000 jobs

with an annual economic impact of $23 billion affecting

more than 180,000 jobs. Forest lands in North

Carolina cover more than 18 million acres (59% of the

state).

The Northern Arizona Loggers Association was

formed in 1975 to promote forest industry profes-

sionalism, knowledge, and safety, primarily through

training and education. The Association has numerous

members made up of logging contractors and suppliers.

Most are family-owned businesses vital to local rural

economies. The Association reports that Arizona is

currently in the bidding process on a proposed 750,000

acre forest restoration project (the largest in the

Nation) and that requiring Clean Water Act permits

for the estimated 2,000 miles of related forest roads

could undermine the project.

The Ohio Forestry Association was founded in

1903 and became a trade association in 2008. The

mission of the Association is to support the manage-

ment of Ohio’s forest resources and improvement oi

business conditions for the benefit of forestry-related

industries and enterprises, including the hardwood

industry, logging companies, sawmills, pulp and paper

mills, hardwood brokers, equipment sellers, consulting

companies, foresters, and landowners. Tothat end, the

Association engages in policy and legislative advocacy,

education, and outreach. The Association manages the

Ohio Master Logging Company Certification Program

which is an outgrowth of Ohio’s response to dealing

with silvicultural activities as nonpoint sources of

pollution. The Association works closely with state

and local agencies to deal with voluntary compliance

mechanisms and all participants believe the current

approach is addressing Ohio’s needs. On every Ohio

Environmental Protection Agency (EPA) water quality

assessment of pollution sources, silviculture is rated as

of little concern. A 2005 report by the Ohio Division of

Forestry and Ohio State University showed that Ohio’s

wood and fiber industry contributed $15.1 billion to

Ohio’s economy and employed 119,000 people with a

payroll of $4 billion.

Oregon Women in Timber was organized in 1979

to create awareness and appreciation for the value of

trees, and to encourage an understanding about

protection, management, and conservation of

renewable forest resources. These goals are furthered

through educational programs (like the Talk About

Trees program) in schools that provide instruction on

ecology, forest management practices, and the use of

wood products. Members consist of women associated

with loggers, foresters, school teachers, mill employees,

consultants, landowners, and others who are concerned

about forest management. Oregon Women in Timber

are active participants in Oregon Women for Agri-

culture and American Agri-Women.

The Southeastern Lumber Manufacturers

Association is a trade organization established in 1962

to promote family-owned lumber businesses. The

Association represents lumber manufacturers in 17

states, primarily in the South. With emphasis on

government affairs, marketing and management, and

operational issues, the Association offers programs to

support independent lumber manufacturers.

The Texas Forestry Association was founded in

1914 toenhance and perpetuate Texas forest resources

through tree planting, education, training, and

political action. The Association has approximately

2,855 members which include private landowners,

professional loggers, consulting foresters, and

processing mills. In East Texas alone forest lands are

94% privately owned and cover more than 12 million

acres. Forestry is a major state industry.

The Treated Wood Council was established in

2008 to serve all segments of the treated wood industry

in government affairs. The current membership is

approximately 474 and includes wood product sup-

pliers, wood preservative suppliers, wood treaters, and

related organizations throughout the country.

Member businesses have a $4.5 billion impact on the

national economy and supply approximately 15,000

direct jobs.

The Virginia Forest Products Association was

founded in 1958 to support and advance Virginia’s

lumber and wood products industry through public

education and legislative and regulatory advocacy.

The association has more than 200 members, primarily

small businesses, and represents those who produce

lumber and wood products in the Commonwealth of

Virginia as well as those companies that provide goods

and services to these producers. Association members

produce the majority of the lumber and wood products

manufactured in Virginia. Virginia’s forest industry

ranks as one of the commonwealth’s largest

manufacturing sectors. A recent study by the Weldon

Cooper Center found that Virginia forests provide more

than $27.5 billion in annual benefits.

Washington Contract Loggers Association, Inc., is

a trade association that represents over 700 logging

companies within Washington State. Association

members either own forest land, log for small forest

landowners, or purchase standing timber from private

or public landowners. The use of forest roads is vital

to the logging industry.

Amici believe the Ninth Circuit's interpretation of

the Clean Water Act and EPA regulations is unfounded

and will unnecessarily impose heavy regulatory

burdens on thousands of forest land owners and

operators across the nation. For the first time in the

history of the Act, channeled rainwater runoff will be

regulated as a point source pollutant displacing long-

established state water quality programs and driving

up the cost of wood products. As attested above,

forestry is a major state and national industry which

the Ninth Circuit decision will hamper. The high cost

of complying with a new NPDES (National Pollutant

Discharge Elimination System) permit program will

undoubtedly limit the use of forest lands and the

availability of forest resources and impair the

livelihood of small, family-run operations; a mainstay

of the industry. Therefore, Amici urge this Court to

grant review and overturn the decision below.

INTRODUCTION AND

STATEMENT OF THE CASE

It may be easy to forget that court decisions affect

real people. In this case, the effect of the Ninth Circuit

decision below is severe and far-reaching. It overturns

more than three decades of regulatory practices

nationwide and undermines settled expectations. For

the first time since the inception of the Clean Water

Act, channeled rainwater from forest roads now will be

regulated as an industrial discharge requiring an

NPDES permit. This is not insignificant. There are

literally hundreds of thousands of forest roads

throughout the Country and the cost of obtaining,

processing, and complying with an individual NPDES

permit can be expected to run to tens of thousands of

dollars and months of work. And, the costs of

permitting would fall primarily on small, private

landowners in rural areas where the economy is

depressed and joblessness is high.

But this is not all. The immediate effect of the

Ninth Circuit decision is to put the EPA, the states,

and the entire forest industry in limbo, unsure of the

legal status of current forest road operations. The

long-term effect is equally uncertain as it is unclear if,

when, and how the EPA and the states will respond to

the decision. As noted by the Petitioners, the court

decision was based on a unique interpretation of the

Act and agency regulations in conflict with other

Circuit Courts of Appeals, without the EPA ever

appearing as a party litigant.

Moreover, none of this was necessary to protect

water resources. Nationwide, rainwater runoff from

forest lands and forest roads has been addressed for

decades under the Clean Water Act as nonpoint source

pollution, minimized through time-tested “Best

Management Practices” (BMPs) at the state level,

implemented in some states through state forest

practices regulations, all with EPA oversight.* EPA,

state agencies, and stakeholders have found this

state-based system of BMPs to be efficacious.

However, the Ninth Circuit tossed out that system in

favor of a wholly unworkable and redundant point-by-

point permit program.

For these and other reasons, Amici believe review

is warranted and should be granted.

SUMMARY OF ARGUMENT

The Ninth Circuit held that channeled rainwater

runoff from forest roads is subject to NPDES

permitting under the Clean Water Act as a point

source discharge. See Nw. Envtl. Defense Ctr. v.

Brown, 640 F.3d 1063 (9th Cir. 2010). That decision

overturns more than 30 years of federal, state, and

private forestry practice. In addition to the legal

arguments raised by Petitioners, Amici believe there

are equally compelling practical reasons for this Court

to grant review.

Amici demonstrate below that the Ninth Circuit

decision may require thousands, if not millions, of

* See 33 U.S.C. § 1329 (nonpoint source management programs);

http://www.epa.gov/owow_keep/NPS/cwact.html (last visited

Oct. 2, 2011) (EPA nonpoint source program website);

http://www.epa.gov/owow_keep/NPS/ forestry.html (last visited

Oct. 14, 2010) (EPA website on nonpoint source BMP for forestry).

additional NPDES (Section 402) permits for forest

landowners and loggers nationwide. Neither the states

nor the EPA are equipped to handle the influx. The

decision will engender an unprecedented number of

permit applications that the agencies will be unable to

process expeditiously, resulting in significant delays

and costs for the regulated community.

