Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Supreme Court brief2013

Ask Donna

What actually matters in this document.

Text

NOS. 11-338, 11-347 ot i ae

IN THE

Supreme Court of the Anited States

DOUG DECKER, IN HIS OF FICLAL CAPACITY AS

OREGON STATE FORESTER, et al., PETITIONERS,

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

et al., RESPONDENTS.

GEORGIA-PACIFIC WEST, INC., et al., PE7ITIONERS,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

et al., RESPONDENTS.

On Writs of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF THE NORTHWEST ENVIRONMENTAL

ADVOCATES ET AL. AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

James S. Coon

Swanson, Thomas, Coon & Newton

820 SW Second Ave., Suite 200

Portland, OR 97204

(503) 228-5222

jcoon@stc-law.com

*Counsel of Record Counsel for Amici Curiae

nT Move Fie

1 Ful

TABLE OF CONTENTS

Page

py FB Le Fh 6 oer iv

INTERESTS OF AMICICURIAE. .............. 1

SUMMARY OF ARGUMENT................... 6

ARGUMENT:

NONPOINT SOURCE FORESTRY CONTROLS ARE NOT

Dt cebu ected ecne sh ea Goueree sana es 7

I. Congress’s Approach to Nonpoint

I ts ey wae tere eee ons ed ale 8

I]. “Nonpoint source pollution remains

the leading cause of impairment of

the nation’s waters”................ 11

III. Forests as Polluted Water Sources... 14

IV. Nonpoint source pollution control

of forestry operations is not

improving: An Oregon Chronology... 17

A. 1998 ~ Oregon Forest Practices

Fail to Meet Water Quality

Standards and CZARA

I ns so a os d's a so be 6 18

B. 1999 — Oregon Science Team

Concurs with EPA and NOAA

that Oregon Forest Practices

are Inadequate to Meet Water

Quality Standards.. ........... 20

C. 2001 — Nonpoint source

regulation under the Oregon

Forest Practices Act “is not

sufficient to accomplish the

recovery of wild salmonids”....... 23

D. 2003 — Forestry management

“does not yet meet conditions.”.... 27

E. 2008 —- EPA and NOAA

Reconfirm that Oregon’s

Forest Practices Fail to Meet

Water Quality Standards........ 28

F, 2010 — Nonpoint source forest

pollution causes Oregon Coast

municipal water systems to

suffer “long term concerns about

system viability or increased

SI I cs cacusceseses 29

G. 2011 — Biological Review Team

Confirms Forestry Threatens

Fish Survival in Oregon Coastal

eds coe edu chee 448 32

H. More Oregon waters fail to

meet water quality standards

for sedimentation and temperature

now than 10 years ago.......... 34

Oregon’s water quality standards

are not the benchmarks for forest

water quality in Oregon............ 39

V1. SIERO FOOTE eee 45

TABLE OF AUTHORITIES

Page

CASES

Hawes v. State, 203 Or. App 255 (2005)........... 2

Northwest Envtl. Advocates (“NWEA”) v. Browner,

Ne. GD-G70-Bew GD. Ge. BOGOR. 2... ccc ccc cc cccces 1

NWEA v. City of Portland, 74 F.3d 945 (1996). .... 1

NWEA v. Locke, No. 09-0017 (D. Or. 2007). ...... 29

NWEA v. United States EPA, No. 06-479-HA

ae es ee aN eine 1

NWEA v. United States EPA, 2009 U.S. Dist.

a ne al See a ew ae 1

NWEA v. United States EPA, 855 F.Supp2d

ne oe er ae eae naa ae hou we 1,44

Trout Unlimited v. Lohn, 2007 WL 2973568

a ee a ce boas ek ie ee oe 4

STATUTES

OE eee ee ee ee 10,11

I I 0k 0 Aro ee a lg SB ka en 10

I i a a ae eS ae 8,9

6 bi eh ted dee y ed yee tees 8

Page

C.W.A. § 303, 33 U.S.C.

RAPES MER Ae 2,19,20,24,34-39,42,45

CWA § 319, 33 U.S.C. § 1329(a)(b)............... 9

CWA § 402, 33 U.S.C. § 1342................... >

CO OO SOOO OO. . oo ud. koe c ks x

Oregon Revised Statutes (“ORS”)

eee eee et ae he ene wee és 17,40,42

eae eld re Oe Ey grail 40

eh Tag e N ta a eek 20

OREGON ADMINISTRATIVE RULES (“OAR”)

SE ee ae ae 8

GE MPPEEED, oe ck cecuweescesscoess 24

OAR 340-041-0028(4) & (12)(e). ... 2.2.2.2... 24,43

IO ee ey ee ar ae 40

sk es is aw be wle a 40,41

a ee ere ee 36

FEDERAL REGISTER

73 Fed. Reg. 7816 (February 11, 2008). ......... 33

77 Fed. Reg. 30473 (May 23, 2012). ........ 5,15,16

Page

OTHER

William L. Andreen, Water Quality Today —

Has Clean Water Act Been a Success?

55 ala. L. Rev. 537,544n.36 (2004).............. 12

Douglas Endicott, National Level Assessment

of Water Quality Impairments Related to

Forest Roads and Their Prevention by Best

Management Practices (Study commissioned

by EPA, “Endicott Study’) 2008........... 12,16,17

Environmental Protection Agency (“EPA”),

NOAA, A Pollution Prevention and Control

Program for Oregon’s Coastal Waters:

Supplemental Information in Response to the

Federal Findings of January 1998, (April 1999)... 18

EPA, NOAA, Guidance Specifying Management

Measures for Sources of Nonpoint Pollution

in Costal Waters, EPA 840 B 92002

I Cs Col cr are fh g ye ew eg ey 9,16

EPA, NOAA 6217, Boundary Decision;

and Responses to Oregon’s Supplemental

Information in response to the Federal Findings

of January 1998, January 10, 2003. .......... 27,31

EPA, National Causes of Impairment,

Watershed Assessment Tracking &

REE I, a ee 38

Page

EPA, NOAA, NOAA and EPA Preliminary

Decisions on Information Submitted by Oregon

to Meet Coastal Nonpoint Program Conditions

CF GOCE, GU TE He a. hoe svecckssescs 7, 28

EPA, NOAA, NMFS, Review of the December 2001

[sic, 2000] Draft Sufficiency Analysis Stream

Temperature (Oregon Departments of Forestry

and Environmental Protection Agency, National

Marine Fisheries Service, and U.S. Fish &

Wildlife Service, February 2001................ 25

EPA, National Probable Sources Contributing

to Impairments (October 13, 2012).............. 12

Robert L. Glicksman, Pollution on Federal

Lands II: Water Pollution Law, 12 J. Envtl.

