Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

No. 11-347

—- OO —_—

IN THE

Supreme Court of the United States

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN FARM BUREAU

FEDERATION, THE NATIONAL PORK

PRODUCERS COUNCIL, AND THE NATIONAL

COUNCIL OF FARMER COOPERATIVES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

ELLEN STEEN JAMES T. BANKS

DANIELLE QUIST CHRISTOPHER T. HANDMAN*

AMERICAN FARM MARY HELEN WIMBERLY

BUREAU FEDERATION KATHRYN L. LANNON

600 Maryland Ave., S.W. HOGAN LOVELLS US LLP

Suite 1000W 555 Thirteenth Street, N.W.

Washington, D.C. 20024 Washington, D.C. 20004

(202) 406-3600 (202) 637-5719

chris.handman@hoganlovells.com

*Counsel of Record Counsel for Amici Curiae

(Additional counege] listed on inside cover)

Additional Counsel:

MICHAEL C. FORMICA

NATIONAL PORK

PRODUCERS COUNCIL

122 C Street, N.W.

Suite 875

Washington, D.C. 20001

(202) 347-3600

MARLIS CARSON

NATIONAL COUNCIL OF

FARMER COOPERATIVES

50 F Street, N.W.

Suite 900

Washington, D.C. 20001

(202) 626-8700

TABLE OF CONTENTS

Page

Re er CF Ce ccc ccsesenesanencssscssescnccenceneeses ii

STATEMENT OF INTEREST .....................ccecseeseeeeees 1

SUMMARY OF ARGUMENT ...................cccceceseseseseees 4

TET ‘scintinictisiutainnuinidtadeiuiiniinniasneniainianipninanteeiid 6

CONGRESS INTENDED STORMWATER

RUNOFF FROM AGRICULTURAL AND

SILVICULTURAL ACTIVITIES TO BE

ADDRESSED BY THE STATES AS

POET SEINE orcncenersnssvenesnsaseoetscasnonnencences 6

A. The 1987 Stormwater Amendments

Confirm That Rural Stormwater Run-

off Should Be Considered A Nonpoint

TITTLE ke oven Pen TE 7

B. One Of The Primary Targets Of The

Nonpoint Source Management Pro-

gram Was Poilution From Agricultural

And Silvicultural Activities ......................... 20

SIE cecscsnevenccenemenesssenesnemnenssennennsumnntontnnaen 25

(i)

is

TABLE OF AUTHORITIES

Page

CASES:

National Ass’n of Home Builders v.

Defenders of Wildlife,

iret cain icineniaiinianel 2

NRDC v. EPA,

OOS FDA UBBS Gite Cle. 1BDB) .0e..oicccsccccscescccscess00:- 7

Oregon Natural Desert Ass’n v.

U.S. Forest Serv.,

550 F.3d 778 (9th Cir. 2008)..................ccccccsccssees 21

PPL Montana LLC v. Montana,

ES LR CR DR 3

Pronsolino v. Nastri,

291 F.3d 1123 (Sth Cir. 2002)..............cccccccccscorees 15

Rapanos v. United States,

I 2,3

Sackett v. EPA,

I Ne eels 2,3

South Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians,

SS ee eae aoe 2

United States v. Plaza Health Labs., Inc.,

BID cteitectatncntndcitnicanssinnesnecscins 21

STATUTES:

— EERESREE ENE Rr Oe ere REM IE 23

linc 23

I i adeeiaieinneie 22

ceili 15

i 8} EERSTE REnE RE ED EEE mT 15

TABLE OF AUTHORITIES—Continued

Page

es Ue TIT sinsicctinsiiceterenssininiecertbdinteniataitiintammenaiauall 4, 24

ee NG Oe I cccninctintieiinpiineiinccmneiiniitaitiiameanal 20

ee re Oe BI ccirnccinssenisiaciititisieiusiiieiieineaiiealiliaa 7

ee Cen eeee Ue aacriccninnincsiniaiiciemeidiel 20

ae ate Oe SR inrncuvecrcctnicstiiciiiiedisubmdusiaiiea 20

Se Fes Oe EE scinrccnenennnntenencietenisntenialimndiidbiiainicdnaetiae 5

a is Oe i ccicsiecennscncsnnnencutnnsiniistiinnimnidiiisins 4,7,8

er ae iiciesnictecnttrcennnslcaiiainaninniiniaaiiaiiiieini iad 7

ee ey Oe Se iccicnsecnecunispniasibincatsctiniieiiiastilaiaglahiasenle 7

Pe ie ST iccncccricccsnetsnnibeciesecciaiiananiemninnuiiialia 7

ee ee CIE viccriienccisnietnicicsiininniiiiiciiaasia 4, 5, 8,17

Pub. L. No. 80-845, 62 Stat. 1155

NE ts iiiinicenienischeniiaictnnesticinsiiiiliad esiniimmcinaniliele 22

Pub. L. No. 92-500, 86 Stat. 816

EEE Sr oe ee PE 23

Pub. L. No. 95-217, 91 Stat. 1566

NL Sees Se ee niin enssnitcaisieapitiitaishantiitiinintiieilaaeniinitas 14, 23

REGULATIONS:

re ae i ccinnecccernsentsicetencishitntaenitipaisnibiiaimsiamaic amas 13

gf | ETE IR HE 14, 15

as Oe ee aicisecintenctcinciitintunisissinipninedtindiuiiiieaaeaa 22

40 Fed. Reg. 56,932 (Dec. 5, 1975) .......0...00...0cc.. 8,9

41 Fed. Reg. 6,281 (proposed Feb. 12, 1976) ...14, 22

41 Fed. Reg. 24,709 (proposed June 18, 1976) ...... 15

41 Fed. Reg. 28,493 (July 12, 1976)...............e 13

iv

TABLE OF AUTHORITIES—Continued

Page

LEGISLATIVE:

