# Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 568 U.S. 1118

## Text

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,
v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,
Respondent.

.
GEORGIA-PACIFIC WEST LLC; et al.,

Petitioners,
v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,
Respondent.

4

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
°

BRIEF OF NATIONAL ASSOCIATION OF
COUNTIES, ASSOCIATION OF OREGON
COUNTIES, IDAHO ASSOCIATION OF COUNTIES,
ASSOCIATION OF O & C COUNTIES, AND,
DOUGLAS COUNTY AS AMICI CURIAE
SUPPORTING PETITIONERS
.

RONALD S. YOCKIM

Counsel of Record

LAW OFFICE OF RONALD S. YOCKIM
430 S.E. Main Street

Roseburg, OR 97470

(541) 957-5900
ryockim@cmspan.net

Counsel for Amici Curiae
National Association of Counties,
Oregon Association of Counties,
Idaho Association of Counties,
Association of Oregon Counties,
and Douglas County

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

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INTERESTS OF AMICI CURIAE..............00c0scee00s 1
INTRODUCTION AND SUMMARY OF ARGU-

SUNIIIIIIET ‘schaiceniiasicaisdieiiaiaianbanihdiabbdidciaidiideadesendmennmuniiiniiaaine 3

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TABLE OF AUTHORITIES
Page
CASES
Chevron v. Natural Res. Def. Council, 467 U.S.
ch istciahesinlciteciicalpinrietachclatiaadt cuacdbaieidaesioemtantendiosaatdiods 10
Northwest Environmental Defense Center v.
Brown, 640 F.3d 1063 (9th Cir. 2011)........... 3, 12,183
National Wildlife Federation v. Gorsuch, 693
ee BD Cie as TAPED sresccseninsessessscccseneceupeursevesenes 9
Oregon Natural Desert Association, et al. v.
United States Forest Service, 550 F.3d 778
SINE: EUITIIEY -ticscvanstenimenssnlnssddasteaaieebespimnnieseitenndnpaniianiiep-ivtimniddiibineniic 4
STATUTES
Clean Water Act
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li

TABLE OF AUTHORITIES — Continued

Page
O & C Act of 1937

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REGULATIONS
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ee es Bk | fh | | + ere ennee 16, 17
rae I ii cise diitsnhtiiiiiigelenpelaenianbiadbacail 5, 7
ee I isc sivcthnaissionintienidiiepraicladiiietandéieinibenaagiing- 7
a atedaiinstinbntpnirsentsiniteindbiiatidhdiliniligsianiagies 19
Oregon Administrative Rules 340-042-0028 ............... 5
Oregon Administrative Rules 629-625-0000,

Oy, ccctcnsnetsestnibicnintninntnctinibintdenttinninnameniainiuidsennnnen 5
Oregon Administrative Rules 629-635 ...................:06.. 5
Oregon Administrative Rules 629-640 ...............c ee. 5
Oregon Administrative Rules 629-645 ........................ 5

Oregon Administrative Rules 629-650 ....................... 5

iv

TABLE OF AUTHORITIES -— Continued

Oregon Administrative Rules 629-655
Oregon Administrative Rules 629-660

1

The National Association of Counties, Association
of Oregon Counties, Idaho Association of Counties,
Association of O & C Counties, and Douglas County
(collectively “Counties”) respectfully submit this brief
as amici curiae in support of Petitioners.’

¢

INTERESTS OF AMICI CURIAE

The National Association of Counties (“NACo”) is
the national organization that represents county
governments in the United States. Founded in 1935,
NACo provides essential services to the Nation’s
3,068 counties. NACo is a Delaware non-profit corpo-
ration, there are no subsidiary or parent organiza-
tions, and it has no shareholders.

The Association of Oregon Counties (“AOC”) is an
intergovernmental agency of county governments
established under the laws of Oregon, it has no
subsidiary or parent organizations, and it has no
shareholders.

