Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338, 11-347

IN THE

Supreme Court of the Anited States

DouG DECKER, et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et ai.,

Respondents.

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

AMICI CURIAE BRIEF OF

NATIONAL GOVERNORS ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL CONFERENCE OF STATE

LEGISLATURES, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

AND COUNCIL OF STATE GOVERNMENTS

IN SUPPORT OF PETITIONERS

LISA E. SORONEN RODERICK E. WALSTON

STATE AND LOCAL Counsel of Record

LEGAL CENTER SHAWN HAGGERTY

444 North Capitol St NW ANDRE MONETTE

Suite 515 BEST BEST & KRIEGER LLP

Washington, D.C. 20001 2001 North Main St

(202) 434-4845 Suite 390

lsoronen@sso.org Walnut Creek, CA 94596

(925) 977-3300

roderick.walston@bbklaw.com

Attorneys for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

IE vcnserenccsnnssndcssintenvenenstconeneniacnoesssssrsnces

Il.

Ill.

UNDER THE CLEAN WATER ACT,

SILVICULTURAL STORMWATER

RUNOFF IS A NONPOINT SOURCE

DISCHARGE REGARDLESS OF

WHETHER IT IS CHANNELED OR

FLOWS NATURALLY...............:::ceeseereeeees

ASSUMING ARGUENDO THAT THE

CLEAN WATER ACT IS AMBIGUOUS,

THE EPA’S SILVICULTURAL RULE IS

ENTITLED TO DEFERENCE UNDER

THE CHEVRON DOCTRINE _BE-

CAUSE THE RULE LIMITS RATHER

THAN EXPANDS FEDERAL AUTHOR-

ITY TO REGULATE SUBJECTS

TRADITIONALLY REGULATED BY

STATE AND LOCAL GOVERNMENTS .

THE NINTH CIRCUIT DECISION

WILL HAVE SIGNIFICANT, ADVERSE

IMPACTS ON STATE AND LOCAL

(i)

14

ii

TABLE OF CONTENTS—Continued

Page

A. The Ninth Circuit Decision Poten-

tially Imposes Significant Costs And

Liabilities On State And _ Local

Rs ccicsiinincantuioniinistiniingennibaneinns 23

B. The NPDES Permitting Process Is

Lengthy And Time Consuming, And

State And Local Governments Would

Incur Significant Additional Burdens

And Costs If They Assume NPDES

Authority Over Silvicultural Storm-

I ID vcticinccnccecctncsenscentccccee: 26

C. The Environmental Impacts Asso-

ciated With Forest Roads Are Ade-

quately And Appropriately Addressed

Under The States’ Nonpoint Source

iiiicncdccisicnbinadeveiciinnsoniauniinuntaeciens 28

D. Requiring NPDES Permits For

Forest Roads Would Limit Public

Access To Public Lands....................... 30

E. Requiring NPDES Permits For Silvi-

cultural Activities Would Potentially

Have Adverse Economic Consequen-

ces Without Providing Any Signifi-

cant Environmental! Protection........... 31

SD IIIIIETT sescsnenccnunensotensnnsnicscosstacinenenessusienate 33

TABLE OF AUTHORITIES

CASES Page(s)

Abbott Laboratories v. Gardner, 387 U.S.

| __HRE REET RESTS e OES ae: ae FORE EE ae re nO ee 11

Arkansas v. Oklahoma, 503 U.S. 91 (1992). 15

Babbitt v. Sweet Home Chapter, 515 U.S.

te ee eiinccctcsinsictenndieninnengeiadapeiiianiinndiniianions 15, 20

BFP v. Resolution Trust Corp., 511 U.S.

ee ee iiicciseisnitesieieiieiesicicndnichiiiceideinbiitaditniotniasedn 17

California Building Industry Association

v. State Water Resources Control Board,

Cal. Superior Court, Sacramento County,

No. 34-2009-80000338CU-WM-GDS (Dec.

iis STE haiesesceebdeniishiimiguindaieninaasinemtiamandaiaiiibastinna 27

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

Defense Council, Inc., 467 U.S. 837

GE ciniesesncreviannnsntnnennetiisidinmnnnetandnnsesinesal passim

Cipollone v. Liggett Group, Inc., 505 U.S.

I iianiibnesnentiincnitannpanibindienindinisniatbaies 17

District of Columbia v. Schramm, 631 F.2d

es GL DIED cnbicccensnniiccenneincessasaceess 23

FCC v. Fox TV Stations, Inc., 556 U.S. 502

ee iiiciiiliceesestninnceeninthiniiainieinieniinaninisaiasehpanninticanpmiaiiitn 16

Mayo Foundation v. United States, 131

es Pe iitsiiissisnncipecninimannappiietaamaieine 15

National Association of Home Builders v.

Defenders of Wildlife, 551 U.S. 644

eae dipistiilaciiseasinatbbieiaesciateatilidiendaiaiaiaiueniied 20, 21, 22

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Northwest Environmental Defense Center

v. Brown, 640 F.3d 1063 (9th Cir.

Oregon Natural Desert Association uv.

Dombeck, 172 F.3d 1092 (9th Cir. 1998).. 3

Pronsolino v. Nastri, 291 F.3d 1123 (9th

I MITT ci scnsinniecahiibaitatietteeiniiineenenieaeaibistiiaiadibede 3,9

Rapanos v. United States, 547 U.S. 715

I ihsischicitepniciniiadiatiinimiiieibcstcninainiditndl 17, 19, 20, 22

Rice v. Santa Fe Elevator Corp., 331 U.S.

Tt icitininsiisisiennsniciiciicieansseinadenautaddiniaininiaan 17

Shell Oil Company v. Train, 585 F.2d 408

IN Sit iiciisicensiniennniagembicuneeiiipiniasiniedals 23

Small v. United States, 544 U.S. 385

ern scccisihisiciataninicelssiicidiuilihaiel enieialedioeasbibaliiiaie 1]

Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers,

191 F.3d 845 (7th Cir. 1999), rev'd 531

ee Se iniccincstocanrnsnsinndinciemnctvamunonid passim

State of California v. U.S. Department of

Navy, 845 F.2d 222 (9th Cir. 1988).......... 23

United States v. Lopez, 514 U.S. 549 (1995) 17

United States v. Morrison, 529 U.S. 598

EPO Re ease ae ENN 17

CONSTITUTION

of § eS 8 ee 17

Vv

TABLE OF AUTHORITIES—Continued

STATUTES Page(s)

16 U.S.C. § 1536(a)(2).......ccccsccsesseceeseceesecseees 21

16 U.S.C. § 1536(c(1)....c.cecescesesceceseeseseeseeees 21

OI, BI ineeecciccesenecsccenscciesecncnes 9

33 U.S.C. § 1251(aX(2)....ccccesecescecseseccseeseeeene 31

SL Ko Tne 9, 10

TTR 9

I siateriannnsnsaiesiniaienniain 3, 9, 28

BS U.S.C. § 1311 (a).........0...ccccecoscecoscecosesceseee 3

Sk | a ae 9

BS U.S.C. § 1314 (f)........0.-.cscccecescsccsesceseceese 3, 9, 28

33 U.S.C. § 1314 (f(2MA) ....ceececceceseeceeseeeeseens 11

BS U.S.C. § 1BBO ...a...cnccesoscecoscescsseccscoscesesceeee 3

I, © I ineescnecescsceceenescnsnascoseosete 3

BB U.S.C. § 1342(b).............ccsceccccecescesossecoscesees 9,21

BS U.S.C. § 1942(p).............cescescecescesesceseseese. 4

33 U.S.C. § 1342(p)(2) .o..eccececsecsssesesessesesseees 4

BS UB.C. § IDEM BMBMA)....-2-2-0.00.0-cn00ecesessess 8,13

3S U.S.C. § 1844(a).........-.ceccscecsccecessesesssoeeess 18

SL ok, : a Te 18

kn 3

WTR, © I isscscsiiicisinsecscsnitincinses 5, 7, 10

TES ie: aaa ew 9, 23

Gr a © I ce ccsccsccccceccnsasssnsnsensescnces 26

vi

TABLE OF AUTHORITIES—Continued

Page(s)