117 Cong. Rec. 38825 (Nov. 2, 1971)..................004. 23

123 Cong. Rec. 39170 (Dec. 15, 1977) ....se.ccsssesseeee. 24

131 Cong. Rec. 15616 (June 13, 1985)................... 19

H. Rep. No. 96-71 (Dec. 31, 1980) ...........:c..cceceeeeeeeee 9

S. Rep. No. 95-370 (July 28, 1977)................... 14, 24

S. Rep. No. 99-50 (May 14, 1985)................. 10

OTHER AUTHORITIES:

4 Legislative History of the Water Quality Act

I, Tle TI os icctntniicenntnienannenenes 11, 20

American Soc’y of Civil Eng’rs, Hydrology

Handbook (2d ed. 1996)...........sscssseccessessecsesesseeees 17

Cynthia Nickerson et al., U.S. Dep’t of Agric.,

Economic Research Serv., Major Uses of

Land in the United States, 2007 (Dec. 2011),

available at http://www.ers.usda.gov/media/

177328/eib89_reportsummary.pdf .................. 6, 16

EPA, Office of Water Regulations and Stand-

ards, Publ’n No. 440R85013, Perspectives on

Nonpoint Source Pollution (1985), available

at http://www.epa.gov/nscep/index.html............. 12

EPA, Publ’n No. 350R84001, Report to Con-

gress: Nonpoint Source Pollution in the U.S.

(Jan. 1984), available at http://www.epa.gov/

iia ini earatniadiatnennennenes 10

Marc R. Poirier, Non-point Source Pollution, in

Environmental Law Practice Guide (2008) ........ 21

v

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Agric., National Agr. Statistics

Serv., Farms, Land in Farms, and Livestock

Operations: 2011 Summary (Feb. 2012),

available at http://usda01.library.cornell.edu/

usda/current/FarmLandIn/FarmLandIn-02-

5 ALATA ATLEAST LTS 16

William L. Andreen, Water Quality Today—

Has the Clean Water Act Been a Success?,

ls iy Se I Se crccncnccsnicostnnninecscisemmenenen 21

IN THE

Supreme Court of the Anited States

No. 11-347

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN FARM BUREAU

FEDERATION, THE NATIONAL PORK

PRODUCERS COUNCIL, AND THE NATIONAL

COUNCIL OF FARMER COOPERATIVES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST!

The American Farm Bureau Federation (Farm

Bureau), the National Pork Producers Council

(NPPC), and the National Council of Farmer Cooper-

1 No party or counsel for a party authored or paid for this

brief in whole or in part, or made a monetary contribution to

fund the brief's preparation or submission. No one other than

amici or their members or counsel made a monetary contribu-

tion to the brief. All parties have filed blanket amicus consent

letters.

2

atives (NCFC) respectfully submit this brief as amici

curiae in support of Petitioners.

The Farm Bureau was formed in 1919 and is the

largest nonprofit general farm organization in the

United States. Representing more than 6.2 million

member facilities in all 50 states and Puerto Rico,

the Farm Bureau maintains a membership that

produces every type of agricultural crop and com-

modity produced in the United States. Its mission is

to protect, promote, and represent the business,

economic, social, and educational interests of Ameri-

can farmers. To that end, the Farm Bureau has

regularly participated as amicus curiae in this Court

in cases involving the proper scope of the permitting

schemes established by the Clean Water Act. See,

e.g., Sackett v. EPA, 132 S. Ct. 1367 (2012); National

Ass'n of Home Builders v. Defenders of Wildlife, 551

U.S. 644 (2007); Rapanos v. United States, 547 U.S.

715 (2006); South Fla. Water Mgmt. Dist. v. Mic-

cosukee Tribe of Indians, 541 U.S. 95 (2004).

NPPC is a non-profit trade association represent-

ing the interests of pork producers throughout the

United States. It serves as an advocate for reasona-

ble legislation and regulations, develops revenue and

market opportunities, and protects the livelihood of

the nation’s 67,000 pork producers, which it repre-

sents through 43 affiliated state associations.

NPPC’s mission includes representing pork produc-

ers in administrative and judicial proceedings involv-

ing national regulations and other government

actions that affect the production of pork in the

United States.

3

NCFC has been the voice of America’s farmer coop-

eratives since 1929. NCFC members include 58

national, regional, and federated farmer coopera-

tives, which in turn comprise more than 2,500 local

cooperatives across the United States whose mem-

ber-owners include a majority of our nation’s more

than two million farmers and ranchers. NCFC

members also include 22 state and regional councils

of cooperatives. Farmer cooperatives handle, pro-

cess, and market almost every type of agricultural

commodity, furnish farm supplies, and provide credit

and associated financial services to their farmer

members. NCFC advocates on behalf of its members

at the federal level to encourage a healthy public-

policy environment in which farmer-owned coopera-

tive businesses operate and thrive, and provides

leadership in cooperative education. In particular,

NCFC supports science-based, achievable, and

affordable environmental policies and initiatives,

and actively works to ensure environmental laws like

the Clean Water Act are implemented accordingly.

It has thus appeared before this Court as amicus

curiae in several cases involving the Act. See, e.g.,

Sackett, 132 S. Ct. 1367; PPL Montana LLC v. Mon-

tana, 132 S. Ct. 1215 (2012); Rapanos, 547 U.S. 715.

All amici have an important interest in this case

because the Ninth Circuit’s decision fundamentally

misunderstands how farmers, ranchers, and forest

landowners deal with a common problem: how to

channel rainwater from their land so that crops and

livestock housing do not flood and roads do not wash

out. Until the panel decision below invalidating the

Environmental Protection Agency's Silviculture

Rule, it had been well settled that runoff from agri-

culture and silviculture was to be addressed by the

4

States as nonpoint sources. That makes sense.

