Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

RE SOTO

AND

BRIEFS No. 11-338, 11-347

In the

Supreme Court of the United States

Poe

DOUG DECKER, in His Official Capacity as Oregon

State Forester, et al., Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER, et al., Respondents.

+

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

v.

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER., et al., Respondents.

—$

On Writs of Certiorari to the United

States Court of Appeals for the Ninth Circuit

—~+>

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION, et ail.,

IN SUPPORT OF PETITIONERS

—~—

M. REED HOPPER

Counsel of Record

DAMIEN M. SCHIFF

DANIEL A. HIMEBAUGH

Of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

E-mail: dah@pacificlegal.org

Counsel for Amici Curiae

[Additional amici listed on inside cover]

ALABAMA FORESTRY ASSOCIATION,

AMERICAN LOGGERS COUNCIL,

ASSOCIATED LOGGING CONTRACTORS-

IDAHO, ASSOCIATED OREGON

LOGGERS, BUCKEYE CONSERVANCY,

CALIFORNIA FORESTRY

ASSOCIATION, FOREST LANDOWNERS

ASSOCIATION, KENTUCKY FOREST

INDUSTRIES ASSOCIATION,

MISSOURI FOREST PRODUCTS

ASSOCIATION, NORTH CAROLINA

FORESTRY ASSOCIATION, NORTHERN

ARIZONA LOGGERS ASSOCIATION,

OHIO FORESTRY ASSOCIATION, OREGON

WOMEN IN TIMBER, SOUTHEASTERN

LUMBER MANUFACTURERS ASSOCIATION,

TEXAS FORESTRY ASSOCIATION,

TREATED WOOD COUNCIL, VIRGINIA

FOREST PRODUCTS ASSOCIATION,

AND WASHINGTON CONTRACT

LOGGERS ASSOCIATION.

i

QUESTIONS PRESENTED

(1) Congress has authorized citizens dissatisfied

with the Environmental Protection Agency’s (EPA’s)

rules implementing the Clean Water Act’s (CWA’s)

National Pollution Discharge Elimination System

(NPDES) permitting program to seek judicial review of

those rules in the Courts of Appeals. See 33 U.S.C.

§ 1369(b). Congress further specified that those rules

cannot be challenged in any civil or criminal

enforcement proceeding. Consistent with the terms of

the statute, multiple circuit courts have held that if a

rule is reviewable under 33 U.S.C. § 1369, it is

exclusively reviewable under that statute and cannot

be challenged in another proceeding.

Did the Ninth Circuit err when, in conflict with

those circuits, it held that a citizen may bypass judicial

review of an NPDES permitting rule under 33 U.S.C.

§ 1369, and may instead challenge the validity of the

rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required

NPDES permits for stormwater discharges “associated

with industrial activity,” and delegated to EPA the

responsibility to determine what activities qualified as

“industrial” for purposes of the permitting program.

EPA determined that stormwater from logging roads

and other specified silvicultural activities is non-

industrial stormwater that does not require an NPDES

permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that

stormwater from logging roads is_ industrial

stormwater under the CWA and EPA’s rules, even

though EPA has determined that it is not industrial

stormwater?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED..............

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

IDENTITY AND INTEREST

OF AMICI CURIAE................

INTRODUCTION AND SUMMARY

er Eas sa nose esesuivesss

RE coe i dd een wheeenee. Kedense

I. REQUIRING NPDES PERMITS

FOR FOREST ROAD RUNOFF

WILL INTERFERE WITH

SUCCESSFUL STATE-SPECIFIC

BEST MANAGEMENT PRACTICES. ...... 10

Il. REQUIRING NPDES PERMITS FOR

FOREST ROADS WILL CREATE

TREMENDOUS COSTS AND DELAY

A. Including Forest Roads in the NPDES

Will Result in a Significant Increase in

the Number of NPDES Applications... ..

IS ten 12

2. Per Leandowmer..............

a a

CD fuatkuekdeesenens

B. Including Forest Roads in the

NPDES Will Result in Skyrocketing

Costs and Intolerable Delay for

Timber Harvesters..............

12

een 15

il

I eee ee ee 18

TABLE OF AUTHORITIES

Page

Cases

Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council, 557 U.S. 261 (2009)...... 2

League of Wilderness Defenders/ Blue Mts.

