Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

RECOMD

AND

BRIEF S$ Zn The

Supreme Court of the Anited States

DOUG DECKER, in his official

capacity as Oregon State Forester, et al.,

Nos. 11-338, 11-347

Petitioners,

V.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

+>

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

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

*@

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

>

AMICUS CURIAE BRIEF OF THE PACIFIC

COAST FEDERATION OF FISHERMEN’S

ASSOCIATIONS, INSTITUTE FOR FISHERIES

RESOURCES, HUMBOLDT FISHERMEN’S

MARKETING ASSOCIATION, AND SANTA CRUZ

COMMERCIAL FISHERMEN’S ASSOCIATION

IN SUPPORT OF THE RESPONDENTS

4

ERIC R. GLITZENSTEIN* GLEN H. SPAIN,

MEYER GLITZENSTEIN General Counsel

& CRYSTAL PACIFIC COAST FEDERATION OF

1601 Connecticut Ave., N.W., FISHERMEN’S ASSOCIATIONS

Suite 700 (PCFFA), INSTITUTE FoR

Washington, DC 20009-1063 FISHERIES RESOURCES

(202) 588-5206 PO Box 11170

eglitzenstein@meyerglitz.com Eugene, OR 97440-3370

(541) 689-2000

“Counsel of Record fish lifr@aol.com

for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6064

OR CALL COLLECT (402) 342-2431

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ..............2..00000 1

SUMMARY OF ARGUMENT .......................0 2c eee 2

EE aninnictcncnnaiicinisisainiiscamesatinbpmndmiiatiaeinn 3

I.

If.

Il.

EFFECTIVE REGULATION OF DIS-

CHARGES FROM LOGGING ROADS

UNDER THE CWA IS NECESSARY TO

ENSURE THAT THE ECONOMIC IMPACTS

OF POLLUTION CAUSED BY LOGGING

ROADS ARE BORNE BY THOSE RE-

SPONSIBLE FOR THE POLLUTION

RATHER THAN OTHER BUSINESSES

THAT DEPEND ON UNPOLLUTED WATER

EE idriecrinincvaissemsenabtanegnniantinapbiddinnaine

SALMON-DEPENDENT ECONOMIES DE-

PEND ON UNPOLLUTED SALMON RIVER

IE trcinsccsnsscsencvcsonsonsonsatepessastncnsinasene

ENVIRONMENT-RELATED DECLINES

IN THE ECONOMIC VALUE OF USS.

COMMERCIAL SALMON FISHERIES.....

WIDESPREAD SEDIMENT POLLUTION

IS A MAJOR FACTOR IN POOR RIVER

HEALTH IN BOTH OREGON AND

NORTHERN CALIFORNIA......................

LOGGING ROAD SEDIMENT DIRECTLY

DAMAGES NORTHWEST SALMON HAR-

NET dectivestindinninainecenssamecetpumbinanminmniastes

11

19

il

TABLE OF CONTENTS -— Continued

Page

VI. MANY OTHER INDUSTRIES ARE ALSO

ADVERSELY AFFECTED BY LOGGING

ROAD SEDIMENT POLLUTION ............. 31

FP tcntatininnserestuaseareninciiettexcsimtiminnnnmensia 38

ili

TABLE OF AUTHORITIES

Page

FEDERAL STATUTES

i io ai ecidaigceeasinmsignaeindadinniiad 12

ne i I a ic ceninsinesisiidenibanioinmeindlial 16

ls Ce I gigi ctiicasnrinrisinmnicinmndaneamiaiiedinte 2

IE AP TET 01st ininciinthrecinmnntaiteninbiateniadetameeneniiiiiensans 3

a EG i ST nsncnncndnstniunadsesnnnninionatioinitaaimenianiol 4

ee Oe I inrninneniiniigdininleithinabidiaiidniapinenion 19, 20

LEGISLATIVE HISTORY

A Legislative History of the Water Pollution

Control Act Amendments of 1972, 93d Cong.,

let Sees. (Comma. Pramt 1673) ....cccccccccccscccecccceccese. 4,5

FEDERAL REGISTER NOTICES

62 Fed. Reg. 24588-24609 (May 6, 1997)............. 17, 23

70 Fed. Reg. 37160 (June 28, 2005)...................2ee cece 25

72 Fed. Reg. 834 (January 5, 2006) .......................00- 28

72 Fed. Reg. 26722 (May 11, 2007)...................ceseeeee 28

76 Fed. Reg. 35755, 35766 (June 20, 2011) ......... 23, 24

77 Fed. Reg. 30473, 30476 (May 23, 2012)...... 7, 10, 21

FEDERAL REPORTS

EPA, 2009, National Water Quality Inventory:

2004 Report to Congress, EPA-841-R-08-001

I: BNI EE ED hisinitinssencicsttscnbaitysiitalbcaadionanibhimmaieabaienaeninnadaiael 21

lv

TABLE OF AUTHORITIES — Continued

Page

EPA, ATTAINS website,

WWW.Pa. ZOV/Waters/I© ............ cee eeeeeceeeeeeeees 19, 20, 21

EPA, National Causes of Impairment, http://ofm

pub.epa.gov/waters 10/attains_nation_cy.control

I itera iia ikea aceite ala aitdealitiietialalinaiciiiieininaail 21

EPA, Oregon Water Quality Assessment Report,

http://ofmpub.epa.gov/waters10/attains_state.

I cniscniidsiiisincinnadatineiaiiainatinanoianion 20

LAW REVIEW ARTICLES

Guido Calabresi & A. Douglas Melamed, Property

Rules, Liability Rules, and Inalienability:

One View of the Cathedral, 85 Harv. L. Rev.

UN aici idles ob ialcanieeinhiaeiisiiiaitiinonaneitl 5

Lincoin L. Davies, Skull Valley Crossroads:

Reconciling Native Sovereignty and the Fed-

eral Trust, 68 Md. L. Rev. 290 (2009) ....................... 5

Noah D. Hall, Political Externalities, Federal-

ism, and a Proposal for an Interstate Envi-

ronmental Impact Assessment Policy, 32

Harv. Envtl. L. Rev. 49 (2008) ...............-..ccsssscsssseeees 6

Zygmunt J.B. Plater, Environmental Law and

Three Economies: Navigating a Sprawling

Field of Study, Practice and Societal Govern-

ance in Which Everything is Connected to

Everything Else, 23 Harv. Envtl. L. Rev. 359

Vv

TABLE OF AUTHORITIES — Continued

Page

Jonathan Rosenbloom, New Day at the Pool:

State Preemption, Common Pool Resources,

and Non-Place Based Municipal Collabora-

tion, 36 Harv. Envtl. L. Rev. 445 (2012)............0...... 6

ECONOMIC STUDIES OR REPORTS

ECONorthwest, Salmon, timber, and the econ-

IT TIT iciisninsienteninitninatinebinntadainmmniinennmedabeneioel 30

Gonzalez-Caban, et al., Costs and benefits of

reducing sediment production from wildfires

through prescribed burning: the Kinneloa Fire

case study, 241-52, PROCEEDINGS OF THE SE-

COND INTERNATIONAL SYMPOSIUM ON FIRE ECo-

NOMICS, PLANNING, AND POLICY: A GLOBAL

VIEW, GENERAL TECHNICAL REPORT 208, U.S.

I I ein aleninnataniatitine 32

Hansen, L. and M. Ribaudo, Economic measures

of soil conservation benefits: regional values

for policy assessment, TECHNICAL BULLETIN

1922 (2008), USDA, Economic Research Ser-

ii caicihitaisiieisicacciticdincncéuipiiinminnidadbicemiiaiiiniieetenniaia 36, 37

Hulse, D., G. Grant, E. Niemi, A. Branscomb, D.

