Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338 and 11-347

IN THE

Supreme Court of the Anited States

DouG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL.,

Petitioners,

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

GEORGIA-PACIFIC WEST, INC., ET AL.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF FOR AMICI CURIAE WESTERN

DIVISION OF THE AMERICAN FISHERIES

SOCIETY ET AL. INSUPPORT OF

RESPONDENT

KRISTEN L. BOYLES

Counsel of Record

EARTHJUSTICE

705 Second Ave., Suite 203

Seattle, WA 98104

(206) 343-7340

kboyles@earthjustice.org

Attorneys for Amici Curiae

October 23, 2012

AT EERE TESS | LEER 2k. IE IEE GOTT, EB lB pm ARI = ee Alaa ay

i

TABLE OF CONTENTS

Ee Ge Gr IED otnsevicnasesciiccnctinesenvinessereooes l

STATEMENT OF INTEREST ...............cccccssressceesceees 1

SUMMARY OF ARGUMENT. .................ccceceeeeeeeseeens 3

TE setencninessinitpnainnenisnisenarensniemmnmeunesnte 3

I. THE NEED FOR HEALTHY WATERS ............. 3

Il. FOREST LOGGING ROADS POSE A MA-

JOR THREAT TO THE HEALTH OF OUR

NATION’S RIVERS AND STREAMG................. 7

A. Forest Logging Roads Deliver Harmful

Sediment and Other Pollutants to Riv-

NEES ENE ee eT ONS EOE 7

B. Sediment Impacts on Fish and Aquatic

SEPT ea eee romae ees aoe TeN sob ene! Dam Te eee 12

Ill. NON-POINT SOURCE CONTROLS DO

NOT PROTECT WATER QUALITY FROM

HARMFUL ROAD IMPACTS ..............ceeeceeesees 16

ee icrsciecesstnanieceiissidonninitenninniinienineintenidanenn 19

ul

TABLE OF AUTHORITIES

Page(s)

Rules of Court

|S RRA TO NE ESI 1

Federal Register Citations

62 Fed. Reg. 24,588 (May 6, 1997) ....................eeeeeee 15

66 Fed. Reg. 3244 (Jan. 12, 2001) ......... eee 7

76 Fed. Reg. 35,755 (June 20, 2011) .................. 15,18

Scientific Reports and Studies

AMPHIBIAN DECLINES: THE Conservation

STATUS OF UNITED STATES SPECIES (M. La-

EIR EI aR Diver o Site ne eee ers eee ee Or 6

Battin, J. et al., Projected Impacts of Climate

Change on Salmon Habitat Restoration,

PROCEEDINGS OF THE NATIONAL ACADEMY

OF SCIENCES OF THE UNITED STATES OF

AMERICA, 104:6720-25 (2007) ......ccccccccccoscccccesccces )

Coastal Waters Guidance, Chapter 3.I.E.2,

“Road Construction and Use,” http://www.

epa.gov/owow/nps/MMGUChapter3/ch3-1.h

Endangered Species Act Status of West Coast

Salmon and Steelhead, http://www.nwr.

noaa.gov/ESA-Salmon-Listings/upload/1-pg

ili

EPA, Watershed Assessment, Tracking and

Environmental Results, http://ofmpub.epa.

gov/waters10/attains_nation_cy.control...... 10, 12

Espinosa, F.A. et al., The Failure of Existing

Plans to Protect Salmon Habitat in the

Clearwater National Forest in Idaho,

JOURNAL OF ENVIRONMENTAL MANAGE-

te, I I ociviieicncsecscvccncdncendneivesoness 16

Factors for Decline: A Supplement to the Notice

of Determination for West Coast Steelhead

Under the Endangered Species Act (Aug.

1996), http://www.nwr.noaa.gov/ESA-Salm

on-Listings/Salmon-Populations/Reports-an

d-Publications/upload/stlhd-ffd.pdf............... 9,14

Firman, J.C. et al., Landscape Models of Adult

Coho Salmon Density Examined at Four

Spatial Extents, TRANSACTIONS OF THE

AMERICAN FISHERIES SOCIETY, 140:440-55

EERE er REESE rere Ae oe oS 18

Forest Ecosystem Management and Assess-

ment Team (USDA Forest Service, BLM,

USFWS, NOAA, EPA and National Park

Service), Forest Ecosystem Management:

An Ecological, Economic and Social As-

EAE Ee CC ae ee ee 7

Forman, R.T.T. and L.E. Alexander, Roads and

Their Major Ecological Effects, ANNUAL

REVIEW OF ECOLOGY AND SYSTEMATICS,

RE AIR A ERE ee eS oO ED 7

lV

Frissell, C.A. et al., A Resource in Crisis:

Changing the Measure of Salmon

Management, PACIFIC SALMON AND THEIR

ECOSYSTEMS (D.J. Stouder et al. eds. 1997).....