Agriculture and silviculture cover more than 1.7

billion acres of land in this country. To require every

farmer, rancher, or forest landowner to get a federal-

ly enforceable permit simply to channel rainwater

from such expanses would be virtually impossible

and hopelessly ineffective. So, for nearly 40 years,

all stakeholders—legislators, regulators, industry,

and even environmental groups—have consistently

recognized that stormwater runoff from agriculture

and silviculture is a nonpoint-source form of water

pollution and should be left to the expertise of State

and local officials. EPA recognized as much for

silviculture through rulemaking back in 1976. And

Congress remedied the lack of any such regulatory

interpretation for agriculture in 1987, when it ex-

pressly amended the statute to provide that a “point

source * * * does not include agricultural stormwater

***” 33 U.S.C. § 1362(14). Because the decision

below conflicts with Congress’s intent—as well as

decades-long practices and expectations of farmers,

ranchers, and forest landowners—this Court should

reverse.

SUMMARY OF ARGUMENT

In 1987, Congress amended the Clean Water Act in

two significant ways: First, it substantially reformu-

lated how the Act treated stormwater runoff, 33

U.S.C. § 1342(p); second, it enacted the most robust

statutory program yet for state control of unregulat-

ed nonpoint sources of stormwater: the Nonpoint

Source Management Program, 33 U.S.C. § 1329.

These two actions represented the culmination of a

decades-long effort by Congress to establish a defined

process for addressing water pollution, both inside

5

and outside, the Act’s permitting regime. The result

was that, at least with respect to stormwater, Con-

gress drew a clear line between municipal and indus-

trial discharges, subject to mandatory permitting

requirements, and everything else (largely rural

stormwater) which, absent specific EPA regulations

to the contrary, would be subject to state best-

management practices through the Nonpoint Source

Management Program. Congress in fact categorical-

ly excluded all agricultural stormwater discharges

from the Act’s permitting requirements. See 33

U.S.C. § 1362(14). And everyone involved in the

legislative process leading to the 1987 amend-

ments—legislators, agency officials, industry repre-

sentatives, and environmental groups alike—

recognized that agriculture and silviculture were in

the same class of activity and that stormwater from

both of these sources should be treated the same.

Specifically, Congress confirmed in 1987 that agri-

cultural and silvicultural stormwater runoff are

incompatible with a national, source-by-source

permitting scheme, such as the National Pollutant

Discharge Elimination System (NPDES), 33 U.S.C.

§ 1342. Requiring farmers, ranchers, and forest

landowners to get a federally enforceable permit

simply for channeling stormwater from their crops,

fields, farmyards, and forests is both impractical and

ineffective.

The Ninth Circuit concluded otherwise with respect

to silviculture because, in its view, any channeling of

water through a manmade conveyance on for-

estlands—even a culvert or ditch mandated by State

land-use regulations—transformed otherwise non-

point-source forest runoff into a point-source dis-

charge. But that rule finds support in neither the

6

statute nor common sense. After all, even without

the intervention of man, rainwater will carve rivu-

lets, gullies, and streams into the land that will

naturally channel] the same stormwater and sedi-

ment into navigable bodies of water. Any time it

rains, therefore, stormwater could “discharge” from

an incalculably large number of points across the 1.7

billion acres of land devoted to agricultural and

silvicultural uses throughout the United States. See

Cynthia Nickerson et al., U.S. Dep’t of Agric., Eco-

nomic Research Serv., Major Uses of Land in the

United States, 2007 at 1 (Dec. 2011). For these

reasons, categorizing each and every instance of

channelized silvicultural stormwater runoff as a

point-source discharge that demands a federally

enforeceable permit is simply not a realistic regula-

tory option. Instead, controlling water pollution from

silvicultural (and agricultural) runoff is best left to

State and local authorities, who have the expert

knowledge about the industry and the local topogra-

phy needed to create workable area-wide solutions

for a given region. The Ninth Circuit’s holding to the

contrary should be reversed.

ARGUMENT

CONGRESS INTENDED STORMWATER RUN-

OFF FROM AGRICULTURAL AND SILVI-

CULTURAL ACTIVITIES TO BE ADDRESSED

BY THE STATES AS NONPOINT SOURCES.

In 1987, Congress provided important new direc-

tions to the States in addressing water pollution.

The 1987 amendments made two fundamental

changes to the Clean Water Act. First, Congress

created provisions requiring the regulation of storm-

7

water discharges from municipal and industrial

sources, but left other categories of stormwater

runoff to state programs (absent subsequent EPA

rulemaking to require regulation). 33 U.S.C.

§ 1342(p). Second, Congress added the Nonpoint

Source Management Program to the Act, through

which each State would establish a “management

program for controlling pollution added from non-

point sources to the navigable waters within the

State and improving the quality of such waters.” 33

U.S.C. § 1329(b)(1). These two actions, executed in

tandem, reaffirmed what had long been understood

by Congress, EPA, and stakeholders: agricultural

and silvicultural stormwater runoff falls outside the

NPDES permitting program and is instead governed

by state best management practices.

A. The 1987 Stormwater Amendments Con-

firm That Rural Stormwater Runoff

Should Be Considered A Nonpoint Source.

The Stormwater Amendments to the Clean Water

Act evidence Congress’s understanding that requir-

ing permits for each and every pipe, ditch, and

culvert built to channel rainwater is not a feasible or

desirable option. As the Ninth Circuit previously

explained: “Recognizing both the environmental

threat posed by storm water runoff and EPA’s prob-

lems in implementing regulations, Congress passed

the [1987 amendments to the Act], portions of which

set up a new scheme for regulation of storm water

runoff.” NRDC v. EPA, 966 F.2d 1292, 1296 (9th Cir.

