Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

RECORD Nos. 11-338, 11-347

AND

BRIEFS 3n The |

Supreme Court of the Anited States

Sf

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners,

V.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

o

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

.

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

«

AMICUS CURIAE BRIEF OF THE

STATES OF ARKANSAS, ET AL.,

IN SUPPORT OF THE PETITIONERS

®

OFFICE OF THE ARKANSAS Dustin McCDANIEL

ATTORNEY GENERAL Arkansas Attorney General

323 Center Street, Suite 200 CHARLES MOULTON, ERIC Estes

Little Rock, Arkansas 72201 Senior Assistant Attorneys General

(501) 682-7383 KENDRA AKIN JONES*

Kendra.jones@arkansasag.gov Assistant Attorney General

*Counsel of Record

Attorneys for Amici States September 4, 2012

[Additional States Listed On Inside Cover]

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

OR CALL COLLECT (402) 342-2831 Library of Congre

Law Library

LUTHER STRANGE

Attorney General

STATE OF ALABAMA

501 Washington Avenue

Montgomery, Alabama 36130

MICHAEL C. GERAGHTY

Attorney General of Alaska

P.O. Box 110300

Juneau, Alaska 99811

PAMELA JO BONDI

Attorney General of Florida

The Capitol, PL-01

Tallahassee, Florida 32399

SAMUEL S. OLENS

Attorney General

STATE OF GEORGIA

40 Capito] Square, SW

Atlanta, Georgia 30334

LAWRENCE G. WASDEN

Idaho Attorney General

P.O. Box 83720

Boise, Idaho 83720

GREG F. ZOELLER

Indiana Attorney General

Indiana Government

Center South

302 West Washington Street,

5th Floor

Indianapolis, Indiana 46204

DEREK SCHMIDT

Kansas Attorney General

120 Southwest 10th Avenue,

2nd Floor

Topeka, Kansas 66612

JACK CONWAY

Attorney General of Kentucky

COMMONWEALTH OF KENTUCKY

700 Capitol Avenue, Suite 118

Frankfort, Kentucky 40601

JAMES D. “BUDDY” CALDWELL

Attorney General of Louisiana

P.O. Box 94005

Baton Rouge, Louisiana 70802

WILLIAM J. SCHNEIDER

Attorney General

STATE OF MAINE

6 State House Station

Augusta, Maine 04333

BILL SCHUETTE

Michigan Attorney General

P.O. Box 30212

Lansing, Michigan 48909

Jim Hoop

Mississippi Attorney General

P.O. Box 220

Jackson, Mississippi 39205

CHRIS KOSTER

Attorney General of Missouri

Supreme Court Building

207 West High Street

Jefferson City, Missouri 65101

STEVE BULLOCK

Montana Attorney General

215 North Sanders

P.O. Box 201401

Helena, Montana 59620

JON BRUNING

Attorney General of the

State of Nebraska

P.O. Box 98920

Lincoln, Nebraska 68509

CATHERINE CORTEZ MASTO

Attorney General for the

State of Nevada

OFFICE OF THE ATTORNEY GENERAL

100 North Carson Street

Carson City, Nevada 89701

MICHAEL A. DELANEY

Attorney General of

New Hampshire

33 Capitol Street

Concord, New Hampshire 03301

Roy COoPER

Attorney General of

North Carolina

DEPARTMENT OF JUSTICE

P.O. Box 629

Raleigh, North Carolina 27602

MICHAEL DEWINE

Ohio Attorney General

30 East Broad Street,

17th Floor

Columbus, Ohio 43215

E. Scott Pruitt

Attorney General of Oklahoma

313 Northeast 21st Street

Oklahoma City, Oklahoma 73105

LINDA L. KELLY

Pennsylvania Attorney General

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

ALAN WILSON

South Carolina Attorney General

P.O. Box 11549

Columbia, South Carolina 29211

MARTY J. JACKLEY

Attorney General

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, South Dakota 57501

ROBERT E. Cooper, JR.

Attorney General of Tennessee

P.O. Box 20207

Nashville, Tennessee 37202

GREG ABBOTT

Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711

MarRK L. SHURTLEFF

Utah Attorney General

Utah State Capitol, Suite 239

P.O. Box 142320

Salt Lake City, Utah 84114

KENNETH T. CUCCINELLI, II

Attorney General of Virginia

900 East Main Street

Richmond, Virginia 23219

ROBERT M. MCKENNA

Attorney General of Washington

1125 Washington Street SE

P.O. Box 40100

Olympia, Washington 98504

DARRELL MCGRAW

West Virginia Attorney General

West Virginia State Capitol

Building 1, Room 26-E

Charleston, West Virginia 25305

GREGORY A. PHILLIPS

Attorney General of Wyoming

123 State Capitol

Cheyenne, Wyoming 82002

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..................ccsesecoeeeeees il

INTEREST OF AMICI CURIAE ...................0.0- 1

SUMMARY OF ARGUMENT .......... Sipiatinbimannee 3

EE aT 4

I. The Ninth Circuit’s decision that an EPA

rule can be invalidated in a citizen suit is

incorrect as a matter of law and has neg-

ative impacts on each state’s regulatory

SIT ituiidiinuiinnadincsenedesveenenssescceesocesecsooesces 4

II. The Ninth Circuit failed to defer to the

EPA’s reasonable interpretation of the

Ee 7

A. The Silvicultural Rule......................... 7

B. The 1987 Stormwater Amendments.... 12

III. The Ninth Circuit’s Decision Has Signifi-

cant Consequences On Existing State

BMP And NPDES Programs ..................... 15

A. The States’ Best Management Prac-

ELSES EE AED SRC DENIC HA ea 15

B. The States’ Individual NPDES Pro-

SE iteiendcesceseostessrsessencesersessouscovesececees 19

C. NPDES General Permits Are Not The

ES 23

A cise edendiicseeiaepasooneseeosooionsccccores 26

li

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992)................. 7

Auer v. Robbins, 519 U.S. 452 (1997).....10, 11, 12, 13, 15

Del. Valley Citizens Council for Clean Air v.

