Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338, 11-347

3n The

Supreme Court of the Anited States

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners.

Vz.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

o

GEORGIA-PACIFIC WEST, INC., et ai.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

.

On Petition For Writs Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

+

AMICUS CURIAE BRIEF OF

THE STATES OF ARKANSAS, ET AL.

IN SUPPORT OF THE PETITIONERS

°

OFFICE OF THE ARKANSAS DUSTIN MCDANIEL

ATTORNEY GENERAL Arkansas Attorney General

323 Center Street, Ste. 200 CHARLES L. MOULTON

Little Rock, AR 72201 Senior Assistant

(501) 682-7383 Attorney General

Kendra.jones@arkansasag.gov KENDRA AKIN JONES*

Assistant Attorney General

*Counsel of Record

Attorneys for Amici Curiae OCTOBER 14, 2011

(Additional States Listed Inside Cover)

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 242-2831

LUTHER STRANGE

Attorney General

STATE OF ALABAMA

501 Washington Avenue

Montgomery, Alabama

36130

JOHN J. BURNS

Attorney General of Alaska

P.O. Box 110300

Juneau, Alaska 99811

PAMELA JO BONDI

Attorney General of Florida

The Capitol, PL-01

Tallahassee, Florida 32399

SAMUEL S. OLENS

Attorney General

STATE OF GEORGIA

40 Capitol Sq., SW

Atlanta, Georgia 30334

LAWRENCE G. WASDEN

Idaho Attorney General

P.O. Box 83720

Boise, Idaho 83720

DEREK SCHMIDT

Kansas Attorney General

120 SW 10th Avenue,

2nd Floor

Topeka, Kansas 66612

JACK CONWAY

Attorney General of Kentucky

COMMONWEALTH OF KENTUCKY

700 Capital Avenue,

Suite 118

Frankfort, Kentucky 40601

JAMES D. “BuDDY” CALDWELL

Attorney General

of Louisiana

P.O. Box 94005

Baton Rouge, Louisiana

70802

WILLIAM J. SCHNEIDER

Attorney General

STATE OF MAINE

6 State House Station

Augusta, Maine 04333

BILL SCHUETTE

Michigan Attorney General

P.O. Box 30212

Lansing, Michigan 48909

JIM Hoop

Mississippi Attorney General

P.O. Box 220

Jackson, Mississippi 39205

CHRIS KOSTER

Attorney General of Missouri

Supreme Court Building

207 W High Street

Jefferson City, Missouri

65101

STEVE BULLOCK

Montana Attorney General

215 N Sanders

P.O. Box 201401

Helena, Montana 59620

MICHAEL A. DELANEY

Attorney General

of New Hampshire

33 Capitol Street

Concord, New Hampshire

03301

GARY KING

New Mexico Attorney General

P.O. Drawer 1508

Santa Fe, New Mexico 87504

MICHAEL DEWINE

Ohio Attorney General

30 E Broad Street

Columbus, Ohio 43215

E. SCOTT PRUITT

Attorney General

of Oklahoma

313 NE 21st Street

Oklahoma City, Oklahoma

73105

LINDA L. KELLY

Pennsylvania Attorney

General

Strawberry Square

Harrisburg, Pennsylvania

17120

ALAN WILSON

South Carolina Attorney

General

P.O. Box 11549

Columbia, South Carolina

29211

MARTY J. JACKLEY

Attorney General

STATE OF SOUTH DAKOTA

1302 E Highway 14, Suite 1

Pierre, South Dakota 57501

ROBERT E. COOPER, JR.

