Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

‘w wild Nos. 11-338 and 11-3470 | 0% 2 y 9

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Spies Iu The + SESE San Shey

Supreme Court of the Anited States

—'

DOUG DECKER, et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

—*

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

—~@

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

~~

BRIEF AMICUS CURIAE OF ENVIRONMENTAL

PROTECTION INFORMATION CENTER,

THE SIERRA CLUB, WATERKEEPER

ALLIANCE, ROGUE RIVERKEEPER,

PUGET SOUNDKEEPER ALLIANCE,

WILDLANDS CPR, AND ALLIANCE FOR THE

WILD ROCKIES IN SUPPORT OF RESPONDENT

_"

SHARON E. DUGGAN MICHAEL R. LOZEAU

LAW OFFICES OF Counsel of Record

SHARON E. DUGGAN LOZEAU Drury LLP

370 Grand Avenue, Ste. 5 410 12th Street, Ste. 250

Oakland, CA 94610 Oakland, CA 94607

(510) 271-0825 (510) 836-4200

foxsduggan@aol.com michael@lozeaudrury.com

COCKLE LAW BRIEF PRINTING CO. (800) 225-6864

OR CALL COLLECT (402) 342-2431

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................ccceseeeeeeeeeees

IDENTITY AND INTEREST OF AMICI CURIAE....

IT.

III.

This Case Is Limited To Industrial Logging

Roads And Does Not Involve Every Forest

Landowner In The United States................

The CWA Does Not Require That An In-

dividual Permit Be Issued For Every Point

Source Or Every Landowner.......................

Logging Road Dischargers Already Can

Satisfy Their Duty To Obtain An NPDES

Permit By Enrolling In Existing General

Permits For Storm Water Associated With

i i ictcsisnccccncscnnstinccnssnessnnnccnce

NPDES Permits Focus On The Precise Lo-

cations Where Logging Roads Discharge

Pollutants To Waters And Will Encourage

Logging Roads To Maximize The Use Of

Non-Point Source BMPs That Eliminate

Or Reduce Point Source Discharges ...........

NPDES Permits Have Been Readily De-

veloped For Much More Complicated Storm

Water Discharges Than Those From Log-

II csccittinsieincspsiteliniusetesensseiscnlebiibieiiubediniainanaainibia

ED senicenancttencicnninninianvimnennbapemmmiiaiinnte

11

13

16

ii

TABLE OF AUTHORITIES

CASES:

City of Milwaukee v. Illinois, 451 U.S. 304

PEE cecacensenssinnennnenanesereenmmensubnnnmeinanaebeemees

Environmental Protection Information Center

v. Pacific Lumber Co., 469 F.Supp.2d 803

GI Gs SIRE irsirrsesnnenensinnnenconeunimecsensnennisisieioonsinen

Environmental Protection Information Center

v. Pacific Lumber Co., 430 F.Supp.2d 996

I Satie Gere erseevccvmneiicccsvsnnsesennnnininnessentnnineets

Environmental Protection Information Center

v. Pacific Lumber Co., 2004 WL 838160 (N.D.

Cal. Apr. 19, 2004)......ccccccccsscssssssrsesesesssesescereeees

Environmental Protection Information Center

v. Pacific Lumber Co., 302 F.Supp.2d 1102

Ry Rs GR cctecececsensescesccnsenenbetensentiontinninenees

Environmental Protection Information Center

v. Pacific Lumber Co., 266 F.Supp.2d 1101

Ge is See cseccseccnsnvsecesusnessnnsansesoeusntnenetecnseen

Environmental Protection Information Center

v. Pacific Lumber Co., 2003 WL 25506817

COTE. GRE. GIGB. BG, BIBT) .ncccccccccccccsseresesasscscceceses

International Paper Co. v. Ouellette, 479 U.S.

ee

Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir.

Trustees for Alaska v. EPA, 749 F.2d 549 (9th

BE Se icctdccdenicsinitunienideeniunienictinmnednesibimemin

TABLE OF AUTHORITIES — Continued

Page

United States v. Earth Sciences, Inc., 599 F.2d

EE ED. CITI siniissiniicnsiteetiiennneiiiininnasiaumadinccsddiiiidias 5

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486

TE: TIT ictetclepecehrecnseiensienbetiagneibdeaitia eaaicaiai 17

STATUTES:

Clean Water Act

I i a si eileuliniadadioueld 1

| Ea eaten eee 5

Be ee Ti aT ci ciniennitaniedanennsniiieiinbainduusanioiaiienimematid 6

8 a eee ae TE: 2

2 ee a ET 6

SP ils OP SEIN, ccnncnccnnscntoscontnssnteseisecinitienbetenenss 7

3 XE EEE ne Ne nS mn E TEE: 7

a ee i Tc ciecintstnncindcsinsesiichteinsindigtiiiadeabanstadeaiied 7

4g | Enea enn ene 17

BD WIA. © Bi icc cccccscecensscocccsccenenseseesevens 6, 11

33 U.S.C. § 13842(pN2)-(B)..........ccccccocsccesccesccsescscccccenss 20

SD WD. © BD eccvccnececcccnccccvccvscscesscesesesscsess 13

IN iia ialanle nln iaiacenaaeie 7

Se tt TT cctesnterterntniiiipiniaesisnanadeaiisidainsndentinaieiaield 6

ee ee Oe EE vinneencntnncnnssnsennsetantiscnnesotinnnsanntsl 6, 7

iv

TABLE OF AUTHORITIES — Continued

Page

Intermodal Surface Transportation Efficiency

Act of 1991, Pub. L. No. 102-240, § 1068, 105

Ss Ear UTIL niscinsessnieecrnssedsilinieiehinbeieeglntesainiesicidsheiaisiaisdunanieds 13

REGULATIONS:

I oi sicarnasidiettnitnenamnnniemnadteiisatianiinniabananetata 6

I i i icinrraiiss steeninintninnpemndenndinlendbnnenniaiiiniiantn 7

ae © a irveccccssescccnsnsiccesassnncssccesessccnse 11

ey ae ee EE arhieiiceciccitntenintctasicninitannsinisgnennin 23

ee Oe EE sipicitiisatinniccnnsiitianemnaccnnsibiaaniinesieiids 23

ee ED sitisticesdenictncnninsctensitesvenicentescsiins 23

GD Gere © SI cscecenesnccsnsscsccvtsccnesscessacees 23

ee Bk | eee ee 24

re I cccitcntninittcicicnnictnctcvnciesictsonsinnsiite 11

Octet atitintaninnetilel 7,12

se I vtceiicintnnnsiiiccinnnintnnionetncinnninnniiuaiatd 12

40 C.FLR. § 122.28(a)2)(1)..............00 jdeicniihadibaistaciniinasiniins 12

40 C.FLR. § 122.28(a)(2)G)(A)-(D) ........ eee eeeeteeeeeeeeeeeees 12

ae NII vic cciviicitigcisieeiieidehtiipnenindsibiiediaineenemaniail 8

te I iiss sisinsidiiitia ssinininnisintalinialbaniiasiuibiienwian 17

RULES OF COURT:

ay Ge te Ge icticenicninnccncncstnsnessnstatoecinaion 1

I Te SE Ft i cccntcccctnicntintntetninneatsiniadauinnaeen 1

Vv

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

55 Fed. Reg. 47990 (Nov. 16, 1990).................-.. 2c 20

60 Fed. Reg. 50913 (Sept. 29, 1995).......................000 24

California Regional Water Quality Control Board,

Central Valley Region, NPDES No. CAS082597,

Stormwater Discharges From Municipal Sepa-

rate Storm Sewer System, Sacramento County

(Sept. 11, 2008) (“Sacramento Municipal Per-

mit”), http://www.waterboards.ca.gov/rwqcb5/

board_decisions/adopted_orders/sacramento/r5-

I inicio deedniiiadaiasiteaabeidabadaiianiabaiietweinl 22

California Regional Water Quality Control Board,

San Francisco Bay Region, “Wastewater,” http://

www.swrcb.ca.gov/sanfranciscobay/water_issues/

programs/wastewater.shtml ................:cceeeeeeeeeeeeeeeeee 25

California State Water Resources Control Board,

California 2010 303(d) Combined List Table,

“303(d) list — Excel file (includes potential

sources),” http://www. waterboards.ca.gov/water_

issues/programs/tmdl/integrated2010.shtml........... 2

California State Water Resources Control Board,

NPDES Permit No. CAS000001, http://www.

waterboards.ca.gov/water_issues/programs/storm

water/docs/induspmt. pdf..................ceeeeeee ees 15, 23, 24

California State Water Resources Control Board,

NPDES Permit No. CAS000003, http://www.

swrcb.ca.gov/water_issues/programs/stormwater/

docs/caltrans/caltranspmt. pdf .................ce0eeseeeeeeees 21

vi

TABLE OF AUTHORITIES — Continued

Page

California State Water Resources Control Board,

NPDES Permit No. CAS000004, http://www.

waterboards.ca.gov/water_issues/programs/storm

water/docs/final_sm_ms4_fact_order.pdf ............... 23

Caltrans, Statewide Stormwater Management

Plan (May 2003), http://www.dot.ca.gov/hq/

env/stormwater/pdf/CTSW_RT_02_008.pdf........... 22

Environmental Protection Agency, “Authoriza-

tion Status for EPA’s Stormwater Construc-

tion and Industrial Programs,” http-//cfpub.

epa.gov/npdes/stormwater/authorizationstatus.

cfm (last visited October 18, 2012)......................... 13

Environmental Protection Agency, Multi-Sector

General Permit For Stormwater Discharges

Associated With Industrial Activity (MSGP),

§ 8.4.6, App. D-2 (May 27, 2009), http://www.

epa.gov/npdes/pubs/msgp2008_finalpermit.pdf.....14, 15

Environmental Protection Agency, State Program

Status, http://cfpub1.epa.gov/npdes/statestats.

I iiteiciitsinisensietnnidatiansnniintinnitandsitaineieien 7

Environmental Protection Agency, “National Pol-

lutant Discharge Elimination System (NPDES),”

http://cfpub.epa.gov/npdes/ ...............cssseseseesseeeeeeeess 26

Michael E. Barber, et al., “Preliminary Envi-

ronmental Investigation Of Heavy Metals

In Highway Runoff,” p. 1 (Nov. 21, 2006),

http://www. wsdot.wa.gov/NR/rdonlyres/A3518

878-820F 4EBD-9D47-C518AA2F8C9 L/0/Prelim

EnvironmentalInvestigationHeavyMetals.pdf......... 20

Vii

TABLE OF AUTHORITIES — Continued

New Jersey Dep’t of Environmental Protection,

Highway Agency Stormwater General Permit,

NJPDES Permit No. NJ0141887, http://www.

nj.gov/dep/dwaq/pdf/existing_highway_permit_

BE Fi Fe ME csorindrenriccdctiosinenmsasentanpenanbinmnadeees

Oregon Department of Environmental Quality,

General Permit NPDES Storm Water Dis-

charge Permit, Permit No. 1200-Z, http//www.

deq.state.or.us/wq/wqpermit/docs/general/npdes

1200z/permit2012.pdf ..........cecccssscsseseseseseseeeseeee

Oregon Department of Forestry, Forest Prac-

tices Technical Note No. 8, Version 1.0 (June

ty SITE énccicvescnncncssccemntucroneneceneniasesisonenasmiopiscens

State of Washington, Department of Ecology,

Washington State Department of Transporta- -

tion NPDES and State Waste Discharge

Permit for Municipal Stormwater, Permit No.

WAR043000A, http://www.ecy.wa.gov/programs/

wa/stormwater/municipal/wsdot/docs2011/wsdot

Ie EE ccncetesnescacedesstanieccenenienesnnetesedeoces

Texas Commission on Environmental Quality,

General Permit to Discharge Under the Texas

Pollutant Discharge Elimination System, Gen-

eral Permit No. TXR050000, http://www.tceq.

texas.gov/assets/public/permitting/stormwater/

RS SM AAA AED TEES

Texas Forest Service, Texas Forestry Best Man-

agement Practices (August 2004), http-//txforest

service.tamu.edu/uploadedfiles/sustainable/bmp/

Page

— 22

i iicnscccadnccstncconncctnncuscnesssenniininnes 17, 18

viii

TABLE OF AUTHORITIES — Continued

Page

Ventura County, Resource Management Division,

Rincon/Grubb Oil Fields, Aerial Photography

Map (Dec. 21, 2011), http//www.edcnet.org/learn/

current_cases/cwa/Rincon-Grubb_OilFieldMap.