Davis, 932 F.2d 256 (3d Cir. 1991)..................cceccceees 5

NRDC uv. EPA, 966 F.2d 1292 (9th Cir. 1992).............. 4

STATUTES

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

Section 218, 33 U.S.C. § UBOS.......ccccccccccccccccsccccccess 16

Section 319, 33 U.S.C. § 1329....................... 1, 16, 18

Section 402, 33 U.S.C. § 1342....................-ceeee. 12,13

I Tie, Se Ges OF Bi icicevcaccussnencenesenvennnnenenss 8

Section 502, 33 U.S.C. § 1366.................ccccccsseee 3, 5,6

Section 502, 33 U.S.C. § 1369......................... passim

FEDERAL REGULATIONS

Ss Ms nsisinesenessieleaeiihinntiiebiiadscinainiciiainianiianiiaiianael 9

I iciniitnicissieeaisccicinndisindsiocieitindiaiidutamdinenmasiintl 9

Se en a mee ee NN 13, 23

TS I a ODE RTE IE passim

es Oe a sicsiccicscinissiscitestisiissinceelasisiaiaiiineeiiabiapaaiiaiaall 20

ili

TABLE OF AUTHORITIES — Continued

Page

FEDERAL REGISTER

41 Fed. Reg. 6,282 (Feb. 12, 1976)........................... 3,9

55 Fed. Reg. 20,521 (May 17, 1990)........................-22+ g

55 Fed. Reg. 47,990, 48,008 (Nov. 16, 1990).......... 3,14

73 Fed. Reg. 56,572 (Sept. 29, 2008).......................24. 23

77 Fed. Reg. 30,349 (May 23, 2012)....................eeeeeee 23

77 Fed. Reg. 30,474 (May 23, 2012)....................2..22 23

OTHER

EPA FY 2012 Budget Hearing Before the Senate

Interior, Environment and Related Agencies

Subcommittee, 112th Cong. (2011)..................2..0.. 22

Florida Division of Agriculture and Consumer

Services, Silvicultural Best Management

TEE TIES Fer EL ESTAS Ehret oO 17

John Gifford, Practical Forestry 12 (1907) .................. 9

Letter from Nancy K. Stonger, Acting Assistant

Administrator, EPA, to Congressman Kurt

I Wc I ictecincicsichtatinhinialidiansadsnaiiatiiiintimeened 23

R. Olszewski & C.R. Jackson Best Management

Practices and Water Quality, National Coun-

cil for Air and Stream Improvement, Inc.

a ittcnicinehiniiscssernitiiaehalaiiapiechubainitinettetchandiicinaitenpainnitinanpiiiian 17

lV

TABLE OF AUTHORITIES — Continued

Page

Schilling, E.B., G.G. Ice, T.B. Wigley, and A.A.

Lucier, Compendium of forestry best man-

agement practices for controlling nonpoint

source pollution in North America, National

Council for Air and Stream Improvement,

Inc., Research Triangle Park, N.C. (2009)...... 1, 16, 17

United States Environmental Protection Agen-

cy, U.S. EPA NPDES Permit Writers’ Manu-

al, Office of Water, December, 1996; EPA-

I cicciinicetcscinusiansititnibraduanaiaamendedianndiial 20, 21, 25

United States Environmental Protection Agen-

cy, Protecting the Nation’s Waters Through

Effective NPDES Permits, Office of Water,

EPA-833-R-01-001, June 2001.................... 19, 20, 24

1

INTEREST OF AMICI CURIAE

For over three decades, federal and state agen-

cies, courts, and private parties understood that the

Environmental Protection Agency’s (“EPA”) Silvicul-

tural Rule, 40 C.F.R. § 122.27, exempted stormwater

runoff from forest roads from the requirement of a

National Pollutant “ischarge Elimination System

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

water is collected via man-made culverts, ditches, or

channels. Although Amici States agree that storm-

water runoff from forest roads should be managed to

minimize the amount of sediment delivered to a

state’s waters during storm events, Congress recog-

nized that water pollution resulting from these

sources is best regulated at a local level. Congress

ultimately left it to the states to determine the ap-

proaches to non-point source pollution management

from forest roads. In that vein, 33 U.S.C. § 1329

requires states to develop programs for non-point

source pollution and report to the EPA on the best

management practices (“BMPs”) that are being used

to reduce water pollution from forest roads. See

generally 33 U.S.C. § 1329.