2 "f¢ fer rrr rye 11

Independent Multidisciplinary Science Team

(“IMST”), Recovery of Wild Salmonids in Western

Oregon Forests: Oregon Forest Practices Act Rules

and the Measures in the Oregon Plan for Salon

and Watersheds, Technical Report 1999-1

a Se eT re eee 7,21

IMST, Oregon’s Water Temperature Standard

and its Application: Causes, Consequences,

and Controversies Associated with Stream

Temperature, A Report of the Independent

Multidisciplinary Science Team, Oregon

Plan for Salmon and Watersheds,

Technical Report 2004-1, May 7, 2004........... 24

vill

Nationa] Oceanic and Atmospheric

Administration, Ocean and Coastal Resource

Management, Coastal Nonpoint Program

es oe a 6S ones 6 bbe 80646 11,18

Northwest Fisheries Science Center, Draft

Revised Report of the Biological Review Team,

Scientific Conclusions of the Status Review for

Oregon Coast Coho Salmon, May 16, 2011. ...... 33

Oregon Department of Environmental Quality

(“DEQ”), Oregon’s 1992 Water Quality Status

Assessment Report, 305(b) Report, April 1992..... 14

Oregon DEQ, Methodology for Oregon’s 2010

Water Quality Report and List of Water Quality

Limited Waters (Pursuant to Clean Water Act

Sections 303(d) and 305(b) and

OAR 340-01-0046), May 12, 2011............... 36

Oregon DEQ, Oregon TMDLs Approved by EPA,

May 2000 through October 112 (sic, 2010)........ 24

Oregon DEQ, “Turbidity Analysis for Oregon,

Public Water Systems: Water Quality in Coast

Range Drinking Water Source Areas”,

Ne ete i ea uh eee eee ee 30,31

Page

Oregon DEQ, Water Quality: Water Quality

Assessment, Search DEQ’s 2002 303(d)

List Database (“2002 Database”). .............. 35

Oregon DEQ, Water Quality Assessment -

Oregon’s 2004/2006 Integrated Report

Database, Review the 2004/2006 Integrated

Report Database (“2004/6 Database”)............ 35

Oregon DEQ, Water Quality Assessment —

Oregon’s 2010 Integrated Report Assessment

Database and 303(d) List, Review the 2010

Integrated Report Database (“2010 Database”).... 35

Directors of Oregon Department of Forestry

and Oregon DEQ memorandum, “Sufficiency

Analysis: A Statewide Evaluation of Forest

Practices Act Effectiveness in Protecting Water

Ss GE Os SI 6 oc ee ceéek sce 6ee seas 41

Pacific Northwest Research Station, U.S. Forest

Service, Saving Streams and Their Source:

Managing for Amphibian Diversity in Headwater

Forests, 99 Science Findings (January 2008)...... 21

U.S. Government Accountability Office (“GAO”)

bs BUN 665405055 4566 e eRe ere 13,14

Washington Department of Ecology (““WDOE”),

Water Quality Assessment for Washington,

Simple Query Tool, 2008 Water Quality

Se NS Sb 0 6 oo oe ok eae ee aaah ees 38,39

Page

WDOE, Assessment of Water Quality for the Clean

Water Act Section 303(d) and 305(6)

Integrated Report, July 2012. ................. 38

INTEREST OF AMICI CURIAE '

Northwest Environmental Advocates (NWEA)

has spent the last 26 years working with and

litigating against the U.S. Environmental Protection

Agency (EPA) and the states of Oregon and

Washington to enforce and implement the Clean

Water Act in the Pacific Northwest. While regulation

of point source water pollution has seen relative

success, nonpoint source pollution has gone largely

unregulated and uncontrolled and, with respect to

forestry operations in Northwest forests, has been

glaringly under-regulated. The continually degraded

and often deteriorating condition of rivers and

streams affected by forest operations and logging

roads has been the object of NWEA’s efforts in a

number of cases.*

' No party or counsel for a party to this case has authored any

part of this brief or made any monetary contribution intended to

fund the preparation or submission of the brief. All such

monetary contributions have been made exclusively by these

amici and their counsel. Pursuant to Rule 37.6 consent is granted.

? Northwest Envtl. Advocates v. City of Portland, 74 F.3d 945 (1996)(suit

to enforce water quality standards); Northwest Envtl. Advocates v. United

States EPA, 855 F.Supp2d 1199(2012)\(challenge to EPA approval of

Oregon water quality standards); Northwest Envtl. Advocates v. United

States EPA, 2009 U.S. Dist. LEXIS 10456(2009)(same); NWEA v. U.S.

EPA, No. 06-479-HA (2008)(consent decree on human health and aquatic

life criteria for toxic water pollutants); NWEA v. Browner, No. 00-679-HO

Established in 1969, NWEA is a regional

non-profit environmental organization

incorporated under the laws of Oregon in 1981, with

its principal place of business in Portland,

Oregon. NWEA’s mission is to work through

advocacy and education to protect and restore

water and air quality, wetlands, and wildlife habitat

in the Pacific Northwest. NWEA has focused on

ensuring that the water quality-based regulatory

programs of Oregon and Washington meet the

requirements of the Clean Water Act by its

involvement in the states’ development and revision

of water quality standards, lists of impaired waters

that fail to meet water quality standards, Total

Maximum Daily Loads (TMDL),* which are

(Cont.’d) (D. Or. 2000) (order approving consent decree to enforce

TMDL provisions of Clean Water Act in Oregon); Hawes v. State, 203

Or. App 255 (2005)(Intervenors to compel Clean Water Act enforcement

against nonpoint source challenge) .

3 “Total Maximum Daily Loads” (TMDLs) are assessments of

the amount of a particular pollutant that can be discharged into

a particular stream segment without violating water quality

standards. 33 U.S.C. § 1313(d)(1)(C). A TMDL must be done for

each waterway on a state’s list of waters that do not meet and

are not expected to meet water quality standards after the

application of technology-based controls. 33 U.S.C.

§1313(d)(1){A), (B).

scientifically-based clean-up plans for waters

impaired by pollution, and NPDES discharge permits.

NWEA has also been involved in bringing

enforcement cases against point source dischargers of

pollution, such as untreated sewage from the City of

Portland. The organization has actively participated

in numerous state, local and national advisory

committees. It has sought to ensure that nonpoint

sources of polluted runoff are controlled through state

and local regulatory programs. NWEA has also

advocated for inclusion of the Lower Columbia River

into the EPA’s National Estuary Program, run an

educational boat program, and published educational

materials.

The Native Fish Society (NFS) is an Oregon

non-profit public interest organization with more than

500 members and an office in Oregon City, Oregon.

NFS is dedicated to the conservation of native, wild

fish in the Pacific Northwest and responsible

stewardship of their habitat. NFS uses the best

available science to advocate for historically abundant

wild, native fish and promote the stewardship of the

habitats that sustain them. NFS, its members, and

its volunteers participate in agency administrative

actions, public policy development, information

gathering and dissemination, education and public

outreach, and other activities relating protecting and

recovering wild fish, especially focusing on salmon

and steelhead threatened with extinction and listed

under the Endangered Species Act (ESA).

The NSF was one of the petitioners to seek the

ESA listing of Oregon Coast coho salmon in 1998 and

again in 2001, and defend that species against

delisting. Trout Unlimited v. Lohn, 2007 WL 2973568

(D. Or., Oct. 5, 2007). Oregon Coast coho continue to

be threatened with extinction in large part because of

degraded habitat and water quality caused by land

use activities under the Oregon Forest Practices Act.

NFS members and volunteers represent the

organization in the development of water quality

clean-up plans and other forums to improve water

quality and protect and recover Oregon Coast coho

from continued and future harm caused by forest

practices and other nonpoint sources of water

pollution.

The Center for Biological Diversity (CBD) isa

non-profit organization whose mission is to ensure the

preservation, protection, and restoration of

biodiversity, native species, ecosystems, public lands

and waters, and public health. The CBD has more

than 474,000 members and online activists

nationwide, and has offices in a number of states,

including Portland, Oregon. The CBD works through

science, law and creative media to secure a future for

all species, great or small, hovering on the brink of

extinction.

