Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11-338, 11-347

Bn The

Supreme Court of the Anited States

DOUG DECKER, the Oregon State

Forester, in his official capacity, et al.,

Petitioners,

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF ASSOCIATION OF OREGON

COUNTIES, IDAHO ASSOCIATION OF

COUNTIES, ASSOCIATION OF O & C COUNTIES,

AND DOUGLAS COUNTY AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

DOUG DECKER, ET AL., AND PETITIONERS

GEORGIA-PACIFIC WEST, INC., ET AL.

RONALD S. YOCKIM DANIEL GAIL CHADWICK

Counsel of Record IDAHO ASSOCIATION

LAW OFFICES OF RONALD S. YOCKIM OF COUNTIES

430 S.E. Main St. 700 West Washington St.

Roseburg, OR 97470 Boise, ID 83702

(541) 957-5900 (208) 345-9126

Facsimile (541) 957-5923 Facsimile (208) 345-0379

ryockim@yockimlaw.com dchadwick@idcounties.org

Counsel for Amici Curiae Association of

Oregon Counties, Idaho Association of Counties,

Association of O & C Counties, and Douglas County

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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INTEREST OF AMICI CURIAE ...............0ccceeeee00s 1

IIIT iicsnstininntianteiemennsdinesennstintesammaanitbneiaede 3

SUMMARY OF ARGUMENT ....................::ccceeceees 4

ET viteissicsnisesininniusenenbidinsantmpiniaiineiimiiintaanastannda 5

I. The Ninth Circuit’s rejection of EPA’s rea-

sonable interpretation of the Clean Water

SATS Bs CEI siestctncsncinnentnininienisavivinnin 6

A. The Silvicultural Rule was an appropri-

ate interpretation of the Clean Water

DT cscccsnsnnniiniinstiamsaninnnninbicitianiiianininiitinain 8

B. EPA’s interpretation of the discharges

subject to the Phase-1 and Phase-2

Storm Water Rules was well reasoned

and appropriate response to public no-

tice and comment rulemaking .............. 10

Il. The NEDC decision will impose extensive

and cost prohibitive permitting costs on

local governments thereby restricting their

ability to provide essential public services.... 19

III. The State of Oregon controls storm water

runoff associated with forest roads through

an extensive program of regulations and

best management practices .............0..ceeeeeees 32

ID tttrscnsnsnicinsnsiiscneninnnianitinebtnnnnimtniniiaiiaen 36

TABLE OF AUTHORITIES

Page

CASES

Auer v. Robbins, 519 U.S. 452 (1996)......................... 17

Bragdon v. Abbott, 524 U.S. 624 (1998).................... 17

Chevron USA Inc. v. Natural Res. Def. Council,

BR SE We i icictntitccndccncensnitancanies 9, 16,17

Christopher v. SmithKline Beecham, 567 U.S.

foe, < 5 |. ERED EEESosDEErmuee 12,18

Northwest Environmental Defense Center v.

Brown, 640 F.3d 1063 (9th Cir. 2011)............. passim

Oregon Natural Desert Association et al. uv.

United States Forest Service, 550 F.3d 778

I diel iciaticinecenieacceeidiheaia inde caanietiaiaeiadeiaibidiiad 33

STATUTES

TERE eee Oee ET EM ATES NET 27

Clean Water Act

I i 33

| TT I ae ae eee ROL CR NNN eee 33

| aoe wa mere ER 4, 6, 33, 34

FR ER SCENTED OID BORNE SIREN Ce oP eee 34

I ila ala a a a 34

Fn ne ee Es se 2, 3, 4, 6, 33

Se I i cinicininicbsinsinbineemiicociseimmmnmmniionensill 6

ee a Se iss cetapiieieieneaeieeiiininiaibieiile 11

SSB UB.C. SLB ONS NB) occccccccccscccesescccccsccsseses 4,7,12

3 Ff | EERE ErEDDE EEE EneT aE rene 11

ee es SD ciiiecesncccnnsccsuisccstisenens 11, 12, 17

33 U.S.C. §1342(p)5)(C) ..e.ceccececsseceeseeseeseereesseesseee 12

ill

TABLE OF AUTHORITIES — Continued

Page

ie HI cn sicncsccsnnccinmsnmiicibetiionicinioduuniians 12

I al dell ethan talc 4

Endangered Species Act

| Een ea: 27

Forest Service Receipts

| TR eC SO Oe 27

Internal Revenue Code

ESR een eae INE IEE Te 2

O & C Act of 1937

A i carincinnpcteenseirticadtincnisbitinetnineidimbannatl 2, 30

Secure Rural Schools and Self Determination

Act of 2000

gg SEE EN I ne OT 27

REGULATIONS

5 SEES raraer nen ate pea Beene SRE Aoaen tS 13

| Tn een ENC e TERE ON. 34

EGRET ma aaa 3, 7,10, 11,16

acl ncieemniemeneel 5

ee ls I a iicinccitccitcianmsidainineiiogs 13, 14, 15

EEE EER ean a Rm E ON Eanear eee 21

as Se ID ciciitiiciteiicitsiccnctnntdatetniininecinneie 21

ce ID cictccnccictcncccniectenneictinsies 21, 24

ks BE | 8 |e TENE Eee 22

48 C.F. GIBB. BRENT MINED) ...ncccceesesccoccescsssnccovscossecses 22

TABLE OF AUTHORITIES — Continued

Page

40 C.F.R. GIZB.DO|N IL MINE) .....2.0.000ccescvcceseosceseses 22, 23

I el passim

BD Cale GIT OL ED csscncccccscessccsesccoccesnseese 8,9, 10, 11

re ED, enritnnicnsscnnnnncincinnninantemmemnianinl 30

55 FR 476990-01, 1990 WL 348331 (FR)....5, 11, 12, 15

Oregon Administrative Rules 340-042-0028 ............. 34

Oregon Administrative Rules 629-625 ................ 34, 35

Oregon Administrative Rules 629-635 ...................... 34

Oregon Administrative Rules 629-640 ...................... 34

Oregon Administrative Rules 629-645 ...................... 34

Oregon Administrative Rules 629-650 ...................... 34

Oregon Administrative Rules 629-655 ..................00. 34

Oregon Administrative Rules 629-660 ...................... 34

ee Ie GF sicivcesrnccnceninescinenmmpesssnnnnieianeie 1

OTHER

A Place called Douglas County, Douglas County

Planning Department, 2nd ed. 1990...................... 28

Black’s Law Dictionary (Sixth Edition)..................... 13

History of USFS Payments to County Road

Funds, http://www.aocweb.org/aoc/LinkClick.

aspx’ fileticket=Y BpefzllB21%3d, ..................22...0005 28

TABLE OF AUTHORITIES — Continued

Marion County, Department of Public Works,

Best Management Practices for Clean Water,

Crew Manual, Spring 2009, http://www.co.

marion.or.us/PW/ES/waterquality/salmon.htm;

http://www.co.marion.or.us?NR/rdonlyres/908

78BB7-9D 10-4E7A-B8B6-E79457E30D93/2420/

IIE cncescccnsccccecssccescrcossenscnessdevesss

ODOT 2009 Mileage Report, http?//www.oregon.gov/

ODOT/TD/TDATA/rics/PublicRoadsInventory.

shtml#Oregon_Mileage_Report.........................