Vintage Production California LLC, Notice of In-

tent to Comply With the Terms of the General

Permit to Discharge Storm Water Associ-

ated With Industrial Activity (WDID 4-56I-

020994) (July 2, 2007), posted at https://

smarts.waterboards.ca.gov/smarts/faces/Public

DataAccess/PublicNoiSearchResults.jsp................ 24

1

IDENTITY AND INTEREST OF AMICI CURIAE

Amici Environmental Protection Information

Center, The Sierra Club, Waterkeeper Alliance, Rogue

Riverkeeper, Puget Soundkeeper Alliance, Wildlands

CPR, and Alliance For The Wild Rockies (collectively

“EPIC Amici” or “Amici”) submit this brief in support

of Respondent Northwest Environmental Defense

Center, urging the Court to affirm the decision below.’

Amici are non-profit public interest organizations

working to protect the environment, public health,

and rural communities that rely on healthy rivers,

streams, and estuaries. Amici have decades of exper-

ience and expertise participating in permitting, reg-

ulatory, and enforcement proceedings under the

Clean Water Act (“CWA” or “Act”), 33 U.S.C. § 1251 et

seq.

In particular, Amici have provided technical

and legal expertise in numerous proceedings address-

ing water pollution problems caused by industrial

logging operations in rivers, lakes and streams

throughout the United States and the ongoing failure

of State-level forestry programs to have prevented,

by themselves, the degradation in water quality of

* Pursuant to Supreme Court Rule 37.3(a), the parties have

consented to the filing of this Amicus Curiae brief by filing blanket

consents with the Court. Pursuant to Supreme Court Rule 37.6,

counsel for Amici certifies that no counsel for a party authored

this brief in whole or in part and that no party, person, or entity

other than Amici and counsel made a monetary contribution

specifically for the preparation or submission of this brief.

2

thousands of miles of rivers, streams and lakes. Amici

have been intimately involved in the development,

implementation, and enforcement of numerous gen-

eral permits issued pursuant to the Clean Water Act’s

National Pollutant Discharge Elimination System

(“NPDES”) to address discharges of storm water from

a multitude of municipal and industrial settings. All

of these organizations together have hundreds of

thousands of members and supporters who rely on

waters flowing through areas of industrial logging for

recreation, scientific study, and protection of their

health, safety, property, drinking water and food

supply.

Amicus Environmental Protection Information

Center and its approximately 3,000 members are

located in Northern California where the Eel River,

Elk River, Freshwater Creek, Klamath River, Wooley

Creek, Albion River, Big River, Gualala River, Navarro

River, Pudding Creek, Ten Mile River, Redwood

Creek, and Trinity River are all identified pursuant to

Section 303(d) of the Clean Water Act, 33 U.S.C.

§ 1313(d), by the State of California and the United

States Environmental Protection Agency as failing

to achieve beneficial uses and water quality stand-

ards specifically because of sediment discharges from

logging roads in those watersheds. California State

Water Resources Control Board, California 2010 303(d)

Combined List Table, “303(d) list — Excel file (in-

cludes potential sources),” http://www.waterboards.ca.

gov/water_issues/programs/tmdI//integrated2010.shtml.

EPIC filed an Amicus Curiae brief with the Ninth

Circuit in this action and was involved for many

3

years in litigation raising the same issues before the

Northern District Court of California. Environmental

Protection Information Center v. Pacific Lumber Co.,

2003 WL 25506817 (N.D. Cal. Oct. 14, 2003).*

Amicus The Sierra Club, founded in 1892, is the

nation’s oldest and largest grassroots environmental

organization, with approximately 740,000 members

nationwide. The Sierra Club has decades of experi-

ence addressing water pollution issues under both the

Clean Water Act and State and Federal forestry and

land management statutes.

Amici Waterkeeper Alliance, Rogue Riverkeeper,

and Puget Soundkeeper Alliance are Waterkeeper

organizations dedicated exclusively to water quality

protection through education, scientific research and

monitoring, advocacy, and enforcement. Waterkeeper

Alliance is an international, non-profit organiza-

tion based in the State of New York and serves as

an umbrella organization comprised of nearly 200

member Waterkeeper programs in the United States

and around the globe. Rogue Riverkeeper and Puget

Soundkeeper Alliance are based in Ashland, Oregon and

* See also Environmental Protection Information Center v.

Pacific Lumber Co., 469 F.Supp.2d 803 (N.D. Cal. 2007); Envi-

ronmental Protection Information Center v. Pacific Lumber Co.,

430 F.Supp.2d 996 (N.D. Cal. 2006); Environmental Protection

Information Center v. Pacific Lumber Co., 2004 WL 838160

(N.D. Cal. Apr. 19, 2004); Environmental Protection Information

Center v. Pacific Lumber Co., 302 F.Supp.2d 1102 (N.D. Cal.

2004); Environmental Protection Information Center v. Pacific

Lumber Co., 266 F.Supp.2d 1101 (N.D. Cal. 2003).

4

Seattle, Washington, respectively. These organizations

concentrated focus on the Clean Water Act and other

water quality protection laws provides an informed

and unique perspective on the issues before the

Court.

Amicus Wildlands CPR is a non-profit environ-

mental organization based in Missoula, Montana,

with offices in Portland and Eugene, Oregon. Wild-

lands CPR works nationally with citizens, grassroots

groups, tribes, and land managers to protect and

restore natural areas, with a focus on rectifying the

impacts from logging and other wildland roads to

watersheds, terrestrial and aquatic species habitat,

and municipal water supplies. Since 1994, Wildlands

CPR has conducted scientific field studies document-

ing the aquatic and terrestrial impacts of roads re-

sulting in numerous publications in peer-reviewed

journals; conducted on-the-ground workshops at-

tended by over 300 public land managers regarding

the impacts of roads to aquatic systems; partnered

with Tribes and universities to document the impacts

of roads on wildlife and aquatic habitat and how to

mitigate or restore the affected areas; and worked

specifically with the Forest Service to improve their

management of forest roads to reduce aquatic and

terrestrial impacts. Wildlands CPR promotes the res-

toration of watersheds and rural economies through

full maintenance of necessary roads and reclamation

of ecologically damaging, unneeded roads — important

sources of high-wage, high-skill jobs to people in rural

communities.