A decision that has the potential to change an

entire industry with potentially drastic effects on the

economy and jobs warrants a look by this Court.

Therefore, this Court should grant the petitions for

writ of certiorari.

ARGUMENT

Court rules state that “{a] petition for a writ of

certiorari will be granted only for compelling reasons.”

Sup. Ct. R. 10. The parties have identified compelling

legal reasons for granting the petitions in this case; /.e.,

to resolve a conflict among the Circuits and to address

the Ninth Circuit’s failure to apply the interpretive

guidelines established by this Court in Chevron U.S.A.

v. Nat. Res. Def. Council, 467 U.S. 837 (1984).

However, Amici suggest some compelling practical

reasons for granting the petitions.

_—

THE PANEL DECISION WILL

CREATE AN OVERWHELMING

NUMBER OF PERMIT REQUESTS FOR

MILLIONS OF MILES OF

FOREST ROADS, LEADING TO

TREMENDOUS AND

BURDENSOME PERMITTING DELAYS

As an aid to this Court, Amici have compiled

information reflecting the potential impacts of the

decision below. This information establishes that the

imposition of the NPDES (Section 402) permitting

requirement for rainwater runoff from forest roads will

produce unprecedented permitting costs and delays.

Although this information is based on Amici’s recent

estimates, it is not unlike the data cited by the EPA in

1990 when it made a policy decision not to regulate

rainwater runoff from forest roads as a point source

under the Clean Water Act. See 40 C.F.R.

§ 122.26(b)(14); 55 Fed. Reg. 47,990, 48,011 (Nov. 16,

1990).

A. The Ninth Circuit Decision

Will Result in a Significant

Increase in the Number

of NPDES Permitting Applications

Ifthe Ninth Circuit decision is not overturned and

EPA is forced to develop a rainwater permitting

program for forest roads, that program could be

developed on a per-landowner or a per-harvest basis.

Under either scenario, however, a permit would have

to authorize and impose meaningful effluent limi-

tations on each permitted discharge, which may turn

on the number of pertinent forest road water

conveyances. Cf. 33 U.S.C. § 1311(e) (Effluent limi-

tations . . . shall be applied to all point sources of

discharge of pollutants .. . .”) (emphasis added).

Therefore, to provide a full picture as to the likely

impact of the Ninth Circuit decision, Amici provide the

following information.

1. National Data

There are 423 million acres of private forest land

in the United States, owned by about 11 million

individuals and entities. The vast majority of these

owners—92%—are individuals or unincorporated enti-

ties. They control 62% of all private forest land,

amounting to 264 million acres. Of the 264 million

acres of family forest land nationally, 58% of those

acres are owned by individuals who commercially

harvest trees from their property. W. Brad Smith, et

al., Forest Resources of the United States, 2007, at 20

(2009).

Based on the foregoing, there are approximately

150 million acres of family-owned forest land in this

country that are used principally for tree harvesting.

Assuming that an average tree harvest on this land

would encompass 200 acres, and assuming that each of

these harvests would require access to forest roads

having some form of channeled water conveyance (a

point source), there are 750,000 potential tree harvest

sites for which a rainwater permit may be necessary.

Alternatively, the data can be analyzed on a per-

landowner basis. Based on the foregoing statistics,

there are approximately 10.1 million family forest

° Available at http://nrs.fs.fed.us/pubs/7334 (last visited Oct. 2,

2011).

landowners i: the country. In a recent survey, these

landowners were asked to rate, on a scale of 1 to 7, how

well a list of uses described the actual use of their

working family forest land. From the survey, 30% of

the landowners rated timber harvesting as the main

reason for owning their forest land (i.e., rating it 1 or

2). See Brett J. Butler, Family Forest Owners of the

United States, 2006, at 16 (U.S. Forest Serv. 2008).*

Assuming that these landowners would likely use their

land in the future for tree harvesting, and assuming

that each of these tree harvests would require access to

forest roads having some form of water conveyance, it

follows that there are approximately 3,000,000 family

forest landowners who may be required to obtain an

NPDES permit, under the Ninth Circuit’s decision.

Finally, the national data can be analyzed in

terms of the number of potential rainwater convey-

ances for which specific effluent limitations may have

to be established as part of the permitting process.

Although Amici do not have data readily available on

the number of such conveyances nationally, Amici

believe that a fair estimate can be extrapolated from

regional data. For example, as shown in greater detail

below, in the State of Calfornia there are

approximately six miles of forest road per square mile

of private forest land. As discussed above, 58% of the

nation’s 264 million acres of family forest land are held

as working forests. Assuming, much more

conservatively, a ratio at the national level of one mile

of forest road per square mile of working family forest

land, there are approximately 264 million miles of

forest roads on working family forest land. Also in

* Available at http://nrs.fs.fed.us/pubs/gtr/gtr_nrs27.pdf (last

visited Oct. 2, 2011).

California, there are on average 2.43 water conveyance

structures per mile of forest road. Again assuming,

much more conservatively, an average ratio at the

national level of one water conveyance per mile of

family forest road, the estimated total that may

require an NPDES permit is 264,000,000.

2. State Data

Here, Amici provide forest road information for

selected states, primarily in the Ninth Circuit, that

supports the national data provided above.

a. Washington

The State of Washington has approximately 22.1

million acres of forest land. See Smith, supra, at 153.

Private landowners control approximately 7.8 million

acres. Although complete data is not available for all

of these acres, data covering 7.3 million acres of

Washington’s large private- and state-held forest lands

reveal that these areas contain approximately 57,000

miles of forest road.° Based on a conservative

assumption that the ratio of ditches or culverts to mile

of forest road is one to one, the estimated total possible

water conveyances associated with these forest lands

that are potentially subject to NPDES permitting is

57,000. That number may significantly understate the

total permitting sites, however, for two reasons. First,

the figure covers only 33% of the total acres of forest

land within the state. Second, the forest road data on

° These data are derived from the Washington State Department

of Natural Resources’ records for Road Maintenance and

Abandonment Plans. Washington state law requires forest

landowners to file these plans with the state agency. See Wash.

Admin. Code §§ 222-24-050 to 222-24-0511. Importantly, this data

covers only large private holdings and state-owned timberlands.

which the figure is based applies only to those forest

roads crossing fish-bearing streams; there are, of

course, many more forest roads within the state that

cross nonfish-bearing streams that would still be

subject to NPDES permitting under the Ninth Circuit

decision.

b. Idaho

Idaho contains 21 million acres of forest land. See

Smith, supra, at 152. As an example of the Ninth

Circuit decision’s impact on that state, Amicus

Associated Logging Contractors-Idaho reports that

650,000 acres of forest land in Northern Idaho (a very

small percentage of the total forest land in the state)

contain approximately 6,000 miles of roads. Further,

there are approximately four culverts for every mile of

forest road on this land. Therefore, the estimated

number of water conveyances that are potentially

subject to NPDES permitting for this small sample of

Idaho forest land is approximately 24,000.

The Idaho Department of Lands manages roughly

one million acres of timberland, representing 7% of the

state’s total. The Department estimates the total

mileage of logging roads to be 7,741 miles. The

Department does not have current data on the number

of water conveyances on its land. Assuming conserva-

tively that the ratio of water conveyances per mile of

state forest road is two to one (compared to a ratio of

four to one for the privately owned Idaho forest land),

then the estimated sites subject to NPDES permitting

is approximately 15,400.

