Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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RECORD cee Nos. — 11-347

AND

BRIEFS =, Supreme Court 0 of the Anited States

DouG DECKER, IN HIS OFFICIAL CAPACITY AS

OREGON STATE FORESTER, et al., Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et ai.,

Respondents.

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

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE SOCIETY OF AMERICAN

FORESTERS; NATIONAL ASSOCIATION OF

STATE FORESTERS; ASSOCIATION OF

CONSULTING FORESTERS OF AMERICA,

INC.; NATIONAL ASSOCIATION OF FOREST

SERVICE RETIREES; FORESTRY SCHOOLS;

AND ACADEMICS AND FORESTRY

PROFESSIONALS AS AMICI CURIAE

IN SUPPORT OF PETTITIONERS

VIRGINIA S. ALBRECHT

Counsel of Record

ERIC J. MURDOCK

RYAN A. SHORES

ELIZABETH L. HORNER

HUNTON & WILLIAMS LLP

2200 Pennsylvania Avenue, NW

Washington, DC 20037

(202) 955-1500

September 4, 2012 valbrecht@hunton.com

Counsel for Amici Curiae

WILSON-EPES PRINTING Co., INC. — (202)789-0096 — WASHINGTON, D. 2

of Con

Law Library

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................::eeeseeees

INTERESTS OF AMICI CURIAE ..................06+.

I. For Almost 40 Years, EPA Has Treated

Forest Road Runoff as a Nonpoint

Source To Be Managed Through BMPs

Administered by States. ................:ccceseeeee

BMPs Are an Environmentally Sound

and Efficient Approach for Controlling

Stormwater Impacts from Silvicultural

Activities, Including Forest Roads. ..........

II.

Environmental Impacts Associated

with Silvicultural Activities................

Addressing Silvicultural Impacts

i citciicedcencnninncntininnstneesnens

Implementation at the State Level.....

Effectiveness of Forestry BMPs..........

Continued Enhancement of Forestry

ET SIE viccencinctcinsnsinennicnsnssinnennen

CIENT secicccnscescovscnsesnseoenssnssenentsneunenensneses

(i)

Page

TABLE OF AUTHORITIES

STATUTES Page

Clean Water Act (“CWA”) § 101(b), 33

Se eI ia ocesiscieinepacideinitnieimpdenensiainieiaseunlaiin 9

CWA § 208, 33 U.S.C. § 1288...................04. 9,10

CWA § 303, 33 U.S.C. § 1313....................... g

CWA § 304(f), 33 U.S.C. § 1314(f)................ 10

CWA § 319, 33 U.S.C. § 1329....................... 9

CWA § 402, 33 U.S.C. § 1342...................... 9, 16

CWA § 402(p), 33 U.S.C. § 1342(p).............. 10

CWA § 502(14), 33 U.S.C. § 1362(14).......... 9

LEGISLATIVE HISTORY

117 CONG. REC. 38,816 (1971)................20006 9

REGULATIONS

IIT sicidhiccisnictsidieiediinintibinaninineiiadainaioniins 10

FEDERAL REGISTER

40 Fed. Reg. 56,932 (Dec. 5, 1975)............... 10

41 Fed. Reg. 6281 (Feb. 12, 1976)................ 10

41 Fed. Reg. 24,709 (June 18, 1976)....... 10, 11, 16

55 Fed. Reg. 47,990 (Nov. 16, 1990) ............ 10

77 Fed. Reg. 30,473 (May 23, 2012)............. 16

OTHER

Paul W. Adams, Oregon’s Forest Practice

Rules, THE WOODLAND WORKBOOK

(Oregon State University Extension

Ss WII iccissonscicdtvisiendiunanieesemnipbnnintiedeinn 19

TABLE OF AUTHORITIES—Continued

Christopher J. Anderson & B. Graeme

Lockaby, The Effectiveness of Forestry

Best Management Practices for Sediment

Control in the Southeastern United

States: A Literature Review, 35 S.J.

APPLIED FORESTRY 170 (2011)..................

T.W. Appelboom et al., Management

Practice for Sediment Reduction from

Forest Roads in the Coastal Plain, 45

TRANSACTIONS AM. SOC’Y AGRIC. ENG’RS

Se ee Micriensiconsnensictindiiddenmiiniminibapinianiintniiaones

Warren E. Archey, National Association of

State Foresters, 2004 PROGRESS REPORT:

STATE WATER RESOURCES PROGRAMS FOR

SILVICULTURE (2004)............ccceseeseeeseeeeeeees

Arkansas Forestry Commission, FORESTRY

BEST MANAGEMENT PRACTICES FOR

WATER QUALITY PROTECTION _ IN

ARKANSAS IMPLEMENTATION REPORT

Robert L. Beschta & William L. Jackson,

Forest Practices and Sediment Produc-

tion in the Alsea Watershed Study, in

J.D. Stednick, ed., HYDROLOGICAL AND

BIOLOGICAL RESPONSES TO FOREST

PRACTICES: THE ALSEA WATERSHED

I ins cidsncleiceteiaianhenimiibianineaiende

TABLE OF AUTHORITIES—Continued

Dan Binkley & Thomas C. Brown, Forest

Practices as Nonpoint Sources of

Pollution in North America, 29 WATER

RES. BULL. 729 (1993)..............cocresscssccessee

Dan Binkley & Thomas C. Brown, US.

Department of Agriculture, Forest

Service, General Technical Report RM-

239, MANAGEMENT IMPACTS ON WATER

QUALITY OF FORESTS AND RANGELANDS

W.H. Blackburn et al., Stormflow and

Sediment Loss from Intensively Managed

Forest Watersheds in East Texas, 26

WATER RES. BULL. 465 (1990)..............00004

Peter H. Cafferata & Thomas E. Spittler,

Logging Impacts of the 1970's us. the

1990’s in the Caspar Creek Watershed, in

U.S. Department of Agriculture, Forest

Service, General Technical Renort

PSW-GTR-168, PROCEEDINGS OF THE

CONFERENCE ON COASTAL WATERSHEDS:

THE CASPAR CREEK STORY (1998).............

California Department of Forestry and

Fire Protection Resource Management,

Forest Practice Program, CALIFORNIA

FOREST PRACTICE RULES (2012)................

Burl Carraway et al., Texas Forest

Service, VOLUNTARY COMPLIANCE WITH

FORESTRY BEST MANAGEMENT PRACTICES

IN EAST TEXAS: RESULTS FROM ROUND 4

OF BMP MONITORING (2000)...................+-

Page

TABLE OF AUTHORITIES—Continued

Drew B.R. Coe, Sediment Production and

Delivery from Forest Roads in the Sierra

Nevada, California, Master's Thesis,

Colorado State University (2006).............

Council of Western State Foresters, FOR-

ESTRY BEST MANAGEMENT PRACTICES

FOR WESTERN STATES: A SUMMARY

OF APPROACHES TO WATER QUALITY

IMPLEMENTATION AND EFFECTIVENESS

I oi scniatneridsitinadainainensadin

Kristina Ferrare et al., U.S. Department of

Agriculture, NA-FR-02-07, BEST MAN-

AGEMENT PRACTICES (BMP) MANUAL—

DESK REFERENCE: IMPLEMENTATION AND

EFFECTIVENESS FOR PROTECTION OF

WATER RESOURCES (2007)..............00c02c0000s

Florida Division of Agriculture & Con-

sumer Services Technical Advisory

Committee, SILVICULTURE BEST MAN-

AGEMENT PRACTICES (2011) ..............200000e+

Noah E. Fraser, A Paired Watershed

Investigation of Clearcut BMPs Revisited:

B.F. Grant Memorial Forest, Georgia

After the Thirty-Year Growing Cycle,

Master's Thesis, University of Georgia

Thomas S. Fudge et al., Effect of Different

Levels of Fine-Sediment Loading on the

Escapement Success of Rainbow Trout

Fry from Artificial Redds, 28 N. AM. J.

FISHERIES MGMT. 758 (2008)................0064

Page

TABLE OF AUTHORITIES—Continued

John D. Hewlett, FOREST WATER QUALITY:

AN EXPERIMENT IN HARVESTING AND

REGENERATING PIEDMONT FORESTS

(University of Georgia School of Forest

Resources Press, 1979) ................eseseseeeeees

George Ice, History of Innovative Best

Management Practice Development and

Its Role in Addressing Water Quality

Limited Waterbodies, 130 J. ENVTL.

Page

ENGINEERING 684 (2004) ......... 16, 17, 18, 27, 28

George G. Ice & Stephen H. Schoenholtz,

Understanding How Extremes Influence

Water Quality: Experience from Forest

Watersheds, 19 HYDROLOGICAL SCI. TECH.