Diethelm, R. Ulrich, and E. Whitelaw, Muddy

waters: how floods clarify evolving relation-

ships among landscape processes and resource

management decision-making in municipal

watersheds, EPA/NSF Final Project Report

GAD#R825822, Department of Landscape

Architecture, University of Oregon, Eugene,

EE iniitesinecicpinndinimneseniidendeinbniniiiiiienineieeepe 34

vi

TABLE OF AUTHORITIES — Continued

Knowler, D.J., B.W. MacGregor, M.J. Bradford,

and R.M. Peterman, Valuing freshwater sal-

mon habitat on the west coast of Canada,

JOURNAL OF ENVIRONMENTAL MANAGEMENT,

re Cr Se iccccicneneswvsenisivctinidiammanasbiaiaiiinn 28

Loomis, J.B., The bioeconomic effects of timber

harvesting on recreational and commercial

salmon and steelhead fishing: a case study

of the Siuslaw National Forest, MARINE RE-

SOURCE ECONOMICS, Vol. 5; 43-60, 56 (1988)........... 29

Moore, W.B. and B.A. McCarl, Off-site costs of

soil erosion: a case study in the Willamette

Valley, WESTERN JOURNAL OF AGRICULTURAL

ECONOMICS, 12(1):42-49 (1987) ...............2..2eeeeee 34, 36

NMFS, Fisheries of the United States 2011 (Aug.

SE cnowisscicsccsinsnstasntsiociinndiniseieinemidiasanaaaade 11

Pacific Fishery Management Council, Review of

2011 ocean salmon fisheries (2012) .............2..0.0000+ 18

Pacific Rivers Council, Economic imperative of

protecting riverine habitat in the Pacific

Northwest, Research Report No. 5 (Jan. 1992)....... 13

Pimentel, David, et al., Environmental and eco-

nomic costs of soil erosion and conservation

benefits, SCIENCE, 267:1117-1123 (Feb. 1995)......... 37

Ribaudo, M.O. and D. Hellerstein, Estimating

water quality benefits: theoretical and meth-

odological issues, USDA TECHNICAL BULLETIN

PO See CD ccccccnsntcnniencsnimvinveiinidadiianl 32, 33, 35

Vii

TABLE OF AUTHORITIES — Continued

Page

SCIENTIFIC STUDIES OR REPORTS

Firman, Julie C., et al., Landscape models of

adult coho salmon density examined at four

spatial extents, TRANSACTIONS OF THE AMERICAN

FISHERIES SOCIETY, 140:2, 440-455 (2011).............. 22

Gibbons, Dave R., Salo, Ernest O., An annotated

bibliography of the effects of logging on fish of

the western United States and Canada, GEN.

TECH. REP. PNW-GTR-010 (1973), U.S. Depart-

ment of Agriculture, Forest Service, Pacific

Northwest Forest and Range Experiment

Ee 27

Nehlsen, W., J.E. Williams, and J.A. Lichatowich,

Pacific salmon at the crossroads: stocks at

risk from California, Oregon, Idaho, and Wash-

ington, FISHERIES 16(2):4-21 (1991).................. 13, 15

NMFS, Factors contributing to the decline of

chinook salmon: an addendum to the 1996

west coast steelhead factors for decline report

SE Re er 25

NMFS, Factors for decline: a supplement to the

notice of determination for west coast steel-

head under the Endangered Species Act (Aug.

at tian ilal adintiinininmbumnsenenenited 25, 26, 27

NMFS, scientific conclusions of the state review

for Oregon coast coho salmon (Oncorhynchus

a namomnpeneoneen’ 21

Vii

TABLE OF AUTHORITIES — Continued

Page

Spence, Brian C., et al., An ecosystem approach

to salmonid conservation, Report No. TR-4501-

ee hs i ciieitcscsseanisenidieciensvptsitaninitiiniineaeiiets 11

1

INTERESTS OF AMICI CURIAE'’

Amicus Pacific Coast Federation of Fishermen’s

Associations (PCFFA) is a U.S. west coast-based

commercial fishing industry trade association repre-

senting the interests and fishing heritage of approxi-

mately 1,200 commercial fishing families, many of

whom depend on healthy salmon runs for all or a

portion of their livelihoods. Amici Humboldt Fisher-

men’s Marketing Association and Santa Cruz Com-

mercial Fishermen’s Association are also west coast

commercial fishing industry trade associations whose

members are economically dependent on ocean com-

mercial salmon harvests for all or part of their liveli-

hoods. Amicus Institute for Fisheries Resources is the

marine resource protection and conservation affiliate

of PCFFA, working to restore valuable west coast

salmon fisheries and the aquatic habitats they rely

upon. Amici’s economic interests are directly affected

when excessive sediments from industrial logging

roads are allowed to pollute salmon-bearing rivers,

destroying key salmon habitat and jeopardizing

downriver fishing industry jobs and communities.

—*

‘ Pursuant to S.Ct.R. 37.3(a) and 37.6, the undersigned

represent that (1) all parties consented to the filing of this brief,

(2) no counsel for any party authored this brief in whole or in

part, and (3) no person or entity other than the above-named

amici curiae and their counsel made a monetary contribution to

the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

One of the principal purposes of the Clean Water

Act, 33 U.S.C. §§ 1251-1367 (“CWA”) is to ensure that

those industries that derive economic benefits from

activities that degrade the nation’s waters must bear

the costs associated with those activities, and cannot,

in effect, simply shift those costs to downstream

industries and other economic interests dependent on

clean water and healthy, functioning ecosystems. The

ruling below effectuates that purpose by providing

that those who benefit from industrial logging road

construction and the use of culverts, ditches, and

similar methods for draining polluted stormwater

into streams, rivers, lakes and other water ways must

mitigate those impacts through compliance with the

National Pollutant Discharge Elimination System

(“NPDES”).

In the absence of such compliance, Respondents

and other logging companies will, in contravention of

the CWA scheme crafted by Congress, continue to

shift the costs of their polluting activities to salmon

fisheries and other downstream industries that are in

no way responsible for the pollution and derive no

benefit from it, but which must nonetheless bear the

economic brunt of the ecological harms associated

with such pollution.

Salmon populations throughout the Pacific North-

west and, in turn, the fishermen who depend on those

populations for their livelihoods, are gravely affected

by environmental contaminants that disrupt and

3

impair the complex life cycles of myriad salmonid

species. The severe sedimentation and related turbid-

ity associated with channeled culvert discharges from

industrial logging roads are major contributors to

such impacts in water ways throughout the Pacific

Northwest. Accordingly, the ruling below, which mere-

ly requires industrial timber companies that deliber-

ately channel stormwater into water ways through

culverts, ditches and similar conveyances to comply

with the NPDES program, enforces vital protections

for valuable salmon fisheries and other downstream

economic interests that otherwise must continue to

pay a steep price for polluting practices over which

they have no control.

4

ARGUMENT

I. EFFECTIVE REGULATION OF DISCHARGES

FROM LOGGING ROADS UNDER THE CWA

IS NECESSARY TO ENSURE THAT THE

ECONOMIC IMPACTS OF POLLUTION

CAUSED BY LOGGING ROADS ARE BORNE

BY THOSE RESPONSIBLE FOR THE POL-

LUTION RATHER THAN OTHER BUSI-

NESSES THAT DEPEND ON UNPOLLUTED

WATER BODIES.

The overarching goal of the CWA is to restore and

maintain the chemical, physical, and biological integ-

rity of the nation’s waters. 33 U.S.C. § 1251. In enact-

ing the comprehensive protections mandated by the

Act, and particularly the NPDES program at the

4

heart of the Act, Congress recognized that the degra-

dation of the nation’s water ways not only threatened

the public’s health and recreational uses of rivers,

streams, lakes, and other water bodies, but also that

other national economic interests — particularly those

of fishermen and other downstream businesses not

responsible for the pollution — would also be greatly

benefitted from enhanced regulation. See, eg., A

Legislative History of the Water Pollution Control Act

Amendments of 1972, 93d Cong., lst Sess. (Comm.