The CBD’s primary goal is to protect and

recover threatened and endangered species. In the

Pacific Northwest and elsewhere, pollution from

logging roads, including sediment, often results in

adverse impacts to threatened and endangered fish,

including salmon and steelhead. See e.g.,77 Fed. Reg.

30473, 30476 (May 23, 2012). CBD has worked for

years to help protect and recover imperiled salmon

and steelhead in the Pacific Northwest, including

from the adverse impacts of logging roads in the

coastal range of Oregon.

The Clean Water Network (CWN), founded in

1992, is the largest grassroots coalition in the country

devoted solely to protecting the nation’s water

resources. The CWN consists of more than 1,200

public interest organizations across

the U.S., representing more than 5 million people,

working to strengthen clean water and wetlands

policies and implement the Clean Water Act. The

CWN was established to be a central clearinghouse

for news and information and an advocacy arm for the

clean water community. The organization helps

facilitate communications among member groups and

coordinate joint policy and position statements.

The CWN focuses its combination of federal

policy work and coordination to achieving a stronger

national effort to bring polluted waterways back to

health and to preserve our nation's rivers, lakes,

streams, wetlands, estuaries and coastal waters. Its

members include organizations comprising

environmentalists, hunters and anglers, surfers and

boaters, farmers and garden clubs, faith and labor

organizations, smart growth planners, consumer

advocates, and civic organizations interested in

protecting waterways and drinking water supplies.

SUMMARY OF ARGUMENT

1. While the regulation of point source

pollution has seen considerable success in cleaning up

the rivers, streams and lakes of the United States,

nonpoint source pollution controls lag far behind.

According to the General Accountability Office, as of

2012, “[nJonpoint source pollution remains the leading

cause of impairment of the nation's waters.”

2. Eighty percent of our freshwater sources

originate in our forests. The so-called “best

management practices” on which state and federal

regulators rely to contro] sedimentary runoff from

forest roads are not sufficient to protect drinking

water, recreation and fish habitat.

3. Oregon, in which the present case arose,

exemplifies a chronological catalogue of failed

attempts to control pollution from forestry operations.

Its “best management practices” are defined by state

law as meeting water quality standards, although in

fact they do not and never have.

ARGUMENT:

Nonpoint Source Forestry Controls are not

Working.

The assertions of Petitioners and their Amici

that nonpoint source forestry regulation is “an

environmental success story”* cannot bear comparison

with the historical record. The facts are that the state

regulatory and non-regulatory® “best management

practices” approach on which EPA and the states

* Brief of Amici Curiae Society of American Foresters et al. at

° The Brief of Amici States of Arkansas, et al. (“State’s Brief’)

claims that forestry is conducted in the United States under the

“most comprehensive program of BMPs of any land use activity

in the nation.” States’ Brief at 16. Of course such a claim is

impossible to define, let alone prove. In fact, according to that

same brief, only six of the 50 states have mandatory BMPs,

while ten others have “non-regulatory BMP programs.” Jd. and

nn. 2, 3.

have relied to address water pollution from forest

operations has largely failed to keep sediment from

logging roads out of forest streams, resulting in the

clogging of municipal drinking water systems, the

suffocation of salmon spawning beds, and rising

stream temperatures.

I. Congress’s Approach to Nonpoint Sources

Congress established in the 1972 amendments

to the Clean Water Act (CWA) a national interim goal

to meet water quality standards by 1983, focused on

controlling pollution discharges from permitted point

sources. 33 U.S.C. §§ 1251(a)(2), 13811, 1342. The

CWA required each state to develop water quality

standards for its waters to be met by controlling

pollution from point sources, which the CWA defines

as “discernible, confined and discrete conveyance[s]’””

and pollution from nonpoint sources which are all

other sources.’

® 33 U.S.C. §1362(14).

” OAR 340-041-0002(43). Congress also explicitly recognized

that expeditiously cleaning up nonpoint source pollution is

essential to enable the statutory goals for point sources to be

met. 33 U.S.C. § 1251(a)(7).

The CWA as constructed in 1972 did not,

however, invest EPA with authority to regulate

nonpoint source pollution. In 1987, Congress

amended the Act to address “the growing national

awareness of the increasingly dominant influence of

nonpoint source pollution on water quality[.]’”*

The 1987 CWA amendments added the following goal:

It is the national policy that programs

for the control of nonpoint sources of

pollution be developed and implemented

in an expeditious manner so as to enable

the goals of this Act to be met through

the control of both point and nonpoint

sources of pollution.

33 U.S.C. 1251(a)(7). To meet this goal, the 1987

amendments added section 319 to the CWA to require

states to assess nonpoint source pollution problems

and causes, and to adopt and implement nonpoint

source management programs 33 U.S.C. § 1329(a)

and (b).

Just three years later, Congress made another

attempt to address states’ lack of nonpoint source

® EPA, NOAA Guidance Specifying Management Measures For

Sources Of Nonpoint Pollution In Coastal Waters, EPA 840 B 92

002 January, 1993, at 1-2 available at http://www.gpo.gov/fdsys/

pkg/CZIC kf3790 u56 1993/htmY/CZIC kf3790 u56 1993.htm.

controls. The Coastal Zone Act Reauthorization

Amendments of 1990 (CZARA) recognized that

"{njJonpoint source pollution is increasingly recognized

as a significant factor in coastal water degradation.”

CZARA Sec. 6202(a)(5).2 CZARA required EPA and

the National Oceanic and Atmospheric

Administration (NOAA) to co-administer the coastal

nonpoint pollution program. 16 U.S.C. § 1455b.

CZARA did not give EPA and NOAA direct

authority to establish nonpoint source controls but,

rather, it required them to approve or disapprove

state coastal nonpoint source control programs 16

U.S.C. § 1455b(c). States with approved programs

may continue to obtain federal grant funding but

where states have not gained approval by specific

dates set out in the statute EPA and NOAA are

required to cut federal grants by specific percentages,

16 U.S.C. § 1455b(c)(3) and (4).

Despite the unambiguous requirement for

mandatory cuts in federal grants to coastal states not

controlling nonpoint source pollution, EPA and NOAA

® Land uses in the coastal zone, and the uses of adjacent lands

which drain into the coastal zone, may significantly affect the

quality of coastal waters and habitats, and efforts to contro]

coastal water pollution from land use activities must be

improved. 16 U.S.C.§ 1451(k).

have ignored the statutory deadlines for such cuts.'”

Despite repeated findings that states’ nonpoint source

programs are inadequate and thus not approvable,

EPA and NOAA have never disapproved any state's

coastal nonpoint source pollution control plan. Id.

If. “Nonpoint source pollution remains the

leading cause of impairment of the

nation’s waters.”

Point source regulation under the NPDES

permit system has made significant strides in

reducing pollutant discharges to ensure that point

sources are not causing or contributing to violations of

water quality standards. In contrast, as a direct

result of EPA’s reliance on states’ control of nonpoint

source pollution, the country’s efforts to clean up

widespread water pollution from nonpoint sources

have largely failed. As of 1993, some sixty percent of

state water quality standards violations in the

country were caused by nonpoint source pollution."

and Coastal Resource Management, Coastal Nonpoint Program

Approval Findings: http://costalmanagement.noaa.gov/nonpoint/

pro_approve.html.