Oregon Department of Transportation, Routine

Road Maintenance, Water Quality and Habi-

tat Guide Best Management Practices, Re-

vised 2009, http://ems.oregon.gov.com/ODOT/

HWY/OOM/docs/blue_book. pdf ......................4..

Oregon Nonpoint Source Control Program

Plan; 2000 update, http:/Awww.deq.state.or.us/

waq/nonpoint/docs/plan/plan.pdf....................6++-

Oregon Nonpoint Source Pollution Program

2011 Annual Report, http://www.deq.state.or.

us/wq/nonpoint/docs/annualrpts/rpt11.pdf........

Page

ste 34

Pursuant to Supreme Court Rule 37, the Associa-

tion of Oregon Counties, Idaho Association of Coun-

ties, Association of O & C Counties, and Douglas

County (collectively “Counties”) respectfully submit

this brief amici curiae in support of Petitioners Doug

Decker, et al. and Petitioners Georgia-Pacific West,

Inc., et al.’

INTEREST OF AMICI CURIAE

The Association of Oregon Counties (“AOC”) is

an intergovernmental agency of county governments

established under the laws of Oregon. The AOC has

no subsidiary or parent organizations, and it has no

shareholders. AOC is an advocate for county govern-

ment and county officials in their relationships with

Congress, the Oregon Legislature, and the various

federal and state agencies.

The Idaho Association of Counties (“IAC”) is a non-

profit, non-partisan service organization dedicated to

the improvement of county government. LAC was

designed and incorporated by county elected officials

’ All counsel of record have consented to the filing of this

brief. Petitioners Georgia-Pacific West, inc., et al., Petitioners

Decker, et al., and Respondents have all filed blanket consents.

In accordance with Rule 37.6, amici state that no counsel for a

party authored or authorized this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief.

under Idaho law and under Section 501(cX4) of the

Internal Revenue Code to provide services, research,

uniformity, and coordination among member counties

in order for county elected officials to better serve

their constituents. IAC has no subsidiary or parent

organizations. Its members are the 44 Idaho counties.

The Association of O & C Counties (“Association”)

is an unincorporated, voluntary association of the 18

counties in western Oregon that are the beneficiaries

of the lands managed by the Bureau of Land Man-

agement under the O & C Act of 1937 (Act of Aug. 28,

1937, c. 876, Title I, §1) (43 U.S.C. §1181a et seq.).

The Association has no subsidiary or parent organiza-

tions and has no shareholders.

Douglas County is a county government estab-

lished by the State of Oregon and as such has no sub-

sidiary or parent organizations, nor any shareholders.

Douglas County maintains a system of county roads

over which the public has a right of use for forestry,

industrial, recreational, domestic and general use.

The Counties have a vital interest in the defin-

itive resolution of the question whether the runoff

from that subset of their public roads that are used as

logging roads are subject to the permitting require-

ments of the National Pollutant Discharge Elimi-

nation System (“NPDES”) of the Clean Water Act

(“CWA”) (33 U.S.C. §1342).

INTRODUCTION

In Northwest Environmental Defense Center v.

Brown, 640 F.3d 1063 (9th Cir. 2011), the Ninth Cir-

cuit ruled that the storm water runoff from logging

roads that is collected and then discharged by ditches,

culverts and channels is a point source discharge for

which a permit is required under the National Pollu-

tant Discharge Elimination System provisions of the

Clean Water Act pursuant to 33 U.S.C. §1342.

Before the Ninth Circuit, the State of Oregon and

the Environmental Protection Agency (“EPA”) argued

that these roads have been exempted from NPDES

permitting under EPA’s Silvicultural Rule and under

EPA’s Storm Water Rules. In rejecting these argu-

ments the Ninth Circuit failed to give deference to

the long-standing interpretations of EPA on this

precise issue. As both the Petitioners have argued,

the Ninth Circuit’s decision is wrong as a matter of

basic statutory interpretation.

The Counties agree with the Petitioners’ posi-

tions and wish to bring to the attention of the Court

the unwarranted burden the Ninth Circuit’s ruling

places on the counties. The ruling imposes a costly

and unwarranted permitting burden on county gov-

ernments nationwide to address runoff that EPA and

the respective states have addressed in their respec-

tive nonpoint source control programs.

SUMMARY OF ARGUMENT

In enacting the Clean Water Act, Congress dele-

gated to the Environmental Protection Agency (“EPA”)

the authority to adopt a consistent program to regu-

late point sources’ and nonpoint sources of pollution.

Among the rules EPA promulgated to implement the

CWA was the Silvicultural Rule wherein EPA clari-

fied which silvicultural practices were point sources

to be regulated under the National Pollutant Dis-

charge Elimination System (33 U.S.C. §1342) and

which of these practices were to be regulated under

the respective state’s nonpoint pollution control

systems (33 U.S.C. §1329). EPA’s Silvicultural Rule

clarified that the runoff from timber harvest activi-

ties was to be managed as a nonpoint source. The

Ninth Circuit erred in failing to defer to EPA’s rea-

sonable interpretation that these silvicultural activi-

ties were to be controlled under the various states’

nonpoint source programs.

Secondly, in the 1987 amendments to the CWA

Congress directed EPA to establish a program to

regulate the storm water discharges “associated with

industrial activity.” 33 U.S.C. §1342(p)(2B). EPA

* The ‘term ‘point source’ means any discernible, confined

and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure, container,

rolling stock, concentrated animal feeding operation, or vessel or

other floating craft, from which pollutants are or may be dis-

charged. The term does not include agricultural storm water dis-

charges and return flows from irrigated agriculture.” 33 U.S.C.

§1362(14).

subsequently through notice and comment rulemak-

ing defined these discharges as only those discharges

that were directly related to manufacturing, pro-

cessing or raw materials storage areas at an indus-

trial plant. 40 C.F.R. §122.26(14). The Ninth Circuit

improperly rejected EPA’s interpretation of the am-

biguous phrases found in the storm water statutes as

well as EPA's interpretation of the ambiguous phrases

found within its own regulations.