° This data comes from the Associated Logging Contractors-Idaho.

c. California

Of California’s nonindustrial private forest land

areas, there are 4.1 million acres of productive,

unreserved forest, which equals approximately 6,400

square miles of forest. Based on informal Amicus

California Forestry Association (CFA) survey data of

its members, there are approximately 6.19 miles of

forest road per square mile of forest.’ Thus, CFA

estimates that, on California nonindustrial private

forest lands, there are approximately 44,400 total

miles of private nonindustrial forest road. Also based

on CFA’s survey data, there are on average 2.43 water

conveyances per mile. Hence, the estimated total

NPDES permitting sites is 107,000.

Of California’s industrial private forest land, there

are approximately 4.4 million acres of productive,

unreserved forest, which equals 6,878 square miles of

forest. Based on the survey data discussed above,

there are approximately 6.19 miles of forest road per

square mile of forest (equaling approximately 42,600

total miles of private industrial forest road), also with

an average of 2.43 water conveyance structures per

mile. Therefore, the estimated NPDES permitting

sites on private industrial forest roads is 103,000.

Based on United States Forest Service data for

California,® CFA estimates that there are 9.8 million

’ The range is 4.9 to 7.4 miles of road per square mile of forest.

* Although Amici do not represent federal agencies, Amici do have

members who use or maintain forest roads on federal lands and,

thus, would likely be responsible for bearing the cost of obtaining

NPDES rainwater permits. Moreover, the number of federal roads

that would be subject to the decision is important to the interests

(continued...)

acres of productive unreserved forest within the state

under the Service’s jurisdiction, equivalent to 15,312

square miles of forest.’ CFA also estimates that these

lands are covered by 46,800 miles of forest roads, and

that these roads, depending on their use, can have up

to 20 water conveyances per mile.’? CFA estimates

that 45% of the Service’s California forest road

miles—approximately 21,000—have culverts or

ditches. Assuming that, of those roads having culverts

or ditches, there are approximately 20 of such

structures per mile of forest road, then the estimated

number of NPDES permitting sites is 420,000.

However, the Service’s data include “cross-drains”

among water conveyance structures. Generally, such

drains do not deliver rainwater to streams or rivers,

and thus would not be covered by the Ninth Circuit

decision. Assuming conservatively that half of the

Service’s water conveyance structures are nonper-

mittable cross-drains, then the estimated total water

conveyances associated with Forest Service forest

* (...continued)

of Amici: the more permit requests filed (whether by

governmental or private actors), presumably the longer it will take

for permits to be issued.

“ Forest Service data were provided to CFA in part by personal

communications from various Forest Service engineering person-

nel.

'’ The reason for the discrepancy between private timberlands

and Forest Service land (2.43 to 20) is that, for private California

timberland owners, the practice has been to use outslopes and

rolling dips to disperse rainwater, rather than culverts and ditches

to collect water. The former would not qualify as water

conveyance structures subject to NPDES permitting because they

would not be considered point sources.

roads that are potentially subject to NPDES permitting

is 210,000.

d. Alabama

To demonstrate the impact of the decision outside

of the west coast states, Amici provide the following

data on the State of Alabama. According to Amicus

Alabama Forestry Association, Alabama is comprised

of 22.7 million acres of forest land (68% of the state’s

land area). Alabama has the third most forest land in

the 48 contiguous states, behind only Georgia and

Oregon. There are 22.7 million acres of forest land in

the state with 82% or 29,084 square miles in

nonindustrial family ownership. Based on the

assumed national figure of one water conveyance per

road and one road per mile, there are an estimated

30,000 potential permitting sites in the state on

private lands alone.

3. Summary

Based on the foregoing data, Amici estimate that

the Ninth Circuit decision would result in an

unprecedented increase in NPDES permit applications.

At the national level, Amici estimate the decision will

create an additional 3,000,000 permit applications,

based on the number of affected landowners, or

750,000 applications, based on the number of tree

harvests, or 264,000,000 point source discharges

requiring permits. This places an astronomical

regulatory burden on both federal and state agencies

that oversee or issue NPDES permits. The state data

compiled by Amici supports the national numbers. In

Washington, Amici estimate that the decision may

create an additional 57,000 point source discharges

requiring permits. In Idaho, Amici estimate an

additional 40,000 point source discharges requiring

permits. In California, Amici estimate that the

decision may create an additional 420,000 point source

discharges requiring permits. And, further east, in

Alabama, Amici estimate 30,000 permit sites on

private lands alone.

B. The Panel’s Decision Will Impose

Significant Costs on Industry

Because of the Magnitude

of the New Permitting Obligation

As the preceding section makes clear, the magni-

tude of the permitting requirement placed on forest

landowners, as well as on federal and _ state

enforcement agencies, is huge and _ potentially

unworkable. The Ninth Circuit itself recognized that

fact when it offered its “sympath[y]” with EPA over the

consequences of its ruling. See Nw. Envtl. Def. Center

v. Brown, 640 F.3d at 1085. Further, the attached

declaration, submitted by James A. Hanlon, Director of

EPA’s Office of Wastewater Management in connection

with The National Cotton Council of America v. United

States Environmental Protection Agency, 553 F.3d 927

(6th Cir. 2009) (Appendix A (App.)), confirms that

imposition of an NPDES permitting obligation of the

magnitude discussed above would overwhelm EPA and

the states and make it nearly impossible for forest

landowners to obtain needed permits in a timely

manner. Director Hanlon explains that, currently,

there are over 400,000 NPDES permits administered

by EPA and the states. See Hanlon Decl. 4 11, App. A-

7-A8. In California alone, the number of permittable

rainwater conveyances would exceed that number.

Nationally, the estimated number of permittable sites

would exceed that number by more than 600 fold. The

cost and time required to obtain similar “dredged and

fill” permits under the Clean Water Act is already

intolerable. As this Court has observed, “The average

applicant for an individual [CWA Section 404] permit

spends 788 days and $271,596 in completing the

process, and the average applicant for a nationwide

permit spends 313 days and $28,915—not counting

costs of mitigation or design changes.” Rapanos v.

United States, 547 U.S. 715, 721 (2006) (plurality

opinion). If obtaining a Section 404 permit for the

placement of dredged or fill material can take over two

years and cost nearly $300,000, it does not require

much imagination to envision a similarly costly and

time-consuming process for obtaining a Section 402

NPDES discharge permit resulting from the Ninth

Circuit decision.

A worthwhile comparison can be drawn from

EPA’s experience in issuing a general rainwater

discharge permit for shipping vessels. That permitting

program was also the direct result of litigation. See

Nw. Envtl. Advocates v. U.S. EPA, No. C 03-05760 SI,

2005 U.S. Dist. LEXIS 5373 (N.D. Cal. Mar. 30, 2005).

The decision required EPA to create a permitting

program for approximately 70,000 new discharging

sources.'' EPA needed over two years to devise an

adequate program. See Hanlon Decl. 4% 7, 11, 38, App.

A-5, A-7, A-27-A-28. But one hesitates to guess how

much time the agency would need to produce a

permitting program for over 200 million potential

discharging sources. And while the agency struggles to

produce a new permitting program, forest road owners

and operators will be put in an impossible situation:

'} See http://cfpub.epa.gov/npdes/vessels/background.cfm (last

visited Oct. 14, 2010).

Continue with business as usual and run the risk of

becoming a defendant in a citizen suit, see Hanlon

Decl. © 8, App. A-6—precisely what has happened in

this case—or cease using forest roads and abandoning

their livelihoods.