Amici States have followed Congressional and

EPA’s directives. Nationally, 16 states have adopted

non-point source programs that are regulatory, 22

have non-regulatory approaches, and the remaining

states have elements of both. Compendium of forestry

best management practices for controlling nonpoint

source pollution in North America, Schilling, E.B.,

G.G. Ice, T.B. Wigley, and A.A. Lucier, National Coun-

cil for Air and Stream Improvement, Inc., Research

2

Triangle Park, N.C. (2009). States have worked to

ensure individuals and companies that conduct

timber harvesting will implement BMPs for forest

road construction and maintenance in order to protect

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

sion effectively invalidates the EPA’s Silvicultural

Rule by determining that stormwater runoff collected

in ditches and culverts is a point source of pollution,

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

pounding the problem, the Ninth Circuit further

ruled that timber harvesting constitutes an “industrial

activity” under Phase I of the EPA’s stormwater per-

mit program and the roads that are a necessary

component of timber harvests require NPDES permits.

If the Ninth Circuit’s decision is not overturned by

this Court, landowners and loggers will be required to

obtain NPDES permits from the EPA or the states. A

sudden shift to a fully regulated, permit-based ap-

proach to forest road management is a significant

departure in how forest roads have been managed for

decades under BMPs, and this permit-based approach

will further burden state agencies that are already

struggling with meeting the current demands of the

NPDES program. Forest road stormwater is already

effectively managed under state BMP programs, and

thus these new burdens will fail to achieve any signif-

icant benefit to the environment. Because the Ninth

Circuit’s decision fundamentally impacts and rewrites

existing state programs, Amici States urge this Court

to reverse the Ninth Circuit’s decision.

°

3

SUMMARY OF ARGUMENT

1. The Respondent challenged EPA’s Silvicul-

tural Rule in an action brought under the Clean

Water Act’s citizen suit provision, 33 U.S.C. § 1365.

But, a challenge to regulations promulgated by the

EPA must be filed pursuant to 33 U.S.C. § 1369, not

33 U.S.C. § 1365. As a matter of law, it is improper to

seek to invalidate an EPA rule pursuant to a citizen

suit under 33 U.S.C. § 1365.

2. The EPA has consistently maintained that,

pursuant to the Silvicultural Rule, “ditches, pipes and

drains that serve only to channel, direct and convey

non-point runoff from precipitation are not meant to

be subject to the § 402 [point source] permit pro-

gram.” 41 Fed. Reg. 6,282 (Feb. 12, 1976). The Ninth

Circuit erred by failing to give deference to the EPA’s

reasonable, articulated, and longstanding position

that forest roads need not be permitted under the

NPDES program.

3. Under the later Phase I stormwater program,

Congress required stormwater runoff associated with

“industrial activity” to be permitted under the NPDES

program. Generally, timber harvesting operations

required to obtain formal permits are those “engaged

in operating sawmills, planing mills and other mills

engaged in producing lumber and wood basic materi-

als.” 55 Fed. Reg. 47,990, 48,008 (Nov. 16, 1990).

Forest roads do not fit within these categories and

were not intended to be regulated under the Phase I

program at all. The Ninth Circuit erred by failing to

4

give deference to the EPA’s reasonable, articulated,

and longstanding position that forest roads need not

be permitted under the NPDES program.

4. Forestry practices in the United States are

conducted under the most comprehensive program of

BMPs of any land use activity in the nation. Some

Amici States employ mandatory BMPs administered

by state foresters or forest practice boards or commis-

sions. Other Amici States employ non-regulatory

BMPs that are developed or approved by state agen-

cies, together with landowner education to encourage

compliance, and authority for agencies to take action

against landowners who do not comply. If the Ninth

Circuit decision in this case is not reversed by this

Court, the states’ established BMP programs will be

vacated in favor of an NPDES permitting regime, and

the burden of NPDES permitting is substantial.

°

ARGUMENT

I. The Ninth Circuit’s decision that an EPA

rule can be invalidated in a citizen suit is

incorrect as a matter of law and has nega-

tive impacts on each state’s regulatory

programs.

Congress allowed judicial review of EPA rules

under the CWA when it provided that “[a]ny interested

person” may seek review of an EPA action in approv-

ing or promulgating any effluent limitation or other

limitation. 33 U.S.C. § 1369. See, e.g., NRDC v. EPA,

5

966 F.2d 1292, 1296-97 (9th Cir. 1992). Review of an

EPA rule must be brought within “120 days from the

date of such determination, approval, promulgation,

issuance, or denial... .” 33 U.S.C. § 1369({b\1). Chal-

lenges to EPA rulemakings must be brought in the

Circuit Court of Appeals. 33 U.S.C. § 1369(b)(1).

Congress provided a separate section in the CWA for

individuals to enforce EPA regulations. Under 33

U.S.C. § 1365 a citizen may bring a civil action in

district court against any person or agency alleged to

“be in violation of (A) an effluent standard or limita-

tion under this subchapter or (B) an order issued by

the Administrator or a State with respect to such a

standard or limitation.” 33 U.S.C. § 1369(a)(2). At its

core the purpose of a citizen suit is to enforce regula-

tions, not invalidate them. Del. Valley Citizens Coun-

cil for Clean Air v. Davis, 932 F.2d 256, 265 (3d Cir.

1991).

In this case, there is little doubt that Respondent

sought to ultimately invalidate EPA’s Silvicultural

Rule when it filed its citizen suit. The Ninth Circuit

permitted review under 33 U.S.C. § 1365, by ruling

that the Silvicultural Rule was ambiguous, was sus-

ceptible to different readings, and therefore could be

interpreted under the CWA’s citizen suit provision.