GF le ID eeteentanevscesecensscnnccnsrnconens 25

ee Be icceninnpnticncscencnninpinsemnsin 26

40 CFR. § 122.226 gq) .....0.0..00.cnccccsessscccssesseess 26

BD GFF Bi G BE ccccccccccecccccccsccsccscscosesece 26

40 C.F.R. § 122.26(b)(14)......... ssidalaemmaliindiadecis 4

PF ee 26

een 3, 4,8

i ininntsinsvcdentenentinisdnenmennones 26

ar FeO ND ceccncsvescctosensessesveseenesssene 26

et AE 8 eee 26

a ee I eiccesectensicsincsoscnastnsicccesssancnss 26

es Oe EEE bdiicsevtncecnsstiininisntenssnmesiinens 26

ee RE tiicinstcencicsacnecicinccinceniamnisione 26

at Oe SIE ‘ccinincesninnisnsecssunieiieiseninannnde 26

ee Oe Re siihcctcctinncesentcniactntincenennionss 27

ee ID caenetdcecccscecesenscctanennnensensenes 26

es Oe IE ciicincdenncnenccnmnsisdtinennsiennendinin 26

I iiicnestcsnnnnvinnienidiiaininidimnsinnnonie 26

I iosininstnndiacninnsindiguaianienmpnnieden 26

es Be I iiiccicteniscccinnntendsemmnenimiions 26

So ata eetaitiininliibsionalente 26

es HID snstnincisiincnscsisecedatennindionniosden 21

ORE. REV. STATS. §§ 468B.015-468B.050 ..... 29

Vl

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page(s)

41 Fed. Reg. 6,281 (1976)..................ccceeseeees 4,12

55 Fed. Reg. 48,027 (Nov. 16, 1990) ............ 23

66 Fed. Reg. 3,245 (Jan. 19, 2001)............... 24

77 Fed. Reg. 30,475 (May 23, 2012)............. 24

ENVIRONMENTAL PROTECTION AGENCY,

CONSTRUCTION GENERAL PERMIT (2012),

http://www.epa.gov/npdes/pubs/cgp2012_

irrnrsenrsinnentitinniiecnsnionisienenntonn 25

FREDERICK CUBBAGE & ROBERT ABT,

POTENTIAL ADMINISTRATIVE AND ECO-

NOMIC IMPACTS OF NPDES PERMIT

REQUIRE-MENTS FOR FOREST ROADS IN

THE SOUTH (Dec. 7, 2011), http://nafo

alliance.org/wp-content/uploads/Road-Per

mit-Costs-in-South1.pdf......................000008 32

OREGON DEPARTMENT OF FORESTRY,

FOREST ROADS MANUAL (July 2000),

http://cms.oregon.gov/odf/pages/state_for

ests/roads_manual.aspX................00cceeseeeee 29-30

OREGON DEPARTMENT OF FORESTRY,

INSTALLATION AND MAINTENANCE OF

Cross DRAINAGE SYSTEMS ON FOREST

ata tec 29

Road Maintenance, THE FOREST PRACTICE

NOTES (Oregon Department of Forestry,

Salem, Oregon), July 1999, http://cms.

oregon. gov/odf/privateforests/docs/roadm

TABLE OF AUTHORITIES—Continued

Page(s)

State Program Status, ENVIRONMENTAL

PROTECTION AGENCY, http://cfpub.epa.

gov/npdes/statestats.cfm (last visited

Bete TE I cossiscinsccsssoicoeenicauaeuataeees 23

INTEREST OF THE AMICUS CURIAE'

The amici curiae are as follows:

The National Governors Association (“NGA”),

founded in 1908, is the collective voice of the nation’s

governors. NGA’s members are the governors of the

50 states, three territories, and two commonwealths.

The National Association of Counties (“NACo”) is

the only national organization that represents county

governments in the United States. NACo provides

essential services to the nation’s 3,068 counties through

advocacy, education, and research.

The National Conference of State Legislatures

(“NCSL”) is a bipartisan organization that serves the

legislators and staffs of the nation’s 50 states, its

commonwealths, and territories. NCSL provides

research, technical assistance, and opportunities for

policymakers to exchange ideas on the most pressing

state issues. NCSL advocates for the interests of

state governments before Congress and federal agen-

cies, and regularly submits amicus briefs to this

Court in cases, like this one, that raise issues of vital

state concern.

The International City/County Management Asso-

ciation (““ICMA”) is a nonprofit professional and edu-

cational organization of over 9,000 appointed chief

executives and assistants serving cities, counties,

towns, and regional entities. ICMA’s mission is to

create excellence in local governance by advocating

* The parties have consented to the filing of this amicus

curiae brief, and their letters of consent are on file with the

Clerk (Rule 37.2). This brief was not written in whole or in part

by the parties’ counsel, and no one other than the amicus made

a monetary contribution to its preparation (Rule 37.6).

2

and developing the professional management of local

governments throughout the world.

The Council of State Governments (“CSG”) is the

nation’s only organization serving all three branches

of state government. CSG is a region-based forum

that fosters the exchange of insights and ideas to

help state officials shape public policy. This offers

unparalleled regional, national, and international

opportunities to network, develop leaders, collabor-

ate, and create problem-solving partnerships.

The amici represent various state and local gov-

ernmental organizations that have an interest in the

proper implementation of the Clean Water Act

(“CWA”). The CWA provides for federal regulation of

point source discharges and for state and local regu-

lation of nonpoint source discharges. The U.S. Envi-

ronmental Protection Agency’s (“EPA”) Silvicultural

Rule interprets the CWA as providing that storm-

water runoff from forest lands, with exceptions not

relevant here, is a nonpoint source discharge subject

to state and local regulation. The Ninth Circuit,

however, disregarded the EPA’s Silvicultural Rule,

and instead interpreted the CWA as providing that

such stormwater runoff is a point source discharge

subject to federal regulation, if the runoff has been

channeled rather than flows naturally. In the amici’s

view, the Ninth Circuit should have deferred to the

EPA’s Silvicultural Rule, under this Court’s decision

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

Council, Inc., 467 U.S. 837 (1984), rather than inter-

preting the statute de novo as providing that chan-

neled stormwater runoff from forest lands is a point

source discharge. State and local governments fre-

quently own logging roads and regulate nonpoint

3

source discharges. Therefore, the amici have a

significant interest in this case.

STATUTORY AND REGULATORY

BACKGROUND

The Clean Water Act (“CWA”) prohibits an

unauthorized “discharge of a pollutant,” 33 U.S.C.

§ 1311l(a), which is defined as an “addition” of a

“pollutant” to “navigable waters” from a “point source,”

id. at § 1362(12). The CWA establishes the National

Pollutant Discharge Elimination System (“NPDES”),

which authorizes the U.S. Environmental Protection

Agency (“EPA”) to issue a permit for the discharge of

a pollutant from a “point source.” Id. at § 1342(a).

The NPDES thus regulates discharges from point

sources. Under the CWA, discharges from nonpoint

sources are regulated by the states under their own

laws. Id. at §§ 1288, 1314(f, 1329; Pronsolino v.

Nastri, 291 F.3d 1123, 1126-27 (9th Cir. 2002); Ore-

gon Natural Desert Association v. Dombeck, 172 F.3d

1092, 1096 (9th Cir. 1998).