TEI: icitclodieddcuesiiinninnisnadicinianmmnieasneiinnidbieis

George G. Ice et al., Forest Management

To Meet Water Quality and Fisheries

Objectives: Watershed Studies and

Assessment Tools in the Pacific North-

west, in George G. Ice & John D.

Stednick, eds., A CENTURY OF FOREST

AND WILDLAND WATERSHED LESSONS

George Ice et al., Programs Assessing

Implementation and Effectiveness of

State Forest Practice Rules and BMPs

in the West, 4 WATER AIR & SOIL

Re Be CR ccccccccccccccccscccccescccncs

vii

TABLE OF AUTHORITIES—Continued

George G. Ice et al., Trends for Forestry

Best Management Practices Implemen-

Page

tation, 108 J. FORESTRY 267 (2010).....19, 24, 30

Thomas E. Lisle & Sue Hilton, Fine Bed

Material in Pools of Natural Gravel Bed

Channels, 35 WATER RES. RESEARCH

ee Cee stuscnsneccadcninnniindeiiadieaiaamintianiaain

Maine Department of Conservation &

Maine Forest Service, MAINE FORESTRY

BEST MANAGEMENT PRACTICES USE

AND EFFECTIVENESS—2005-2009 (2010) .... 23, 32

Matthew W. McBroom et al., Storm Runoff

and Sediment Losses from Forest Clear-

cutting and Stand Re-establishment, 22

HYDROLOGICAL PROCESSES 1509 (2008)...

Dale J. McGreer, A Study of Erosion from

Skid Trails in Northern Idaho, in

National Council for Air and Stream

Improvement, Technical Bull. No. 353,

MEASURING AND ASSESSING THE

EFFECTIVENESS OF ALTERNATE FOREST

MANAGEMENT PRACTICES ON WATER

NN eM ecnccnccsnistsbinenicniieiniadanbendaaan

Walter F. Megahan, Erosion Processes on

Steep Granitic Road Fills in Central

Idaho, 42 Som Sci. Soc’y Am. J. 350

vill

TABLE OF AUTHORITIES—Continued

Minnesota Forest Resources Council, SUS-

TAINING MINNESOTA FOREST RESOURCES:

VOLUNTARY SITE-LEVEL FOREST MAN-

AGEMENT GUIDELINES FOR LANDOWNERS,

LOGGERS AND RESOURCE MANAGERS

(2005, 2007 update) ..................cecseeceeseeeees

Montana Department of Natural Resour-

ces & Conservation, Forestry Division,

MONTANA FORESTRY BEST MANAGEMENT

PRACTICES MONITORING: 2010 FORESTRY

BEST MANAGEMENT PRACTICES FIELD

REVIEW RESULTS (2010) ................0..0ceeceee

National Alliance of Forest Owners,

Comments on 77 Fed. Reg. 30,473 (May

23, 2012), Docket ID No. EPA-HQ-OW-

2012-0195-0134 (June 22, 2012) ..............

National Council for Air and Stream

Improvement, Comments on 77 Fed.

Reg. 30,473 (May 23, 2012), Docket ID

No. EPA-HQ-OW-2012-0195-0103 (June

EE SP a ee ee

National Council for Air and Stream

Improvement, Special Report No. 12-01,

ASSESSING THE EFFECTIVENESS OF

CONTEMPORARY FORESTRY BEST MAN-

AGEMENT PRACTICES (BMPS): FOCUS ON

NS SR

TABLE OF AUTHORITIES—Continued

National Council for Air and Stream

Improvement, Technical Bull. No. 456,

CATALOG OF LANDSLIDE INVENTORIES FOR

THE NORTHWEST (1985)..............0200eeeeceeeee

National Council for Air and Stream

Improvement, Technical Bull. No. 966,

COMPENDIUM OF FORESTRY BEST MAN-

AGEMENT PRACTICES FOR CONTROLLING

NONPOINT SOURCE POLLUTION IN NORTH

Re ID vscciricccndcciiencsnnnnbinaiicnionins 17, 18, 23

National Council for Air and Stream

Improvement Forest Watershed Task

Group, FOREST ROADS AND AQUATIC

ECOSYSTEMS: A REVIEW OF CAUSES,

EFFECTS, AND MANAGEMENT PRACTICES

SII ii ichinchlisei hint ceelehcieiaceladenliidiaeialiesiiaiie 13, 15,

Oregon Department of Forestry, FOREST

ROAD MANAGEMENT GUIDEBOOK: MAIN-

TENANCE AND REPAIRS TO PROTECT FISH

HABITAT AND WATER QUALITY (2000) .......

Maryanne Reiter et al., Temporal and

Spatial Turbidity Patterns Over 30

Years in a Managed Forest of Western

Washington, 45 J. AM. WATER RES. ASS’N

ee iiniesdinnncncionisnncisipuinsainannaduinimiiniaie

20, 21

TABLE OF AUTHORITIES—Continued

Mark S. Riedel & James M. Vose,

Collaborative Research and Watershed

Management for Optimization of Forest

Road Best Management Practices, IN-

TERNATIONAL CONFERENCE OF ECOLOGY

AND TRANSPORTATION PROCEEDINGS (Fed-

eral Highway Administration, 2003) .......

E. George Robison et al., Oregon Depart-

ment of Forestry, STORM IMPACTS AND

LANDSLIDES OF 1996: FINAL REPORT

rai iihiesininsnascciccianieiinineidineamanpecdiciinnttabeiaabaninnibbbiangid

Society of American Foresters, DICTIONARY

OF FORESTRY (2008), available at http://

www.dictionaryofforestry.org/ ...............-+.

Southern Group of State Foresters Water

Resources Committee, SILVICULTURAL

BEST MANAGEMENT PRACTICES IMPLE-

MENTATION MONITORING: A FRAMEWORK

FOR STATE FORESTRY AGENCIES (2007).....

Hughes Simpson et al., Texas Forest

Service, VOLUNTARY IMPLEMENTATION OF

FORESTRY BEST MANAGEMENT PRACTICES

IN EAST TEXAS: RESULTS FROM ROUND 7

OF BMP IMPLEMENTATION MONITORING

ETE ae te ANE ART

Hughes Simpson et al., Texas Forest

Service, VOLUNTARY IMPLEMENTATION OF

FORESTRY BEST MANAGEMENT PRACTICES

IN EAST TEXAS: RESULTS FROM ROUND 8

OF BMP IMPLEMENTATION MONITORING

ae HE ciiernisentsncioccnnedsiniianninddaninbienes

TABLE OF AUTHORITIES—Continued

Brian D. Sugden et al., Montana’s Forestry

Best Management Practices Program:

20 Years of Continuous Improvement,

110 J. FORESTRY 328 (2012)...............022+0+-

Sustainable Forestry Initiative, 2010-2014

Standard (2010), available at http://

www.sfiprogram.org/files/pdf/Section2_

sfi_requirements_2010-2014.pdf..............

John A. Sweka & Kyle J. Hartman, Effects

of Turbidity on Prey Consumption and

Growth in Brook Trout and Implications

for Bioenergetics Modeling, 58 CAN. J.

FISHERIES & AQUATIC SCI. 386 (2001)......

L.W. Swift, Jr., Gravel and Grass Surfacing

Reduces Soil Loss From Mountain

Roads, 30 FOREST SCI. 657 (1984)............

Texas Forest Service & Texas Forestry

Association, ‘TEXAS FORESTRY BEST

MANAGEMENT PRACTICES (2010)...............

Elizabeth M. Toman & Arne E. Skaugset,

Designing Forest Roads To Minimize

Turbid Runoff During Wet Weather Use,

PROCEEDINGS OF THE FOURTH CONFER-

ENCE ON WATERSHED MANAGEMENT TO

MEET WATER QUALITY STANDARDS AND

TMDLS (Am. Soc’y of Agric. & Biological

STE cntniciincnstnnbtonsannidindneniaeadinnntetteins

x1i

TABLE OF AUTHORITIES—Continued

Donald J. Turton et al., Effectiveness of

BMPs in Reducing Sediment from

Unpaved Roads in the Stillwater Creek,

Oklahoma Watershed, 45 J. AM. WATER

RES. ASS’N 1343 (2009)...............:-eeeeeeeeeeees

U.S. Environmental Protection Agency,

EPA-841-B-05-0001, NATIONAL MANAGE-

MENT MEASURES TO CONTROL NONPOINT

SOURCE POLLUTION FROM FORESTRY

Page

Gee ceccecececessesssnnemsenausnvessocsenss 13, 17, 18, 19, 31

Jeff Vowell et al., Florida Department of

Agriculture & Florida Forest Service,

SILVICULTURAL BEST MANAGEMENT PRAC-

TICES 2011 IMPLEMENTATION SURVEY

I I citi iteidieasitinlteaadetinmadiindinianiiee

C.R. Wade et al., Comparison of Five

Erosion Control Techniques for Bladed

Skid Trails in Virginia, S.J. APPLIED

PET GE IID eniecinvcnniieseonnniiionsdnincene

David Welsch et al., U.S. Department of

Agriculture, Forest Service, NA-FR-02-

06, BEST MANAGEMENT PRACTICES (BMP)

MONITORING MANUAL—FIELD GUIDE:

IMPLEMENTATION AND EFFECTIVENESS

FOR PROTECTION OF WATER RESOURCES

Jason L. White & Bret C. Harvey, Winter

Feeding Success of Stream Trout Under

Different Streamflow and _ Turbidity

Conditions, 136 TRANSACTIONS AM.