CONCLUSION

It is impossible to predict the actual impact the

decision below will have on landowners and wood

producers, or federal and state agencies. But it is

possible to predict that the decision below will

drastically change forest road practices with far-

reaching impacts on jobs and the economy. In light of

the legal questions raised by Petitioners, these

practical considerations provide compelling reasons for

this Court to grant the petitions and determine the

proper scope of the Clean Water Act. Amici urge this

Court, therefore, to grant review,

Respectfully submitted,

M. REED HOPPER

Counsel of Record

DAMIEN M. SCHIFF

DANIEL A. HIMEBAUGH

Of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

E-mail: dah@pacificlegal.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Declaration of James A. Hanlon,

Director of EPA’s Office of Wastewater

Management in connection with

The National Cotton Council of

America v. United States

Environmental Protection Agency,

553 F.3d 927 (6th Cir. 2009) ............200- A-1

Appendix A-1

IN THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

THE NATIONAL COTTON )

COUNCIL OF AMERICA, | )

et al., )

) Nos. 06-4630; 07-3180/

Appellant, ) 3181/3182/3183/3184/

) 3185/3186/3187/3191/

Vv. ) 3236

)

UNITED STATES )

ENVIRONMENTAL )

PROTECTION AGENCY )

)

Appellee )

)

D ION OF JAMES

I, James A. Hanlon, declare that the following

statements are true and correct to the best of my

knowledge, information, and belief, and are based on

my personal knowledge and information supplied to me

by employees of the United States Environmental

Protection Agency (EPA or Agency) under my

supervision and information provided by my colleagues

from EPA’s Office of Pesticides Program (OPP).

INTRODUCTION

1. IamdJamesA. Hanlon, Director of the Office

of Wastewater Management in EPA’s Office of Water.

I have served as the Office Director since April of 2002.

As the Director of the Office of Wastewater

Appendix A-2

Management (OWM), I direct the EPA office

responsible for national program direction to the

National Pollutant Discharge Elimination System

(NPDES) permit program, including oversight of

authorized State and Territorial NPDES programs.

OWM has oversight responsibilities and provides

technical assistance supporting EPA regional water

programs. OWM also administers federal financial

and technical assistance for publicly owned treatment

works (e.g., municipal sewage collection systems and

treatment plants). I supervise a staff of approximately

110 permanent full-time and part-time federal

employees. OWM’s annual program (operating) budget

for fiscal year 2009 is approximately $28 million.

OWM's operating budget also supports the manage-

ment of State grants which total near $950 million.

2. Prior to my current position, I served as the

Deputy Office Director of the Office of Science and

Technology (OST) in EPA’s Office of Water beginning

in 1991. OST is responsible for the scientific and

technical basis for federal water quality and safe

drinking water programs, including establishment of

national effluent limitations guidelines and analytical

test methods. OST also provides scientific and

technical support to other Offices with program imple-

mentation responsibilities within the Office of Water,

including OWM, the Office of Wetlands, Oceans, and

Watersheds, and the Office of Ground Water and

Drinking Water. I have worked for EPA for more than

36 years. I received a Bachelor of Science degree in

Civil Engineering from the University of Illinois and a

Masters of Business Administration degree from the

University of Chicago. I am a registered Professional

Engineer in the State of Illinois.

Appendix A-3

3. I have read the Sixth Circuit Court of

Appeal’s Opinion of January 7, 2009, in National

Cotton Council of America, et al.. v. EPA. I understand

that the Environmental and Industry Plaintiffs chal-

lenged EPA’s Final Rule: Application of Pesticides to

Waters of the United States in Compliance with

FIFRA (“Final Rule”) as codified at 40 C.F.R. 122.3(h),

which excludes from NPDES permitting those pesticide

applications consistent with FIFRA requirements that

are applied to or over, including near, waters of the

United States. As a remedy in this litigation, I under-

stand that the Court has determined that the Final

Rule should be vacated.

4. Since January 7, 2009, EPA has been

analyzing the Court’s decision and its impacts while

also providing support to the states and communi-

cating to sectors of the regulated community and

environmental groups. I have heard first-hand the

concern and confusion amongst the permitting

authorities and pesticide applicators about who will be

required to obtain a NPDES permit. EPA has

determined that the Court’s decision clearly impacts

the following point source discharges to, over or near

waters of the United States: discharges of chemical

pesticides that leave a residual or excess and

discharges of all biological pesticides. My staffhas also

worked with the OPP to clarify what pesticide use

patterns will trigger a requirement to obtain an

NPDES permit. At least the following large categories

are covered when sprayed to, over, or near waters of

the United States:

* Mosquito larvicides

- Mosquito adulticides

Appendix A-—4

* Herbicides used to control weeds in lakes

and ponds

- Herbicides used to control weeds in

irrigation systems and other waterways

* Herbicides used to control weeds along ditch

banks in agricultural drainage systems

- Insecticides used in wide-area insect

suppression programs

Herbicides used in wide-area _ control

programs directed at aquatic invasive plant

species

- Herbicides, insecticides and other pesticides

used in forestry programs when applied

over waters of the United States.

5. Using available information sources, OPP

estimated the number of pesticide applicators and

applications for the identified use patterns identified in

paragraph 4. OPP estimates that these categories

represent approximately 365,000 applicators and 5.6

million applications a year. OPP has also provided

information to characterize the pest control needs

which these pesticides address and the availability of

other, nonpesticidal methods of controlling the target

pests. Finally, OPP has provided information on the

impacts of relying only on non-pesticidal methods of

pest control. The information developed by OPP

appears in Appendix A.

6. Because of the large number of similarly

situated discharges, EPA intends to issue a general

permit to cover pesticide discharges covered by the

Decision. Individual permits are designed to address

discrete discharges from fixed locations and would

Appendix A-—5

require an individual public notice and comment

period. In fact, I do not believe either EPA or states

would be able to provide timely coverage to pesticide

applicators using individual permits for nearly all of

the types of pesticide applications covered by the

Decision. Thus, as a practical matter, I believe that

EPA and NPDES authorized states will not be able to

provide applicators with a way to comply with the

CWA’s NPDES requirements without drafting a

general permit for covered application of pesticides.

7. A -vacatur will require EPA and authorized

states and territories to immediately develop NPDES

permits that comply with NPDES regulatory require-

ments found in 40 CFR Part 122 and described in more

detail below. This process will take 2 years to ensure

that all necessary NPDES permit requirements are

met. This estimate is partly based on EPA’s recent

experience in issuing the NPDES general permit for

vessel discharges, which took over 2 years to complete.

Similarly, as discussed below, EPA is suggesting 24

months to develop a final NPDES pesticides general

permit, including the time to work concurrently with

authorized states and territories to draft and finalize

their general permits simultaneously with EPA. When

EPA issues an NPDES permit, it is only effective in

non-authorized states (4), in territories, Indian

Country, and on federal facilities. It is very important

that the authorized permitting authorities keep in step

with EPA to ensure national compliance with the

CWA. A stay would provide EPA and NPDES

authorized states and territories the time necessary to

Appendix A-6

develop, propose, and implement an NPDES permit

that would satisfy the CWA requirements.’

8. Vacatur of the rule before a NPDES permit

can be issued by the permitting authority would place

pesticide applicators in a vulnerable position where

they would be subject immediately to potential citizen

suits for violating the CWA if they discharge pesticide

pollutants to, over or near waters of the United States.

Moreover, the intentiona] discharge of pollutants

without a permit could technically subject an appli-

cator to criminal liability under the CWA, however,

EPA would not expect criminal charges to be brought

during the time period prior to NPDES permitting

authorities being able to make a permit available for

pesticide applicators. Significant harm to public

health could result if applicators choose not to apply

pesticides in order to reduce the risk of liability. Some

states have informed us that applicators in their states

would not apply pesticides after the mandate in this

case issues and prior to when a NPDES permit is

available. A stay of the mandate until April 9, 2011

would prevent disruption to mosquito abatement

programs, farming operations, forest management,

irrigation districts, and other pemittees.