Biodiversity Project v. Forsgren,

ee es RE Ge Gs Is oc cc ccc ccc asics fs)

Nw. Envtl. Advocates v. EPA,

No. C 03-05760 SI, 2005

U.S. Dist. LEXIS 5373

8 Ge Ul ee 16

Nw. Envtl. Def. Ctr. v. Brown,

Case No. 07-35266

5 Sr ere re 2

Rapanos v. United States,

ee ee es vc cbc bcdns ke 46% 2,9,16

S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004). ........ 2,9

Sackett v. EPA, 132 S. Ct. 13867 (2012)............ 2

Federal Regulations

a ee I ond Sa es Vewseeeeeeninns 9g

I a, ast oS oe i

Federal Statutes

ee se A os hea ek badubecen nee anana +.

nn aaa ead 14

1V

TABLE OF AUTHORITIES—Continued

Page

ROL <sck ead Ree dade. UCECECECOOR SE HES EE 10

Po .sckink 0 wxee Sh SaNGee RRR ES 13

Pe oss se aeedee. | t60RS | kee H

Sn « Cold |) dean e hen eebeee (04 seen 9

§ 1369. ... . Oe ne a See aay a i

DR svobh.s és aun a ae a ee i

Oregon State Regulations

Or. Admin. R. 629-635-0000................... 12

Or. Admin. R. 629-635-0100(7)(a). ....0 ©... ee 12

Oregon State Statute

Sy es Te: Oe I a WS a wien ex conn eo 12

Rules of Court

Supreme Court Rule 37....... ee ee a

Supreme Court Rule 37.6....... ...62+ sees 1

Miscellaneous

Bold, Kevin, et al., A Case Study of an Erosion

Control Practice: The Broad-Based Dip 65

ee a Te ied ere

Butler, Brett J.. Family Forest Owners of the

United States. 2006, (U.S. Forest Serv. 2008)... 14

Vv

TABLE OF AUTHORITIES—Continued

Page

Edwards. Pamela J. & Stuart, Gordon W..,

State Survey of Silviculture Nonpoint Source

Programs: A Comparison of the 2000

Northeastern and National Results, N. J.

Applied Forestry 19(3), 122 (Sept. 2002). ...... 11

EPA, Protecting the Nation's Waters

Through Effective NPDES Permits:

Peo ee 16

Smith, W. Brad, et al., Forest Resources

of the United States, 2007,

Ce UE OS EE, ws ee eew teewwews 13

1

IDENTITY AND INTEREST

OF AMICI CURIAE

The Amici respectfully submit this brief in

support of Petitioners Oregon State Forester Doug

Decker, et al., 11-338, and Georgia-Pacific West, Inc.,

et al., 11-347 (consolidated).'

The Amici organizations represent forest land

owners, wood producers, conservationists, educators,

and other interested groups from around the country.

Many of the Amici are involved in developing, using, or

maintaining forest roads.

Pacific Legal Foundation was founded almost 40

years ago and is widely recognized as the largest and

most experienced nonprofit legal foundation of its kind.

PLF has participated in numerous cases before this

Court both as counsel for parties and as amicus curiae.

PLF attorneys litigate matters affecting the public

interest at all levels of state and federal courts and

represent the views of thousands of supporters

nationwide who believe in limited government and a

reasonable and balanced approach to environmental

regulation. PLF attorneys acted as lead counsel in the

' In accordance with Supreme Court Rule 37, all parties have

been notified of the Amici’s intent to participate in this case and

all parties have consented to the filing of this brief.

Acknowledgments of consent have been filed with the Clerk of the

Court.

Additionally, pursuant to Supreme Court Rule 37.6, the Amici

affirm that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than the amici, their members, or their counsel have

made a monetary contribution to the briefs preparation or

submission.

2

Clean Water Act cases Sackett v. EPA, 132 S. Ct. 1367

(2012), and Rapanos v. United States, 547 U.S. 715

(2006). PLF attorneys also participated as amicus in

Coeur Alaska, Inc. v. Southeast Alaska Conservation

Council, 557 U.S. 261 (2009), and S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95

(2004). PLF has experience with the issues raised in

this case, having participated as amicus in the

proceedings below. Nw. Enuvtl. Def. Ctr. v. Brown, Case

No. 07-35266 (9th Cir. May 17, 2011) (Dkt. 67, 98).