FISHERIES Soc’y 1187 (2007)....................

TABLE OF AUTHORITIES—Continued

Thomas M. Williams et al., Effectiveness of

Best Management Practices To Protect

Water Quality in South Carolina

Piedmont, in James D. Haywood, ed.,

PROCEEDINGS OF THE TENTH BIENNIAL

SOUTHERN SILVICULTURAL RESEARCH

CONFERENCE (1999) ..........:ccceeeseeeeeereeeeeeees

Page

INTERESTS OF AMICI CURIAE

This case concerns environmental impacts associ-

ated with stormwater runoff from forest roads and

particularly the use of best management practices

(“BMPs”) to control such impacts. Amici are forestry

professionals, schools, academics, and scientists whose

professional work focuses on forestry management

and who are interested in the development and

effectiveness of BMPs.’

The Society of American Foresters (“SAF”) is the

national scientific and educational organization that

represents the forestry profession. SAF’s 12,000

members are dedicated to the use of the knowledge,

skills, and conservation ethic of the profession to

ensure the continued health and use of forest ecosys-

tems and the present and future availability of forest

resources to benefit society.

The National Association of State Foresters

(“NASF”) is a non-profit organization that represents

the directors of forestry agencies from the fifty

States, eight U.S. Territories and associated States,

and the District of Columbia. States have leading

roles in controlling water quality impairments asso-

ciated with nonpoint source pollution. State Forest-

ers have the primary responsibility for administering

forestry BMP programs designed to address nonpoint

‘ No counsel for a 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 Amici, their members, or their counsel made

a monetary contribution to its preparation or submission. All

parties have consented to the filing of this brief. The letters of

consent have been filed with the Court.

source pollution from forestry activities under the

Clean Water Act.

The Association of Consulting Foresters of Amer-

ica, Inc. (*ACF”) has been dedicated to the needs and

interests of consulting foresters since 1948 and has

650 members in 35 States. Consulting foresters are

professional foresters who perform technical forestry

work but do not work for a single full-time employer,

instead offering their services on a fee or contract

basis to the general public. ACF membership is pres-

tigious. Members are required to have a Bachelor of

Science degree in Forestry or Natural Resources from

an approved college, as well as landowner and

personal references, and must pursue continuing

forestry education. A member's principal business

activity must be forestry consulting, and candidates

must net have an economic interest in a timber

procurement entity.

The National Association of Forest Service Retirees

(“NAFSR”) is a national scientific and educational

association whose members believe in the U.S. Forest

Service and its mission. NAFSR members have dedi-

cated their careers to the protection, development,

and management of our Nation’s National Forests

and National Grasslands, as well as cooperation and

information-sharing on these matters in the United

States and around the world.

The State University of New York (“SUNY”)

College of Environmental Science and Forestry

(“ESF”) is the oldest and largest college in the United

States that focuses exclusively on the natural envi-

ronment. ESF has been a leader in environmental

education since 1911. The college offers hundreds of

courses in nine program areas and degrees ranging

from the associate’s degree in forest technology to the

doctor of philosophy. The main campus in Syracuse

is supplemented by 25,000 acres of field stations

across New York State and in Costa Rica.

Auburn University’s School of Forestry & Wildlife

Sciences is home to the State of Alabama’s oldest and

largest forestry program and has been continuously

accredited by SAF since 1950. The School offers

undergraduate and graduate programs in natural

resources and has a comprehensive research program

that includes environmental assessments of forest

management practices.

The following academics and forestry professionals

also join the brief in their individual capacity:

Paul W. Adams, Forest Watershed Specialist,

Policy Chair, Oregon Society of American Foresters;

Janaki Alavalapati, Professor and Head, Depart-

ment of Forest Resources and Environmental

Conservation, College of Natural Resources and

Environment, Virginia Tech;

James A. Allen, Professor and Executive Director,

School of Forestry, College of Engineering, Forestry,

and Natural Sciences, Northern Arizona University;

Mila Alvarez, Visiting Professor, College of Natural

Resources and Environment, Virginia Tech National

Capital Region;

Mark S. Ashton, Morris K. Jesup Professor of

Silviculture and Forest Ecology and Director of

School Forests, Yale University;

B. Bruce Bare, Dean Emeritus and Professor,

School of Environmental and Forest Sciences, Uni-

versity of Washington;

Dennis R. Becker, Associate Professor, H.T. Morse

Distinguished Faculty, Department of Forest

Resources, University of Minnesota;

Richard W. Brinker, Dean Emeritus, School of For-

estry & Wildlife Sciences, Auburn University;

Michael L. Clutter, Dean and Hargreaves Distin-

guished Professor of Forest Finance, Warnell School

of Forestry and Natural Resources, The University of

Georgia;

Anthony D’Amato, Associate Professor of Silvicul-

ture and Applied Forest Ecology, Department of

Forest Resources, University of Minnesota;

Stephen -_M. Dewhurst, Associate Professor of

Forestry, School of Forestry, Northern Arizona

University;

John P Dwyer, Consulting Forester, Show-Me

Forestry Consultants, LLC;

Alan R. Ek, Professor and Head, Department of

Forest Resources, University of Minnesota;

John J. Garland, Professor Emeritus, Forest Engi-

neering, Resources & Management, Oregon State

University;

Michael T. Goergen, Jr., Executive Vice President

and CEO, Society of American Foresters;

W. Dale Greene, Professor, Warnell School of

Forestry and Natural Resources, The University of

Georgia;

James Harding, Associate Professor of Natural

Resources Management, Director, Masters of Science

in Environmental Studies Program, Green Mountain

College;

Theodore E. Howard, Professor of Forestry Eco-

nomics, Chair, Department of Natural Resources and

the Environment, University of New Hampshire;

George G. Ice, Professional Forester and Hydrolo-

gist, Retired Fellow, National Council on Air and

Stream Improvement;

James E. Johnson, Associate Dean and Professor of

Forestry, College of Forestry, Oregon State Univer-

sity;

Michael A. Kilgore, Professor and Director, Natural

Resources Science and Management Graduate Stud-

ies Program, Department of Forest Resources,

University of Minnesota;

Larry A. Leefers, Associate Professor, Department

of Forestry, Michigan State University;

Chung-Ho Lin, Research Assistant Professor,

Department of Forestry and Center for Agroforestry,

University of Missouri;

Robert W. Malmsheimer, Professor of Forest Policy

and Law, Department of Forest and Natural

Resources Management, SUNY College of Environ-

mental Science and Forestry;

Timothy A. Martin, Professor of Tree Physiology,

School of Forest Resources and Conservation,

University of Florida;

Matthew W. McBroom, Associate Professor of

Forest Hydrology, Arthur Temple College of Forestry

and Agriculture, Stephen F. Austin State University;

Ken McNabb, Mosley Environmental Professor and

Extension Specialist, School of Forestry & Wildlife

Sciences, Auburn University;

David Newman, Professor and Chair, Department

of Forest and Natural Resources Management, SUNY

College of Environmental Science and Forestry;

Kevin L. O’Hara, Professor of Silviculture, College

of Natural Resources, University of California,

Berkeley;

David Ostermeier, Professor of Natural Resource

Policy, Department of Forestry, Wildlife and Fisher-

ies, University of Tennessee;

Douglas D. Piirto, Professor and Department Head,

Natural Resources Management and Environmental

Sciences Department, California Polytechnic State

University;

Norman Pillsbury, Professor, Natural Resources

Management and Environmental Sciences Depart-

ment, California Polytechnic State University;

James P. Shepard, Dean and Professor, School of

Forestry & Wildlife Sciences, Auburn University;

David Wm. Smith, Shelton H. Short Jr. Professor

Emeritus of Foresiry, Department of Forest

Resources and Environmental Conservation, College

of Natural Resources and Environment, Virginia

Tech;

William Stewart, Forest Specialist, College of Nat-

ural Resources, University of California, Berkeley;

Lawrence Teeter, Professor of Forest Economics

and Policy, School of Forestry & Wildlife Sciences,

Auburn University;

Emmett F. Thompson, Dean Emeritus, School of

Forestry & Wildlife Sciences, Auburn University;

Donald J. Turton, Associate Professor of Forest

and Wildland Hydrology, Department of Natural

Resource Ecology and Management, Oklahoma State

University;

Karl W.J. Williard, Professor of Forest Hydrology,

Department of Forestry, Southern Illinois University;

and

John Yarie, Professor of Silviculture, School of

Natural Resources and Agricultural Sciences, Uni-

versity of Alaska Fairbanks.