9. For the reasons set out in this Declaration,

I believe that the immediate vacatur of the Final Rule

would cause significant disruption to both EPA’s and

authorized states’ NPDES permitting programs, as

well as the regulated community and others including

' EPA has authorized 46 States and 2 U.S. Virgin Islands to

implement the NPDES program. Where, in this declaration I

refer to authorized states, I am referring to the authorized states

and the U.S. Virgin Islands.

Appendix A~—-7

federal agencies. First, I will provide a detailed

description of the significant adverse effects arising

from an immediate vacatur. Second, I will’explain the

time intensive NPDES permit development process

that gives rise to EPA’s request that the Court stay the

mandate until April 9, 2011 (24 months).

ANTICIPATED IMPACTS TO EPA

AND NPDES AUTHORIZED STATES

AND TERRITORIES IF THE

MANDATE ISSUES BEFORE

NPDES GENERAL PERMIT IS ISSUED

10. The mandate, if it issues prior to the

availability of an NPDES permit, will effectively

prohibit the discharge of almost all pesticides to, over

or near waters of the United States. This would result

in substantial disruption for both EPA and the 47

authorized NPDES permitting authorities. If the

Court’s vacatur were to take effect before EPA and

authorized states and territories are able to issue

NPDES general permits, significant numbers of

pesticide applicators would immediately be faced with

discharging without a permit. There are significant

legal risks (third-party citizen suits) for any person

determined to be discharging a pollutant into waters of

the United States without a permit. Given these risks,

I would predict that significant numbers of pesticide

applicators would seek to obtain NPDES permits

immediately upon issuance of the mandate, where the

permitting authorities would not be prepared to

respond.

11. NPDES authorized permitting authorities

are concerned about whether they will have adequate

resources to issue newly required permits that could

potentially include hundreds of thousands of

Appendix A-8

applications in each state. The current universe of

point sources requiring NPDES permits to discharge

includes individual and general permittees.

Nationally, approximately 45,700 facilities are

authorized to discharge under individual permits.

Another 120,000 facilities (including 70,000 vessels)

are authorized under general permits for non-storm

water discharges. Until the recent inclusion of the

70.000 vessel dischargers, in general, the universe of

non-storm water permittees remained more or less

stable since the inception of the NPDES Program in

1972. The 1987 CWA amendments established

NPDES permit requirements for storm water dis-

charges and the number of permits for stormwater

discharges has increased significantly since then.

EPA’s 1990 and 1999 actions to promulgate the

NPDES regulations for storm water substantially

expanded the universe of point sources subject to

NPDES permit requirements. Today, approximately

7,000 municipalities (approximately 1000 in 1990 and

another 6000 in 1999) require NPDES permits for

discharges from municipal separate storm sewers; 270

of these need individual permits. Approximately

96,500 industrial storm water point sources need

permits. Approximately 250,000 point sources of storm

water associated with construction activity require

permits each year. Thus, the current total universe

requiring NPDES permits (whether individual or

general) is approximately 411,470 facilities. While

most of the latter storm water discharges are

authorized under general permits, more federal and

state employees, resources, and expertise are now

required to effectively manage the NPDES Program

than ever before.

Appendix A—9

12. State governments have not matched the

increased NPDES permitting work load with an

increase in State environmental budgets. States have

indicated that their environmental budgets have either

been static or in decline for many years. In February

2003, the National Academy of Public Administrators

confirmed an analysis by State environmental

administrators demonstrating a budget shortfall of

between seven hundred million to one billion dollars

for implementation of State CWA _ programs.

Understanding What States Need to Protect Water

Quality, Report by a Panel of the National Academy of

Public Administrators for the U.S. Environmental

Protection Agency (2003). States generally have even

fewer resources today. While the resources from the

American Recovery and Reinvestment Act of 2009 will

help fund needed infrastructure projects, additional

funds under this Act are not available for NPDES

activities. At the federal level, available resources for

NPDES oversight activities have declined as well. In

addition to increased numbers of point sources needing

permits, other factors have increased pressure on

NPDES permitting authorities including: (1) more

complex legal challenges to entire programs and

permits from the public, environmental groups, and

industry; (2) increasing complexity of certain types of

permits stemming from more sophisticated water

quality-based regulatory requirements; (3) high

employee attrition rates in NPDES permitting staff,

particularly state employees; and (4) declining federal

grant funding, in real terms, that has historically

augmented the operating budgets of state permitting

agencies.

13. In past efforts to bring new categories of

point source discharges into the NPDES permitting

Appendix A--10

program, EPA has built in time to allow states to

update their NPDES programs to address the new

category prior to requiring permits for that category.

EPA has spoken with the states and they anticipate

needing at least 24 months in order to develop and

implement a federally compliant program, with a

longer time being needed if state statutes or

regulations must be revised prior to permits being

issued to pesticide applicators.* I acknowledge the

need to issue and implement this general permit in an

expedient manner. Under ideal! conditions, EPA would

build time onto the end of EPA's general permit

process to enable states to model their general permits

on EPA’s. However, in order to expedite the process,

here EPA plans on working concurrently with the

states so they may simultaneously be working on their

general permits.

ANTICIPATED IMPACTS TO

PESTICIDE USERS IF THE

MANDATE ISSUES BEFORE

NPDES GENERAL PERMIT IS ISSUED

14. Pesticide users are concerned with what

applications will be covered and how the upcoming

spring spraying season will be affected. Pesticide users

are extremely concerned that once the mandate is

* EPA usually allows State programs one to two years to modify

their programs, which includes EPA review and approval. This

time is necessary for states to conform to changes in the Federal

program. The timeframe typically depends on whether changes

are required to State regulations or to statutes. See, e.g.,

40 C.F.R. §123.62(e). Most states will not have to modify their

regulations because they can issue NPDES permits for pesticide

applications covered by the Decision under their current

authorities.

Appendix A—11

effective, they will become immediately subject to the

requirement to have an NPDES permit and without

one, will be subject to enforcement, andor liable for

citizen suits. If a pesticide applicator is required to

have an NPDES permit, but cannot obtain one because

the permitting authority is unable to issue a timely

permit, an applicator would face a difficult choice. If

the applicator chooses to apply the pesticide, he would

risk being in violation of the CWA which would expose

him to penalties of up to $32,500 a day. Alternatively,

an applicator could decide not to apply a pesticide. The

impact of not using a pesticide would depend on many

factors, including the type and extent of the pest

problem, the nature of the harm caused by the pest,

and whether non-pesticidal alternatives were available

to address the pest problem. The Court’s vacatur will

potentially affect many types of pesticide applicators

who are not accustomed to obtaining NPDES permits

while also requiring permitting authorities to develop

and issue NPDES permits for a class of dischargers

that they have little experience permitting.

15. The sheer number of applicators requesting

NPDES permits will be significant. Although EPA is

still considering aspects of the Court’s decision that

will ultimately affect the scope of the general permit,

the Decision will clearly require large numbers of

pesticide applications to be covered under an NPDES

general permit. At the very least, when the Court

vacates the Final Rule, NPDES permits will be needed

for each pesticide application that is applied directly to

or over waters of the United States to control pests.