In 1976, the EPA adopted a regulation—the Silvi-

cultural Rule—defining a point source and nonpoint

source in the context of silvicultural stormwater

runoff. The Rule defines a “[s]ilvicultural point source”

as including four specific silviculturally-related

facilities—rock crushing, gravel washing, log sorting,

and log storage facilities—-when such facilities

discharge pollutants into waters of the United States.

40 C.F.R. § 122.27(b). The term does not, however,

include “non-point source silvicultural activities”

from which “there is natural runoff.” Jd. In adopting

the Rule, the EPA explained that although a point

source is defined in the CWA as a “discernible,

confined and discrete conveyance, including but not

4

limited to any pipe, ditch [or] channel,” a “proper

interpretation” of the CWA is that “ditches, pipes and

drains that serve only to channel, direct, and convey

nonpoint runoff are not meant to be subject to the §

402 permit program.” 41 Fed. Reg. 6,281, 6,282

(1976) (emphasis added). Thus, the Silvicultural

Rule provides that silvicultural stormwater runoff is

a nonpoint source discharge—except in specific enu-

merated situations not applicable here—regardless of

whether the runoff is channeled or flows naturally.

In 1987, Congress enacted the Water Quality Act

of 1987, which extends the NPDES to stormwater

discharges. 33 U.S.C. § 1342(p). The 1987 Act re-

quires the EPA to adopt regulations for five catego-

ries of stormwater discharges, including stormwater

discharges “associated with industrial activity.” Id.

at § 1342(p)(2). The EPA subsequently adopted reg-

ulations for stormwater discharges, which provide

inter alia that the term “industrial activity” “does

not include discharges from facilities or activities

excluded from the NPDES program under Part 122.”

40 C.F.R. § 122.26(b\14). The reference to Part 122

includes 40 C.F.R. § 122.27(b), which, as noted above,

provides that silvicultural stormwater runoff is gen-

erally considered a nonpoint source rather than a

point source discharge. Thus, the EPA’s stormwater

regulations do not change the EPA’s Silvicultural

Rule, which provides that silvicultural stormwater

runoff is a nonpoint source discharge regardless of

whether it is channeled or flows naturally.

5

SUMMARY OF ARGUMENT

This amicus brief sets forth the following argu-

ments:

1. The Ninth Circuit held that silvicultural storm-

water runoff is a point source discharge under the

Clean Water Act (“CWA”)—and thus subject to

regulation under the National Pollutant Discharge

Elimination System (“NPDES”)—if the runoff is

channeled rather than flows naturally. On the con-

trary, the CWA provides that silvicultural storm-

water runoff, even when channeled, is a nonpoint

source discharge subject to regulation under state

and local laws. Since Congress authorized state and

local governments to regulate nonpoint sources of

pollution, there is no basis for the Ninth Circuit’s

concern that silvicultural stormwater runoff will be

unregulated and the CWA’s goals impaired unless

such runoff is held to be a point source discharge

subject to regulation under the NPDES. Moreover,

the CWA defines a “point source” as not including

“agricultural stormwater discharges” and makes no

exception for stormwater discharges that are chan-

neled and those that are not, 33 U.S.C. § 1362(14).

Since silvicultural stormwater runoff is analogous to,

if not a form of, agricultural stormwater discharges,

silvicultura] stormwater runoff is also a nonpoint

source discharge, regardless of whether it has been

channeled. If the conclusion were otherwise, Con-

gress would have created an anomaly by providing

that channeled stormwater runoff is a point source

discharge if it is from forest lands but not if it is from

agricultural lands. Congress presumptively does not

create anomalies unless it clearly so provides.

2. Assuming arguendo that the CWA is ambiguous

concerning whether channeled silvicultural storm-

6

water runoff is a point source discharge or nonpoint

source discharge, the EPA’s Silvicultural Rule should

be upheld under the Chevron doctrine, under which

an agency interpretation of a statute is entitled to

deference if the statute is ambiguous and the agency

interpretation is permissible. Chevron U.SA., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S.

837 (1984). The Chevron doctrine applies because

the Silvicultural Rule limits, rather than expands,

federal authority to regulate subjects, such as water

use and land use, that are traditionally regulated

by state and local governments under principles

of federalism. The Ninth Circuit failed to grant

Chevron deference to the EPA’s Silvicultural Rule,

and interpreted the CWA de novo.

3. The Ninth Circuit decision adversely affects the

interests of state and local governments. Under

the decision, the states that administer their own

NPDES programs—currently, 46 states administer

such programs—would be required to regulate

channeled stormwater discharges as part of their

NPDES programs. Since there are a significant

number of forest roads in the nation, state and local

governments would bear a heavy regulatory and

financial burden if NPDES permit requirements

apply to individual stormwater discharges from these

roads. Further, state and local governments that

own or otherwise regulate forest lands may be poten-

tially responsible as “operators” of point source facili-

ties to obtain NPDES permits for stormwater dis-

charges from such forest lands, which would increase

the financial burdens on state and local governments.

State and local governments are currently, and

adequately, regulating stormwater discharges from

forest lands under their nonpoint source programs.

To require state and local governments to addi-

7

tionally regulate such discharges under their NPDES

programs would greatly increase the regulatory

burdens and costs to state and local governments

without providing commensurate additional protec-

tion of water quality on forest lands.

ARGUMENT

I. UNDER THE CLEAN WATER ACT, SILVI-

CULTURAL STORMWATER RUNOFF

IS A NONPOINT SOURCE DISCHARGE

REGARDLESS OF WHETHER IT IS

CHANNELED OR FLOWS NATURALLY.

The Ninth Circuit held that silvicultural storm-

water runoff is a point source discharge within the

meaning of the CWA if it is “channeled and

controlled” through a “discernible, confined, and dis-

crete conveyance,” such as a ditch, culvert, or chan-

nel, and is a nonpoint source discharge if it is not

“channeled and controlled” but instead “is allowed to

run off naturally.” Northwest Environmental Defense

Center v. Brown, 640 F.3d 1063, 1070-71, 1079-

80 (9th Cir. 2011) (hereinafter “Brown”). The court

stated that a “conveyance” that channels stormwater

runoff meets the definition of a “point source” under

the CWA. The CWA defines a “point source” as

“any discernible, confined and discrete conveyance,

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

tunnel” or other type of like conveyance. 33 U.S.C.

§ 1362(14); Brown, 640 F.3d at 1079. The court

concluded that the EPA’s Silvicultural Rule is invalid

to the extent that it “exempts” channeled silvicultural

stormwater runoff from NPDES permit require-

ments. Id. at 1078-80.’

* More precisely, the Ninth Circuit held that the “intent” of

the Silvicultural Rule is to “exempt” silvicultural stormwater

8

The Ninth Circuit also held that the Water Quality

Act of 1987, which extended the NPDES to storm-

water discharges, specifically provides that the

NPDES applies to “discharges associated with indus-

trial activity,” 33 U.S.C. § 1342(pX3XA), and that—

since logging activity is a form of “industrial

activity”—the 1987 Act also provides that channeled

silvicultural stormwater runoff is a point source dis-

charge within the meaning of the CWA. Brown, 640

F.3d at 1083-85.

In fact, the CWA contains several provisions and

indicia, which the Ninth Circuit did not mention or

apparently consider, supporting the conclusion that

silvicultural stormwater runoff is not a point source

discharge within the meaning of the CWA regardless

of whether it is channeled or flows naturally.