Third, the Ninth Circuit in requiring NPDES

permits for the ditches, culverts and conveyances

along primarily logging roads, improperly rejected the

EPA’s reasoned interpretation that the phrase “im-

mediate access roads” in the context of storm water

“associated with an industrial activity” did not in-

clude state, local or federal roads. “National Pollutant

Discharge Elimination System Permit Application

Regulations for Storm Water Discharges,” 55 FR

47990-01, 1990 WL 348331 (FR), p. 34.

Fourth, by redefining as point sources those

county and state roads that are used to access indus-

trial operations, the Ninth Circuit imposed a costly

and unnecessary permitting burden on county gov-

ernments.

ARGUMENT

The Ninth Circuit’s far-reaching decision in North-

west Environmental Defense Center v. Brown, 640

F.3d 1063 (9th Cir. 2011), displaced the long-standing

manner in which the Environmental Protection

Agency and the State of Oregon implement the

storm water control provisions of the CWA (33 U.S.C.

§1342(p)) and should therefore be reversed. The de-

cision below was not only inconsistent with the State

of Oregon’s and EPA’s long-standing interpretations,

if left in place it could have serious repercussions on

the counties and their ability to maintain their road

systems while meeting their other statutory public

service obligations.

I. The Ninth Circuit’s rejection of EPA’s rea-

sonable interpretation of the Clean Water

Act is unwarranted.

In Northwest Environmental Defense Center v.

Brown, the Ninth Circuit shifted the management of

storm water runoff associated with logging roads

from the traditional nonpoint source control pro-

grams, 33 U.S.C. §1329, that are generally managed

by the respective States, to a system requiring

NPDES permitting for all the culverts and ditches

along logging roads under 33 U.S.C. §1342.

Northwest Environmental Defense Center (“NEDC”)

challenged EPA’s and the State of Oregon’s long-

standing interpretations by alleging that the State

of Oregon as the owner, or as the operator, of the

Trask River Road and the Sams Down Road’ was in

Part of the Trask River Road is a county road that tra-

verses lands owned by the State of Oregon. Sams Down Road

is a State owned road. Both roads are used by timber purchasers

(Continued on following page)

violation of the CWA by allowing the discharge of

storm water runoff from these logging roads without

first acquiring a NPDES permit.

NEDC contended that since these roads were

used to haul timber to sawmills the storm water run-

off from these roads represented a “discharge associ-

ated with industrial activity” and as such the roads

were automatically subject to the NPDES permitting

requirements under 33 U.S.C. §1342(p\2B). NEDC

sought to shift the storm water control focus from the

State of Oregon’s approved nonpoint pollution contro}

program to a NPDES permitting program.

The Defendants Decker, et al., and Intervenor-

Defendants Georgia-Pacific West, Inc., moved to dis-

miss the case based on EPA's Silvicultural Rule, 40

C.F.R. §122.27, and EPA’s Storm Water Rule, 40

C.F.R. §122.26, under which logging roads were

excluded from the NPDES permitting requirements.

EPA filed an amicus brief in support of the motion to

dismiss, explaining that storm water runoff from

logging roads was not the type of discharge Congress

had directed be subject to permitting (See United

States’ Amicus Brief, Northwest Environmental

Defense Center v. Brown, 3:06-cv-01270 filed Dec. 6,

2006, C.R. 44).

The Ninth Circuit rejected EPA’s interpretation

of the CWA and crafted an entirely new program to

to remove timber harvested from State of Oregon owned forest

lands.

control runoff from logging roads. This judicially cre-

ated program ignored not only the long-standing in-

terpretations of EPA and the State of Oregon that

runoff from nonpoint pollution sources was to be

controlled by the States, and ignored EPA's Silvicul-

tural Rule designating these forest practices as

nonpoint sources.

A. The Silvicultural Rule was an appro-

priate interpretation of the Clean Wa-

ter Act.

The Silvicultural Rule distinguished which silvicul-

tural activities were to be “silvicultural point sources”

and subject to permitting (40 C.F.R. §122.27), as op-

posed to those “silvicultural nonpoint sources” which

were subject to State management.

During its rulemaking EPA defined the “silvicul-

tural point sources” as:

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.

40 C.F.R. §122.27(b)(1).

In response to comments raised during the rule-

making, EPA clarified that the logging roads were

nonpoint sources when it stated that the term silvi-

cultural point sources:

does not include nonpoint source silvicultural

activities such as nursery operations, site

preparation, reforestation and subsequent cul-

tural treatment, thinning, prescribed burning,

pest and fire control, harvesting opera-

tions, surface drainage, or road construc-

tion and maintenance from which there

is natural runoff.

40 C.F-R. §122.27(b)(1) (emphasis added).

The Ninth Circuit rejected EPA’s long-standing

interpretation and displaced it with the Panel’s own

interpretation that culverts and ditches along logging

roads are point sources to be regulated under the

NPDES permitting program.

The Ninth Circuit ignored that when, as in this

situation, Congress has delegated to the agency the

authority to implement a statute and the agency has

interpreted ambiguous provisions thereof through

rulemaking, then the Court is not to substitute its

own construction of the statutory provision for a rea-

sonable interpretation made by the administrator of

the agency. Chevron v. Natural Res. Def. Council, 467

U.S. 837, 844 (1984). The views of EPA, the agency

charged with implementing the Clean Water Act, as

established in the 1976 Silvicultural Rule, are enti-

tled to Chevron deference.

B. EPA’s interpretation of the discharges

subject to the Phase-l1 and Phase-2

Storm Water Rules was well reasoned

and appropriate response to public

notice and comment rulemaking.

EPA’s interpretation that only a limited subset of

silvicultural activities were considered point sources

was also reflected in EPA’s 1990 rulemaking relative

to the storm water discharges associated with indus-

trial activities. During this rulemaking EPA inter-

preted the phrase “storm water discharge associated

with industrial activity,” that was included in the

1987 storm water amendments to the CWA, as ex-

cluding those discharges previously excluded from the

NPDES program under EPA regulations — such as

those associated with facilities and activities excluded

under the Silvicultural Rule.‘

‘In its 1990 rulemaking, EPA specifically reexamined

whether logging should be included as an activity associated

with an industrial activity or facility and elected to continue to

exclude these activities. In response to a commenter’s statement

that runoff from logging operations should be controlled by

BMPs in effect for such industries and that a permit would be

impractical and cost prohibitive, EPA stated:

“EPA agrees with the commenter that this provision

needs clarification. The existing regulations at 40

CFR 122.27 currently define the scope of the NPDES

program with regard to silvicultural activities. 40

CFR 122.27(b)(1) defines the term ‘silvicultural point

source’ to mean any discrete conveyance related to

rock crushing, gravel washing, log sorting, or log stor-

age facilities which are operated in connection with

(Continued on following page)

