Northwest Environmental Defense Center v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHWEST ENVIRONMENTAL 

DEFENSE CENTER, an Oregon non-

profit corporation,

Plaintiff-Appellant,

and

OREGON FOREST INDUSTRY COUNCIL;

AMERICAN FOREST & PAPER

ASSOCIATION,

Intervenors,

v. No. 07-35266

MARVIN BROWN, Oregon State D.C. No.

Forester, in his official capacity; CV-06-01270-GMK

STEPHEN HOBBS; BARBARA CRAIG;

DIANE SNYDER; LARRY GIUSTINA;

WILLIAM HEFFERNAN; WILLIAM

 ORDER

WITHDRAWING

HUTCHISON; JENNIFER PHILLIPPI, OPINION AND

(members of the Oregon Board of DENYING

Forestry, in their official REHEARING AND

capacities); HAMPTON TREE FARMS, OPINION

INC., an Oregon domestic business

corporation; STIMSON LUMBER

COMPANY, an Oregon domestic

business corporation; GEORGIA-

PACIFIC WEST INC., an Oregon

domestic business corporation;

SWANSON GROUP, INC., an Oregon

domestic business corporation;

TILLAMOOK COUNTY,

Defendants-Appellees.



6401

6402 NEDC v. BROWN

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

November 19, 2008—Portland, Oregon

Filed May 17, 2011

Before: William A. Fletcher and Raymond C. Fisher,

Circuit Judges, and Charles R. Breyer,* District Judge.

Opinion by Judge William A. Fletcher

*The Honorable Charles R. Breyer, United States District Judge for the

Northern District of California, sitting by designation.

NEDC v. BROWN 6405

COUNSEL

Paul A. Kampmeier, WASHINGTON FOREST LAW CEN-

TER, Seattle, Washington; Christopher G. Winter, CRAG

LAW CENTER, Portland, Oregon, for the plaintiff-appellant.

Per A. Ramfjord, Louis A. Ferreira, J. Mark Morford,

STOEL RIVES LLP, Portland, Oregon, for defen-

dants-appellees Hampton Tree Farms, Inc., Stimson Lumber

Co., Georgia-Pacific West, Inc. and Swanson Group, Inc.

Per A. Ramfjord, Louis A. Ferreira, J. Mark Morford,

STOEL RIVES LLP, Portland, Oregon, for intervenor Ore-

gon Forest Industries Council; Ellen B. Steen, CROWELL &

MOORING, Washington, D.C. for intervenor American For-

est and Paper Association; and William K. Sargent, Tila-

mook, Oregon, for intervenor Tillamook County.

Marc Abrams, Erin C. Lagesen, Richard D. Wasserman,

OFFICE OF THE OREGON ATTORNEY GENERAL,

Salem, Oregon; Louis A. Ferreira, J. Mark Morford, Per

Albert Ramfjord, STOEL RIVES LLP, Portland, Oregon;

William K. Sargent, Tillamook, Oregon, for the defendants-

appellees.

6406 NEDC v. BROWN

Damien M. Schiff and Ralph W. Kasarda, PACIFIC LEGAL

FOUNDATION, Sacramento, California; Michele A. Dias,

CALIFORNIA FORESTRY ASSOCIATION, Sacramento,

California, for Amici PACIFIC LEGAL FOUNDATION and

CALIFORNIA FORESTRY ASSOCIATION in support of

the defendants-appellees.

Bradford T. McLane, US DEPARTMENT OF JUSTICE,

Washington, D.C., William C. Carpenter, Eugene, Oregon,

for the amici-curiae.

Michael R. Lozeau and Douglas J. Chermack, LOZEAU

DRURY LLP, Oakland, California; Sharon Buccino, NATU-

RAL RESOURCES DEFENSE COUNCIL, Washington,

D.C., Sharon E. Duggan, LAW OFFICES OF SHARON E.

DUGGAN, for amicus curiae NATURAL RESOURCES

DEFENSE COUNCIL, INC., and the ENVIRONMENTAL

PROTECTION INFORMATION CENTER in support of the

plaintiffs-appellants.

ORDER

This court’s opinion filed August 17, 2010, and reported at

617 F.3d 1176, is withdrawn, and is replaced by the attached

Opinion.

With the filing of the new opinion, the panel has voted

unanimously to deny the petitions for rehearing. Judges

Fletcher and Fisher have voted to deny the petitions for

rehearing en banc, and Judge Breyer so recommends.

The full court has been advised of the petitions for rehear-

ing en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc, filed

October 5, 2010, are DENIED.

NEDC v. BROWN 6407

No further petitions for rehearing or rehearing en banc will

be accepted.

OPINION

W. FLETCHER, Circuit Judge:

Northwest Environmental Defense Center (“NEDC”)

brings suit against the Oregon State Forester and members of

the Oregon Board of Forestry in their official capacities (col-

lectively, “State Defendants”) and against various timber

companies (“Timber Defendants,” and collectively with State

Defendants, “Defendants”). NEDC contends that Defendants

have violated the Clean Water Act (“CWA”) and its imple-

menting regulations by not obtaining permits from the Envi-

ronmental Protection Agency (“EPA”) for stormwater —

largely rainwater — runoff that flows from logging roads into

systems of ditches, culverts, and channels and is then dis-

charged into forest streams and rivers. NEDC contends that

these discharges are from “point sources” within the meaning

of the CWA and that they therefore require permits under the

National Pollutant Discharge Elimination System (“NPDES”).

The district court concluded that the discharges are

exempted from the NPDES permitting process by the Silvi-

cultural Rule, 40 C.F.R. § 122.27, promulgated under the

CWA to regulate discharges associated with silvicultural

activity. The district court did not reach the question whether

the discharges are exempted by amendments to the CWA

made in 1987. We reach both questions and conclude that the

discharges require NPDES permits.

I. Background

NEDC contends that discharges from systems of ditches,

culverts, and channels that receive stormwater runoff from

6408 NEDC v. BROWN

two logging roads in the Tillamook State Forest in Oregon are

point source discharges under the CWA. The roads are the

Trask River Road, which runs parallel to the South Fork

Trask River, and the Sam Downs Road, which runs parallel

to the Little South Fork of the Kilchis River. The roads are

owned by the Oregon Department of Forestry and the Oregon

Board of Forestry. They are primarily used by the Timber

Defendants to gain access to logging sites and to haul timber

out of the forest. The Timber Defendants use the roads pursu-

ant to timber sales contracts with the State of Oregon. These

contracts designate specific routes for timber hauling and

require that the Timber Defendants maintain the roads and

their associated stormwater collection systems.

Both of the logging roads were designed and constructed

with systems of ditches, culverts, and channels that collect

and convey stormwater runoff. For most of their length, the

roads are graded so that water runs off the road into ditches

on the uphill side of the roads. There are several ways these

ditches then deliver water into the adjacent rivers. At inter-

vals, the ditches empty into “cross-drain” culverts that cross

under the roads. Where the roads are close to the rivers, these

culverts deliver the collected stormwater into the rivers.

Where the roads are at some distance from the rivers, the

roadside ditches connect to culverts under the roads that

deliver the collected stormwater into channels, and these

channels then discharge the stormwater into the rivers. When

tributary streams cross under the roads, the roadside ditches

deliver the collected stormwater into these streams. These

streams then carry the collected stormwater to the rivers.

The stormwater runoff that flows off the roads and through

these collection systems deposits large amounts of sediment

into streams and rivers. This sediment adversely affects fish

— in particular, salmon and trout — by smothering eggs,

reducing oxygen levels, interfering with feeding, and burying

insects that provide food.

NEDC v. BROWN 6409

Timber hauling on the logging roads is a major source of

the sediment that flows through the stormwater collection sys-

tems. Logging trucks passing over the roads grind up the

gravel and dirt on the surface of the road. Small rocks, sand,

and dirt are then washed into the collection system and dis-

charged directly into the streams and rivers. NEDC alleged in

its complaint that it sampled stormwater discharges at six

points along the Trask River Road and five points along the

Sam Downs Road where the Defendants use ditches, culverts,

and channels to collect and then discharge stormwater runoff.

Each sample contained significant amounts of sediment.

None of the Defendants has sought or received NPDES

permits for these discharges into the streams and rivers.

NEDC brought suit under the citizen suit provision of the

CWA, 33 U.S.C. § 1365(a), which provides that “any citizen

may commence a civil action on his own behalf . . . against

any person” alleged to be in violation of the CWA. NEDC

claims that Defendants have violated the CWA by not obtain-

ing NPDES permits. On March 1, 2007, the district court dis-

missed NEDC’s complaint with prejudice under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim. NEDC

has timely appealed.

