Record and brief — Decker v. Northwest Environmental Defense Center

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'NY, SUPREME COURT

“eee” OF THE UNITED STATES

No. 11-338

Vide 11-347

Title Doug Decker. in His Official Capacity as Oregon State Forester, et al. Petitioners

Northwest Environmenta! Defense Center

Docketed September 16. 2011

Linked with 11A146

Lower Ct: United States Court of Appeals for the Ninth Circuit

Case Nos. (07-35266)

Decision Date May 17, 2011

Questions

Presented

~~~Date~~~ ~~~~~~~ Proceedings and Orders

Jul 29 2011 Application (11A146) to extend the time to file a petition for a writ of certiorari from

August 15, 2011 to September 14. 2011, submitted to Justice Kennedy.

Aug 32011 Application (11A146) granted by Justice Kennedy extending the time to file unti!

September 14. 2011.

Sep 13 2011 Petition for a writ of certiorari filed. (Response due October 17, 2011)

Sep 21 2011 Consent to the fiing of amicus curiae briefs. in suport of either party or of neither party

received from counsel! for the petitioners.

Sep 23 2011 Consent to the filing of amicus curiae briefs, in support of either party or of neither party

received from counse! for the respondent. VIDED.

Sep 30 2011 Order extending time to file response to petition to and including November 18, 2011.

Oct 12 2011 Brief amici curiae of Nationa! Association of Counties. et al. filed. VIDED.

Oct 142011 Brief amici curiae of Alabama Forestry Association, et al. filed. VIDED

Oct 14 2011 Brief amici curiae of Arkansas, et al. filed VIDED.

Oct 17 2011 Brief amici curiae of National Alliance of Forest Owners. et al filed VIDED

Oct 17 2011 Brief amici curiae of American Forest Resource Council, et al. filed. VIDED

Oct 17 2011 Brief amici curiae of Mountain States Lega! Foundation

Nov 10 2011 Brief of respondent Northwest Environmental Defense Center in opposition filed VIDED.

Nov 22 2011 DISTRIBUTED for Conference of December 9, 2011

Nov 22 2011 Reply of petitioners Marvin Brown, in His Official Capacity as Oregon State Forester, et

al. filed. (Distributed)

Dec 12 2011 The Solicitor General is invited to file a brief in this case expressing the views of the

United States. Justice Breyer took no part in the consideration or decision of this

petition

Mar 24 2012 Brief amicus curiae of United States filed. VIDED

Jun 4 2012

Jun 5 2012

Jun 25 2012

Jul 12 2012

Jul 18 2012

Jul 23 2012

Jul 25 2012

Supplemental! brief of respondent Northwest Environmental Defense Center filed

VIDED

Supplemental! brief of petitioners Marvin Brown, in His Official Capacity as Oregon State

Forester, et al. filed

DISTRIBUTED for Conference of June 21. 2012

Petition GRANTED The petition for a writ of certiorari in No. 11-347 is granted. The

Cases are consolidated and a total of one hour is allotted for oral argument. Justice

Breyer took no part in the consideration or decision of this petition.

The time to file the joint appendix and petitioners’ briefs on the merits is extended to and

including August 21. 2012. VIDED.

The time to file respondents’ brief on the merits is extended to and including October 2

2012 VIDED.

Consent to the filing of amicus curiae briefs in support of either party or neither party

received from counsel! for the respondents. VIDED

Consent to the filing of amicus curiae briefs, in support of either party or of neither party

received from counsel for the petitioners.

The time to file the joint appendix and petitioners’ briefs on the merits is further extended

to and including August 28, 2012. VIDED

The time to file respondents’ brief on the merits is further extended to and including

October 16, 2012. VIDED

Aug 22 2012 Brief amici curiae of Association of Oregon Counties, et al. filed. VIDED.

Aug 28 2012 Brief of petitioners Doug Decker. in his official capacity as Oregon State Forester. et al

filed.

Aug 28 2012 Joint appendix filed. (Jt. Appendix in 2 volumes) VIDED.

Aug 28 2012 Brief amicus curiae of The Ruffed Grouse Society filed VIDED