1992). This new regulatory scheme established

statutory priorities: first, for industrial and large

municipal stormwater discharges, and second, for

other stormwater discharges that EPA determines

are adversely affecting water quality. 33 U.S.C.

8

1342(p)(2), (5)-(6). Notably left off the statutory List

of priority stormwater discharges was traditionally

unregulated rural runoff. And excluded entirely from

the permitting scheme was agricultural stormwater

discharge. 33 U.S.C. § 1362(14). This demonstrates

Congress’s categorical approach to stormwater

pollution, which recognizes a basic dividing line: To

one side are urban and industrial sources that are

subject to the NPDES permitting scheme; to the

other side lie non-industrial rural sources from

activities such as farming and forestry, which are

governed—as they always have been—by state best

management practices (BMPs).

1. The Ninth Circuit’s decision, which requires

EPA to treat silvicultural stormwater runoff differ-

ently from agricultural stormwater runoff, runs

counter to Congress’s intent to treat agriculture and

silviculture alike. This is first and foremost reflected

in the statutory text: The Stormwater Amendments

present a categorical divide between urban and

industrial activities, on the one hand, and rural

activities, on the other. See 33 U.S.C. § 1342(p)

(“Municipal and industrial stormwater discharges”).

These amendments confirmed EPA’s longstanding

view that “Congress intended the NPDES permit

program to apply primarily to industrial and munici-

pal dischargers whose effluent is relatively constant

and for which the pollution reduction attainable by

particular technologies may be predicted with rela-

tive accuracy.” Separate Storm Sewers, 40 Fed. Reg.

56,932, 56,934 (proposed Dec. 5, 1975). In contrast,

“Congress intended to regulate all rural runoff

through the same mechanism, the section 208 plan-

9

ning process,” which is administered by the States.

Id.2, And by “rural runoff,” EPA was speaking pri-

marily about “agriculturally- and _ silviculturally-

related runoff.” Jd.

Indeed, by the time the 1987 amendments were

under consideration by Congress, there appears to

have been universal acceptance by all involved in the

debates, hearings, and reports that silvicultural

stormwater runoff was categorically not subject to

the NPDES. As early as 1980, the House Subcom-

mittee on Oversight and Review of the Committee on

Public Works and Transportation reported that some

of the major nonpoint sources of pollution were

“logging operations,” the “harvesting of timber,” and

“the building of roads.” H. Rep. No. 96-71, at 20

(Dec. 31, 1980). These activities “disturb the earth

and create conditions conducive to erosion,” dislodg-

ing “millions of tons of sediment.” Jd. And although

states and local authorities had adopted “sediment

and erosion control measures,” costs were preventing

the widespread use of these BMPs. Id. at 22-23.

In the run up to the 1987 amendments, all stake-

holders—legislators, agency officials, industry repre-

sentatives, and even environmental groups—found a

rare patch of common ground on one key point: that

silvicultural stormwater runoff fell on the state side

of the federal-state regulatory boundary. For in-

2 See also 40 Fed. Reg. at 56,934 (“It is EPA’s position that

the NPDES permit system should not be extended to runoff-

generated pollution which is essentially nonpoint in nature in

those rural areas where the distinction between agriculturally-

and silviculturally-related runoff and storm water runoff, which

happens to be channeled, is tenuous at best.”).

10

stance, a Senate Committee Report identified the

types of state-promulgated BMPs that had been

developed for “silviculture areas” as including “care-

ful road placement, culverting, [and] grassing of

abandoned roads and skid trails.” S. Rep. No. 99-50,

at 35-36 (May 14, 1985) (emphasis added). This

passage alone goes a long way toward gutting the

Ninth Circuit’s novel rule that a nonpoint source—

like silviculture—morphs into a point source merely

because landowners adopt the type of state-

mandated practices Congress had in mind for taming

the chaotic flow of stormwater and minimizing

erosion and pollution.

Likewise, in a 1984 Report to Congress on nonpoint

source pollution, EPA identified “road building, * * *

harvesting and logging operations, [and] removal of

trees from the harvesting site” as principal sources of

silvicultural nonpoint source pollution. EPA, Publ’n

No. 350R84001, Report to Congress: Nonpoint

Source Pollution in the U.S. 2-14 (Jan. 1984).3 The

Agency observed that “[wjhen not properly planned,

constructed, and maintained, roads, drainage ditch-

es, and road cuts expose soil to erosion for long

periods of time,” id. at 2-15, and so “BMPs that are

likely to prove effective include * * * [bjetter planned

and constructed roads,” id. at 2-17. But, “[a]s is the

case with other nonpoint sources, no one mitigation

approach is appropriate for controlling all the sedi-

ment and other pollutants associated with silvicul-

tural operations.” Jd. at 2-17.

3 Available at http://www.epa.gov/nscep/index.html (enter

title in search field).

11

Similarly, during hearings before the House Com-

mittee on Public Works and Transportation on a

number of proposed amendments to the Clean Water

Act—including the proper dividing line between

point sources and nonpoint sources—the Water

Pollution Control Federation (now the Water Envi-

ronment Federation) identified “sediments from

commercial forestry operations” as a “major source{ |

of rural nonpoint source pollution” that was “not

susceptible to ‘end-of-the-pipe’ treatment.” 4 Legisia-

tive History of the Water Quality Act of 1987 at 1610

(Nov. 1, 1983) (4 Legislative History). A forest hy-

drologist testifying on behalf of the forestry industry

on the topic of nonpoint-source pollution identified

sediment from logging roads as the largest source of

silvicultural pollution. Jd. at 3050 (Nov. 16, 1983).