Furniss, M.J. et al., Water, Climate Change,

and Forests: Watershed Stewardship for a

Changing Climate, US Forest Service

General Technical Report PNW-GTR-812

GIP OD «0cervccrseceeseseoncsnssoncsnnenenanssanennnsnniaieninenioniiion

Gucinski, H. et al., Forest Roads: A Synthesis of

Scientific Information, US Forest Service

General Technical Report PNW-GTR-509

GRE) nccccenrscecescnnssecoccovnsessensnnsscbecannnssenennnansensede

Jones, J.A. et al., Effects of Roads on

Hydrology, Geomorphology, and Distur-

bance Patches in Stream Networks, CON-

SERVATION BIOLOGY, 14:76-85 (2000) ...............

National Level Assessment of Water Quality

Impairments Related to Forest Roads and

Their Prevention by Best Management

Practices (2008), http://www.wildlandscpr.

org/national-level-assessment ...............cecceeeeees

National Research Council, ASSESSING THE

TMDL APPROACH TO WATER QUALITY

DEADAGIEREENT CROO1) ......000cccececcoccceccosesscscsoseseees

Nehlsen, W. et al., Pacific Salmon at the

Crossroads: Stocks at Risk from California,

Oregon, Idaho, and Washington, FISHER-

IES, 16(2):4-21 (March-April 1991) ...................

Vv

Newcombe, C.P. and D.D. MacDonald, Effects

of Suspended Sediments on Aquatic Eco-

systems, NORTH AMERICAN JOURNAL OF

FISHERIES MANAGEMENT, 17:72-82 (1991) .......

NOAA Technical Memorandum NMFS-

NWFSC-118 (June 2012), http://www.nwfsc

.noaa.gov/assets/25/8714_08132012_ 121939

_SROregonCohoTM118WebFinal.pdf..............

Oregon Dep’t of Forestry, Forest Roads, Drain-

age and Sediment Delivery in the Kilchis

River Watershed (1997), http://www.oregon

.gov/odf/privateforests/docs/kilchis.pdf ............

Quigley, T. et al., Integrated Scientific Assess-

ment for Ecosystem Management in the

Interior Columbia Basin, US Forest Service

General Technical Report PNW-GTR-382

SIT iciiiddhidaddnenenmnntnessdinessiansounecsesveostteseconsseeeneces

Ricciardi, A. and J.B. Rasmussen, Extinction

Rates of North American Freshwater Fau-

na, CONSERVATION BIOLOGY, 13:1220-22

SIT diicisidddtcnmidmensnnteeiedecnsnevenrnevesceseeqneceeeeenececece

Ritters, K.H. and J.D. Wickham, How Far to

the Nearest Road? FRONTIERS IN ECOLOGY

AND ENVIRONMENT, 1:125-29 (2003).................

Site-specific Targeted Monitoring Results:

Causes of Impairment, Oregon Rivers and

Streams 2006, http://ofmpub.epa.gov/wate

rs10/attains_state.control?p_state=OR.............

Trombulak, S.C. and C.A. Frissell, Review of

Ecological Effects of Roads on Terrestrial

and Aquatic Communities, CONSERVATION

BIOLOGY, 14(1):18-30 (2000) .............. cc cceeeeeeeeee

vi

U.S. Fish and Wildlife Service, Biological

Opinion of the Effects to Bull Trout and

Bull Trout Critical Habitat from Road

Management Activities on National Forest

System and Bureau of Land Management

Lands in Western Montana _ (2008),

http://www.fs.usda.gov/Internet/FSE_DOC

UMENTS/stelprdb5336500.pdf .............cceeeeeee 16

USDA Forest Service, Water, Climate Change,

and Forests: Watershed Stewardship for a

Changing Climate (June 2010), http://www.

fs.fed.us/pnw/pubs/pnw_gtr812.pdf..................... 9

Williams, J.D. et al., Conservation Status of

Freshwater Mussels of the United States

and Canada, FISHERIES, 18(9):6-22 (1993)......... 5

STATEMENT OF INTEREST!

Amici curiae are a professional scientific society

and two individual scientists who specialize in the

area of fisheries biology as well as watershed conser-

vation and restoration. They have a strong interest

in the protection of freshwater ecosystems and aquat-

ic species from water pollution caused by stormwater

run-off from industrial logging roads. All have been

concerned about the issue of sediment pollution from

logging roads for decades. Amici believe that the

Ninth Circuit’s decision will help contro] the contin-

ued, pervasive, and harmful pollution of rivers and

streams from forest logging roads.