First, the CWA has the dual geals of promoting

improved water quality and preserving the states’

traditional authority to regulate water quality and

land and water development. The Ninth Circuit

decision altogether ignores and fails to consider the

runoff regardless of whether it has been “channeled,” but that

such a reading of the Rule is “inconsistent” with the CWA and

thus “invalid.” Brown, 640 F.3d at 1080. Contrary to the Ninth

Circuit’s view, the Silvicultural Rule does not “exempt” silvi-

cultural stormwater runoff from NPDES permit requirements,

but instead it defines the term “point source” as used in the

silvicultural] stormwater context. The Rule states, under

“Definitions,” that a “silvicultural point source means” certain

types of silvicultural activities, such as rock crushing and gravel

washing but that “[tlhe term does not include” other types of

activities “from which there is natural runoff.” 40 C.F-.R.

§ 122.27(b) (emphases added). Obviously an agency cannot grant

an exemption from a congressional regulatory enactment unless

Congress authorizes the agency to do so, but an agency can, and

often does, define the terms of congressional enactments.

9

importance of the latter goal. Specifically, the CWA’s

declared goal and policy is to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters,” 33 U.S.C. § 1251(a), and also to

“recognize, preserve, and protect the primary respon-

sibilities and rights of States to prevent, reduce,

and eliminate pollution,” and “to plan the develop-

ment ... of land and water resources,” id. at

§ 1251(b). To the latter end, the CWA authorizes the

states to administer their own NPDES programs

subject to the EPA’s approval, id. at § 1342(b). And

more importantly here, the CWA authorizes the

states to regulate nonpoint sources of pollution,

which are not regulated by the NPDES. Id. at §§

1288, 1314(f); Pronsolino v. Nastri, 291 F.3d 1123,

1126-27 (9th Cir. 2002).*

The CWA thus effectuates a partnership between

the federal government and state and local govern-

ments in controlling water pollution, and recognizes

the significant role that state and local governments

play in pursuing that goal and in regulating land and

water use. Since Congress authorized state and local

governments to regulate nonpoint sources of pollu-

tion, there is no basis for the Ninth Circuit’s concern

* The CWA also authorizes the states to adopt ambient water

quality standards for bodies of water, separate from NPDES-

established effluent limitations applicable to individual dis-

charges into the waters. 33 U.S.C. § 1313. The CWA limits its

intrusion into the states’ traditional authority to regulate water

use and land use by providing that the CWA does not impair or

affect “any right or jurisdiction of the States with respect to

the waters ... of such States,” id. at § 1370, and does not

supersede, abrogate, or impair “the authority of each State

to allocate quantities of water within its jurisdiction,” or

“supersede or abrogate rights to quantities of water which have

been established by any State,” id. at § 1251(g).

10

that silvicultural stormwater runoff will be unregu-

lated and the CWA’s goals impaired unless such run-

off is held to be a point source discharge subject to

regulation under the NPDES. On the contrary, the

“primary responsibilities and rights” of state and

local governments to control water pollution, 33

U.S.C. § 1251(b), and their authority to regulate

nonpoint source discharges including silvicultural

stormwater runoff, is fully consistent with Congress’

goals. The Ninth Circuit’s decision pays no heed to

the congressional goal of preserving the states’ tradi-

tional authority to control water pollution and

regulate land and water use, which is a cornerstone

of the CWA.

Second, the CWA expressly defines a “point source”

as not including “agricultural stormwater discharges

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

§ 1362(14). The CWA, in defining a point source as

not including “agricultural stormwater discharges,”

does not distinguish between agricultural stormwater

discharges that are “channeled and controlled” and

those that are not. Therefore, agricultural storm-

water discharges are nonpoint source discharges

regardless of whether they are channeled or flow

naturally. Since silvicultural stormwater discharges

are analogous to—if indeed not a form of—agricul-

tural stormwater discharges, silvicultural storm-

water discharges are also nonpoint source discharges,

regardless of whether they are channeled or flow

naturally. There is no difference between channeled

runoff from agricultural lands and from forest lands

regarding the congressional goals and objectives of

the CWA, and thus both forms of channeled runoff

are nonpoint source discharges under the CWA. If

the conclusion were otherwise, Congress would have

created an anomaly by providing that channeled

11

stormwater discharges are point source discharges

subject to NPDES regulation if they are from forest

lands but not if they are from farm lands. Nothing in

the CWA or its legislative history suggests that

Congress intended to create such an anomaly. This

Court has held that statutes should not be construed

as creating anomalies unless Congress clearly so

intended. Small v. United States, 544 U.S. 385, 390-

91 (2005); Ab>ott Laboratories v. Gardner, 387 U.S.

136, 145-46 (1967).

Third, the conclusion that silvicultural stormwater

runoff, whether channeled or not, is a nonpoint

source discharge is also supported by section 304(f) of

the CWA. This provision requires the EPA to adopt

“guidelines” for identifying “nonpoint sources of pol-

lutants” and “processes, procedures, and methods to

control pollution” resulting from, inter alia, “agricul-

tural and silvicultural activities, including runoff

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

§ 1314(f(2)(A) (emphasis added). By identifying

“nonpoint sources of pollutants” as including both

“agricultural and silvicultural activities,” including

“runoff from both agricultural lands and “forest

lands,” Congress made clear that agricultural runoff

and silvicultural runoff are treated the same way,

and that both are considered nonpoint sources of

pollution.

Fourth, the EPA provided a reasonable explanation

in its Silvicultura] Rule for why silvicultural storm-

water runoff cannot properly be considered a point

source discharge simply because it has been chan-

neled by ditches, pipes, or other conveyances. The

EPA explained:

[T]he Agency has carefully examined the rela-

tionship between the NPDES permit program

12

(which is designed to control and eliminate dis-

charges of pollutants from discrete point sources)

and water pollution from silvicultural activities

(which tends to result from precipitation events).

It has been determined that most water pollution

related to silvicultural activities is nonpoint in

nature. This pollution is basically runoff induced

by precipitation events and is not and should not

be subject to the National Pollutant Discharge

Elimination System (NPDES) permit program as

it has been administered to date.

Technically, a point source is defined as a “dis-

cernible, confined and discrete conveyance,

including but not limited to any pipe, ditch [or]

channel .. .” and includes all such conveyances.

However, a proper interpretation of the FWPCA

. is that not every “ditch water bar or culvert”

is “meant to be a point source under the Act

[FWCPA].” It is evident, therefore, that ditches,

pipes and drains that serve only to channel,

direct, and convey nonpoint runoff are not meant

to be subject to the § 402 permit program.

41 Fed. Reg. 6,281, 6,282 (1976). Thus, the EPA

explained that silvicultural stormwater runoff is pri-

marily caused by rainfall rather than by industrial

or municipal activity, unlike most other types of

NPDES-regulated point source discharges, and there-

fore that the same NPDES controls that apply to

industrial and municipal activity cannot properly

be applied to silvicultural stormwater runoff. An

industrial or municipal discharger generally has

much greater control over the discharge of pollutants

generated by the discharger’s activity than counties

that own logging roads or a logging company has over

13

the discharge of silvicultural runoff generated by

rainfall.

Fifth, the EPA’s Silvicultural Rule has been in

place since its adoption in 1976, Congress has never

overturned it, and state and local governments have

reasonably relied on it since then. This Court has

held that Congress may “acquiesce[e]” in administra-

tive interpretations of statutes by failing to enact

legislation to overturn the administrative interpreta-

tion, although it does so “with extreme care.” Solid

Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159, 169-70 (2001).

While Congress’ failure to overturn the EPA’s long-

standing Silvicultural Rule is not entitled to great

weight, it nonetheless has some probative value.