5

Amicus Alliance For The Wild Rockies is a non-

profit organization based in Helena, Montana, whose

mission is to secure the ecological integrity of the

Wild Rockies Bioregion through citizen empower-

ment, and the application of conservation biology,

sustainable economic models and environmental law.

Alliance For The Wild Rockies is frequently involved

in water pollution issues related to logging roads.

The questions presented in this case have a

critical and direct impact on whether the logging

industry will be required to comply with the Clean

Water Act’s NPDES permitting requirement just like

thousands of other industries, mom-and-pop busi-

nesses, state highway systems, and municipalities

already are required to do. As organizations involved

in environmental advocacy pursuant to the Clean

Water Act as well as State and federal forestry laws,

Amici have a unique perspective and interest in the

outcome of this case.

+

STATUTORY BACKGROUND

“Beginning with the Congressional intent to

eliminate pollution from the nation’s waters by 1985,

the [Clean Water Act] was designed to regulate to the

fullest extent possible those sources emitting pol-

lution into rivers, streams and lakes.” United States

v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.

1979). See 33 U.S.C. § 1251(aX1). In furtherance of

that goal, “[t]he Act established a comprehensive

6

scheme for federal regulation of water pollution, the

National Pollut{[ant] Discharge Elimination System

[NPDES], as a means of achieving and enforcing ef-

fluent limitations.” Trustees for Alaska v. EPA, 749

F.2d 549, 553 (9th Cir. 1984).

The Act prohibits the discharge of any pollutants

from any point sources, unless one or more carefully

enumerated exceptions apply. 33 U.S.C. § 1311(a).

One exception is a discharge authorized by an

NPDES permit pursuant to section 402 of the Act.

Id.; 33 U.S.C. §§ 1342(a); 1342(pX2KB). “The term

‘discharge of pollutants’ means (A) any addition of

any pollutant to navigable waters from any point

source....” 33 U.S.C. § 1362(12). Such discharges

include “additions of pollutants into waters of the

United States from: surface runoff which is collected

or channelled by man....” 40 C.F.R. § 122.2. “Point

source” is defined broadly by Congress as “any dis-

cernible, confined and discrete conveyance, including

but not limited to any pipe, ditch, channel, tunnel,

[or] conduit ... from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14).

“Every point source discharge is prohibited un-

less covered by a permit, which directly subjects the

discharger to the administrative apparatus estab-

lished by Congress to achieve its goals.” City of Mil-

waukee v. Illinois, 451 U.S. 304, 318 (1981). See also

International Paper Co. v. Ouellette, 479 U.S. 481, 492

(1987). Only where there is no discernable convey-

ance of polluted effluent, i.e., no “point source,” is a

discharger relieved of having to obtain an NPDES

7

permit. The only exceptions to the NPDES permitting

mandate have been expressly provided by Congress

within the Act. See, e.g., 33 U.S.C. § 1362(6) (certain

vessel discharges); § 1342(1)(1) (agricultural return

flows); § 1362(14) (same); § 1342(1K2) (uncontami-

nated stormwater discharges at mine sites).

The NPDES permitting program is, in large part,

managed by the individual States, with EPA playing

an ancillary oversight role. The CWA requires EPA to

delegate NPDES permit issuing authority to individ-

ual states upon the state meeting certain criteria. 33

U.S.C. § 1342(b)-(c). It was Congress’ clear intention

that the States “assume the major role in the opera-

tion of the NPDES program.” Shell Oil Co. v. Train,

585 F.2d 408, 410 (9th Cir. 1978). Indeed, that Con-

gressional intent has been realized. 46 of the 50

States have been delegated authority to issue NPDES

permits for their respective waters, EPA retain-

ing only a limited authority to review and poten-

tially (though in practice rarely) vetoing deficient

permits. Environmental Protection Agency, State Pro-

gram Status, http://cfpub1l.epa.gov/npdes/statestats.cfm?

program_id=12; 33 U.S.C. § 1342(c) (upon approval of

a State’s NPDES program, EPA must suspend its own

issuance of permits within that State).

NPDES permits may be issued as either general

permits or individual permits. 40 C.F.R. §§ 122.28,

122.21. General permits cover a large number of

dischargers within specified categories. For example,

46 States have issued their own state-wide general

permits for certain categories of discharges of storm

8

water associated with industrial activity. EPA has

issued a nation-wide general permit for such dis-

charges as well, covering the four States that have

not opted to manage the NPDES program in their

jurisdictions, Tribal lands, United States territories

and some federal facilities. Where a general NPDES

permit applies to a discharge, rather than apply for

an individual permit and go through a detailed hear-

ing process, an individual discharger need only file a

“Notice of Intent” to operate under the existing gen-

eral permit and proceed to comply with its terms. See

40 C.F.R. § 122.28(b)(2).

4

SUMMARY OF ARGUMENT

The EPIC Amici focus this brief Amicus Curiae

on exposing many of Petitioners’ Amici’s wholesale

exaggeration of the infeasibility and difficulty of ap-

plying an NPDES permit to logging road discharges.

A number of Petitioners’ Amici argue that polluted

storm water being discharged from logging roads is so

distinct from storm water falling on other industrial

operations and municipalities that it is impractical to

regulate that pollution discharge through the CWA’s

NPDES permitting program. Other Petitioners’ Amici

claim that the sheer number of logging road outfalls

and operators makes it inconceivable that EPA and

the States could issue the NPDES permits anytime

in the foreseeable future. However, much more com-

plicated facilities than logging roads — for example,

entire cities and counties — have been effectively

9

regulated with NPDES permits issued on a state or

nation-wide basis. Indeed, applicable NPDES general

permits for storm water associated with industrial

activity already exist and can be used immediately to

address logging road discharges.