The Idaho Association of Counties (“IAC”) is a
non-profit, non-partisan service organization dedicated

‘ Counsel of record for all parties received notice at least 10
days prior to the due date of the intention of amici to file this
brief. The parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to
fund the preparation of submission of this brief. No person other
than amici, their members, or their counsel made a monetary
contribution to its preparation or submission.

2

to the improvement of county government. LAC was
designed and incorporated by county elected officials
under Idaho law and under Section 501(c)(4) of the
Internal Revenue Code to provide services, research,
uniformity, and coordination among member counties
in order for the county elected officials to better serve
their constituents. LAC 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 seg.).
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
subsidiary or parent organizations, nor any share-
holders. 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 defini-
tive resolution of the question whether the runoff
from that subset of their public roads that are logging
roads not directly associated with any industrial
facility are subject to the permitting requirements of
the National Pollution Discharge Elimination System

3

(“NPDES”) of the Clean Water Act (“CWA”) (33 U.S.C.
§1342).

Pursuant to this Court’s Rule 37.2(a), counsel of
record in this case received timely notice of the Coun-
ties’ intent to file this brief, and all parties consented
to the filing of this brief with the Court.

.

INTRODUCTION AND
SUMMARY OF ARGUMENT

This case involves the far-reaching decision by
the Ninth Circuit displacing the longstanding man-
ner in which the Environmental Protection Agency
(“EPA”) and the State of Oregon implement the
stormwater control provisions of the CWA (33 U.S.C.
§1342(p)).

In Northwest Environmental Defense Center v.
Brown, 640 F.3d 1063 (9th Cir. 2011), the Ninth
Circuit shifted the management of stormwater runoff
associated with logging roads from the nonpoint
source control programs managed by the respective
states to a system of permitting under the National
Pollution Discharge Elimination System (“NPDES”)
(33 U.S.C. §1342).

This fundamental shift in the long-established
stormwater management scheme, ignored that Con-
gress has chosen to focus the CWA’s NPDES permit-
ting requirements on those discharges of pollutants
from point sources and only a limited number of

4

stormwater discharges (33 U.S.C. §1342), rather than
require permitting for discharges or runoff associated
with activities such as silvicultural activities.

In accord with this focus, EPA’s longstanding
interpretation of the CWA stormwater provisions has
been that that subgroup of stormwater discharges
associated with silvicultural activities, including
logging roads, was not subject to NPDES permitting,
rather these discharges were to be controlled as part
of the State’s primary responsibility to prevent,
reduce and eliminate pollution (33 U.S.C. §1251(b)),
which in this case was through the respective state’s
nonpoint source control programs implemented under
33 U.S.C. §1329 and 33 U.S.C. §1288.

Recognizing that differences in climate and
geography make nationwide uniformity in controlling
nonpoint source pollution virtually impossible,
Congress has traditionally depended on land use
controls state or local in nature to control these
discharges and runoff. (Oregon Natural Desert Asso-
ciation, et al. v. United States Forest Service, 550 F.3d
778, 785 (9th Cir. 2008)). Congress has opted to
regulate these sources of runoff and discharge
through the programs established in 33 U.S.C.
§1329(b) and 33 U.S.C. §1288.

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
administrative rules which established standards for
the control of the nonpoint sources of pollution (Oregon

5

Administrative Rules 340-042-0025), including dis-
charges and runoff associated with silvicultural
practices (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 construction and
maintenance (Oregon Administrative Rules 629-625-
0000, et seg.).

Plaintiff challenged EPA’s and the State of Ore-
gon’s long-standing interpretation by alleging that
the State of Oregon as the owner, or as the operator,
of two logging roads (Trask Road and Sams Down
Road) was in violation of the CWA by allowing the
discharge of stormwater runoff from these logging
roads without first acquiring a NPDES permit.

Plaintiff contended that the stormwater runoff
from these logging roads represents a “discharge
associated with industrial activity” and as such the
roads were automatically subject to the NPDES
permitting requirements under 33 U.S.C. §1342(pX2\B).
Plaintiff sought to shift the focus of the State of
Oregon’s approved nonpoint pollution control pro-
gram to a NPDES permitting program.