The Alabama Forestry Association was organized

in 1949 to promote good stewardship of renewable

forest resources for the benefit of the nation. The

Association pursues this goal through public outreach,

safety training, industry communications, legislative

advocacy, and policy development. The Association has

more than 1,800 dues-paying members, including

landowners, foresters, trucking companies, and wood

product producers. The Association represents

Alabama’s largest industry that supports over 400,000

forest land owners with an estimated $15 billion in

products from over 650 producers.

The American Loggers Council was formed in

1994 to serve as a national] voice for professional

loggers. The Council is made up of a coalition of

regional and state logging associations and councils,

represents more than 50,000 employees, and reaches

over 10,000 logging contractors. Through networking

and outreach, the Council seeks to enhance the logging

profession and further sustainable forestry practices.

Associated Logging Contractors-Idaho is a trade

organization of logging contractors. It currently has

close to 400 logging contractor businesses as members

and an additional 100 associate members who are

3

affiliated with the timber industry and logging

contractors. Its member companies are small, family-

owned, or closely held businesses that operate on the

forest lands of Idaho. Many are multi-generational

businesses with close ties to the land and their

communities. The Idaho forest industry makes up

4.6% of the total labor income in the state and

produces $2 billion in annual sales of primary wood

and paper products. The forest industry is an essential

component of school funding in rural areas where

unemployment exceeds 20%.

Associated Oregon Loggers’ represents

approximately 1,000 contract logging companies and

businesses associated with the logging industry in the

State of Oregon. Its members are primarily small,

family-owned businesses, many of which are owned

and managed by second, third, and even fourth

generations of loggers. Members rely on a long-

established transportation system (including forest

roads) to move logs and other forest products from the

woods to processing mills and other destinations.

The Buckeye Conservancy is an organization of

family farm, ranch, and forest landowners and

resource managers in the North Coast region of

California. The Conservancy is dedicated to the

promotion, communication, and implementation of

those ideals and policies that support the ecological

and economic sustainability of natural resources and

open space in family ownership.

The California Forestry Association is a nonprofit,

nonpartisan organization dedicated to sustainable uses

of renewable resources and responsible forestry.

Association membership includes forest land owners,

forestry professionals, loggers, manufacturers,

4

wholesalers, and retailers who are engaged in the

production and distribution of wood products. These

members own 3.8 million of the 7.4 million acres of

private forest land in California and are committed to

protecting and enhancing the natural life cycle of

California’s forests. They also supply wood resources

by contracting to purchase and harvest significant

amounts of timber from public lands, including the

national forests.

The Forest Landowners Association was

established in 1941 to provide its members with

education, information, and national grassroots

advocacy, which enables them to sustain their forest

lands across generations. Association members own

and operate more than 40 million acres of forest land

in 48 states. Through outreach on behalf of private

forest land owners nationwide, the Association seeks to

enhance forest land management and stewardship.

The Association also provides advice, support, and

information to policymakers, educating them on how

proposed legislation could affect private forest

management, stewardship, and owners’ rights.

The Kentucky Forest Industries Association was

organized in 1965 to promote the economic welfare and

interests of Kentucky’s wood industry by advocating

conservation and sustainable forest use, and by

working with agencies to promote the forest industry.

The Association has a wide range of members

(approximately 600) including landowners, sawmills,

loggers, flooring companies, insurance companies,

financial institutions, heavy equipment companies,

and numerous other support industries. Association

members directly employ over 20,000 people with a

large impact on Kentucky’s economy.

5

The Missouri Forest Products Association was

established in 1970 to encourage the wise use and

conservation of the nation’s resources through

education and issue advocacy. The Association has

over 300 members, comprised primarily of wood

processing mills and logging businesses. Association

members contribute more than $4 billion directly to

the economy with between $10-$12 billion in induced

benefits.

The North Carolina Forestry Association was

organized in 1911. The Association actively promotes

healthy, productive forests by supporting the efforts of

forest land owners and forestry-related businesses that

responsibly manage or use forests and produce wood

and paper products. The Association is primarily

engaged in legislative and regulatory advocacy,

environmental education, logger training, and public

outreach. The Association has approximately 4,000

members, including forest land owners, forest

managers, wood suppliers and loggers, and producers

of wood and paper products. Forest products is North

Carolina’s largest manufacturing industry, providing

over 68,000 jobs with an annual economic impact of

$23 billion affecting more than 180,000 jobs. Forest

lands in North Carolina cover more than 18 million

acres (59% of the state).