" Robert L. Glicksman, Pollution on the Federal Lands II:

Water Pollution Law, 12 J.Envtl. L. & Policy 61, 71-73

Fifteen years later, according to EPA, nonpoint

sources remained the dominant source of surface

water pollution nationally.'? According to the

Government Accountability Office,

Forty years after the 1972 Clean Water

Act recognized the problem of water

pollution from diffuse, or nonpoint,

sources—such as runoff from farms or

construction sites—nonpoint source

pollution remains the leading cause of

impairment of the nation’s waters. The

Environmental Protection Agency (EPA)

reports that more than 33,000 water

bodies nationwide are impaired

(Cont.’d)

(1993)(nonpoint sources responsible for “about sixty percent of

state water quality standard violations”); See also William L.

Andreen, Water Quality Today—Has the Clean Water Act Been a

Success? 55 Ala. L. Rev. 537, 544 n.36 (2004), 42.

'? EPA, National Probable Sources Contributing to

Impairments, http://ofmpub.epa.gov/waters10/attains_nation_cy.

control#prob_source, last accessed October 13, 2012 (59 percent

of assessed river and stream miles violate water quality

standards due to nonpoint sources); Douglas Endicott, Great

Lakes Environmental Center, National Level Assessment of

Water Quality Impairments Related to Forest Roads and Their

Prevention by Best Management Practices at 3 (2008) (Study

commissioned by EPA)(“Endicott Study”).

primarily by such pollution; that is, they

do not meet water quality standards to

provide for, among other things,

propagation and protection of aquatic

wildlife and human use and recreation.

United States Government Accountability Office

(GAO) Report to Congressional Requesters, “Nonpoint

Source Water Pollution: Greater Oversight and

Additional Data Needed for Key EPA Water Program”

(“GAO 2012 Report”), May, 2012 at 1 (emphasis

added). Reviewing EPA’s nonpoint source program

for the past 22 years, the GAO concluded

In 1990, when we last reported on EPA’s

section 319 [nonpoint source grant] program,

we found that inherent conflicts existed

between some federal agencies’ policies and

states’ water quality goals. Pollution trends

since that time suggest that such inherent

conflicts and their downstream consequences

remain today.

Id. at 2. After nearly a quarter century, the condition

of the nation’s waters suggests to the GAO that states

have been unable to control nonpoint source pollution

and, as a consequence, pollution from nonpoint

sources “remains the leading cause of impairment to

the nation’s waters.” Jd. Nonpoint source controls

are not working.

In Oregon, forestry has been one of the top

three non-NPDES permitted sources of water quality

impairment, affecting some 7,580 miles of waterways

in 1992.'* Sedimentation and turbidity accounted for

1,260 miles of those impairments. IZd., Figure 3.2-1a.

III. Forests as Polluted Water Sources

The water most Americans drink comes from

the woods. Four out of five of our rivers begin in

forested lands:

Forests cover about one-third of the continental

United States. Most major rivers and streams

originate in forested catchments, and 80

percent of the nation's freshwater sources

originate in these forests. In 2000, the US

Forest Service (USFS) calculated the marginal

value of water from all National Forest System

(NFS) lands to be at least $ 3.7 billion per year.

Between 50 and 75 percent of the population of

the United States relies on forest lands for good

quality water, and approximately 60 million

people rely on NFS lands as the primary

*3 Oregon Department of Environmental Quality, Oregon's 1992

Water Quality Status Assessment Report, 305(b) Report, April

1992, Fig 3.2-1(b), page 3-9.

source of their drinking water.

EPA, Notice of Intent to Revise Stormwater

Regulations, etc., 77 Fed. Reg. 30473, 30476 (May 23,

2012). Sediment pollution from logging on the

nation’s public and private forests has a significant

negative impact on fresh water for drinking,

recreation, and fish habitat:

Stormwater discharges from logging roads,

especially improperly constructed or

maintained roads, may introduce significant

amounts of sediment and other pollutants into

surface waters and, consequently, cause a

variety of water quality impacts.

Id. The logging industry is among the top twelve

probable sources of impaired water quality in the

nation, known to be muddying fresh water in 19,444

miles of rivers and streams. Jd. Still, almost three

quarters of rivers and streams, over half of lakes,

reservoirs and ponds, and most coastal waters have

not yet been assessed. Id.

Sediment discharges in stormwater from

logging roads harm “dozens of sensitive aquatic biota

such as salmon, trout, amphibians, and the entire

food chain on which their survival and the biological

complexity of the waters depend.” Jd. Such sediment

discharges also threaten municipal drinking water

systems. See infra at 29-32.

”

EPA has commissioned research to study the

nationwide effects of forestry operations on sediment

in streams. Endicott Study, supra. That research

found that “forestry-related sediment is a leading

source of water quality impairment to rivers and

streams nationwide.” Jd. at 2. EPA guidance for

coastal nonpoint source pollution control programs

emphasizes that “up to 90% of the total sediment

production from forestry operations” comes from

logging roads and stream crossings.'*

Evaluating for EPA the effectiveness of state

“best management practices” (“BMPs”) in addressing

forest road impacts on water quality, the Endicott

Study concluded that such BMPs are “largely

procedural, describing the steps to be taken in

determining how a site will be managed,” but they

lack “practical in-stream criteria for regulation of

sedimentation from forestry activities.” Endicott

Study at 70. This EPA-commissioned study also

found that BMPs are often defined and implemented

based on what is practicable in view of “technological,

economic, and institutional consideration” Id. at 72.

In other words, state BMPs are often established on

* EPA, Guidance Specifying Management Meusures For

Sources of Nonpoint Pollution in Coastal Waters, EPA Guidance

Paper 840-B-93-001c, at 27 (1993).

grounds other than what is required to meet state

water quality standards.*®

That is certainly true with respect to forest

operations in Oregon, where the instant case arose.

Nonpoint source regulation is, in Oregon forests, an

exercise in nominal compliance by legislative

presumption: BMPs are presumed by statute to meet

water quality standards.’® That presumption is

contrary to fact.

IV. Nonpoint source pollution control of

forestry operations is not improving: An

Oregon Chronology

The historical record of Oregon’s efforts to

control water pollutants from logging shows

deterioration, not progress.

8 While the substantive inadequacies of forestry BMPs to

achieve water quality standards are many and varied, some

such flaws apply generally. For example, Washington is the

only state that requires modern BMPs to be applied to old forest

roads. Endicott Study at 118-19. In other states, such roads are

“grandfathered” and continue discharging sediment to forest

rivers and streams without use of modern management

practices. Id.

6 ORS 527.770 and text infra at 39-44.

A. 1998 — Oregon Forest Practices Fail

to Meet Water Quality Standards

and CZARA Requirements

Notwithstanding CZARA's statutory

requirement to approve or disapprove coastal states’

nonpoint source pollution control programs,’’ EPA

and NOAA have failed to act on Oregon’s deficient

program — and the programs of every one of the other

34 states and territories covered by CZARA — by the

deadlines set out in the statute.'* In 1998, however,

the federal agencies did discuss why they were not

approving Oregon’s coastal nonpoint program,

identifying conditions the state needed to meet to

gain “full” approval. ’’ In their findings, EPA and

NOAA stated:

Although Oregon has the basic legal and

programmatic tools to implement a

forestry program in conformity

’ Discussed supra at 8-11.