As part of the 1987 amendments to the CWA,

Congress adopted a two-phase approach to manage-

ment of storm water discharges. During the first

phase, Congress directed that five specific types of

storm water discharges were to be automatically sub-

ject to permitting (“Phase I”). 33 U.S.C. §1342(pX2)

& (3). Among these Phase 1 storm water discharges

were “discharges associated with industrial activi-

ties.” 33 U.S.C. §1342(pX2). With respect to the remain-

ing non-Phase 1 storm water discharges, Congress

directed that EPA, in consultation with the States,

was to identify which of these other forms of storm

water discharges existed and were not regulated

under Phase I. 33 U.S.C. §1342(p)(5). Based on these

silvicultural activities and from which pollutants are

discharged into waters of the United States. Section

122.27(bX1) also excludes certain sources. The defini-

tion of discharge associated with industrial activity

does not include activities or facilities that are cur-

rently exempt from permitting under NPDES. EPA

does not intend to change the scope of 40 CFR 122.27

in this rulemaking. Accordingly, the definition of ‘storm-

water discharge associated with industrial activity’

does not include sources that may be included under

SIC 24, but which are excluded under 40 CFR 122.27.”

55 FR 47990-01, 48011; 1990 WL 348331 (FR), p. 37.

In 1990 EPA specifically considered the issue of what sil-

vicultural activities were subject to NPDES permitting and re-

affirmed its earlier decision that the silvicultural activities (e.g.,

harvesting operations, surface drainage and road construction

and maintenance) that had been previously identified as not

subject to NPDES permitting were also excluded from permit-

ting under the Storm Water Rule.

studies, EPA in consultation with State and local

officials issued regulations to address the non-Phase

1 storm water discharges that the EPA deemed neces-

sary. 33 U.S.C. §1342(pX5XC) & (6). The non-Phase I

discharges that EPA determined were to be subject to

permitting became known as Phase II discharges.

In the 1987 amendments to the CWA, Congress

left to the discretion of EPA several key elements

of the industrial storm water discharge program. For

example it left it to EPA to precisely define any am-

biguous phrases (e.g., “associated with industrial ac-

tivity” as referenced in 33 U.S.C. §1342(p)(2)(B)), and,

granted to EPA the express authority to identify the

non-Phase 1 storm water discharges for which control

methods and procedures were necessary. 33 U.S.C.

§1342(p (5).

In response, EPA undertook public notice and com-

ment rulemaking wherein it adopted the “National

Pollutant Discharge Elimination System Permit Ap-

plication Regulations for Storm Water Discharges,”

55 FR 47990-01, 1990 WL 348331 (FR) and defined

therein the phrase “associated with industrial activ-

ity” as:

{s]torm water discharge associated within

industrial activity means’ the discharge from

any conveyance that is used for collecting

* The use of the verb “means” indicates a narrower textual

meaning than the phrase “includes.” Christopher v. SmithKline

Beecham Corp., 567 U.S. ___, 182 S. Ct. 2156, 2170 (2012).

and conveying storm water and that is di-

rectly’ related to manufacturing, pro-

cessing or raw materials storage areas

at an industrial plant. The term does not

include discharges from facilities or ac-

tivities excluded from the NPDES pro-

gram under this part 122.’

40 C.F.R. §122.26(b)(14) (emphasis added).

EPA thereby effectively established a three part

test that required there be: first, a direct relationship

~ rather than an indirect relationship — between the

road and the industrial activity; secondly, that the

activity be one of the specific activities identified (e.g.,

manufacturing, processing or raw materials storage);

and, third, that the discharge occur from a convey-

ance directly related to the “areas” used at an indus-

trial plant for manufacturing, processing or raw

materials storage. Neither the Trask River Road nor

the Sams Down Road met any of these elements.

During the 1990 rulemaking, EPA also inter-

preted the phrase “associated with industrial activ-

ity” as not including activities that were excluded

from NPDES permitting pursuant to 40 C.F.R. §122.

Among these excluded activities were the activities

* Black’s Law Dictionary (Sixth Edition) defines “direct” as

“immediate; proximate; by the shortest course; without circuitry;

operation by an immediate connection or relation; instead of

operating through a medium; the opposite of indirect.”

’ Part 122 is a reference to 40 C.F.R. §122 which includes

among other items the Silvicultural Rule.

previously described in the 1976 Silvicultural Rule as

nonpoint sources. See 40 C.F_LR. §122.27.

The Ninth Circuit erred in rejecting EPA’s inter-

pretation that the phrase “associated with an indus-

trial activity” was an ambiguous phrase left to EPA to

define by regulation, and, erred in rejecting EPA’s

reasonable interpretation that the nonpoint runoff

identified by the Silvicultural Rule did not represent

“discharges associated with an industrial activity.”

The Ninth Circuit also overlooked that in addi-

tion to the limitations expressly stated in 40 C.F.R.

§122.26(b 14), EPA had also clarified in the 1990

rulemaking that

[fJor the categories of industries identified in

this section, the term includes, but is not

limited to, storm water discharges from in-

dustrial plant yards; immediate access roads

and rail lines used or traveled by carriers

of raw materials, manufactured products,

waste material, or by-products used or created

by the facility; material handling sites;....

40 C.F.R. §122.26(b)(14)(i) (emphasis added).

While the Ninth Circuit concluded that a road

used for logging purposes represented an immediate

access road that is exclusively or primarily dedicated

for use by the industrial facility, it failed to defer to

EPA’s long-standing interpretation that the phrase

“associated with industrial activity” required that the

discharge from an immediate access road must be not

only from a ditch or culvert that is used to collect and

convey storm water, it must also be “directly related

to manufacturing, processing or raw materials stor-

age areas at an industrial plant.” (40 C.F.R.

§122.26(b\14)) (emphasis added) — not as in this

case roads that are only indirectly related to the in-

dustrial plant areas.

In its 1990 rulemaking EPA clarified that it:

intends the language ‘immediate access roads’

(including haul roads) to refer to roads which

are exclusively or primarily dedicated

for use by the industrial facility.

55 FR 47990-01 at 48009; 1990 WL 348331 (FR),

p. 34 (emphasis added). This limitation emphasized

that the roads were to be directly related to a specific

industrial facility.

In taking an expansive view of the “primarily

dedicated” aspect of this rule, the Panel not only over-

looked this limitation, it also overlooked the subse-

quent sentence in the same paragraph wherein EPA

clarified that the phrase “associated with an indus-

trial facility” did not include state, county or federal

roads.

EPA does not expect facilities to submit per-

mit applications for discharges from public

access roads such as state, county, or

federal roads such as highways or BLM

roads which happen to be used by the fa-

cility.

55 FR 47990-01 at 48009; 1990 WL 348331 (FR),

p. 34 (emphasis added).