II. Subject Matter Jurisdiction

In the original version of our opinion, we did not discuss

our subject matter jurisdiction. None of the parties to the suit

had raised an objection to subject matter jurisdiction. In an

amicus brief, however, the United States had contended that

the challenged Silvicultural Rule was unambiguous and that,

as a consequence, citizen-suit jurisdiction under 33 U.S.C.

§ 1365(a) was improper. Instead, the United States had

argued, the suit should have been brought under 33 U.S.C.

§ 1369(b). A defect in subject matter jurisdiction is, of course,

not waivable.

Without discussing subject matter jurisdiction, we held on

the merits that the Silvicultural Rule is ambiguous. After we

6410 NEDC v. BROWN

published our opinion, one of our colleagues asked us to dis-

cuss our subject matter jurisdiction. We asked for supplemen-

tal briefing. In light of our holding that the Rule is ambiguous,

the United States now concedes, in a second amicus brief, that

we have subject matter jurisdiction under § 1365(a). We agree

with the United States.

A citizen can bring a suit under § 1365(a) against any per-

son, including the United States, who is alleged to be in viola-

tion of “an effluent standard or limitation” under the CWA.

A citizen suit may be brought against a person or entity ille-

gally discharging a pollutant into covered waters without an

NPDES permit. Id. at § 1365(f)(6). Suits under § 1365, how-

ever, are limited by the CWA’s judicial review mechanism at

§ 1369(b). Section 1369(b) provides for the review of various

actions of the EPA Administrator, including the promulgation

of effluent standards, prohibitions, or limitations, as soon as

those actions take place. Id. at § 1369(b)(1). Such suits must

be brought within 120 days from the date of the Administra-

tor’s “determination, approval, promulgation, issuance or

denial,” unless the basis for the suit arose more than 120 days

after the agency action. Id. Any action that could have been

brought under § 1369(b) “shall not be subject to judicial

review in any civil or criminal proceeding for enforcement.”

Id. at § 1369(b)(2).

The basis for NEDC’s challenge to the Silvicultural Rule

arose more than 120 days after the promulgation of the Rule.

As we discuss in greater detail below, the Silvicultural Rule

is susceptible to two different readings. Under one reading,

the Rule does not require permits for silviculture stormwater

runoff. Under this reading, the Rule is inconsistent with the

CWA and hence invalid. Under the other reading, the Rule

requires permits for the runoff and is consistent with the

CWA. The United States adopted the first reading of the Sil-

vicultural Rule for the first time in its initial amicus brief in

this case. Until the United States filed that brief, there was no

way for the public to know which reading of the Silvicultural

NEDC v. BROWN 6411

Rule it would adopt. As the government states in its second

amicus brief to us,

At the time an ambiguous regulation is promulgated

. . . the public cannot reasonably be expected to chal-

lenge potential regulatory interpretations that are tex-

tually plausible but that the agency has not

contemporaneously offered and may never adopt.

Indeed, a rule encouraging such challenges to hypo-

thetical interpretations would likely only foster

unnecessary litigation.

Because the Silvicultural Rule was subject to two readings,

only one of which renders the Rule invalid, and because the

government first adopted its interpretation of the Rule in its

initial amicus brief in this case, this case comes within the

exception in § 1369(b)(1) for suits based on grounds arising

after the 120-day filing window. Section 1369(b) therefore

does not bar a citizen suit challenging EPA’s Silvicultural

Rule interpretation first adopted in its initial amicus brief in

this case. We thus have subject matter jurisdiction under 33

U.S.C. § 1365(a).

III. Standard of Review

We review de novo a district court’s dismissal under Rule

12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.

2005). We accept as true all of NEDC’s allegations of mate-

rial facts and we construe them in the light most favorable to

NEDC. Id.

We review de novo the district court’s interpretation of the

CWA and its implementing regulations. League of Wilderness

Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309

F.3d 1181, 1183 (9th Cir. 2002). We defer to an agency’s

interpretation of its own regulations unless that interpretation

is plainly erroneous, inconsistent with the regulation, or based

on an impermissible construction of the governing statute.

6412 NEDC v. BROWN

Auer v. Robbins, 519 U.S. 452, 457, 461-62 (1997). We

review EPA’s interpretations of the CWA under Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842-43 (1984). At Chevron step one, if, employing

the “traditional tools of statutory construction,” we determine

that Congress has directly and unambiguously spoken to the

precise question at issue, then the “unambiguously expressed

intent of Congress” controls. Id. at 843. At Chevron step two,

if we determine that the statute is “silent or ambiguous with

respect to the specific issue,” we must determine whether the

agency’s interpretation is based on a permissible construction

of the statute. Id. at 843. An agency interpretation based on

a permissible construction of the statute controls. Id. at 844.

IV. Discussion

NEDC contends that stormwater runoff from logging roads

that is collected in a system of ditches, culverts, and channels,

and is then delivered into streams and rivers, is a point source

discharge subject to NPDES permitting under the CWA.

Defendants, however, contend that the Silvicultural Rule

exempts such runoff from the definition of point source dis-

charge, and thus exempts it from the NPDES permitting pro-

cess. Alternatively, Defendants contend that the 1987

amendments to the CWA and regulations implementing those

amendments exempt such runoff from the definition of point

source discharge and from the permitting process. We discuss,

in turn, the definition of point source discharge, the Silvicul-

tural Rule, and the 1987 amendments to the CWA.

A. Definition of Point Source Discharge

[1] In 1972, in the Federal Water Pollution Control Act

(“FWPCA”), Congress substantially revised federal law gov-

erning clean water. Pub. L. No. 92-500, 86 Stat. 816 (1972).

In 1977, the statute was renamed the Clean Water Act

(“CWA”). Pub. L. No. 95-217, 91 Stat. 1566 (1977). Con-

gress enacted the FWPCA to “restore and maintain the chemi-

NEDC v. BROWN 6413

cal, physical, and biological integrity of the Nation’s waters”

by replacing water quality standards with point source efflu-

ent limitations. 33 U.S.C. § 1251(a); Or. Natural Desert Ass’n

v. Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998). Section

301(a) of the Act provides that, subject to certain exceptions,

“the discharge of any pollutant by any person shall be unlaw-

ful.” 33 U.S.C. § 1311(a). One of these exceptions is a point

source discharge authorized by a permit granted pursuant to

the NPDES system under § 402 of the Act. 33 U.S.C. § 1342.

The combined effect of §§ 301(a) and 402 is that “[t]he CWA

prohibits the discharge of any pollutant from a point source

into navigable waters of the United States without an NPDES

permit.” N. Plains Res. Council v. Fid. Exploration & Dev.

Co., 325 F.3d 1155, 1160 (9th Cir. 2003); see also Nw. Envtl.

Advocates v. EPA, 537 F.3d 1006, 1010 (9th Cir. 2008). “Pol-

lutants” include “rock” and “sand.” 33 U.S.C. § 1362(6).

Defendants do not contest that sediment discharges from log-

ging roads constitute pollutants within the meaning of the

CWA.

[2] “It is well settled that the starting point for interpreting

a statute is the language of the statute itself.” Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,

56 (1987). Section 502(14) of the Act defines “point source”

as

any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated animal feeding operation, or

vessel or other floating craft, from which pollutants

are or may be discharged. This term does not include

agricultural stormwater discharges and return flows

from irrigated agriculture.

33 U.S.C. § 1362(14) (emphasis added). The term “nonpoint

source” is left undefined.

6414 NEDC v. BROWN

[3] Stormwater that is not collected or channeled and then

discharged, but rather runs off and dissipates in a natural and

unimpeded manner, is not a discharge from a point source as

defined by § 502(14). As we wrote in League of Wilderness

Defenders/Blue Mountains Biodiversity Project v. Forsgren,

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

Although nonpoint source pollution is not statutorily

defined, it is widely understood to be the type of pol-

lution that arises from many dispersed activities over

large areas, and is not traceable to any single discrete

source. Because it arises in such a diffuse way, it is

very difficult to regulate through individual permits.

The most common example of nonpoint source pol-

lution is the residue left on roadways by automo-

biles. Small amounts of rubber are worn off of the

tires of millions of cars and deposited as a thin film

on highways; minute particles of copper dust from

brake linings are spread across roads and parking

lots each time a driver applies the brakes; drips and

drabs of oil and gas ubiquitously stain driveways and

streets. When it rains, the rubber particles and copper

dust and gas and oil wash off of the streets and are

carried along by runoff in a polluted soup, winding

up in creeks, rivers, bays, and the ocean.

