No. _______________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES 

DEFENSE COUNCIL, INC.

ENVIRONMENTAL DEFENSE CENTER & NATURAL RESOURCES DEFENSE 

COUNCIL, INC., Petitioners,

v. 

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PETITION FOR A WRIT OF MANDAMUS

JACLYN H. PRANGE

MICHAEL E. WALL

Natural Resources Defense Council

111 Sutter Street, 20th Floor

San Francisco, California 94104

Phone: (415) 875-6100 

Fax: (415) 875-6161 

jprange@nrdc.org

mwall@nrdc.org

Attorneys for Petitioner Natural 

Resources Defense Council 

MARGARET MORGAN HALL

Environmental Defense Center

906 Garden Street 

Santa Barbara, California 93101

Phone: (805) 963-1622 

Fax: (805) 962-3152

mhall@environmentaldefensecenter.org

BRIAN P. SEGEE 

Environmental Defense Center

840 County Square Drive

Ventura, California 93003

Phone: (805) 658-2688

Fax: (805) 648-8092

bsegee@environmentaldefensecenter.org

Attorneys for Petitioner Environmental 

Defense Center 
i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Petitioners 

Environmental Defense Center and Natural Resources Defense Council, Inc., 

submit that they have no parent corporations and no publicly issued stock 

shares or securities. No publicly held corporation holds stock in any of the 

petitioners.

December 18, 2014 /s/ Jaclyn H. Prange 

Jaclyn H. Prange

Michael E. Wall

Natural Resources Defense Council

Attorneys for Petitioner

Natural Resources Defense Council 

/s/ Margaret Morgan Hall 

Margaret Morgan Hall 

Brian P. Segee

Environmental Defense Center

Attorneys for Petitioner

Environmental Defense Center 
ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT..............................................................................i

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

INTRODUCTION............................................................................................................................. 1

JURISDICTION ................................................................................................................................ 3

BACKGROUND................................................................................................................................ 4

I. Stormwater is a significant source of water pollution ..................................... 4

II. EPA adopted the Phase II Rule six years after the 

deadline set by Congress............................................................................................... 6

III. The Ninth Circuit vacated and remanded portions 

of the Phase II Rule in 2003......................................................................................... 7

IV. EPA has not complied with the Court’s 2003 order ........................................10

ARGUMENT 

The Court should issue a writ of mandamus because 

EPA’s eleven-year delay in complying with the 2003 order 

is unreasonable............................................................................................................................14

REQUEST FOR RELIEF..............................................................................................................20

CONCLUSION................................................................................................................................23
iii

TABLE OF AUTHORITIES

CASES

Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 

750 F.2d 81 (D.C. Cir. 1984).......................................................................................17

In re Am. Rivers & Idaho Rivers United, 

372 F.3d 413 (D.C. Cir. 2004)....................................................................................17

Cal. Power Exch. Corp. v. FERC, 

245 F.3d 1110 (9th Cir. 2001)..................................................................................15

In re Core Commc’ns, Inc., 

531 F.3d 849 (D.C. Cir. 2008)............................................................. 15, 16, 17, 20

Decker v. Nw. Envtl. Def. Ctr., 

133 S. Ct. 1326 (2013)..................................................................................................13

Envtl. Def. Ctr., Inc. v. U.S. EPA,

344 F.3d 832 (9th Cir. 2003)............................................................................passim

Independence Mining Co. v. Babbitt, 

105 F.3d 502 (9th Cir. 1997).....................................................................................15

In re Int’l Chem. Workers Union, 

958 F.2d 1144 (D.C. Cir. 1992).................................................................................17

MCI Telecomms. Corp. v. FCC, 

627 F.2d 322 (D.C. Cir. 1980)....................................................................................17

Mossville Environmental Action Network v. EPA, 

370 F. 3d 1232 (D.C. Cir. 2004)................................................................................21

NRDC v. N.Y. State Dep’t of Envtl. Conservation, 

940 N.Y.S.2d 437 (N.Y. Sup. Ct. 2012)....................................................................11

NRDC v. N.Y. State Dep’t of Envtl. Conservation, 

10 N.E.3d 189 (N.Y. 2014)..........................................................................................11
iv

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

640 F.3d 1063 (9th Cir. 2011)..................................................................................13

In re People’s Mojahedin Org. of Iran, 

680 F.3d 832 (D.C. Cir. 2012)...........................................................................passim

Pub. Citizen Health Research Grp. v. Auchter, 

702 F.2d 1150 (D.C. Cir. 1983).................................................................................17

Pub. Citizen Health Research Grp. v. Brock, 

823 F.2d 626 (D.C. Cir. 1987)....................................................................................18

Ramon-Sepulveda v. INS, 

824 F.2d 749 (9th Cir. 1987)................................................................................3, 14

Salazar v. Buono, 

559 U.S. 700 (2010)......................................................................................................... 4

Telecommunications Research & Action Center v. FCC,

750 F.2d 70 (D.C. Cir. 1984)................................................................ 15, 16, 17, 20

Texas Cities Coal. on Stormwater v. EPA, 

541 U.S. 1085 (2004)....................................................................................................10