The defendants and intervenor-defendants moved
to dismiss the case based on EPA’s silvicultural rule
(40 C.F.R. §122.27) and stormwater rule (40 C.F_R.
§122.26) whereby logging roads were excluded from
CWA permitting requirements. EPA filed an amicus
brief in support of the motion to dismiss, explaining

6

that stormwater runoff from logging roads was
not the type of discharge Congress had directed
be subject to permitting (United States Amicus Brief,
Northwest Environmental Defense Center v. Brown,
3:06-cv-01270 filed Dec. 6, 2006, C.R. 44).

As EPA explained in its amicus brief, part of the
1987 amendments to the CWA, Congress adopted a
two-phase approach to management of stormwater
discharges.

During the first phase, the CWA directed that
five specific types of stormwater discharges were to
be automatically subject to permitting (“Phase I”) (33
U.S.C. §1342(pX2) & (3)).

With respect to the other stormwater discharges,
Congress directed that EPA, in consultation with the
States, was to identify which of these other forms of
stormwater discharges existed and were not regulat-
ed under Phase I (33 U.S.C. §1342(pX2)). Once it
identified these various discharges, it was then to
identify which of these non-Phase I stormwater dis-
charges should be subject to regulation. (33 U.S.C.
§1342(p)\(2) & (5)). The non-Phase I discharges that
EPA determined were to be subject to permitting be-
came known as the Phase II discharge. The remain-
ing discharges were left to the States to manage.

In identifying the non-Phase I discharges pursu-
ant to 33 U.S.C. §1342(p)(5), EPA had to first define
and determine the scope of the ambiguous phrase
“discharge associated with industrial activity.” De-
fining this phrase was a critical step in fulfilling its

7

CWA obligations under 33 U.S.C. §1342(p)(5) & (6) to
identify the non-Phase I discharges.

EPA defined the phrase “associated with indus-
trial activity” as:

“(s)torm water discharge associated within
industrial activity means the discharge from
any conveyance that is used for collecting
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
activities excluded from the NPDES
program under this part 122.”

(40 C.F_R. §122.26(b)(14)) (emphasis added).

EPA established a three part test which required
there be: first, a direct relationship between the road
and the industrial activity; secondly, that the activity
be one of the specific activities identified; and, third,
that the discharge occur at a specific industrial plant
or facility. Neither the Trask Road nor the Sams
Down Road met any of these elements.

Further, EPA also interpreted the phrase as not
including activities that were excluded from NPDES
permitting pursuant to 40 C.F.R. §122. Included with-
in Part 122, were the road related activities described
in the silvicultural rule.

As part of its delegated authority to interpret the
CWA, EPA established the silvicultural rule as a
means of distinguishing which silvicultural activities

8

were to be “silvicultural point sources” and subject to
permitting (40 C.F.R. §122.27), from those “silvicul-
tural nonpoint sources” which were subject to state
management.

EPA defined the “silvicultural 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.FLR. §122.27(b)(1)).

EPA specifically referenced that the logging roads
were nonpoint sources in that the term silvicultural
point sources:

“does not include nonpoint source silvicul-
tural activities such as nursery operations,
site preparation, reforestation and subsequent
cultural treatment, thinning, prescribed burn-
ing, pest and fire control, harvesting opera-
tions, surface drainage, or road construction
and maintenance from which there is natu-
ral runoff.”

(40 C.FLR. §122.27(bX1)).

In its amicus brief to the Ninth Circuit, the
United States again pointed out that the silvicul-
tural nonpoint sources were to be controlled through
the respective states’ nonpoint source management

9

programs (33 U.S.C. §1329) rather than the NPDES
permitting program (United States Amicus Brief,
Northwest Environmental Defense Center v. Brown,
No. 07-35266 (9th Cir. Filed Nov. 15, 2007) C.R. 42).