Aug 29 2012 Brief amici curiae of American Forest Resource Council, et al. filed. VIDED.

Aug 30 2012 Brief amici curiae of Nationa! Governors Association. et al filed VIDED.

Aug 31 2012 Brief amici curiae of Nationa! Association of Home Builders, et al. filed

Sep 4 2012

Brief amicus curiae of United States filea. VIDED

Brief amici curiae of Law Professors filed. VIDED.

Brief amicus curiae of Chamber of Commerce of the United States of America filed

VIDED.

Brief amici curiae of Arkansas, et al. filed VIDED.

Brief amici curiae of National Alliance of Forest Owners. et al. filed VIDED

Brief amicus curiae of Mountain States Lega! Foundation filed VIDED. (Distributed)

Brief amici curiae of Society of American Foresters. et a! filed. VIDED.

Brief amici curiae of Pacific Legal Foundation, et al. filled. VIDED

Sep 14 2012 SET FOR ARGUMENT ON Monday, December 3, 2012.

Sep 28 2012 Record received from U.S.C.A. for 9th Circuit (1 envelope)

Sep 28 2012 Record from U.S D.C. for District of Oregon is electronic

Oct 16 2012

Oct 17 2012

Brief of respondent Northwest Environmenta! Defense Center. et a!. filed VIDED.

(Distributed)

CIRCULATED.

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae

and for divided argument filed. VIDED

Oct 23 2012 Brief amici curiae of Law Professors on Section 1369(b) Jurisdiction filed. VIDED

(Distributed)

Oct 23 2012 Brief amici curiae of Western Division of the American Fisheries Society. et al. filed

VIDED. (Distributed)

Oct 23 2012 Brief amici curiae of Robert Wayland, et a! filed. VIDED. (Distributed)

Oct 23 2012 Brief amicus curiae of Dr. Kevin Boston filed. VIDED. (Distributed)

Oct 23 2012 Brief amici curiae of Pacific Coast Federation of Fishermen's Associations. et al. filed

VIDED. (Distributed)

Oct 23 2012 Brief amici curiae of Environmenta! Protection Information Center. et al. filed VIDED

(Distributed)

Oct 23 2012 Brief amici curiae of Law Professors on the Propriety of Administrative Deference filed

VIDED. (Distributed)

Oct 23 2012 Brief amici curiae of Northwest Environmental Advocates. et al. filed. VIDED.

(Distributed)

Oct 30 2012 Letter dated October 30, 2012, with attached Eleventh Circuit Decision, received from

counsel! for respondent Northwest Environmenta! Defense Center. Filed. VIDED.

(Distributed)

Nov 13 2012 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae

and for divided argument GRANTED. Justice Breyer took no part in the consideration or

decision of this motion.

Nov 14 2012 Reply of petitioners Doug Decker, in his official capacity as Oregon State Forester, et al.

filed. (Distributed)

Nov 30 2012 Letter from counsel! for petitioners Georgia-Pacific West, Inc., et al. received and

distributed. VIDED

Dec 32012 Argued. For petitoners: Timothy S. Bishop, Chicago, Ill; and Malcolm L. Stewart. Deputy

Solicitor General, Department of Justice, Washington, D. C. (for United States, as

amicus curiae.) For respondent: Jeffrey L. Fisher. Stanford, Cal.

Dec 20 2012 Motion to file a supplemental brief after argument filed by petitioners Doug Decker. in his

Official capacity as Oregon State Forester. et al. (Distributed)

Jan 82013 Motion to file a supplemental! brief after argument filed by petitioners GRANTED. The

motion of petitioners in No. 11-338 for leave to file a supplemental brief after argument

is granted. The other parties to these cases and the Solicitor Genera! may file

supplemental! briefs, not to exceed 3,000 words each. addressing the effect of the

Environmental Protection Agency s amendment to its stormwater-discharge rule on or

before Tuesday, January 22, 2013. Justice Breyer took no part in the consideration or

decision of this motion. Justice Breyer took no part in the consideration or decision of

this motion. VIDED

PETITION

FOR

WRIT OF

CERTIORARI

Lormcs oF mE cer

In the Supreme Court

of the United States

DOUG DECKER, the Oregon State Forester, in his

official capacity; JOHN BLACKWELL; SYBIL

ACKERMAN; PETER HAYES; CALVIN

MUKUMOTO; JENNIFER PHILLIPPI; GARY

SPRINGER and STEVE WILSON, the members of