In re United Mine Workers of Am. Int’l Union, 

190 F.3d 545 (D.C. Cir. 1999)....................................................................................19

United States v. N.Y. Tel. Co., 

434 U.S. 159 (1977)..................................................................................................3, 14

STATUTES AND REGULATIONS

5 U.S.C. § 706(1)..........................................................................................................................14

28 U.S.C. § 1651(a)....................................................................................................................... 3

28 U.S.C. § 2412 ...........................................................................................................................22

33 U.S.C. § 1342(a)-(b)............................................................................................................... 8
v

33 U.S.C. § 1342(a)(1)................................................................................................................. 9

33 U.S.C. § 1342(j)........................................................................................................................ 8

33 U.S.C. § 1342(p)(3)(B)(iii).................................................................................................. 8

33 U.S.C. § 1342(p)(4)................................................................................................................. 6

33 U.S.C. § 1342(p)(5)-(6)......................................................................................................... 7

33 U.S.C. § 1342(p)(6)...............................................................................................................18

33 U.S.C. § 1369 ...........................................................................................................................22

33 U.S.C. § 1369(b)(1)................................................................................................................. 7

40 C.F.R. § 63.99 ..........................................................................................................................21

40 C.F.R. § 122.26(a)(9)(ii)....................................................................................................... 7

40 C.F.R. § 122.26(b)(16).......................................................................................................... 7

40 C.F.R. § 122.32(a).................................................................................................................... 7

40 C.F.R. § 122.33(b)................................................................................................................... 8

40 C.F.R. § 122.34(a).................................................................................................................... 7

OTHER AUTHORITIES

64 Fed. Reg. 68,722 (Dec. 8, 1999)....................................................................... 5, 6, 7, 18

74 Fed. Reg. 68,617 (Dec. 28, 2009)...................................................................................12

77 Fed. Reg. 30,473 (May 23, 2012).........................................................................5, 6, 18

77 Fed. Reg. 72,970 (Dec. 7, 2012).......................................................................13, 20, 22
1

INTRODUCTION

In 2003, this Court vacated in part and remanded an Environmental 

Protection Agency (EPA) rule concerning stormwater pollution, finding that 

the rule’s regulation of urban stormwater violated the Clean Water Act and 

that the agency had arbitrarily failed to decide whether to regulate 

stormwater from forest roads. Envtl. Def. Ctr., Inc. v. U.S. EPA (EDC), 344 F.3d 

832, 858, 863 (9th Cir. 2003). Even then, a lawful stormwater regulation was 

past due, as Congress had required EPA to complete its stormwater 

rulemaking by 1993. Yet, more than eleven years after this Court found the 

rule unlawful and remanded it to the agency, EPA has yet to comply with the 

Court’s remand order. Petitioners Environmental Defense Center (EDC) and 

Natural Resources Defense Council (NRDC), who brought and won that earlier 

litigation, now petition this Court to compel EPA to comply with the Court’s 

2003 remand order, and to do so by a date certain.

Polluted rainwater runoff, or “stormwater,” is a major environmental 

and human health problem. Two types of stormwater are relevant in this case: 

urban stormwater and forest road stormwater. In urban areas, rain washes

pollution from streets, roofs, parking lots, and other contaminated surfaces

into rivers, streams, lakes, and coastal waters. This urban stormwater is one of 

the leading sources of water contamination in the country and causes 
2

countless illnesses in swimmers each year. In our nation’s forests, stormwater 

from the dirt and gravel roads used for logging and other forest activities

washes sediment into water bodies, where it harms fish and contaminates 

sources of drinking water for millions of Americans.

In EDC, the Court agreed with Petitioners that the stormwater rule at 

issue, known as the “Phase II Rule,” failed to adequately address these two 

types of stormwater. First, the Court held that the Phase II Rule created an 

impermissible self-regulatory system for small municipal stormwater systems

and failed to provide for public participation in the permitting process for 

those stormwater systems, as required by the Clean Water Act. Id. at 854-58. 

Second, the Court held that EPA failed to explain why the Phase II Rule did not 

address stormwater from forest roads at all, despite evidence in the record 

that such roads are a major source of water pollution. Id. at 860-61, 863. The 

Court vacated and remanded the urban stormwater portions of the rule. Id. at 

858. The Court also remanded the forest road issue, directing EPA to decide,

in an appropriate administrative proceeding, whether to regulate forest roads

under its Phase II authority. Id. at 863.

EPA has repeatedly acknowledged that it must comply with the Court’s

2003 order. However, more than a decade later, the agency has yet to do so. 

The invalid regulations for small municipal stormwater systems remain 
3

printed—unchanged—in the U.S. Code of Federal Regulations. Many state 

permitting agencies continue to rely on them. And EPA has yet to decide

whether it will regulate forest road pollution under its Phase II authority.

EPA’s failure to address the Court’s remand order is especially troubling 

because Congress required EPA to complete these rules by 1993. 