In rejecting EPA’s interpretation, the Ninth
Circuit concluded that EPA’s rules were invalid to the
extent they served to exclude logging road storm-
water discharges from the NPDES permitting re-
quirements -— a decision that gave inadequate
deference to EPA's interpretation of the CWA provi-
sions relating to “associated with industrial activity.”

The Ninth Circuit ignored that Congress express-
ly meant for EPA to have substantial discretion in
administering the CWA, entrusting EPA with discre-
tion in defining specific terms (National Wildlife
Federation v. Gorsuch, 693 F.2d 156, 166-67, 171-75
(C.A.D.C. 1982)). Included within this discretion was
the authority to define which stormwater discharges
were associated with industrial activities.

Notwithstanding that EPA’s interpretation of the
phrase “discharge associated with industrial activity”
was reasonable, and one EPA was required to make
in order to fulfill its obligations under 33 U.S.C.
§1342(p)5), the Ninth Circuit simply reached another
conclusion, namely that the EPA’s interpretation was
not consistent with the Congressional] intent. 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
provisions thereof through rulemaking, the court

10

should not substitute its own construction of a statu-
tory provision for a reasonable interpretation made
by the administrator of the agency (Chevron v. Natu-
ral Res. Def. Council, 467 U.S. 837, 844 (1984)).

Rather than defer to EPA's interpretation of the
CWA, the Ninth Circuit concluded that a logging road
is associated with an industrial activity and therefore
any stormwater discharge along the logging road
represented a “discharge associated with an indus-
trial activity.” It failed to recognize EPA’s reasonable
interpretation that activities covered by the silvicul-
tural rule were not “discharges associated with an
industrial activity.”

The Ninth Circuit erred not only in rejecting the
silvicultural rule, it also erred in failing to defer to
EPA’s long-standing interpretation of the phrase
“associated with industrial activity.” Rather than
recognize EPA’s interpretation of what discharges
were subject to Phase I, the Ninth Circuit simply
substituted its judgment and cast aside EPA's inter-
pretation that stormwater discharges from logging
operations were excluded from permitting.

The Ninth Circuit also ignored that under EPA’s
interpretation, the discharge must be not only from a
conveyance that is used to collect and convey storm-
water, it must also be “directly related to manufac-
turing, processing or raw materials storage areas at
an industrial plant.” (40 C.F.R. §122.26(b)(14))
(emphasis added).

11

The decision that these two remote logging roads,
of which at least one is owned by a local government,
are exclusively or primarily dedicated for use by an
industrial facility has swept into the NPDES permit-
ting process (33 U.S.C. §1342) not only private roads
that were excluded under the silvicultural rule, but
also large numbers of public roads owned and man-
aged by the various counties.

The Petitioners have set forth in their respective
briefs compelling legal reasons for granting certiorari
with respect to the Ninth Circuit’s departure from the
EPA’s and the State of Oregon’s long-standing inter-
pretations of the stormwater provisions of the CWA.
The Counties will not restate these arguments,
rather, the Counties instead explain why redefining
roads utilized primarily for forestry purposes as roads
associated with an industrial activity is overly broad
and imposes a significant burden on the Counties.

In setting aside the long-established method of
addressing stormwater discharges from silvicultural
practices, the Ninth Circuit imposed a significant cost
prohibitive burden on the Counties. As discussed
supra, the financial burden to the Oregon Counties
alone in meeting this new permitting burden cost is
estimated to be $56,000,000 at a conservative mini-
mum. The Counties can only meet this burden if they
divert funding from other essential services to meet
this new permitting requirement.

12

The Ninth Circuit erred in failing to defer to
EPA's and the State of Oregon’s long-standing inter-
pretation of the CWA relative to management of
stormwater discharges from logging roads. As a result
of this error, the Ninth Circuit has upset the estab-
lished CWA management programs and imposed a
substantial burden on otherwise financially strapped
counties.