SUMMARY OF ARGUMENT

The construction and maintenance of forest roads

is an essential aspect of forest management. Forest

roads not only provide access for timber harvesting

but also are used for reforestation, fire control, wild-

life habitat and stream improvement projects, and

recreation. Since the inception of the Clean Water

Act (““CWA” or “Act”), the U.S. Environmental Protec-

tion Agency (“EPA”) has treated stormwater runoff

associated with forest roads as “nonpoint source” flow

that is properly managed at the state and local level

through the use of BMPs.

Based on Amici’s experience and research, EPA’s

approach is sound. As reflected in the scientific liter-

ature, and confirmed by practical experience, BMPs

are an effective and efficient approach to manage

stormwater runoff in areas where silvicultural activi-

ties have occurred, including runoff from forest roads,

ditches, and culverts.

State forestry BMP programs are widespread and

robust. From the flat terrains of the South’s Lower

Coastal Plain to the steep inclines of the Pacific

Northwest, forests differ substantially from one State

to the next, and even within a State. States—with

the support of professional forestry organizations—

have expended substantial resources to develop BMP

programs that are tailored to the specific geographic,

climatic, and topographic conditions within each

State. As numerous studies demonstrate, these BMP

programs are achieving their purpose—effective and

efficient environmental protection—and continue to

improve as States and forest professionals, including

Amici, monitor and revise BMPs to address local

environmental challenges.

The results demonstrate the wisdom of Congress’s

choice when it passed the CWA to mobilize all levels

of government, employing all their complementary

authorities, in the service of the CWA’s ambitious

water quality goals. This Court should reject the

Ninth Circuit’s decision to cast aside almost 40 years

of successful environmental management in favor of

an unworkable end-of-pipe permitting scheme ill-

suited to diffuse stormwater runoff and contrary to

Congress’s intent, EPA’s expert judgment, and sound

forest science.

ARGUMENT

I. For Almost 40 Years, EPA Has Treated

Forest Road Runoff as a Nonpoint Source

To Be Managed Through BMPs Admin-

istered by States.

The CWA established a multi-faceted regulatory

approach for restoring and maintaining the chemical,

physical, and biological integrity of the Nation’s

waters. Grounded in cooperative federalism, the Act

is a comprehensive statute that partners all levels of

government to protect water quality.

On the one hand, Congress created a federal

permitting program to manage end-of-pipe discharges

from “point source[s}” (defined generally as “any

discernible, confined and discrete conveyance”).

CWA § 502(14), 33 U.S.C. § 1362(14). That National

Pollutant Discharge Elimination System (“NPDES”)

program requires permits with precise effluent limi-

tations for the discharge of pollutants into navigable

waters of the United States from point sources. CWA

§ 402, 33 U.S.C. § 1342.

On the other hand, Congress knew that some

sources of water pollution did not come out of the

ends of pipes and recognized that traditional state

authority over land and water resources could be

effective in addressing those nonpoint sources. Thus,

the Act “recognize[s], preserve[s], and protect[s] the

primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, [and] to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources.” CWA § 101(b), 33 U.S.C. § 1251(b). And

it deploys traditional state authorities to address the

more diffuse sources of nonpoint pollution. In pursuit

of the CWA’s ambitious water quality goals, and

using the cooperative federalism partnership estab-

lished by the CWA, States have established water

quality standards and have developed areawide

treatment plans and management programs that

address nonpoint source pollution. CWA §§ 208, 303

& 319, 33 U.S.C. §§ 1288, 1313 & 1329.

Although the CWA contains a general definition of

“point source,” Congress intended for EPA to issue

“[gluidance with respect to the identification of ‘point

sources’ and ‘nonpoint sources.” 117 CONG. REC.

38,816 (1971). In particular, EPA was given the task

of defining the contours of “nonpoint sources of pollu-

tants,” such as “agricultural and silvicultural activi-

ties, including runoff from fields and crop and forest

lands.” CWA § 304(f), 33 U.S.C. § 1314(f).

Acting pursuant to Congress’s direction, EPA has—

for almost 40 years—taken the position that runoff

from forest roads, including runoff that has been

diverted to ditches and other artificial conveyances, is

a nonpoint source flow. See, e.g., 41 Fed. Reg. 24,709,

24,710 (June 18, 1976) (“Silvicultural Rule”) (now

codified at 40 C.F.R. § 122.27); see also 41 Fed. Reg.

6281, 6282 (Feb. 12, 1976) (proposed Silvicultural

Rule); 55 Fed. Reg. 47,990, 48,011 (Nov. 16, 1990)

(stating EPA’s intention to exclude nonpoint source

silvicultural discharges from the NPDES stormwater

permitting program under CWA § 402(p), 33 U.S.C.

§ 1342(p)). As EPA noted in 1975, “most rainfall run-

off is more properly regulated under [CWA] section

208° ..., whether or not the rainfall happens to col-

lect before flowing into navigable waters,” including

“silvicultural runoff, ... [which] frequently flows into

ditches.” 40 Fed. Reg. 56,932, 56,932 (Dec. 5, 1975).

Thus, the Silvicultural Rule adopted in 1976 specifi-

cally excluded from NPDES permitting “nonpoint

source activities inherent to silviculture such

as ...surface drainage[] and road construction and

maintenance from which runoff results from precipi-

tation events.” 41 Fed. Reg. at 24,712.

As EPA has recognized from the beginning of the

program, NPDES permitting was not designed for—

and does not fit—the type of pollution created by

forest road runoff. The NPDES program is designed

* Section 208, 33 U.S.C. § 1288, sets forth the parameters for

state-led areawide waste management treatment programs.

to control and eliminate discharges from discrete

conveyances that are under the control of a single

operator who can be held liable for the material dis-

charged through the pipe. In contrast, the pollutants

associated with forest road runoff “are induced by

natural processes, including precipitation . . . and

runoff,” and “[t/he pollutants discharged are not

traceable to any discrete or identifiable facility.” Jd.

at 24,710. Accordingly, EPA determined that forest

road runoff is “better controlled through the utiliza-

tion of best management practices.” Id.

For the reasons stated by Petitioners, it was well

within EPA’s authority to treat forest road runoff,

including runoff in drainage ditches that are inherent

to road construction and maintenance, as a nonpoint

source discharge. Furthermore, as discussed by

Amici in this brief, the on-the-ground results have

borne out the wisdom of EPA’s judgment. Through

their nonpoint source CWA authority and their tradi-

tional authorities over land and water resources,

States have widely implemented BMPs across the

country. As numerous studies demonstrate, these

BMPs are effective in mitigating environmental

impacts from stormwater runoff associated with silvi-

cultural activities.’ In holding that channelized

stormwater runoff from forest roads is subject to

NPDES permit requirements, the Ninth Circuit has

* See, e.g., Warren E. Archey, National Association of State

Foresters, 2004 PROGRESS REPORT: STATE WATER RESOURCES

PROGRAMS FOR SILVICULTURE iv (2004) (hereinafter NASF, 2004

PROGRESS REPORT); George Ice et al., Programs Assessing

Implementation and Effectiveness of State Forest Practice Rules

and BMPs in the West, 4 WATER AIR & SOIL POLLUTION 143, 161

(2004).

discredited nearly 40 years of state leadership in the

effective development of forestry BMPs.

Il. BMPs Are an Environmentally Sound

and Efficient Approach for Controlling

Stormwater Impacts from Silvicultural

Activities, Including Forest Roads.

As defined in the Dictionary of Forestry, “silvicul-

ture” is “the art and science of controlling the estab-

lishment, growth, composition, health, and quality of

forests and woodlands to meet the diverse needs and

values of landowners and society on a sustainable

basis.” Silviculture includes activities such as tim-

ber harvesting, reforestation, and the construction,

use, and maintenance of forest roads.