the Oregon Board of Forestry, in their official

capacities,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER, an Oregon non-profit corporation,

Respondent.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN R. KROGER

Attorney General of Oregon

*MARY H. WILLIAMS

Solicitor General

ERIN C. LAGESEN

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

mary.williams@doj.state.or.us

Counsel for Petitioners

*Counsel of Record

ES RE ST TED AIS; SSDI TIES

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTIONS PRESENTED

(1) Congress has authorized citizens dissatisfied

with the Environmental Protection Agency’s (EPA’s)

rules implementing the Clean Water Act’s (CWA’s)

National Pollutant Discharge Elimination System

(NPDES) permitting program to seek judicial review

of those rules in the Courts of Appeals. See 33 U.S.C.

§ 1369(b). Congress further specified that those rules

cannot be challenged in any civil or criminal enforce-

ment proceeding. Consistent with the terms of the

statute, multiple circuit courts have held that if a rule

is reviewable under 33 U.S.C. § 1369, it is exclusively

reviewable under that statute and cannot be chal-

lenged in another proceeding.

Did the Ninth Circuit err when, in conflict with

those circuits, it held that a citizen may bypass judi-

cial review of an NPDES permitting rule under 33

U.S.C. § 1369, and may instead challenge the validity

of the rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required

NPDES permits for stormwater discharges “associ-

ated with industrial activity,” and delegated to EPA

the responsibility to determine what activities quali-

fied as “industrial” for purposes of the permitting

program. EPA determined that stormwater from log-

ging roads and other specified silvicultural activities

is non-industrial stormwater that does not require an

NPDES permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that storm-

water from logging roads is industrial stormwater

under the CWA and EPA’s rules, even though EPA

has determined that it is not industrial stormwater?

PARTIES TO THE PROCEEDING

Petitioners, who were defendants-appellees below,

are the Oregon State Forester and the members of

the Oregon Board of Forestry, in their official capaci-

ties. In accordance with Supreme Court Rule 35(3),

petitioners have used the names of the persons cur-

rently holding those offices in the caption of this peti-

tion and in the petition itself.

Other interested parties are defendants-appellees

below Georgia-Pacific West LLC, Hampton Tree

Farms, Inc., Stimson Lumber Company, and Swanson

Group, Inc; and intervenor defendants-appellees be-

low American Forest and Paper Association, Oregon

Forest Industries Council, and Tillamook County,

Oregon. These parties are filing a separate certiorari

petition.

Respondent, who was plaintiff-appellant below, is

the Northwest Environmental Defense Center, an

Oregon non-profit corporation.

TABLE OF CONTENTS

Page

ne Or I cricicnnscncsonsssncssosecansannsnontne i

PARTIES TO THE PROCEEDING ............................ iii

I isi siinniaiectriniiniabibduneneninnanmimantenie 1

I isiiistiasitinleietinnsidbiedieaiianiibiebiniameniiainindaminans 1

STATUTORY AND REGULATORY

PR ee Bt re ic ccecccccccccsccccccescccccccccncecsccene 2

STATEMENT OF THE CASE..................ccceceeeeeeeeeeeees 2

A. The regulation of stormwater runoff from

logging roads under the Clean Water Act and

EPA’s silvicultural and stormwater rules. ......... 2

1. Congress enacted the Clean Water Act to

establish a uniform, nationwide system for

protecting the waters of the United States..... 2

2. To implement the CWA, EPA adopted the

silvicultural rule to identify which

silvicultural activities require NPDES

permits and which do not. ...................cceeceeeeeee 3

3. Congress adopted amendments to the CWA

to address water pollution caused by

i cctcscnsminnticcnstetansnmmminsmmnnnnenemiens 6

4. EPA implemented the 1987 stormwater

amendments by adopting the Phase I and

the Phase II stormwater rules. ....................... 8