However, when stormwater runoff is collected in a system of

ditches, culverts, and channels and is then discharged into a

stream or river, there is a “discernable, confined and discrete

conveyance” of pollutants, and there is therefore a discharge

from a point source. In other words, runoff is not inherently

a nonpoint or point source of pollution. Rather, it is a non-

point or point source under § 502(14) depending on whether

it is allowed to run off naturally (and is thus a nonpoint

source) or is collected, channeled, and discharged through a

system of ditches, culverts, channels, and similar conveyances

(and is thus a point source discharge).

NEDC v. BROWN 6415

Our caselaw has consistently recognized the distinction

between nonpoint and point source runoff. In Natural

Resources Defense Council v. California Department of

Transportation, 96 F.3d 420, 421 (9th Cir. 1996), we were

asked to enforce an already-issued NPDES permit requiring

a state agency using storm drains “to control polluted storm-

water runoff from roadways and maintenance yards[.]” In

Natural Resources Defense Council v. EPA (“NRDC v.

EPA”), 966 F.2d 1292, 1295 (9th Cir. 1992), we wrote, “This

case involves runoff from diffuse sources that eventually

passes through storm sewer systems and is thus subject to the

NPDES permit program.” In Trustees for Alaska v. EPA, 749

F.2d 549 (9th Cir. 1984), we explicitly agreed with a decision

of the Tenth Circuit, United States v. Earth Sciences, Inc., 599

F.2d 368 (10th Cir. 1978). We wrote:

The [Tenth Circuit] observed that Congress had clas-

sified nonpoint source pollution as runoff caused pri-

marily by rainfall around activities that employ or

create pollutants. Such runoff could not be traced to

any identifiable point of discharge. The court con-

cluded that point and nonpoint sources are not distin-

guished by the kind of pollution they create or by the

activity causing the pollution, but rather by whether

the pollution reaches the water through a confined,

discrete conveyance. Thus, when mining activities

release pollutants from a discernible conveyance,

they are subject to NPDES regulation, as are all

point sources.

749 F.2d at 558 (emphasis added) (internal citation omitted).

Finally, in Environmental Defense Center v. EPA, 344 F.3d

832 (9th Cir. 2003), we wrote: “Storm sewers are established

point sources subject to NPDES permitting requirements. . . .

Diffuse runoff, such as rainwater that is not channeled

through a point source, is considered nonpoint source pollu-

tion and is not subject to federal regulation.” Id. at 841, 842

n.8 (emphasis added) (internal citations omitted).

6416 NEDC v. BROWN

The clarity of the text of § 502(14), as well as our caselaw,

would ordinarily make recourse to legislative history unneces-

sary. The “unambiguously expressed intent of Congress” con-

trols. Chevron, 467 U.S. at 842-43. However, because EPA

relied on the legislative history of the FWPCA in promulgat-

ing the Silvicultural Rule at issue in this case, we recount

some of that history as background to our analysis of the

Rule.

The FWPCA established “distinctly different methods to

control pollution released from point sources and that trace-

able to nonpoint sources.” Pronsolino v. Nastri, 291 F.3d

1123, 1126 (9th Cir. 2002). The Senate Committee elected to

impose stringent permitting requirements only on point

sources because “[t]here is no effective way as yet, other than

land use control, by which you can intercept [nonpoint] runoff

and control it in the way that you do a point source. We have

not yet developed technology to deal with that kind of a prob-

lem.” 117 Cong. Rec. 38825 (Nov. 2, 1971) (statement of

Sen. Muskie).

The House and Senate committees made clear that the term

“point source” was not to be interpreted narrowly. “By the use

of the term ‘discharge of pollutants’ this provision [§ 402]

covers any addition of any pollutant to navigable waters from

any point source.” H.R. Rep. No. 92-911, at 125 (1971). The

Senate Committee Report instructed that

the [EPA] Administrator should not ignore dis-

charges resulting from point sources other than pipe-

lines or similar conduits. . . . There are many other

forms of periodic, though frequent, discharges of

pollutants into the water through point sources such

as barges, vessels, feedlots, trucks and other convey-

ances.

S. Rep. No. 92-414, at 51 (1971). Senator Dole explained his

understanding of the distinction as it related to the problem of

agricultural pollution:

NEDC v. BROWN 6417

Most of the problems of agricultural pollution deal

with non-point sources. Very simply, a non-point

source of pollution is one that does not confine its

pollution discharge to one fairly specific outlet, such

as a sewer pipe, a drainage ditch or a conduit; thus,

a feed-lot would be considered to be a non-point

source as would pesticides and fertilizers.

S. Rep. No. 92-414, at 98-99 (1971) (Supplemental Views of

Sen. Dole).

Congress did not provide the EPA Administrator with dis-

cretion to define the statutory terms. Senator Randolph, the

Chairman of the Senate Committee, explained, “We have

written into law precise standards and definite guidelines on

how the environment should be protected. We have done

more than just provide broad directives [for] administrators to

follow.” 117 Cong. Rec. 38805 (Nov. 2, 1971). Senator Mus-

kie, another major proponent of the legislation, clarified that

EPA would provide “[g]uidance with respect to the identifica-

tion of ‘point sources’ and ‘nonpoint sources.’ ” 117 Cong.

Rec. 38816 (Nov. 2, 1971). However, “[i]f a man-made drain-

age, ditch, flushing system or other such device is involved

and if measurable waste results and is discharged into water,

it is considered a ‘point source.’ ” Id.

[4] Congress also sought to require permits for any activity

that met the legal definition of “point source,” regardless of

feasibility concerns. For example, Congressman Roncalio of

Wyoming proposed an amendment to exempt irrigated agri-

culture from the NPDES permit program because it was “vir-

tually impossible to trace pollutants to specific irrigation

lands, making these pollutants a nonpoint source in most

cases.” 118 Cong. Rec. 10765 (Mar. 29, 1972). Opponents

objected that the amendment would exclude large point

source polluters simply because the channeled water origi-

nally derived from irrigated agriculture. Congressman Waldie

explained:

6418 NEDC v. BROWN

In California there is a vast irrigation basin that

collects all the waste resident of irrigation water in

the Central Valley and places it in a drain— the San

Luis Draining—and transport[s] it several hundreds

of miles and then dumps it into the San Joaquin

River which flows into the estuary and then into San

Francisco Bay. It is highly polluted water that is

being dumped in waters already jeopardized by pol-

lution.

Will the gentleman’s amendment establish that as

a nonpoint source pollution or will it come under the

point source solution discharge?

Id. Congressman Roncalio responded that his amendment

would not require permitting for this type of activity — that

is, that it would redefine these agricultural point sources as

nonpoint source pollution. His amendment was then rejected

on the House floor. See id.

Congress eventually adopted a statutory exemption for

agricultural irrigation in 1977, five years after the passage of

the FWCPA. See CWA § 402(l), 33 U.S.C. § 1342(l) (“The

Administrator shall not require a permit under this section for

discharges composed entirely of return flows from irrigated

agriculture, nor shall the Administrator directly or indirectly,

require any State to require such a permit.”); CWA § 502(14),

33 U.S.C. § 1362(14) (“This term does not include return

flows from irrigated agriculture.”). Congress did so to allevi-

ate EPA’s burden in having to issue permits for every agricul-

tural point source. “The problems of permitting every discrete

source or conduit returning water to the streams from irrigated

lands is simply too burdensome to place on the resources of

EPA.” 123 Cong. Rec. 38956 (Dec. 15, 1977) (statement of

Rep. Roberts). Congress did not, however, grant EPA the dis-

cretion to exempt agricultural discharges from the general

statutory definition of point source discharges. Rather, Con-

gress exempted such discharges by amending the statute.

NEDC v. BROWN 6419

Congress has never granted a similar statutory exemption for

silvicultural discharges from the general definition of point

source discharges.

Despite the foregoing, Defendants contend that stormwater

runoff from logging roads that is collected in a system of

ditches, culverts, and channels, and is then discharged into

streams and rivers, is a nonpoint source discharge. Defendants

contend that the Silvicultural Rule exempts such discharges

from the definition of point source discharge contained in

§ 502(14), and therefore from the NPDES permitting system.

Alternatively, Defendants contend that the 1987 amendments

to the CWA exempted such discharges from the permitting

system. We discuss defendants’ two contentions in turn.

B. The Silvicultural Rule

1. Adoption of the Rule

In 1973, one year after the passage of the FWPCA, EPA

promulgated regulations categorically exempting several

kinds of discharges from the NPDES permit program.