Contrary to the Ninth Circuit’s reasoning, the Ninth

Circuit did not simply “interpret” EPA’s Silvicultural

Rule. The Ninth Circuit effectively invalidated EPA’s

Silvicultural Rule. Such a result can be pursued only

pursuant to 33 U.S.C. § 1369, not 33 U.S.C. § 1365.

6

Congress clearly stated its intent to bar challenges

to EPA rulemaking in citizen suits by stating that the

judicial review provision in 33 U.S.C. § 1369(b)(2) is

exclusive. According to Congress, if review of an EPA

action “could have been obtained under paragraph (1)

[the rulemaking judicial review provision of the CWA)

that action “shall not be subject to judicial review in

any civil or criminal proceedings for enforcement.” 33

U.S.C. § 1369(b)(2). Clearly, Congress required a

challenge to regulations promulgated by EPA to be

filed pursuant to 33 U.S.C. § 1369, not 33 U.S.C.

§ 1365.

This suit was brought not as an action against

EPA, but instead as an action against the State of

Oregon and those entities that owned, built, and

maintained forest roads. By determining that EPA’s

rules may be challenged, and invalidated, in a citizen

suit arising under 33 U.S.C. § 1365 rather than 33

U.S.C. § 1369, the Ninth Circuit effectively placed the

uniformity of the CWA’s NPDES program in jeopardy.

Congress’ intent to limit challenges to EPA rulemaking

to 33 U.S.C. § 1369 has sound underpinnings. In this

case, as in the majority of citizen suit cases, EPA was

not a named party. Because EPA is not required to be

a party to a citizen suit, EPA is not legally obligated

to take action if a court overturns or invalidates one

of its rules in a citizen suit case. By determining that

EPA rules may now be reinterpreted by the court and

in effect overturned in a citizen suit, the Ninth Cir-

cuit has created a scheme whereby multiple citizen

suits, in every state, may be filed in an effort to

7

challenge an existing, longstanding EPA rule. This, in

turn, could result in various interpretations of an

identical EPA rule, undermining the uniformity of

environmental law sought by Congress by its passage

of the CWA. In contrast, if the Silvicultural Rule had

been challenged pursuant 33 U.S.C. § 1369, EPA

would have been a named party, and would have had

to engage in rulemaking to correct any improprieties

found by a court. Uniform rulemaking by EPA, with

the necessary component of public participation

within the rulemaking process, benefits the states,

the regulated community and the purpose of Con-

gress’ passage of the CWA. This Court should reverse

the Ninth Circuit and limit challenges to EPA rule-

making as Congress intended — through the provi-

sions of 33 U.S.C. § 1369.

II. The Ninth Circuit failed to defer to the

EPA’s reasonable interpretation of the

Clean Water Act.

A. The Silvicultural Rule

Congress enacted the CWA in 1972. The CWA

provided EPA with the authority to implement a

consistent program throughout the U.S. designed to

protect the waters of the nation from pollution. See,

e.g., Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992)

(CWA’s objective was “authorizing EPA to create and

manage a uniform system of interstate water pollu-

tion regulation.”). Prior to the enactment of the CWA,

protection of the waters was handled by individual

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

8

The CWA’s cornerstone is a permitting require-

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

of pollutants through “any discernible, confined and

discrete conveyance, including but not limited to any

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

sure, container, rolling stock, concentrated animal feed-

ing operation, or vessel or other floating craft... .” 33

U.S.C. § 1362(14). This permitting program is the

NPDES permitting program.

The EPA promulgated rules to implement the

NPDES permitting program, including rules clarify-

ing when permits were and were not required. One of

these rules is known as the Silvicultural Rule. The

Silvicultural Rule states:

(a) Permit requirement. Silvicultural point

sources, as defined in this section, as point

sources subject to the NPDES permit pro-

gram.

(b) Definitions.

(1) Silvicultural point source means

any discernible, confined and discrete con-

veyance related to rock crushing, gravel

washing, log sorting, or log storage facilities

which are operated in connection with silvi-

cultural activities and from which pollutants

are discharged into waters of the United

States. The term does not include non-point

source silvicultural activities such as nursery

operations, site preparation, reforestation

and subsequent cultural treatment, thinning,

prescribed burning, pest and fire control,

9

harvesting operations, surface drainage, or

road construction and maintenance from

which there is natural runoff. However, some

of these activities (such as stream crossing

for roads) may involve point source discharg-

es of dredged or fill material which may re-

quire a CWA section 404 permit (See 33 CFR

209.120 and part 233) (emphasis added).

40 C.F_R. § 122.27. Both historically and academ-

ically, silviculture — the growing and harvesting of

trees — is a recognized agricultural practice. See, e.g.,

John Gifford, Practical Forestry 12 (1907). With the

promulgation of the “Silvicultural Rule,” the EPA

recognized the interconnection between silviculture

and agriculture and determined that not all forestry

activities were subject to the NPDES program. In

1990, the EPA published a notice in the Federal

Register explaining its interpretation of this provi-

sion. See 55 Fed. Reg. 20,521 (May 17, 1990). In this

notice, the EPA stated that stormwater discharges

from forest roads, although channeled, do not consti-

tute point sources. Jd. Instead, these discharges were

“caused solely by natural processes, including precipi-

tation and drainage, were not otherwise traceable to

any single identifiable source, and were best treated

by non-point source controls.” Jd. The EPA has con-

sistently maintained that, pursuant to this rule,

“ditches, pipes and drains that serve only to channel,

direct and convey non-point runoff from precipitation

are not meant to be subject to the § 402 [point source]

permit program” 41 Fed. Reg. 6,282 (Feb. 12, 1976).