The EPA's interpretation was a significant quali-

fier. By publishing the interpretation in the Federal

EPA clearly informed regulated parties of EPA’s in-

terpretation and EPA left little question that it con-

sidered that the public roads were not included

within the phrase “immediate access roads.”

In classifying the Trask River Road and the Sams

Down Road as immediate access roads, the Ninth Cir-

cuit deferred to one element of EPA’s clarification but

overlooked other language in the same paragraph

wherein EPA expressly excluded from the definition

of “immediate access roads” the state, county and fed-

eral roads.

The Panel’s decision that the Trask River Road

and the Sams Down Road are exclusively or primarily

dedicated for use by an industrial facility has swept

into the NPDES permitting process not only private

roads that were previously excluded under the Silvi-

cultural Rule, but also large numbers of public roads

owned and managed by the various counties — roads

EPA had previously excluded from the definition of

“immediate access roads” in the Storm Water Rules.

Since EPA was delegated the authority to inter-

pret the CWA’s storm water provisions, and inherent

within this delegation was the authority to adopt

regulations relative to the reach of the ambiguous

phrase “associated with industrial activity,” Chevron

deference to EPA’s interpretation is warranted.

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843-44 (1984).

Under Chevron, EPA’s interpretation that state,

county and federal roads are not immediate access

roads associated with industrial activity, is binding

unless the rulemaking was procedurally defective, ar-

bitrary or capricious in substance or manifestly con-

trary to the statute. Jd. at p. 844. None of these

procedural defects were present in the 1990 rulemak-

ing.

EPA’s interpretive choice that the state and

county roads are not “immediate access roads” is a

well-reasoned interpretation based on the experience

and informed judgment of the agency, an interpreta-

tion that was developed based upon public comment

during the concurrent rulemaking as well as in re-

sponse to EPA’s prior studies conducted under 33 U.S.C.

§1342(pX5). The judgment of EPA in this matter re-

flected a well-reasoned guidance. Bragdon v. Abbott,

524 U.S. 624, 642 (1998).

Further, EPA’s definition and interpretation that

the state and local roads are not immediate access

roads is an interpretation of ambiguous language in

its own rule thereby warranting decisive weight. It

represents a fair and considered interpretation of an

ambiguous phrase — “immediate access roads” - made

at the time of adoption of the regulation and was not

a post hoc rationalization. Auer v. Robbins, 519 U.S.

452, 462 (1996).

Likewise, EPA’s interpretation should be afforded

persuasive weight since it was developed after thor-

ough study of the storm water discharges and fol-

lowed public notice and comment rulemaking;

represented valid reasoning; and, was consistent with

its own rules and pronouncements. See generally,

Christopher v. SmithKline Beecham Corp., 547 U.S.

___, 182 S. Ct. 2156, 2166-69 (2012).

The Ninth Circuit’s ruling must be reversed for

failing to defer to EPA’s and the State of Oregon’s

long-standing interpretation of the CWA relative to

management of storm water discharges from logging

roads; and, by failing to defer to EPA’s long-standing

interpretation that State or county roads are not local

access roads associated with an industrial activity. As

a result of these errors, the Ninth Circuit has upset

the established CWA management programs and im-

posed a substantial burden on otherwise financially

strapped counties.

While the Ninth Circuit appears to have assumed

that the “primary logging roads” are built and main-

tained solely by the logging companies or by the

operators of an industrial facility (see Northwest

Environmental Defense Center v. Brown at p. 1084),

this assumption is clearly in error. In this case, the

Trask River Road and the Sams Down Road are State

and county owned roads. What the Panel overlooked

is that a large number of local access roads, if not the

majority, are owned, built and maintained by Oregon

Counties, the State of Oregon, the United States

Forest Service or the United States Bureau of Land

Management.”

Reversal is warranted in that the Ninth Circuit

has established a new and unprecedented burden

requiring NPDES permitting for County roads merely

because they are used for logging purposes. This dras-

tic shift in the manner in which the CWA is imple-

mented warrants reversal by this Court.

Il. The NEDC decision will impose extensive

and cost prohibitive permitting costs on lo-

cal governments thereby restricting their

ability to provide essential public services.

The Ninth Circuit’s new NPDES permitting re-

quirement on county roads used for logging purposes

imposes an extensive and cost prohibitive permitting

and monitoring requirement upon the counties — a

burden they can ill afford without sacrificing funding

for other essential services.

To illustrate the magnitude of the problem cre-

ated by the Ninth Circuit’s decision, the Association

of Oregon Counties surveyed the various County

Road Supervisors in Oregon to determine the number

of County roads that would be defined as “primarily

* While the Ninth Circuit recognized that these public roads

afforded access for logging and for recreation purposes, it failed

to recognize that these public roads also provide other signifi-

cant public functions including residential, utility and public

safety access.

logging roads” as that phrase was used in the Ninth

Circuit’s decision. See Association of Oregon Counties,

et al., Amicus Brief, Northwest Environmental De-

fense Center v. Brown, No. 07-35266 (9th Cir. filed

Oct. 15, 2010) (C.R. 95).

The County Road Supervisors identified that the

county road systems within Oregon contain approxi-

mately 4,800 miles of roads that fall within what the

Ninth Circuit defined as “primarily logging roads.”

Association of Oregon Counties et al., Amicus Brief,

Northwest Environmental Defense Center v. Brown,

No. 07-35266 (9th Cir. filed Oct. 15, 2010) (C.R. 95).

The Road Supervisors calculated that associated

with these 4,800 miles of primary logging roads are

approximately 20,000 cross culverts (culverts that

cross under the primary logging road). Not included

within this analysis are the culverts that do not cross

under these “primary logging roads” but cross con-

necting side roads or private access driveways. Asso-

ciation of Oregon Counties, et al., Amicus Brief,

Northwest Environmental Defense Center v. Brown,

No. 07-35266 (9th Cir. filed Oct. 15, 2010) (C.R. 95)).

In addition to the “primary logging roads” identi-

fied by the County Road Supervisors, the Association

of O & C Counties also identified within the 2.1

million acres managed by the Bureau of Land Man-

agement (“BLM”) within Oregon an additional 16,817

miles of “primary logging roads” along with 40,500

culverts. Association of Oregon Counties et al., Ami-

cus Brief, Northwest Environmental Defense Center v.

Brown, No. 07-35266 (9th Cir. filed Oct. 15, 2010)

(C.R. 95).

Likewise, with respect to the Forest Service’s

roads in Oregon, the Oregon Department of Transpor-

tation in its 2009 Oregon Mileage Report also identi-

fied that there were 6,612 miles of Forest Service

roads that are mostly logging roads. (Oregon Depart-

ment of Transportation website; 2009 Mileage Report,

p. 163) (http://www.oregon.gov/ODOT/TD/TDATA/rics/

PublicRoadsInventory.shtml#Oregon_Mileage_Report)

(last accessed August 3, 2012).