He continued, “that’s what the majority of our best

management practices are directed to control. Roads

are designed to reduce the amount of sediment and

runoff.” Id. ;

Environmental groups joined the chorus. The New

England Sierra Club, for example, discussed a report

“on Non-Point Source Pollution” in Massachusetts

that “described the types of pollution entering each

river basin in the state, and demonstrated a wide

range of sources,” including “agricultural runoff * * *

and erosion from forest and construction sites.” Jd.

at 2320 (Nov. 9, 1983). Nevertheless, the New Eng-

land Sierra Club explained that it “does not at this

time urge this committee to require uniform contro]

strategies in each state.” Jd. at 2321. Instead, it

“recognize[d] the wide diversity of problems in indi-

12

vidual states and regions and the widely different

strategies needed to address them.” Id.‘

In sum, in our review of the entire legislative histo-

ry of the 1987 amendments, we could not find a

single comment suggesting that channeled silvicul-

tural stormwater runoff was or should be controlled

by the NPDES permitting program as a point-source

discharge. Just the opposite. The legislative history

confirms that virtually all stakeholders understood

that stormwater runoff from agriculture and silvicul-

ture was, as a category, to be addressed as nonpoint.

The Ninth Circuit’s holding that forest landowners

must seek a federal NPDES permit simply to direct

the natural runoff of rainwater from their lands

squarely conflicts with the language and structure of

the statute, its legislative history, and the contempo-

raneous understanding of those involved in crafting

the 1987 amendments. It should be reversed.

2. To be sure, when Congress added the agricul-

tural stormwater discharge exemption to the Clean

4 During a three-day conference hosted by EPA on the topic

of nonpoint source pollution, numerous environmental groups

submitted reports. See EPA, Office of Water Regulations and

Standards, Publ’n No. 440R85013, Perspectives on Nonpoint

Source Pollution (1985), available at http://www.epa.gov/

nscep/index.htm] (enter title in search field). These groups also

recognized that both agricultural and silvicultural activities

constituted nonpoint sources of pollution. See id. at 55 (Envi-

ronmental Defense Fund) (describing the “siting” of “agricul-

tural” and “forestry” activity as “central to its potential non-

point source pollution impact on receiving surface or groundwa-

ter quality”); id. at 60 (National Audubon Society) (explaining

that “nonpoint source polluters” such as “the farmer, the forest

products company, the miner, and the rancher should all

benefit from the retention of soil on their land”).

13

Water Act in 1987, it did not expressly mention

silvicultural stormwater. But there is a good reason

for that: In 1987, EPA’s longstanding rule already

exempted silvicultural stormwater runoff from the

NPDES. See 40 C.F.R. § 122.27. The rule specified

only four discrete activities that should be deemed to

be point sources even though they are related to

forestry: rock crushing, gravel washing, log sorting,

or storage. See id. § 122.27(b). The nature of these

activities explains why: they all involve stand-alone

industrial facilities and operations. Indeed, these

facilities are no more “silviculture” than a meat-

processing plant would be “agriculture.” In both

cases, there is an obvious distinction between the

farming or forestry activity itself—harvesting tim-

ber, growing crops, or raising livestock—and the

downstream processing of the product resulting from

that activity. All true silvicultural activities—site

preparation, planting, harvesting, and transporting,

to name a few—from which stormwater runoff occurs

are nonpoint sources under EPA’s rule. That view

faithfully follows the text, structure, and history of

the Clean Water Act.

In contrast to the approach it took with silvicul-

ture, EPA had determined that some types of agri-

cultural-pollution discharges should be subject to the

NPDES regime. See Application of Permit Program

to Agricultural Activities, 41 Fed. Reg. 28,493 (July

12, 1976). Congress disagreed with that approach; it

therefore adopted the categorical agricultural

stormwater exemption in the 1987 amendments to

overturn the Agency’s policy. Congress’s express

exclusions with regard to agriculture thus have been

reactive in nature, correcting interpretations of the

Act that were contrary to the legislature’s intent.

14

For instance, in 1977, Congress excluded from the

definition of point source “return flows from irrigated

agriculture,” Pub. Law. No. 95-217, § 33(b), 91 Stat.

1566, 1577 (Dec. 27, 1977), because “[pJermit re-

quirements under section 402 of the act have been

construed to apply to discharges of return flows from

irrigated agriculture.” S. Rep. No. 95-370, at 35

(July 28, 1977), 1977 U.S.C.C.A.N. 4326, 4360.

But no such legislative corrective measure was

required for silvicultural activities because EPA's

silviculture rule had been on the books for more than

a decade by that point. Originally promulgated in

1973, and revised in 1976 and again in 1980, the rule

provides that silvicultural point sources are subject

to the NPDES, but the term silvicultural point

source “does not include non-point source silvicultur-

al activities such as *** harvesting operations,

surface drainage, or road construction and mainte-

nance from which there is natural runoff.” 40 C.F.R.

§ 122.27(b)(1). This rule reflects EPA’s long-held

view that management of stormwater runoff from

silvicultural activities—channeled or not—is best left

to the states. See Brief for Pets. 6-9; Pet. App. 100a-

102a.