B. Plaintiff filed a citizen suit alleging that

defendants are violating the CWA by

discharging stormwater runoff from

logging roads without NPDES permits,

and the district court dismissed for failure

re istncrtetinciniininntseaiiatatadttatintiidiimainmnionse 10

C. The Ninth Circuit reversed, holding that

stormwater runoff from logging roads that

ultimately is discharged into the waters of

the United States is a discharge “associated

with industrial activity” that requires an

NPDES permit whenever it is collected in

roadside ditches and culverts. ...................:.0008+ 12

REASONS FOR GRANTING THE PETITION ........ 17

A. The Ninth Circuit’s jurisdictional ruling

creates a circuit split and should be

reviewed because it undermines Congress’s

objective of establishing a uniform system

for protecting the nation’s waters. .................... 19

B. The Ninth Circuit’s ruling that stormwater

discharges from logging roads require

NPDES permits displaces the longstanding

scheme for regulating runoff. .....................0000+ 24

C. The Ninth Circuit’s ruling that stormwater

discharges from logging roads are stormwater

discharges associated with industrial activity

under EPA’s stormwater rule conflicts with

this Court’s established methodology for

interpreting administrative rules. .................... 28

D. The Ninth Circuit’s ruling that stormwater

discharges from logging roads are discharges

associated with industrial activity under 33

U.S.C. § 1342(p) conflicts with this Court’s

established methodology for reviewing an

agency’s interpretation of a statute that it

II cscitciresntnsscisivnsigmnenidibcngnintininadinntimenesieeninns 30

Se ciccnrnincensnnenttenmsscininntacmmintennstadtideninigned 33

APPENDIX

Ninth Circuit Opinion ......................2..eeeeeeeeee App. 1

District Court Opinion ............ccccccccsccccscecees App. 53

Statutes and Regulations.........................0.. App. 78

TABLE OF AUTHORITIES

Page

Cases Cited

Am. Mining Cong. v. EPA,

965 F.2d 759 (9th Cir. 1992) ........ eee eee eee eeeeeeees 20

Arkansas v. Oklahoma,

EC ene 2, 22, 31

Cent. Hudson Gas and Elec. Corp. v. EPA,

587 F.2d 549 (2d Cir. 1978)................ccecseeeceseeeeeeees 20

Chase Bank USA, N.A. v. McCoy,

562 U.S. __, 131 S. Ct. 871,

Pe een 28

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984) .............ccceceeceessceeee 18, 30, 31, 33

Del. Valley Citizens Council for Clean Air v. Davis,

932 F.2d 256 (3rd Cir. 1991).............. ccc cee eee eteeeeeeeee 20

E.I. DuPont de Nemours & Co. v. Train,

I iii ici eterinnenitins 19

Envtl. Def. Ctr., Inc. v. EPA (EDC),

344 F.3d 832 (9th Cir. 2003)................ cee eee ee neon 10

Maier v. EPA,

114 F.3d 1032 (10th Cir. 1997).............0......06. 20, 21

Mayo Foundation for Med. Educ.

& Research v. United States,

__ U.S. _., 131 S. Ct. 704,

Be ee ls ie I IED evciceccssnnseccensetsnnntccensinis 30, 31

Morton v. Ruiz,

SE eR eC ee 31

Nat'l Cotton Council v. EPA,

553 F.3d 927 (6th Cir. 2009) .............cccccc eee eeseeceneees 20

Nat'l Pork Producers Council v. EPA,

635 F.3d 738 (5th Cir. 2011) ........... cece ec eec eee eens 20

Natural Res. Def. Council v. EPA,

673 F.2d 400 (D.C. Cir. 1982) ...................- 20, 21, 24

Natural Res. Def. Council v. EPA,

966 F.2d 1292 (9th Cir. 1992) ........ cece ec cee cee eeee es i)

Natural Res. Def. Council, Inc. v. Costle,

568 F.2d 1369 (D.C. Cir. 1977) ............c.ccceeceeesee es 3, 4

Natural Res. Def. Council, Inc. v. Train,

396 F. Supp. 1393 (D.D.C. 1975), ........................ 3, 4

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

476 F. Supp. 2d 1188 (D. Or. 2007) ......................... 1

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

617 F.3d 1176 (9th Cir. 2010).................. ce cce eee ee eee 12

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

640 F.3d 1063 (9th Cir. 2011) ........... ccc eee eee eee eee e ee 1

Talk Am., Inc. v. Mich. Bell Tel. Co.,