The Western Division of the American Fisheries

Society (WDAFS) is a 3,000 member professional so-

ciety representing fishery scientists and managers

working in academia, government, non-governmental

organizations, and the private sector. The WDAFS

includes ten Chapters representing Society members

residing in the States of Alaska, Arizona, California,

Colorado, Hawaii, Idaho, Montana, Nevada, New

Mexico, Oregon, Utah, Washington, and Wyoming;

U.S. associated entities in the West Pacific Ocean;

the Province of British Columbia and the Yukon Ter-

ritory in Canada; and Mexico. The mission of the

WDAFS is to improve the conservation and sustain-

1 All parties have filed letters of blanket consent to the fil-

ing of amicus curiae briefs. Pursuant to Supreme Court Rule

37.6, Amici certify that no counsel for any party authored this

brief in whole or in part, and that no person or entity, other

than Amici Curiae or their counsel, has made a monetary con-

tribution to the preparation and submission of this brief.

2

ability of fisheries resources and aquatic ecosystems

by advancing fisheries and aquatic science.

Dr. Christopher A. Frissell is a research scientist

in the field of freshwater ecology and conservation,

with an emphasis on salmonid fish of the western

United States. Dr. Frissell has worked as a Research

Assistant Professor at Oregon State University and

the University of Montana, a Research Associate Pro-

fessor and Affiliate Research Associate Professor at

The University of Montana, and a Senior Staff Scien-

tist and Director of Science and Conservation with

Pacific Rivers Council. Dr. Frissell has Ph.D. and

M.S. degrees in Fisheries Science from Oregon State

University, and a B.A. in Zoology from The Universi-

ty of Montana. He has been a member of the Ameri-

can Fisheries Society for more than 30 years. He has

published numerous journal articles, book chapters,

and books on the subject of salmonid fish conserva-

tion and restoration ecology, including the environ-

mental effects of logging roads on salmon habitat and

populations. Dr. Frissell has also conducted field re-

search in streams and rivers across Oregon, with a

focus on forestry-related land uses and their impact

on watersheds and salmon habitat, as well as served

as a technical expert for the Oregon Department of

Forestry on various forestry and aquatics issues.

Richard K. Nawa is a staff ecologist for the Kla-

math-Siskiyou Wildlands Center in Ashland, Oregon.

Mr. Nawa holds a Masters Degree in zoology from

Southern Illinois University. He was also previously

employed by Tioga Resources, Inc., in Roseburg, Ore-

gon, to write stream survey reports for streams on

U.S. Forest Service lands. Mr. Nawa has been an ac-

tive member of the Oregon chapter of the American

Fisheries Society since 1988.

3

In this brief, Amici discuss the aquatic and natu-

ral resource protection problems caused by polluted

water directed into rivers and streams through pipes,

ditches, and channels from industrial forest logging

roads. We do not address the legal arguments of the

case in chief.

SUMMARY OF ARGUMENT

Protection and restoration of our nation’s water

quality is a fundamental tenet of the Clean Water

Act. Water pollution caused by stormwater run-off

from industrial logging roads, primarily in the form

of excess sediment, harms all stages of aquatic life.

Yet despite research showing both the harm from

logging road run-off and the need to control it, indi-

vidual states continue to allow large amounts of pol-

lution from logging roads to enter our rivers and

streams through pipes, ditches, and channels. This

pollution in turn harms and kills fish and other

aquatic organisms essential to a healthy watershed.

Application of the point source permitting system to

industrial logging roads is an essential tool for regu-

lators to lessen the degradation of our nation’s wa-

terways.

ARGUMENT

I. THE NEED FOR HEALTHY WATERS

Water is the life blood of the landscape. Healthy

rivers, streams, and wetlands play central roles in

both human and natural environments. They moder-

ate periods of drought and flood, provide cool, clean

water to drink, and host diverse communities of

plants and animals when in good condition. However,

the precipitous decline of many aquatic species re-

veals that the nation’s waters are in peril.

4

Pacific Coast salmon? provide a particularly so-

bering example of the inadequacy of aquatic conser-

vation efforts. Most salmonids are “anadromous.”

This means that salmon eggs are hatched and the

young reared for the first portion of their life cycle

only in freshwater streams, primarily in forested ar-

eas. As juveniles, they migrate downstream to occupy

salt water estuaries and coastal wetlands, where

they adapt to ocean conditions. They then spend

their next three to five years growing to maturity in

the ocean, after which they migrate back to their na-

tive river systems, eventually returning to the very

same stream from which they were spawned in order

to lay their eggs for the next generation.