Attorney General

of Tennessee

P.O. Box 20207

Nashville, Tennessee 37202

MARK L. SHURTLEFF

Utah Attorney General

Utah State Capitol

Suite #230

P.O. Box 142320

Salt Lake City, Utah 84114

KENNETH T. CUCCINELLI, II

Attorney General of Virginia

900 E Main Street

Richmond, Virginia 23219

ROBERT M. MCKENNA

Attorney General

of Washington

1125 Washington Street SE

P.O. Box 40100

Olympia, Washington 98504

GREGORY A. PHILLIPS

Attorney General of Wyoming

123 State Capitol

Cheyenne, Wyoming 82002

i

TABLE OF CONTENTS

Page

yr OF Be iy, 6 fy y | - enn ii

INTEREST OF AMICI CURIAE .....................04+- 1

INTRODUCTION AND SUMMARY OF

TTT ii iiiinssieicihivisanlaniateiineeiideiiaiadaibilalindonmmnniencivinis 2

TE sii idnteritenncicitintincdidinidensiunitainnianinenininies 5

A. The Ninth Circuit Failed To Defer To

EPA’s Reasonable Interpretation Of The

ETA GaP ee et ete Oe a 5

1. The Silviculture Rule .........ccccccccscesccese 5

2. The 1987 Stormwater Amendments.... 10

B. The Ninth Circuit’s Decision Raises An

Issue Of Exceptional Importance War-

ranting Review Because Of The Impact

It Will Have On Existing State BMP

III i csicsdsinhaniniedatdcisieabeshinbsienindiditubaininieidions 12

C. The Ninth Circuit’s Decision Creates a

SESE ee ao Ae eS ARN eR ne 17

Scie dinctnssbnmipcncincincesiseninenitineniennbtenin 21

ll

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992)................. 2

Auer vu. Robbins, 519 U.S. 452 (1997)................ cmcenmenl 6

Chevron U.S.A., Inc. v. Natural Res. Def. Coun-

i Se Cs re Ci iccrccttnnctcitsctinnnesseviens 5,6,9, 11

Commodity Futures Trading Comm’n v. Schor,

Ce ee cca aeesitherniesaiemtinisiiiennindencuitinnnepninn 11

Conservation Law Foundation v. Hannaford

Bros. Co., 327 F.Supp.2d 325 (D. Vermont

SEITE sscieisiisceiedebteinhiaesaiesiabcasapiilaaatebdiididheasicenininiuaiahaiapbioaniabaanbnies 20

League of Wilderness Defenders v. Forsgren,

309 F.3d 1181 (Oth Cir. 2002). ...........ccsvessorccoeeesses 8,9

Newton County Wildlife Association v. Rogers,

141 F.3d 803 (8th Cir. 1998) ...................ecceseeees 18, 19

Sierra Club v. Martin, 71 F.Supp.2d 1268 (N.D.

SN SIIIIIIIE dsisreinisthecniiipcnienebennmiinnimeninndenedeenentinnte 19, 20

United States v. Mead Corp., 533 U.S. 218

tt bsechinccsciidtininhigeamiasiidinnsiadmliiminalinmiaibeneenniiieds 5

Waltman v. King William County School Board,

et al., 2010 EL 10006889 (E.D. Virginia 2010) ...... 20

STATUTES

Clean Water Act 33 U.S.C. §§ 1251-1387:

Section 306, 3B U.S.C. § LBBB........ccccocccccecccccvcscccccess 6

Bectios BIS, SB UBC. § TBD ..cccccccecesesccccsscccesccssese 12

ili

TABLE OF AUTHORITIES — Continued

Page

Section 319, 33 U.S.C. § 1329............... 1, 4, 5, 12, 14

Bowtiam GOB. BE UTC. 6 BBGB ccccccccccccecccocccccccssssesses 10

SE Ss, Bee Ts OB iiiiccidecsccstsncnccnccsieenenen 4

Section 502, 33 U.S.C. § 1962................cccccsreseesees 3,6

FEDERAL REGULATIONS

eke BS 8 eee eaiiaiesddscisiainnincadiiuishiamaneidiitl 4

a i issih lennnannnbinincienibannided 4

ee BE iiitininiterninidcnccninnsdicininnimsipimiianitcagnniinnhiinibais 10

es Oe IEEE nisndipiinsicansicipnndniiianaaiiiiiionidiiin 1, 4, 7,9, 18

FEDERAL REGISTER

41 Fed. Reg. 6,282 (Feb. 12, 1976)..........2-.........20006 4,7

41 Fed. Reg. 24,710 (June 18, 1976)..................ceeeeeeeee 7

41 Fed. Reg. 24,711 (June 18, 1976) ................ceceeeeeees 7

55 Fed. Reg. 48,011 (November 16, 1990) ................. 10

55 Fed. Reg. 48,008-48011 (November 16, 1990)...... 11

55 Fed. Reg. 48,088 (November 16, 1990)................. 10

OTHER

EPA FY 2012 Budget Hearing Before the Senate

Interior, Environment and Related Agencies

Subcommittee, 112th Cong. (2011) ...........0... eee eee 16

iv

TABLE OF AUTHORITIES — Continued

Page

Florida Division of Agriculture and Consumer

Services, Silvicultural Best Management

ET ALT IN ENA SILC SN, eT Soe 13

John Gifford, Practical Forestry 12 (1907).................. 6

National Council for Air and Stream Improve-

ment, Inc., Compendium of forestry best man-

agement practices for controlling nonpoint

source pollution in North America, Technical

DUNES DOB Gee Cicer ecccccccvcnssvcccesansesescssanes 13, 14

R. Olszewski & C.R. Jackson, Best Manage-

ment Practices and Water Quality, National

Council for Air and Stream Improvement,

SI cesidaciniceieaintiedunesseasesiibioaniataitasicaisipbesibuiamnieninietinioniveninn 14