¢

ARGUMENT

The Ninth Circuit’s decision is extremely broad
reaching and will result in unwarranted bur-
dens on the Counties.

The Ninth Circuit’s decision that NPDES permits
are required for the ditches and culverts associated
with roads that are primarily logging roads has far-
reaching implications on the Counties.

While the Ninth Circuit appears to have assumed
that these primarily logging roads are built and
maintained 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. If the Ninth
Circuit had had the benefit of public review and
comment of the rule making procedures of the Ad-
ministrative Procedures Act, it would have found that
large numbers of the logging roads in Oregon —
if not the majority — that fall within the Ninth Cir-
cuit’s definition of “primary logging roads” are owned,

13

built and maintained by the Oregon Counties, the
State of Oregon, United States Forest Service or the
United States Bureau of Land Management.

Similarly, throughout the United States the
various counties own and maintain a large number of
roads that also fall within the Ninth Circuit’s classifi-
cation of primarily logging roads as roads that pro-
vide access to logging sites (id. at p. 1084).

Review is warranted by this Court in that the
Ninth Circuit’s holding that stormwater runoff from
primarily logging roads qualifies as Phase I discharge
has established a new and unprecedented burden
requiring NPDES permitting for County roads that
are used for logging purposes. This drastic shift in the
manner in which the CWA is implemented alone
warrants this Court’s review.

Further, review is also warranted because the
Ninth Circuit’s holding has created the potential for
local governments to be subject to CWA liability when
their road systems are utilized by private or other
public entities in exercising their rights to utilize the
county road systems.

If the Ninth Circuit opinion is left in place,
County, State and Federal officials will be inundated
with an enormous workload in order to obtain
NPDES permits for ditches and culverts which have
insignificant environmental impacts.

The practical effect of the requirement to im-
pose permitting requirements on logging roads would

14

impose an extensive and cost prohibitive permitting and
monitoring requirement upon the Counties and other
private parties — 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
logging roads” as that phrase was used in the Ninth
Circuit’s decision. (Association of Oregon Counties,
et al., Amicus Brief, Northwest Environmental De-
fense Center v. Brown, No. 07-35266, C.R. 95 (9th Cir.
Filed Oct. 15, 2010)).

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, C.R. 95 (9th Cir. Filed Oct. 15, 2010)).

Associated with these 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, C.R. 95 (9th Cir. Filed Oct. 15, 2010)).

15

In addition to the “primary logging roads” identi-
fied by the County Road Supervisors, within the 2.1
million acres managed by the Bureau of Land Man-
agement (“BLM”) the Association of O & C Counties
also identified the number of roads and culverts. This
analysis identified an additional 16,817 miles of
“primary logging roads” along with 500 culverts that
are larger than 80 inches in diameter and an addi-
tional 40,000 culverts of less than 80 inches in diame-
ter. (Association of Oregon Counties, et al.; Amicus
Brief, Northwest Environmental Defense Center uv.
Brown, No. 07-35266, C.R. 95 (9th Cir. Filed Oct. 15,
2010)).

The Oregon Department of Transportation in its
2009 Oregon Mileage Report also identified that there
were 6,612 miles of “public” United States Forest
Service roads which would mostly be logging roads.
(ODOT 2009 Mileage Report, p. 163; at (http://www.
oregon.gov/ODOT/TD/TDATA/rics/PublicRoadsInventory.
shtml#Oregon_Mileage_Report.)

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 as are currently required for
stormwater discharges associated with industrial
activity (See 40 C.F.R. §122.26(c)) will be imposed for
these “primary logging roads.”