Exempted discharges included discharges from storm sewers

composed entirely of storm runoff uncontaminated by indus-

trial or commercial activity, discharges from relatively small

animal confinement facilities, discharges from silvicultural

activities, and irrigation return flow from point sources where

the flow was from less than 3000 acres. The exemption for

discharges from silvicultural activities provided:

The following do not require an NPDES permit:

...

(j) Discharges of pollutants from agricultural and

silvicultural activities, including irrigation return

flow and runoff from orchards, cultivated crops, pas-

6420 NEDC v. BROWN

tures, rangelands, and forest lands, except that this

exclusion shall not apply to the following:

...

(5) Discharges from any agricultural or

silvicultural activity which have been iden-

tified by the Regional Administrator of the

Director of the State water pollution control

agency or interstate agency as a significant

contributor of pollution.

40 C.F.R. § 125.4 (1975). The Natural Resources Defense

Council challenged the regulations as inconsistent with the

statute. See Natural Res. Def. Council v. Train, 396 F. Supp.

1393 (D.D.C. 1975).

EPA defended the challenged regulations on the ground

“that the exempted categories of sources are ones which fall

within the definition of point source but which are ill-suited

for inclusion in a permit program.” Id. at 1395. The district

court wrote that EPA has authority to clarify by regulation the

definition of nonpoint and point source discharges, but only

so long as its regulations comply with the statutory text. Id.

at 1395-96. In the court’s view, the challenged regulations

categorically exempted “entire classes of point sources from

the NPDES permit requirements.” Id. at 1396. The court

therefore held that the regulations were fatally inconsistent

with the definition contained in § 502(14), writing “that the

Administrator [of the EPA] cannot lawfully exempt point

sources discharging pollutants from regulation under

NPDES.” Id. at 1402.

EPA appealed to the D.C. Circuit. While the appeal was

pending, EPA grudgingly promulgated revised regulations.

For example, in soliciting public comment on a proposal for

a “system for separate agricultural and silvicultural storm

sewers” rule in December 1975, EPA wrote:

NEDC v. BROWN 6421

In promulgating the [earlier] regulations EPA

stated its belief that while some point sources within

the excluded categories may be significant contribu-

tors of pollution which should be regulated consis-

tent with the purposes of the FWPCA, it would be

administratively difficult if not impossible, given

Federal and State resource levels, to issue individual

permits to all such point sources. . . . Essentially,

these [earlier] regulations providing for exemptions

were based on EPA’s view (a view which it contin-

ues to maintain is correct) that most sources within

the exempted categories present runoff-related prob-

lems not susceptible to the conventional NPDES per-

mit program including effluent limitations. EPA’s

position was and continues to be that most rainfall

runoff is more properly regulated under section 208

of the FWPCA [which does not require NPDES per-

mits], whether or not the rainfall happens to collect

before flowing into navigable waters. Agricultural

and silvicultural runoff, as well as runoff from city

streets, frequently flows into ditches or is collected

in pipes before discharging into streams. EPA con-

tends that most of these sources are nonpoint in

nature and should not be covered by the NPDES per-

mit program.

40 Fed. Reg. 56932 (Dec. 5, 1975) (emphasis added).

[5] Two months later, in February 1976, EPA proposed a

revised Silvicultural Rule and solicited public comment. EPA

wrote,

[T]he Agency has carefully examined the relation-

ship between the NPDES permit program (which is

designed to control and eliminate discharges of pol-

lutants from discrete point sources) and water pollu-

tion from silvicultural activities (which tends to

result from precipitation events). It has been deter-

6422 NEDC v. BROWN

mined that most water pollution related to silvicul-

tural activities is nonpoint in nature.

41 Fed. Reg. 6282 (Feb. 12, 1976).

EPA continued:

Those silvicultural activities which are specified

in the regulations (rock crushing, gravel washing,

log sorting and log storage facilities), and are thus

point sources, are subject to the NPDES permit pro-

gram. Only those silvicultural activities that, as a

result of controlled water used by a person, dis-

charge pollutants through a discernible, confined and

discrete conveyance into navigable waters are

required to obtain a § 402 pollution discharge per-

mit.

Id. This passage provides EPA’s central criterion for distin-

guishing between silvicultural point and nonpoint sources.

EPA proposed to characterize discharges of pollutants

through a discernible, confined and discrete conveyance as

point source discharges only when they were “a result of con-

trolled water used by a person.” Under this criterion, the pro-

posed rule named as point source discharges only those

related to “rock crushing, gravel washing, log sorting, [and]

log storage facilities.” Id. 6283 (Proposed Rule); 41 Fed. Reg.

24711 (Jun. 18, 1976) (Final Rule); 40 C.F.R. § 124.85

(1976). Any other silvicultural discharge of pollutants, even

if made through a discernible, confined and discrete convey-

ance, was considered a nonpoint source of pollutants. In

effect, this meant that any natural runoff containing pollutants

was not a point source, even if the runoff was channeled and

controlled through a “discernible, confined and discrete con-

veyance” and then discharged into navigable waters.

In its “response to comments” accompanying the final ver-

sion, EPA provided more general criteria by which to distin-

guish nonpoint from point sources of pollution. It wrote:

NEDC v. BROWN 6423

Basically, nonpoint sources of water pollution are

identified by three characteristics:

(i) The pollutants discharged are induced by natu-

ral processes, including precipitation, seepage, per-

collation [sic], and runoff;

(ii) The pollutants discharged are not traceable to

any discrete or identifiable facility; and

(iii) The pollutants discharged are better con-

trolled through the utilization of best management

practices, including process and planning techniques.

In contrast to these criteria identifying nonpoint

sources, point sources of water pollution are gener-

ally characterized by discrete and confined convey-

ances from which discharges of pollutants into

navigable waters can be controlled by effluent limi-

tations. It is these point sources in the silviculture

category which are most amenable to control

through the NPDES permit program.

41 Fed. Reg. 24710 (Jun. 18, 1976). EPA specifically noted

that the single criterion for point sources—resulting from

“controlled water used by a person”— was underinclusive.

EPA pointed out that some point source discharges take place

“regardless of any [prior] contact with water,” such as dis-

charges of wood chips and bark directly into navigable water.

Id.

[6] However, the actual text of the final version of the Sil-

vicultural Rule was little changed from the version proposed

in February. See 41 Fed. Reg. 24711 (Jun. 18, 1976). The

revised Rule provided in pertinent part:

Silvicultural activities.

6424 NEDC v. BROWN

(a) Definitions. For the purpose of this section:

(1) The term “silvicultural point source” means

any discernible, confined and discrete conveyance

related to rock crushing, gravel washing, log sorting,

or log storage facilities which are operated in con-

nection with silvicultural activities and from which

pollutants are discharged into navigable waters of

the United States.

Comment: This term does not include nonpoint

source activities inherent to silviculture such as nur-

sery operations, site preparation, reforestation and

subsequent cultural treatment, thinning, prescribed

burning, pest and fire control, harvesting operations,

surface drainage, and road construction and mainte-

nance from which runoff results from precipitation

events.

40 C.F.R. § 124.85 (1976). Even though there was no longer

a single criterion for identifying point source discharges, the

same four activities were specified as producing point source

discharges—rock crushing, gravel washing, log sorting and

log storage. Id. And even though there were now three general

criteria for identifying nonpoint sources, the effect of the Rule

was to treat all natural runoff as nonpoint pollution, even if

channeled and discharged through a discernible, confined and

discrete conveyance.

In comments accompanying the proposed Silvicultural Rule

in February 1976, EPA provided, in concise form, its justifi-

cation for the Rule. It wrote:

Technically, a point source is defined as a “discern-

ible, confined and discrete conveyance, including but

not limited to any pipe, ditch [or] channel * * *”

(§ 502(14) of the FWPCA) and includes all such

conveyances. However, a proper interpretation of the

NEDC v. BROWN 6425

FWPCA as explained in the legislative history and

supported by the [district] court in NRDC v. Train is

that not every “ditch, water bar or culvert” is “means

[sic] to be a point source under the Act [FWCPA].”

It is evident, therefore, that ditches, pipes and drains

that serve only to channel, direct, and convey non-

point runoff from precipitation are not meant to be

subject to the § 402 permit program.

41 Fed. Reg. 6282 (Feb. 12, 1976). A sentence-by-sentence

analysis shows the weakness of EPA’s justification.

In the first sentence, EPA wrote that “[t]echnically, a point

source is defined as a ‘confined and discrete conveyance,

including but not limited to any pipe, ditch, [or] channel.’ ”

The words quoted by EPA in this sentence were a direct

(though partial) quotation of the statutory definition of “point

source” contained in § 502(14) of the FWPCA. EPA’s choice

of the word “technically” is somewhat odd and even mislead-

ing; perhaps EPA hoped that the word would diminish the

force of the statutory definition. But whatever its motive, EPA

would have been more accurate if it had written “textually”

instead of “technically.”

