# Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A40 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2013 - **Citation:** 568 U.S. 1118 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A40. Public record. Not legal advice.