Sixth, contrary to the Ninth Circuit’s view, the

Water Quality Act of 1987 did not sub silentio over-

turn the EPA’s Silvicultural Rule as applied to silvi-

cultural stormwater runoff. Although the 1987 Act

extended the NPDES to “stormwater discharges”—

including “discharges associated with industrial

activity,” 33 U.S.C. § 1342(p)(3A)—the 1987 Act did

not mention silvicultural stormwater runoff, and

nothing in the Act reflects a congressional intent to

overturn the Silvicultural Rule. Since the EPA

adopted the Silvicultural Rule in 1976—11 years

before the Water Quality Act was enacted in 1987—

Congress would have affirmatively indicated its

intent to overturn the Silvicultural Rule in enacting

the 1987 Act, if it had intended to overturn the Rule.

Indeed, the Ninth Circuit’s view that the Water

Quality Act of 1987 provides that silvicultural storm-

water runoff is a point source discharge—because

such runoff is “associated with industrial activity”"—

would mean that all silvicultural stormwater runoff

14

is a point source discharge, regardless of whether the

runoff has been channeled. The 1987 Act does not

distinguish between different types of “discharges

associated with industrial activity” depending on

whether the discharges are channeled or flow natu-

rally. Thus, if the 1987 Act applies to silvicultural

stormwater runoff, as the Ninth Circuit held, it

applies to all such runoff, whether channeled or not.

This conclusion is inconsistent with the Ninth

Circuit’s acknowledgement that silvicultural storm-

water runoff is a nonpoint source discharge if it has

not been channeled. Brown, 640 F.3d at 1070. Thus,

the Ninth Circuit’s analysis of the 1987 Act is not

only wrong but also internally inconsistent.

In sum, the CWA contains several provisions and

indicia—which the Ninth Circuit did not mention—

that support the conclusion that silvicultural storm-

water runoff is not a point source discharge subject to

NPDES regulation, regardless of whether it is chan-

neled or flows naturally. Thus, the CWA should be so

construed.

Il. ASSUMING ARGUENDO THAT THE

CLEAN WATER ACT IS AMBIGUOUS,

THE EPA’S SILVICULTURAL RULE IS

ENTITLED TO DEFERENCE UNDER

THE CHEVRON DOCTRINE BECAUSE

THE RULE LIMITS RATHER THAN

EXPANDS FEDERAL AUTHORITY TO

REGULATE SUBJECTS TRADITIONALLY

REGULATED BY STATE AND LOCAL

GOVERNMENTS.

We now assume arguendo that the CWA is ambig-

uous concerning whether channeled silvicultural

stormwater runoff is a point source discharge or non-

point source discharge. Under that assumption, this

15

Court should apply the Chevron doctrine in constru-

ing the CWA. Under Chevron, an agency’s inter-

pretation of a statute that it is responsible for

administering is entitled to deference if the statute is

“silent or ambiguous” and the agency’s interpretation

is “permissible.” Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-44

(1984); see Mayo Foundation v. United States, 131

S.Ct. 704, 711 (2011); Babbitt v. Sweet Home Chapter,

515 U.S. 687, 703 (1995); Arkansas v. Oklahoma, 503

U.S. 91, 107 (1992). This Court should grant Chev-

ron deference to the EPA’s Silvicultural Rule, which

interprets the CWA as providing that silvicultural

stormwater runoff, even when channeled, is a non-

point source discharge subject to regulation under

state and local laws.

The amici do not argue that Chevron necessarily

applies because the CWA is ambiguous or the EPA’s

interpretation is permissible. Rather, the amici argue

that Chevron applies because the EPA’s Silvicultural

Rule limits, rather than expands, federal authority to

regulate subjects, such as land use and water use,

that are traditionally regulated by state and local

governments under their own laws.

The Ninth Circuit wholly failed to apply the Chev-

ron doctrine in analyzing the CWA, beyond briefly

mentioning the doctrine in the “Standard of Review”

portion of its decision, Brown, 640 F.3d at 1069, and

in a fleeting passage later in the decision, id. at

1071. The court paid no deference whatever to the

EPA’s interpretation of the terms “point source” and

“nonpoint source” in its Silvicultural Rule, and

instead engaged in a wholly de novo interpretation of

those terms. The Ninth Circuit decision was written

almost exactly as it would have been written if this

16

Court had never decided Chevron, and if the Chevron

doctrine did not exist.

Although the Chevron doctrine on its face appears

to categorically require deference if certain objective

factors are present—if the statute is ambiguous and

the agency’s interpretation permissible—this Court

has not always applied Chevron based on these objec-

tive factors, and instead has often considered addi-

tional factors in deciding whether to grant deference.

For example, this Court has construed federal stat-

utes in order to avoid constitutional conflicts, thus

limiting its deference to an agency construction that

creates constitutional conflicts. Solid Waste Agency

of Northern Cook County v. U.S. Army Corps of Engi-

neers, 531 U.S. 159, 172 (2001); FCC v. Fox TV

Stations, Inc., 556 U.S. 502, 516 (2009).

This Court has considered an additional, and

virtually dispositive, factor in deciding whether to

grant Chevron deference—namely, whether the

agency regulation expands the reach of a federal

statute into areas traditionally regulated by state

and local governments, and thus expansively con-

strues the statute’s preemptive effect, or instead

whether the agency regulation /imits the reach of the

statute and thus limits its preemptive effect. This

Court has readily granted Chevron deference to

agency interpretations that limit federal intrusion

into areas of traditiona] state and local regulation,

but has cautiously, if at all, granted Chevron defer-

ence to agency interpretations that expand federal

intrusion into such areas, at least where other

compelling considerations favoring deference were

not present. If an agency interprets a statute as

authorizing federal intrusion into areas traditionally

regulated by state and local governments, such as

17

water use and land use, countervailing principles of

federalism come into play that limit deference to the

agency's interpretation. Under these principles of

federalism, Congress presumptively does not author-

ize federal intrusion into areas traditionally regu-

lated by state and local governments unless it speaks

clearly and unequivocally.

In applying the preemption doctrine, for example,

this Court has held that Congress presumptively does

not preempt state and local authority to regulate

subjects within their traditional] areas of jurisdiction

“unless that wes the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947); see Cipollone v. Liggett Group, Inc.,

505 U.S. 504, 516 (1992); Rapanos v. United States,

547 U.S. 715, 738 (2006) (plurality opinion) (“We

ordinarily expect a ‘clear and manifest’ expression

from Congress to authorize an unprecedented intru-

sion into traditional state authority.”); see BFP v.

Resolution Trust Corp., 511 U.S. 531, 544 (1994).

Similarly, this Court has held that the Constitution’s

Commerce Clause, U.S. Const. art. I, § 8, cl.3, limits

Congress’ power to enact laws that “effectually oblit-

erate the distinction between what is nationa] and

what is local ....” United States v. Lopez, 514 U.S.

549, 557 (1995); see United States v. Morrison, 529

U.S. 598, 619 n.8 (2000).

These principles of federalism inform the meaning

and application of the Chevron doctrine. If a federal

agency interprets an ambiguous statute as limiting

federal regulation of areas traditionally regulated by

state and local governments, the Chevron doctrine is

more likely to converge with principles of federalism

and properly be applied. If, however, the agency

interprets an ambiguous statute as expanding federal

18

regulation of such areas, the Chevron doctrine is

more likely to diverge from principles of federalism

and properly not be applied.

Although this Court has not expressly distin-

guished for Chevron purposes between agency inter-

pretations that expand federal intrusion into tradi-

tional areas of state and local regulation and agency

interpretations that limit federal intrusion, this

Court’s decisions are nonetheless consistent with this

distinction. Indeed, this distinction is supported by

this Court’s decisions construing the specific statute

involved here, the CWA.

In Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers (“SWANCC”), 531 U.S.