In the second sentence, EPA wrote that “a proper interpre-

tation of the FWCPA as explained in the legislative history

and supported by the court in NRDC v. Train is that not every

‘ditch, water bar or culvert’ is ‘mean[t] to be a point source

under the Act [FWCPA].’ ” EPA was putting words into the

district court’s mouth. The district court did not hold that “not

every ‘ditch, water bar or culvert’ is ‘meant to be a point

source.’ ” Rather, the court wrote only that the plaintiff in the

case, NRDC, had not made that argument. See Train, 396 F.

Supp. at 1401 (“NRDC does not contend that every farm

ditch, water bar, or culvert on a logging road is properly

meant to be a point source under the Act.”). Further, and more

important, everyone understands that a “ditch, water bar or

culvert” that does not discharge into navigable waters is not

6426 NEDC v. BROWN

a point source. But the regulation does not exempt only such

ditches, water bars or culverts. Instead, it categorically

exempts collected runoff from silviculture, whether or not

there is a discharge into navigable waters.

[7] Finally, in the last sentence EPA wrote, “It is evident,

therefore, that ditches, pipes and drains that serve only to

channel, direct, and convey nonpoint runoff from precipita-

tion are not meant to be subject to the § 402 permit program.”

The text of § 502(14), quoted in the first sentence of the para-

graph, is flatly inconsistent with this statement. Under

§ 502(14), a pollutant comes from a point source if it is col-

lected and discharged through ditches, pipes, channels, and

similar conveyances. Section 502(14) says nothing, either

explicitly or implicitly, about the source of the water con-

tained in the discharge. Further, even though not every “ditch,

water bar, or culvert” is a point source within the meaning of

the statute, it hardly follows that a system of ditches, pipes

and channels that collects “controlled water used by a person”

and discharges it into a river is a point source, while an identi-

cal system that collects and discharges natural precipitation is

not.

[8] After EPA promulgated the revised Silvicultural Rule,

the Court of Appeals for the D.C. Circuit affirmed the district

court’s disapproval of the 1973 regulations, including the

original Silvicultural Rule. Natural Res. Def. Council v.

Costle, 568 F.2d 1369 (D.C. Cir. 1977). The court did not

review the revised Silvicultural Rule promulgated in 1976.

The court held that EPA did not have the authority categori-

cally to exempt point source discharges. It wrote:

Under the EPA’s interpretation the Administrator

would have broad discretion to exempt large classes

of point sources from any or all requirements of the

FWCPA. This is a result that the legislators did not

intend. Rather they stressed that the FWCPA was a

NEDC v. BROWN 6427

tough law that relied on explicit mandates to a

degree uncommon in legislation of this type.

Id. at 1375.

The court responded to EPA’s argument that a literal inter-

pretation of the FWCPA’s definition of “point source” “would

place unmanageable burdens on the EPA”:

There are innumerable references in the legislative

history to the effect that the Act is founded on the

“basic premise that a discharge of pollutants without

a permit is unlawful and that discharges not in com-

pliance with the limitations and conditions for a per-

mit are unlawful.” Even when infeasibility

arguments were squarely raised, the legislature

declined to abandon the permit requirement.

Id. at 1375-76 (emphasis added). The court concluded:

The wording of the statute, legislative history, and

precedents are clear: the EPA Administrator does not

have authority to exempt categories of point sources

from the permit requirements of § 402. Courts may

not manufacture for an agency a revisory power

inconsistent with the clear intent of the relevant stat-

ute.

Id. at 1377.

[9] Although the D.C. Circuit did not address the revised

Silvicultural Rule in its opinion, its reasoning is no less appli-

cable to the new version of the Rule. The court concluded that

EPA does not have the authority to “exempt categories of

point sources” from the permitting requirements of § 402.

This is so even if EPA contends that the literal terms of the

statute would place “unmanageable burdens” on the agency.

6428 NEDC v. BROWN

The FWCPA was a “tough law” that EPA was not at liberty

to ignore.

2. The Revised Silvicultural Rule

The current text of the revised version of the Silvicultural

Rule is different in only minor respects from the version pro-

mulgated in 1976. In pertinent part, the current version pro-

vides:

(b) Definitions. (1) “Silvicultural point source”

means any discernible, confined and discrete con-

veyance related to rock crushing, gravel washing,

log sorting, or log storage facilities which are oper-

ated in connection with silvicultural activities and

from which pollutants are discharged into waters of

the United States. The term does not include non-

point source silvicultural activities such as nursery

operations, site preparation, reforestation and subse-

quent cultural treatment, thinning, prescribed burn-

ing, pest and fire control, harvesting operations,

surface drainage, or road construction and mainte-

nance from which there is natural runoff.

40 C.F.R. § 122.27.

The text of the CWA distinguishes between point and non-

point sources depending on whether the pollutant is channeled

and controlled through a “discernible, confined and discrete

conveyance.” CWA § 502(14), 33 U.S.C. § 1362(14). The

Silvicultural Rule, by contrast, categorically distinguishes

between the two types of discharges depending on the source

of the pollutant. Under the Rule, “silvicultural point source”

discharges are those discharged through “discernible, con-

fined and discrete conveyance[s],” but only when they are

direct discharges of wood chips, bark, and the like, or dis-

charges resulting from “controlled water used by a person.”

See 41 Fed. Reg. 24710 (Jun. 18, 1976); 41 Fed. Reg. 6282

NEDC v. BROWN 6429

(Feb. 12, 1976). All other discharges of “natural runoff” are

nonpoint sources of pollution, even if such discharges are

channeled and controlled through a “discernible, confined and

discrete conveyance.”

A nonexhaustive list of silvicultural point source discharges

under the Rule includes discharges “related to rock crushing,

gravel washing, log sorting, [and] log storage facilities.” A

nonexhaustive list of silvicultural nonpoint sources of pollu-

tion under the Rule includes “silvicultural activities such as

nursery operations, site preparation, reforestation and subse-

quent cultural treatment, thinning, prescribed burning, pest

and fire control, harvesting operations, surface drainage, or

road construction and maintenance.”

[10] The original Silvicultural Rule, which was struck

down by the district court in Train and on appeal in Costle,

categorically exempted all discharges from silvicultural activ-

ities. The current Rule categorically exempts all discharges

from silvicultural activities resulting from natural runoff. The

categorical exemption in the current Rule is somewhat smaller

than the exemption in the original Rule, but it is a categorical

exemption nonetheless. Indeed, in a later rulemaking proposal

EPA specifically characterized it as a categorical exemption.

See 64 Fed. Reg. 46058, 46077 (Aug. 23, 1999) (“Currently,

runoff from [the list of “non-point source silvicultural activi-

ties”] is categorically excluded from the NPDES program.”).

The question before us is whether the categorical exemption

from the NPDES permit program in the current Rule is based

on a permissible interpretation of § 502(14).

We have dealt with the Silvicultural Rule once before. In

League of Wilderness Defenders/Blue Mountain Diversity

Project v. Forsgren (“Forsgren”), 309 F.3d 1181 (9th Cir.

2002), several environmental groups sued to enjoin unpermit-

ted aerial spraying of insecticide to combat the Douglas Fir

Tussock Moth. Some of the insecticide was sprayed onto the

surface of streams. Plaintiffs contended that the aerial spray-

6430 NEDC v. BROWN

ing was a discharge from a point source requiring an NPDES

permit. Relying on the Silvicultural Rule and on two letters

and a guidance document from EPA, the Forest Service took

the position that the spraying was not a point source dis-

charge, and that a permit was therefore not required. We dis-

agreed with EPA and the Forest Service.

The core of the EPA and Forest Service argument was that

“pest . . . control” was one of the activities listed in the Silvi-

cultural Rule as not constituting a point source discharge. We

wrote:

The Forest Service’s argument fails because the stat-

ute itself is clear and unambiguous. The statutory

definition of point source, “any discernible, confined

and discrete conveyance, including but not limited to

any . . . vessel,” 33 U.S.C. § 1362(14), clearly

encompasses an aircraft equipped with tanks spray-

ing pesticide from mechanical sprayers directly over

covered waters. The Forest Service cannot contra-

vene the will of Congress through its reading of

administrative regulations.

Forsgren, 309 F.3d at 1185-86.