The Northern Arizona Loggers Association was

formed in 1975 to promote forest industry

professionalism, knowledge, and safety, primanily

through training and education. The Association has

numerous members made up of logging contractors and

suppliers. Most are family-owned businesses vital to

local rural economies. The Association reports that a

proposed 750,000-acre forest restoration project could

6

be undermined if NPDES permits are required for the

estimated 2,000 miles of related forest roads.

The Ohio Forestry Association was founded in

1903 and became a trade association in 2008. The

Association’s mission is to support the management of

Ohio’s forest resources and improvement of business

conditions for the benefit of forestry-related industries

and enterprises, including the hardwood industry,

logging companies, sawmills, pulp and paper mills,

hardwood brokers, equipment sellers, consulting

companies, foresters, and landowners. To that end, the

Association engages in policy and legislative advocacy,

education, and outreach. The Association manages the

Ohio Master Logging Company Certification Program,

which is an outgrowth of Ohio’s response to dealing

with pollution. The Association works closely with

state and loca] agencies to deal with voluntary

compliance mechanisms and all participants believe

the current approach is addressing Ohio’s needs. A

2005 report by the Ohio Division of Forestry and Ohio

State University showed that Ohio’s wood and fiber

industry contributed $15.1 billion to Ohio’s economy

and employed 119,000 people with a payroll of

$4 billion.

Oregon Women in Timber was organized in 1979

to create awareness and appreciation for the value of

trees, and to encourage understanding about

protection, management, and conservation of

renewable forest resources. These goals are furthered

through education programs in schools that provide

instruction on ecology, forest management practices,

and the use of wood products. Members consist of

women associated with loggers, foresters, landowners,

and others who are concerned about forest

7

management. Oregon Women in Timber is an active

participant in Oregon Women for Agriculture and

American Agri-Women.

The Southeastern Lumber Manufacturers

Association 1s a trade organization established in 1962

to promote family-owned lumber businesses. The

Association represents lumber manufacturers in 17

states, primarily in the South. With emphasis on

government affairs, marketing and management, and

operational issues, the Association offers programs to

support independent lumber manufacturers.

The Texas Forestry Association was founded in

1914 to enhance and perpetuate Texas forest resources

through tree planting, education, training, and

political action. The Association has approximately

2,855 members, which include private landowners,

professional loggers, consulting foresters, and

processing mills. In East Texas alone, forest lands are

94% privately owned and cover more than 12 million

acres. Forestry is a major industry in Texas.

The Treated Wood Council was established in

2003 to serve all segments of the treated wood industry

in government affairs. The current membership is

approximately 500 and includes wood product

suppliers, wood preservative suppliers, wood treaters,

and related organizations throughout the country.

Member businesses have a $4.5 billion impact on the

national economy and supply approximately 15,000

direct jobs.

The Virginia Forest Products Association was

founded in 1958 to support and advance Virginia’s

lumber and wood products industry through public

education and legislative and regulatory advocacy.

8

The Association has more than 200 members,

primarily small businesses, and represents those who

produce lumber and wood products in the

Commonwealth of Virginia, as well as those companies

that provide goods and services to these producers.

Association members produce the majority of the

lumber and wood products manufactured in Virginia.

Virginia’s forest industry ranks as one of the

commonwealth’s largest manufacturing sectors. A

recent study by the Weldon Cooper Center found that

Virginia forests provide more than $27.5 billion in

annual benefits.

Washington Contract Loggers Association is a

trade association that represents over 700 logging

companies in Washington State. Association members

either own forest land, log for small forest land owners,

or purchase standing timber from private or public

landowners. The use of forest roads is vital to the

logging industry in the State of Washington.

The Amici oppose the expansion of federal

permitting for forest road runoff that the Ninth

Circuit’s opinion will bring about if it is affirmed.