159 (2001), this Court declined to grant Chevron

deference to a regulation adopted by the U.S. Army

Corps of Engineers under the CWA, which authorized

the Corps to regulate “isolated” waters, i.e., waters

not physically connected to navigable waters. The

CWA authorizes the Corps to regulate “navigable

waters,” which are defined as “the waters of the

United States.” 33 U.S.C. §§ 1344(a), 1362(7). Alt-

hough the Court stated that the phrase “the waters of

the United States” is not ambiguous and does

not include “isolated” waters, the Court also stated

that—even if the phrase were ambiguous—there

would be no basis for applying Chevron in upholding

the Corps’ regulation. SWANCC, 531 U.S. at 172-73.

The Court stated that the states have traditionally

and historically regulated non-navigable waters,

and thus the Corps’ claimed authority to regulate

“isolated” waters would result in a “significant im-

pingement of the States’ traditional and primary

power over land and water use,” id. at 161, 174, thus

improperly allowing “federal encroachment upon a

19

traditional state power,” id. at 173. The Court stated

that Congress would not have invoked the “outer

limits” of its constitutional power without a “clear

expression” of its intent. Jd. at 172. Invoking its

“prudential desire not to needlessly reach constitu-

tional issues,” id., the Court concluded that the

CWA does not authorize the Corps to regulate

“nonnavigable, isolated, intrastate waters,” id. at

166. The Court overturned the Seventh Circuit deci-

sion below, which had relied on Chevron in upholding

the Corps’ regulation. SWANCC, 191 F.3d 845, 851,

853 (7th Cir. 1999), rev’d 531 U.S. 159, 174 (2001).

Thus, the Court declined to grant Chevron deference

to a federal regulation that expanded federal author-

ity to regulate subjects traditionally regulated by

state and local governments, and instead applied

long-standing principles of federalism in construing

the CWA.

Similarly, in Rapanos v. United States, 547 U.S.

715 (2006), this Court again declined to grant Chev-

ron deference to a regulation adopted by the U.S.

Army Corps of Engineers under the CWA, which

interpreted the statutory phrase “the waters of the

United States” as including virtually all wetlands in

the nation. The Court’s plurality opinion stated that

the Corps’ “expansive” interpretation of the phrase

was foreclosed by its “natural definition,” Rapanos,

547 U.S. at 731-32, but that “[e]ven if the phrase ‘the

waters of the United States’ were ambiguous .. . our

own canons of construction would establish that the

Corps’ interpretation of the statute is impermissible.”

Id. at 737.‘ Citing the Court’s decision in SWANCC,

‘ The plurality opinion interpreted the phrase “the waters of

the United States” as including only “relatively permanent,

standing or flowing bodies of water,” Rapanos, 547 US. at 732,

20

the plurality opinion stated that “the Government’s

expansive interpretation would ‘result in a significant

impingement of the States’ traditional and primary

authority over land and water use,” and that “[wle

would ordinarily expect a ‘clear and manifest’ state-

ment from Congress to authorize an unprecedented

intrusion into traditional state authority.” Id. at 738

(citations and internal quotation marks omitted). As

in SWANCC, the plurality opinion applied principles

of federalism rather than the Chevron doctrine in

construing the CWA.’

On the other hand, in National Association of

Home Builders v. Defenders of Wildlife, 551 U.S. 644

(2007), this Court applied Chevron deference in

upholding a federal regulation that—by limiting

federal authority under the Endangered Species Act

(“ESA”)—effectively allowed a state to administer its

and as including only wetlands that have a “continuous surface

connection” to such waters,” id. at 742. Justice Kennedy wrote a

concurring opinion arguing that the phrase “the waters of the

United States” also includes wetlands that have a “significant

nexus” to navigable waters, but—like the plurality opinion—

Justice Kennedy did not apply the Chevron doctrine in reaching

this conclusion. Jd. at 782 (Kennedy, J., concurring).

* On the other hand, this Court in Babbitt v. Sweet Home

Chapter, 515 U.S. 687 (1995), in upholding the Secretary of the

Interior’s regulation defining “take” under the Endangered

Species Act (“ESA”), applied Chevron as part of its statutory

analysis, id. at 703, only after the Court had already determined

that its interpretation was supported by the “text of the Act,” id.

at 697, by the “broad purpose” of the Act, id. at 698, and by the

fact that Congress “understood” that the Act prohibited “indirect

as well as deliberate takings,” id. at 700. Although the Court's

decision may have expanded the preemptive reach of the ESA,

the decision was based largely on the Court’s own analysis of

the statute and not on the Court’s deference to the Secretary's

regulation under Chevron.

21

own NPDES programs under the CWA. There, the

State of Arizona applied to the EPA for authority to

administer its NPDES permit program. The CWA

provides that the EPA “shall” approve such a state

program if it meets the CWA’s statutory criteria.

33 U.S.C. § 1342(b). The EPA determined that

the Arizona program met the statutory criteria and

approved the Arizona program. Home Builders, 551

U.S. at 654-55. But the Ninth Circuit held that

the EPA violated the ESA by failing to “consult” with

a designated service agency before approving the

Arizona program. Under the ESA, a federal agency

must “consult” before taking any action “authorized,

funded or carried out” by the agency that may affect

an endangered species. Id. at 649-50; 16 U.S.C. §§

1536(a)(2), -(c)(1).

This Court, overturning the Ninth Circuit decision,

applied Chevron in deferring to, and upholding and

applying, a regulation adopted by the Secretaries of

Interior and Commerce that did not require the

EPA to consult with designated service agencies.

The regulation required agency consultation in “all

actions in which there is discretionary Federal in-

volvement or control.” 50 C.F.R. § 402.03 (emphasis

added). This Court held that since the CWA provides

that the EPA “shall” approve state NPDES programs

that meet the statutory criteria, the EPA had no

“discretionary” authority to disapprove the Arizona

program, and therefore the EPA was not required to

consult before approving the program. Home Build-

ers, 551 U.S. at 665-68. Thus, the Court applied

Chevron deference in upholding an agency regulation

that, by limiting an agency’s consultation obligation

under the ESA, broadened a state’s authority to

administer its NPDES program under the CWA. The

22

Court’s decision thus limited federal intrusion into

areas traditionally regulated by the states.

In sum, in conformity with principles of federalism,

this Court has applied Chevron deference where an

agency construed a federal statute as limiting federal

authority to regulate subjects of traditional state

and local regulation, as in Home Builders, but has

not applied Chevron deference where an agency con-

strued a federal statute as expanding such authority,

as in SWANCC and Rapanos.

Here, the EPA’s Silvicultural Rule interprets silvi-

cultural stormwater runoff, whether channeled or

not, as a nonpoint source discharge subject to regula-

tion under state and local iaws, and thus limits

federal regulation of a subject traditionally regulated

by state and local governments. Thus, the Chevron

doctrine converges with principles of federalism and

properly applies. The Ninth Circuit accorded no

Chevron deference whatever to the EPA’s Silvicul-

tural Rule. Thus, while the Silvicultural Rule is enti-

tled to the greatest Chevron deference because it

limits federal regulation of areas traditionally regu-

lated by state and local governments, the Ninth

Circuit accorded the Silvicultural Rule the least

deference—indeed, no deference at all—and instead

interpreted the statute de novo as authorizing federal

regulation of traditional areas of state and local

regulation. By pro forma acknowledging the Chevron

doctrine but declining to apply it, the Ninth Circuit

ignored the powerful jurisprudential principle em-

bodied in the doctrine, namely that the courts should

to the extent possible avoid construing ambiguous

federal statutes as authorizing federal intrusion into

areas traditionally regulated by state and local

governments.