Modern silvicultural science recognizes that these

activities may have environmental impacts of differ-

ing nature and extent based on climate, topography,

and the particular stage of a given silvicultural

activity. Accordingly, state forestry agencies have

worked with firms engaged in silvicultural activities,

academics, regulatory administrators, and other

forest professionals to develop BMPs that avoid and

mitigate these impacts. These BMPs are widely

implemented and highly effective, and are subject to

continual refinement and improvement. In short, the

use of forestry BMPs is an environmental success

story that should not be brought to a premature end.

* Society of American Foresters (“SAF”), DICTIONARY OF

FORESTRY (2008), available at http-//www.dictionaryofforestry.

org/.

A. Environmental Impacts Associated

with Silvicultural Activities

Properly undertaken, silviculture is a relatively

benign land use with respect to its effects on water

resources.” A principal environmental concern associ-

ated with runoff from silvicultural activities is sedi-

mentation.° As defined by EPA, “[slediment is the

solid material that is eroded from the land surface by

water, ice, wind, or other processes and then trans-

ported or deposited away from its original location.”’

The source of sediment can vary based on topography

(slope and surface roughness), precipitation type and

intensity, and soil type.” In flatter areas, sediment

can travel through erosion of the land surface, while

in steeper areas it can also be dislodged through

“mass wasting” (e.g., landslides).”

* Dan Binkley & Thomas C. Brown, Forest Practices as

Nonpoint Sources of Pollution in North America, 29 WATER RES.

BULL. 729, 736, 738 (1993).

* See National Council for Air and Stream Improvement

(“NCASI”), Special Report No. 12-01, ASSESSING THE EFFEC—

TIVENESS OF CONTEMPORARY FORESTRY BEST MANAGEMENT

PRACTICES (BMPS): FOCUS ON ROADS 1 (2012); NCASI Forest

Watershed Task Group, FOREST ROADS AND AQUATIC ECO-

SYSTEMS: A REVIEW OF CAUSES, EFFECTS, AND MANAGEMENT

PRACTICES 23 (2003) (hereinafter NCASI 2003 REPORT).

" EPA, EPA-841-B-05-0001, NATIONAL MANAGEMENT MEASURES

TO CONTROL NONPOINT SOURCE POLLUTION FROM FORESTRY,

Ch. 2 at 9 (2005) (hereinafter EPA GUIDANCE).

* NCASI 2012 REPORT, supra note 6, at 17.

* EPA GUIDANCE, supra note 7, Ch. 2 at 9.

Sediment delivery through natural processes, and

in some instances human-induced disturbances (e.g.,

landslides), is the principal method by which gravel

substrates that are important to salmon spawns

enter streams in the Northwest. But sediment deliv-

ery to streams can also cause stream turbidity (which

is the cloudiness in water caused by suspended parti-

cles) and sediment deposition (which causes accu-

mulation of larger particles within channels). If

BMPs are not properly implemented, silvicultural

activities can cause other impacts on the aquatic

environment, including changes in a forest’s hydro-

logic processes through alteration of water flow,

These two impacts of sedimentation affect aquatic biota

differently. Turbidity has been shown in controlled experiments

to alter feeding efficiency and growth. John A. Sweka & Kyle J.

Hartman, Effects of Turbidity on Prey Consumption and Growth

in Brook Trout and Implications for Bioenergetics Modeling, 58

CAN. J. FISHERIES & AQUATIC SCI. 386, 392 (2001). In natural

conditions, however, trout were able to feed when turbidity

limited visibility. Jason L. White & Bret C. Harvey, Winter

Feeding Success of Stream Trout Under Different Streamflow

and Turbidity Conditions, 136 TRANSACTIONS AM. FISHERIES

Soc’y 1187, 1191 (2007). Excess sediment deposition can inhibit

fish larvae from emerging from eggs and limit habitat by filling

pools. Thomas S. Fudge et al., Effect of Different Levels of Fine-

Sediment Loading on the Escapement Success of Rainbow Trout

Fry from Artificial Redds, 28 N. AM. J. FISHERIES MGMT. 758,

758 (2008); Thomas E. Lisle & Sue Hilton, Fine Bed Material in

Pools of Natural Gravel Bed Channels, 35 WATER RES.

RESEARCH 1291, 1302 (1999).

channel encroachment,” and prevention of fish

passage through culverts.”

The environmental effects of silvicultural activities

on water quality are relatively minimal compared to

other land uses.” Although forests occupy about one-

third of the land base in the United States, silvicul-

tural impacts are associated with fewer than five

percent of impaired rivers and streams nationwide.“

In 30 of the 45 States that have reported information

to EPA about probable sources of water quality

impairment, silviculture is not considered a probable

source for any impairments. Indeed, silvicultural

impacts on water resources are substantially less

significant than impacts from wildlife and other

natural causes.

“ Channel encroachment is a relic of past practices. “State

regulations and forestry BMPs no longer allow road|[)”

construction “directly adjacent to and within stream channels.”

NCASI 2003 REPORT, supra note 6, at 22.

" Id. at 7-8.

* Dan Binkley & Thomas C. Brown, U.S. Department of

Agriculture (“USDA”), Forest Service, General Technical Report

RM-239, MANAGEMENT IMPACTS ON WATER QUALITY OF FORESTS

AND RANGELANDS 5 (1993).

“ Data on impaired rivers and streams cited herein were

acquired from EPA’s Watershed Assessment, Tracking, and

Environmental Results (WATERS) website and validated using

web reports generated using the National Summary of Assessed

Waters Report (http//www.epa.gov/waters/r/) in the Assess-

ment, TMDL Tracking and Implementation System (ATTAINS)

integrated reporting database.

B. Addressing Silvicultural Impacts

Through BMPs

Stormwater runoff from forest roads and other

silvicultural activities is different in kind from the

pollution that is typically addressed through the

CWA Section 402 NPDES permitting program.” The

typical NPDES permittee is a sewage treatment

plant or an industrial plant that discharges its

wastewater through outfall pipes to a nearby

waterbody. NPDES permits control the composition

of the wastewater and require treatment at the point

of discharge and monitoring of the final effluent to

meet specified permit limits.

Stormwater runoff, by contrast, runs across a land-

scape and generally covers a large area of land and

many miles of roads owned and used by many differ-

ent persons for a variety of activities.’ Thus, there is

no distinct source of sediment, and no single land-

owner or forest manager is in a position to control

what happens to the water or to operate a treatment

process prior to the stormwater entering a stream.

Moreover, “pollutants” (including sediment) associ-

ated with silvicultural activities are derived from the

natural environment and at certain levels can be

“ Cf. George Ice, History of Innovative Best Management

Practice Development and Its Role in Addressing Water Quality

Limited Waterbodies, 130 J. ENVTL. ENGINEERING 684, 685

(2004) (hereinafter Ice, History of BMPs) (comparing charac-

teristics of point sources and nonpoint sources of pollution).

’° 41 Fed. Reg. at 24,710 (“[P)oint sources of water pollution

are generally characterized by discrete and confined con-

veyances from which discharges of pollutants into navigable

waters can be controlled by effluent limitations.”).

" 77 Fed. Reg. 30,473, 30,475 (May 23, 2012).

beneficial to the ecosystem.” The pollutant load (i.e.,

the amount of pollutants carried by the water) is

generally low, is difficult to monitor, and varies over

time depending on the stage and nature of the silvi-

cultural activity. '° Water quality effects are usually

greatest in the first two to three years of silvicultural

activity and “almost universally diminish” there-

after.” Finally, it is “difficult to establish representa-

tive monitoring” conditions because weather and

hydrology (water flow patterns) affect pollutant levels

in unpredictable ways.” For all these reasons, as

Congress and EPA have long recognized, silvicultural

activities do not pose the type of end-of-pipe problem

that is conducive to an NPDES permitting solution.

Instead, States rely on BMPs as the “building

blocks”™ of their forestry nonpoint source manage-

ment programs.” A BMP is “a practice or usually a

combination of practices that are determined by a

state or a designated planning agency to be the most

* Ice, History of BMPs, supra note 15, at 685.

* Id.

*® Christopher J. Anderson & B. Graeme Lockaby, The

Effectiveness of Forestry Best Management Practices for Sedi-

ment Control in the Southeastern United States: A Literature

Review, 35 S.J. APPLIED FORESTRY 170, 173 (2011).

" Ice, History of BMPs, supra note 15, at 685; see also George

G. Ice & Stephen H. Schoenholtz, Understanding How Extremes

Influence Water Quality: Experience from Forest Watersheds,

19 HYDROLOGICAL SCI. TECH. 99, 104 (2003) (explaining effects

of major extreme events such as fire and flood).

* EPA GUIDANCE, supra note 7, Ch. 2 at 17.