Federal courts have authority to issue writs of mandamus directing 

agencies to comply with prior orders, and this Court should now exercise that 

authority. EPA’s continued disregard of the 2003 order undermines the 

integrity of the courts and robs Petitioners of their victory. The Court should 

grant the Petition for a Writ of Mandamus and order EPA to comply with the 

2003 order by a date certain.

JURISDICTION

Petitioners bring this case pursuant to Federal Rule of Appellate 

Procedure 21, which allows parties to petition the Courts of Appeals for a writ 

of mandamus. Under the All Writs Act, 28 U.S.C. § 1651(a), this Court has 

jurisdiction to issue a writ of mandamus to “effectuate and prevent the 

frustration of orders it has previously issued.” United States v. N.Y. Tel. Co., 434 

U.S. 159, 172 (1977) (discussing 28 U.S.C. § 1651(a)); Ramon-Sepulveda v. INS, 

824 F.2d 749, 751 (9th Cir. 1987) (“We have the authority and the duty to 
4

preserve the effectiveness of our earlier judgment.”). The Court therefore has 

jurisdiction to enforce its 2003 EDC judgment. 

Petitioners have standing to bring this action on two independently 

sufficient bases. First, Petitioners were prevailing parties in EDC, and thus 

have standing to enforce the Court’s 2003 order. See Salazar v. Buono, 559 U.S. 

700, 712 (2010) (“A party that obtains a judgment in its favor acquires a 

‘judicially cognizable’ interest in ensuring compliance with that judgment.”); 

see also Declaration of Lawrence Levine (Levine Decl.) ¶¶ 6-13; Declaration of 

Owen Bailey (Bailey Decl.) ¶¶ 5-15. Second, Petitioners’ members have 

concrete interests harmed by stormwater pollution that would be addressed 

by EPA’s compliance with this Court’s 2003 order. See Declarations of E. Kush, 

B. Meade, A. Van Alyn Booraem, K. Shimata, B. Stevens, M. Schweitzer, B. 

Kimball, S. Cooper, S. Ferry, and T. Dudley.

BACKGROUND

I. Stormwater is a significant source of water pollution

Stormwater “is one of the most significant sources of water pollution in 

the nation, at times comparable to, if not greater than, contamination from 

industrial and sewage sources.” EDC, 344 F.3d at 840 (internal quotation

marks omitted). In urban areas, small municipal separate storm sewer 

systems (MS4s) collect stormwater from developed areas and discharge it to 
5

nearby streams, rivers, lakes, and coastal waters. Id. at 840-41. As the 

stormwater flows across the pavement and soil and into the MS4, it picks up 

contaminants, including suspended metals, algae-promoting nutrients, used 

motor oil, raw sewage, pesticides, and trash. Id. at 840. EPA, upon issuing the 

Phase II Rule, explained that urban stormwater is a major cause of water 

pollution nationwide and is the single largest source of pollution in ocean

waters. National Pollutant Discharge Elimination System—Regulations for 

Revision of the Water Pollution Control Program Addressing Storm Water 

Discharges, 64 Fed. Reg. 68,722, 68,726 (Dec. 8, 1999). EPA also noted that 

urban stormwater can cause illnesses in swimmers and leads to hundreds of 

beach advisories and closings each year. Id. at 68,727 (finding that the rate of 

illness in people who swim near storm drains is 57 percent higher than the 

rate in people who swim more than 400 yards away). 

Stormwater is also a problem in our nation’s forests, which are covered 

in a vast web of roads. These roads—many of them dirt or gravel—are used 

for logging, recreational, fire protection, or other purposes. Notice of Intent To 

Revise Stormwater Regulations To Specify That an NPDES Permit Is Not 

Required for Stormwater Discharges From Logging Roads and To Seek 

Comment on Approaches for Addressing Water Quality Impacts From Forest 

Road Discharges, 77 Fed. Reg. 30,473, 30,475 (May 23, 2012). EPA has
6

concluded that these roads are the “major source of erosion from forested 

lands, contributing up to 90 percent of the total sediment production from 

forestry operations.” EDC, 344 F.3d at 861 (internal quotation marks omitted). 

This sediment pollution can damage aquatic habitats by smothering benthic 

organisms, increasing turbidity, reducing light penetration, and reducing 

dissolved oxygen. 64 Fed. Reg. at 68,730. Forest road stormwater can also 

directly harm humans by contaminating drinking water supplies: 80 percent 

of the nation’s freshwater sources originate in forest lands, and approximately 

60 million people rely on National Forest lands as the primary source of their 

drinking water. 77 Fed. Reg. at 30,476. 

II. EPA adopted the Phase II Rule six years after the deadline set by 

Congress

Congress amended the Clean Water Act in 1987 to better address the 

problem of stormwater pollution, directing EPA to regulate stormwater in 

phases. First, Congress required EPA to regulate stormwater discharges from 

industrial activities and “large” MS4s (those serving populations of more than 

250,000) by 1989, and to regulate stormwater discharges from “medium” 

MS4s (those serving populations between 100,000 and 250,000) by 1991. 33 

U.S.C. § 1342(p)(4). EPA promulgated the regulations addressing these 

sources, the “Phase I Rule,” in 1990. EDC, 344 F.3d at 842. 
7

Second, Congress required EPA to identify and regulate all other sources 

of problematic stormwater pollution by October 1, 1993. See 33 U.S.C.