'® National Oceanic and Atmospheric Adminstration, Ocean and

Coastal Resource Management, Coastal Nonpoint Program

Approval Findings http://coastalmangement.noaa.gov/nonpoint/

pro_approve.html.

'? EPA, NOAA, A Pollution Prevention and Control Program for

Oregon's Coastal Waters: Supplemental Information in Response

to the Federal Findings of January 1998, (April 1999).

with[CZARA], these tools are inadequate

to ensure that water quality standards

are attained and maintained and

beneficial uses protected. This conclusion

is based on best available information,

including the most recent [CWA] 303(d)

listings for Oregon waters, which

indicate water quality impairments from

forestry. Related to these water quality

impairments, Oregon has a number of

aquatic species, in particular

anadromous salmonids, that are

endangered, threatened, or otherwise

seriously at risk, due in part to forestry

activities that impair coastal water

quality and beneficial uses, including

salmon spawning, rearing, and

migration habitat. * * *

Thus, Oregon will need to adopt

additional management measures for

forestry in areas adjacent to coastal

waters not attaining or maintaining

applicable water quality standards or

protecting beneficial uses, or that are

threatened by reasonably foreseeable

increases in pollutant loadings from new

or expanding forestry operations|.]

Id.

As a consequence of their findings, EPA and

NOAA required Oregon to identify and begin applying

additional management measures for forestry, as

needed to meet water quality standards, within two

years to specifically address “protection of medium,

small, and non-fish bearing streams, including

intermittent streams; protection of areas at high risk

for landslides; the ability of forest practices to address

cumulative impacts of forestry activities; road density

and maintenance, particularly on so-called “legacy”

roads; and the adequacy of stream buffers for

application of certain chemicals.” Jd.

B. 1999 ~ Oregon Science Team

Concurs with EPA and NOAA that

Oregon Forest Practices are

Inadequate to Meet Water Quality

Standards.

The Independent Multidisciplinary Science

Team (IMST) is a scientific review panel charged with

advising the State of Oregon on matters of science

related to the Oregon Plan for Salmon and

Watersheds established in 1997.” In 1999, the IMST

issued a report that echoed the 1998 CZARA findings

2° ORS 541.914.

of EPA and NOAA. The IMST found that Oregon's

forestry operations BMPs were inadequate to, inter

alia, protect small non-fish-bearing streams which

are essential to recovery of wild salmonids, protect

floodplains to prevent erosion, and recruit sufficient

woody debris to streams.”'

The IMST’s findings on small non-fish-bearing

streams in particular demonstrate the fallacy that

state forestry regulations in Oregon are adequate to

meet water quality standards. A common rule of

thumb is that a full 75 percent of a watershed is

composed of non-fish-bearing streams.** The IMST

recommended that Oregon rules that provide for no or

limited riparian buffers on such non-fish bearing

streams, riparian buffers should be required because

” Independent Multidisciplinary Science Team, Recovery ef

Wild Salmonids in Western Oregon Forests: Oregon Forest

Practices Act Rules and the Measures in the Oregon Plan for

Salmon and Watersheds, Technical Report 1999-1, (“(IMST

Forestry Report”) September 8, 1999 at 31-32 available at

http://www.fsl.orst.edu/imst/reports/1999-1.pdf(last accessed

October 16, 2012).

22 Pacific Northwest Research Station, U.S. Forest Service,

Saving Streams at Their Source: Managing for Amphibian

Diversity in Headwater Forests, 99 Science Findings 1 (January

2008) available at http://www.fs.fed.us/pnw/sciencef/scifi99. pdf

(last accessed October 3, 2012).

of the importance of small streams to watershed

functions. IMST Forestry Report at 43-44. Since the

IMST report Oregon has made no changes to riparian

buffers on non-fish-bearing streams.

In particular, the IMST Report evaluated

research on the contribution of fine sediment from

logging roads, concluding that “there is significant

scientific evidence to show that management actions

can influence chronic sediment production from roads.

This evidence is well documented and is known to

{the Oregon Department of Forestry].”” The science

panel went on to state that fully one third of road

systems on state and private land in western Oregon

“can deliver sediment to streams by ditch delivery”

and that “reducing the amount of road drainage water

that flows into channels can reduce sediment delivery

to streams.” Jd. (emphasis added).

The IMST specifically focused on the impact of

forestry operations on sedimentation of rivers and

streams because “[f]orestry operations increase the

amount of chronic and episodic production of fine

sediments. Disproportionally high amounts of fine

sediment, compared with the coarser elements of

stream structure (large wood, boulders, gravel, and

cobble) diminish the quality of habitat for wild

23 Id. at 80.

salmonids.” Jd. at 39. The science panel pointed to

ways in which excess fine sediment can be reduced by

“designing, locating, constructing, and maintaining

[logging] roads to minimize failure and to prevent

road drainage from entering streams|.]” Jd. The

IMST concluded that Oregon’s BMPs were inadequate

to contro] sedimentation from logging roads including,

specifically, “road drainage directly into channels.”

Id. at 32. Consequently, the IMST made a number of

recommendations to change logging road regulations.

Id. at 46-47. The minimal rule changes made

subsequently did not respond to the IMST’s

recommendations.

C. 2001 - Nonpoint source regulation

under the Oregon Forest Practices

Act “is not sufficient to accomplish

the recovery of wild salmonids.”

Conditions in Oregon waters affected by

forestry have continued to degrade. In 2000, the

Oregon Department of Environmental Quality and

Department of Forestry submitted for federal review

a “Sufficiency Analysis: Stream Temperature” (known

as the SAST). The Sufficiency Analysis focused on

temperature because Oregon has numeric

temperature criteria in its water quality standards,

in contrast to its difficult-to-interpret sediment

narrative criterion,’ and the parameter is also

relatively easy and inexpensive to monitor. As a

result, Oregon’s CWA section 303(d) program for

identifying impaired waters and developing TMDL

clean-up plans to address the pollutant impairments

has likewise been focused on temperature.”

Stream temperature is directly related to

excess sedimentation and therefore acts as a measure

of many nonpoint source impacts. As Oregon’s IMST

explained, changes in channel morphology, the flow of

groundwater and subsurface water, and the removal

of riparian vegetation — all of which are results of

forestry operations — can be measured as increases in

stream temperatures.”’ In particular, sedimentation

24 OAR 340-041-0028(4).

25 OAR 340-041-0007(12).

*® See, e.g., DEQ, Oregon TMDLs Approved by EPA - May 2000

through October 112 (sic, 2010), http://www.deq.state.or.us/

WQ/TMDLs/approved.htm (last accessed October 14, 2012).

”7 IMST, Oregon's Water Temperature Standard and its

Application: Causes, Consequences, and Controversies

Associated with Stream Temperature, A Report of the

Independent Multidisciplinary Science Team, Oregon Plan for

Salmon and Watersheds, Technical Report 2004-1, May 7, 2004,

of streams increases temperature. Id. at 67-68.

Three federal agencies reviewed Oregon’s draft

Sufficiency Analysis — the Environmental Protection

Agency (EPA), the U.S. Fish and Wildlife Service

(USFWS) and the National Marine Fisheries Service

(NMFS). Their cover letter to the state agencies

summarized their conclusions, based on

“overwhelming” evidence, that Oregon forest practices

were not satisfying the Clean Water Act (CWA) or the

Endangered Species Act (ESA)”* :

We realize that it is not possible to

determine the exact magnitude of forest

practice effects to stream temperature

for specific stream reaches in a statewide

sufficiency analysis. The evidence is,

however, overwhelming that forest

practices on private lands in Oregon

contribute to widespread stream

(Cont.’d)

Figure 4 at 67 available at http://www.fsl.orst.edu/imst/reports/

2004-01.pdf (last accessed October 16, 2012).