S. Rep. No. 9B-G24, 1-21 (1071) ........000scccececsccceseososesoese 2

United States Environmental Protection Agen-

cy, National Management Measures to Con-

trol Nonpoint Source Pollution from Forestry,

Pub. No. EPA-841-B-05-001, at page 1-1

ITE CID tetcicncintidintitsinitinandtcetmniadcnnneiinadiengnnitiiniioniiiiniientin 16

1

INTEREST OF AMICI CURIAE'

For over three decades, federal and state agen-

cies, courts and private parties have understood the

Environmental! Protection Agency’s Silvicultural Rule

— 40 C.F.R. § 122.27 — to exempt stormwater runoff

from forest roads from the Rule’s requirement of a

National Pollutant Discharge Elimination System

(“NPDES”) Permit, regardless of whether that storm-

water is collected via man-made ditches or culverts.

While the amici curiae states agree that stormwater

runoff should be managed to minimize the amount of

sediment delivered to a state’s waters during storm

events, Congress recognized that such potential water

pollution resulting from non-point source activities is

best regulated at a local level. In that vein, 33 U.S.C.

§ 1329 requires states to develop management pro-

grams for non-point source pollution and report to

EPA on the best management practices (“BMPs”) that

are being used to reduce water pollution from non-

point sources, such as forest roads. See generally 33

U.S.C. § 1329. The amici curiae states have followed

Congressional and EPA's directives, and have worked

to ensure individuals and companies who conduct

timber harvesting to implement BMPs for forest road

construction and maintenance in order to protect

water quality and wildlife. The Ninth Circuit’s deci-

sion effectively invalidates EPA’s Silvicultural Rule

‘ In accordance with Rule 37.2 the State of Arkansas

provided notice to all counsel of record for all parties on October

3, 2011, which is more than 10 days before filing.

2

by determining that stormwater runoff collected in

ditches and culverts is a point source of pollution,

rather than a non-point source of pollution. Com-

pounding the problem, the Ninth Circuit further ruled

that timber harvesting constitutes an “industrial ac-

tivity” under Phase I of the EPA’s stormwater permit

program, and the roads that are a necessary compo-

nent of timber harvests requires National Pollution

Discharge Elimination (“NPDES”) permits. Because

this decision fundamentally impacts existing state

programs, amici urge this Court to grant certiorari.

¢

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. Congress enacted the Clean Water Act (“CWA”) in

1972. The CWA provided EPA with the authority to

implement a consistent program throughout the U.S.

designed to protect the waters of the nation from

pollution. See, e.g., Arkansas v. Oklahoma, 503 U.S.

91, 110 (1992) (CWA’s objective was “authorizing EPA

to create and manage a uniform system of interstate

water pollution regulation.”). Prior to the enactment

of the CWA, protection of the waters was handled by

individual states. See S. Rep. No. 92-414, 1-11 (1971).

The CWA’s cornerstone is a permitting require-

ment for “point source” discharges, i.e., discharges

of pollutants through “any discernible, confined and

discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete

3

fissure, container, rolling stock, concentrated animal

feeding operation, or vessel or other floating craft

*** ” 33 U.S.C. § 1362(14). This permitting program

is the National Pollutant Discharge Elimination Sys-

tem (NPDES) permitting program.

EPA promulgated rules to implement the NPDES

permitting program, including rules clarifying when

permits were and were not required. One of these

rules is known as the Silvicultural Rule. The Silvi-

cultural Rule states:

(a) Permit requirement. Silvicultural

point sources, as defined in this section, as

point sources subject to the NPDES permit

program.

(b) Definitions.

(1) Silvicultural point source means

any discernible, confined and discrete con-

veyance related to rock crushing, gravel

washing, log sorting, or log storage facilities

which are operated in connection with silvi-

cultural activities and from which pollutants

are discharged into waters of the United

States. The term does not include non-point

source silvicultural activities such as nursery

operations, site preparation, reforestation and

subsequent cultural treatment, thinning, pre-

scribed burning, pest and fire control, har-

vesting operations, surface drainage, or road

construction and maintenance from which

there is natural runoff. However, some of

these activities (such as stream crossing for

roads) may involve point source discharges

4

of dredged or fill material which may require

a CWA section 404 permit (See 33 CFR

209.120 and part 233) (emphasis added).

40 C.F.R. § 122.27. EPA has consistently maintained

that, pursuant to this rule, “ditches, pipes and drains

that serve only to channel, direct and convey non-

point runoff from precipitation are not meant to be

subject to the § 402 [point source] permit program”

41 Fed. Reg. 6,282 (Feb. 12, 1976). State agencies

charged with implementing the CWA have followed

EPA’s lead, and the clear language of the Silvicultural

Rule, and have managed runoff from timber harvest

roads as non-point sources of pollution. This Court

should grant certiorari because EPA’s longstanding

position that timber harvest roads are a source of

non-point source pollution is correct and consistent

with the mandates of the CWA, should be given def-

erence, and should not have been overturned by the

Ninth Circuit.