For example, in the preamble to the proposed 1976

rule, EPA explained that it had “determined that

most water pollution related to silvicultural activi-

ties is nonpoint in nature. This pollution is basically

runoff induced by precipitation events and is not and

should not be subject to the [NPDES] permit pro-

gram as it has been administered to date.” Silvicul-

tural Activities, 41 Fed. Reg. 6,281, 6,282 (proposed

Feb. 12, 1976). EPA based this determination on

“(t]he [Clean Water Act] and its legislative history,”

which “make clear that it was the intent of Congress

15

that most water pollution from silvicultural activities

be considered nonpoint in nature.” Jd. EPA also

clarified that channeled runoff from logging roads

was not subject to the NPDES: The Agency included

drainage from “road construction and maintenance”

in its list of silvicultural nonpoint sources, explain-

ing, “[iJnsofar as such drainage serves only to chan-

nel diffuse runoff from precipitation events, it should

be considered nonpoint in nature and has been added

to the list.” Application of Permit Program to Silvi-

cultural Activities, 41 Fed. Reg. 24,709, 24,711 (June

18, 1976). That definition of silvicultural nonpoint

sources remains in the regulation to this day (alt-

hough it has been tested by the decision below). See

40 C.F.R. § 122.27(b)(1).

Accordingly, for almost 40 years, EPA has (correct-

ly) viewed channeled stormwater runoff from logging

roads as a nonpoint source of pollution. Congress

therefore has never had a reason to intervene. The

Ninth Circuit overstepped its role by substituting its

judgment for that of Congress and EPA.

3. Common sense confirms EPA’s view and demon-

strates the inherent flaws in the lower court’s rea-

soning. Previously, the Ninth Circuit understood

that Congress considered “sediment run-off from

timber harvesting, for example, [to] derive[ ] from a

nonpoint source.” Pronsolino v. Nastri, 291 F.3d

1123, 1126 (9th Cir. 2002). Indeed, the Clean Water

Act expressly acknowledges that two principal ex-

amples of “nonpoint sources of pollutants” are “agri-

cultural and silvicultural activities, including runoff

from fields and crop and forest lands.” 33 U.S.C.

§ 1314(H(1), (2)(A). The very nature of these activi-

ties makes regulation-by-permit an ill fit. To begin

with, mandating pollution controls through permits

16

issued to every single farmer, rancher, or forest

landowner—all of whom must channel rainwater

from their land—would be virtually impossible. But

more fundamentally, that scheme would be well

beyond the expertise of traditional pollution-control

agencies. The solutions must come—as they always

have—from local and State officials with experiise in

appropriate and practicable farming and forestry

practices that work for unique topographies and

regions.

a. The sheer size of agriculture and silviculture in

this country confirms why runoff from these activi-

ties has never—until the decision below concerning

silviculture—been deemed appropriate for federally

mandated permitting. As of 2011, there were 2.2

million farms in the United States covering 917

million acres. U.S. Dep’t of Agric., National Agr.

Statistics Serv., Farms, Land in Farms, and Live-

stock Operations: 2011 Summary 4 (Feb. 2012)

(USDA Summary).° The most recent report from the

USDA’s Economic Research Service shows that, as of

2007, “forest-use land [was] at 671 million acres (30

percent); grassland pasture and range at 614 million

acres (27 percent); [and] cropland at 408 million

acres (18 percent) *** .” Cynthia Nickerson et al.,

U.S. Dep’t of Agric., Economic Research Serv., Major

Uses of Land in the United States, 2007 at 1 (Dec.

2011).6 By contrast, only 61 million acres, or 3

percent of the total U.S. land, is urban-use. Jd. And

5 Available at http://usda01.library.cornell.edu/usda/current/

FarmLandIn/FarmLandIn-02-17-2012.pdf.

6 Available at http://www.ers.usda.gov/media/177328/eib89_

reportsummary.pdf.

17

only a fraction of the 313 million acres devoted to

“special uses” is industrial in nature. Jd. at 1, 2.

Thus, while requiring point-source-by-point-source

permitting is no easy task for municipal and indus-

trial stormwater discharges, it is downright impossi-

ble for agricultural and silvicultural stormwater

runoff. There are simply too many rivulets, gullies,

ditches, swales, and other conveyances from which

stormwater “[is] or may be discharged,” 33 U.S.C.

§ 1362(14), from the 1.7 billion acres of land devoted

to agricultural and silvicultural activities to allow for

a point-source permitting scheme.

b. The natural phenomena that generate countless

channelized stormwater outlets to streams from

farms and forestlands underscore why the Ninth

Circuit’s rule is so troubling and unworkable. Ac-

cording to the court below, silvicultural stormwater

should be deemed nonpoint source only when the

stormwater is “allowed to run off naturally.” Pet.

App. lla. The Ninth Circuit panel assumed that,

absent human intervention, rural stormwater runoff

would “dissipate[] in a natural and unimpeded

manner’—i.e., as sheet flow. Pet. App. 10a. But as

any farmer, rancher, or forest landowner knows,

surface runoff does not work that way.

“Surface runoff occurs when water originating in

precipitation (rainfall and snow) flows freely on the

surface of the earth, driven by gravitational forces.”

American Soc’y of Civil Eng’rs, Hydrology Handbook

331 (2d ed. 1996). When the rain initially falls on

virgin grounds its “first manifestation” is “overland

sheet flow.” Jd. at 331-332. But “[gliven the topo-

graphical irregularity of the earth’s surface, overland

flow soon concentrates into rill flow.” Jd. at 332.

Natural erosion carries away topsoil layers, causing

18

narrow and shallow channels in the earth—the “rill

flow.” Jd. Rill flow then “concentrates into gully and

stream flow.” Jd. In sum, “[r]unoff and stream flow

are continuous processes by which water is constant-

ly flowing from higher to lower elevations by the

action of gravitational forces.” Jd. at 331. All of this

is to say that stormwater on rural land will not

“dissipate[ |] in a natural and unimpeded manner’ as

suggested by the Ninth Circuit, but instead will,

through entirely natural processes, be “collected or

channeled and then discharged.” See Pet. App. 10a.

Channelized stormwater discharges are as “natural”

as the laws of physics.