Because of their experience and informed perspective

on the issues, the Amici believe that this brief will aid

the Court in deciding this case.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Northwest Environmental Defense Center

(NEDC) wants the federal government to impose

expansive new permitting requirements on millions of

forest land owners and timber harvesters across the

country by making forest road runoff a point source

pollutant under the Clean Water Act’s National

9

Pollution Discharge Elimination System (NPDES).

The Court should not grant NEDC’s wish. The

“Silviculture Rule” lists activities that are exempt from

NPDES permitting, including “non-point source

silvicultural activities such as... surface drainage, or

road construction and maintenance from which there

is natural runoff.” 40 C.F.R. § 122.27(b)(1) (emphasis

added). The Silviculture Rule codifies, as applied to

forest roads, the Clean Water Act’s regulatory

distinction between point source discharges, which are

generally subject to NPDES permitting; and non-point

source discharges, which are exempt. See 33 U.S.C.

§ 1311(a); 33 U.S.C. § 13862(12); see also Rapanos v.

United States, 547 U.S. 715, 723 (2006) (plurality

opinion); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians, 541 U.S. 95, 106 (2004); League of

Wilderness Defenders/ Blue Mts. Biodiversity Project v.

Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002) (defining

“non-point source pollution” as “the type of pollution

that arises from many dispersed activities over large

areas’). Until the Ninth Circuit's decision below, it

was understood that runoff from forest roads was non-

point source in character and therefore exempt from

NPDES permitting under the Silviculture Rule.

If the Court requires EPA to begin administering

NPDES permits for forest road runoff, it will displace

long-established state water quality programs, upset

® The other activities listed in the Silviculture Rule, which are

subject to NPDES permitting, but which are not at issue in this

case, are deemed “silvicultural point sources,” and are “any

discernable, confined and discrete conveyancef{s] related to rock

crushing, gravel washing, log sorting, or log storage facilities

which are operated in connection with silvicultural activities and

from which pollutants are discharged into waters of the United

States.” 40 C.F.R. § 122.27(b)(1).

10

current federal permitting practices, and imperil

timber harvesting operations throughout the United

States. But none of this is necessary because any

pollution created by forest road runoff is already being

addressed through state best management practices.

The Amici respectfully urge this Court to reverse the

Ninth Circuit’s decision and hold that forest road

runoff is exempt from NPDES permitting.

ARGUMENT

I

REQUIRING NPDES PERMITS

FOR FOREST ROAD RUNOFF

WILL INTERFERE WITH

SUCCESSFUL STATE-SPECIFIC

BEST MANAGEMENT PRACTICES

Extending the NPDES to cover forest road runoff

is not necessary to protect water resources. Rainwater

runoff from forest roads has been regulated for decades

as non-point source pollution, minimized through time-

tested “best management practices” (BMPs) at the

state level, including drainage standards that prevent

sediment from spilling into water bodies. See 33

U.S.C. § 1329; see, e.g., Kevin Bold, et al., A Case Study

of an Erosion Control Practice: The Broad-Based Dip

65 (2007) (“One [practice to control runoff] is the

construction of cross drainage structures designed to

efficiently drain water off the road prism in order to

control the erosion potential of water collecting on the

road surface.”).°

* Available at http://nrs.fs.fed.us/pubs/jrnl/2007/nrs_2007_bold_

0O01.pdf (last visited Aug. 17, 2012).

11

The government and tree harvesters alike have

found this state-based system of BMPs to be

efficacious. A survey performed by researchers with

the U.S. Forest Service demonstrates that, since 2000,

at least 48 states have implemented their own

individualized BMPs for controlling non-point source

runoff associated with silviculture. PamelaJ. Edwards

& Gordon W. Stuart, State Survey of Silviculture

Nonpoint Source Programs: A Comparison of the 2000

Northeastern and National Results, N. J. Applied

Forestry 19(3), 122 (Sept. 2002). There are now over

150 state laws nationwide that address non-point

source pollution from silviculture, and compliance

averages around 86%. Id. at 123-24.

Empirical evidence corroborates the reported

success of BMPs—EPA does not list forestry among the

leading sources of pollution to lakes, estuaries, or

wetlands, due to the effectiveness of BMP programs:

Much of forestry’s success in pollution control

is attributable to its early (beginning about

1972) and continued use of BMPs and

compliance monitoring, and its recent

emphasis on education and _ training.