Because salmon are genetically adapted to each

particular river system, Pacific salmon are especially

sensitive to the health of their inland watersheds.

The life needs of various salmonid species vary, but

several—including coho salmon, cutthroat, and

steelhead—are particularly dependent on upriver

forest habitat. Salmon need cold, clear water, wide-

spread gravel beds with little fine silt in which to de-

posit their eggs, and abundant pools where their

young can find food and shelter.

2 As used in this brief and as most commonly used, the term

“salmon” means any of seven major species of fish which are

members of the genus Oncorhynchus, which includes chinook or

king salmon (Oncorhynchus tshawtscha), coho or silver salmon

(Oncorhynchus kisutch), coastal searun cutthroat (Oncorhyn-

chus clarki clarki), steelhead (Oncorhynchus mykiss), chum

salmon (Oncorhynchus keta), pink salmon (Oncorhynchus gor-

buscha) and sockeye or red salmon (Oncorhynchus nerka). As a

genus, these species are also often lumped together and called

“salmonids.”

5

Yet largely as a result of widespread inland habi-

tat destruction by human activities, many wild Pacif-

ic salmon runs are facing extinction. According to a

1991 comprehensive scientific stock assessment by

the American Fisheries Society (the largest organiza-

tion of fisheries scientists in the world), 214 distinct

stocks of anadromous fish in California, Idaho, Ore-

gon, and Washington were identified as at risk of ex-

tinction, and the same report noted over 100 stocks

already gone forever.? Since that 1991 report was

written, 28 populations of salmonids have been listed

for protection under the federal Endangered Species

Act.4

Salmon, however, are only the tip of the iceberg.

Over seventy percent of native freshwater mussels

are vulnerable to extinction.5 The current and pro-

jected extinction rate for freshwater animal species is

five times higher than for terrestrial species. North

3 W. Nehlsen et al., Pacific Salmon at the Crossroads: Stocks

at Risk from California, Oregon, Idaho, and Washington, FISH-

ERIES, 16(2):4-21 (March-April 1991), available at

http://www.waterboards.ca.gov/waterrights/water_issues/progra

ms/bay_delta/deltaflow/docs/exhibits/sfwe/spprt_docs/sfwc_exh3

_nehlsen.pdf (last visited Oct. 15, 2012).

‘ Endangered Species Act Status of West Coast Salmon and

Steelhead, available at http://www.nwr.noaa.gov/ESA-Salmon-

Listings/upload/1-pgr-8-11.pdf (last visited Oct. 15, 2012).

5 J.D. Williams et al., Conservation Status of Freshwater

Mussels of the United States and Canada, FISHERIES, 18(9):6-22

(1993).

6 A. Ricciardi and J.B. Rasmussen, Extinction Rates of

North American Freshwater Fauna, CONSERVATION BIOLOGY,

13:1220-22 (1999).

6

, me cad oe

American amphibians also show a similarly acute in-

cidence of extinction and range contraction.’

The loss of aquatic diversity is an economic, as

well as biological, disaster. In the 1990s, reductions

in salmon catches from California to Alaska resulted

in losses of hundreds of millions of dollars to local

and regional economies.®

In addition to producing commercially extractable

resources such as salmon, healthy watersheds pro-

vide a variety of economically valuable ecosystem-

based services—such as clean air and water, scenic

beauty, recreational opportunity, and wildlife—that

have real implications for the vitality of many local

economies. Clean water has been recognized widely

as a valuable ecosystem service that is vulnerable to

watershed degradation and worth a considerable

monetary investment to secure.

([W]hile most Americans may live in urban ar-

eas, most of us are also dependent upon rural

lands, particularly forest lands for clean water

and a healthy climate. For these reasons, con-

serving our forests is not a luxury. It is, in my

view, a necessity.

U.S. Department of Agriculture Secretary Thomas

Vilsack.’ Local municipalities have discovered that

7 AMPHIBIAN DECLINES: THE CONSERVATION STATUS OF

UNITED STATES SPECIES (M. Lanoo, ed., 2005).

8 See generally Amicus Br. of Pacific Coast Federation of

Fishermen’s Associations et al.

* U.S. Department of Agriculture Secretary Thomas Vilsack,

Remarks on Forest Management in Seattle, Washington

(Aug. 14, 2009), available at http://www.fs.fed.us/video/tidwell/

vilsack.pdf (last visited Oct. 15, 2012).

7

the most cost-effective water treatment plant is a

healthy watershed and—like Portland, Oregon and

New York City—have invested heavily in efforts to

permanently protect and restore the integrity of the

watershed from which they derive their water. See

also Roadless Area Conservation Rule, 66 Fed. Reg.