2. Congress recognized that runoff from timber har-

vesting operations and forest roads, if improperly

managed, can result in a significant degradation of

water quality. Congress also recognized that manage-

ment of non-point source activities is best handled by

state and local government. To address the issue of

non-point source runoff, Congress enacted 33 U.S.C.

§ 1329. This law requires amici states to develop best

management practices and programs for non-point

source pollution, report to EPA the BMPs that are

being utilized within a state to reduce, and in some

instances eliminate, water pollution from non-point

5

sources. See, 33 U.S.C. § 1829. Amici states urge this

Court to grant certiorari because the Ninth Circuit’s

decision effectively rescinds the authority granted to

the states by Congress’ passage of 33 U.S.C. § 1329,

and rescinds the best management programs adopted

and tailored by each individual state in favor of the

CWA’s NPDES permit program.

3. EPA’s approach that channeled precipitation from

forest management and timber harvesting roads

should be managed as a non-point source of pollution

has been consistently upheld by other courts. This

Court should grant certiorari because the Ninth

Circuit is at odds with the decisions of other circuits

and threatens the consistent interpretation upon

which EPA, the states, and the forest industry have

relied since the inception of the CWA.

°

ARGUMENT

A. The Ninth Circuit Failed To Defer To EPA’s

Reasonable Interpretation Of The Clean

Water Act

1. The Silvicultural Rule

The Ninth Circuit’s refusal to defer to the EPA’s

Silvicultural Rule violates what is commonly known

as the Chevron deference rule. Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837 (1984). Under

Chevron, if “Congress has directly spoken to the pre-

cise question at issue,” the agency must effectuate

Congress’ express intent. Id. at 842. See United States

6

vu. Mead Corp., 533 U.S. 218, 226-227 (2001). And if a

statute is “silent or ambiguous with respect to the

specific issue,” a court should defer to the agency’s

interpretation if that interpretation is reasonable.

Chevron, 467 U.S. at 843. See, e.g., Auer v. Robbins,

519 U.S. 452, 461 (1997). In this instance, Congress

has spoken to the issue of channeled runoff from for-

est roads — and EPA’s Silvicultural Rule implements

that congressional intent. At the very least, EPA’s

rule is a reasonable interpretation of the CWA.

In the CWA Congress defined the term “point

source” to exclude “agricultural stormwater dis-

charges.” CWA § 502(14), 33 U.S.C. § 1362(14). Silvi-

culture, the growing and harvesting of trees, is an

agricultural practice. John Gifford, Practical Forestry

12 (1907). Consistent with the fact that silviculture is

an agricultural practice Congress has directed EPA

to develop BMPs to control “to the extent feasible”

the “agriculturally and silviculturally related non-

point sources of pollution.” 33 U.S.C. § 1288(b\2)xF).

Despite this clear legislative directive, the Ninth Cir-

cuit overturned Congress’ intent by holding that tim-

ber harvesting is an “industrial activity.” See slip Pet.

App. 42a.”

The Ninth Circuit’s error in ignoring the CWA’s

exemption that applies to agricultural stormwater

discharges was magnified when it analyzed the two

* Cited to Petitioner, Georgia-Pacific West, Inc. et al.

Appendix.

7

rules at issue in this case — EPA’s 1976 Silvicultural

Rule and EPA’s Phase I 1990 stormwater regulations.

If there was any debate or ambiguity regarding

whether precipitation from forestry roads, whether

channeled or not, constitutes a non-point source of

pollution, or whether timber harvesting is an indus-

trial activity under the CWA, it was removed by the

promulgation of the Silvicultural Rule and EPA’s

Phase I stormwater regulations.

EPA’s Silvicultural Rule clearly and unambigu-

ously defines “surface drainage, or road construction

and maintenance” as a “non-point source” of pollution.

40 C.F.R. § 122.27. EPA has repeatedly explained the

basis for its interpretation that forest road construc-

tion and maintenance constitutes a non-point source

of pollution. Contemporaneous with the promulgation

of the Silvicultural Rule, EPA stated that runoff from

forestry road construction and maintenance is from

“natural processes, including precipitation,” and these

natural processes are “better controlled” through the

use of best management practices. 41 Fed. Reg.