28 EPA, NOAA, NMFS, Review of the December 2001 [sic, 2000]

Draft Sufficiency Analysis: Stream Temperature (Oregon

Departments of Forestry and Environmental Quality) by the

Environmental Protection Agency, National Marine Fisheries

Service, and U.S. Fish and Wildlife Service (February 2001),

cover letter February 28, 2001 at 2.

temperature problems and degraded

salmonid habitat conditions. These

effects of forest practices do not meet the

goals of the CWA or ESA.

The federal agencies also concluded that Oregon’s

own 2000 “Sufficiency Analysis” validates the

findings of the 1999 Oregon IMST that the practices

established by the Oregon Forest Practices Act are

“not sufficient to accomplish the recovery of wild

salmonids.””* Id.

The federal agencies also criticized Oregon’s

almost exclusive focus on temperature impacts of

shade cast by trees and the state’s concurrent failure

to consider the role of sedimentation in evaluating the

sufficiency of the state’s forestry practices.”

Specifically, the agencies cited studies showing

forestry operations cause accumulations of fine

sediment that clog salmon spawning gravels.*’ Citing

the numerous ways in which logging roads increase

sedimentation of streams, especially fine sediments,

the federal agencies concluded “[t]he FPA rules do not

= “Attachment 1" at 9.

1 Id. at 7-8

provide adequate measures to address the above

sediment-related factors [of road effects]”**.

D. 2003 —- Forestry management “does

not yet meet conditions.”

Two years later, on January 10, 2003, EPA and

NOAA compiled comments on Oregon’s Coastal

Nonpoint Pollution Control Program pursuant to

CZARA for Oregon’s Department of Environmental

Quality staff. Again the federal agencies found “[t]he

significant management measure in this group of

program components that does not yet meet

conditions is the additional management measure for

forestry.”* The federal agencies also recognized the

particular significance of this deficiency to Oregon

coastal water quality because

forestry is the predominant land use in

the coastal watersheds and since the

[Forest Practices Act] and [forestry

32 Id. at 8-9.

33 EPA/NOAA, 6217 Boundary Decision; and Response to

Oregon’s Supplemental Information in response to the Federal

Findings of January 1998, submitted April 1999, January 2002,

and October 2002 (A “2003 Boundary Decision”), cover letter

January 10, 2003 at 1.

regulations] are most often put forward

as the implementation plan for Total

Maximum Daily Loads (TMDLs) [to meet

water quality standards] on private and

state forest lands.

Id. Plainly, as of 2003, nonpoint source controls were

still not working to control pollution from forest

operations treated as nonpoint sources.

E. 2008 - EPA and NOAA Reconfirm

that Oregon’s Forest Practices Fail

to Meet Water Quality Standards

In 2008, noting the continuing failure by

Oregon to meet CZARA requirements for forestry,

EPA and NOAA stated yet again that “[a] broad body

of science continues to demonstrate that the [Forest

Practices Act] rules do not adequately protect water

quality.”** The federal agencies went on to conclude

that:

Based on Oregon’s recent submittal and our

understanding of Oregon’s Forestry

Program, EPA and NOAA still believe that

Oregon lacks adequate management

*4 EPA, NOAA, NOAA and EPA Preliminary Decisions on

Information Submitted by Oregon to Meet Coastal Nonpoint

Program Conditions of Approval, June 12, 2008 at 10.

Id.”

measures under the Oregon Forest Practices

Act (FPA) rules for protecting water

quality and the degradation of beneficial uses

from forestry activities. EPA and

NOAA’s primary concerns, stated in the 1998

conditional findings and reiterated

in the 2004 interim decision document, remain.

Oregon still lacks adequate

measures for protecting riparian areas of

medium, small and non-fish bearing

streams, high risk landslide areas, and for

addressing the impacts of legacy roads.

F. 2010 —- Nonpoint source forest

pollution causes Oregon Coast

municipal water systems to suffer

“long term concerns about system

viability or increased treatment

costs.”

In June, 2010, the Oregon Department of

Environmental Quality(DEQ) issued an assessment of

the effects on drinking water of turbidity in Oregon

35 In 2009, NWEA challenged the federal agencies’ continuing

failure to take a final approval or disapproval action on Oregon's

coastal nonpoint pollution control program. NWEA uv. Locke.

Civil No. 09-0017 (D. OR.)

coastal watersheds.* Turbidity — suspended solids,

causing cloudiness, in water — “may interfere with

public water system operations, can increase

operational costs and can also cause shutdowns.

Evaluating eight public water systems, DEQ

937

concluded:

there are long-term concerns about

system viability or increased treatment

costs at five systems (Arch Cape Water

District and the cities of Astoria,

Carlton, Siletz, and Yamhill), based on

large numbers of high-turbidity days

anW@or increasing numbers of

high-turbidity days recorded in daily

water samples for these systems. Also,

DEQ found that turbidity is increasing

in the long term in Drinking Water

Source Areas for five systems, remains

stable at one system, and is decreasing

at two others.

= DEQ, “Turbidity Analysis for Oregon Public Water Systems:

Water Quality in Coast Range Drinking Water Source Areas”

(“Turbidity Analysis”), June 2010 available at:

http://www.deq.state.or.us/wq/dwp/docs/TurbidityAnalysisOrego

nPWS201006.pdf (last accessed October 17, 2012).

37 Td. at 1.

Id. As has been previously noted, Oregon’s coastal

watersheds are mostly forest land. Not only is

forestry the predominant use in these watersheds but

forested lands are the primary source of drinking

water for area communities.”

For more than half of the coastal municipal

water systems evaluated in the 2010 DEQ study, the

agency still has long-term concerns about whether the

systems can remain viable or whether the costs of

treating turbid water are likely to increase. That

trend is not improvement, consistent with the goals of

the CWA but, rather, declining water quality. Oregon

nonpoint source controls for forestry operations are

not working to keep this drinking water clear.

Moreover, the 2010 Turbidity Analysis appears to

demonstrate a state unwillingness to act upon the

existing data that demonstrate forest practices’ effects

on water quality. Referring to the state’s 2002

“Sufficiency Analysis,” the 2010 DEQ study claims

that there are not enough data upon which to improve

forest practice:

% 9003 Boundary Decision, supra, cover letter at 1 (“forestry is

the predominant land use in the coastal watersheds”);

Turbidity Analysis at 1 (“Drinking Water Source Areas for these

Coast Range systems are predominantly forested.”).

The [Sufficiency Analysis] identifies that

the effects of practices along small

non-fish-bearing streams on downstream

sediment regimes is an issue that needs

research and that data are lacking on

turbidity and fine sediment effects of

forest practices. The data and scientific

literature in this report may be able to

meet some of these identified data gaps

and research needs.

Id. at 37. In contrast, however, DEQ’s claim of data

deficits being on “turbidity and fine sediment effects

of forest practices,” the state’s own independent

science panel — the IMST- and three federal agencies

had already concluded that the generation of fine

sediment by logging operations, including roads, was

causing demonstrable water quality problems.