3244, 3245 (Jan. 12, 2001) (more expensive treat-

ment of municipal drinking water supplies necessary

when forested watersheds not protected).

II. FOREST LOGGING ROADS POSE A MA-

JOR THREAT TO THE HEALTH OF OUR

NATION’S RIVERS AND STREAMS.

A. Forest Logging Roads Deliver Harmful

Sediment and Other Pollutants to Riv-

ers and Streams.

Global, national, regional, and local assessments

consistently identify logging roads as among the

foremost and lasting threats to watershed condition,

water quality, aquatic diversity, and fisheries.!° Log-

ging roads—carefully engineered surfaces of crushed

rock and gravel—gradually wear away under the

10 See, e.g., Forest Ecosystem Management and Assessment

Team (USDA Forest Service, BLM, USFWS, NOAA, EPA and

National Park Service), Forest Ecosystem Management: An Eco-

logical, Economic and Social Assessment (1993); T. Quigley et

al., Integrated Scientific Assessment for Ecosystem Management

in the Interior Columbia Basin, US Forest Service General

Technical Report PNW-GTR-382 (1996); R.T.T. Forman and

L.E. Alexander, Roads and Their Major Ecological Effects, AN-

NUAL REVIEW OF ECOLOGY AND SYSTEMATICS, 29:207-31 (1998);

H. Gucinski et al., Forest Roads: A Synthesis of Scientific Infor-

mation, US Forest Service General Technical Report PNW-

GTR-509 (2001); K.H. Ritters and J.D. Wickham, How Far to

the Nearest Road? FRONTIERS IN ECOLOGY AND ENVIRONMENT,

1:125-29 (2003).

8

combination of heavy logging trucks and falling rain.

See Respondent’s Br. at 6-7. These roads, with

manmade pipes, ditches, and channels that send

stormwater into rivers and streams, alter the chem1-

cal, biological, and human use aspects of ecosystems

within at least several hundred meters of the road’s

location. The photograph below shows sediment-

laden stormwater from an industrial logging road di-

rected through such pipes and ditches.

By altering hydrology and generating sediment and

nutrients, roads alter aquatic ecosystems. The im-

pact of logging roads can threaten aquatic species

and water quality for domestic or commercial users

many kilometers downstream. !?

'! Sediment from private logging road collects in roadside

ditches, washes into channel that passes through culvert, then

flows into the Lewis and Clark River, a major salmon stream in

Northwest Oregon. Jan. 27, 2005. Photo: C.A. Frissell.

2 $.C. Trombulak and C.A. Frissell, Review of Ecological

Effects of Roads on Terrestrial and Aquatic Communities, CON.

(Footnote continued)

9

As the Forest Service recently explained,

“{e]xpansive road networks [ ] can impair water qual-

ity, aquatic habitats, and aquatic species in a num-

ber of ways, often to a greater degree than any other

activities conducted in forested environments.

These deteriorating road conditions threaten our

ability to manage forests and pose significant risks to

watersheds.”!3 And as the federal expert fisheries

agency emphasized, “[r]oad networks in many upland

areas of the Pacific Northwest are the most im-

portant source of management-accelerated sediment

delivery to anadromous fish habitats. The sediment

contribution to streams from roads is often much

greater than that from all other land management

activities combined.”!4

The acknowledged harm to watersheds and

aquatic resources from logging roads is expected to

increase under nearly all projected climate change

scenarios.'!5 Increased storm intensity, transition

SERVATION BIOLOGY, 14(1):18-30 (2000); J.A. Jones et al., Effects

of Roads on Hydrology, Geomorphology, and Disturbance Patch-

es in Stream Networks, CONSERVATION BIOLOGY, 14:76-85

(2000).

13 USDA Forest Service, Water, Climate Change, and For-

ests: Watershed Stewardship for a Changing Climate (June

2010) at 72, available at http://www.fs.fed.us/pnw/pubs/pnw_

gtr812.pdf (last visited Oct. 15, 2012).

i# Factors for Decline: A Supplement to the Notice of De-

termination for West Coast Steelhead Under the Endangered

Species Act (Aug. 1996) at 19, available at http://www.nwr.no

aa.gov/ESA-Salmon-Listings/Salmon-Populations/Reports-and-

Publications/upload/stlhd-ffd.pdf (last visited Oct. 15, 2012) (ci-

tations omitted).

15 J. Battin et al., Projected Impacts of Climate Change on

Salmon Habitat Restoration, PROCEEDINGS OF THE NATIONAL

(Footnote continued)

10

from snowmelt to rainfall-dominated hydrology, and

increased extent and frequency of rain-on-snow-

driven floods all tend to increase the role of logging

roads in diverting surface flow and the vulnerability

of these roads to erosion.