—~

ARGUMENT

I. This Case Is Limited To Industrial Log-

ging Roads And Does Not Involve Every

Forest Landowner In The United States.

The Court of Appeals’ ruling is limited to holding

that storm water discharged from point sources on

two logging roads used for industrial logging must be

subject to an NPDES permit. Pet. App. at 6-7, 44-48.

Reading many of the briefs Amici Curiae filed in sup-

port of Petitioners, one would think that the Court of

Appeals’ ruling held that NPDES permits were re-

quired for every person who cuts down a tree on their

property or uses a road on federal land. See, e.g.,

American Forest Resource Council Amicus Brief at 13

(suggesting ruling on industrial logging roads would

affect Bureau of Land Management off-highway

vehicle uses); id. at 16 (invoking ranching families

and claimed effects on grazing allotments); Pacific

Legal Foundation Amicus Brief at 10 (loosely describ-

ing the Court of Appeals’ ruling as “[e]xtending the

NPDES to cover forest road runoff”). These scenarios

attempt to expand the Court of Appeals’ ruling well

beyond its specific facts. In so doing, Petitioners’ Amici

10

fail to respect the limited scope of the Court of Ap-

peals’ ruling.

The logging roads at issue, although owned by

the State of Oregon, are specifically designated as

“timber hauling routes.” Joint Appendix (“JA”) at 7-8,

19-20 (NEDC’s First Amended Complaint). The

logging roads are maintained by four logging com-

panies as a condition of their licenses to conduct

industrial scale logging in the Tillamook State Forest.

Id. at 19-20. The roads are “primarily used by the

[timber companies] to gain access to logging sites and

to haul timber out of the forest.” Petition Appendix

(“Pet. App.”) at 45-46. The Court of Appeals empha-

sized the importance of the road’s primary use to its

ruling that the road’s storm water discharges are

associated with industrial activity:

We recognize that logging roads are often

used for recreation, but that is not their pri-

mary use. Logging companies build and

maintain the roads and their drainage sys-

tems pursuant to contracts with the State.

Logging is also the roads’ sine gua non: If

there were no logging, there would be no log-

ging roads.

Id. There also is no dispute that the logging roads at

issue are used by the logging companies to access

their other log processing facilities. Jd. And EPA’s own

regulations include logging operations as an indus-

trial activity, identified by Standard Industrial Clas-

sification (“SIC”) Code 2411. Id. at 44-45.

Bi

Because the discharges of pollutants alleged in

NEDC’s complaint plainly qualify as “discharges

of stormwater associated with industrial activity,”

they require an NPDES permit. JA at 3, 14, 20-24,

31-35. See 33 U.S.C. § 1342(pX2)(B); 40 C.FR.

§ 122.26(a)(1Xii) and (eX(1)(i). The Court of Appeals

did not rule, as Petitioners’ Amici suggest, that every

road, or every non-commercial] harvest of trees by a

property owner, triggers an NPDES permitting

process under Congress’ industrial storm water pro-

vision. The dire consequences predicted by the vari-

ous Petitioners’ Amici are nothing more than red

herrings attempting to divert the Court from the

specific facts and limited scope of the Court of Ap-

peals’ ruling.

II. The CWA Does Not Require That An Indi-

vidual Permit Be Issued For Every Point

Source Or Every Landowner.

Petitioners’ Amici briefs expend considerable

effort inflating the number of NPDES permits that

they predict will have to be processed and issued if

the Court of Appeals’ decision is upheld. Relying

on their unsubstantiated, exaggerated numbers, Pe-

titioners’ Amici then predict chaos will ensue and

EPA’s and the State’s NPDES-permitting programs

will grind to a halt. See, e.g., State of Arkansas Ami-

cus Brief at 19; American Forest Research Council

Amicus Brief at 10; Pacific Legal Foundation Amicus

Brief at 13-15. None of the Petitioners’ Amici’s

self-serving exaggerations reflect the reality of the

12

NPDES permitting program’s general permitting

provisions or the existing NPDES general permits

issued for every State and territory of the country

that already are available for storm water discharges

from industrial logging operations.

Both EPA and delegated States may issue gen-

eral permits to regulate categories of dischargers. 40

C.F.R. § 122.28. EPA’s regulations expressly authorize

the use of general permits for “Storm water point

sources.” 40 C.F.R. § 122.28(a)(2\i). Contrary to the

Amici States’ assertion, the general permit regulation

does not require the States to first “conduct an inven-

tory of the thousands, and in some instances millions,

of miles of forest roads ...” before a general permit

can be issued. For “categories or subcategories of

point sources other than storm water point sources([,]”

Section 122.28(a)(2) does require EPA and States to

find that the point source categories involve the same

or similar operations, discharge the same types of

waste, and require the same effluent limitations and

monitoring. 40 C.F.R. § 122.28(aX2)(inA)(D). Amici

States simply ignore that EPA authorizes general

permits for storm water discharges without those

findings.

13

Ill. Logging Road Dischargers Already Can

Satisfy Their Duty To Obtain An NPDES

Permit By Enrolling In Existing General

Permits For Storm Water Associated With

Industrial Activity.

General NPDES permits already have been

issued and can be relied upon by any discharger of

storm water associated with industrial activity any-

where in the United States or its territories. States

and EPA were obligated to issue NPDES permits

for industrial storm water discharges by not later

than February 4, 1991. 33 U.S.C. § 1342(p)4)(A).°

Both EPA and the States have issued nation-wide

(in the case of EPA) or state-wide general permits for

industrial storm water discharges. Environmental

Protection Agency, “Authorization Status for EPA’s

Stormwater Construction and Industrial Programs,”

http://cfpub.epa.gov/npdes/stormwater/authorizationstatus.

cfm (last visited October 18, 2012). With the excep-

tion of Massachusetts, New Hampshire, New Mexico

and Idaho, every other State already has issued a

statewide general permit for industrial storm water

discharges. Jd. EPA’s nation-wide permit covers those

four States as well as remaining territories, a few

federal facilities, and Indian Country. Jd.

* Congress provided an extension of time for certain mu-

nicipalities discharging storm water associated with industrial

activities. Intermodal Surface Transportation Efficiency Act of

1991, Pub. L. No. 102-240, §1068, 105 Stat. 1914, 2007-2008

(1991).