Print 1973) (“Leg. Hist.”) at 162 (statement of lead

Senate Sponsor Muskie) (explaining that urgent action

was necessary in view of the “grim realities of lakes,

rivers, and bays where all forms of life have been

smothered by untreated waste, and oceans which no

longer provide us with food”).

Accordingly, Congress established a “national

goal that wherever attainable, an interim goal of

water quality which provides for the protection and

propagation of fish [and] shellfish” be “achieved by

July 1, 1983.” 33 U.S.C. § 1251(2); see also Leg. Hist.

at 189 (statement of Sen. Cooper) (recognizing that

protecting fish and shellfish resources “will require a

high level of water quality” as well as the “need for a

permit system to apply these standards precisely to

the sources of discharge of pollutants”); id. at 215-16

(statement of Sen. Bayh) (highlighting the protection

and restoration of fish and other aquatic resources as

a central purpose of the Act); id. at 386 (statement of

Rep. King) (“There is increasing awareness that the

abatement of [water] pollution will ... enhance

5

supplies of known and potential food products.”); id.

at 409 (“[I)f [businesses] don’t have the quality and

quantity of water supply they need to operate and

produce their product, they are not going to be in

business in any case.”).

Indeed, “externality prevention” — i.e., the notion

that those responsible for the economic impacts caused

by pollution should bear the burden of preventing or

addressing it, rather than shifting that burden to

other businesses — “is one of the purposes of many of

our modern environmental laws,” including the CWA.

Lincoln L. Davies, Skull Valley Crossroads: Reconcil-

ing Native Sovereignty and the Federal Trust, 68 Md.

L. Rev. 290, 359 (2009). This rationale for regulation

stems from the “logic of cost-externalization,” which

“drives human enterprises to pass on potential and

actual social costs into the commons of society and

the environment.” Zygmunt J.B. Plater, Environmen-

tal Law and Three Economies: Navigating a Sprawl-

ing Field of Study, Practice and Societal Governance

in Which Everything is Connected to Everything Else,

23 Harv. Envtl. L. Rev. 359, 365 (1999) (“Humans tend

to make decisions on relatively short-term horizons,

and in insulated self-referential terms. ... When we

are involved in a production activity, we resolutely

display an inclination to pass wide the costs, while

holding close the benefits and profits. Thus there is a

universal tendency of individuals and associations

toward cost externalization.”); see also Guido Calabresi

& A. Douglas Melamed, Property Rules, Liability

Rules, and Inalienability: One View of the Cathedral,

85 Harv. L. Rev. 1089 (1972).

6

Accordingly, a central function of the CWA is to

ensure that businesses and local governments will

“internalize the cost of pollutant disposal, as opposed

to allowing them to discharge pollutants and exter-

nalize the cost” to other interests that suffer the

effects of pollution they had no responsibility for

creating. Jonathan Rosenbloom, New Day at the Pool:

State Preemption, Common Pool Resources, and Non-

Place Based Municipal Collaboration, 36 Harv. Envtl.

L. Rev. 445, 463 (2012); see also Noah D. Hall, Politi-

cal Externalities, Federalism, and a Proposal for an

Interstate Environmental Impact Assessment Policy,

32 Harv. Envtl. L. Rev. 49, 53-54 (2008) (“Most envi-

ronmental laws address harms that cross property

boundaries and impact the property of another....

Environmental harms that affect persons and property

other than the source of the harm are basic examples

of an economic externality.”). The NPDES program is

the principal mechanism under the CWA for internal-

izing costs associated with water pollution and deg-

radation that adversely affects downstream economic

interests. Id. at 73.

The use of culverts, ditches, and similar convey-

ances to channel sediment-laden stormwater off log-

ging roads and into streams and other water bodies —

with attendant adverse impacts on the economic

interests of amici fishermen and other businesses that

depend on clean water and healthy ecosystems — is

the classic kind of externality the CWA was designed

to address. As the Environmental Protection Agen-

cy (“EPA”) has recently recognized, “(s]tormwater

7

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.” 77 Fed. Reg. 30473, 30476

(May 23, 2012). Logging roads are a leading source of

impairment of rivers, streams, and coastal shorelines,

id., and as summarized by EPA, stormwater dis-

charges from such roads

can adversely affect the survival of dozens of

sensitive aquatic biota (salmon, trout, other

native fishes, amphibians and macroinver-

tebrates) where the species are located. In-

creased fine sediment deposition in streams

and altered streamflows and channel mor-

phology can result in increased adult and

juvenile salmonid mortality where present. . . .

Potential effects ... can include increased

loading of sediment due to erosion and mass

wasting, increased suspended solids and tur-

bidity, increased sediment deposition and bed

load, alteration of stream morphology and

channel simplification, altered streamflow,

pollution from other chemicals associated

with forest roads, increased turbidity and

sedimentation in water treatment and supply

systems, siltation of streambed substrates,

impairment of spawning and rearing habitat,

and degradation of habitat for salmonids,

other fish, invertebrates, and other aquatic

organisms.

Id. (emphasis added).

8

Impacts of inadequately regulated logging road

discharges are felt directly by the amici fishermen

and other economic interests that play no role in the

construction, maintenance, or use of the roads that

impair the water ways on which these interests

depend. Although Petitioners complain about the

costs of complying with the NPDES program, Pet. Br.

(No. 11-437) at 46-50, the costs associated with the

pollution at issue should be borne by those responsi-

ble for it rather than those downstream businesses

harmed by it.

In any event, the Court should be aware that

there are significant economic interests that agree

with Respondents on the need for appropriate regu-

lation of logging road culvert sediment stream dis-

charges under the NPDES program. Especially

because this case is still at the pleading stage, Re-

spondents’ allegations that the use of culverts, ditches

and similar conveyances in connection with logging

roads contributes directly to declines of populations of

salmonids and other species, see J.A. Vol. II at 17,

have not been fleshed out with the development of a

factual record. Accordingly, the information presented

in this and other amicus briefs supporting Respon-

dents is highly relevant to whether logging roads are

associated with the kind of serious degradation of the

nation’s waters — and injuries to other interests that

rely on those waters — that Congress sought to ad-

dress through the CWA and the NPDES program.

9

Il. SALMON-DEPENDENT ECONOMIES DE-

PEND ON UNPOLLUTED SALMON RIVER

SYSTEMS.

Salmon are an important national food resource

and the biological basis of a major west coast fishing

industry suppor:ing many thousands of jobs. Salmon,

however, cannot live in highly polluted waters, and

thus their very existence — and the industries that

depend upon them — are in turn dependent upon

strong enforcement of the CWA.

Salmonids’ are an “anadromous” fish species. This

means their eggs are laid far inland in cold, fresh-

water mountain streams after full-grown spawning

adult salmonids return from the ocean, which they

entered two to five years earlier as juveniles. Those

eggs then hatch a few weeks later — but can only

survive if the water is clear and cold enough to sup-

port them. Once they hatch, the emerging juveniles

first inhabit their gravel beds until they can grow

large enough to gradually migrate downriver to the

* There are many different species of fish often commonly

(and confusingly) referred to as “salmon.” Fisheries biologists

more precisely call this group of fish “salmonids,” which usually

refers to any or all of the following fish species in the scientific

genus Oncorhynchus: chinook or king salmon (Oncorhynchust

shawtscha); coho or silver salmon (Oncorhynchus kisutch);

coastal searun cutthroat (Oncorhynchus clarki clarki); steelhead

(Oncorhynchus mykiss gairdneri); chum salmon (Oncorhynchus

keta); pink salmon (Oncorhynchus gorbuscha); and sockeye

salmon (Oncorhynchus nerka). All have very similar anadromous

lifecycles.

10

saltwater estuary as “smolts.” There they biologically

adapt to the hostile salt water environment, then

migrate out to sea to grow to adulthood — and then

return to fresh water to start their amazing lifecycle

all over again.