Federal, state, and local agencies have long

acknowledged the pollution problem posed by forest

logging roads. As the U.S. Environmental Protection

Agency (EPA) has explained, “[rJoads are considered

to be the major source of erosion from forested lands,

contributing up to 90 percent of the total sediment

production from forestry operations.”!* Nationwide,

EPA identifies sediment as the second largest identi-

fied cause of water quality impairment, with the re-

lated categories of habitat alteration (6th), tempera-

ture (10th), and turbidity (15th) following. Forestry

(silviculture), including road construction and use, is

listed as the 11th largest probable source group for

this pollution.!?

According to an EPA-commissioned report, “for-

estry-related sediment is a leading source of water

ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA,

104:6720-25 (2007); M.J. Furniss et al., Water, Climate Change,

and Forests: Watershed Stewardship for a Changing Climate,

US Forest Service General Technical Report PNW-GTR-812

(2010).

16 Coastal Waters Guidance, Chapter 3.1.E.2, “Road Con-

struction and Use,” available at http://www.epa.gov/owow/nps/

MMGUChapter3/ch3-1.html (last visited Oct. 15, 2012).

17 EPA, Watershed Assessment, Tracking and Environmen-

tal Results: National Summary of State Information,

http://ofmpub.epa.gov/waters10/attains_nation_cy.control (last

visited Oct. 15, 2012) (compiling most current available data

from states’ Clean Water Act lists of impaired waters).

ll

quality impairment to rivers and streams nation-

wide.” National Level Assessment of Water Quality

Impairments Related to Forest Roads and Their Pre-

vention by Best Management Practices (2008) at 2.'®

While many logging roads are designed to discharge

stormwater onto the forest floor, see Respondent’s Br.

at 7, in certain areas in the Pacific Northwest, a

large percentage of this sediment-laden water direct-

ly enters rivers and streams through engineered log-

ging road drainage systems—manmade pipes, ditch-

es, and channels. National Level Assessment at 43-

44, 49; see also Oregon Dep’t of Forestry, Forest

Roads, Drainage and Sediment Delivery in the

Kilchis River Watershed (1997) at 4-5.19

The water quality problems with salmon habitat

on private forestlands have long been recognized. In

1998, the Oregon Department of Environmental

Quality listed more than 3,000 stream miles on pri-

vate forestlands statewide as violating water quality

standards. Over 25% of the waters designated as im-

paired for temperature, sediment, and habitat modi-

fication occurred on private forestlands. The percent-

ages are even higher in the North Coast region of Or-

egon.

The in-the-river situation in Oregon has not im-

proved with time. Oregon’s 2006 list of impaired wa-

ters includes approximately 12,000 stream miles

listed as violating water quality standards for sedi-

16 Available at http://www.wildiandscpr.org/national-level-

assessment (last visited Oct. 15, 2012).

18 Available at http://www.oregon.gov/odf/privateforests/docs

/kilchis.pdf (last visited Oct. 15, 2012).

12

ment or turbidity.2° Similarly, hundreds of thousands

of river miles in states across the nation are impaired

by sediment pollution.?1

B. Sediment Impacts on Fish and Aquatic

Life.

Both fine and coarse-grained sediment harms wa-

ter quality and aquatic species. National Level As-

sessment at 16-20, 31-38. For salmon, excess sedi-

ment hurts all freshwater life-stages—migration,

spawning, egg incubation, and juvenile rearing.

Coho salmon provide a good example of the vari-

ous freshwater habitat requirements most anadro-

mous fish need to survive. Across their freshwater

life stages, coho salmon tend to benefit from habitat

that is relatively cold and near natural levels of fine

and suspended sediment.

Adult coho salmon return to their natal spawning

tributaries to construct nests in which to deposit and

fertilize their eggs. As they ascend the river and en-

ter smaller streams nearer spawning areas, migrat-

ing adult fish require cool waters with deep pools and

woody debris or other structure to provide shelter

from predators. Spawning migrations and breeding

20 Site-specific Targeted Monitoring Results: Causes of Im-

pairment, Oregon Rivers and Streams 2006, available at

http://ofmpub.epa.gov/waters10/attains_state.control?p_state=O

R (last visited Oct. 15, 2012).

21 EPA, Watershed Assessment, Tracking and Environmen-

tal Results: Causes of Impairment in Assessed Rivers and

Streams, available at http://ofmpub.epa.gov/waters10/attains_

nation_cy.control (last visited Oct. 15, 2012) (interactive map

linking to individual] state lists of pollution, by type, in rivers

and streams).

13

take place from September through March in most

coastal streams where wild coho salmon remain.