10

In its citizen suit Respondent alleged that the

Oregon State Forester and private timber defendants

were in violation of the CWA because they failed to

obtain NPDES permits for stormwater runoff from

logging roads that was channeled and collected in

ditches and culverts. Accordingly the Ninth Circuit’s

analysis was limited to that question — whether

stormwater from roads associated with the harvest-

ing of timber is a point source that requires an

NPDES permit under the CWA. Oregon and the

private timber defendants argued that EPA’s Silvicul-

tural Rule exempted stormwater runoff from logging

roads from the NPDES permitting regime. The EPA

filed an amicus brief in the district court in support of

Oregon and the private timber defendants supporting

Oregon and their position that the Silvicultural Rule

exempted stormwater discharges from forest roads

from NPDES permits, even if those discharges were

channeled.

In Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905,

137 L.Ed.2d 79 (1997), this Court held deference to

an agency’s interpretation of its own regulation,

advanced in a legal brief, was warranted unless that

interpretation was “plainly erroneous or inconsis-

tent”; conflicted with longstanding practice; or re-

flected evidence that an agency repeatedly changed

its justification for the rule. Jd. In this case the Ninth

Circuit did not conclude that EPA’s interpretation of

its Silvicultural Rule was not entitled to Auer defer-

ence. The Ninth Circuit did not disregard EPA's

interpretation because it believed that interpretation

11

conflicted with longstanding practice or EPA had

repeatedly changed its rationale for the Silvicultural

Rule. Instead, the Ninth Circuit concluded that EPA’s

Silvicultural Rule could reasonably be read as EPA

read it — to exempt stormwater emanating from chan-

neled logging roads from NPDES permits. (Pet. App.

36-37, 43-44). The Ninth Circuit should have fol-

lowed Auer and applied the Silvicultural Rule in a

manner consistent with EPA’s interpretation of that

rule. Instead, the Ninth Circuit found that EPA’s

interpretation was unknown until it filed its amicus

brief, and the EPA Silvicultural Rule conflicted with

the CWA.

Despite the Ninth Circuit’s claim, Amici States

have not wallowed in uncertainty the last 30 years

regarding the interpretation and applicability of the

Silvicultural Rule. The Silvicultural Rule is clear and

unambiguous — that the design, construction, use, or

maintenance of forest roads is an activity that does

not require an NPDES permit. The intent of the EPA

to define these activities as non-point sources and

exempted from the NPDES permitting program can

be found in both the text of the Silvicultural Rule and

its regulatory preamble. Indeed, the EPA’s singular

position on this topic was acknowledged by the Ninth

Circuit, despite its later finding of an alleged ambigu-

ity. The Ninth Circuit stated that, under the Silvicul-

tural Rule, non-point sources, i.e., those that require

' Cited to Petitioners, Decker, et al., Appendix.

12

no NPDES permit, included discharges of natural

runoff even if such discharges are channeled and

controlled through a discernible, confined, and dis-

crete conveyance.

Absent an Auer analysis, the Ninth Circuit did

not have the leeway to interpret the Silvicultural

Rule differently from EPA. And despite Respondent’s,

and now the United States’, insistence that the Ninth

Circuit engaged in an interpretation of the Silvicul-

tural Rule the opposite is true. The Ninth Circuit

determined the Silvicultural Rule was in conflict with

the CWA by stating “we hold that the Silvicultural

Rule does not exempt from the definition of point

source discharge under § 512914 stormwater runoff

from logging roads” that is collected and channelized.

(Pet. App. 37). The Ninth Circuit erred by invalidating

an EPA rule in a citizen suit. Disguising this rule

invalidation as an alternate interpretation that

effectively guts the EPA’s intent of the rule while

leaving the rule standing is a backdoor attempt to

avoid the provisions of 33 U.S.C. § 1369, and this

Court should reverse.

B. The 1987 Stormwater Amendments

Despite the best of intentions, the NPDES pro-

gram did not fully eliminate water pollution or return

the nation’s waters to their pristine state. Recognizing

such, Congress passed an amendment to the CWA

in 1987. See generally 33 U.S.C. § 1342(p). In this

amendment Congress mandated a two-phase approach.

13

Phase I concentrated on five distinct categories of

stormwater discharges. 33 U.S.C. § 1342(p)(2). For

these specific categories of discharges, NPDES per-

mits were to be required. Phase II required the EPA

to consider, over time, other stormwater discharges

that had the potential to adversely affect water

quality. 33 U.S.C. § 1342(p)(6).

Among the Phase I stormwater discharges to be

regulated through the issuance of NPDES permits

were those associated with “industrial activity.” 33

U.S.C. § 1342(pK2)(B). Despite the inclusion of this

category, Congress provided the EPA with no defini-

tion of the term. Instead, EPA was directed to “estab-

lish regulations setting forth the permit application

requirements for [such] stormwater discharges... .”

33 U.S.C. § 1342(p)(4)(A). The EPA’s 1990 regulations

defined a “storm water discharge associated with

industrial activity” as a “discharge from any convey-

ance that is used for collecting and conveying storm

water and that is directly related to manufacturing,

processing or raw materials storage areas at an

industrial plant.” 40 C.F.R. § 122.26(b)(14) (2011).