§ 1342(p)(5)-(6). EPA eventually responded to this command by 

promulgating the “Phase II Rule” in 1999, six years after the statutory 

deadline. 64 Fed. Reg. at 68,722. The Phase II Rule required operators of

“small” MS4s (those serving fewer than 100,000 people) in urbanized areas to 

obtain National Pollutant Discharge Elimination System (NPDES) permits. 40 

C.F.R. §§ 122.26(a)(9)(ii), 122.26(b)(16), 122.32(a), 122.34(a); EDC, 344 F.3d 

at 840. The Phase II Rule did not regulate—or even mention—discharges from 

forest roads. EDC, 344 F.3d at 861-62.

III. The Ninth Circuit vacated and remanded portions of the Phase II 

Rule in 2003

Shortly after EPA adopted the Phase II Rule, Petitioners challenged the 

regulations in this Court. Industry and municipal groups also challenged the 

regulations on a variety of grounds. EDC, 344 F.3d at 843. The Ninth Circuit 

consolidated the actions, and found that it had original jurisdiction over the 

final Phase II Rule under 33 U.S.C. § 1369(b)(1). Id. In 2003, the Court rejected

the industry and municipal groups’ challenges, but ruled for Petitioners on 

issues relating to small MS4s and forest roads. Id. at 840, 879.
8

On the small MS4 issue, this Court held that the Phase II Rule created an 

“impermissible self-regulatory system” because it allowed permittees to 

decide, without any oversight from the permitting agency, which pollution 

control measures to include in their permits. Id. at 854-56. The Clean Water 

Act requires EPA to reduce municipal stormwater pollution to the “maximum 

extent practicable.” 33 U.S.C. § 1342(p)(3)(B)(iii). As one way of meeting that 

mandate, the Phase II Rule authorizes EPA or a state permitting agency1 to

regulate a large number of small MS4s under one “general permit.” EDC, 344 

F.3d at 853 (citing 40 C.F.R. § 122.33(b)). Typically, a general permit explains 

what a class of dischargers (e.g., small MS4s, construction sites, etc.) must do 

to control water pollution. To obtain coverage under the general permit, a 

discharger must file a simple “notice of intent” (NOI) to comply with the 

general permit’s terms before discharging. Because the NOI is merely the 

formal acceptance of the general permit’s terms, permitting authorities need 

not review the NOI before the permittee can start discharging. Id.

Unlike this traditional general permitting approach, the Phase II Rule 

allows each polluter to develop its own individualized pollution control 

 1 The Clean Water Act allows the states to administer NPDES permitting 

programs. EPA serves as the permitting authority in states that choose not to 

administer the Act. EDC, 344 F.3d at 841 (citing 33 U.S.C. § 1342(a)-(b)). 
9

system in its NOI. Id. at 853-54. But nothing in the rule requires permitting 

authorities to review the individualized NOIs to “ensure that the measures 

that any given operator of a small MS4 has decided to undertake will in fact

reduce discharges to the maximum extent practicable.” Id. at 855. Accordingly, 

this Court ruled that the Phase II Rule violates the Clean Water Act. Id. at 856. 

This Court also found that the Phase II Rule’s NOI procedures failed to 

meet the Clean Water Act’s public availability and participation requirements. 

Id. at 856-58. The Act requires permitting authorities to provide public notice 

and an opportunity for a hearing on permits. Id. at 856 (citing 33 U.S.C. 

§ 1342(j), (a)(1)). The Court reasoned that because Phase II NOIs include 

substantive, individualized pollution control plans, they are “functionally 

equivalent” to individual permit applications. Id. at 857. Accordingly, the Court 

held that the Phase II Rule violates the Act by failing to require notice and a 

hearing on each NOI. Id. Because of these deficiencies, the Court vacated these 

portions of the Phase II Rule and remanded the rule to EPA. Id. at 858.

The Court also ruled for Petitioners on the forest roads issue. EPA had 

argued that Petitioners were barred from challenging that aspect of the rule 

on procedural grounds, but made no substantive defense of its failure to 

regulate forest roads. Id. at 862 (stating that EPA responded to comments 

“without disputing that the [forest road sedimentation] problem is serious”). 
10

The Court rejected EPA’s procedural defenses and held that Petitioners’ 

contention that the Clean Water Act requires EPA to regulate forest roads 

“necessitates a response from EPA on the merits.” Id. The Court remanded the 

issue to EPA “so that it may consider in an appropriate proceeding Petitioners’ 

contention that [the Act] requires EPA to regulate forest roads. EPA may then 

either accept Petitioners’ arguments in whole or in part, or reject them on the 

basis of valid reasons that are adequately set forth to permit judicial review.” 

Id. at 863.

EPA sought en banc and Supreme Court review of this Court’s decision.

Both were denied. Id. at 839-40; Texas Cities Coal. on Stormwater v. EPA, 541 

U.S. 1085 (2004); Levine Decl. ¶ 4, Ex. A at 1.