* NCASI, Technical Bull. No. 966, COMPENDIUM OF FORESTRY

BEST MANAGEMENT PRACTICES FOR CONTROLLING NONPOINT

SOURCE POLLUTION IN NORTH AMERICA 1 (2009) (hereinafter

NCASI COMPENDIUM).

effective and practicable means (including techno-

logical, economical, and institutional considerations)

of controlling point and nonpoint source pollutants at

levels compatible with environmental quality goals.”“

The development of BMPs is a multi-step process

that is based on unifying scientific principles.” A

problem is identified, potential solutions are identi-

fied and analyzed, specific management practices are

developed, testing is conducted to determine effec-

tiveness, and practices are refined and adapted

as needed.” This process is continually repeated,

ensuring that BMPs address the latest issues with

the best and most up-to-date science.

BMPs have been developed for virtually all stages

and aspects of silviculture: preharvest planning,

streamside management areas, road _ construc-

tion/reconstruction, road management, timber har-

vesting, site preparation and forest regeneration, fire

management, revegetation of disturbed areas, forest

chemical management, and wetland forest manage-

ment.*’ Within each of these BMP categories, there

are numerous specific BMPs.” Some BMPs are

* SAF, DICTIONARY OF FORESTRY, supra note 4.

* See NCASI COMPENDIUM, supra note 23, at President's

note. Core BMP themes include: “1) minimizing soil compact-

tion and the extent of bare soils; 2) separating exposed soils

from surface waters; 3) separating fertilizer and herbicide

applications from surface waters; 4) inhibiting hydraulic con-

nections between bare ground and surface waters; 5) providing

forested buffers around watercourses; and 6) designing stable

roads and watercourse crossings.” Jd. at 194 (internal citation

omitted).

* Ice, History of BMPs, supra note 15, at 685-86.

* EPA GUIDANCE, supra note 7, Ch. 3 at 1.

structural (e.g., installation of drainage ditches and

coverage of the road surface with gravel or mulch),

and others are operational (e.g., restrictions on road

use or other activities during storm events and

maintenance of a minimum buffer width between

ongoing silvicultural activities and neighboring

streams).~ These requirements are often highly

specific to a given location. For example, Oregon’s

BMPs require certain numbers, types, and sizes of

trees in streamside management areas.”

In the Pacific Northwest—which has large forest

resources supporting extensive silvicultural activ-

ity—BMPs are incorporated into each State’s Forest

Practices Act and implementing regulations.” In

many States, BMPs are set out in a BMP guidance

manual that provides landowners and loggers with a

menu of options from which to tailor environmental

protection measures at each site. State BMP guid-

ance is extensive. For example, Florida’s BMP man-

ual spans 116 pages;” Texas’s forestry and forest wet-

* Id., Ch. 2 at 17.

* George G. Ice et al., Trends for Forestry Best Management

Practices Implementation, 108 J. FORESTRY 267, 268 (2010)

(hereinafter Ice et al., Trends).

” Council of Western State Foresters, FORESTRY BEST

MANAGEMENT PRACTICES FOR WESTERN STATES: A SUMMARY

OF APPROACHES TO WATER QUALITY IMPLEMENTATION AND

EFFECTIVENESS MONITORING 5, 10, 13 (2007); see also, e.g.,

California Department of Forestry and Fire Protection Resource

Management, Forest Practice Program, CALIFORNIA FOREST

PRACTICE RULES (2012); Paul W. Adams, Oregon’s Forest

Practice Rulzs, THE WOODLAND WORKBOOK (Oregon State

University Extension Service, 1996).

“ Florida Division of Agriculture & Consumer Services

Technical Advisory Committee, SILVICULTURE BEST MANAGE-

MENT PRACTICES (2011).

land guidelines and recommendation specifications

are over 100 pages;~ and Minnesota’s management

guidelines are hundreds of pages in length (including

49 pages on forest roads).™

There are a number of BMPs specifically targeted

to control sedimentation from forest road runoff.

Under modern BMPs, a well-designed forest road is

not simply a flat surface. Rather, a forest road is

designed in light of local conditions, including the

slope on which it sits, which in turn dictates the

type of road drainage structures that will be

needed, including, as appropriate, culverts, ditches,

waterbars,” dips, and other drainage structures to

manage and control rainfall flows. As shown in

Figure 1, the “road prism” is “comprised of the road

cutslope, the road tread, the road fillslope, and any

additional widening for ditches, berms l[i.e., raised

barriers], or other disturbed surfaces that are struc-

tural parts of the road right-of-way.””

* Texas Forest Service & Texas Forestry Association, TEXAS

FORESTRY BEST MANAGEMENT PRACTICES (2010) (hereinafter

TEXAS BMP MANUAL).

*“ Minnesota Forest Resources Council, SUSTAINING

MINNESOTA FOREST RESOURCES: VOLUNTARY SITE-LEVEL FOREST

MANAGEMENT GUIDELINES FOR LANDOWNERS, LOGGERS AND

RESOURCE MANAGERS (2005, 2007 update).

* Waterbars are “speed bumps” for water that interrupt

stormwater flow to limit the distance and speed that water flows

along the surface of the road.

* NCASI 2003 REPORT, supra note 6, at 2.

Roed prism »

Figure 1. Road Prism Structural Features

Source: NCASI 2003 REPORT, supra note 6,

at 2 (adapted from Oregon Department of

Forestry, FOREST ROAD MANAGEMENT GUIDE-

BOOK: MAINTENANCE AND REPAIRS TO PROTECT

FISH HABITAT AND WATER QUALITY (2000)).”

Many forest road BMPs focus on controlling runoff

and dispersing water across the forest floor in order

to avoid concentrated flows into neighboring streams.

For example, Texas mandates that “[rjoad gradients

. . . Should be changed to disperse surface water at

least 50 feet from the stream” and also prescribes

spacing distances between waterbars based on the

grade of the road.”

” This figure illustrates a cross-section of a forest road in the

steep terrain of Oregon.

* TEXAS BMP MANUAL, supra note 33, at 31, 36 (emphasis in

original).

As these examples illustrate, BMPs are carefully

designed to mitigate the environmental impacts asso-

ciated with silvicultural activities, including forest

road runoff. As discussed below, BMPs are tailored

to the individual States—and even to local conditions

within the States—and are being implemented at

very high rates throughout the country.

C. Implementation at the State Level

BMPs are effective and efficient because they are

tailored to local conditions in individual States. A

host of local conditions influence the choice of BMPs,

including: forest conditions (e.g., size, type, and

harvesting and regeneration methods); topography;

soil erodibility and infiltration characteristics; pre-

cipitation amount, intensity, and form (e.g., snow);

and forest ownership (i.e., industrial, private, state

government, or federal government).

For example, BMPs applicable to the steep terrain

and high rainfall areas of the Coast Range in parts of

Oregon would impose an unnecessary expense in a

State like Florida—where forest roads are generally

constructed on relatively flat terrain with sandy,

well-drained soils—or even in other flatter, more arid

areas of Oregon. And in the flat terrain of a North

Carolina wet pine forest, installation of a continuous

berm along the side of a road can be highly effective

in minimizing accumulation of sediment in roadside

ditches, while erosion could actually be exacerbated if

a berm were constructed in the steeper inclines of

North Carolina’s Piedmont.” Because of States’

* NCASI, Comments on 77 Fed. Reg. 30,473 (May 23, 2012),

Docket ID No. EPA-HQ-OW-2012-0195-0103 (June 21, 2012), at

familiarity with their own terrain, they can account

for these critical differences in designing BMPs.

State BMP programs rely on a variety of tools to

promote BMP implementation, including: regulatory

requirements; education and training; demonstration

projects; research on BMP effectiveness; and moni-

toring of BMP use. In some States, forest landowners

must notify the State prior to road construction and

comply with an approved road construction plan.

Many other States have established training and

incentive programs for landowners and loggers to

promote the use of forestry BMPs where their use is

recommended but not required.“

State BMP programs are supplemented and rein-

forced by certification programs, including the

Sustainable Forestry Initiative (“SFI”), the Forest

Stewardship Council, and the American Tree Farm

System.*' Participation in these certification pro-

grams—undertaken by a majority of large forest

products and landholding firms in the United

States—requires implementation of BMPs.“ In addi-

” E.g., NCASI COMPENDIUM, supra note 23, at 55 (Colorado).

“ E.g., Hughes Simpson et al., Texas Forest Service, VOL-

UNTARY IMPLEMENTATION OF FORESTRY BEST MANAGEMENT

PRACTICES IN EAST TEXAS: RESULTS FROM ROUND 7 OF BMP

IMPLEMENTATION MONITORING 2007-2008, at 32 (2008); Arkansas

Forestry Commission, FORESTRY BEST MANAGEMENT PRACTICES

FOR WATER QUALITY PROTECTION IN ARKANSAS IMPLEMENTATION

REPORT 26 (2005); Maine Department of Conservation & Maine

Forest Service, MAINE FORESTRY BEST MANAGEMENT PRACTICES

USE AND EFFECTIVENESS—2005-2009, at 1 (2010) (hereinafter

MAINE BMP STuby).