“Standard Industrial Classifications” or “SIC codes,”

as originated by the Office of Management and Budget,

were used by the EPA to further designate the spe-

cific activities deemed to be industrial in nature.

The Ninth Circuit’s error in effectively invalidat-

ing the Silvicultural Rule was compounded by its

similar invalidation of the stormwater discharge rule.

Again, the Ninth Circuit never conducted an Auer

analysis of the stormwater discharge rule. Instead,

14

while recognizing that the text of the rule made clear

that EPA intended to exclude discharges from activi-

ties defined by the Silvicultural Rule from the defini-

tion of industrial activity requiring a stormwater

permit, it held that “the 1987 amendments to the

CWA do not exempt from the NPDES permitting

process stormwater runoff from logging roads that is

collected in a system of ditches, culverts, and chan-

nels, and is then discharged into streams and rivers.”

(Pet. App. 47). Removing every last vestige of uncer-

tainty that the Ninth Circuit invalidated the storm-

water discharge rule too, the court further stated that

“(wle have just held that §402(p) provides that

stormwater runoff from logging roads that is collected

in a system of ditches, culverts, and channels is a

‘discharge associated with industrial activity, and

that such discharge is subject to the NPDES permit-

ting process under Phase I.” (Pet. App. 48). In reach-

ing this conclusion, the Ninth Circuit did not wholly

consider the EPA regulations at issue. If it had, the

Ninth Circuit would have found SIC code 24 to be

less-encompassing than interpreted. The EPA ex-

plained that the “[e]stablishments identified under

SIC 24 ... are engaged in operating sawmills, plan-

ing mills and other mills engaged in producing lum-

ber and wood basic materials.” 55 Fed. Reg. 47,990,

48,008 (Nov. 16, 1990). Logging, as opposed to these

truly industrial activities, was to be addressed under

different regulatory provisions altogether. See 40

C.F-R. § 122.27.

15

The EPA explained in its amicus brief filed with

the district court that it had separated discharges

associated with “industrial activity” from discharges

associated with “silvicultural activity.” It further

distinguished between “silvicultural point sources”

and discharges fitting within its existing Silvicultural

Rule. The distinctions noted by EPA in its amicus

brief were not plainly erroneous, inconsistent, nor in

conflict with longstanding practice and were entitled

to Auer deference, deference which the Ninth Circuit.

did not accord. The Ninth Circuit erred by invalidat-

ing the stormwater rule in a citizen suit. The regula-

tory structure for the management of forest roads

adopted by EPA should be allowed to stand. The

decision of the Ninth Circuit, on the other hand,

should be reversed.

Ill. The Ninth Circuit’s Decision Has Signifi-

cant Consequences On Existing State

BMP And NPDES Programs

A. The States’ Best Management Practices

Forestry activities generally involve numerous

small operations occurring sporadically over large

amounts of space and long periods of time. Complicat-

ing the situation is the fact that different forests,

even those in close proximity with one another, may

have very different characteristics in terms of topog-

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

and hydrology. In order to be effective, the approach

to protecting the environment from forestry activities

must be adapted to local conditions and circumstances.

16

Congress recognized that non-point source pollution

is unique to each state when it added section 319 to

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

required states to develop plans for any non-point

source activities that are causing a state’s water to

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

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

authorize the states to obtain federal] funding to

manage non-point source pollution, with oversight

from EPA. 33 U.S.C. §§ 1298 & 1329. Amici States

have followed Congressional and EPA directives.

Forestry practices in the United States are now

conducted under the most comprehensive program of

BMPs of any land use activity in the nation. Some

Amici States employ mandatory’ BMPs administered

by state foresters or forest practice boards or commis-

sions. National Council for Air and Stream Improve-

ment, Inc., Compendium of forestry best management

practices for controlling nonpoint source pollution in

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

Other Amici States employ non-regulatory BMPs’

that are developed or approved by state agencies,

with landowner education to encourage compliance,

* These sign-on states have mandatory BMP programs:

Alaska Code 41.12.055(d) and the implementing regulation is 11

AAC 95.295; Idaho Code 38-1301 et seg.; Kentucky KRS 149.344;

New Hampshire; Ohio Admin. Code § 1501:15-5-12 (2010); and

South Carolina.

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

Arkansas, Alabama, Florida, Georgia, Maine, Michigan, Missis-

sippi, Tennessee, Virginia, and Wyoming.

17

and authority for agencies to take action against

landowners or foresters who do not comply. See, e.g.,

Florida Division of Agriculture and Consumer Ser-

vices, Silvicultural Best Management Practices (2008).

BMPs vary among Amici States for good reason. A

BMP that is appropriate for a coastal pine forest in

Georgia may be wholly inadequate for a temperate

rainforest in Oregon, or an Ozark mountain forest in

Arkansas. But while individual BMPs may vary, the

single goal of protecting the waters of the nation is

served in consistent fashion. Indeed, in order to ad-

vance the laudatory goals of the CWA, the BMPs

must, of necessity, be designed in response to local

conditions.

In spite of their variations, Amici States’ BMPs

share a number of attributes because each state’s

BMPs are based upon a common set of science-based

principles. National Council for Air and Stream Im-

provement, Inc. Compendium of forestry best man-

agement practices for controlling nonpoint source

pollution in North America, Technical Bulletin No.