Once these fish enter the ocean, they migrate

sometimes thousands of miles north and south along

the coastline, eating and growing as they go until

reaching maturity and returning to their natal

streams to spawn. How they find their way back to

the same stream sites where they originally hatched

is still a mystery, but is apparently an ability that

chemical and sediment pollutants in their natal

rivers can easily disrupt.

Some degree of sediment inflows to salmon-

bearing river systems is natural, contributing nutri-

ents as well as spawning gravel to river ecosystems.

But too much sediment is a very bad thing for young

salmonids. See Amicus Br. (Nos. 11-338, 11-347)

Western Div. American Fisheries Society, et al.

As EPA has recently reaffirmed, excess sediment

loads destroy a river system’s ecological carrying

capacity and harm salmonids in a variety of ways.

See 77 Fed. Reg. 30473, 30476 (May 23, 2012). In

particular, fine sediments smother salmonid eggs,

and clog the gills of young fish, killing them quickly

by suffocation. Excess river sediment also reduces

visibility so that young fish have a much harder time

seeing and avoiding predators. Increased turbidity

from these sediments also slows down in-stream

11

photosynthesis, impoverishing the entire river food

chain when young fish most need to feed.”

This in turn means far fewer salmon for humans

to harvest in later years, when each year’s juveniles

return as harvestable adults — and that means eco-

nomic losses and many lost fishing-related coastal

jobs.

Ill. ENVIRONMENT-RELATED DECLINES IN

THE ECONOMIC VALUE OF U.S. COM-

MERCIAL SALMON FISHERIES.

Even though there have been major losses in

the productivity of many once-abundant salmon-

producing rivers, the U.S. commercial salmon harvest

still contributes greatly to the economies of the Pacific

Northwest and Alaska, in 2011 landing an estimated

780.1 million pounds of salmon valued at more than

$618.3 million in ex vessel (i.e., price paid at the dock)

value.’ Once the fish enter the stream of commerce at

the processors, they can create several times that

* See also Spence, Brian C.. et al., An ecosystem approach to

salmonid conservation, Report No. TR-4501-96-6057, ManTech

Environmental Research Services Corp., Corvallis, OR (Dec. 1996),

at 86 & 110. Available at: www.nwr.noaa.gov/Publications/

Reference-Documents/ManTech-Report.cfm.

* National Marine Fisheries Service (“NMFS”), Fisheries of

the United States 2011 (Aug. 2012), Table at 13. Available at:

www.st.nmfs.noaa.gov/st 1/fus/fusi1/FUS_2011.pdf.

12

value in “personal income impacts” throughout the

stream of commerce.”

However, the vast bulk (about 95%) of this 2011

salmon harvest was contributed by the Alaska fishery,

largely due to widespread and long-term salmonid

population declines in the once primary salmonid-

producing regions of northern California, Oregon and

Washington. In those “lower-48” Pacific Northwest

states, numerous and synergistically acting adverse

environmental impacts, mostly human-caused, have

disrupted and damaged many ecologically sensitive

salmon-producing rivers, already pushing many of

that region’s once abundant salmonid runs into bio-

logical extinction. Many other runs now require

protections under the Federal Endangered Species

Act, 16 U.S.C. §§ 1531-1544 (“ESA”) to prevent ex-

tinction. As coastal salmonid numbers declined, so did

commercial and recreational harvests — and coastal

fishing-based economies.

Finally, in 1991 a landmark scientific salmonid

population assessment was published by the Ameri-

can Fisheries Society (AFS), the nation’s oldest and

most prestigious scientific society of fisheries scien-

tists and fish managers. That study estimated that

more than 100 wild salmonid runs that once occurred

* Net economic or “personal income impacts” are generally a

multiplier of 2.0 to 4.5 times their initial ex vessel (i.e., at the

processor, on the docks) wholesale value, depending on the

model used.

13

throughout the Pacific Northwest had already been

pushed to extinction, and that about 214 of the re-

maining wild runs still hanging on were either in

danger of extinction or “species of concern” because of

their still ongoing declines. In nearly all cases, poor

instream habitat due to decreasing water quality was

identified as a major factor in those declines.°

In earlier studies of the economic value of Pacific

Northwest salmonid fisheries, commercial salmon

harvests in northern California, as of 1988, generated

an estimated $94.723 million in personal income

impacts (in 1988 dollars) and supported some 4,000

median wage jobs. Commercial salmonid harvests in

Oregon during that same year (1988) also generated

an estimated $89.062 million in personal income

impacts, supporting an additional 4,450 median wage

jobs.’ Since 1988, however, there have been repeated

ocean salmon fishery failures resulting from increas-

ingly widespread fisheries closures necessitated by

the accelerating loss of salmon habitat productivity

in most of northern California and the Pacific North-

west.

* Nehlsen, W., J.E. Williams, and J.A. Lichatowich, Pacific

salmon at the crossroads: stocks at risk from California, Oregon,

Idaho, and Washington, FISHERIES 16(2):4-21(1991). Available at:

www.tandfonline.com/toc/ufsh20/16/1.

* Pacific Rivers Council, Economic imperative of protecting

riverine habitat in the Pacific Northwest, Research Report No. 5

(Jan. 1992). Available at: www.pcffa.org/PRCReport1992. pdf.

14

By way of economic comparisons between the two

year’s reports, between 1988 and 2011, landings of

salmon in California in 1988 were recorded at 17.269

million pounds — but at only 1.1 million pounds in

2011, representing a loss of 94% in California land-

ings. In Oregon, the 1988 season harvest landed

17.708 million pounds of salmon — but only 2.4 million

pounds were landed in 2011, a loss of 86% in land-

ings. If expressed purely in terms of proportional lost

median wage jobs from the 1988 baseline, this would

be a job loss of 3,760 jobs in California and of 3,827

jobs in Oregon. These kinds of massive job losses

have been devastating for the isolated rural coastal

communities in which these kinds of fishing industry

jobs losses tend to be concentrated.”

These 1988-to-2011 salmon landings comparisons

demonstrate major salmon fishery economic losses

over the last 24 years in both northern California

and Oregon ocean commercial salmon fisheries.’ This

* Single-year harvest numbers are, of course, only “snap-

shots” of a dynamic system changing annually. This cursory

analysis, however, does demonstrate the long-term salmon

productivity trend for northern California and Pacific Northwest

salmon-producing rivers over the last several decades, i.e.,

consistently downward to the point where many of these once

abundant salmonid runs are now ESA-listed.

* Only in Washington State has the salmon harvest been

relatively comparable between those two years of 1988 and 2011.

Salmon landings in Washington State in 1988 came in at 35.955

million pounds but at 38.3 million pounds in 2011 ~ a slight

increase. This likely reflects the fact that today so many landings

of salmon caught in the Southeast Alaska fishery are coming

(Continued on following page)

15

in turn reflects the fact that so many California and

Oregon salmon populations have been in steep de-

cline over the last several decades due to multiple

adverse environmental impacts on their in-stream

habitat. While ocean conditions also play a major role

in salmon survival rates, ocean conditions during that

time frame have been variable but on average normal

(and roughly comparable as between 1988 and 2011),

while the instream habitat and water quality of most

major salmon streams continued to decline nearly

everywhere in the Pacific Northwest, as demonstrated

by numerous ESA listings for salmonids that followed

after 1988.

Since the 1991 AFS paper was published, numer-

ous Pacific Northwest wild salmonid populations have

been determined by the National Marine Fisheries

Service (“NMFS”), the federal agency with juris-

diction over ESA protections for anadromous species,

as being at risk of extinction. Today 28 genetically

separate populations of these species have been placed

under ESA protection. Three additional populations

have been classified as “species of concern,” and thus

back to Seattle because of the ease of shipping and processing

from that port. Most Washington commercial salmon fishermen

now have permits and fish in Southeast Alaska. This would

mask reduced productivity from Washington State’s own river

systems. Additionally, there are many large hatcheries in opera-

tion on the Columbia River, which contribute a large number of

north-migrating hatchery-origin fish to the Washington State

ocean salmon fishery — again likely artificially masking wild

salmonid declines in that state.