@ See, e.g., SFI, 2010-2014 Standard (2010), available at

http//www.sfiprogram.org/files/pdf/Section2_sfi_requirements_2

010-2014.pdf (Objective 3: requiring compliance with applicable

laws, including those related to BMPs, on SFlI-certified forest

tion, standard commercial contracts between compa-

nies that procure large amounts of wood and market

participants upstream in the wood supply chain

(including loggers and haulers) require use of BMPs

and provide that payment may be reduced or with-

held if BMPs are not followed.

The various approaches for promoting the use of

forestry BMPs are working. Implementation rates

have increased significantly over the past 20 years.

In Montana, for example, the BMP implementation

rate rose from 78 percent in 1990 to 97 percent in

2010.“ In Florida, the implementation rate rose from

under 85 percent in 1985 to 98.7 percent in 2011.“

Today, the BMP implementation rate across States is

high. For example, a recent nationwide evaluation

estimated overall forestry BMP implementation at 89

percent.” Over 81 percent of the Nation’s timber har-

vest comes from 16 States, which have an implemen-

tation rate over 90 percent.“ The fact that States

with the highest timber production also tend to have

the highest implementation rates demonstrates that

lands; Objective 10: requiring SFl-certified companies to

mandate the use of sustainable forestry practices and monitor

BMP conformance).

“ Montana Department of Natural Resources & Conservation,

Forestry Division, MONTANA FORESTRY BEST MANAGEMENT

PRACTICES MONITORING: 2010 FORESTRY BEST MANAGEMENT

PRACTICES FIELD REVIEW RESULTS 2 (2010); see also Brian D.

Sugden et al., Montana’s Forestry Best Management Practices

Program: 20 Years of Continuous Improvement, 110 J. FORESTRY

328 (2012).

“ Jeff Vowell et al., Florida Department of Agriculture &

Florida Forest Service, SILVICULTURAL BEST MANAGEMENT

PRACTICES 2011 IMPLEMENTATION SURVEY REPORT 6 (2012).

“ Ice et al., Trends, supra note 30, at 271.

* Id.

cooperative federalism is working: States with the

largest forest resources, and most extensive forest

activities, are leaders in BMP implementation.

Results of BMP implementation surveys and other

field assessments are helping States to identify and

control impacts on water resources from forest roads

in particular. In Texas, for example, surveys

conducted in the 1990s revealed that BMP implemen-

tation rates for temporary roads were substantially

lower than the State’s average for all BMP categories

(e.g., 78 percent vs. 88.6 percent in 1998-1999).*’ In

response, the Texas Forest Service and other stake-

holders placed greater emphasis on temporary roads

in their BMP education and training programs. In

the 2010-2011 survey, the BMP implementation rate

for temporary roads had increased to 98 percent, and

exceeded the average rate of 94.1 percent for all BMP

categories.“

D. Effectiveness of Forestry BMPs

The potential of forestry BMPs to mitigate envi-

ronmental impacts was recognized early in their

development. In 1979, a study of the Grant Forest

Watershed in Georgia predicted that three manage-

ment changes—{1) better road design, location, and

maintenance, (2) wider buffers around streams, and

(3) avoidance of machine planting of vegetation in

” Burl Carraway et al., Texas Forest Service, VOLUNTARY

COMPLIANCE WITH FORESTRY BEST MANAGEMENT PRACTICES IN

EAST TEXAS: RESULTS FROM ROUND 4 OF BMP MONITORING

(2000).

“ Hughes Simpson et al., Texas Forest Service, VOLUNTARY

IMPLEMENTATION OF FORESTRY BEST MANAGEMENT PRACTICES IN

EAST TEXAS: RESULTS FROM ROUND 8 OF BMP IMPLEMENTATION

MONITORING 2010-2011, at 13, 36 (2011).

areas subject to historic disturbances—could reduce

sediment movement by a factor of ten.” Subsequent

studies confirmed that installation of BMPs reduced

sediment levels by approximately the same degree

that the 1979 study had predicted.”

The results of similar paired watershed studies—

where modern-era BMPs are compared to historical

practices—have demonstrated the effectiveness of

BMPs elsewhere in the country. Study of the Alto

Watershed in East Texas found that the use of mod-

ern BMPs resulted in one-fifth the sediment load

observed in the 1980s." A 1998 study of California’s

Caspar Creek showed a significant reduction in

sediment load following imposition of forest practice

rules.” In a 2009 study of a watershed in Washing-

“ See John D. Hewlett, FOREST WATER QUALITY: AN

EXPERIMENT IN HARVESTING AND REGENERATING PIEDMONT

FORESTS 21 (University of Georgia School of Forest Resources

Press, 1979).

“ Noah E. Fraser, A Paired Watershed Investigation of

Clearcut BMPs Revisited: B.F. Grant Memorial Forest, Georgia

After the Thirty-Year Growing Cycle, Master’s Thesis, University

of Georgia, at 95 (2006); see also Thomas M. Williams et al.,

Effectiveness of Best Management Practices To Protect Water

Quality in South Carolina Piedmont, PROCEEDINGS OF THE TENTH

BIENNIAL SOUTHERN SILVICULTURAL RESEARCH CONFERENCE 276

(1999).

*" See, e.g., W.H. Blackburn et al., Stormflow and Sediment

Loss from Intensively Managed Forest Watersheds in East Texas,

26 WATER RES. BULL. 465 (1990) (initial study of Alto

Watershed in East Texas); Matthew W. McBroom et al., Storm

Runoff and Sediment Losses from Forest Clearcutting and Stand

Re-establishment, 22 HYDROLOGICAL PROCESSES 1509, 1520

(2008) (follow-up study).

“ Peter H. Cafferata & Thomas E. Spittler, Logging Impacts

of the 1970's us. the 1990's in the Caspar Creek Watershed, in

USDA, Forest Service, General Technical Report PSW-GTR-168,

ton State, thirty years of monitoring data show

reductions in turbidity over time. The study’s

authors concluded that “[oJur results suggest that

increased attention to reducing sediment production

from roads and minimizing the amount of road runoff

reaching stream channels has been the primary

cause of the declining turbidity levels observed in this

study.”™

An early study of the Alsea Watershed in Oregon

led to Oregon’s adoption of the Oregon Forest Prac-

tices Act (“OFPA”) rules in 1972." The original Alsea

Watershed study took place from 1958 to 1973 and

monitored the effects of timber harvesting without

use of contemporary BMPs on water quality and

aquatic habitats, including salmon populations.

Needle Branch, an intensively harvested watershed

in the Alsea study, was extensively clearcut and sub-

sequently slashed and burned, leaving it with no

streamside vegetative buffers.“ With the imple-

PROCEEDINGS OF THE CONFERENCE ON COASTAL WATERSHEDS:

THE CASPAR CREEK STORY 113 (1998).

“ Maryanne Reiter et al., Temporal and Spatial Turbidity

Patterns Over 30 Years in a Managed Forest of Western

Washington, 45 J. AM. WATER RES. ASS’N 793, 793 (2009).

* Ice, History of BMPs, supra note 15, at 686.

“ George G. Ice et al., Forest Management To Meet Water

Quality and Fisheries Objectives: Watershed Studies and

Assessment Tools in the Pacific Northwest, in George G. Ice &

John D. Stednick, eds., A CENTURY OF FOREST AND WILDLAND

WATERSHED LESSONS 240 (2004). Modern-day OFPA rules

require buffers around fish-bearing streams, additional

protection around non-fish-bearing streams, rules to keep fresh

slash (e.g., harvest debris) out of state jurisdictional waters,

rules on maximum clearcut size, “green-up” reforestation

requirements between harvests, and other BMPs, including for

roads.

mentation of contemporary forestry BMPs, Needle

Branch has experienced some of the most dramatic

reductions in stream impacts that have ever been

achieved with modern BMPs.”

Studies focused on specific BMP types—including

BMPs for forest roads—have confirmed the effective-

ness of BMPs at a micro level. One study in Georgia

showed that reconstruction of forest roads with BMPs

lowered the sediment yield, as compared to pre-BMP

roads, by 70 percent.” In Oklahoma, installation of

BMPs on unpaved rural roads, which are similar in

character to forest roads, reduced the sediment load

by up to 80 percent.”

Road segment BMP studies have focused on every-

thing from how different road shapes and surfaces

affect erodibility and traffic impacts” to how seeding,

* See Ice, History of BMPs, supra note 15, at 687.