966 (2009). BMPs will generally be designed to

1) minimize soil compaction; 2) separate exposed soils

from surface waters; 3) separate fertilizer and herbi-

cide application from surface waters; 4) inhibit hy-

draulic connections between bare ground and surface

waters; 5) provide forested buffers around water-

courses; and 6) properly plan, locate, and design

roads to have a minimal impact on soil erosion and

water quality. R. Olszewski & C.R. Jackson Best

18

Management Practices and Water Quality, National

Council for Air and Stream Improvement, Inc. (2006).

Regardless of each state’s chosen approach,

BMPs and non-point source pollution prevention

programs implemented by Amici States are subject to

EPA oversight and approval. See 33 U.S.C. § 1329.

States whose water quality inventories fail to demon-

strate continued improvement over time are subject

to closer scrutiny and review by EPA, and poor per-

formance can result in grant funding reductions.

In short, BMPs have become an accepted, well-

understood, documented, approved and successful

method of protecting water quality in the United

States and, in particular, in the nation’s forests.

There are hundreds of millions of privately and

publicly owned acres of forest land in the United

States, with millions of miles of forest roads having

some form of water conveyance, or channeling, asso-

ciated with them that are currently managed by

Amici States’ BMP programs. A timber harvest does

not occur overnight. Each site designated for timber

harvesting and reforestation is the culmination of

several years of multiple resource assessment and

detailed project planning. Over the last three decades

each Amici State has expended thousands of hours

and millions of dollars developing and implementing

their respective BMP programs. The states’ BMP

programs have been developed by certified silvicul-

turists, and these individuals meet certain standards

of professional knowledge, skills and experience in

multiple-use silviculture activities. In order to meet

19

EPA standards, Amici States provide training and

certification in soils and watershed management, and

while these individual BMP specialists are knowl-

edgeable regarding the practices and procedures

necessary to comply with sections 218 and 319 of the

CWA, they are often completely unfamiliar with the

requirements of the CWA’s NPDES program. A sud-

den shift to a fully regulated, permit-based approach

to forest road management is a significant departure

in how forest roads have been managed for decades

under BMPs, and this permit-based approach will

further burden state agencies that are already strug-

gling with meeting the current demands of the

NPDES program. If the Ninth Circuit decision in this

case is not reversed by this Court, the states’ estab-

lished BMP programs will be vacated in favor of

NPDES permits, and the burden of NPDES permit-

ting is substantial.

B. The States’ Individual NPDES Programs

Amici States are concerned about the chaos that

will result at the state level if hundreds of thousands

of applications for new NPDES permits related to

forest roads are filed within a short timeframe. Since

the inception of the NPDES program, the number

of facilities required to have NPDES permits has

quadrupled. Protecting the Nation’s Waters Through

Effective NPDES Permits, Office of Water, EPA-833-

R-01-001, June 2001. This growth is the result of a

number of changes to the program including the re-

authorization of the CWA in 1987, which significantly

20

expanded the scope of the NPDES program. /d.

Moreover, the NPDES permitting scheme is burden-

some to administer. As specified in 40 C.F.R. § 124,

there are a number of major steps the states’ permit

writers must follow to develop and issue an individu-

al NPDES permit.

The NPDES permitting process begins when the

permittee submits an application. After receiving the

application and making a decision to proceed with the

permit, the permit writer reviews the application for

completeness and accuracy. When the application is

complete, the permit writer, using the application

data, begins to develop the draft permit and the

justification for the permit conditions. U.S. EPA

NPDES Permit Writers’ Manual; U.S. Environmental

Protection Agency, Office of Water, December, 1996;

EPA-833-B-96-003. The first major step in the devel-

opment process is deriving technology-based effluent

limits. Following this step, the permit writer derives

effluent limits that are protective of state water

quality standards. The permit writer then compares

the technology-based effluent limits with the water

quality-based effluent limits and applies the more

stringent limits in the permit. The decision-making

process for deriving limits is documented in the per-

mit fact sheet. Following the development of effluent

limits, the permit writer develops appropriate moni-

toring and reporting conditions, develops facility-

specific special conditions, and includes standard

conditions that are the same for all permits. U.S. EPA

NPDES Permit Writers’ Manual; U.S. Environmental

21

Protection Agency, Office of Water, December, 1996;

EPA-833-B-96-003. After the draft permit is complete,

the permitting authority provides an opportunity for

public participation in the process. A public notice

announces the permit and interested parties may

submit comments regarding the draft permit. Based

on the comments, the states then develop the final

permit, with careful attention to documenting the

process and decisions for the administrative record,

and issue the final permit to the facility. U.S. EPA

NPDES Permit Writers’ Manual; U.S. Environmental

Protection Agency, Office of Water, December, 1996;

EPA-833-B-96-003.

The states’ permit writers spend a majority of

their time deriving appropriate effluent limits based

on applicable technology-based and water quality-

based standards. Water quality goals for a water body

are defined by state water quality standards. A per-

mit writer may find, by analyzing the effect of a

discharge on the receiving water, that technology-

based permit limits are not sufficiently stringent to

meet these water quality standards. Permit writers

must consider the impact of every proposed surface

water discharge on the quality of the receiving water.