16

subject to potential ESA listings at a later date if

their numbers do not improve.”

Declines of once-important salmon runs in the

Pacific Northwest can disrupt and close down eco-

nomically valuable ocean commercial salmon fisher-

ies in either or both of two ways.’ One way is when

the fish originally expected are simply not there.

Another way is that since both strong and weak popu-

lations of salmonids can intermingle at sea, “weak

stock management” population conservation rules

administered under the Magnuson-Stevens Fishery

Conservation and Management Act, 16 U.S.C.

§§ 1801-1891d, for federally managed fisheries often

require the weakest stock to become the “limiting

factor” on harvest of all other intermingling stocks.

Thus whenever even one intermingling salmonid

stock becomes so depressed that it enters a “zero har-

vest” regime necessary to prevent even more serious

*° See NMFS, ESA Salmon Listings. Available at: www.nwr.

noaa.gov/ESA-Salmon-Listings/upload/1-pgr-8-11.pdf (providing

complete and updated list of the ESA listings for various sal-

monid populations in the Pacific Northwest). See also NMFS,

Salmonid Range Maps. Available at: www.nwr.noaa.gov/ESA-

Salmon-Listings/Salmon-Populations/Maps/Index.cfm (providing

range maps of the various ESA-listed salmonid population groups,

known as “evolutionarily significant units” or ESUs by NMFS).

" Steelhead and searun cutthroat are not commercially

harvested species and so are not included in commercial harvest

numbers in this section. Hence the term “salmon” here refers

only to commercially harvested ocean-going salmonid species

such as chinook, coho, sockeye, pinks and chum.

17

declines, that “weak link” can result in the total early

closure of all nearby (much more abundant) ocean

commercial salmon fisheries. In practice, ocean com-

mercial fisheries that even accidentally might impact

weakened salmon stocks are usually shut down many

years before an ESA listing is imposed, under this

“weak stock management” requirement.”

Even in some non-salmon ocean fisheries, too

high an accidental catch rate (called “bycatch”) of

nearby non-targeted salmon can still trigger the total

or partial closure of otherwise completely unrelated

fisheries — even for very different species. For in-

stance, some west coast ocean ground fish harvests

are now restricted because of the potential for acci-

dental catch of ESA-listed salmonids that may by

chance be migrating through that area at that time.

And once a depressed wild salmonid stock becomes

ESA-listed, of course, there is further need to rigor-

ously protect and avoid even accidentally impacting

those ESA-listed fish stocks during regular fishing

seasons under the same “weak stock management”

principles — as well as under the ESA.

“ For instance, well before ESA protections became neces-

sary for the depressed Southern Oregon/Northern California

Coho (SONCC) population, local ocean salmon fisheries were

closed down to protect this very weak stock. California commercial

fishing on this stock in northern California and southern Oregon

was terminated under the Magnuson-Stevens Act in 1992, but

the ESA listing for that SONCC stock was not imposed until

1997. See 62 Fed. Reg. 24588-24609 (May 6, 1997). Commercial

fishing was thus no longer a significant factor in its declines.

18

There has been considerable effort to mitigate

commercial harvest losses by artificially producing

non-ESA listed hatchery-bred salmonids in mitigation

hatcheries. But since wild salmon also intermingle

freely with hatchery-origin fish within the oceans,

closures intended to protect ESA-listed wild stocks

will still frequently close down otherwise abundant

hatchery-origin fish harvest opportunities throughout

much of the Pacific Northwest. In addition, hatcher-

ies are no solution to poor river conditions; indeed,

hatchery-origin fish will also die en mass in-river,

both as juveniles and returning adults, if high sedi-

ment and turbidity levels are too extreme.

As a further measure of the economic declines in

the fishing industry caused by widespread salmon

population declines in northern California and the

Pacific Northwest, in 1982 there were 5,964 commer-

cial salmon vessel permits issued in California by its

Department of Fish and Game. By 2011, there were

only 1,167 such permits outstanding — a decline of

80%. In Oregon, there were 3,646 commercial salmon

boat permits issued in 1982, but by 2011 only 1,003

remained — a 72% fleet loss. And in both states today

only a fraction of those remaining boats can actually

participate in severely depressed commercial ocean

salmon fisheries.”

'* Pacific Fishery Management Council, Review of 2011

ocean salmon fisheries (2012) at Tables D-4 (California), D-5

(Oregon). Available at: www.pcouncil.org/wp-content/uploads/

salsafe_2011.pdf.

19

IV. WIDESPREAD SEDIMENT POLLUTION

IS A MAJOR FACTOR IN POOR RIVER

HEALTH IN BOTH OREGON AND

NORTHERN CALIFORNIA.

Clean Water Act section 303(d), 33 U.S.C.

§ 1313(d), requires states to periodically identify

waters of the state that do not meet certain minimum

water quality standards. California and Oregon have

both developed 303(d) “impaired waters” lists for

sediment pollution which they keep relatively cur-

rent. Much of this information can now be accessed

online on a state-by-state basis through the EPA’s

new “Assessment TMDL Tracking And Implementa-

tion System (ATTAINS)” database and website.“

Coastal Northern California: It is complex to

determine the major sources of water pollution in

California, in part because this large state contains so

many geographic areas, each with its own types of

impacts. However, California’s 2010 Integrated Re-

port on its 303(d) list of water quality limited streams

in that state was approved by EPA on October 11,

2011, and contains the latest official data on Califor-

nia’s 303(d)-listed water quality limited streams.

According to that 2010 California 303(d) list, and

trying to assess just the impacts of logging road

sediments on salmon runs by looking only at the Cali-

fornia North Coast Regional Water Quality Control

‘* See EPA, ATTAINS website, www.epa.gov/waters/ir.

20

Board’s jurisdiction,” there are an estimated 17,478

stream miles now listed in that coastal forested area

under the Clean Water Act as “water quality limited”

specifically for sediment and/or siltation, much of

which has been specifically attributed or traced (at

least in part) to local watershed silvicultural opera-

tions, including eroding logging roads.”

Oregon: As of the 2006 Clean Water Act

303(d) listing information reported for Oregon, EPA’s

ATTAINS database notes that 12,248.8 stream miles

and 88,562.2 acres (138.38 square miles) of Oregon

lakes, reservoirs and ponds were 303(d) listed as

“water quality impaired” for either sediment or tur-

bidity or both.’ Not all these areas are heavily

logged, but the upper portions of most of these water-

sheds are generally heavily forested and intensive

industrial logging is the most common land use in

those areas.

* The California North Coast Regional Water Quality

Control Board’s jurisdiction includes the counties of Del Norte,

Glenn, Humboldt, Lake, Marin, Mendocino, Modoc, Siskiyou,

Sonoma, and Trinity counties. These are areas of the state

where most commercial logging and most of its salmon-bearing

streams both occur, but little agriculture.

** See California 303(d) list, www.waterboards.ca.gov/water_

issues/programs/tmdl//integrated2010.shtml.

See EPA, Oregon Water Quality Assessment Report, http://

ofmpub.epa.gov/waters10/attains_state.control?p_state=OR.

21

V. LOGGING ROAD SEDIMENT DIRECTLY

DAMAGES NORTHWEST SALMON HAR-

VESTS.

In 2009, EPA reported that for all the nation’s

rivers and streams surveyed to date (about 16%)

sediment was the seventh, and closely related turbid-

ity was the tenth, leading source of water quality

impairment to rivers and streams nationwide — and

if considered together would be the third largest

source.” In EPA’s ATTAINS database, that agency

currently lists sedimentation as the “cause of im-

pairment” for 106,057 river and stream miles, and

718,144 acres (1,122.1 square miles) of lakes, reser-

voirs and ponds nationwide, exclusive of the Great

Lakes.” The EPA database also identifies “silviculture

(forestry)” as the probable source of impairment for

at least 19,444 miles of the nation’s threatened or

impaired streams and 242,583 acres (379.04 square

miles) of its lakes, reservoirs and ponds.”