24,710 (June 18, 1976). EPA stated that ditches, pipes

and drains that serve only to channel, direct and

convey non-point source runoff from precipitation are

“not meant to be subject” to the NPDES program. 41

Fed. Reg. 6,282 (Feb. 12, 1976). Finally, EPA contem-

poraneously opined with the promulgation of the

Silvicultural Rule in 1976 that stormwater runoff

from forestry road construction and maintenance has

more of the characteristics “of nonpoint source pollu-

tion.” 41 Fed. Reg. 24,711 (June 18, 1976).

8

In order to cast aside EPA’s analysis that chan-

neled runoff from forestry road construction and main-

tenance is a non-point source of pollution, the Ninth

Circuit relied on its decision in League of Wilderness

Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002).

However, a close reading of the Forsgren decision

reveals that it actually supports the long-standing

interpretation of the Silviculture Rule from which the

Ninth Circuit now departs. The issue in Forsgren was

whether spraying insecticide from an aircraft consti-

tuted point source pollution or non-point source

pollution. The United States Forest Service main-

tained that aerial spraying was a non-point source of

pollution, and relied on the Silvicultural Rule and

informal correspondence and guidance from EPA to

buttress this position. The Ninth Circuit concluded

that the Silvicultural Rule excluded the non-point

source activities listed in the rule when natural

runoff was present, “whereas the spraying involved

here is not a non-point source activity at all.” 309 F.3d

at 1186. The Ninth Circuit then reviewed the two

one-paragraph letters written by EPA, and a brief

passage in an EPA guidance document that the Forest

Service maintained indicated EPA’s intent that an

NPDES permit was not required for aerial spraying.

According to the Ninth Circuit, “these post hoc infor-

mal documents provide no rebuttal to the contempo-

raneous explanation of the regulation published

through notice and comment rule making in the

Federal Register.” Jd. at 1190.

Unlike informal EPA letters and a guidance docu-

ment, which were rejected by the Ninth Circuit as

9

unpersuasive in Forsgren, in this case the Ninth Cir-

cuit had contemporaneous EPA explanations concur-

rent with the passage of the 1976 Silvicultural Rule

and published in the Federal Register. These contem-

poraneous explanations, as detailed in the amicus

brief filed by EPA in this case below, demonstrate

that EPA’s position was — and always has been —

stormwater runoff from channeled forestry road con-

struction and maintenance is a non-point source of

pollution. Nonetheless, the Ninth Circuit gave no cre-

dence, nor deference, to EPA’s explanations published

in the Federal Register during the passage of 40

C.F.R. § 122.27. In doing so, the Ninth Circuit’s deci-

sion also runs afoul of the second step of this Court’s

Chevron analysis. Completely rejecting EPA’s reasoned

and contemporaneous explanations that forestry road

construction and maintenance is a non-point source of

pollution, the Ninth Circuit impermissibly rewrote

EPA’s Silvicultural Rule by espousing a completely

new test, unsupported by any legislative intent or

regulatory interpretation and unrecognized by any

court. According to the Ninth Circuit, with respect to

forest roads, the Silvicultural Rule’s definition of a

non-point source of pollution is limited to solely non-

channeled, ‘natural runoff.’ See Pet. App. 32a. The

Ninth Circuit’s flawed interpretation of the Silvicul-

tural Rule directly conflicts with EPA’s contempora-

neously stated view published in the Federal Regis-

ter, and effectively nullifies the Silvicultural Rule in

violation of Chevron.

10

2. The 1987 Stormwater Amendments

In 1987, Congress amended 33 U.S.C. § 1342(p)

to address the problems associated with stormwater

discharges. Congress directed EPA to require permits

for five categories of stormwater discharges in Phase

I of the program, including those stormwater dis-

charges associated with “industrial activity.” See 33

U.S.C. § 1342(p)(1)-(3). EPA promulgated its Phase I

regulations in 1990, and defined discharges asso-

ciated with industrial activity to include only those

discharges directly related to manufacturing, process-

ing or raw materials storage areas “at an industrial

plant.” See 55 Fed. Reg. at 48,011 (November 16,

1990). Forestry roads, even if channeled, cannot rea-

sonably be considered industrial plants.

When it promulgated its Phase | regulations,

EPA referenced Standard Industrial Classification

(“SIC”) 24. This regulation provides that facilities

classified as SIC 24 are among those “considered

to be engaging in industrial activity”. See 40 C.F.R.

§ 122.26(b)(14\ii). EPA explained in the Federal Reg-

ister that the reference to SIC 24 in the Phase I rule

was not intended to classify silvicultural practices

and forestry roads as industrial sources. See 55 Fed.