Examples of such pests include mosquitoes, which

transmit infectious diseases such as encephalitis and

West Nile Virus, gypsy moths, which defoliate forests

causing growth loss or the death of trees; algae and

Appendix A-12

weeds, which can clog irrigation canals reducing the

amount of water available to irrigate crops; and

invasive species such as zebra mussels, which attach to

and block water intakes for municipal water supplies

and hydroelectric plants. Information from OPP shows

‘hat as many as 365,000 applicators perform more

than 5.6 million of these types of applications

annually, and would hence need NPDES permit

coverage.

ACTIVITIES PROJECTED

TO BE IMPACTED BY A

NPDES GENERAL PERMIT

16. Toillustrate the magnitude, I have included

the following information developed by OPP on the

impacts of premature vacatur of the EPA Final Rule on

mosquito control programs in the United States.

According to OPP, there are approximately 1200

Mosquito Abatement Districts (MADs) and other

agencies in the United States that apply mosquito

control pesticides, and we estimate conservatively that

each MAD employs at least one applicator. In addi-

tion, OPP’s analysis of available information, including

information from the National Agricultural Aviation

Association, Florida Coordinating Council for Mosquito

Control and EPA data, indicates that there are 99

million acre treatments with adulticides per year and

4 million acre treatments with larvicides. (An acre

treatment represents a single application of a pesticide

to an acre of land or water. Multiple applications to

the same acre result in multiple acre treatments.)

Based on information from these data sources on the

distribution of aerial and ground applications made,

and the number of acres treated per application by air

and ground, there are approximately 461,000

Appendix A~13

applications with adulticides and 19,000 applications

of larvicides per year. Together, the instances of

adulticide applications, and the instances of larvicide

applications yield the total estimate of 480,000

pesticide applications made annually by MADs and

other agencies involved in mosquito control.

17. Programs to control mosquito populations

are important for protecting public health. Although

most types of mosquito-transmitted diseases have been

eradicated from the United States, mosquitoes still

carry some types of disease-causing organisms which

they can transmit when they bite people or animals,

notably including various forms of encephalitis, West

Nile Virus, and dengue.* Disease carrying mosquito

species are found throughout the U.S., especially in

urban areas and coastal or in inland areas where

flooding of low lands frequently occurs.

DEVELOPMENT OF A

PROPOSED GENERAL PERMIT*

18. The development of a legally defensible

general permit for covered pesticide discharges will be

a complex process that requires in-depth analyses of

technical issues, including the technology options used

by pesticide applicators and the impact of their applhi-

cations on water quality. NPDES permit requirements

* A more in depth discussion of these types of diseases can be

found at: Joint Statement on Mosquito Control] in the United

States from the U.S. Environmental Protection Agency (EPA) and

the U.S. Centers for Disease Control and Prevention (CDC), at:

http://www. epa.g ov/opp0000 1/health/mosquitoes/mosquitojoint.

htm

* (No text in original]

Appendix A-14

can be found at 40 CFR Parts 122. The requirements

for approved NPDES state programs can be found in

40 CFR Part 123. Permit procedures can be found in

40 CFR Part 124. These regulations apply to EPA and

to EPA NPDES programs administered by 47 state

authorities.

19. The process to develop a general permit

takes time (40 CFR Part 122, Subpart C). The

development ofa NPDES permit for pesticide pollutant

discharges will require in-depth environmental and

technical analyses. The permitting authority must

identify the types of pesticides and applications that

need permit coverage, and develop permit conditions

necessary to meet the CWA requirements. The per-

mitting authority must give public notice of a draft

permit, provide for public comment, and respond to

those public comments prior to issuing the permit. In

parallel to these efforts, EPA the Agency plans to work

with the state permitting authorities to assist them in

developing their NPDES general permits. In addition,

it is imperative for EPA and authorized states to

inform and educate the regulated community regar-

ding the permit requirements and the process to obtain

permit coverage before the Court’s mandate issues. As

explained in this declaration, EPA estimates this

administrative process to develop, propose, issue, and

implement general permits will take until April 9,

2011, or 24 months to complete.

20. EPA must adhere to the following critical

steps described below in order to develop permit

conditions and requirements that comply with the

NPDES regulatory requirements. Most of these steps

are necessarily sequential under EPA regulations

governing the permitting process. However, EPA is

Appendix A-15

committed, where possible, to conduct tasks concur-

rently with other tasks to reduce the length of time it

will take to complete the process. That process

requires rigorous information gathering, collaboration

with a variety of EPA experts, and careful

technological and scientific analyses. The analyses

will provide EPA with the critical information it needs

to develop a technically sound general permit and meet

the NPDES statutory and regulatory requirements

found at 40 CFR Parts 122 and 125.

21. Identify information ds, collect and

analyze data. The first step in the development of an

NPDES general permit is to collect the data necessary

for a preliminary understanding of the scope of the

universe of sources that might be permitted, existing

practices used by and controls on those sources, and

the possible technology-based and water quality-based

requirements that might be included in one or more

NPDES perm ?ts for those sources. EPA has begun to

collect a wide variety of information and will continue

to do so as it develops permits for pesticide applicators.

EPA will continue to engage in the following activities

to collect and/or analyze the necessary information:

* Collection and review of information about

pesticide labeling requirements and other

aspects of the FIFRA program from EPA

employees with expertise in pesticide

regulations under FIFRA and by EPA

employees with an expertise in the NPDES

permit program under the CWA.

* Review existing data on the effects of the

relevant pesticides on water quality.

Appendix A-16

- Review existing state permits and other

authorities that regulate pesticides and the

extent to which they meet federal require-

ments,

* Collect and analyze data on the number of

pesticide applicators and applications.

- Collect and analyze data on existing state

water quality standards for pesticides,

waters designated as impaired by these

pesticides and any total maximum daily

loads for pesticides.

* Review pesticide use patterns and analyze

the extent to which different permits or

requirements would be appropriate.

- Analyze the extent to which existing pesti-

cide labels require an integrated pest

management approach to pesticide use,

including consideration of the least toxic

alternative.

- Review whether’ special permit

requirements will be necessary to address

inert ingredients and adjuvants.

- Review the types of application equipment

and best management practices employed to

minimize the impact of pesticides on water

quality.

In my experience, the time it takes to develop and

analyze such data can be lengthy and averages

between 12 and 18 months, depending on the

complexity of the universe to be permitted, in order to

draft permit conditions and limitations (40 CFR Parts

123.43 and 123.44). In light of the urgency that would

Appendix A—17

be created by the Court’s vacatur, I estimate that a

minimally adequate effort to identify information

needs, and collect and analyze data could be performed

in 3 months.

22. EPA’s Office of Pesticide Programs (OPP)

has an extensive database on the toxicity, environ-

mental fate, and other properties of pesticides. In

addition, under FIFRA, which OPP administers, any

person who produces a pesticide must report annually

on the identity and amount of pesticide product

produced. This information, together with data from

USDA and private sources, give EPA a general

understanding of the amounts of pesticide production

and usage. Finally, OPP has additional information

concerning equipment used to apply pesticides,

methods of integrated pest management techniques,

and other aspects of pesticide use that may be relevant

to the development of a CWA general permit.

23. While OPP has collected a significant

amount of data about pesticide usage and ingredients,

it is critical for OWM to synthesize and analyze this

data for CWA regulatory purposes because OPP data

has been analyzed only under FIFRA,

24. Scope and define universe to be permitted.

Because EPA will be developing a program for pesti-

cide applicators who have never before had NPDES

permits, it is EPA’s experience that there will be “gray

areas’ that will require EPA to make decisions about

whether some categories of pesticide applicators are or

are not required to have an NPDES permit. EPA will

need to clarify which applicators are eligible to be

covered under the general permits developed by EPA.