23

Iii. THE NINTH CIRCUIT DECISION WILL

HAVE SIGNIFICANT, ADVERSE IMPACTS

ON STATE AND LOCAL GOVERNMENTS.

A. The Ninth Circuit Decision Potentially

Imposes Significant Costs And Liabil-

ities On State And Local Governments.

If this Court upholds the Ninth Circuit’s decision,

this Court’s decision would significantly burden state

and local governments in their roles as NPDES per-

mitting agencies and NPDES-regulated dischargers.

To date, 46 states have been authorized to administer

their own NPDES programs.° These NPDES-ad-

ministering states issue permits to dischargers in

lieu of the EPA’s issuance of such permits. Shell Oil

Company v. Train, 585 F.2d 408, 410, 412 (9th Cir.

1978); District of Columbia v. Schramm, 631 F.2d

854, 861 (D.C. Cir. 1980); State of California v. U.S.

Department of Navy, 845 F.2d 222, 225-26 (9th Cir.

1988). An approved state program must have re-

quirements at least as stringent as those of the

federal program, and may have more stringent

requirements if the state chooses. 33 U.S.C. § 1370;

55 Fed. Reg. 48,027 (Nov. 16, 1990).

Under the Ninth Circuit’s decision, states that

administer their own NPDES programs would be

required to exercise NPDES permit authority over all

stormwater discharges from logging roads that are

channeled through ditches, culverts, and other con-

duits into rivers and streams because the Ninth

Circuit’s decision holds that such stormwater dis-

* All states have EPA-approved NPDES programs except

Idaho, Massachusetts, New Hampshire, and New Mexico. State

Program Status, ENVIRONMENTAL PROTECTION AGENCY, http://

cfpub.epa.gov/npdes/statestats.cfm (last visited Aug. 16, 2012).

24

charges are point source discharges subject to regula-

tion under the NPDES. Brown, 640 F.3d at 1067.

The states’ exercise of NPDES permit authority

over such stormwater discharges would impose a

heavy regulatory and financial burden on the states.

According to the U.S. Forest Service, there are

approximately 386,000 miles of forest roads on forest

lands owned by the federal government, and this

figure does not even include logging roads on forest

lands owned by state and local governments. 66 Fed.

Reg. 3,245 (Jan. 19, 2001). As the EPA has stated,

“the networks of forest roads on federal land are vast

by any measure.” 77 Fed. Reg. 30,475 (May 23,

2012). If the NPDES-administering states were

required to exercise NPDES permit authority over

every ditch, culvert, or other conduit on every logging

road in the nation, and to monitor compliance with

NPDES requirements, the states would bear a heavy

regulatory burden, which would cost millions of

dollars annually.

In addition, state and local governments may incur

significant additional burdens and costs if they own

or regulate the forest lands where logging operations

take place. Although the federal government owns

most of the public forest lands in the nation (76%),

state and local governments also own a significant

amount of such forest lands; the states own 21% and

local governments own 3% of such lands. 77 Fed.

Reg. 30,475 (May 23, 2012). In this case, for exam-

ple, the State of Oregon, through its Department of

Forestry and Board of Forestry, owns the lands in the

Tillamook State Forest in Oregon, where the defend-

ant timber companies conducted their logging opera-

tions. Brown, 640 F.3d at 1067. Under the EPA’s

regulations, the “operator” of a facility or activity

subject to NPDES requirements is responsible for

25

acquiring an NPDES permit. 40 C.F.R. § 122.21(b).

The EPA defines an “operator” of an industrial facil-

ity as the entity that has either “operational control

over industrial activities, including the ability to

modify those activities,” or “day-to-day operational

control of activities at a facility necessary to ensure

compliance with the permit.” ENVIRONMENTAL PRO-

TECTION AGENCY, CONSTRUCTION GENERAL PERMIT

App. A (2012), http:/Awww.epa.gov/npdes/pubs/cgp

2012_appendixa.pdf (definition of “operator”). Thus, if

a state or local government has “operational control”

over logging operations because it owns or regulates

the forest lands and roads where the operations take

place, or for the same reason has “day-to-day

operational contro)” sufficient to “ensure compliance

with the permit,” the state or local government may

be considered an “operator” of the logging operation

and thus subject to NPDES permit requirements.

In short, state or local governments may be an

“operator” subject to NPDES permit requirements

simply because they own or regulate the forest lands

where the logging operations take place. Under the

Ninth Circuit’s decision, any level of ownership, con-

trol, or regulatory authority over the forest roads

may be sufficient to trigger NPDES permit require-

ments. A simple lease agreement under which a

state or local government allows access to a forest

road may be enough to establish liability. Thus, state

or local governments may be subject to significant

burdens and costs under the CWA to the extent

they are considered “operators” and thus subject to

NPDES permit requirements.

26

B. The NPDES Permitting Process Is

Lengthy And Time Consuming, And

State And Local Governments Would

Incur Significant Additional Burdens

And Costs If They Assume NPDES

Authority Over Silvicultural Storm-

water Discharges.

The CWA authorizes two types of NPDES permits:

individual permits and general permits. Individual

permits are issued for individual discharges and are

specifically tailored to the individual facility or activ-

ity, and general permits are issued for categories

of discharges that are substantially similar and

result from substantially similar activity. 40 C.F.R.

§§ 122.28, 123.25.

The process of issuing an NPDES permit, whether

individual or general, is lengthy and time consuming.

State and local governments would incur substantial

burdens and costs if they were responsible for con-

ducting this permit process or receiving permits in

the context of silvicultural stormwater runoff. In

issuing NPDES permits, the permit-issuing agency is

required to take numerous, time consuming steps.

These steps include drafting and submitting a permit

application, 40 C.F.R. §§ 122.21(a), <f), -(g), 122.26(c);

developing technology-based and water quality-based

effluent limitations, id. at §§ 122.44(a), -(d); develop-

ing monitoring requirements, id. at § 122.48; develop-

ing special conditions and considering variances and

other applicable requirements, id. at §§ 122.21(m),

124.62; preparing a draft permit, id. at § 124.6;

preparing supporting legal and factual analysis, id.

at §§ 124.8, 124.56; issuing public notice and inviting

public comments, id. at §§ 124.10, 124.57; responding

to public comments, id. at §§ 124.11, 124.17; and

27

completing the review and issuance process, id. at

§ 124.15. This permit-issuing process routinely takes

from three to five years, and requires countless hours

of staff time by the permitting agency, as well as

involvement by the permittee and the public. More-

over, the regulation of stormwater discharges affects

a wide range of individual activities, is often highly

controversial, and frequently leads to litigation.

An example of this lengthy and time consuming

permit process is found in California’s issuance of

a general NPDES permit for stormwater discharges

associated with construction activity. The California

State Water Resources Control Board (“Board”),

which administers the NPDES program in California,

issued the first draft of the general permit for such

discharges in March 2007. California Building

Industry Association v. State Water Resources Control

Board, Cal. Superior Court, Sacramento County, No.

34-2009-80000338 CU-WM-GDS, 6-7 (Dec. 2, 2011),

http://www.swrcb.ca.gov/water_issues/programs/storm

water/docs/construction/jjudgment.pdf. The Board

held a series of workshops during 2007 and 2008, in

which it received public comments, and then issued a

second draft in 2008. Jd. The Board held a second

series of workshops in 2008 and 2009, and issued a

third draft in April 2009. Jd. The Board conducted a

formal hearing on the third draft on September 9,

2009, and adopted the permit on that date. Id. The

permit was challenged by members of the construc-

tion industry, and the litigation was concluded at the

trial level in December 2011, when a California

Superior Court struck down portions of the permit.

Id. at 28. Thus, it took more than four years—from

early 2007 to late 2011—for the Board to issue the

general permit and for the permit to be adjudicated

in the courts.