IV. EPA has not complied with the Court’s 2003 order

More than eleven years after this Court’s ruling in EDC, EPA has yet to 

comply with the 2003 order. Meanwhile, state permitting agencies have 

continued to rely on the invalidated small MS4 regulations. Although EPA, in 

2004, issued a non-binding guidance memorandum that advises small MS4 

permitting agencies to comply with EDC until EPA takes “affirmative action” to 

address the Court’s remand order, Levine Decl. ¶ 4, Ex. A at 2-3, many 

permitting agencies have not followed that guidance. 
11

For example, New York’s 2010 general permit for small MS4s allows 

precisely the self-regulatory system that EPA’s vacated rule allowed and that 

this Court’s 2003 order held to violate the Clean Water Act. Id. ¶ 7, Ex. C at 29, 

33, 35, 43, 46, 50 (allowing permittees to “[s]elect and implement 

appropriate” pollution controls), and 8 (stating that permit coverage may be 

obtained simply by submitting a “complete and accurate” NOI). It also fails to 

provide for adequate public participation on NOIs. Id. ¶ 7, Ex. C at 8. Because 

of these deficiencies and others, in 2010, Petitioner NRDC and other

organizations challenged the New York small MS4 general permit in state 

court. That litigation is currently pending before New York’s highest court.

2

Notably, in that litigation, the State of New York has argued that EDC is not 

controlling because “EPA has not issued revised regulations . . . . Therefore, 

EPA’s current regulations remain binding, and remain the framework for 

which stormwater permitting occurs throughout the nation . . . .” Id. ¶ 8, Ex. D

 2 NRDC and the other petitioners prevailed in the trial court in 2012, but 

the intermediate appellate court reversed. NRDC v. N.Y. State Dep’t of Envtl. 

Conservation, 940 N.Y.S.2d 437, 443, 449, 453-54 (N.Y. Sup. Ct. 2012), aff’d in 

part and rev’d in part, 994 N.Y.S.2d 125, 136 (N.Y. App. Div. 2014). The state 

supreme court recently granted NRDC’s request for review, NRDC v. N.Y. State 

Dep’t of Envtl. Conservation, 10 N.E.3d 189 (N.Y. 2014) (unpublished 

disposition), and the parties are currently briefing the appeal. Levine Decl. ¶ 8.
12

at 15-17; see also id. ¶ 8, Ex. D at 17 (arguing that EPA’s 2004 guidance

memorandum is not binding on the states). 

Other state permitting agencies have similarly followed, or proposed to 

follow, the invalidated regulations. See, e.g., Levine Decl. ¶¶ 10-11, Ex. E at 

section III(e) (California), Ex. F at 18, 30-31 (New Jersey). In fact, EPA found it 

necessary in its recent “MS4 Permit Improvement Guide” to remind permit 

writers to refer to the 2004 guidance memorandum regarding the EDC

remand. Id. ¶ 5, Ex. B at 10. However, until EPA amends its regulations, states 

will likely continue to issue permits that contain the fatal flaws identified in 

the Court’s 2003 order. 

In late 2009, EPA began a process to update its entire urban stormwater 

program, including the Phase II Rule. See, e.g., Stakeholder Input; Stormwater 

Management Including Discharges From New Development and 

Redevelopment, 74 Fed. Reg. 68,617 (Dec. 28, 2009). At that time, EPA 

planned to issue a proposed rule by September 2011, but it has pushed back 

that date repeatedly, and now states only that a proposed rule may be issued 

on a date “To Be Determined.” Levine Decl. ¶ 14, Ex. G. EPA has stated that it is 

“deferring action on [the] rulemaking” to instead pursue non-regulatory 

actions that “provide incentives” to “encourage” communities to implement 

stronger stormwater programs. Id. ¶ 16, Ex. I.
13

EPA has similarly failed to comply with this Court’s 2003 order to 

decide whether to regulate forest roads under its Phase II authority, even 

though the agency has acknowledged a duty to do so. In 2012, EPA cited the 

2003 order during a rulemaking to revise the Phase I regulations to exempt 

logging roads3 from the NPDES permit requirement.4 EPA stated that, in 

response to EDC, it “continues to review available information on the waterquality impacts of stormwater discharges from forest roads,” and that it

“believes that stormwater discharges from forest roads, including logging 

roads, should be evaluated under [its Phase II authority],” which “may be wellsuited to address the complexity of forest road ownership, management, and 

use.” 77 Fed. Reg. at 72,972, 72,973.

 3 Logging roads are a subset of forest roads. See Revisions to Stormwater 

Regulations To Clarify That an NPDES Permit Is Not Required for Stormwater 

Discharges From Logging Roads, 77 Fed. Reg. 72,970, 72,973 (Dec. 7, 2012). 

4 EPA made these revisions in response to litigation over the Phase I 

program. See Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011), rev’d 

and remanded on other grounds sub nom., Decker v. Nw. Envtl. Def. Ctr., 133 S. 