After analyzing the appropriate information and

making preliminary decisions regarding the potential

Appendix A-18

requirements likely to be required of certain categories

of pesticide applicators, EPA will need to decide

whether it will be necessary to develop different

permits for specific subcategories of pesticide

applicators. This process will most likely take place

concurrently with the data analysis process described

above.

25. Develop draft permit and fact sheet. Prior

to issuance of an NPDES permit, EPA or an approved

state must develop a draft permit and fact sheet that

explains the basis for the requirements and conditions

in the draft permit. See 40 CFR 124.8(a). EPA must

provide notice of these documents to the public and

give the public an opportunity to comment on them.

See 40 CFR Part 124.10. The development of these

documents requires EPA to develop the permits’

technology-based effluent limitations, any more strin-

gent effluent limitations necessary to protect water

quality, monitoring and reporting requirements and,

standard and special conditions. These are discussed

below. In my experience, in order to prepare a draft

permit that will be developed sufficiently to allow for

meaningful public comment and a legally defensible

final permit, there must be several iterations of

preliminary draft documents by the EPA workgroup,

discussions with knowledgeable stakeholders and

management review and decisions. I anticipate that

this process will extend approximately 6 months

beyond the initial data collection period.

base imita-

tions. EPA will need to develop the technology-based

permit limitations for the permit. The CWA requires

that such permit limits reflect the “Best Available

Technology Economically Achievable” (BAT). See

Appendix A-—19

33 U.S.C.A §1311(b)(2)(A). Because there is no

national effluent limitations guideline for pesticide

applicators, EPA will need to develop technology based

effluent limitations on a “best professional judgment”

(BPJ) basis considering the same factors applicable to

the development of an effluent guideline. 40 CFR

125.3(c) (2). This process will begin during our initial

data analyses, depending on what data is received.

27. Develop water quality based effluent limita-

tions, if and where necessary. An NPDES permit may

not authorize a discharge that will cause or contribute

to the violation of water quality standards. See

33 U.S.C.A. §1311(b)(1)(C). Because water quality

standards are state specific, whether a discharge would

violate water quality standards can vary from state to

state. An NPDES permit must contain a water quality

based permit limit if there is a reasonable potential for

the discharge to cause or contribute to the exceedance

of a water quality standard. See 40 CFR Part

122.44(d). For pesticide applications, such limitations

might include limitations on the time of applications

(e.g., fish spawning season) and limitations on where

pesticides could be applied (e.g., not near drinking

water intakes or in outstanding natural waters). EPA

will need to review the water quality standards in each

state for which it will be issuing a permit and deter-

mine whether additional limitations are needed to

protect water quality. This exercise will take place

concurrently with the critical steps described above.

28. Monitoring and reporting requirements.

Permits must specify all monitoring and reporting that

the permittee must perform. See 40 CFR 122.41()).

Such requirements vary depending on the nature of the

effluent limitations in the permit. EPA will make

Appendix A—20

efforts to ensure that any such requirements provide

information that is useful and does not duplicate

reporting that is being required under other state or

federal laws. EPA is required by the Paperwork

Reduction Act to develop an Information Collection

Request (ICR) that estimates the burden of collecting

and reporting information required by EPA. 44 U.S.C

3501, et seq. The estimate must be based on estimates

of the number of permittees and the average cost of the

burden imposed on individual permittees. The ICR is

made available for public comment along with the

draft permit. EPA is required to consider the public

comments, revise the ICR as appropriate, and then

forward the ICR to Office of Information and

Regulatory Affairs at the Office of Management and

Budget (OIRA), which again provides public notice.

The draft ICR process will be prepared while preparing

the proposed general permit.

29. Standard conditions and special conditions.

All permits contain standard conditions that are

required by 40 CFR Parts 122.41 and 122.42 and

which delineate the legal, administrative and

procedural requirements of the permits. Because they

are “standard”, EPA does not expect to need significant

time to develop these for the general permit. Special

conditions, on the other hand, may take considerable

time to develop. Special conditions are non-numeric

limits that require the permittee to undertake

activities designed to reduce the overall quantity of

pollutants being discharged, or to reduce the potential

for discharges of pollutants. As is described in the U.S.

EPA Permit Writers Manual at page 137, special

conditions may be used for “facilities discharging

pollutants for which data are absent or limited such

that derivations of technology or water quality-based

Appendix A~21

effluent limitations are difficult or impossible.” Special

conditions may contain preventative requirements

such as best management practices. They also may

impose additional monitoring requirements or special

studies that provide the permit writer data to evaluate

the need for changes in permit limitations. Because of

the unique challenges of, and EPA’s lack of experience

with, developing NPDES permits for the pesticide

applicators, EPA may need to expend considerable

effort considering the need for and developing special

conditions for the permit.

30. Public notice and public hearings. After

EPA finishes drafting the proposed general permit, it

is required to issue a public notice of the draft permit

and to provide the public a minimum of 30 days to

comment on the permit. 40 CFR 124.10. If a hearing

is scheduled, the comment period is automatically

extended until the close of the hearing. 40 CFR

124.12(c). A hearing is required whenever there is

significant public interest expressed during the

comment period. I anticipate such interest and

therefore EPA will most likely hold a hearing. Based

on this anticipated interest, I believe there would be a

benefit to providing a longer comment period such as

the 90 days that EPA often provides for significant

actions. This would also allow EPA an opportunity to

schedule public hearings during the comment period

and for commenters to then be able to include

information presented at those hearings in their

comments. This process will begin immediately after

the draft general permit is completed and ready for

publication. I anticipate that this process will take 3

months.

Appendix A-22

31. Respond to comments and develop

Administrative record. At the close of the comment

period on the proposed general permit, the work group

must review the comments to determine whether

appropriate changes to the draft permit should be

made.® Even if comments do not result in such

changes, EPA must prepare a written response to all

significant comments. The time it takes to respond to

comments is dependent on the number of comments

and the complexity of the issues that are raised. For

example, in response to the Federal Register Notice for

the draft NPDES general permits for discharges

incidental to non-recreational vessels, EPA received

over 1600 comments and more than 10,000 pages of

government reports and publications, scientific papers,

and other information. The response to comment

document which responded to all significant comments

regarding the Vessels General Permit was 1,273 pages

long and took four months of intense effort to complete.

I anticipate a similar or greater level of public interest

in a general permit for covered pesticide applications,

ultimately, requiring as much, if not more of a signi-

ficant effort to respond to comments as was required

for the Vessels General Permit. During this period, the

° EPA intends to form a workgroup of co-regulators. The goal for

this workgroup will be to provide EPA information on state

pesticide permit programs, what works, what doesn’t, and identify

any state Agency barriers that could impede a state's timely

issuance of Pesticides General Permits and/or processes that must

be employed to remove these barriers. EPA will also confer with

Association of American Pesticide Control Officials (AAPCO) and

the State FIFRA Issues Research and Evaluation Group

(SFIREG). AAPCO is an association that encourages uniformity

among the states in their pesticide regulatory programs. Its

members consist of state and federal pesticide regulatory officials.

Appendix A—23

Agency will also revise the permit fact sheet and other

analyses in light of comments received. I estimate that

EPA will ,require 8 months to respond to comments

and develop and publish a final permit. During this

time, EPA will simultaneously perform related

activities that various statutes require before the

permit is final and which are described below.