14

Industrial logging road operators already could

comply with these general permits to satisfy their

permit obligation. For example, EPA’s 2009 Multi-

Sector General Permit For Stormwater Discharges

Associated With Industrial Activity (“MSGP”), origi-

nally issued in 1995, specifically identifies SIC Code

2411 as an industrial sector that is governed by

the MSGP. Environmental Protection Agency, Multi-

Sector General Permit For Stormwater Discharges

Associated With Industrial Activity (MSGP), § 8.A.6,

App. D-2 (May 27, 2009), http://www.epa.gov/npdes/pubs/

msgp2008_finalpermit.pdf. SIC Code 2411 defines

“logging” as “establishments primarily engaged in

cutting timber and in producing... primary forest or

wood raw materials ... in the field.” Pet. App. 45.

To obtain NPDES permit coverage under the MSGP,

an industrial logging road operator or owner must file

a “notice of intent.” MSGP, § 1.3.1. The permittee

would have to implement best management practices

(“BMPs”). Id., § 2.1. The permittee would need to

prepare a storm water pollution prevention plan de-

scribing the BMPs applicable to their logging roads.

Id., § 5. By design, the MSGP is imbued with flexibil-

ity to allow the variety of storm water discharges to

adjust some of the requirements in order to ac-

commodate the variety, type, and sizes of operations.

For example, where a logging road has two or more

outfalls that the discharger “believe[s] discharge sub-

stantially identical effluents,” quarterly visual obser-

vations may be done on a rotating basis rather than

for each outfall every quarter. Jd., § 4.2.1. Likewise,

the number of outfalls from which storm water is to

15

be sampled also can be reduced based on the presence

of substantially identical outfalls with similar ex-

posed pollution sources, and similar control measures

and runoff volumes. Id., § 6.1.1. Nor are dischargers

enrolled in the MSGP required to submit new appli-

cations every five years in order to maintain their

coverage. Id., § 1.3.2.

The many existing State industrial storm water

permits are largely modeled on the MSGP, containing

the same basic enrollment requirements and flexibil-

ity to manage the visual inspections and monitoring,

especially for larger facilities. See, e.g., California

State Water Resources Control Board, NPDES Permit

No. CAS000001, http://www.swrcb.ca.gov/water_issues/

programs/stormwater/docs/induspmt.pdf; Texas Com-

mission on Environmental Quality, General Permit to

Discharge Under the Texas Pollutant Discharge

Elimination System, General Permit No. TXR050000,

http://www.tceq.texas.gov/assets/public/permitting/storm

water/txr050000.pdf; Oregon Department of Envi-

ronmental Quality, General Permit NPDES Storm

Water Discharge Permit, Permit No. 1200-Z, http//Awww.

deq.state.or.us/wq/wqpermit/docs/general/npdes1200z/

permit2012.pdf. These permits have been in place for

15 years or longer and are designed to accommodate

thousands of permittees, and have done so without an

undue burden on the overseeing state agencies or

EPA.

As a result, and certainly in the near term, in-

dustrial logging road operators or owners can simply

16

plug in to the existing general NPDES permits which

already cover their discharges. Contrary to Petitioners’

Amici’s claims, no time is necessary for any State

agencies or EPA to issue a new industrial storm water

general permit to address industrial logging roads.

The deluge of new permits, “chaos” and general as-

sertions of infeasibility predicted by various Peti-

tioners’ Amici are not based on reasoned analysis of

the existing regulations or permitting systems, but

rather unconstrained advocacy positions.

IV. NPDES Permits Focus On The Precise Lo-

cations Where Logging Roads Discharge

Pollutants To Waters And Will Encourage

Logging Roads To Maximize The Use Of

Non-Point Source BMPs That Eliminate

Or Reduce Point Source Discharges.

A number of Petitioners’ Amici claim that apply-

ing the NPDES permitting program to logging roads

would undermine or unnecessarily replicate the

BMP-based regulations currently relied upon by the

States and federal agencies to maintain logging roads

and address the roads’ sediment and turbidity pollu-

tion. See State of Arkansas Amici Brief at 15-19. On

the contrary, a general NPDES permit for logging

road discharges compliments the non-point source

BMP programs already in place by encouraging

logging road operators to fully implement non-point

source BMPs and limit the number of point sources

discharging sediment from their roads. By taking

measures to ensure as much as possible of their

17

logging road discharges filter into adjacent hillsides

and lands and do not enter any stream or waterbody,

operators would keep the vast majority of logging

road discharges out of the NPDES permit’s provi-

sions. The NPDES permit for a logging road would

directly ensure the proper implementation and moni-

toring of BMPs only on the logging roads’ remaining

point source discharges, i.e., stream-crossing cul-

verts and other discharges directly into streams and

channels — the source of water pollution from logging

roads.

NPDES permits for storm water discharges may,

and do, rely upon BMPs as the basis for effluent

limitations. 40 C.F.R. § 122.44(k) (NPDES permits

shall include “Best management practices (BMPs) to

control or abate the discharge of pollutants when: ...

(2) Authorized under section 402(p) of the CWA [33

U.S.C. § 1342(p)] for the control of storm water dis-

charges”). See Waterkeeper Alliance, Inc. v. EPA, 399

F.3d 486, 502 (2d Cir. 2005) (“site-specific BMPs are

effluent limitations under the CWA”). Storm water

discharges from unpaved logging roads are dominat-

ed by a single pollutant — sediment or turbidity. JA at

15. The BMPs addressing potential sediment and

turbidity discharges from logging roads are relatively

well-understood. See, e.g., Texas Forest Service, Texas

Forestry Best Management Practices (August 2004),

http:/txforestservice.tamu.edu/uploadedfiles/sustainable/

bmp/bmpbookindd.pdf. See also JA at 78-84 (Oregon

Department of Forestry, Forest Practices Technical

Note No. 8, Version 1.0 (June 20, 2003)). Although

18

different BMPs would apply to different road-surfaces

and locations, the suite of typical BMPs is the same.