Reg. at 48,088 (November 16, 1990) (explaining that

establishments under SIC code 24 “are engaged in

operating sawmills, planning mills and other mills in

producing lumber”). Despite the numerous contempo-

raneous explanations of EPA in the Federal Register

that its reference to SIC 24 was not intended to in-

clude silvicultural activities and precipitation runoff

11

from forestry roads, and that timber harvesting and

forestry roads were not intended to be included

within the definition of “industrial,” the Ninth Circuit

reached a conclusion directly in conflict with EPA and

ruled that forestry roads used to transport timber are

“industrial” roads, and the transport of timber on

forestry roads is an industrial activity. See 55 Fed.

Reg. at 48,008-48,011 (November 16, 1990); See Pet.

App. 35a-42a.

EPA’s reasoned and logical assessment that sur-

face drainage from forestry road construction and

maintenance constitute non-point sources of pollution

and that silviculture is not an industrial activity has

not wavered for the last thirty-five years, despite the

fact that Congress has amended the CWA a number

of times since it original passage in 1972. This Court

has stated repeatedly that when “Congress revisits

a statute giving rise to a longstanding administra-

tive interpretation without pertinent change, the con-

gressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the inter-

pretation is the one intended by Congress.” Commodi-

ty Futures Trading Com’n v. Schor, 478 U.S. 833, 846

(1986).

The Ninth Circuit’s defiance of Chevron warrants

this Court’s review.

12

B. The Ninth Circuit’s Decision Raises An Is-

sue Of Exceptional Importance Warranting

Review Because Of The Impact It Will

Have On Existing State BMP Programs

Forestry activities generally involve numerous

small operations occurring sporadically over large

amounts of space and long periods of time. Compli-

cating the situation is the fact that different forests,

even those in close proximity with one another, may

have very different characteristics in terms of topog-

raphy, tree species, soil types, wildlife habitat, geology

and hydrology. In order to be effective, the approach

to protecting the environment from forestry activities

must be adapted to local] conditions and circumstances.

Congress recognized the fact that non-point pollution

is unique to each state when it added section 319 to

the CWA in 1987. See 33 U.S.C. § 1329. Section 319

required states to develop plans for any non-point

source activities that are causing a state’s water to

fall short of the state’s respective water quality goals.

See 33 U.S.C. § 1329. Together, sections 218 and 319

authorize the states to obtain federal funding to man-

age non-point source pollution, with oversight from

EPA. 33 U.S.C. §§ 1298 & 1329.

Forestry practices in the United States are now

conducted under the most comprehensive program of

BMPs of any land use activity in the nation. Some

13

amici states employ mandatory’ BMPs administered

by state foresters or forest practice boards or commis-

sions. National Council for Air and Stream Improve-

ment, Inc., Compendium of forestry best management

practices for controlling nonpoint source pollution in

North America, Technical Bulletin No. 966 (2009).

Other amici states employ non-regulatory BMPs* that

are developed or approved by state agencies, with

landowner education to encourage compliance, and

authority for agencies to take action against land-

owners who do not comply. See, e.g., Florida Division

of Agriculture and Consumer Services, Silvicultural

Best Management Practices (2008). BMPs vary among

amici states for good reason. A BMP that is appropri-

ate for a coasta] pine forest in Georgia may be wholly

inadequate for a temperate rainforest in Oregon, or

an Ozark mountain forest in Arkansas. But while

individual BMPs may vary, the single goal of protect-

ing the waters of the nation is served in consistent

fashion. Indeed, in order to advance the laudatory

goals of the CWA, the BMPs must, of necessity, be

designed in response to local conditions.

* These sign-on states have mandatory BMP programs:

Alaska Code 41.17.055(d) and the implementing regu-

lation is 11 AAC 95.295; Idaho Code §§ 38-1301 et seg.;

Kentucky KRS 149.344; New Hampshire.

* These sign-on states have non-regulatory BMP programs:

Arkansas, Alabama, Florida, Georgia, Maine, Michi-

gan, South Carolina, Tennessee, Virginia, Wyoming.

14

In spite of their variations, amici states’ BMPs

share a number of attributes because each state’s

BMPs are based upon a common set of science-based

principles. National Council for Air and Stream Im-

provement, Inc. Compendium of forestry best manage-

ment practices for controlling nonpoint source pollution

in North America, Technical Bulletin No. 966 (2009).

BMPs will generally be designed to 1) minimize soil

compaction; 2) separate exposed soils from surface

waters; 3) separate fertilizer and herbicide application

from surface waters; 4) inhibit hydraulic connections

between bare ground and surface waters; 5) provide

forested buffers around watercourses; and 6) properly

plan, locate, and design roads to have a minimal im-

pact on soil erosion and water quality. R. Olszewski &

C.R. Jackson, Best Management Practices and Water

Quality, National Council for Air and Stream Im-

provement, Inc. (2006).