A number of scientific studies have found strong

negative correlations between logging road density

and salmon productivity.” In a number of specific

'* EPA, 2009, National Water Quality Inventory: 2004 Report

to Congress, EPA-841-R-08-001 (Jan. 2009). Available at: http://

water.epa. gov/lawsregs/guidance/cwa/305b/2004report_index.cfm.

‘* See EPA, National Causes of Impairment, http://ofmpub.

epa.gov/waters 10/attains_nation_cy.control#causes.

*” 77 Fed. Reg. 30473, 30476 (May 23, 2012).

* See, e.g., NMFS, Scientific conclusions of the state review

for Oregon coast coho salmon (Oncorhynchus kisutch) (June 2012),

(Continued on following page)

22

salmonid ESA listings, the threats to the listed species

from excessive sediments coming from industrial log-

ging roads has also been identified as a major factor

in their decline. For instance, the ESA listing as

“threatened” of Southern Oregon/Northern California

(SONCC) coho salmon was based in part on such

sediment impacts. That May 6, 1997, “threatened”

listing decision noted:

Forestry has degraded coho salmon habitat

through removal and disturbance of natural

vegetation, disturbance and compaction of

soils, construction of roads, and installation

of culverts. Timber harvest activities can

result in sediment delivered to streams

through mass wasting and surface erosion

that can elevate the level of fine sediments

in spawning gravels and fill the substrate

interstices inhabited by invertebrates....

The most pervasive cumulative effect of past

forest practices on habitats for anadromous

salmonids has been an overall reduction of

habitat complexity from loss of multiple

habitat components. Habitat complexity

has declined principally because of reduced

size and frequency of pools due to filling

with sediment and loss of LWD [large woody

at 76-78. Available at: www.nwfsc.noaa.gov/assets/25/8714_08132012_

121939_SROregonCohoTM118WebFinal.pdf. See also Firman, Julie

C., et al., Landscape models of adult coho salmon density exam-

ined at four spatial extents, TRANSACTIONS OF THE AMERICAN

FISHERIES SOCIETY, 140:2, 440-455 (2011). Available at: http://

dx.doi.org/10.1080/00028487.2011.567854.

23

debris]... . As previously mentioned, sedimen-

tation of stream beds has been implicated as

a principal cause of declining salmonid popu-

lations throughout their range.... Several

studies have indicated that, in this region,

catastrophic erosion and subsequent stream

sedimentation (such as during the 1955 and

1964 floods) resulted from areas which had

been clearcut or which had roads constructed

on unstable soils” (emphasis added).”

In another instance, the most recent ESA relist-

ing of the Oregon Coastal (OC) Coho Salmon popula-

tion in particular directly implicates intensive local

logging practices as a major factor in their decline,

explaining that “historical and ongoing timber har-

vest and road building have reduced stream shade,

increased fine sediment levels, reduced levels of in-

stream large wood, and altered watershed hydrology.”

NMFS also noted in that relisting decision that Ore-

gon’s Forest Practices Act, which governs commercial

logging practices on all privately and state owned

timberlands (which includes most of Oregon’s coastal

forests), does not adequately prevent these kinds of

impacts:

Although the Oregon Forest Practices Act and

the Forest Practice Rules generally have be-

come more protective of riparian and aquatic

“ 62 Fed. Reg. 24588, at 24593 and 24599 (May 6, 1997)

(emphasis added, internal citations omitted).

* 76 Fed. Reg. 35755, 35766 (June 20, 2011).

24

habitats over time, significant concerns re-

main over their ability to adequately protect

water quality and salmon habitat. In par-

ticular, disagreements continue over: (1)

whether the widths of RMAs [riparian man-

agement areas] are sufficient to fully protect

riparian functions and stream habitats; (2)

whether operations allowed within RMAs

will degrade stream habitats; (3) operations on

high-risk landslide sites; and (4) watershed-

scale effects. Based on the available informa-

tion, we were unable to conclude that the

Oregon Forest Practices Act adequately

protects OC coho habitat in all circumstances.

On some streams, forestry operations con-

ducted in compliance with this act are likely

to reduce stream shade, slow the recruitment

of large woody debris, and add fine sedi-

ments. Since there are no limitations on

cumulative watershed effects, road density

on private forest lands, which is high

throughout the range of this ESU, is unlikely

to decrease.”

NMFS has also systematically delineated the

many factors pushing ESA-listed salmon runs in the

Pacific Northwest (particularly northern California

and Oregon) ever closer to extinction, and in its re-

port Factors Contributing to the Decline of Chinook

Salmon, issued in June 1998, has in particular noted:

* Id. at 35767.

25

Timber harvesting and associated road build-

ing occur throughout the region on Federal,

state, tribal, and private lands. These activi-

ties increase sedimentation and debris flows

and reduce cover and shade resulting in

aggradation, embedded spawning gravel,

and increased water temperatures (emphasis

added).”

The 1998 Factors report specifically identified

logging operation impacts (which includes road build-

ing) as a major factor in the declines of 9 out of 15

distinct west coast chinook salmon populations ana-

lyzed, including all those in heavily forested coastal

areas or within the Northwest’s major forested river

watersheds.” Of those chinook populations analyzed,

five of these distinct chinook populations are now

ESA-listed.”

In an earlier NMFS Factors for Decline report

from 1996, this time concerning the underlying

causes of various steelhead ESA-listings, NMFS also

“ NMFS, Factors contributing to the decline of chinook

salmon: an addendum to the 1996 west coast steelhead factors

for decline report (June 1998). Available at: www.nwr.noaa.gov/

ESA-Salmon-Listings/Salmon-Populations/Reports-and-Publications/

upload/chnk-ffd. pdf.

* Id. at Table 1, 67-69.

* Listed populations are identified as Puget Sound, Lower

Columbia River, Upper Willamette River, Snake River Fall-run

and Snake River Spring/Summer-run chinook populations. See

70 Fed. Reg. 37160 (June 28, 2005).

26

discussed the role of sediment pollution in those

populations’ declines:

In general, effects of sedimentation on sal-

monids are well documented and include:

clogging and abrasion of gills and other res-

piratory surfaces; adhering to the chorion or

eggs; providing conditions conductive to entry

and persistence of disease-related organisms;

inducing behavioral modifications; entombing

different life stages; altering water chemistry

by adsorption of chemicals; affecting useable

habitat by scouring and filling pools and riffles

and changing bedload composition; reducing

photosynthetic growth and primary produc-

tion; and affecting intergravel permeability

and dissolved oxygen levels.”

Increased water turbidity, which impedes light

penetration, also has a major negative impact on sal-

monid survival rates, and is in turn directly related

to increased sediment loads. The 1996 Factors for

Decline report further explains:

Increased turbidity decreases photosynthesis

of aquatic plants and can clog the respiratory

surfaces and feeding mechanisms of aquatic

animals. Turbidity results when fine silt,

* NMFS, Factors for decline: a supplement to the notice of

determination for west coast steelhead under the Endangered

Species Act, National Marine Fisheries Service (NMFS) (August,

1996). Accessed Oct. 12, 2012 at: www.nwr.noaa.gov/ESA-Salmon-

Listings/Salmon-Populations/Reports-and-Publications/upload/stlhd-

ffd.pdf. Quote from 17.

27

part of the overall sediment transport, re-

mains suspended for long periods of time.

Turbidity causes light to be scattered and

absorbed, reducing light penetration and

thus diminishing or even eliminating aquatic

plant growth. Loss of aquatic plants leads to

the loss of associated snails and aquatic in-

vertebrates [that] serve as a food source for

young fish. ... Sedimentation has also been

shown to increase stream temperature. .. .