While a separate NPDES permitting system for

the “primary logging roads” does not currently exist,

the magnitude of the problem facing the counties can

be quantified if one assumes that the same appli-

cation requirements that are currently required for

storm water discharges associated with industrial ac-

tivity will be imposed for these “primary logging

roads.” See 40 C.F.R. §122.26(c).

Under 40 C.F.R. §122.26(c), each culvert and

ditch that discharges storm water will require a

NPDES permit application that includes at a mini-

mum:

(a) a site map with topography, drainage

structures, underground springs (40

C.F.R. §122.26(c)(1Xi(A));

(b) an estimate of impervious surfaces and

the total area drained by each outfall,

along with a narrative of the past activi-

ties (40 C.F.R. §122.26(c)(1i)(B));

has been tested for non storm water dis-

charge (40 C.F.R. §122.26(c1)(iXC));

(d) information regarding significant spills

of toxic or hazardous pollutants at the

facility (40 C.F.R. §122.26(cK1iXD)); and,

(e) sample data collected during storm events

from each of the outfalls (40 C.F.R.

§122.26(c)(1)G)(E)).

The requirement of subpart (b) that the owner of

the primary logging road provide a narrative on past

activities that have occurred within the drainage,

standing alone, imposes an impossible burden on the

counties since these past activities were often under-

taken by adjacent landowners or operators. If the

owner of the logging road is a county or other gov-

ernmental entity, it is being placed in the position of

collecting enormous amounts of data from the land-

owners or operators adjacent to its county road sys-

tem yet these landowners have little incentive or

requirement to provide this data.

Based upon the number of miles of “primary

logging roads” identified by the various County Road

Supervisors, the Association of Oregon Counties’ Road

Engineer estimated that to obtain permits for all of

the cross culverts and roadway ditches associated

with just the 4,800 miles of “primary logging roads”

under county jurisdiction, there would be a permit-

ting cost to the Oregon counties of approximately

$56,000,000 (20,000 culverts x 40 hours staff time per

permit x $70 per hour = $56,000,000). Association of

Oregon Counties, et al., Amicus Brief, Northwest En-

vironmental Defense Center v. Brown, No. 07-35266

(9th Cir. filed Oct. 15, 2010) (C.R. 95). This initial cost

will be repeated as the permits expire and are re-

newed.

Not included within these estimates is the re-

quired pre-application sampling of eaci outfall during

a storm water runoff event as required under 40

C.F.R. §122.26(cX1)}iE) — a storm water sampling

program that will be a staggering burden in its own

right.

The data collection provisions of 40 C.FR.

§122.26(cX 1 iXE) require:

“(qjuantitative data based on samples col-

lected during storm events and collected

in accordance with 122.21 of this part from

all outfalls containing a storm water dis-

charge associated with industrial activity for

the following parameters: ...

(3) Oil and grease, pH, BOD5, COD, TSS,

total phosphorous, total Kjeldahl] nitrogen,

and nitrate plus nitrite nitrogen;

* * *

(5) Flow measurements or estimates of the

flow rate, and the total amount of discharge

for the storm event(s) sampled, and the

method of flow measurement or estimation;

(6) The date and duration (in hours) of the

storm event(s) sampled, rainfall measurements

or estimates of the storm event (in inches)

which generated the sampled runoff and the

duration between the storm event sampled

and the end of the previous measurable

(greater than 0.1 inch rainfall) storm event

(in hours).”

(emphasis added).

As with the requirement under 40 C.F.R.

§122.26(cX1)(i(B) to obtain data as to the land prac-

tices in the drainage area of each culvert or ditch, to

obtain this storm event data for each culvert or ditch

outfall along the 4,800 miles of county owned “pri-

mary logging roads,” as well as for the accompanying

20,000 cross culverts, imposes a staggering burden on

the Oregon counties. Likewise, the burden on the var-

ious State and Federal permitting agencies to simply

process the permit applications would also be stagger-

ing.

Oregon is not unique, for a similar burden will be

experienced by forested counties in other States as

well. To demonstrate the fiscal impact in other States,

the Idaho Association of Counties surveyed the Road

and Bridge Supervisors in Boundary County’ and

' Boundary County is Jocated in the Northern Panhandle of

Idaho bordering Canada. Boundary County has a population of

10,972 and a land area of 1,278.21 square miles, 90.4% of which

is forested. The Boundary County Road and Bridge Department

has jurisdiction over 340 miles of roads and bridges.

Valley County” to determine the number of county

roads in each county that would be “primary logging

roads” as that phrase was used in the Panel’s decision.

The County Road Supervisors in these two coun-

ties identified that their respective county road sys-

tems include approximately 258 miles of “primary

logging roads” and approximately 1,807 cross cul-

verts (culverts that cross under the county road) as-

sociated with these “primary logging roads.””

The Idaho Association of Counties estimates that

if all cross culverts and roadway ditches required a

NPDES permit, then for the 125 miles of “primarily

logging roads” in Boundary County and their accom-

panying culverts under county jurisdiction, there

would be a permitting cost to the Boundary County of

approximately $1,318,800 (471 culverts x 40 hours

staff time per permit x $70 per hour = $1,318,800). If

required to comply with NPDES permitting require-

ments during FY2012, Boundary County would have

been required to spend an estimated 55.7% of its

Valley County is located in South-Central Idaho and has

a population of 9,862 and a land area of 3,733.66 square miles,

84.2% of which is forested. The Valley County Road and Bridge

Department has jurisdiction over 763 miles of roads and bridges.

" The Ninth Circuit did not provide any guidance in de-

fining the ambiguous phrase “primary logging roads,” therefore

the County Road Supervisors took a very conservative approach

as to what roads would be included within this definition.

* Not included within this analysis were the culverts that

do not cross under these “primary logging roads” but cross con-

necting side roads or private access driveways.

annual Road and Bridge Department Budget on com-

pliance with NPDES permitting requirements for

these “primary logging roads.”

Similarly, based upon the number of miles of “pri-

mary logging roads” identified by the Valley County

Road Supervisor, the Idaho Association of Counties

estimates that if all cross culverts and roadway

ditches required a NPDES permit in Valley County,

then for the 133 miles of “primarily logging roads”

and their accompanying culverts under county juris-

diction, there would be a permitting cost to the county

of approximately $3,740,800 (1,336 culverts x 40 hours

staff time per permit x $70 per hour = $3,740,800).

These NPDES permitting requirements would re-

quire Valley County to budget an estimated 75.1% of

its annual Road and Bridge Department Budget on

compliance with NPDES permitting requirements for

these “primarily logging roads.”"