Regardless of each state’s chosen approach, BMPs

and non-point source pollution prevention programs

implemented by amici states are subject to EPA over-

sight and approval. See 33 U.S.C. § 1329. States whose

water quality inventories fail to demonstrate con-

tinued improvement over time are subject to closer

scrutiny and review by EPA, and poor performance

can result in grant funding reductions. In short, BMPs

have become an accepted, well-understood, docu-

mented, approved and successful method of pro-

tecting water quality in the United States, and in

particular, in the nation’s forests.

15

There are hundreds of millions of privately and

publicly owned acres of forest land in the United

States, with millions of miles of forest roads having

some form of water conveyance, or channeling, asso-

ciated with them that are currently managed by

amici states BMP programs. A timber harvest does

not occur overnight. Each site designated for timber

harvesting and reforestation is the culmination of

several years of multiple resource assessment and

detailed project planning. Over the last three decades

each amici state has expended thousands of hours

and millions of dollars developing and implementing

their respective BMP programs. The states’ BMP pro-

grams have been developed by certified silvicultur-

ists, and these individuals meet certain standards of

professional knowledge, skills and experience in

multiple-use silviculture activities. In order to meet

EPA standards, amici states provide training and

certification in soils and watershed management, and

while these individual BMP specialists are knowledge-

able regarding the practices and procedures neces-

sary to comply with sections 218 and 319 of the CWA,

they are completely unfamiliar with the requirements

of the CWA’s NPDES program. If the Ninth Circuit

decision in this case is not reviewed by this Court, the

states established BMP programs will be jettisoned in

favor of NPDES permits. These BMP professionals

will likely be forced to learn a new discipline in order

to comply with NPDES permit requirements.

Moreover, if the Ninth Circuit decision is not

addressed by this Court, a blizzard of NPDES permit

16

applications will, out of necessity, be filed. Amici states

are justifiably alarmed regarding the resulting tumult

at the state level if hundreds of thousands of applica-

tions for new NPDES permits related to forest roads

are filed within a short time frame. Furthermore, the

Ninth Circuit’s decision that channeled forestry roads

require NPDES permits could not have come at a

more inopportune time. While amici states are being

tasked with an ever growing list of EPA initiatives,

the supporting flow of federal and state dollars to keep

up with these new government initiatives continues

to diminish. EPA FY 2012 Budget Hearing Before the

Senate Interior, Environment and Related Agencies

Subcommittee, 112th Cong. (2011). Amici states have

legitimate concerns about the overwhelming number

of regulations they are facing from new EPA initia-

tives that are far outstripping the financial support

received from EPA for implementation.

Forestry BMPs have been highly successful in

controlling non-point source pollution from forest

operations and roads for decades. National Water

Quality inventories conducted by EPA demonstrate

that stormwater runoff associated with urban areas,

storm sewer discharges, and pollutants deposited

from the atmosphere are more significant contribu-

tors of non-point source pollution than forestry activi-

ties and forestry roads. United States Environmental

Protection Agency, National Management Measures to

Control Nonpoint Source Pollution from Forestry,

Pub. No. EPA-841-B-05-001, at page 1-1 (April 2005).

17

The Ninth Circuit’s decision is tantamount to yet

another unfunded mandate, by replacing amici states’

long-standing and effective BMP programs with more

complex and regulatory resource-intensive NPDES

permits. Eventually, no state will be able to meet all

of these new mandates when federal and state budgets

are consistently reduced year after year, and the num-

ber of new EPA rules and programs to be implemented

continues to increase year after year. Amici states,

EPA, state agencies, and the forestry community have

found the state-based system of BMPs to be workable

and effective. Amici states, forest landowners small

and large, and the forestry professional on the ground

have over three decades of effort invested in the BMP

programs. By discarding EPA’s long-standing construc-

tion of the CWA and Silvicultural Rule that forestry

roads are sources of non-point source pollution and

that the harvesting of trees is not an industrial

activity requiring an NPDES permit for channeled

runoff, the Ninth Circuit has jeopardized the con-

tinued viability of amici states’ BMP programs.

It is for these reasons that amici states urge this

Court to grant certiorari.

C. The Ninth Circuit’s Decision Creates A

Conflict

This Court should grant the Petitions for Writ of

Certiorari because the decision by the Ninth Circuit

creates a conflict. When there is a split of opinion

between circuits as to interpretation of a regulation or

18

statute, it ereates legal uncertainty and confusion for

the regulatory agencies as well as the regulated com-

munity.

EPA’s Silvicultural Rule, found at 40 C.FR.