Although many states have similar BMP

practices, development of BMPs at the state

level has allowed states more ownership and

support for their implementation, improved

compliance, avoided a_ one-size-fits-all

approach, fostered more creativity and

flexibility, and addressed local conditions.

Id. at 126.

* Available at http://nrs.fs.fed.us/pubs/jrnl/2002/ne_2002_edwards

_001.pdf (last visited Aug. 17, 2012).

12

Pertinent to this case, Oregon has its own policies

for safeguarding against pollution that might occur as

a result of harvesting trees. Those laws include

Oregon’s Forest Practices Act, Or. Rev. Stat. § 527.610,

et seq., under which the Oregon Board of Forestry has

promulgated water protection rules, Or. Admin. R.

629-635-0000, et seg. And those rules establish

practices which place high priority on the preservation

of water quality. See, e.g., Or. Admin. R. 629-635-

0100(7)(a) (“The protection goal for water quality . . . is

to ensure through the described forest practices that,

to the maximum extent practicable, non-point source

discharges of pollutants resulting from forest

operations do not impair the achievement and

maintenance of the water quality standards.”).

Forcing all forest roads, wherever located, to come

under the same NPDES permitting program would

unsettle the regulatory systems already in place in

Oregon and other states, and could lead to negative

consequences as a result of imposing a uniform

regulatory scheme on non-uniform timber harvesting

conditions among the states.

Il

REQUIRING NPDES PERMITS FOR

FOREST ROADS WILL CREATE

TREMENDOUS COSTS AND DELAY

A. Including Forest Roads in the NPDES

Will Result in a Significant Increase

in the Number of NPDES Applications

If, despite the proven success of BMPs, this Court

determines that forest road runoff must come within

the ambit of the NPDES, then EPA will be forced to

develop a permitting program for rainwater on forest

13

roads. See 33 U.S.C. § 1342. That program could be

developed on a per-harvest, per-landowner, or per-

discharge basis. But no matter how it is structured, it

will mean that the Amici and millions of forest land

owners and operators across the nation will face new,

possibly insurmountable, regulatory obstacles,

including unprecedented delay in the permitting

process caused by a massive increase in the number of

new permits that will be required.

1. Per Harvest

According to Forest Resources of the United

States, there are 423 million acres of private forest

land in the United States, controlled by about 11

million owners. W. Brad Smith et al., Forest Resources

of the United States, 2007, at 20 (United States Forest

Serv. 2009).° Over 90% of those owners are individuals

or unincorporated entities. Id. Those individuals and

small businesses control about 62% of all private forest

land, amounting to approximately 264 million acres

nationwide. Jd. Of those 264 million acres, 58% are

used for commercial timber harvesting. Jd. That

means there are about 150 million acres of family-

owned forest land in the United States used for tree

harvesting.

Assuming that an average tree harvest

encompasses 200 acres, and that each harvest would

require access to forest roads having some form of

drainage system, there are 750,000 (150 million

divided by 200) potential tree harvest sites for which

an NPDES permit may be necessary.

° Available at http//www.fs.fed.us/nrs/pubs/gtr/gtr_wo78.pdf (last

visited Aug. 17, 2012).

14

2. Per Landowner

Alternatively, NPDES permitting could be

required on a per-landowner basis. A recent report

summarizing the U.S. Forest Service’s National

Woodland Owner Survey shows that 46% of family

forest land owners harvested or removed trees from

some or all of their land between 2002 and 2006. See

Brett J. Butler, Family Forest Owners of the United

States, 2006, at 21 (U.S. Forest Serv. 2008).°® If those

owners continue to use their land for tree harvesting,

and each tree harvest requires access to forest roads

having some form of water conveyance, then there are

about 5-6 million (roughly half of 11 milhon) forest

land owners who will be required to obtain an NPDES

permit if forest road runoff is covered under that

program.

3. Per Discharge

Yet even predicting the impact of NPDES

permitting on a per-harvest or per-landowner basis

fails to paint the full picture. The impact could be

analyzed in terms of the number of potential rainwater

conveyances for which specific effluent limitations may

have to be established as part of the NPDES

permitting process. See, 33 U.S.C. § 1311(e) (“Effluent

limitations .. . shall be applied to all point sources of

discharge of pollutants... .”). If the ratio of one mile

of forest road per square mile of forest land is used as

a national average, then there are approximately

* Available at http://nrs.fs.fed.us/pubs/gtr/gtr_nrs27.pdf (last

visited Aug. 17, 2012).