We pointed out that the Rule characterized a pest control

discharge as nonpoint only when it was “silvicultural pest

control from which there is natural runoff.” Id. at 1186

(emphasis in original). If pest control activity resulted in natu-

ral runoff, that runoff was not a point source discharge under

§ 502(14). But it was undisputed in Forsgren that aerial

spraying of pesticide into streams was not “natural runoff.”

We had no occasion to rule on, and did not discuss, whether

silvicultural activities from which there is natural runoff that

is channeled, controlled, and discharged through a “discern-

ible, confined and discrete conveyance” is a point source

under § 502(14).

NEDC v. BROWN 6431

[11] We emphatically “reject[ed] the Forest Service’s

argument that the EPA has the authority to ‘refine’ the defini-

tions of point source and nonpoint source pollution in a way

that contravenes the clear intent of Congress as expressed in

the statute.” Id. at 1190. We wrote:

We agree with the D.C. Circuit that the EPA has

some power to define point source and nonpoint

source pollution where there is room for reasonable

interpretation of the statutory definition. However,

the EPA may not exempt from NPDES permit

requirements that which clearly meets the statutory

definition of a point source by “defining” it as a non-

point source. Allowing the EPA to contravene the

intent of Congress, by simply substituting the word

“define” for the word “exempt,” would turn Costle

on its head.

Id. We now reach the question not reached or discussed in

Forsgren — whether discharge of natural runoff becomes a

point source discharge when it is channeled and controlled

through a “discernible, confined and discrete conveyance” in

a system of ditches, culverts, and channels. We conclude that

it does.

[12] In our view, the answer to the question before us is as

clear as the answer to the questions presented in Costle and

in Forsgren. The CWA prohibits “the discharge of any pollu-

tant by any person” without an NPDES permit. 33 U.S.C.

§ 1311(a). The term “discharge of a pollutant” means “any

addition of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12)(A) (emphasis added). A “point

source” is

any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated animal feeding operation, or

6432 NEDC v. BROWN

vessel or other floating craft, from which pollutants

are or may be discharged.

33 U.S.C. § 1362(14). The definition in no way depends on

the manner in which the pollutant arrives at the “discernible,

confined and discrete conveyance.” That is, it makes no dif-

ference whether the pollutant arrives as the result of “con-

trolled water used by a person” or through natural runoff.

We agree with the analysis of the district court in Environ-

mental Protection Information Center v. Pacific Lumber Co.

(“EPIC”), 2003 WL 25506817 (N.D. Cal.). Relying on Fors-

gren, Judge Patel concluded that stormwater runoff from log-

ging roads that was collected in a system of ditches, culverts,

and channels, and then discharged into protected water, was

a point source discharge requiring an NPDES permit. After an

extensive analysis, the district court wrote:

The water runoff system this action addresses is an

elaborate and extensive one. Blending a variety of

drainage methods, the system covers a substantial

amount of land and addresses a significant amount of

water. Where this runoff system involves “surface

drainage[ ] or road construction from which there is

natural runoff,” section 122.27 [the Silvicultural

Rule] may control. But where the system utilizes the

kind of conduits and channels embraced by section

502(14), section 122.27 does not control: It cannot

control, for one, because section 502(14) of the

CWA trumps section 122.27’s operation, as EPA

may not alter the definition of an existing “point

source.” And it cannot control, for another, because

section 122.27’s own terms are unsatisfied; once

runoff enters a conduit like those listed in section

502(14), the runoff ceases to be the kind of “natural

runoff” section 122.27 expressly targets. In this latter

context, section 122.27 does not—and cannot—

NEDC v. BROWN 6433

absolve silvicultural businesses of CWA’s “point

source” requirements.

Id. at *15 (internal citations omitted).

As pointed out by the district court in EPIC, there are two

possible readings of the Silvicultural Rule. The first reading

reflects the intent of EPA in adopting the Rule. Under this

reading, the Rule exempts all natural runoff from silvicultural

activities such as nursery operations, site preparation, and the

other listed activities from the definition of point source, irre-

spective of whether, and the manner in which, the runoff is

collected, channeled, and discharged into protected water. If

the Rule is read in this fashion, it is inconsistent with

§ 502(14) and is, to that extent, invalid.

[13] The second reading does not reflect the intent of EPA,

but would allow us to construe the Rule to be consistent with

the statute. Under this reading, the Rule exempts natural run-

off from silvicultural activities such as those listed, but only

as long as the “natural runoff” remains natural. That is, the

exemption ceases to exist as soon as the natural runoff is

channeled and controlled in some systematic way through a

“discernible, confined and discrete conveyance” and dis-

charged into the waters of the United States.

[14] Under either reading, we hold that the Silvicultural

Rule does not exempt from the definition of point source dis-

charge under § 512(14) stormwater runoff from logging roads

that is collected and channeled in a system of ditches, cul-

verts, and conduits before being discharged into streams and

rivers.

C. 1987 Amendments to the CWA

Defendants contend in the alternative that even if the dis-

charges from a system of ditches, culverts, and channels are

point source discharges within the meaning of § 502(14), and

6434 NEDC v. BROWN

even if the Silvicultural Rule does not exempt such discharges

from § 502(14), the discharges are nonetheless exempt from

the permitting process because of the 1987 amendments to the

CWA. Defendants made this contention in the district court,

but that court did not decide the question.

We can affirm the decision of the district court on any

ground supported by the record, even one not relied on by that

court. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008). Defendants urge us, if we hold that the Silvicultural

Rule does not exempt the discharges, to affirm the district

court based on the 1987 amendments. No factual development

is necessary given that the district court dismissed under Rule

12(b)(6). The parties have briefed the question in this court.

We therefore reach the question.

1. Congressional Approval or Acquiescence

As a threshold matter, we consider whether, in adopting the

1987 amendments to the CWA, Congress sub silentio

approved of, or acquiesced in, the Silvicultural Rule. We con-

clude that Congress did not.

In some instances, congressional re-enactment of statutes

can be persuasive evidence of approval of longstanding

administrative regulations promulgated under that statute. In

NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75 (1974),

the Court wrote, “[A] court may accord great weight to the

longstanding interpretation placed on a statute by an agency

charged with its administration. This is especially so where

Congress has re-enacted the statute without pertinent change.

In these circumstances, congressional failure to revise or

repeal the agency’s interpretation is persuasive evidence that

the interpretation is the one intended by Congress.” See also

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,

846 (1986) (quoting and paraphrasing Bell Aerospace). But

this case is very different from Bell Aerospace and Schor.

First, in both Bell Aerospace and Schor, the legislative histo-

NEDC v. BROWN 6435

ries made clear that when Congress re-enacted the statutes at

issue it was well aware of the existing administrative interpre-

tation of the statutes. Here, by contrast, there is no indication

that Congress was aware of the Silvicultural Rule when it

adopted the 1987 amendments. There is no mention of, or

even allusion to, the Rule anywhere in the legislative history

of the amendments. Second, in both Bell Aerospace and

Schor, the relevant portions of the statutes at issue were re-

enacted essentially without change. Here, as we explain

below, the 1987 amendments fundamentally changed the stat-

utory treatment of stormwater discharges. Third, the language

of the original and the re-enacted statutes in both Bell Aero-

space and Schor was readily susceptible to the administrative

interpretations of those statutes. Here, by contrast, the rele-

vant statutory language is flatly inconsistent with the Silvicul-

tural Rule.

In other instances, congressional action or inaction can con-

stitute acquiescence in an existing regulation. The Supreme

Court has cautioned strongly against finding congressional

acquiescence. In Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159, 162

(2001), it wrote, “Although we have recognized congressional

acquiescence to administrative interpretations of a statute in

some circumstances, we have done so with extreme care.”

After discussing a case in which there had been congressional

hearings on the precise issue, and in which thirteen bills had

been introduced in unsuccessful attempts to overturn the regu-

lation, the Court wrote, “Absent such overwhelming evidence

of acquiescence, we are loath to replace the plain text and

original understanding of a statute with an amended agency

interpretation.” Id. at 169-70, n.5. Here, there is no evidence

whatsoever of congressional acquiescence in the Silvicultural

Rule, let alone “overwhelming evidence.”

2. The 1987 Stormwater Amendments

[15] Congress amended the CWA in 1987 to deal specifi-

cally with stormwater discharges. Pub. L. No. 100-4, 101 Stat.

6436 NEDC v. BROWN

7 (1987). Congress added § 402(p) to the CWA, establishing

a “phased and tiered approach” to NPDES permitting of

stormwater discharges. See 55 Fed. Reg. 47994 (Nov. 16,

1990) (describing 33 U.S.C. § 1342(p)). Section 402(p) fun-

damentally redesigned the CWA’s approach to stormwater

discharges.