32. CWA§ 401 Certification. Under CWA § 401,

EPA may not issue an NPDES permit unless it has

obtained a certification (or a waiver of certification)

from States, Territories, and certain Tribes where

discharges authorized under the permit occur,

regarding whether an authorized discharge will comply

with their water quality standards or other

appropriate requirements of their law. EPA must send

letters to the certifying jurisdictions requesting written

determinations regarding certification under CWA

§ 401. EPA will notify the certifying jurisdictions that

EPA may not issue a permit authorizing discharges

into their waters until the certifying agency has

granted certification under CWA § 401, or has waived

its right to certify by not responding to the request for

certification within 45 days from the date the draft

permit was mailed to them. In addition, EPA will

notify the certifying jurisdictions of the statutory and

regulatory requirements applicable to CWA § 401

certifications, including the requirement that certifi-

cations must contain any specific conditions necessary

to assure compliance with their water quality

standards or other appropriate requirements of their

law. 33 U.S.C. § 1341(d); 40 C.F.R. § 124.53(e)(1).

States may publicly notice and solicit comment on their

401 certifications. This process will take a minimum

of two months but will occur during the period when

Appendix A—24

EPA is developing the response to comments on the

draft permit and preparing the final permit.

33 Coastal Zone Management Act. Similarly,

EPA may not issue a general permit authorizing dis-

charges into waters of a State until after determining

whether its action is consistent to the maximum extent

practicable with the enforceable policies of approved

State coastal zone management programs under the

Coastal Zone Management Act (““CZMA”). 15 C.F.R.

$30.31(d) and 930.36(e). EPA consults on its

consistency determination with the affected State(s).

A State may respond to EPA with conditions to the

general permit that allow the State to concur with

EPA's consistency determination. If EPA does not

incorporate the State coastal zone management

agency's conditions into the general permit or if the

State coastal zone management agency objects to the

general permit, then the general permit is not

available for use by potential general permit users in

that State unless the applicant who wants to use the

general permit provides the State agency with the

applicant’s consistency determination and the State

agency concurs. 15 C.F.R. 930.31(d). The National

Oceanic and Atmospheric Administration (NOAA), the

federal agency that administers the CZMA, has

explained that “a State objection to a consistency

determination for the issuance of a general permit

would alter the form of CZMA compliance required,

transforming the general permit into a series of case by

case CZMA decisions and requiring an individual who

wants to use the general permit to submit an

individual consistency certification to the State agency

in compliance with 15 CFR part 930.” 71 FR 788, 793.

In any State that has not provided conditions for

incorporation into the permit, as well as any State that

Appendix A-—25

has not objected to the permit, EPA’s CZMA

compliance requirements derive from CZMA section

307(c)(1). Id. I expect that this process will occur

simultaneously with the 401 certification process.

34. Endangered Species Act Consultation: Con-

current with the development of the proposed general

permit, EPA will devote substantial resources to

fulfilling its obligations under the Endangered Species

Act (ESA), if EPA determines it is necessary. The ESA

requires Federal agencies to ensure that the actions

they authorize, fund, or carry out are not likely to

jeopardize the continued existence of any endangered

or threatened species or result in the destruction or

adverse modification of their designated critical

habitats. Pursuant to ESA § 7(a)(2) and its imple-

menting regulations at 50 C.F.R. § 402.14(c), EPA will

submit a request for consultation package to the

National Marine Fisheries Service and the U.S. Fish

and Wildlife Service (“Services”) regarding the

issuance of the Pesticides General Permit, if EPA

determines that consultation is indicated because of

the nature of activities that may take place under a

permit. EPA intends to develop a biological evaluation

using the best available scientific and commercial data

to analyze the potential effects of the proposed general

permit upon listed species or critical habitat and a

description of relevant listed species and their

designated habitat. EPA will support the Services on

their development of a biological opinion, if one is

necessary. This will be a significant endeavor since the

Pesticides General Permit will cover at least 500 active

ingredients and as many as 900 inert ingredients. We

estimate that it will take the entire length of the stay

for the Endangered Species Act consultation, if it is

determined to be necessary.

Appendix A—26

35. Issue final permit. The final general permit

and supporting materials will reflect appropriate

resolution of comments received and issues raised

following the proposal. The final general permit will

undergo an internal review process. A notice will be

prepared that will be published in the Federal

month period identified above, which includes:

response to comments, 401 certification, CZMA deter-

mination, preparation of the final Information

Collection Request and OMB review of the Information

Collection Request.

36. Implementation: EPA believes additional

time is required after the final issuance of the general

permit to make the regulated community aware of its

terms and conditions. Given that most applicators will

not have ever been subject to an NPDES permit, and

depending on what the final permit requires, appli-

cators will need time to bring their practices into

conformance with the final permit. The general permit

will specify whether or not some or all applicators must

file a Notice of Intent prior to being covered by the

general permit. Notices of Intent to be covered by a

general permit often must be accompanied by

documents that describe the permittee’s best manage-

ment practices or other plans that the permittee will

implement. The permittee would need time to develop

and submit such documents. Although I can not

predict the extent to which the final general permit

will impose requirements that will take time for

applicators to be able to comply with, I estimate that 4

months would be a minimally reasonable ti me to

educate applicators and allow them to come into

compliance with the terms of a new general permit.

Four months will also provide time to non-federal

Appendix A-27

authorized permitting authorities to issue and begin

implementing their final general permits.

37. | am aware that twenty-three states have

developed permits to cover some types of pesticide

discharges. I am aware California issued its general

permit on an emergency basis four months after the

Headwaters decision to authorize certain short term

and seasonal discharges of pesticide pollutants by

public entities for resource or pest management.

Additionally, the State of Washington issued its

general permit 15 months after the Headwaters

decision to authorize certain pesticide applications

directed to aquatic plants. However, these permits

cover only a specific subset of the universe of

applicators and pesticides that will likely be covered by

the general permit that EPA issues, such as pesticides

for the control of weeds, algae, mosquitoes, nonindi-

genous fish, crustaceans and insects. Additionally,

EPA must meet the rigorous statutory requirements

outlined above. The estimated time that EPA is

requesting the Court to consider reflects the additional

time needed to develop, propose, and issue a general

permit for all pesticide applications that are covered

under the Opinion. My staff is evaluating the scope of

these permits, their provisions, and requirements for

maintaining and protecting water quality and

compliance with the CWA. Thus, the time frames in

which these two States issued their general permits do

not represent the time needed by EPA and the States

to issue permits in response to this Decision.

PAST EPA EXPERIENCE IN ISSUANCE

OF VESSELS GENERAL PERMIT

38. As briefly discussed above, EPA recently

issued the Vessels General Permit. That permit, which

Appendix A-—28

also addressed a category of discharges that had

previously been exempt, is a useful illustration of the

general permitting process and the time necessary to

draft a general permit. I believe a similar amount of

time is necessary to develop, propose, and issue an

NPDES general permit for point source discharges of

pesticides. The Vessels General Permit was a result of

litigation over a long-standing EPA regulation that

excluded discharges incidental to the normal operation

of a vessel from the need to obtain a NPDES permit.

The Vessels General Permit covers discharges

incidental to the normal operation of vessels. The

Vessels General Permit took over two years to propose

and finalize. I have no reason to believe that this

process would be any faster or simpler for pesticide

discharges subject to the Court’s decision.

SUMMARY OF TIME

REQUESTED TO STAY THE MANDATE

EPA estimates that it needs until April 9, 2011

before the rule is vacated to develop, propose, and take

final action to issue an NPDES general permit that

would be consistent with and satisfy the CWA

requirements. In developing the NPDES General

Permit for Pesticide Applications we will work closely

with authorized states and will encourage them to

develop their general permits concurrent with the

development of EPA’s draft general permit to expedite

implementation.

Appendix A-—29

CONCLUSION

I declare under penalty of perjury that the

foregoing is true and correct, to the best of my

knowledge and belief.

Executed on April 8, 2009

/s/ James A. Hanlon

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.