See id. Numerous BMP manuals have been published

describing the typical BMPs applicable to unpaved

logging roads. See, e.g., id. Such BMPs include, for

example, properly spaced cross-drains, culverts,

rolling dips, wing ditches, and water bars that chan-

nel storm water off of the road onto the adjacent slope

or area in smaller volumes that seep into the adjacent

soil without forming a gulley or erosion channel or

discharging to waters. See Texas BMPs at 30-47; JA

at 78-84. As a result, on a well-maintained logging

road, the volume of polluted runoff discharged from

point sources to a stream or creek should be limited

to readily-identifiable and relatively small portions of

the logging road. The levels of sediment and turbidity

in the remaining storm water flows that are chan-

neled to waters of the United States at stream cross-

ings or adjacent waters would be controlled through

the use of stone or aggregate on road surfaces, rip-

rap, geotextile fabric, velocity reducers and other

erosion control measures. Texas BMPs at 48-49.

Applying the NPDES permitting requirement to

logging roads encourages logging operators to vigor-

ously implement these runoff-reducing BMPs. On a

properly maintained logging road, the vast majority

of runoff locations should be dispersed via cross-

drains onto the adjacent lands rather than into any

gullies, creeks or streams. These areas would not be

point sources, never discharging to any waters or

their tributaries.

19

The NPDES permitting requirements would ap-

ply to make sure actual point source discharges were

limited and properly controlled at stream crossings

where the logging road passes over a water of the

United States or its tributary, or other outfalls where

logging roads are adjacent to stream channels. The

NPDES Permit, because of its focus on point source

discharges, would focus on the logging roads’ key

problem areas where sediment is conveyed to water-

ways. By layering in better information about these

actual discharge locations, reasonable monitoring re-

quirements, an] assuring that those discharges

comply with applicable water quality standards, the

NPDES program would ensure that shortcomings in

the existing forestry programs in Oregon and around

the country would be addressed by the expert water

quality agencies and meet the important water

quality goals of the Clean Water Act. See Northwest

Environmental Advocates Amicus Curiae Brief.

V. NPDES Permits Have Been Readily Devel-

oped For Much More Complicated Storm

Water Discharges Than Those From Log-

ging Roads.

Petitioners’ Amici argue that attempting to develop

NPDES permits for logging roads will overwhelm

EPA and the various State permitting agencies. See,

e.g., Pacific Legal Foundation Brief at 15. This asser-

tion overlooks the fact that logging road operators

may enroll right now under existing NPDES general

permits. See, supra, pp. 13-16. And even if the States

20

or EPA opted to prepare specific general permits for

industrial logging roads, such permits would be much

simpler than the many storm water permits already

issued by the States and EPA.*

EPA and the States have issued NPDES permits

that effectively regulate storm water discharges from

cities, including their roads, from highway systems,

and from a wide variety of “industrial” facilities. See

33 U.S.C. § 1342(p)(2)-(3). Discharges from a large

city’s storm water system are infinitely more varied

in terms of types of pollutants, volumes of storm

water, and variety of point sources than storm water

discharges from logging roads. 55 Fed. Reg. 47990,

47991-92 (Nov. 16, 1990). Storm water discharges

from highways and municipal roads also are gener-

ally larger and more varied than discharges from a

logging road. See, e.g., Michael E. Barber, et al., “Pre-

liminary Environmental Investigation Of Heavy Metals

In Highway Runoff,” p. 1 (Nov. 21, 2006), http://www.

wsdot.wa.gov/NR/rdonlyres/A3518878-820F -4EBD-9D47-

C518AA2F8C91/0/PrelimEnvironmentalInvestigation

HeavyMetals.pdf (“Federal Highway Administration

(FHWA) identifies cadmium, chromium, copper, iron,

lead, nickel, and zinc as the metals typically associated

* Amici Pacific Legal Foundation’s attempt to compare a

general storm water permit to EPA’s initial effort to craft a

NPDES permit for ballast water discharges from ships is un-

helpful. Pacific Legal Foundation Amici Br. at 16. Ballast water

discharges are not storm water. Treating ballast from ships

raises entirely unique technical questions unrelated to logging

roads.

21

with highway runoff”). Industrial facilities spanning

a large array of activities, including many that are

not traditionally identified as “industrial” such as

construction sites, landfills, and open dumps — each

with its owa assortment of pollutant sources, facili-

ties and operations — discharge storm water with a

large variety of pollutants from every conceivable

form of outfall. See MSGP at 47-138.

The NPDES permitting system has proven itself

adaptable to handle these sprawling water pollution

challenges, allowing for effective regulation and over-

sight without undue burdens disproportionate to

addressing the pollution discharges at issue. Storm

water discharges from logging roads are relatively

homogeneous when compared to these other storm

water discharges regulated by NPDES permits under

the CWA. There is no empirical evidence demon-

strating that the NPDES permitting program cannot

readily address the relatively simple category of

logging road point source discharges.

NPDES permits have been issued that are effec-

tively regulating storm water discharges from roads.

For example, in 1992, pursuant to its delegated

NPDES-permitting authority, the State of California

issued and continues to maintain and update an

NPDES permit that covers all point source discharges

from the California Department of Transportation’s

highway system. California State Water Resources

Control Board, NPDES Permit No. CAS000003, http://

www.swrcb.ca.gov/water_issues/programs/stormwater/

docs/caltrans/caltranspmt.pdf. The breadth of this

22

general NPDES permit and the variety of roadway

point sources it addresses dwarfs the relatively

repetitive discharge-types associated with unpaved

logging roads. See Caltrans, Statewide Stormwater

Management Plan (May 2003), http://www.dot.ca.gov/

hq/env/stormwater/pdf/CTSW_RT_02_008.pdf. Other

states also have issued NPDES permits for discharges

from highways and roads. See, e.g., New Jersey Dep’t

of Environmental Protection, Highway Agency Storm-

water General Permit, NJPDES Permit No. NJ0141887,

http://www.nj.gov/dep/dwq/pdf/existing_highway_permit_

final_2_27_09.pdf; State of Washington, Department

of Ecology, Washington State Department of Trans-

portation NPDES and State Waste Discharge Permit

for Municipal Stormwater, Permit No. WAR043000A,

http//www.ecy.wa.gov/programs/wa/stormwater/municipal/

wsdot/docs2011/wsdotpermit030712.pdf.