Nonpoint source regulation is not protecting

drinking water from the effects of forest practices in

Oregon coastal watersheds.

G. 2011 - Biological Review Team

Confirms Forestry Threatens Fish

Survival in Oregon Coastal

Watersheds

On February 11, 2008 the National Marine

Fisheries Service (NMFS) issued its final

determination listing the Oregon Coast coho salmon

as a threatened species under the Endangered

Species Act.*® In its 2011 status update for the

species, NMFS noted that “[t]imber harvest and

associated roads have extensively altered aquatic

ecosystems... which in turn has consequences for

fish populations and their habitat[.]”*° Stating that

water quality has long been identified as a factor for

decline of Oregon Coast coho salmon, NMFS noted

that 40 percent of species’ distribution miles are

known to be impaired for temperature, id. at 68, and

that the effects of forestry operations were most

pronounced on private and state lands. Jd. at 55.

The Biological Review Team was particularly

oncerned with the effects of logging roads on water

quality in the watersheds inhabited by the species,

finding that the “condition of aquatic habitat and fish

populations is also directly correlated with the

density of roads in a watershed,”id. at 53, and noting

that there were high levels of sediment in streams of

3° 73 Fed. Reg. 7816 (Feb. 11, 2008).

Report of the Biological Review Team,Scientific Conclusions of

the Status Review for Oregon Coast Coho Salmon

(Oncorhynchuskisutch) May 16, 2011 at 53, available at

http://www.nwr.noaa.gov/Publications/Biological-Status-Review

s/upload/OCC-review-2011.pdf (last accessed October 16, 2012).

the Oregon Coast range. Jd. at 59. It also cited the

impacts of logging roads on water quality, finding no

improvement over the ten-year period of

consideration, 1998 to 2008. Id. at 60. The science

team finally concluded that “effects of logging

activities and associated road building on stream

conditions, the wide-spread occurrence of these

activities, and lack of any sign that logging activities

are abating, {must be taken] as indications that these

threats to habitat are pervasive and ongoing in the

[Oregon Coast] coho Salmon|[.}” Id.

H. More Oregon waters fail to meet

water quality standards for

sedimentation and temperature now

than 10 years ago.

Under section 303(d) of the CWA, states must

list all of the waters under their jurisdiction that do

not meet water quality standards or are not expected

to meet those standards with the application of

pollutant limitations prescribed in the Act. 33 U.S.C.

§ 1313(d). Waters are listed on this “303(d)” list with

respect to particular impairments, thus a stream

segment must be “listed for sedimentation” if that

segment does not meet the state’s water quality

standard for sediment. Comparing a state’s 303(d)

lists over time provides a fair indication whether a

state is making progress with respect to controlling a

particular pollutant. If regulatory and non-regulatory

nonpoint source controls were succeeding in Oregon,

one would expect to see fewer waters listed as

impaired by logging over time.

That is not what Oregon’s 303(d) lists of

impaired waters show; indeed the trend is very much

in the opposite direction. The Oregon 303(d) list for

2002 included 65 segments listed for sedimentation.*’

The 2004/2006 list had 106,*? and the most recent list,

for 2010, showed 143 segments,** more than double

*" DEQ, Water Quality: Water Quality Assessment, Search

DEQ's 2002 303(d) List Database ("2002 database”),

http://www.deq.state.or.us/wq/assessment/rpt02/searchlist.asp

(query set at "all waterbodies” and "sedimentation”").

*2 DEQ, Water Quality Assessment - Oregon's 2004/2006

Integrated Report Database, Review the 2004/2006 Integrated

Report Database ("2004/6 database"), http://www.deq.state.or.

us/wq/assessment/rpt0406/search.asp (query set at “all

watersheds,” “sedimentation,” and Water Quality Limited

TMDL needed - 303(d)” and "Water Quality Limited TMDL not

needed - TMDL approved”).

s DEQ, 2010 Database, Water Quality Assessment - Oregon’s

2010 Integrated Report Assessment Database and 303(d) List,

Review the 2010 Integrated Report Database (“2010 Database”),

http://www.deq.state.or.us/wq/assessment/rpt2010/search.asp

(query set at “All subbasins,” “All waterbodies,” “sedimentation”

and "Water Quality Limited - All (Categories 4 and: 5).”; Letter

from Michael A. Bussell, EPA to Greg Aldrich, Oregon DEQ,

the number listed as impaired in 2002.

Oregon’s listings for biocriteria violations,

which are an indicator of excess sedimentation,**

demonstrate a similar increasing trend with 24

segments listed in 2002,* 37 segments in 2004/6,”

(Cont.’d)

Partial Approval/Partial Disapproval of Oregon's Final 2010

303(d) List, Enclosure 3: Proposed Additions to Oregon's 2010

303(d) List (March 15, 2012) available at, http://www.epa.gov/

region 10/pdf/water/303Woregon/Final_Enclosure_3_EPA_Propos

ed_Additions_OR2010.pdf.

= DEQ, Methodology for Oregon's 2010 Water Quality Report

And List of Water Quality Limited Waters (Pursuant to Clean

Water Act Sections 303(d) and 305(b) and OAR 340-041-0046),

May 12, 2011, available at http://www.deq.state.or.us/wq/

assessment/docs/2010AssessmentMethodology.pdf

(biomonitoring reflects excess sedimentation).

- DEQ, 2002 Database (query set at “all waterbodies” and

“biocriteria"). (See supra footnote 44)

= DEQ, 2004/6 Database (query set at “all watersheds,”

“biocriteria,” and Water Quality Limited TMDL needed - 303(d)"

and "Water Quality Limited TMDL not needed TMDL

approved"). (See supra footnote 45)

and 361 segments proposed for the 2010 list,*’ a

15-fold increase in less than a decade. Temperature

listings mirror this trend with 1,087 listings in

2002,* 1,314 listings in 2004/6,** and 1,444 listings in

2010.”

Oregon’s failure to control nonpoint source

pollution, including forestry operations and sediment

from logging roads, is an example of a nationwide

problem. Nationally, sedimentation is the second

most frequent cause of impairment in the nation's

nal DEQ, 2010 Database, (query set at “All subbasins,” “All

waterbodies,” “biocriteria” and "Water Quality Limited - All

(Categories 4 and 5).”; Letter from Michael A. Bussell, EPA to

Greg Aldrich (See supra Footnote 46)

= DEQ, 2002 Database, (query set at “ail waterbodies” and

"temperature"). (See supra footnotes 44 & 48)

7 DEQ, 2004/6 Database, (query set at “all watersheds,”

“temperature,” and Water Quality Limited TMDL needed -

303(d)” and "Water Quality Limited TMDL not needed - TMDL

approved"). (See supra footnotes 45 & 49)

* DEQ, 2010 Database, (query set at “All subbasins,” “All

waterbodies,” “temperature” and "Water Quality Limited - All

(Categories 4 and 5).” (See supra footnotes 46 & 50)

assessed streams and rivers.*' Washington, which

shares a similar landscape to Oregon’s has

experienced the same increase in impaired waters

over time. While Washington does not monitor for or

identify sediment as a pollutant,” temperature is a

measure of excess sedimentation as discussed supra

at 24-25. In Washington, 303(d) listings of waters for

temperature impairment jumped from 428 in 1996,”

” EPA, National Causes of Impairment, Watershed Assessment,

Tracking & Environmental Results, http://ofmpub.epa.gov/

waters10/attains_nation_cy.control#causes.