The CWA provides that NPDES permits may not

be issued for a period of longer than five (5) years and

the states already face a significant backlog of permit

renewals. Permittees that wish to continue discharg-

ing beyond the five-year term must submit complete

applications for permit renewal at least 180 days

prior to the expiration dates of their permits. If the

22

state permitting authority receives a complete appli-

cation, but does not reissue the permit prior to the

expiration date, the existing permit is considered

“administratively continued.” Permits that have been

administratively continued are considered to be

“backlogged.” Since 1999, EPA has tracked the is-

suance status (the number of NPDES permits and

the percent current) and set goals for states and EPA

Regions to achieve a current rate of ninety (90) per-

cent. According to EPA, in December of 2009 only one

EPA Region, Region 6, was at the 90-percent “cur-

rent” status for major individual NPDES permits.

Only two Regions, Region 5 and Region 6, met the

current status for individual minor permits.

The Ninth Circuit’s decision that channeled for-

estry roads require NPDES permits could not have

come at a more inopportune time. While Amici States

are being tasked with an ever-growing list of EPA

initiatives, the supporting flow of federal and state

dollars to fund these new government initiatives

continues to diminish. EPA FY 2012 Budget Hearing

Before the Senate Interior, Environment and Related

Agencies Subcommittee, 112th Cong. (2011). Amici

States have legitimate concerns about the overwhelm-

ing number of regulations they are facing from new

EPA initiatives that are far outstripping the financial

support received from EPA for implementation. Add-

ing a new permit requirement for ditches and culverts

along millions of miles of forest roads will swamp

already burdened states at a time when resources to

administer the NPDES permitting programs are

23

continuing to shrink and the states are continuing to

fall behind.

C. NPDES General Permits Are Not The

Solution

In contrast to the Ninth Circuit’s suggestion, and

a current EPA proposal, general permits are not the

simple “cure” to the Ninth Circuit’s decision in this

case. In a recent Federal Register notice, EPA stated

that it was considering regulating a subset of storm-

water discharges from forest roads under its Phase II

stormwater rulemaking authority. 77 Fed. Reg. at

30,349; see pp. 17-18. On May 23, 2012, EPA issued a

formal notice in the Federal Register indicating its

intent to consider “proposed revisions to its Phase I

stormwater regulations (40 CFR 122.26) to specify

that stormwater discharges from logging roads are

not included in the definition of ‘storm water dis-

charge associated with industrial activity.’” 77 Fed.

Reg. at 30,474. EPA’s proposed revisions to its current

regulatory scheme suggest that EPA intends to issue

a new rule in the future that stormwater associated

with forest logging roads be permitted pursuant to

the Multi-Sector General Permit (MSGP) regulatory

scheme, 73 Fed. Reg. 56,572 (Sept. 29, 2008). See

Letter from Nancy K. Stonger, Acting Assistant

Administrator, EPA, to Congressman Kurt Schrader

(July 1, 2011). However, the MSGP is not a panacea

to the Ninth Circuit’s improper invalidation of EPA’s

Silvicultural and stormwater rules for two reasons.

First, the MSGP is available only in states where

EPA is the permitting authority. According to EPA,

24

forty-four (44) states and one territory are authorized

to implement the NPDES program. Protecting the

Nation’s Water Through Effective NPDES Permits,

EPA-833-R-01-001, June 2001. The overall burden of

implementing and administering a general permit-

ting scheme would, similar to the implementation of

individual NPDES permits, rest with the states. But

more importantly, although admittedly less onerous

than administering the individual NPDES program,

the issuance of a general permit is also not a simple

undertaking. The process for developing and issuing a

general NPDES permit requires a state’s permitting

authority to first identify the need for a general

permit by collecting data demonstrating that a group,

or category, of discharges has similarities that war-

rant a general permit. In this case, each state would

have to conduct an inventory of the thousands, and in

some instances millions, of miles of forest roads that

may exist in each state. Once that inventory is com-

plete, each state permitting authority would be

required to consider the following to decide whether a

general NPDES permit would be appropriate:

1. Are there a large number of facilities to

be covered?

2. Do the facilities have similar production

processes or activities?

3. Do the facilities generate similar pollu-

tants?

25

4. Do only a small percentage of the facili-

ties have the potential for violation of a

state’s water quality standards?

The remaining steps of the permitting process mirror

those for individual NPDES permits. The permitting

authority develops the draft permit and fact sheet,

issues a public notice, addresses public comments,

documents the issues for the administrative record,

and issues the final permit. After the general permit

has been issued, facilities that wish to be covered

under the general permit generally submit a Notice of

Intent to the state permitting authority. The permit-

ting authority may then either request additional

information describing the facility, notify the facility

that it is covered by the general permit, or require the

facility to apply for an individual NPDES permit.

U.S. EPA NPDES Permit Writers’ Manual; U.S. En-

vironmental Protection Agency, Office of Water, De-

cember, 1996; EPA-833-B-96-003. The Ninth Circuit’s

suggestion and EPA’s consideration of that sugges-

tion, that general permits provide a simple solution to

the Ninth Circuit’s ill-reasoned decision to invalidate

EPA’s Silvicultural and stormwater rules is incorrect.

¢

26

CONCLUSION

Based upon the above analysis, Amici States

respectfully request this Court to reverse the Ninth

Circuit.

Respectfully submitted,

DUSTIN MCDANIEL

Arkansas Attorney General

CHARLES L. MOULTON

Eric B. ESTES

Senior Assistant

Attorneys General

KENDRA AKIN JONES*

Assistant Attorney General

*Counsel of Record

323 Center Street, Suite 200

Little Rock, Arkansas 72201

(501) 682-7383

Attorneys for Amici States

September 4, 2012