Under the framework created by the FWCPA in 1972, EPA

was required to establish a permitting system for all point

source discharges of stormwater. Senator Durenberger

explained that the Conference Bill that would become the

1987 amendment focused on stormwater point sources.

The [FWPCA] of 1972 required all point sources,

including stormwater dischargers, to apply for

NPDES permits within 180 days of enactment by

1973. Despite this clear directive, EPA has failed to

require most stormwater point sources to apply for

permits which would control the pollutants in their

discharge.

132 Cong. Rec. 32380, 32400 (Oct. 16, 1986). Senator Staf-

ford, the Chairman of the Committee on Environment and

Public Works reiterated, “EPA should have developed this

[stormwater] program long ago. Unfortunately, it did not.”

132 Cong. Rec. 32381 (Oct. 16, 1986).

Congress recognized that EPA’s difficulties stemmed in

part from the large number of stormwater sources falling

within the definition of a point source. See, e.g., 131 Cong.

Rec. 19846, 19850 (Jul. 22, 1985) (statement of Rep. Row-

land) (“Under existing law, the [EPA] must require [NPDES]

permits for anyone who has stormwater runoff on their prop-

erty. What we are talking about is potentially thousands of

permits for churches, schools, residential property, runoff that

poses no environmental threat[.]”); 131 Cong. Rec. 15616,

15657 (Jun. 13, 1985) (Statement of Sen. Wallop) (“[EPA

regulations] can be interpreted to require everyone who has a

NEDC v. BROWN 6437

device to divert, gather, or collect stormwater runoff and

snowmelt to get a permit from EPA as a point source. . . .

Requiring a permit for these kinds of stormwater runoff con-

veyance systems would be an administrative nightmare.”).

In § 402(p), adopted as part of the 1987 amendments, Con-

gress required NPDES permits for the most significant

sources of stormwater pollution under so-called “Phase I” reg-

ulations. See 133 Cong. Rec. 983, 1006 (Jan. 8, 1987) (state-

ment of Rep. Roe) (“[Section 402(p)] establishes an orderly

procedure which will enable the major contributors of pollu-

tants to be addressed first, and all discharges to be ultimately

addressed in a manner which will not completely overwhelm

EPA’s capabilities.”). Section 402(p) lists five categories of

stormwater discharges, including discharges “associated with

industrial activity,” that are covered in Phase I. 33 U.S.C.

§ 1342(p)(2)(B). NPDES permits are required for all five cat-

egories of discharges. Id. §§ 1342(p)(1)-(2). A permit was

required for such discharges by 1990. Id. § 1342(p)(4)(A).

All remaining stormwater discharges are to be covered by

“Phase II” regulations. During Phase II, EPA is to study

stormwater discharges not covered by Phase I and to issue

regulations based on its study. Id. § 1342(p)(5)-(6). In 1999,

EPA promulgated a Phase II regulation requiring NPDES per-

mits for discharges from small municipal storm systems and

small construction sites. We upheld most of that regulation in

Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir.

2003), and remanded for further proceedings. EPA has not yet

responded to the remand.

Stormwater discharges from churches, schools and residen-

tial properties, through rain gutters or otherwise, and from

other relatively de minimus sources, are covered under Phase

II rather than Phase I. It is within the discretion of EPA to

promulgate Phase II regulations requiring, or not requiring,

permits for such discharges.

6438 NEDC v. BROWN

3. Phase I Stormwater Regulations

In 1990, EPA promulgated “Phase I” regulations for the

storm water discharges specified in § 402(p). 55 Fed. Reg.

47990 (Nov. 16, 1990); 40 C.F.R. § 122.26. For discharges

“associated with industrial activity,” which require NPDES

permits, EPA’s regulations provide:

Storm water discharge associated with industrial

activity means the discharge from any conveyance

that is used for collecting and conveying storm water

and that is directly related to manufacturing, process-

ing or raw materials storage areas at an industrial

plant. The term does not include discharges from

facilities or activities excluded from the NPDES pro-

gram under this part 122.

40 C.F.R. § 122.26(b)(14). The last sentence of this regulation

refers to the Silvicultural Rule, thereby purporting to exempt

from the definition of “discharges associated with industrial

activity” any activity that is defined as a nonpoint source in

the Silvicultural Rule. See id.

The preamble to the Phase I regulations makes clear EPA’s

intent to exempt nonpoint sources as defined in the Silvicul-

tural Rule from the permitting program mandated by § 402(p).

The preamble provides:

The definition of discharge associated with industrial

activity does not include activities or facilities that

are currently exempt from permitting under NPDES.

EPA does not intend to change the scope of 40 CFR

122.27 in this rulemaking. Accordingly, the defini-

tion of “storm water discharge associated with indus-

trial activity” does not include sources . . . which are

excluded under 40 CFR 122.27.

55 Fed. Reg. 47990, 48011 (Nov. 16, 1990).

NEDC v. BROWN 6439

[16] In the 1987 amendments, Congress exempted many

stormwater discharges from the NPDES permitting process.

However, Congress made clear in § 402(p) that it did not

exempt “discharges associated with industrial activity.” 33

U.S.C. § 1342(p)(2)(B). Indeed, Congress specifically man-

dated that EPA establish a permitting process for such dis-

charges. See 33 U.S.C. § 1342(p)(4)(A) (“[T]he Administrator

shall establish regulations setting forth the permit application

requirements for stormwater discharges described in para-

graphs (2)(B) [“discharge[s] associated with industrial activi-

ty”] and (2)(C).” (emphasis added)). In NRDC v. EPA, 966

F.2d 1292 (9th Cir. 1992), we struck down a part of EPA’s

Phase I regulations exempting point source discharges from

construction sites of less than five acres. We wrote, “[I]f con-

struction activity is industrial in nature, and EPA concedes

that it is, EPA is not free to create exemptions from permitting

requirements for such activity.” Id. at 1306. Similarly, if silvi-

cultural activity is “industrial in nature,” § 402(p) requires

that discharges from such activity obtain NPDES permits.

[17] Industries covered by the Phase I “associated with

industrial activity” regulation are defined in accordance with

Standard Industrial Classifications (“SIC”). The applicable

(and unchallenged) regulation provides that facilities classi-

fied as SIC 24 are among “those considered to be engaging

in ‘industrial activity.’ ” 40 C.F.R. § 122.26(b)(14)(ii). It is

undisputed that “logging,” which is covered under SIC 2411

(part of SIC 24), is an “industrial activity.” SIC 2411 defines

“logging” as “[e]stablishments primarily engaged in cutting

timber and in producing . . . primary forest or wood raw mate-

rials . . . in the field.”

The regulation further defines the term “stormwater dis-

charge associated with industrial activity” as follows:

For the categories of industries identified in this sec-

tion, the term includes, but is not limited to, storm

water discharges from industrial plant yards; imme-

6440 NEDC v. BROWN

diate access roads and rail lines used or traveled by

carriers of raw materials, manufactured products,

waste material, or by-products used or created by

the facility; material handling sites; . . . .

40 C.F.R. § 122.26(b)(14)(ii) (emphasis added).

The Timber Defendants contend that logging roads are not

“immediate access roads” because they are not confined to the

immediate area of the site where the logging takes place. We

disagree. The Timber Defendants misunderstand the meaning

of the term “immediate” as it is used in the regulations. The

preamble to the Phase I regulations provides that “immediate

access roads” means “roads which are exclusively or primar-

ily dedicated for use by the industrial facility.” 55 Fed. Reg.

47990, 48009 (Nov. 16, 1990).

The Timber Defendants also contend that logging roads are

not “primarily dedicated” for use by the logging companies.

Again, we disagree. We recognize that logging roads are often

used for recreation, but that is not their primary use. Logging

companies build and maintain the roads and their drainage

systems pursuant to contracts with the State. Logging is also

the roads’ sine qua non: If there were no logging, there would

be no logging roads.

Finally, the Timber Defendants contend that, even if the

logging industry is classified by the Phase I rule and SIC 2411

as industrial, the logging sites are not “industrial facilities”

because they are not typical industrial plants. Therefore,

according to the Timber Defendants, any roads serving log-

ging sites cannot be the “immediate access roads” covered by

this rule. We continue to disagree. The definition of a “facili-

ty” engaging in “industrial activity” is very broad. The appli-

cable Phase I rule provides that many industrial facilities

beyond traditional industrial plants “are considered to be

engaging in ‘industrial activity,’ ” including mines, landfills,

NEDC v. BROWN 6441

junkyards, and construction sites. 40 C.F.R.