Eggs remain in and develop in the gravel for two

to three months, during which time they require cold

temperatures, free exchange of highly oxygenated

waters, and stable streambLeds. Larvae emerge from

the eggs and remain relatively inactive within the

gravel streambed interstices until they move into the

water column and become mobile. Once the larvae

become free-swimming, they require food and clean

water in which to see and capture that food. The

young fish are also vulnerable to downstream dis-

placement by late season floods.

As the juvenile fish enter summer, they grow rap-

idly until stream temperatures grow too high, and

physiological demands outweigh available food re-

sources. As fall and winter months approach, juve-

nile coho migrate to deeper pools and beaver ponds to

shelter from winter storms. The juveniles spend the

rainy and flood-rich winter months in these shelter-

ing habitats, then most turn downstream and mi-

grate to the sea as smolts in the spring months of

their second year of freshwater residence.

Increased river sedimentation affects all these

life-stages. During the two to three months that

salmon eggs incubate in the gravel at the river bot-

tom, increased fine sediment in the water reduces

available oxygen. More directly, sediment can bury

and smother eggs. Increased sediment loads can also

cause streambeds to become unstable,?? leading to

22 C.A. Frissell et al., A Resource in Crisis: Changing the

Measure of Salmon Management, PACIFIC SALMON AND THEIR

ECOSYSTEMS (D.J. Stouder et al. eds. 1997) at 411-44.

14

the scouring of the river bottom—salmon eggs and

all.

Suspended sediments can act directly on fish by

killing them. Common sublethal effects, such as re-

duced growth of juvenile coho that contribute to mor-

tality later in the life cycle, affect a larger area of

habitat and more individuals. Excess sediment can

interfere with developing eggs and larvae, reduce the

abundance of food for fish, and reduce the ability of

fish to catch their prey.”

[E]ffects of sedimentation on salmonids are

well-documented and include: clogging and

abrasion of gills and other respiratory surfac-

es; adhering to the chorion or eggs; providing

conditions conducive to entry and persistence

of disease-related organisms; inducing behav-

ioral modifications; entombing different life

stages; altering water chemistry by adsorption

of chemicals; affecting useable habitat by

scouring and filling pools and riffles and

changing bedload composition; reducing photo-

synthetic growth and primary production; and

affecting intergravel permeability and dis-

solved oxygen levels.?4

23 C.P. Newcombe and D.D. MacDonald, Effects of Suspend-

ed Sediments on Aquatic Ecosystems, NORTH AMERICAN JOUR-

NAL OF FISHERIES MANAGEMENT, 17:72-82, 73 (1991).

24 Factors for Decline: A Supplement to the Notice of De-

termination for West Coast Steelhead Under the Endangered

Species Act (Aug. 1996) at 17, available at http://www.nwr.

noaa.gov/ESA-Salmon-Listings/Salmon-Populations/Reports-an

d-Publications/upload/stlhd-ffd.pdf (last visited Oct. 15, 2012).

15

The expert federal fisheries agency has identified

increased in-stream sediment, particularly from tim-

ber harvest and road construction and use, as a lead-

ing cause of the decline that has led to protection of

salmon populations under the Endangered Species

Act. Threatened Status for Southern Oregon/

Northern California Coast Evolutionarily Significant

Unit of Coho Salmon, 62 Fed. Reg. 24,588, 24,593

(May 6, 1997) (“Forestry has degraded coho salmon

habitat through removal and disturbance of natural

vegetation, disturbance and compaction of soils, con-

struction of roads, and installation of culverts.”);

Threatenea Status for the Oregon Coast Coho Salm-

on Evolutionarily Significant Unit, 76 Fed. Reg.

35,755, 35,766 (June 20, 2011) (“Historical and ongo-

ing timber harvest and road building have reduced

stream shade, increased fine sediment levels, re-

duced levels of instream large wood, and altered wa-

tershed hydrology.”).

The harm from increased sediment in rivers and

streams is not limited, of course, to salmon. Other

fish and freshwater animals face similar difficulties

from reduced oxygen, altered water chemistry, and

limited visibility in murky streams. Bull trout, listed

as a threatened species, are particularly sensitive to

sediment pollution. When a federal expert biological

agency specifically looked at the impacts of road

management activities on bull trout, it noted that

“[e)xisting roads are considered a primary source of

sediment-related impacts to bull trout ... and were

part of the rationale for listing bull trout as threat-

16

ened.”*5 Aquatic invertebrates—prey for salmon and

other fish—also decline in streams with increased

sediment, as do aquatic plants due to less available

sunlight. In short, while the word “pollution” may

first bring to mind images of toxic chemical com-

pounds, sediment from logging roads just as surely

kills and harms fish and aquatic life in rivers and

streams across the nation.