Ct. 1326 (2013). After the Ninth Circuit held that stormwater discharges from 

logging roads required NPDES permits, id. at 1066-67, EPA revised its 

regulations—in just over six months—to specifically exclude logging roads 

from the Phase I Rule’s permit requirement. 77 Fed. Reg. at 72,970, 72,972

(showing that EPA issued the notice of intent, proposed rule, and final rule on 

May 23, September 4, and December 7, 2012, respectively). The Supreme 

Court reversed, holding that EPA had properly construed the earlier version of 

the regulation to exempt logging roads from regulation under the Phase I 

Rule. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013). 
14

Around that time, EPA began a process to propose “flexible nonpermitting approaches under the Clean Water Act to regulate certain 

discharges of stormwater from forest roads.” Levine Decl. ¶ 15, Ex. H. But as 

with the nascent urban stormwater rulemaking, EPA’s estimate for the release 

of an advanced notice of proposed rulemaking on forest roads slipped from 

2013 to 2014, and then to a date “To Be Determined.” Id. ¶ 15, Ex. H. EPA has 

yet to decide, in an appropriate proceeding that allows for judicial review, 

whether to regulate forest roads, as this Court required in 2003. 

ARGUMENT

The Court should issue a writ of mandamus because EPA’s eleven-year 

delay in complying with the 2003 order is unreasonable

Under the All Writs Act, a federal court may issue a writ of mandamus to

“effectuate and prevent the frustration of orders it has previously issued.” N.Y.

Tel. Co., 434 U.S. at 172; see also Ramon-Sepulveda, 824 F.2d at 751 (“We have 

the authority and the duty to preserve the effectiveness of our earlier 

judgment.”). The Court should use its authority under the All Writs Act to 

compel EPA to comply with the 2003 order.

Courts evaluate an agency’s failure to comply with a prior court order as 

a claim for unreasonable delay under the Administrative Procedure Act (APA), 

5 U.S.C. § 706(1), which requires a court to compel agency action unlawfully 
15

withheld or unreasonably delayed. In re Core Commc’ns, Inc., 531 F.3d 849, 

855 (D.C. Cir. 2008); cf. Cal. Power Exch. Corp. v. FERC, 245 F.3d 1110, 1124-25 

(9th Cir. 2001). To determine whether agency action has been unreasonably 

delayed, courts apply the factors announced in Telecommunications Research 

& Action Center v. FCC (TRAC): 

(1) the time agencies take to make decisions must be governed by 

a ‘rule of reason’[;] (2) where Congress has provided a timetable 

or other indication of the speed with which it expects the agency 

to proceed in the enabling statute, that statutory scheme may 

supply content for this rule of reason[;] (3) delays that might be 

reasonable in the sphere of economic regulation are less tolerable 

when human health and welfare are at stake[;] (4) the court 

should consider the effect of expediting delayed action on agency 

activities of a higher or competing priority[;] (5) the court should 

also take into account the nature and extent of the interests 

prejudiced by the delay[;] and (6) the court need not ‘find any 

impropriety lurking behind agency lassitude in order to hold that 

agency action is unreasonably delayed.’

Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997) 

(quoting TRAC, 750 F.2d 70, 80 (D.C. Cir. 1984)); see also Cal. Power Exch. 

Corp., 245 F.3d at 1124-25 (applying the TRAC factors, rather than the 

traditional three-part mandamus test, to an unreasonable delay case).

When applying the TRAC factors in similar circumstances, courts have 

held that an agency’s failure to comply with a prior court order is dispositive. 

For example, in In re People’s Mojahedin Organization of Iran, the D.C. Circuit 

remanded the U.S. Secretary of State’s decision to reject an organization’s 
16

petition to be removed from a terrorist watch list. In re People’s Mojahedin 

Org. of Iran, 680 F.3d 832, 833 (D.C. Cir. 2012). The Secretary failed to take 

final action on the organization’s petition, and two years later, the court 

granted a writ directing the Secretary to comply with the first order within 

four months. Id. The court considered the TRAC factors, but it ultimately found 

the agency’s disregard of the remand order to be dispositive: “Decisive to us, 

however, is the fact that the Secretary has failed to heed our remand.” Id. at 

837. 

In a similar case, the D.C. Circuit remanded a Federal Communications 

Commission rule in 2002, holding that the agency had failed to explain its 

authority for issuing the rule. In re Core Commc’ns, Inc., 531 F.3d at 850. After 

six years of agency inaction, the petitioner sued again, and the court issued a 

writ of mandamus directing the agency to comply with the remand order

within six months. Id. at 850, 861-62. The court discussed some of the TRAC

factors, but it emphasized that the case was “different” from a typical 

unreasonable delay case because the agency had failed to comply with a court 

order. Id. at 856 (“In this case, we are faced with the agency’s failure—for six 

years—to respond to our own remand.”). 

The Court’s authority to issue a writ of mandamus in these 

circumstances is clear. EPA has failed to heed this Court’s 2003 order for more 
17

than a decade, despite knowing that it must do so. On this basis alone, the 

Court should grant the petition. 

Each of the six TRAC factors also favors Petitioners. First, EPA has 

disregarded the Court’s 2003 order for more than eleven years; that length of 

delay is unreasonable on its face. “[A] reasonable time for an agency decision 

could encompass months, occasionally a year or two, but not several years or 

a decade.” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 

2004) (internal quotation marks omitted). Courts have found much shorter 

delays for similarly complex or important agency actions to be unreasonable. 