§ 122.26(b)(14)(iii), (v), (x).

EPA’s comments to the Phase I rules explain the breadth of

the definition:

In describing the scope of the term “associated with

industrial activity”, several members of Congress

explained in the legislative history that the term

applied if a discharge was “directly related to manu-

facturing, processing or raw materials storage areas

at an industrial plant.”

55 Fed. Reg. at 48007. However, EPA stated that it was not

limiting the coverage of the rule to discharges referenced in

this legislative history. It explained:

Today’s rule clarifies the regulatory definition of

“associated with industrial activity” by adopting the

language used in the legislative history and supple-

menting it with a description of various types of

areas that are directly related to an industrial process

(e.g., industrial plant yards, immediate access roads

and rail lines, drainage ponds, material handling

sites, sites used for the application or disposal of pro-

cess waters, sites used for the storage and mainte-

nance of material handling equipment, and known

sites that are presently or have been in the past used

for residual treatment, storage or disposal).

Id.

[18] We therefore hold that the 1987 amendments to the

CWA do not exempt from the NPDES permitting process

stormwater runoff from logging roads that is collected in a

system of ditches, culverts, and channels, and is then dis-

charged into streams and rivers. This collected runoff consti-

tutes a point source discharge of stormwater “associated with

6442 NEDC v. BROWN

industrial activity” under the terms of § 502(14) and § 402(p).

Such a discharge requires an NPDES permit. As we explained

in NRDC v. EPA, 966 F.2d at 1306, “if [logging] activity is

industrial in nature, and EPA concedes that it is [see SIC

2411], EPA is not free to create exemptions from permitting

requirements for such activity.” The reference to the Silvicul-

tural Rule in 40 C.F.R. § 122.26(b)(14) does not, indeed can-

not, exempt such discharges from EPA’s Phase I regulations

requiring permits for discharges “associated with industrial

activity.”

4. Effect of Remand in Environmental Defense Center,

Inc. v. EPA

In Environmental Defense Center, 344 F.3d at 863, in 2003

we remanded to EPA a portion of its Phase II stormwater reg-

ulations to allow EPA to consider, inter alia, whether storm-

water discharges from logging roads should be included in

Phase II regulations. Amicus United States suggests that we

delay ruling on the question whether stormwater discharges

from logging roads must obtain permits under § 402(p) —

that is, under Phase I regulations — until EPA has responded

to the remand. We have just held that § 402(p) provides that

stormwater runoff from logging roads that is collected in a

system of ditches, culverts, and channels is a “discharge asso-

ciated with industrial activity,” and that such a discharge is

subject to the NPDES permitting process under Phase I.

Whether EPA might, or might not, provide further regulation

of stormwater runoff from logging roads in its Phase II regu-

lations does not reduce its statutory obligation under § 402(p).

We therefore see no reason to wait for EPA’s action in

response to our remand in Environmental Defense Center.

D. Summary

In some respects, we are sympathetic with EPA. When the

FWCPA was passed in 1972, EPA was faced with a near-

impossible task. The breadth of the definition of point source

NEDC v. BROWN 6443

discharge contained in § 502(14) meant that EPA was sud-

denly required to establish an administrative system under

which enormous numbers of discharges would be subject to

a new and untested permitting process. Faced with this task,

EPA exempted several large categories of point source dis-

charges from the process in order to avoid the burden imposed

by the breadth of the definition contained in § 502(14).

Recognizing the burden on EPA, as well as on some of the

entities subject to the NPDES permitting requirement, Con-

gress subsequently narrowed the definition of point source

discharge by providing specific statutory exemptions for cer-

tain categories of discharges. For example, in 1977, Congress

exempted return flows from irrigated agriculture to alleviate

the EPA’s burden in having to permit “every source or con-

duit returning water to the streams from irrigated lands,”

which was what the text of the statute had required. 123

Cong. Rec. 38949, 38956 (Dec. 15, 1977) (Statement of Rep.

Roberts); see CWA §§ 402(l), 502(14), 33 U.S.C. §§ 1341(l),

1362(14). Then in 1987, ten years later, Congress comprehen-

sively revised stormwater regulation. It did so in part because

the existing broad definition of point source discharge risked

creating an “administrative nightmare” for the EPA. 131

Cong. Rec. 15616, 15657 (Jun. 13, 1985) (Statement of Sen.

Wallop). It also did so in part because under the existing defi-

nition a vast number of de minimus stormwater sources, many

of which posed no environmental threat, required NPDES

permits. As part of the 1987 amendments, Congress enacted

§ 402(p), which gives discretion to EPA to exclude from the

permitting process de minimus sources of stormwater pollu-

tion.

However, in cases where Congress has not provided statu-

tory exemptions from the definition of point source, federal

courts have invalidated EPA regulations that categorically

exempt discharges included in the definition of point source

discharge contained in § 502(14). The most directly relevant

example is Costle, in which the D.C. Circuit invalidated the

6444 NEDC v. BROWN

original version of the Silvicultural Rule which had exempted

all discharges from silvicultural activities. Other examples

include National Cotton Council of America v. EPA, 553 F.3d

927, 940 (6th Cir. 2009) (invalidating EPA rule exempting

pesticide residue from permitting requirements because “the

statutory text of the Clean Water Act forecloses the EPA’s

Final Rule”); Northern Plains Resource Council v. Fidelity

Exploration and Development Co., 325 F.3d 1155, 1164 &

n.4 (9th Cir. 2003) (refusing to grant deference to EPA’s

approval of Montana’s permitting program that exempted

groundwater pollutants from permitting requirements because

“[o]nly Congress may amend the CWA to create exemptions

from regulation”); NRDC v. EPA, 966 F.2d 1292, 1304-06

(9th Cir. 1992) (holding arbitrary and capricious EPA rule

exempting various types of light industry and construction

sites of less than five acres from permitting requirements).

Not all examples involve invalidation of recently promulgated

regulations. In Northwest Environmental Advocates v. EPA,

537 F.3d 1006 (9th Cir. 2008), we invalidated an EPA regula-

tion that exempted sewage discharges from vessels from the

permitting process. In that case, the invalidated EPA regula-

tion had been on the books since 1973.

Congress intentionally passed a “tough law.” Costle, 568

F.2d at 1375. But Congress did not intend that the law impose

an unreasonable or impossible burden. Congress has carefully

exempted certain categories of point source discharges from

the statutory definition. For those discharges that continue to

be covered by the definition, the permitting process is not

necessarily onerous, either for EPA or for an entity seeking a

permit. For example, in appropriate circumstances a discharge

may be allowed under a “general permit” requiring only that

the discharger submit a “notice of intent” to make the dis-

charge. As we explained in Natural Resources Defense Coun-

cil v. EPA, 279 F.3d 1180, 1183 (9th Cir. 2002):

NPDES permits come in two varieties: individual

and general. An individual permit authorizes a spe-

NEDC v. BROWN 6445

cific entity to discharge a pollutant in a specific

place and is issued after an informal agency adjudi-

cation process. See 40 C.F.R. §§ 122.21, 124.1-

124.21, 124.51-124.66. General permits, on the other

hand, are issued for an entire class of hypothetical

dischargers in a given geographical region and are

issued pursuant to administrative rulemaking proce-

dures. See id. §§ 122.28, 124.19(a). General permits

may appropriately be issued when the dischargers in

the geographical area to be covered by the permit are

relatively homogenous. See id. § 122.28(a)(2). After

a general permit has been issued, an entity that

believes it is covered by the general permit submits

a “notice of intent” to discharge pursuant to the gen-

eral permit. Id. § 122.28(b)(2). A general permit can

allow discharging to commence upon receipt of the

notice of intent, after a waiting period, or after the

permit issuer sends out a response agreeing that the

discharger is covered by the general permit. Id.

§ 122.28(b)(2)(iv).

Until now, EPA has acted on the assumption that NPDES

permits are not required for discharges of pollutants from

ditches, culverts, and channels that collect stormwater runoff

from logging roads. EPA has therefore not had occasion to

establish a permitting process for such discharges. But we are

confident, given the closely analogous NPDES permitting

process for stormwater runoff from other kinds of roads, that

EPA will be able to do so effectively and relatively expedi-

tiously.

Conclusion

For the foregoing reasons, we conclude that stormwater

runoff from logging roads that is collected by and then dis-

charged from a system of ditches, culverts, and channels is a

point source discharge for which an NPDES permit is

required.

6446 NEDC v. BROWN

We therefore REVERSE the district court’s grant of

Defendants’ motion to dismiss, and we REMAND to the dis-

trict court for further proceedings consistent with this opinion.