” Mark S. Riedel & James M. Vose, Collaborative Research

and Watershed Management for Optimization of Forest Road

Best Management Practices, INTERNATIONAL CONFERENCE OF

ECOLOGY AND TRANSPORTATION PROCEEDINGS 148, 148, 156

(Federal Highway Administration, 2003).

* Donald J. Turton et al., Effectiveness of BMPs in Reducing

Sediment from Unpaved Roads in the Stillwater Creek,

Oklahoma Watershed, 45 J. AM. WATER RES. ASS’N 1343, 1343-

44 (2009).

“ Elizabeth M. Toman & Arne E. Skaugset, Designing Forest

Roads To Minimize Turbid Runoff During Wet Weather Use,

PROCEEDINGS OF THE FOURTH CONFERENCE ON WATERSHED

MANAGEMENT TO MEET WATER QUALITY STANDARDS AND TMDLS

(Am. Soc’y of Agric. & Biological Eng’rs, 2007); Drew B.R. Coe,

Sediment Production and Delivery from Forest Roads in the

Sierra Nevada, California, Master's Thesis, Colorado State

University (2006); L.W. Swift, Jr., Gravel and Grass Surfacing

Reduces Soil Loss from Mountain Roads, 30 FOREST SCI. 657

(1984).

mulching, and application of slash affect erosion

from the road prism’s surface and cut-and-fill

slopes.” These studies demonstrate that just a single

improved management practice can result in a

significant reduction in a road’s environmental

impacts. For example, one study found that includ-

ing a continuous berm at a road’s edge could lead to a

99 percent reduction in sediment loss.”

Focused studies of forestry practices have enabled

States and forest managers to target problems and

engage in adaptive management. For example,

sidecast roads—roads constructed on a steep incline

and stabilized by the addition of loosely compacted

material at the downhill edge of a road prism—were

common practice in the 1970s. Studies showed, how-

ever, that sidecast roads in the Pacific Northwes‘

contributed to landslides during intense storms

because the loosely compacted material was prone to

washout.” In response, States amended their BMPs

“ Walter F. Megahan, Erosion Processes on Steep Granitic

Road Fills in Central Idaho, 42 Soi Sci. Soc’y AM. J. 350

(1978); Dale J. McGreer, A Study of Erosion from Skid Trails

in Northern Idaho, in NCASI, Technical Bulletin No. 353,

MEASURING AND ASSESSING THE EFFECTIVENESS OF ALTERNATE

FOREST MANAGEMENT PRACTICES ON WATER QUALITY 1 (1981);

C.R. Wade et al., Comparison of Five Erosion Control Techniques

for Bladed Skid Trails in Virginia, S.J. APPLIED FORESTRY (in

press).

“ T.W. Appelboom et al., Management Practice for Sediment

Reduction from Forest Roads in the Coastal Plain, 45

TRANSACTIONS AM. SOC’Y AGRIC. ENG’RS 337, 343 (2002).

“ NCASI, Technical Bulletin No. 456, CATALOG OF LANDSLIDE

INVENTORIES FOR THE NORTHWEST 30-32 (1985); see also Robert

L. Beschta & William L. Jackson, Forest Practices and Sediment

Production in the Alsea Watershed Study, in J.D. Stednick, ed.,

to prohibit sidecast road construction in areas sus-

ceptible to landslides. Subsequent reviews suggest

that avoiding construction of sidecast roads has

reduced landslide incidents.“ Furthermore, legacy

road conditions, such as sidecast roads constructed in

landslide-prone areas, are most effectively addressed

as part of ongoing commercial harvesting operations

that follow contemporary road BMPs.

E. Continued Enhancement of Forestry

BMP Programs

Although BMPs have already been demonstrated to

be highly effective in avoiding and mitigating envi-

ronmental impacts from silvicultural activities, the

federal and state governments, as well as organiza-

tions and academics such as Amici, continue to study

and improve forestry BMP programs.

The National Association of State Foresters com-

pleted a comprehensive survey of state BMPs in 2004

and is in the process of updating that survey.“ The

Southern Group of State Foresters (““SGSF”) and the

Northeastern Area Association of State Foresters

(“NAASF”) have regional monitoring protocols in

place to promote consistency in BMP monitoring

across States.” Moreover, SGSF has peer-reviewed

HYDROLOGICAL AND BIOLOGICAL RESPONSES TO FOREST

PRACTICES: THE ALSEA WATERSHED STUDY 66 (2008).

“ E. George Robison et al., Oregon Department of Forestry,

STORM IMPACTS AND LANDSLIDES OF 1996: FINAL REPORT 10-11

(1999).

“ NASF, 2004 PROGRESS REPORT, supra note 3.

“ Ice et al., Trends, supra note 30, at 269; SGSF Water

Resources Committee, SILVICULTURAL BEST MANAGEMENT

PRACTICES IMPLEMENTATION MONITORING: A FRAMEWORK FOR

STATE FORESTRY AGENCIES (2007); Kristina Ferrare et al.,

all BMP programs in its 13 member States at least

once in the last five years.” The Council of Western

State Foresters also has analyzed BMP compliance

and effectiveness monitoring.”

EPA and other federal agencies support the con-

tinual improvement of BMP programs through both

technical and financial assistance. In 2005, EPA

prepared a comprehensive guidance document enti-

tled National Management Measures To Control

Nonpoint Source Pollution from Forestry.” This more

than 200-page document inventoried types of man-

agement measures across ten categories in order to

“provide technical assistance to state water quality

and forestry program managers, nonindustrial pri-

vate forest owners, industrial forest owners, and

others involved with forest management.” And the

U.S. Department of Agriculture partnered with

NAASF to develop its BMP monitoring protocol,”

USDA, Forest Service, NA-FR-02-07, BEST MANAGEMENT

PRACTICES (BMP) MANUAL—DESK REFERENCE: IMPLEMENTATION

AND EFFECTIVENESS FOR PROTECTION OF WATER RESOURCES

(2007) (hereinafter NAASF DESK REFERENCE); see also infra

note 70 & accompanying text.

“ National Alliance of Forest Owners, Comments on 77 Fed.

Reg. 30,473 (May 23, 2012), Docket ID No. EPA-HQ-OW-2012-

0195-0134 (June 22, 2012), at 5.

* Council of Western State Foresters, supra note 31.

* EPA GUIDANCE, supra note 7.

* Id., Ch. 1 at 1.

” The protocol software developed is accompanied by two

guidance documents. NAASF DESK REFERENCE, supra note 65,

at 2; David Welsch et al., USDA, Forest Service, NA-FR-02-06,

BEST MANAGEMENT PRACTICES (BMP) MONITORING MANUAL—

FIELD GUIDE: IMPLEMENTATION AND EFFECTIVENESS FOR

PROTECTION OF WATER RESOURCES 2 (2007).

which was funded initially by EPA and the U.S. For-

est Service.” As additional collaborative studies are

conducted, BMPs are continually improved.

CONCLUSION

For the last four decades, EPA has quite sensibly

treated forest road runoff as nonpoint source pollu-

tion to be controlled at the state level through the use

of BMPs. In support of the cooperative federalism

framework of the Clean Water Act, States—in

partnership with the federal government, private

industry, academics and other forestry professionals,

and organizations like Amici—have responded to

EPA’s wise policy choice by developing, implement-

ing, studying, and continually refining BMPs. As a

result of this longstanding approach, road drainage

structures are being disconnected from streams, road

anu stream crossings are being upgraded, landslides

from forest roads are being reduced, BMP education

and forest certification programs continually share

lessons learned, and the environment is being

protected.

In contrast to the proven effectiveness of BMPs, the

NPDES permitting system is ill-suited to address the

environmental impacts associated with forest road

runoff. Unlike the end-of-pipe problem for which

NPDES permitting was designed, forest road runoff

is generally characterized by contribution from

diffuse sources of low loads of natural pollutants, and,

as such, it does not fit the NPDES permitting model.

” MAINE BMP STUDY, supra note 41, at 3 (explaining develop-

ment of regional protocol).

Amici respectfully request that the Court allow the

States and their partners to continue their effective

work of controlling runoff from forest roads through

implementation of BMPs and not impose an unneces-

sary and inefficient permitting system in BMPs’

stead.

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

VIRGINIA S. ALBRECHT

Counsel of Record

ERIC J. MURDOCK

RYAN A. SHORES

ELIZABETH L. HORNER

HUNTON & WILLIAMS LLP

2200 Pennsylvania Avenue, NW

Washington, DC 20037

(202) 955-1500

September 4, 2012 valbrecht@hunton.com

Counsel for Amici Curiae

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