§ 122.27, clearly distinguishes between silvicultural

activities that are point source, and thus require

NPDES permits, and those that are non-point source

and do not require a NPDES permit. The rule states

“The term does not include non-point source silvi-

cultura] activities such as nursery operations, site

preparation, reforestation and subsequent cultural

treatment, thinning, prescribed burning, pest and fire

control, harvesting operations, surface drainage, or

road construction and maintenance from which there

is natural runoff.” 40 C.F.R. § 122.27(b) (emphasis

addeu). The language in this rule is clear and unam-

biguous. It has been reviewed by many courts and

has been followed nationwide; even in the Ninth

Circuit until this decision.

The Ninth Circuit’s decision directly conflicts

with the Eighth Circuit’s decision in Newton County

Wildlife Association v. Rogers, 141 F.3d 803 (8th Cir.

1998). In the Newton case an environmental group

sued the U.S. Forest Service advancing several claims

regarding a sale of timber, one of which was that the

Forest Service should be required to obtain a NPDES

permit for discharges of pollutants associated with

logging and road construction. The Eighth Circuit

decided these “contentions are without merit.” Jd. at

810. In the Newton case the Eighth Circuit stated:

“EPA regulations do not include the logging and road

19

building activities cited by the Wildlife Association in

the narrow list of silvicultural activities that are

point sources requiring NPDES permits.” Jd.

The Ninth Circuit decision runs contrary to all

then-existing judicial interpretations of the Silvi-

culture Rule. See, e.g., Sierra Club v. Martin, 71

F.Supp.2d 1268 (N.D. Georgia 1996). In this case

various environmental groups sued claiming that a

sale of timber would create a large amount of dis-

charge to waters of the United States and that the

U.S. Forest Service should have obtained a NPDES

permit. The Court stated: “Because none of the dis-

charges about which Plaintiffs complain relates to rock

crushing, gravel washing, log sorting, or log storage

facilities, they are ‘non-point’ sources for purposes of

the Clean Water Act and do not require an NPDES

permit.” Jd. at 1305. The Court reached this conclu-

sion after a review of the CWA in which the Court

found “the iegislative history and the implementing

regulation of the Clean Water Act show that Congress

and the Environmental Protection Agency intended to

exempt most silvicultural activities from the Clean

Water Acts permit requirements.” Jd. The Court then

went a step further and examined specifically the com-

plaint of Plaintiffs that most of the discharge would

result from logging road construction. The Plaintiffs

argued “the runoff from the logging roads in issue

will cause ‘unnatural’ as opposed to ‘natural’ runoff

and, thus, becomes a point source for purposes of the

Clean Water Act.” Jd. at 1306. The Court reasoned

that “reading the exemption for road construction and

20

maintenance as narrowly as Plaintiffs urge would run

counter to the EPA's intent to exclude timber har-

vesting and road construction and maintenance and

to limit the Clean Water Act’s permit requirements to

only a few silvicultural activities.” Id.

In Waltman v. King William County School Board,

2010 EL 10006889 (E.D. Virginia 2010), the court

recognized that not all stormwater needs a permit.

There the Plaintiff claimed that the School Board

discharged pollutants onto her property and did not

obtain a NPDES permit. The Court ruled: “the Clean

Water Act does not require the EPA to regulate all

stormwater discharges, nor does it require EPA to use

NPDES permits to regulate those discharges EPA

does designate for regulation.” Id. at 3 (citing Conser-

vation Law Foundation v. Hannaford Bros. Co., 327

F.Supp.2d 325, 331 (D. Vermont 2004). These cases

are just a few examples of how the Silvicultural Rule

has been interpreted by courts. The Ninth Circuit pur-

ports to recraft the heretofore unambiguous definition

of non-point source in the Silvicultural Rule and in

doing so has disregarded the plain language of the

CWA, the plain language of the Silvicultural Rule,

EPA’s original and consistent interpretation of the

rule, and every existing judicial interpretation.

Congress did not intend for the CWA to result in

a patchwork of uneven regulation due to inconsistent

interpretations by the Courts. Amici states are con-

vinced that a denial of certiorari by this Court will

result in environmental groups being emboldened to

file future citizen suits under the CWA in an effort to

21

extend the reach of the Ninth Circuit’s decision in

this case into other circuits. This Court should grant

the Petition for Writ of Certiorari to restore the

proper, and appropriately deferential, interpretation

and application of the Silvicultural Rule of the CWA.

¢

CONCLUSION

Based upon the above stated arguments, the amici

states respectfully request that the Court grant the

Petition for Writ of Certiorari.

Respectfully submitted,

DUSTIN MCDANIEL

Arkansas Attorney General

CHARLES L. MOULTON

KENDRA AKIN JONES*

*Counsel of Record

323 Center Street, Ste. 200

Little Rock, AR 72201

(501) 682-7383

Attorneys for Amici Curiae

OCTOBER 14, 2011