In re People’s Mojahedin Org. of Iran, 680 F.3d at 833 (finding a two-year delay 

unreasonable); Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 

1157-58 (D.C. Cir. 1983) (finding a three-year delay unreasonable); MCI 

Telecomms. Corp. v. FCC, 627 F.2d 322, 324-25, 341-42 (D.C. Cir. 1980) (finding 

a four-year delay unreasonable); Air Line Pilots Ass’n, Int’l v. Civil Aeronautics 

Bd., 750 F.2d 81, 86 (D.C. Cir. 1984) (finding a five-year delay unreasonable); 

In re Core Commc’ns, Inc., 531 F.3d at 857 (finding a six-year delay 

unreasonable); In re Int’l Chem. Workers Union, 958 F.2d 1144, 1150 (D.C. Cir. 

1992) (calling six years an “extraordinarily long time”); In re Am. Rivers & 

Idaho Rivers United, 372 F.3d at 414, 419 (finding a six-year delay “nothing 

less than egregious”). At some point, the courts “must lean forward from the 
18

bench to let an agency know, in no uncertain terms, that enough is enough.”

Pub. Citizen Health Research Grp. v. Brock, 823 F.2d 626, 627 (D.C. Cir. 1987).

Second, Congress provided a deadline for the underlying rulemaking, 

and that deadline has long since passed. Indeed, it had long since passed even 

at the time that EPA promulgated the rule that, in 2003, this Court struck 

down. See 33 U.S.C. § 1342(p)(6) (setting a 1993 deadline for the Phase II 

Rule). EPA’s continuing failure to comply with the 2003 order means that,

more than twenty years after the statutory deadline, the agency still has not 

promulgated a lawful Phase II Rule. 

Third, this delay is unreasonable because human health is at stake. As 

EPA itself acknowledges, municipal stormwater is one of the leading sources 

of water pollution nationally and contributes to illnesses in swimmers and

hundreds of beach swimming advisories every year. 64 Fed. Reg. at 68,727.

Forest road stormwater pollutes important sources of drinking water supplies

for millions of Americans. 77 Fed. Reg. at 30,476. 

Fourth, this rule is a high priority because it is subject to a statutory 

deadline. Congress undoubtedly knew about the other demands on EPA when 

it established the 1993 deadline. See, e.g., In re People’s Mojahedin Org. of Iran, 

680 F.3d at 837. EPA may claim that it has other priorities, but “[h]owever 

many priorities the agency may have, and however modest its personnel and 
19

budgetary resources may be, there is a limit to how long it may use these 

justifications to excuse inaction in the face of the congressional command to 

act.” In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 554 (D.C. Cir. 

1999). And, here, this Court has already ordered EPA to take action.

Fifth, Petitioners have been prejudiced by EPA’s failure to comply with 

the 2003 order. EPA’s delay in responding to the Court’s mandate, and failure 

to revise the rule to comply with the law, has insulated this issue from further 

judicial review. See In re People’s Mojahedin Org. of Iran, 680 F.3d at 837

(stating that the petitioner was unfairly “stuck in administrative limbo”).

Petitioners cannot challenge the final rule until EPA issues that rule—that

alone is sufficient prejudice to warrant issuance of the writ. See id. Petitioners 

have also expended significant organizational resources to combat 

stormwater pollution that would be addressed by a legally adequate rule. See 

Levine Decl. ¶¶ 6-13 (describing NRDC’s efforts to address these issues); 

Bailey Decl. ¶¶ 10-15 (describing EDC’s efforts to address these issues). For

example, NRDC has spent years litigating over New York’s small MS4 general 

permit, which improperly relies on the invalidated portions of the Phase II 

Rule. Levine Decl. ¶¶ 8-9. Furthermore, EPA’s continued delay in adopting a 

legally adequate stormwater rule has caused harm to Petitioners’ members. 

See Kush, Meade, Van Alyn Booraem, Shimata, Schweitzer, Stevens, Kimball, 
20

Cooper, Ferry, and Dudley Decls. While EPA dithers, stormwater from small 

MS4s and forest roads continues to pollute our nation’s waters. 

Sixth, although the Court need not find any impropriety behind the 

delay to find it unreasonable, here, EPA is plainly and consciously 

disregarding this Court’s order. EPA has repeatedly acknowledged that it must 

comply with the order, yet it has withheld that action for more than eleven 

years. Levine Decl. ¶ 4, Ex. A at 1-2; 77 Fed. Reg. at 72,973.

All six TRAC factors favor Petitioners. In addition, EPA’s failure to heed a 

court order for more than a decade is, by itself, dispositive. In re People’s 

Mojahedin Org. of Iran, 680 F.3d at 837. Accordingly, the Court should grant 

the Petition for a Writ of Mandamus and compel EPA to comply with the 2003 

order by a date certain. 