15

264 million miles of forest roads on private forest land.’

Again, assuming an average ratio of one water

conveyance per mile of road, the estimated total

number of conveyances requiring an NPDES permit

would be 264 million.

4. Summary

Construing the NPDES to cover forest road runoff

would result in an unprecedented increase in NPDES

permit applications. Each state would be significantly

affected, and at a national level, the Amici estimate

that a forest road NPDES program would create at

least an additional 750,000 permit applications, based

on the number of tree harvests, 5 million permit

applications, based on the number of affected

landowners, or 264 million new point source discharges

requiring permits. Cumulatively, such a program

would place a crushing burden on the owners and

operators that would be subject to it, as well

substantially expand the NPDES program well beyond

its current bounds, without express direction from

Congress.

B. Including Forest Roads in the

NPDES Will Result in Skyrocketing

Costs and Intolerable Delay for

Timber Harvesters

Imposing an NPDES permitting obligation for

forest roads would overwhelm EPA and make it nearly

impossible for forest land owners to obtain needed

permits in a timely manner. The Amici estimate that

’ This is probably a conservative estimate. According to informal

survey data gathered from the members of Amicus California

Forestry Association, there are approximately 6 miles of forest

road per square mile of forest land in California.

16

there are approximately 400,000 NPDES permits

currently being administered by EPA, based on agency

data made available to the public. See EPA, Protecting

the Nation's Waters Through Effective NPDES Permits:

A Strategic Plan 1 (2001).° As outlined above, the

number of new NPDES permits required for forest

roads alone would exceed the total number of all

NPDES permits currently administered.

The costs imposed by all of those new permits

would be great. As this Court noted in 2006, the cost

required at that time to obtain similar “dredge and fill”

permits was already staggering at $271,596 for an

individual permit, and $28,915 for a nationwide

permit, not counting costs of mitigation or design

changes. Rapanos, 547 U.S. at 721 (plurality opinion).

In terms of the costs that would be caused by

delay, a worthwhile lesson can be drawn from EPA’s

experience in issuing a general rainwater discharge

permit for shipping vessels, which was the direct result

of litigation. See Nw. Envtl. Advocates v. EPA, No. C

03-05760 SI, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal.,

Mar. 30, 2005). EPA needed over two years to create

that program, which has a much smaller scope than a

program covering forest road runoff would have.* How

much time would the agency need to put together a

~ Available at http://www.epa.gov/npdes/pubs/strategicplan.pdf

(last visited Aug. 17, 2012).

’ For a history of the development of EPA’s vessel discharge

program, visit http://cfpub.epa.gov/npdes/vessels/background.cfm

(last visited Aug. 17, 2012). EPA estimates that approximately

70,000 total vessels will be affected by the vessel discharge permit

program.

17

permitting program for over 250 million potential

discharging sources on forest roads?

One thing is certain: While the agency struggled

to produce a new permi‘ting program, forest road

owners and operators would be put in an impossible

position—continue with business as usual and run the

risk of becoming a defendant in a Clean Water Act

citizen suit, or stop using forest roads and abandon

their livelihoods.

18

> 4

CONCLUSION

The Amici respectfully request that this Court

reverse the Ninth Circuit’s opinion, which held that

rainwater running off of forest roads must be treated

as point source pollution under the NPDES. The

Silviculture Rule exempting forest road runoff from

inclusion in the NPDES sensibly excludes non-point

source discharges from a permitting regime designed

to control point source discharges of pollutants.

Bringing forest roads under the NPDES would lead to

a substantial increase in the number of permit

applications that the government would have to

process, while EPA does not have a program in place

that could accommodate such an increase. Finally,

extending the NPDES to cover forest road runoff would

probably result in little environmental improvement,

yet it would create an ungainly regulatory scheme that

would disrupt successful state-tailored water quality

programs which are already being enforced.

DATED: August, 2012.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

DAMIEN M. SCHIFF

DANIEL A. HIMEBAUGH

Of Counsel

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: mrh@pacificlegal.org

E-mail: dms@pacificlegal.org

E-mail: dah@pacificlegal.org

Counsel for Amici Curiae