Accelerated rates of erosion and sedimentation

are a consequence of most forest land man-

agement activities. Road networks in many

upland areas of the Pacific Northwest are

the most important source of management-

accelerated sediment delivery to anadromous

fish habitats. The sediment contribution to

streams from roads is often much greater

than that from all other land management

activities combined (Gibbon and Salo, 1973)

(emphasis added).”

The 1996 Factors for Decline report concerning

steelhead also specifically identified logging opera-

tion impacts (including road building) as a major

factor in the declines of 11 out of 15 distinct steelhead

*® Id. at 17-19; see also Gibbons, Dave R., Salo, Ernest O.,

An annotated bibliography of the effects of logging on fish of the

western United States and Canada, GEN. TECH. REP. PNW-GTR-

010 (1973), U.S. Department of Agriculture, Forest Service, Pacific

Northwest Forest and Range Experiment Station, Portland, OR.

Available at: www.treesearch.fs.fed.us/pubs/22556.

28

populations it analyzed. Today all 11 of those popula-

tions are ESA-listed.”

Canadian researchers estimated the loss in

salmon-related economic values arising from the

impacts on coastal forests of “consumptive uses such

as logging and resource extraction.” The resulting

values for habitat ranged from $0.26 to $1.40 per acre

of watershed, or $1,491 to $7,914 per mile of spawn-

ing stream (converted to 2003 U.S. dollars), which the

authors also considered likely to be a very conserva-

tive estimate.”

In another study on economic losses to salmon

fisheries caused by industrial logging and associated

road building, researchers also noted significant eco-

nomic losses from these causes, finding that:

© Listed steelhead populations include: Upper Columbia

River; Snake River Basin; Middle Columbia River; Lower Colum-

bia River; Upper Willamette River; South-Central California

Coast; Central California Coast; Northern California; California

Central Valley; and Oregon Coast. See 72 Ped. Reg. 834 (Janu-

ary 5, 2006). The Puget Sound pdpulation, in which logging also

plays a role, was subsequently also listed. 72 Fed. Reg. 26722

(May 11, 2007). The Southern California population of steelhead

was also listed on January 5, 2006, but urbanization rather than

logging impacts were implicated in that run’s declines.

" Knowler, D.J., B.W. MacGregor, M.J. Bradford, and R.M.

Peterman, Valuing freshwater salmon habitat on the west coast

of Canada, JOURNAL OF ENVIRONMENTAL MANAGEMENT, 69: 261-

273 (Nov. 2003). Available at: www.sciencedirect.com/science/

article/pii/S0301479703001543.

29

[s}ubstantial losses in anadromous fish bene-

fits result from logging on just 21% of the

land within the Siuslaw NF. In particular,

the Current Direction and the Timber

Benchmark alternatives result in [commercial

fishing] losses over the 30-year planning

period of approximately $1.55 million and

$1.67 million, respectively, compared to the

Minimum Management (no timber harvesting

or road building) alternative. ... Thus, while

improved timber harvesting practices of

leaving buffer strips and use of better road

design have reduced the extent of fisheries

losses, there still are substantial ‘unavoidable’

losses associated with timber harvesting.”

Similarly, other studies assessing the total socio-

economic costs versus benefits to society as a whole of

improved commercial logging rules (such as requiring

larger riparian buffer zones between salmon-bearing

streams and logging roads to protect against sedi-

ment) make clear that in many cases the increased

net economic value to west coast salmon fisheries far

outweighs the much smaller economic costs to timber

owners from mere reductions in riparian zone log-

ging. For instance, one more recent study found:

* Loomis, J. B., The bioeconomic effects of timber harvesting

on recreational and commercial salmon and steelhead fishing: a

case study of the Siuslaw National Forest, MARINE RESOURCE

ECONOMICS, Vol. 5; 43-60, at 56 (1988). Available at: http://agecon

search.umn.edw/bitstream/48449/2/8175753.pdf.

30

Another useful comparison entails recogniz-

ing that salmon habitat acts like financial

assets, generating a flow of economic benefits

over time. Evidence from the past decade

indicates that, if habitat improvements re-

sulting from salmon-related logging restric-

tions generated one additional fish for the

recreational fishery per year per acre for the

foreseeable future, the asset value of the

habitat would be about $2,800 per acre.

By comparison, the average timber-asset

value of state and private lands used for

growing timber in Oregon is about $400 per

acre in Western Oregon, and the average

value of land plus standing timber is about

$4,000 per acre. Values are less east of the

Cascade.

Thus, if logging restrictions converted one

acre of private or state land from producing

timber to producing one salmon per year for

the recreational fishery, the asset value of

the new salmon habitat would be about seven

times the forgone timber-asset value of the

land, alone.”

In short, reducing the net economic “externality

damages to other natural resources (such as valuable

“ ECONorthwest, Salmon, timber, and the economy,

ECONorthwest (Dec. 1999), at ii-iii. Available at: http-/pacificrivers.

org/science-research/resources-publications/salmon-timber-and-the-

economy-the-potential-economic-consequences-of-restricting-logging-

to-save-oregon2019s-salmon. Numbers in 1999 dollars.

31

salmon fisheries) from industrial logging, including

minimizing widespread sedimentation from its ex-

tensive networks of private logging roads, can — and

often does — result in many more net economic gains

to society as a whole than economic losses.

VI. MANY OTHER INDUSTRIES ARE ALSO

ADVERSELY AFFECTED BY LOGGING

ROAD SEDIMENT POLLUTION.

The commercial salmon fishing industry is only

one of many industries that are economically dam-

aged by excessive river sediments and accompanying

elevated water turbidity. Among those industrial

sectors most affected are the following:

Lower River Navigation and Reservoir-

Related Economic Costs: Lower watershed debris

catch basins, navigable river segments, and reservoirs

are natural sinks for sediment to accumulate. Econ-

omists have long known that these impacts can cause

multiple economic losses:

Sedimentation of river channels and harbors

can cause delays in shipping and even the

loss of vessels. ... Reservoirs make excellent

sediment traps. Flow water can carry large

loads of sediment in suspension. When a

river’s flow is checked by a reservoir, the car-

rying capacity of the river is greatly reduced,

and sediment settles out into the storage

basin. Without removal and with a continuous

inflow of sediment-laden water, the reservoir

will eventually fill with sediment. . . .

32

A reservoir can provide one or more services

such as flood control, drinking water supply,

hydroelectric generation, and recreation. The

economic costs from sedimentation take three

forms: effects on the services provided by the

reservoir (such as boating and irrigation),

costs of remediation (dredging), and damage

to the reservoir structures itself (turbines,

pumps). Benefits from reduced sedimentation

are the reverse of the above effects.”

In looking at upper watershed debris loads and

excessive soil erosion from the Los Angeles National

Forests, for instance, records of sediment discharge to

debris basins were collected for 41 watersheds along

the southern flank of the San Gabriel Mountains of

Los Angeles County. Major cost savings from reduced

annual sediment loads came from decreased costs for

Los Angeles County Public Works to clean out these

basins. The average cost across all 41 basins for 1969

to 1995 was nearly $12 per cubic yard (in 2000 dol-

lars), with costs ranging from $2.48 to $32 per cubic

yard, putting a major strain on city maintenance

budgets.”

* Ribaudo, M.O. and D. Hellerstein, Estimating water qual-

ity benefits: theoretical and methodological issues, USDA TECH-

NICAL BULLETIN No. 1808 (1992), at 16-17. Available at: http://

ageconsearch.umn.edu/bitstream/33586/1/tb92 1808. pdf.

*° Gonzalez-Caban, et al., Costs and benefits of reducing sedi-

ment production from wildfires through prescribed burning: the

Kinneloa Fire case study, 241-52, PROCEEDINGS OF THE SECOND

INTERNATIONAL SYMPOSIUM ON FIRE ECONOMICS, PLANNING, AND

PoLicy: A GLOBAL VIEW, GENERAL TECHNICAL REPORT 208 (2008).