REQUEST FOR RELIEF 

Petitioners respectfully request that the Court grant the Petition for a 

Writ of Mandamus and order EPA to comply with the 2003 order by the dates 

outlined below. Given EPA’s delay up to this date, a deadline for compliance 

with the Court’s mandamus is critical; without such a deadline, EPA will be 

able to continue to disregard the 2003 order, as it has for eleven years. Courts 

that have granted similar writs have directed the agency to comply with an 
21

order by a specific time. See In re People’s Mojahedin Org. of Iran, 680 F.3d at

833; In re Core Commc’ns, Inc., 531 F.3d at 861.

Petitioners first request that the Court order EPA to immediately revise 

the Phase II small MS4 regulations to include a statement that directs 

permitting authorities to comply with the 2003 EDC order pending further 

rulemaking. This action is needed to ensure that state permitting agencies do 

not continue to mistakenly rely on the vacated rules. EPA has made similar 

notations in other sections of the Code of Federal Regulations. See, e.g., 40 

C.F.R. § 63.99, Delegation Status for Part 63 Standards—State of Oklahoma, 

n.3 (stating that the standard was vacated and remanded to EPA by the D.C. 

Circuit in Mossville Environmental Action Network v. EPA, 370 F. 3d 1232 

(D.C. Cir. 2004)); 40 C.F.R. § 52.21, note to paragraph (b)(2)(iii)(a) (stating 

that the second sentence of the paragraph was stayed indefinitely by court 

order).

Petitioners further request that the Court order EPA to propose a rule, 

within six months, revising the small MS4 regulations to address the problems 

outlined in this Court’s 2003 order. EPA has already had more than a decade 

to consider that order, and revising the rule to address the procedural 

deficiencies the order identified should be straightforward. Petitioners also 

request that the Court order EPA to take final action on the proposed rule 
22

within six months of proposing it. EPA has shown that it can move quickly 

when it chooses. In 2012, EPA, in just over six months, revised the Phase I 

Rule to specifically state that logging roads do not require NPDES permits. See 

77 Fed. Reg. at 72,970, 72,972 (showing that EPA issued the notice of intent, 

proposed rule, and final rule on May 23, September 4, and December 7, 2012, 

respectively). Petitioners’ proposed schedule gives EPA twice as much time to 

revise this rule. 

Petitioners also request that the Court order EPA to decide, within six 

months, in an appropriate proceeding allowing it to set forth judicially 

reviewable findings, whether to regulate forest roads. EPA has already stated

that its Phase II authority “may be well-suited” to regulate forest roads and 

that it has been considering options for doing so for years. Id. at 72,973. If EPA

ultimately decides to regulate forest roads, as it has repeatedly implied it 

would, Petitioners request that the Court order EPA to propose a rule within a 

year of that decision and finalize that rule no later than a year after issuing the 

proposed rule. 

Finally, Petitioners request their reasonable attorneys’ fees and costs 

for bringing this action, pursuant to 33 U.S.C. § 1369, 28 U.S.C. § 2412, or any 

other applicable provision of law. 
23

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that the 

Court grant the Petition for a Writ of Mandamus. 

December 18, 2014 Respectfully submitted,

/s/ Jaclyn H. Prange 

Jaclyn H. Prange

Michael E. Wall

Natural Resources Defense Council

Attorneys for Petitioner

Natural Resources Defense Council 

/s/ Margaret Morgan Hall 

Margaret Morgan Hall 

Brian P. Segee

Environmental Defense Center

Attorneys for Petitioner

Environmental Defense Center 
24

STATEMENT OF RELATED CASES

NRDC is unaware of any related cases within the definition of Circuit 

Rule 28-2.6.

December 18, 2014 /s/ Jaclyn H. Prange 

Jaclyn H. Prange
25

CERTIFICATE OF SERVICE

I hereby certify that on December 19, 2014 I will serve a copy of the 

foregoing Petition for a Writ of Mandamus and Declarations of Owen Bailey, 

Abigail Van Alyn Booraem, Scott Dean Cooper, Thomas Leavitt Dudley, 

Stephen James Ferry, Bryn Kimball, Edward Kush, Lawrence M. Levine, 

Bernadette Meade, Marsha Schweitzer, Kathy Shimata, and Brendan Stevens

by placing true copies thereof in sealed envelopes addressed as shown below 

for service as designated below:

Avi Garbow

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Mail Code 2310A

Washington, DC 20460

Gina McCarthy

William Jefferson Clinton Building 

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Mail Code 1101A

Washington, DC 20460

Civil Process Clerk

United States Attorney for the

Northern District of California

Federal Courthouse, 11th Floor

450 Golden Gate Avenue

San Francisco, CA 94102

Eric Holder, Jr.

United States Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0001

Certified Mail, Return Receipt Requested: I placed the envelope, sealed with 

first-class postage fully prepaid, and with Certified Mail labels and Return 

Receipt attached, for collection and mailing at a facility regularly maintained 

by the United States Postal Service.
26

I declare under penalty of perjury under the laws of the State of California that 

the foregoing is true and correct. Executed this December 18, 2014, at San 

Francisco, California.

/s/ Sharmeen E. Morrison 

Sharmeen E. Morrison