These costs reflect only data on “primary logging

roads” of two of the counties in Idaho. The statewide

impact will be higher as the “primary logging road”

permitting requirement is applied to the 32 other

timber counties in the State.

The imposition of this new burden on the coun-

ties is occurring at a time when the counties with the

“ The FY2012 Road and Bridge Department budget for

Boundary County was $2,369,701.

‘ The FY2012 Road and Bridge Department budget for

Valley County is $4,981,588.

highest percentages of forest lands (federal, state and

private), are facing dramatic reductions in the fund-

ing available for their road programs.

An example of the reduction in funding is dra-

matically illustrated by the reduction in U.S. Forest

Service receipts transferred to the local counties for

roads. Under the revenue sharing provisions of 16

U.S.C. §500 the counties receive 25% of the timber

sale receipts generated from Forest Service timber

sales within the respective counties for the purposes

of funding local schools and roads. In 1990, immedi-

ately prior to the listing of the northern spotted owl

under the Endangered Species Act (16 U.S.C. §1533),

and, the subsequent shift in national forest policy

with the adoption of the Northwest Forest Plan, the

Oregon counties received $112,197,903 as their share

of road receipts from the sale of timber harvested

from the U.S. Forest Service lands.”

While federal programs (e.g., Secure Rural

Schools and Community Self-Determination Act of

2000 (Public Law 106-393 and extensions thereof))

have provided a safety net to avoid bankrupting

county road programs as a result of reduced federal

timber harvests, these federal safety net programs

have dramatically declined and are currently on a

year-by-year basis. For example, the current safety

* In Oregon, these road funds are part of the respective

general road funds of the counties and required to be used solely

on the county’s roads (ORS 368.705(2)).

net road funding for Oregon counties is now at

$42,000,000 — a 64% decrease since 1990. If these

safety net programs were not in place, the funding

that the Oregon counties would have received from

the actual harvest of timber from U.S. Forest Service

lands in Oregon during the 2001 to 2011 time period

would have been on average in the range of $3 to $4

Million annually — a decrease of 96-98% in road

funding. See Association of Oregon Counties’ website

“History of USFS Payments to County Road Funds,”

http//www.aocweb.org/aoc/LinkClick.aspx?fileticket=YB

pefziiB21%3d (last accessed August 3, 2012). This re-

duction in road receipts affects most Oregon counties

but hits hardest in those counties wherein the Fed-

eral forests represent the majority of the land base.

This reduction is particularly significant in

Douglas County, a county with over 80% of its land-

mass within forests and, in turn, a large number of

county roads used for logging purposes.” A Place

called Douglas County, Douglas County Planning De-

partment, 2nd ed. 1990.

Since the 2007 fiscal year, Douglas County has

seen its federal forest revenues dedicated for road

purposes decrease from $14,417,000 to the current

“ The majority of the forested lands within Douglas County

are publically owned by the Federal agencies (e.g., Bureau of

Land Management and the United States Forest Service). A

Place called Douglas County, Douglas County Planning Depart-

ment, 2nd ed. 1990.

$5,533,335 for Fiscal Year 2011.'' This 62% reduction

in funding resulted in the Douglas County’s Public

Works Department reducing its spending on road

maintenance 25% during this time period. In the

event the Federal safety net programs are not re-

newed and the revenue sharing reverts back to the

actual timber harvest receipts, Douglas County would

be forced to further reduce its road maintenance pro-

grams or reallocate general funds from other pro-

grams such as public safety. The Ninth Circuit’s

imposition of a new NPDES permitting requirement

for county roads used for logging purposes, comes at a

time when revenue sources for public roads is dra-

matically being reduced and would therefore require

a significant portion of the county road fund to be

used to obtain permits rather than on-the-ground

maintenance. In this case, for Douglas County the

cost of NPDES permitting the 200 miles of forest

roads that the Douglas County Public Works De-

partment concluded were “primarily logging roads” is

conservatively estimated at $1,120,000. This NPDES

permitting cost represents 20% of Douglas County’s

Fiscal Year 2011 federal road receipts.

During this period of dwindling U.S. Forest

Service receipts, the counties’ general operating

budgets have likewise been reduced, forcing reduc-

tions in road departments as well as other programs.

'* In Fiscal Year 2011 the Douglas County Public Works De-

partment budget was $13,937,000.

For example, in the face of reduced Federal payments

within the counties wherein the Forest Service and

the BLM manage large percentages of the land base,

counties have been forced to close libraries, lay off

sheriff deputies and close jail beds. As a result of

sharp reductions in revenues, at least two Oregon

counties have been forced to release prisoners prior

to their term of sentence or prior to trial. Adding

an additional $56 Million cost to comply with the

NPDES permitting requirement on these already

cash strapped counties will constitute a significant

social and economic burden on the counties yet afford

little, if any, concurrent increase in water quality

benefits.

Increasing the complexity of the issue are the re-

ciprocal rights-of-way associated with the 1937 0 & C

Act lands managed by the Bureau of Land that cre-

ates a checkerboard of intermingled private and pub-

lic Jand ownerships in Oregon. Access across this

checkerboard is provided through numerous right-of-

way agreements that provide the United States and

the private landowners with the right to use and

construct logging roads on each other’s property. (See

43 C.F.R. §2812, et seg.). As a result of these road

agreements, numerous landowners have rights to use

roads that they do not directly control; likewise, they

own roads that other landowners have rights to use.

Contrary to the Ninth Circuit’s assumption that

the “primary logging roads” are built and maintained

by the logging companies, such is not the case, for there

are hundreds, perhaps thousands, of intermingled

private and public owners within the O & C checker-

board, all of whom share the same interconnecting

system of “primary logging roads.” This interconnect-

ing system of reciprocal rights-of-way is, in most cases,

not associated either directly or indirectly with any

specific industrial facility.

Unfortunately, the Ninth Circuit did not have the

full picture of the storm water and nonpoint pollution

control programs before it when the Panel concluded

that these County and State roads were subject to

NPDES permitting. As a result the Panel cast a broad

net in defining primary logging roads without consid-

eration of ownership or operational control.

The Ninth Circuit’s NPDES permitting require-

ment is simply unworkable in that it requires each

log-haul operator to have individual permits for cul-

verts that underlie the roads the operator uses in

transporting logs or other forest products. Multiple

logging operations that all concurrently utilize the

same logging roads would mandate multiple NPDES

permits for the same culverts and ditches. Likewise,

if other users of the road are associated with one of

the other industrial activities defined under EPA

regulations, then each of these industrial operators

would be required to obtain independent NPDES per-

mits for the same culverts and ditches.