Similarly, throughout the country, EPA and the

46 delegated States have issued NPDES permits for

large, medium, and small municipalities, including

storm water discharges from each and every road

included in those cities’ and counties’ jurisdiction.

See, e.g., California Regional Water Quality Control

Board, Central Valley Region, NPDES No. CAS082597,

Stormwater Discharges From Municipal Separate

Storm Sewer System, Sacramento County (Sept. 11,

2008) (“Sacramento Municipal Permit”), http://www.water

boards.ca.gov/rwqcb5/board_decisions/adopted_orders/

sacramento/r5-2008-0142.pdf. Again, the variety of dis-

charges and outfall types addressed by these munici-

pal permits is much more diverse than the discharges

23

and outfall types encountered on logging roads. Large

and medium municipalities include, generally, urban

areas with populations of 250,000 and 100,000 per-

sons or greater, respectively. 40 C.F_R. § 122.26(b)(4)

& (7). The larger municipality permits tend to be

issued on a city- or county-wide basis. See, e.g., Sac-

ramento Municipal Permit. As for smaller municipali-

ties, that term applies not only to smaller cities but

also to other public entities, including sewage dis-

tricts, flood control districts, and similar entities. 40

C.F.R. § 122.26(b)(16). These NPDES permits have

been issued on a state-wide basis. See California State

Water Resources Control Board, NPDES Permit No.

CAS000004, http://www.waterboards.ca.gov/water_issues/

programs/stormwater/docs/final_sm_ms4_fact_order. pdf.

The small municipal permit requirements specifically

cover “highways and other thoroughfares.” 40 C.F.R.

§ 122.26(b\(16 iii).

The “multi-sector” NPDES permits issued for the

last twenty years to industrial storm water dis-

chargers also are a testament to the ability of EPA

and the States to issue a single permit covering entire

States, or in the case of EPA, the remainder of the

country and its territories, that effectively address

unquantified numbers of point source discharges in

every variety of climate and location and covering a

diverse array of industry types and associated pollu-

tants. See, e.g., California State Water Resources

Control Board, NPDES Permit No. CAS000001, http://

www. waterboards.ca.gov/water_issues/programs/storm

water/docs/induspmt.pdf. Access roads are included.

24

Id., Attachment 4, p. 2. The range of the industrial

storm water NPDES permits is much greater than

that necessary to address the relatively simple cate-

gory of storm water discharges from logging roads.

Indeed, as discussed above, the existing industrial

storm water NPDES permits already encompass or

can be readily applied to storm water discharges from

logging roads.

Lastly, industrial sectors involving large net-

works of paved and unpaved roads have been permit-

ted through industrial storm water NPDES permits.

Oil and gas fields which have experienced spills of

oil or other hazardous materials in quantities re-

portable to EPA are subject to the industrial storm

water NPDES permitting requirements. 40 C.F.R.

§ 122.26(c\1Xiii); 60 Fed. Reg. 50913 (Sept. 29, 1995)

(“[t]his includes storm water discharges from access

roads....”). For example, in California, several oil

and gas fields operated within the State encompass-

ing large geographic areas, are enrolled in the Gen-

eral Industrial Stormwater Permit. See, e.g., Vintage

Production California LLC, Notice of Intent to Com-

ply With the Terms of the General Permit to Dis-

charge Storm Water Associated With Industrial

Activity (WDID 4-561-020994) (July 2, 2007) (oil and

gas field facility encompassing 4,236 acres), posted at

https://smarts.waterboards.ca.gov/smarts/faces/Public

DataAccess/PublicNoiSearchResults.jsp; Ventura County,

Resource Management Division, Rincon/Grubb Oil

Fields, Aerial Photography Map (Dec. 21, 2011), http://

www.edcnet.org/learn/current_cases/cwa/Rincon-Grubb_

25

OilFieldMap.pdf (showing extensive road network). It

is no less feasible for industrial logging operations to

enroll in a general permit for storm water discharges

from their roads.

The authority and ability of EPA and the dele-

gated States to issue NPDES permits addressing

storm water discharges from roads in both municipal

and industrial contexts addressing thousands of cities

and tens of thousands of industrial facilities through-

out the country directly refutes the dire and unsub-

stantiated predictions presented by various Amici in

support of Petitioners. “Chaos” has not resulted from

EPA’s and the State’s issuance of NPDES permits gov-

erning municipalities, transportation departments

and industrial roads. Requiring industrial logging

road operators or owners to access the existing gen-

eral NPDES industrial storm water permits adopted

by EPA and 46 States is not a significant burden for

any discharger or regulatory agency.

+>

CONCLUSION

The NPDES permitting program is one of the

most successful and effective pollution control pro-

grams ever devised. See, e.g., California Regional Water

Quality Control Board, San Francisco Bay Region,

“Wastewater,” http://www.swrcb.ca.gov/sanfranciscobay/

water_issues/programs/wastewater.shtml (“The NPDES

program is one of the most successful environmental

26

programs ever implemented”); Environmental Protec-

tion Agency, “National Pollutant Discharge Elimina-

tion System (NPDES),” http://cfpub.epa.gov/npdes/

(“Since its introduction in 1972, the NPDES permit

program is responsible for significant improvements

to our Nation’s water quality”). The EPIC Amici re-

spectfully request that the Supreme Court uphold the

Ninth Circuit Court of Appeals’ decision enforcing the

Clean Water Act’s clear requirement that operators of

roads primarily involved in logging obtain and comply

with NPDES permits applicable to their point source

discharges.

Respectfully submitted,

MICHAEL R. LOZEAU

Counsel of Record

LOZEAU DrRuRY LLP

410 12th Street, Ste. 250

Oakland, CA 94607

(510) 836-4200

michael@lozeaudrury.com

SHARON E. DUGGAN

LAW OFFICES OF

SHARON E. DUGGAN

370 Grand Avenue, Ste. 5

Oakland, CA 94610

(510) 271-0825

foxsduggan@aol.com

Attorneys for Amici Curiae Environmental

Protection Information Center, The Sierra Club,

Waterkeeper Alliance, Rogue Riverkeeper,

Puget Soundkeeper Alliance, Wildlands CPR,

and Alliance For The Wild Rockies

October 23, 2012