4. On farms and in forests, constructing culverts is

one of the principal land-use tools that States have

designed for controlling stormwater. When properly

constructed and managed, ditches and culverts

running through farms and forests, and along rural

and logging roads, seek to replicate the naturally

forming rill and gully flow. But there is one key

difference: Unlike the random pattern of gullies and

rivulets that nature carves into the land, the culverts

and ditches mandated by State plans are carefully

arranged to prevent erosion and minimize sediment

runoff into streams and rivers.

Yet under the Ninth Circuit’s view, the interven-

tion of man’s hand in creating stormwater convey-

ances that Mother Nature would have haphazardly

created herself demands a permit for this otherwise

nonpoint source runoff. That novel rule cannot be

harmonized with the statutory language, conflicts

with EPA’s longstanding practice, and is wholly

impractical to boot. Indeed, it is precisely the inter-

pretation that one of the sponsors of the floor

amendment that led to the 1987 Stormwater

19

Amendments, Senator Malcolm Wallop, dubbed

“absurd.” 131 Cong. Rec. 15616, 15657 (June 13,

1985) (statement of S. Wallop).

* o 7

The Clean Water Act strikes a careful balance. It

summons the full regulatory authority of the federal

government when dealing with urban and industrial

stormwater, but it assigns responsibility over rural

stormwater—and particularly agricultural and

silvicultural stormwater—to the entities that have

always exercised it: the States and local govern-

ments. That is because Congress recognized that

only comprehensive land-use control—designed by

local officials exercising their expert knowledge to

address site-specific problems—will do.

The Ninth Circuit overlooked this basic division

and the reasons Congress forged it. By its lights,

only a federal permitting scheme would accomplish

the principal objectives of the Clean Water Act. But

that is too facile. By overlooking the deliberate

balance Congress struck, the Ninth Circuit erred. Its

judgment should be reversed.

7 The Senator called it “absurd” to “require everyone who

has a device to divert, gather, or collect stormwater runoff and

snowmelt to get a permit from EPA as a point source.” 131

Cong. Rec. at 15657. EPA's then-existing stormwater regula-

tion (following judicial mandates) interpreted the term “point

source” to include all such “devices.” But, Senator Wallop

explained, “[t]his is overbroad in its reach,” “would be an

administrative nightmare,” and “would also be prohibitively

expensive to administer.” Id.

20

B. One Of The Primary Targets Of The Non-

Point Source Management Program Was

Pollution From Agricultural And Silvicul-

tural Activities.

1. By adopting the Section 319 Nonpoint Source

Management Program through the 1987 amend-

ments, Congress supplemented and substantially

expanded the area-wide waste treatment manage-

ment program of Section 208. Under Section 319,

States are directed to prepare “management pro-

grams” that identify BMPs for various categories of

nonpoint sources. 33 U.S.C. § 1329(b). Each man-

agement program must identify “best management

practices which will be undertaken to reduce pollu-

tant loading” and explain how the program will

“achieve implementation” of those practices. /d.

§ 1329(b)(2)(A), (B).

One of the principal targets of the Nonpoint Source

Management Program was rural sources of pollution:

agriculture and silviculture. The author of the

Nonpoint Source Management Program amendment,

Representative James Oberstar, in fact, singled out

agricultural and silvicultural nonpoint sources,

described the states’ efforts to control these sources

of pollution, and remarked that “[t]here is considera-

ble interest [on the part of the states] in doing more,

if funds and other encouragement from the Federal

Government are forthcoming.” 4 Legislative History

at 2819 (statement of Rep. Oberstar). Representa-

tive Oberstar also clarified that these activities

should be left to state regulation. He explained that

his bill “recognizes first that, unlike point sources of

pollution, nonpoint sources do not lend themselves to

a national control program with national standards.”

Id. “Rather,” he continued, “controls must be devel-

21

oped at the State and local levels, to address local

conditions.” Jd. That is just what the Nonpoint

Source Management Program did. Congress crafted

a federal point-source scheme for urban and indus-

trial sources of pollution, while reserving to the

states the authority to formulate site-specific BMPs

for rural sources of pollution.®

This makes good sense. After all, “the control of

non-point source pollution was often thought imprac-

tical and not properly subject to federal direction.

What was the EPA supposed to do, tell farmers how

to farm?” William L. Andreen, Water Quality To-

day—Has the Clean Water Act Been a Success?, 55

Ala. L. Rev. 537, 562 (2004) (footnote omitted). Even

the Ninth Circuit previously recognized as much:

“The reason for the [Clean Water Act’s] focus on

point sources rather than nonpoint sources is simply

that ‘[djifferences in climate and geography make

nationwide uniformity in controlling non-point

source pollution virtually impossible.” Oregon

Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d

778, 785 (9th Cir. 2008) (quoting Marc R. Poirier,

Non-point Source Pollution, in Environmental Law

Practice Guide § 18.13 (2008)).

The decision below, however, unduly hamstrings

the States in developing best management practices

for much rural stormwater runoff. Under the Ninth

Circuit’s view, if a state determines that the best

8 Courts have recognized the same, observing that the Clean

Water Act’s federal regulatory scheme “generally targets

industrial and municipal sources of pollutants, as is evident

from a perusal of its many sections.” United States v. Plaza

Health Labs., Inc., 3 F.3d 643, 646 (2d Cir. 1993).

22

way to manage stormwater runoff along forest roads

is through channeling (in order to, for example,

prevent erosion), that “best management practice”

transforms a nonpoint source into a point source and

requires a permit. Thus, the Ninth Circuit effective-

ly reads into the statute a prohibition on the use of

any channeling or conveyance techniques as BMPs to

manage and limit stormwater pollutant runoff.? But

nothing in the statute, its structure, or its legislative

history demonstrates Congress’s intent to tie the

hands of the states in this manner. To the contrary,

as EPA stated 36 years ago, “[iJt is evident * * * that

ditches, pipes and drains that serve only to channel,

direct, and convey nonpoint runoff from precipitation

are not meant to be subject to the § 402 permit

program.” 41 Fed. Reg. at 6,282. The Ninth Circuit’s

failure to appreciate this distinction was legal error.