Under 40 C.F.R. §122.26(c), each culvert and
ditch that discharges stormwater will require a

16

NPDES permit application that includes at a mini-

mum:

(a)

(b)

(c)

(d)

(e)

a site map with topography, drainage struc-
tures, underground springs (40 C.FR.
§122.26(c)(1)GXA));

an estimate of impervious surfaces and the
total area drained by each outfall, along with
a narrative of the past activities (40 C.F.R.
§122.26(c)(1)(i)(B));

certifications that each of the outfalls has
been tested for non stormwater discharge (40
C.F_R. §122.26(c)(1)(iXC));

information regarding significant spills of
toxic or hazardous pollutants at the facility
(40 C.F.R. §122.26(c)(1)(i)(D)); and,

sample data collected during storm events
from each of the outfalls (40 C.FR.
§122.26(c)(1)(i(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 who have little incentive or requirement to
provide this data.

17

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”
and their accompanying culverts under county juris-
diction, there would be a permitting cost to the Ore-
gon 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 Environmental De-
fense Center v. Brown, No. 07-35266, C.R. 95 (9th Cir.
Filed Oct. 15, 2010)). One can assume that the impact
of the Ninth Circuit’s ruling will be far greater once
the “primary logging road” permitting requirement is
applied to the forest counties in other states.

Not included within this $56,000,000 estimate is
the required pre-application sampling of each outfall
during a stormwater runoff event as required under
40 C.F_R. §122.26(c\1)i)(E) — a stormwater sampling
program that will be a staggering burden in its own
right.

The data collection provisions of 40 C.F.R.
§122.26(cX 1iXE) 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:

18

* * *

(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 measure-
ments 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 meas-
urable (greater than 0.1 inch rainfall) storm
event (in hours).”

(emphasis added).

As with the requirement under 40 C.F.R.
§122.26(cX1XiXB) 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 “primary logging
roads” as well as for the accompanying 20,000 cross
culverts imposes a staggering burden on the Oregon
Counties. Likewise, for the Federal agencies to obtain
the data for the Bureau of Land Management’s
16,817 miles of roads and the approximate 6,612
miles of Forest Service roads is an equally staggering
financial burden.

19

Increasing the complexity of the issue is the
unigue checkerboard of intermingled private and
public land ownerships in Oregon resulting from the
reciprocal rights-of-way associated with the 1937
O&C Act lands managed by the Bureau of Land
Management. Access across this checkerboard is
provided through reciprocal right-of-way agreements
that provide the United States and the private land-
owners with the right to use and construct logging
roads on each other’s property. (See 43 C.F_R. §2812 et
seq.). As a result of these road agreements, numerous
landowners have rights to use a road that they do not
directly control, likewise they own roads to which
other landowners have rights of use.

The “primary logging roads” covered by these
reciprocal agreements are not under one single par-
ty’s control and often involve numerous operators
utilizing the same road concurrently. Contrary to the
Ninth Circuit’s assumption that the “primary logging
roads” are built and maintained by the logging com-
panies, such is not the case, for there are hundreds,
perhaps thousands, of intermingled private owners
within the O & C checkerboard, all of whom share the
same interconnecting system of “primary logging
roads.” This interconnecting system of reciprocal
rights of way are, in most cases, not associated either
directly or indirectly with any specific industrial
facility.

The Ninth Circuit has simply miscomprehended
the nature of the road system that is utilized for
silvicultural purposes. Rather than defer to the

20

established programs for controlling the stormwater
discharges associated with silvicultural activities, the
Ninth Circuit imposed an entirely new interpretation
of the CWA ~ an interpretation that imposes a stag-
gering burden on the Counties. This burden is not
warranted given the existing programs to manage
stormwater discharges and runoff. To meet this
burden, the Counties will need to redirect funding
from other essential services to fund this new and
unwarranted permitting process.

¢

CONCLUSION

For the foregoing reasons, the petitions for writ
of certiorari should be granted.

Respectfully submitted,

RONALD S. YOCKIM
Counsel of Record
LAW OFFICES OF
RONALD S. YOCKIM

430 S.E. Main Street
Roseburg, OR 97470
(541) 957-5900
ryockim@cmspan.net

Counsel for Amici Curiae National Association
of Counties, Oregon Association of Counties,
Idaho Association of Counties, Association of

Oregon Counties, and Douglas County

October 2011

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A13. Public record. Not legal advice.