28

Thus, the process for issuing a single general

NPDES permit, as illustrated by the above example,

is lengthy and time consuming, and imposes signifi-

cant burdens and costs on the permitting agency

and the permit applicant. If, as the Ninth Circuit

decision holds, the permitting agency were required

to issue individual NPDES permits for individual

logging operations, and to establish effluent limita-

tions for each logging operation, the cumulative

burdens and costs to the agency and permit applicant

would be significantly greater. At a time when state

and local governments are already facing severe

budgetary constraints, these additional burdens and

costs should not be imposed upon state and local gov-

ernments unless Congress clearly required NPDES

permits, which it has not.

C. The Environmental Impacts Associated

With Forest Roads Are Adequately And

Appropriately Addressed Under The

States’ Nonpoint Source Programs.

The imposition of these additional burdens and

costs is particularly inappropriate because state and

local governments are adequately addressing the

impacts associated with stormwater runoff from for-

est roads under their nonpoint source discharge

programs. Congress has authorized the states to

regulate nonpoint sources of pollution under sections

208 and 304(f) of the CWA. 33 U.S.C. §§ 1288,

1314(f.

An example of how the states are adequately

addressing the impacts of stormwater runoff from

forest roads is found in the instant case. Like most

states, Oregon has adopted a comprehensive system

for regulating water quality, which includes regula-

29

tion of nonpoint source discharges. See, e.g, ORE.

REV. STATS. §§ 468B.015-468B.050. Under this regu-

latory system, the Oregon Department of Forestry

(“ODF”) has adopted best management practices

(“BMPs”) that logging companies must implement in

conducting logging operations on forest lands in the

state. For example, the ODF has mandated that

discharges from forest roads must be directed

away from surface waters. According to the ODF

regulations:

The forest floor can usually absorb large

amounts of water, and can be used to greatly

reduce the potential for muddy runoff entering

streams. In western Oregon, undisturbed forest

soils can often absorb over 10 inches of water per

hour. When muddy runoff waters are directed to

these soils, water flows into the ground, leaving

the road-generated sediment on the forest floor

Drainage waters must be directed onto undis-

turbed soils. Cross drains need to be installed as

close to stream crossings as possible and allow

between 15 and 200 feet of ground filtering

between the outlet of the cross drain and the

high water level of the stream, as measured from

the stream.

OREGON DEPARTMENT OF FORESTRY, INSTALLATION

AND MAINTENANCE OF CROSS DRAINAGE SYSTEMS ON

FOREST ROADs 6 (2003).’

" For additional BMP requirements applicable within the

State of Oregon, see also Road Maintenance, THE FOREST PRAC-

TICE NOTES (Oregon Department of Forestry, Salem, Oregon),

July 1999, http://cms.oregon.gov/odf/privateforests/docs/roadma

intfpnote4.pdf; and OREGON DEPARTMENT OF FORESTRY, FOREST

30

Thus, Oregon appropriately addresses stormwater

discharges from forest lands under its nonpoint

source laws. Because of differences in climate, soil

conditions, and geography among the states, BMPs

for stormwater discharges are best developed at the

state and local level rather than the national level.

State and local governments that are most familiar

with these local conditions can properly tailor BMPs

to local conditions. In authorizing state and local

governments to regulate silvicultural stormwater dis-

charges under their nonpoint discharge programs,

Congress fully recognized the importance of state and

local governments in effectuating the broad goals of

the CWA.

D. Requiring NPDES Permits For Forest

Roads Would Limit Public Access To

Public Lands.

The Ninth Circuit decision, by imposing significant

additional burdens and costs on state and local

governments, would discourage the construction of

new forest roads and potentially result in the dives-

ture or closing of existing roads. This would, in turn,

potentially reduce public access to public forest lands.

Although the Ninth Circuit downplayed the point,

forest roads are more than access paths for timber

companies to conduct logging operations. Brown, 640

F.3d at 1084. Forest roads also provide public access

to the nation’s forest lands for recreational activities

such as backpacking, camping, fishing, hiking, bird-

ing, hunting, and mountain biking. The roads like-

wise provide the basis for economic activity, such as

ROADS MANUAL (July 2000), http://cms.oregon.gov/odf/pages/

state_forests/roads_manual.aspx.

31

mining operations, fishing, and agriculture. The

Ninth Circuit decision places these recreational and

economic activities at risk by increasing the liability

of state and local governments for logging operations

on public forest lands, which may result in fewer

roads and less public access to the nation’s forest

lands. This outcome is contrary to the CWA’s de-

clared “national goal” of providing for “the protection

and propagation of fish, shellfish, and wildlife” and

for “recreation in and on the water.” 33 U.S.C.

§ 1251(a)(2).

E. Requiring NPDES Permits For Silvi-

cultural Activities Would Potentially

Have Adverse Economic Consequences

Without Providing Any Significant

Environmental Protection.

As described above, state and local governments

are able to effectively regulate stormwater discharges

from forest lands under their nonpoint source laws.

Here, for example, the State of Oregon has adopted

nonpoint source programs and other laws that reduce

and limit pollutant discharges from forest roads. To

require state and local governments to adopt an addi-

tional system of regulation, by requiring them to

apply NPDES permit requirements to pollutant dis-

charges from forest roads, would add another layer

of bureaucracy in regulating stormwater discharges

from the roads, without commensurately increasing

the environmental protection of forests and their

water quality. The Ninth Circuit decision also would

increase the potential exposure of state and local

governments to third party lawsuits claiming that

stormwater discharges are not being adequately

regulated under the NPDES program.

32

In addition, the Ninth Circuit decision would

potentially increase the costs of, and substantially

delay, the production and sale of timber products

supplied by forest lands. A recent study conducted by

the National Association of Forest Owners esiimates

that the costs to a timber company of obtaining an

NPDES permit for a logging operation could be

between $16,000 and $24,000 per logging operation.

FREDERICK CUBBAGE & ROBERT ABT, POTENTIAL

ADMINISTRATIVE AND ECONOMIC IMPACTS OF NPDES

PERMIT REQUIREMENTS FOR FOREST ROADS IN THE

SOUTH 2 (Dec. 7, 2011), http://nafoalliance.org/

wp-content/uploads/Road-Permit-Costs-in-South1.pdf.

According to the study, such a cost increase could

lead to very large decreases in net revenues and the

elimination of all profits for small and probably large

landowners. Jd. By increasing the costs of and

substantially delaying the production of timber prod-

ucts, the Ninth Circuit would threaten the economic

viability of other industries that are dependent on

the timber industry, such as sawmills that process

timber products, and would jeopardize the jobs of

those employed by these other industries. This

would, in turn, cause economic hardship to communi-

ties, particularly small communities near forests,

that are dependent on the timber industry for

providing jobs and a tax-base. Depending on the

severity of the economic hardship, the effect might

even erode the tax base of an entire state. Thus, the

Ninth Circuit decision has consequences, perhaps

unintended, that extend far beyond the simple regu-

lation of stormwater discharges from forest lands.

33

CONCLUSION

For the foregoing reasons, this Court should

reverse and remand the Ninth Circuit decision.

Respectfully submitted,

LISA E. SORONEN RODERICK E. WALSTON

STATE AND LOCAL Counsel of Record

LEGAL CENTER SHAWN HAGGERTY

444 North Capitol St NW ANDRE MONETTE

Suite 515 BEST BEST & KRIEGER LLP

Washington, D.C. 20001 2001 North Main St

(202) 434-4845 Suite 390

lsoronen@sso.org Walnut Creek, CA 94596

(925) 977-3300

roderick.walston@bbklaw.com

Attorneys for Amici Curiae

August 2012