(Continued on following page)

33

Municipal Water Treatment: The mechanisms

by which increased river sedimentation increases costs

of water treatment are also well known:

Rivers and reservoirs provide drinking water

to over 112 million U.S. residents. Water

treatment processes are affected by the quali-

ty of the source water. Conventional treatment

can consist of flocculation, sedimentation,

filtration, and disinfection. Intake water with

low levels of suspended sediment may be

treated by direct filtration, which eliminates

the need for sedimentation and, sometimes,

flocculation. Cost savings from the use of

direct filtration include lower capital costs and

lower costs associated with lower chemical

coagulant doses and decreased sludge produc-

tion and disposal. Low turbidity levels also

simplify the disinfection process, thus mak-

ing it less costly.... The change in water

production cost induced by changes in sedi-

ment load is a measure of the welfare effects

from soil conservation.”

Actual instances of high sediment surges driving

up municipal water treatment costs abound. For

instance, in 1996 the City of Salem, Oregon, had to

disrupt supplies of water to its customers because

high levels of river sediment later traced to logging

Available at: www.fs.fed.us/psw/publications/documents/psw_gtr208en/

psw_gtr208en_241-252_gonzalez-caban. pdf.

** Ribaudo, M.O. and D. Hellerstein, 1992, supra, pg. 20 (in-

ternal citations omitted).

34

roads overwhelmed the capabilities of its water treat-

ment facility. This caused its water users to incur

short-run damages totaling $3.4 million to $4.4 million

(in 1996 dollars). Installing a water-treatment system

capable of handling such high sediment levels in the

future was estimated to increase customer costs by

about $13-$24 (in 1996 dollars) per capita, per year.”

In other examples from Oregon, another water

treatment economic costs study has noted:

[T]he average daily cost of sediment was

$75.84, or $20.00 per million gallons of water

treated for the City of Corvallis. The ‘average

annual municipal cost’ of turbidity in source

water for all communities in the Willamette

Valley is $1,015,472. ‘[A] total average of

$4.22 million a year is estimated to be spent

on sediment-related road maintenance.’

The sum of the annual municipal, road-

maintenance, and hydroelectric generating

costs of sediment in the Willamette Valley is

$5.5 million.*

” Hulse, D., G. Grant, E. Niemi, A. Branscomb, D. Diethelm,

R. Ulrich, and E. Whitelaw, Muddy waters: how floods clarify

evolving relationships among landscape processes and resource

management decision-making in municipal watersheds, EPA/NSF

Final Project Report GAD#R825822, Department of Landscape

Architecture, University of Oregon, Eugene, Oregon (2002). Avail-

able at: www.fsl.orst.edu/wpg/pubs/Muddy%20Waters%20full. pdf.

* Moore, W.B. and B.A. McCarl, Off-site costs of soil erosion:

a case study in the Willamette Valley, WESTERN JOURNAL OF

AGRICULTURAL ECONOMICS. 12(1):42-49 (1987). Available at: http://

ageconsearch.umn.edwbitstream/32477/1/12010042. pdf.

35

The Commercial Timber Industry: Within the

timber industry itself, it is well recognized that con-

serving often thin forest topsoils results in better tree

growth. Additionally, controlling sediment at any

point in a logging road network will prevent sediment

buildups that can block hydrologically lower culverts

(causing often cascading road blowouts), or trigger

flooding washouts on lower portions of other logging

roads.

When soil is eroded from a field, it can be

deposited in roadside ditches, which line

many rural roadways. Sedimentation in cul-

verts and ditches reduces the capacity and

the effectiveness of the structures, increasing

the likelihood of road flooding during storms.

The costs from ditch sedimentation are the

maintenance costs of removing sediment

plus the damage from road flooding.”

Simply put, preventing logging road erosion saves the

timber industry money. These economic savings from

lowered road maintenance costs alone may well offset

(or exceed) any added costs of NPDES permit-

required sediment controls.

General Industrial and Societal Costs of

Sediment Pollution: There are many additional

adverse economic impacts from sediment pollution on

* Ribaudo, M.O. and D. Hellerstein, 1992, supra, pg. 21.

While this study referenced primarily agricultural lands, its

findings also apply to silviculture.

36

many industries (and on society as a whole), as many

studies have noted.

Soil erosion and resulting sedimentation can

lead to clogged drainage-ways and suspended

sediment in rivers. Erosion, sedimentation

and/or deposition directly or indirectly in-

crease costs to society in terms of facility

maintenance (e.g., ditch cleaning), facility re-

placement (e.g., building new dams), erosion

mitigation (e.g., increased water purification),

and/or effect prevention (e.g., sediment set-

tling ponds). In addition, soil erosion pro-

cesses may influence income by altering

production or input requirements. For exam-

ple, farmers whose lands are inundated by

sediment-laden rivers may find an increase

in passive fertilization and/or crop acreage

damaged by deposition.”

Models and data at the U.S. Department of Agri-

culture have also estimated the value of the economic

benefits from 13 categories of reductions in water-

driven soil erosion on agricultural lands.“ These

values are also applicable to erosion on non-

agricultural lands, to the extent that it results in

similar delivery of sediment to streams with similar

*” Moore, W.B. and B.A. McCarl, 1987, supra, pg. 1.

“ Hansen, L. and M. Ribaudo, Economic measures of soil

conservation benefits: regional values for policy assessment, TECH-

NICAL BULLETIN 1922 (2008), USDA, Economic Research Service.

Accessed October 10, 2012, from: www.ers.usda.gov/Publications/

TB1922/TB1922. pdf.

37

environmental consequences.” Those economic values

ranged up to $8.8lI/ton of soil displaced (in 2000

dollars).“* Soil erosion in the U.S. has also been esti-

mated in another study to occur at the rate of about

30 tons per hectare per year. Multiplied by even small

per ton economic loss rates, total national economic

losses through soil erosion alone are thus about $44

billion annually.“

In short, minimizing the harmful effects of soil

erosion on the nation’s water ways makes excellent

economic sense. Initially, society as a whole benefits

through reduction of environmental damage costs to

valuable economic resources and industries often far

downstream. Additionally, in this case the timber

industry otherwise generating this erosion may also

benefit by lowering its own expenditures on mainte-

nance of logging roads and associated ditches, culverts,

and other conveyances for discharging stormwater.

—+

“ Hansen, L. and M. Ribaudo (2008), id., at 5-6.

“© Hansen, L. and M. Ribaudo (2008), id., Table at 4.

“ See Pimentel, David, et al., Environmental and economic

costs of soil erosion and conservation benefits, SCIENCE, 267:1117-

1123 (Feb. 24, 1995). Although most of this total U.S. soil erosion

derives from agriculture, silviculture in the western U.S. is also

a major source. Accessed Oct. 12, 2012, at: www.rachel.org/files/

document/Environmental_and_Economic_Costs_of_Soil_Erosi.pdf.

38

CONCLUSION

Because the regulation of stormwater discharges

to water ways from industrial logging road construct-

ed culverts and drainage ditches through the NPDES

program is entirely consistent with the overarching

CWA objective of ensuring that those who benefit

from degrading the nation’s water ways cannot shift

the costs of their polluting activities to downstream

industries and economic interests, the ruling below

should be affirmed.

Respectfully submitted,

Eric R. GLITZENSTEIN*

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Ave., N.W., Suite 700

Washington, DC 20009-1063

(202) 588-5206

eglitzenstein@meyerglitz.com

GLEN H. SPAIN, General Counsel

PACIFIC COAST FEDERATION OF FISHERMEN’S

ASSOCIATIONS (PCFFA), INSTITUTE FOR

FISHERIES RESOURCES

PO Box 11170

Eugene, OR 97440-3370

(541) 689-2000

fishlifr@aol.com

*Counsel of Record

for Amici Curiae