The Panel simply miscomprehended the nature

of the road system that is utilized for silvicultural

purposes. Rather than defer to the established Fed-

eral, State and county programs for controlling the

storm water discharges associated with industrial

and silvicultural activities, the Ninth Circuit imposed

an entirely new interpretation of the CWA -—- an

interpretation that imposes a staggering burden on

the counties. To meet this burden, the counties will

need to redirect funding from other essential services

to fund this new and unwarranted permitting pro-

cess.

As a result of the Ninth Circuit opinion, those

counties with a significant percentage of private and

public forest lands within their boundaries are being

forced to allocate their dollars to acquire permits for

activities that have limited impact on water quality

rather than fund essential public services.

lil. The State of Oregon controls storm water

runoff associated with forest roads

through an extensive program of regula-

tions and best management practices.

An NPDES permit for county owned roadway

culverts and ditches is simply the wrong tool for

controlling water quality impacts associated with

roads utilized for logging purposes. EPA has studied

the question of the best management strategies for

storm water runoff and recognized that the best con-

trol mechanisms are through the respective states’

nonpoint pollution programs and not through the

NPDES permitting process. The primary sources of

pollution through a roadway culvert or ditch along

these roadways is actually generated by activities

conducted by the forest land owners who are not

necessarily the owners of the road. The county road

authority seldom has the authority to control these

activities, whether they are done on private land or

land owned by another public agency.

The Ninth Circuit ignored that Congress has

chosen to focus the CWA’s NPDES permitting require-

ments on discharges of pollutants from point sources

and a select number of storm water discharges, 33

U.S.C. §1342, rather than require NPDES permitting

for runoff associated with nonpoint sources of pollu-

tion.

In accord with this focus, EPA’s long-standing

interpretation of the CWA storm water provisions has

been that the subgroup of storm water discharges as-

sociated with silvicultural activities, including log-

ging roads, was not subject to NPDES permitting;

rather, these discharges were to be controlled as part

of the State’s primary responsibility to prevent, re-

duce and eliminate pollution, 33 U.S.C. §1251(b). The

State of Oregon elected to address this responsibility

through its nonpoint source control programs imple-

mented under 33 U.S.C. §1329 and 33 U.S.C. §1288

rather than through the NPDES permitting program.

Recognizing that differences in climate and ge-

ography make nationwide uniformity in controlling

nonpoint source pollution virtually impossible, Con-

gress has traditionally depended on controls State

or local in nature to manage these discharges and

runoffs. Oregon Natural Desert Association, et al. v.

United States Forest Service, 550 F.3d 778, 785 (9th

Cir. 2008).

In accord with this policy, and in reliance on its

EPA approved nonpoint management program,” 33

U.S.C. §1329,” the State of Oregon promulgated ad-

ministrative rules that established control measures

to prevent or reduce nonpoint sources of pollution

(see Oregon Administrative Rules 340-042-0025), in-

cluding the discharges and runoff associated with

silvicultural practices, see Oregon Administrative

Rules 629, divisions 625, 635, 640, 645, 650, 655, 660.

Specific to logging roads, the State of Oregon

incorporated into its Forest Practice Rules a series of

best management practices” addressing logging road

'~ Oregon Nonpoint Source Pollution Program 2011 Annual

Report; http://www.deq.state.or.us/wq/nonpoint/docs/annualrpts/

rptll.pdf (last accessed August 9, 2012).

’“ The State of Oregon’s program of non-point source man-

agement was established in 1978 and has been updated annually.

(Oregon Nonpoint Source Control Program Plan; 2000 update,

http://www.deq.state.or.us/wq/nonpoint/docs/plan/plan.pdf (last ac-

cessed August 9, 2012)). The State of Oregon’s plan was adopted

after public notice and opportunity to comment and was ap-

proved by EPA. 33 U.S.C. §1329(a) & (b).

” Best Management Practices (“BMPs”) represent “sched-

ules of activities, practices (and prohibitions of practices),

structures, vegetation, maintenance procedures, and other man-

agement practices to prevent or reduce the discharge of pollu-

tants to waters of the United States. BMPs also include

treatment requirements, operating procedures, and practices to

control plant site runoff, spillage or leaks, sludge or waste

disposal, or drainage from raw material storage. See 40 C.F.R.

$122.2.

construction and maintenance, see Oregon Adminis-

trative Rules 629-625.”

In addition to the best management practices for

forestry operations, the State of Oregon also adopted

an extensive program of best management practices

for maintenance and construction of State highways.

See Oregon Department of Transportation, Routine

Road Maintenance, Water Quality and Habitat Guide

Best Management Practices, Revised 2009 (“Blue

Book”), http://ems.oregon.gov.com/ODOT/HWY/OOM/

docs/blue_book.pdf (last accessed August 9, 2012).

Most of the Oregon counties have adopted either the

Blue Book as their own best management practices or

have adopted their own independent best manage-

ment practices for culverts, ditches and drains asso-

ciated with roadways. See Marion County,

Department of Public Works, Best Management

Practices for Clean Water, Crew Manual, Spring 2009,

pp. 17-22, http://www.co.marion.or.us/NR/rdonlyres/

02DED700-CD42-4D33-83C5-D7481FB54BC 1/24075/

CrewManual091.pdf. (last accessed August 9, 2012).

The Ninth Circuit’s dramatic revision in the

manner in which the Clean Water Act is implemented

*. EPA recognized the Oregon Department of Forestry (“ODF”)

as the lead agency for nonpoint source pollution control efforts

on State and private forest lands in 1979. ODF has established a

series of regulatory management practices with which State and

private foresters are required to comply. Oregon Nonpoint

Source Control Program Plan; 2000 update, p. 20, http://www.deq.

state.or.us/wq/nonpoint/docs/plan/plan.pdf (last accessed August

7, 2012).

is not only costly and unworkable, it is not needed.

State and county governments are already conducting

their road activities in a manner that ensures the

least impact to the water quality.

CONCLUSION

The Court should reverse the decision below and

clarify that deference is to be afforded to EPA’s inter-

pretation that only those access roads that are “im-

mediately” and “directly” associated with a specific

industrial facility are included within that group of

access roads associated with an industrial facility.

Further, the Court should reverse the Ninth Circuit

for failing to afford deference to EPA’s interpretation

that the phrase “local access roads” as used in its

storm water regulations does not include state, local

or federal roads. Deference should also be afforded to

EPA and the respective states’ long-standing interpre-

tation that storm water from roads used for logging

purposes is controlled under the nonpoint pollution

control programs of the respective states and EPA.

Respectfully submitted,

RONALD S. YOCKIM

Counsel of Record

LAW OFFICES OF RONALD S. YOCKIM

430 S.E. Main St.

Roseburg, OR 97470

(541) 957-5900

ryockim@yockimlaw.com

August 2012

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.