Ill. NON-POINT SOURCE CONTROLS DO

NOT PROTECT WATER QUALITY FROM

HARMFUL ROAD IMPACTS.

While Clean Water Act point source permitting

programs have successfully reduced water pollution,

non-point source programs under the Act have been

ineffective. See National Research Council, AS-

SESSING THE TMDL APPROACH TO WATER QUALITY

MANAGEMENT (2001) at 1 (“Although successful, the

NPDES [point source permit] program has not

achieved the nation’s water quality goals of “fishable

and swimmable” waters largely because discharges

from other unregulated nonpoint sources of pollution

have not been as successfully controlled. Today, pol-

lutants such as nutrients and sediment ... are jeop-

ardizing water quality....”).

Best management practices, lauded by other ami-

ci, have largely failed.26 Amici Pacific Legal Founda-

25 U.S. Fish and Wildlife Service, Biological Opinion of the

Effects to Bull Trout and Bull Trout Critical Habitat from Road

Management Activities on National Forest System and Bureau

of Land Management Lands in Western Montana (2008) at 8,

available at http://www.fs.usda.gov/Internet/FSE_DOCUMENT

S/stelprdb5336500.pdf (last visited Oct. 15, 2012).

26 F.A. Espinosa et al., The Failure of Existing Plans to Pro-

tect Salmon Habitat in the Clearwater National Forest in Idaho,

(Footnote continued)

17

tion touts the number of states with Best Manage-

ment Practice programs for forestry generally, Pacific

Legal Foundation Br. at 10-11, but those numbers

are meaningless unless also linked to their efficacy.

The continued identification of rivers and streams

polluted by sediment from logging and industrial

logging roads belies any claims that current

measures to control this pollution are effective. The

plight of the Pacific chorus frog in the photograph be-

low, like the harm to salmon discussed above, serves

as an indicator of the wider harm that entire aquatic

ecosystems suffer when subjected to excess sediment

pollution.

JOURNAL OF ENVIRONMENTAL MANAGEMENT 49:205-30 (1997)

(documenting the failure of Best Management Practices on U.S.

Forest Service land to protect salmon and their habitat).

27 Mud-caked Pacific chorus frog in spring breeding wetland

habitat filled with sediment delivered from ditches of an adja-

cent logging road, Elliot State Forest, Oregon. March 15, 2007.

Photo: C.A. Frissell.

18

In renewing protection for Oregon coast coho

salmon, the federal expert biological] agency particu-

larly noted that Oregon’s forestry rules do not ade-

quately protect salmon.

[Significant concerns remain over the[] ability

[of the Oregon forestry rules] to adequately

protect water quality and salmon habitat. ...

Since there are no limitations on cumulative

watershed effects, road density on private for-

est lands, which is high throughout the range

of this [salmon population], is unlikely to de-

crease.

76 Fed. Reg. at 35,767.28 See also Scientific Conclu-

sions of the Status Review for Oregon Coast Coho

Salmon, NOAA Technical Memorandum NMFS-

NWFSC-118 (June 2012) at 76-78 (documenting neg-

ative correlation between coho productivity and high

logging road densities).29 It is impossible to square

these facts with the great praise heaped on best

management practices in this case.

28 Oregon is not alone in having high road densities on pri-

vate lands. As amici Pacific Legal Foundation notes (at 15, n.7),

there may be up to six miles of forest road per square mile of

private forest land in parts of California. The road less traveled,

it appears, is not part of our nation’s forested landscape.

2% Available at http://www.nwfsc.noaa.gov/assets/25/8714_08

132012_121939_SROregonCohoTM118WebFinal.pdf (last visit-

ed Oct. 15, 2012); see also J.C. Firman et al., Landscape Models

of Adult Coho Salmon Density Examined at Four Spatial Ex-

tents, TRANSACTIONS OF THE AMERICAN FISHERIES SOCIETY,

140:440-55 (2011) (finding that as road densities increased in

small Oregon streams, spawning coho salmon decreased).

19

CONCLUSION

Industrial logging roads that channel sediment

pollution through pipes and ditches directly into riv-

ers and streams harm fish and other aquatic organ-

isms. Until this direct pollution is addressed, the

health of our nation’s watersheds remains at risk.

For the foregoing reasons, Amici respectfully ask this

Court to affirm the decision below.

Respectfully submitted,

KRISTEN L. BOYLES

Counsel of Record

EARTHJUSTICE

705 Second Ave., Suite 203

Seattle, WA 98104

(206) 343-7340

kboyles@earthjustice.org

Attorney for Amici Curiae

October 23, 2012