°? Washington Department of Ecology, Assessment of Water

Quality for the Clean Water Act Section 303(d) and 305(b)

Integrated Report, WQP Policy1-11, July 2012, available at

http://www.ecy.wa.gov/programs/wq/303d/W Qpolicy1-11ch1.pdf

°3 Washington Department of Ecology, Water Quality

Assessment for Washington, Simple Query Tool, 2008 Water

Quality Assessment, http://apps.ecy.wa. gov/wats08/, (query set

at “temperature,” “current 2008 category: ALL,” and 1996 303(d)

List: Y[es].

to 431 in 1998, 930 in 2004, and 1,343 in 2008,” a

three-fold increase over 16 years.

V. Oregon’s water quality standards are not

the benchmarks for forest water quality

in Oregon.

Oregon’s Forest Practices Act (OFPA) only

nominally requires logging practices to attain

Oregon’s EPA-approved water quality standards.

First, while the OF PA provides that logging practices

must “not impair the achievement and maintenance

of water quality standards” it also explicitly requires

* Washington Department of Ecology, Water Quality

Assessment for Washington, Simple Query Tool, 2008 Water

Quality Assessment, http://apps.ecy.wa.gov/wats08/, (query set

at “temperature,” “current 2008 category: ALL,” and 1998 303(d)

List: Y[es].

°° Washington Department of Ecology, Water Quality

Assessment for Washington, Simple Query Tool, 2008 Water

Quality Assessment, http://apps.ecy.wa.gov/wats08/, (query set

at “temperature,” “current 2008 category: ALL,” and 2004

Category 4a, 4b, and 5.

Assessment for Washington, Simple Query Tool, 2008 Water

Quality Assessment http://apps.ecy.wa.gov/watsO8/, (query set at

“temperature,” “current 2008 category: 4a, 4b, and 5.”

those practices to be limited by “technical, economic

and institutional feasibility.”°"’ Second, the Oregon

law provides that existing forestry practices are

deemed to meet water quality standards as a matter of

law.** Although salmon need clear water and gravels

in which to spawn, rear and migrate, and municipal

drinking water systems are limited in how much solid

matter they can filter — the OFPA does not require

that the water in forest streams affected by forestry

operations actually meet the state’s water quality

standards. Instead, the OFPA defines any logging

operation that uses the agency’s “best management

practices” as meeting water quality standards:

“Forest operators conducting operations in accordance

with the PA are considered to be in compliance with

959

Oregon’s water quality standards.

5? ORS 527.765(1)(d).

58 ORS 527.770.

aa “Turbidity” refers to particulate matter suspended in the

water column. “Sediment” refers to particles that settle in the

streambed. In fact, though Oregon has a numerical criterion for

“turbidity”, OAR 340-041-0036, and basin-specific criteria for

“total dissolved solids”, OAR 340-041-0032, it has no numerical

criterion for the amount of sediment that may be added toa

stream by a given activity. Whether soil runoff creates turbidity

or sedimentation depends, among other conditions on the

The Oregon turbidity™ standard provides that

there shall be no more than a ten percent cumulative

increase in stream turbidity as a result of any

activity.’ However, it makes no difference under the

Oregon logging statute whether a forestry operation

is causing the turbidity in a stream to actually

increase by more than ten percent in the stream

because the logging practices are not actually

required to meet water quality standards. Water

quality standards required under the CWA to protect

drinking water and salmon spawning streams are

conclusively presumed to be met if the practices

defined as “best management practices” (BMPs) are in

place. This is not a matter of interpretation; it is

explicit in the statute:

A forest operator conducting, or in good

faith proposing to conduct, operations in

(Cont.’d)

solubility of those soils.

6 Memorandum from Directors of Oregon Department of

Forestry and Oregon Department of Environmental Quality,

October 17, 2002, covering “Sufficiency Analysis: A statewide

Evaluation of Forest Practices Act Effectiveness in Protecting

Water Quality”’(emphasis added).

81 OAR 340-041-0036.

accordance with the best management

practices currently in effect shall not be

considered in violation of any water

quality standard.

ORS 527.770.

Likewise, the repeated conclusions of numerous

scientists at numerous agencies that Oregon’s forest

practices lead to violations of temperature and

sediment criteria and pose a threat to designated

uses, including threatened and endangered species,

are rendered irrelevant by the Oregon forest practices

statute.

It is no wonder that water quality impairments

caused by forestry operations continue, on the 40"

anniversary of the 1972 CWA amendments, to cause

water quality standards to be violated. Those water

quality standards, approved by EPA™ and required by

the Act to be the means by which water uses are

protected, are not the actual measures with which

forest operators in Oregon must comply. Instead, it is

the BMPs — which have been demonstrated year after

year to be deficient,— that provide the actual

requirements for forestry operations, far divorced

®2 The CWA requires states to enact, and EPA to approve, water

quality standards sufficient to protect uses of the state’s waters.

33 U.S.C. §1313(c).

from the state’s actual water quality standards. As

the Oregon District Court put it, discussing the state’s

water quality standards for temperature earlier this

year in NWEA v. EPA, supra,

For instance, OAR 340-041-0028(12)(e)

provides that forest operations on State

and private lands are to comply with

water quality standards for temperature

by implementing best management

practices ("BMPs") already required

under the Forest Practices Act (ORS

527.610-992) and that forest operations

that comply with the BMPs are "deemed

in compliance with" temperature

standards. This,and other provisions,

essentially exempt various nonpoint

sources of heat pollution from complying

with water quality standards so long as

they maintain the status quo. * * *

Given that many temperature impaired

waters in Oregon are impaired in whole

or in part by nonpoint sources of

pollution, the challenged provisions

could present a considerable obstacle to

the attainment of water quality

standards when, by law, the sources of

pollution are deemed to be in compliance

with water quality standards.

855 F. Supp2d at 1209-10 (emphasis added). In fact,

the laws that apply to Oregon forestry operations as a

“nonpoint source” pi 2sent just such an obstacle to

achieving clean and clear water quality:

While the challenged provisions may not

meet the EPA's definition of "water

quality standards" those provisions

clearly have the potential to interfere

with the attainment of water quality

standards by effectively supplanting

those standards as they apply to

nonpoint sources, possibly for years at a

time.

Id. at 23.

As shown above, this is not only a theoretical

legal problem. On the ground, and in the water, the

basic and historical uses of Oregon waters — from

municipal drinking water to salmon spawning and

rearing — are not protected from nonpoint source

pollution from forest operations. Nonpoint source

“pollution control” does not work for Oregon forestry.

VI. Conclusion

According to the GAO, EPA, NOAA and NMFS,

nonpoint source forest water pollution control has not

worked nationally, including in Oregon. According to

Oregon’s section 303(d) reports of polluted stream

segments, and the state’s own independent science

team, nonpoint source controls have not worked for

Oregon forestry. The NPDES program that has been

successfully applied to point source regulation can

and should be applied to forest road discharges from

pipes, ditches or other discrete conveyances, which

are point sources. The Court should affirm the

decision of the Ninth Circuit Court of Appeals.

Respectfully Submitted,

James S. Coon (Counsel of Record)

Swanson, Thomas, Coon & Newton

820 SW Second Ave., Suite 200

Portland, OR 97204

(503) 228-5222

jcoon@stc-law.com

October 23, 2012

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.