2. Adding the Nonpoint Source Management Pro-

gram (and the Stormwater Amendments) to the

Clean Water Act culminated a long process to appro-

priately define the respective roles of EPA and the

States with respect to stormwater runoff. When it

enacted the Clean Water Act, Congress was careful

8 The Clean Water Act prohibits any regulated point source

discharge absent a permit. See 33 U.S.C. § 131l(a). Even

where landowners seek a permit, permits for stormwater

conveyances may often be unavailable in areas with already

impaired water quality. Permits for channeled stormwater

discharges might be unavailable because those discharges

might “contribute” to further water-quality impairment within

the meaning of EPA's permitting regulations, 40 C.F.R.

§ 122.44(d), and yet the same discharges in the form of uncon-

trolled “natural” runoff could potentially carry larger loads of

sediment and remain unregulated.

23

to “to recognize, preserve, and protect the primary

responsibilities and rights of the States in controlling

water pollution.” Pub. L. No. 80-845, § 1, 62 Stat.

1155, 1155 (June 30, 1948). To this day, the Act

maintains that same policy. 33 U.S.C. § 1251(b).

And from 1972 to 1987, Congress’s actions reflect its

determination to place greater responsibility on the

States—not to transfer responsibility to EPA—for

addressing rural stormwater runoff.

First, the 1972 Clean Water Act established a state

area-wide waste treatment management program

(Section 208), through which states were encouraged

to “identify, if appropriate, agriculturally and silvi-

culturally related nonpoint sources pollution, * * *

and * * * set forth procedures and methods (includ-

ing land use requirements) to control to the extent

feasible such sources.” Pub. L. No. 92-500,

§ 208(b)(2)(F), 86 Stat. 816, 841 (Oct. 18, 1972).

Even then, Congress recognized that the States, not

the federal government, should take the lead in

addressing most stormwater runoff through land-use

regulation. As one of the Act’s sponsors emphasized,

“(t]here is no effective way as yet, other than land

use control, by which you can intercept * * * runoff

and control it in the way you do a point source.” 117

Cong. Rec. 38825 (Nov. 2, 1971) (statement of Sen.

Muskie). But this program was largely ineffective

due to lack of funding.

So, in 1977, Congress amended the Act to provide

financial incentives to rural landowners to encourage

them to comply with state programs. See Pub. L.

No. 95-217, § 35, 91 Stat. at 1579-81. It created a

mechanism whereby the Secretary of Agriculture

could enter contracts with these landowners to share

in the costs of implementing state BMPs. See 33

24

U.S.C. § 1288G) (‘agricultural cost sharing”). Legis-

lators viewed this as a step toward increasing the

responsibilities of the States in regulating water

pollution: “The Congress expects the States to

assume more and more of the responsibilities of the

water pollution program. It has therefore fashioned

a program which increases Federal resources availa-

ble as responsibilities increase.” 123 Cong. Rec.

39170, 39178 (Dec. 15, 1977) (remarks of S. Muskie).

Congress understood that nonpoint sources of pollu-

tion were best controlled at the local level: “Between

requiring regulatory authority for nonpoint sources,

or continuing the section 208 experiment, the com-

mittee chose the latter course, judging that these

matters were appropriately left to the level of gov-

ernment closest to the sources of the problem.” S.

Rep. No. 95-370, at 9, 1977 U.S.C.C.A.N. at 4335.

In 1987, Congress went further still. At the same

time it created the stormwater discharge control

provisions at issue in this case, Congress added the

Nonpoint Source Management Program, discussed

above. That regime reaffirms that nonpoint

sources—including agricultural and _ silvicultural

stormwater runoff recognized as nonpoint sources

under longstanding EPA regulation and the 1987

statutory exclusion for agricultural stormwater—

remain a matter of land-use control for which the

States, not the federal government, assume primary

responsibility. See 33 U.S.C. § 1329.

In focusing almost exclusively on the 1972 “point

source” definition, the Ninth Circuit all but ignored

this critical 1987 milestone, as well as the overall

design of Congress reflected in the larger statutory

context. The result was a novel rule that betrays

more than three decades of congressional initiatives

25

to address water pollution through distinct programs

designed not only to preserve, but to enhance, States’

authority over agricultural and silvicultural storm-

water runoff.

CONCLUSION

For the foregoing reasons, the judgment of the

Ninth Circuit should be reversed.

Respectfully submitted,

ELLEN STEEN JAMES T. BANKS

DANIELLE QUIST CHRISTOPHER T. HANDMAN*

AMERICAN FARM MARY HELEN WIMBERLY

BUREAU FEDERATION KATHRYN L. LANNON

600 Maryland Ave.,S.W. HOGAN LOVELLS US LLP

Suite 1OOOW 555 Thirteenth Street, N.W.

Washington, D.C. 20024 Washington, D.C. 20004

(202) 406-3600 (202) 637-5719

chris.handman@hoganlovells.com

MICHAEL C. FORMICA MARLIS CARSON

NATIONAL PORK NATIONAL COUNCIL OF

PRODUCERS COUNCIL FARMER COOPERATIVES

122 C Street, N.W. 50 F Street, N.W.

Suite 875 Suite 900

Washington, D.C. 20001 Washington, D.C. 20001

(202) 347-3600 (202) 626-8700

*Counsel of Record Counsel for Amici Curiae

SEPTEMBER 2012