__ US. __, 131 S. Ct. 2254

180 L. Ed. 2d 96 (2O11) 00... cee eee e cece eeeeeeeeeeees 28

United Steelworkers v. Oregon Steel Mills, Inc.,

322 F.3d 1222 (10th Cir. 2003) .......00.. 0. cece cece eee 20

Vili

Constitutional and Statutory Provisions

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ee ie I cliincilaieseniinciaesisnenidiibiciahiethaicemuensieiniuiitesin 7, 8, 32

Be I Oe Be itichtc scactectanstetsnasenbisscaiendpamnenviiabiicbadiadinlihde 16, 30

33 U.S.C. § 1342(p)......... i, 2, 11, 15, 16, 18, 30, 31, 33

ee ey Oe icttancccrensiciniainnscianutiecdssiivesuciinies 6

ee re Oe SN aiiiiicnccsnnsisicinamtnnaiiiiondpmniasiiuniia 6

a ee Oe I iaiitniseriscensscepniniansshensicieduveitiveniosesiiui 6

i cain nnierensiitesdingnesenicetideteanianiiaiins 6

Se ee ee ciincrtinricisntsensoniiepernnnianaessiniibidioeninsnibiiie 6

Gs eT snes itncsicinitinidiaepiiatbandipndapanenianbipatil 2

ee Si I vinshincinntcirrtdectesinicnnietesaestnnenicionnmnaniintinasil 2,3

ae Mi ishiibcisntintdiintinpipinnninnnietstinieanieeaiaeeun 10

ne ee iaiiiiiconiehitisiensiestniiieitanieininnanienniiaiananiabeninnl 2

ee ie BE ciiincnsinsinaretinriniteninninsniipaniddaminniipedsitneiaadeaiin 2

33 U.S.C. § 1369.............. i, 9, 13, 17, 19, 20, 21, 22, 23

ee Oe EE icitcnttnncsncnisntainndmminiiensiitunminnianiasin i, 2

es ee itiinniinnsenisticcnighininnieieiieminiabiitisiciata 21, 24

Be ee Oe I ectenticticinscinisnincidinsniimsitiitnaiaaniasiiatniin 19

Se a: We SERIE vnciicncnnicicnmsionnsacnniacsinsasenseiinns 19

ey Se ci otesiinsinstnnnmseecittieaieieibibencibanintuibaiind 19

a es I, Oe ED ds iciincnncntannitincsaninendiceenaiichin 25

Administrative Rules

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a I hthctitccnincicrenssncnstescininnnnnintin 10

OTE ae FS BD wicticcrtrcerescsnsscncsncnsocsscsssstccsosonees 2

40 C.F.R. § 122.26(a)(9)(iM(A)-(B)...........ceeeescceeeeeeeeeeees 10

40 C.F.R. § 122.26(b)(14)................... i, 2, 9, 16, 29, 31

BD GBs BB id occcccccccnceseccscccccsccesceseseseeesss 8

Rae is Ob IED bidkccencstocntaacseenaseneonsnonintenenes 2,5, 9, 32

ae OS UD tnt scieneccnscccsnnsnccincnisscienimentiei 32

Sr ae © ee Ca iicenccnciciescnnsecasoencsnssnincesnsncssens 4

GOGAT Ee G BE Ce vccccctccescccccccnsccescsccescsennccensses 3

Or. Admin. R. 629-624-0330 ................ccccsccssseersenseees 25

Or. Admin. R. 629-625-0000(3) ............. cc ceceeeeceeeeeeeees 25

Or. Admin. R. 629-625-O0200(2) .............:ccscssseeereeeeeees 25

Or. Admin. R. 629-625-O0300(2) ..............cceceeseeeeeeee eens 25

Or. Admin. R. 629-625-0430...................cccecsccccesereeees 26

Or. Admin. R. 629-625-0600 .................cccrcrccscccerccceees 26

Or. Admin R. 629-625-0700 ................ccccssecsssscsscrccsees 26

Or. Admin. R. 629-635-0100(7)(a) ..............cccceseee eee es 26

On. AGRE. TE. GRGSO-GE AD ..cccccccccescvscccessccccceessocsseses 26

Or. Admin. KR. G29-GS5-O1D10...........cccrcrccccccscroserescccoees 26

Cs: I, Ti A. Gy Ge GE vccccccnncccconccscccscccsssses 26

Con. CER, TE. GR. GE, GW. GFW. cccccscccccevcecccccssessescsene 26

Other Authorities

1 Env’t & Natural Res. Pol’y Div.,

Cong, Research Serv., A Legislative History

of the Water Quality Act of 1987 ............ccccecceee0s 7,32

2A Legislative History of the Water

TILT ST EE RT Re OREO OTE 31

Ne: HI sr aiinsicnncriedstnsainiimiios sxeteiidonteilanleaeeninianipninent 11

Webdster’s Third New Int'l Dictionary

eB cendninisintncislionmaiscnnatiounanennsntiinnns 3

PETITION FOR WRIT OF CERTIORARI

Petitioners Doug Decker, the Oregon State For-

ester, John Blackwell, the chair of the Oregon Board

of Forestry, and Sybil Ackerman, Peter Hayes, Calvin

Mukumoto, Jennifer Phillippi, Gary Springer, and

Steve Wilson, the members of the Oregon Board of

Forestry, respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported.

Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir.

2011).' It is included in the appendix to this petition.

(Pet. App. 1-52). The opinion of the district court is

reported. Nw. Envtl. Def. Ctr. v. Brown, 476 F. Supp.

2d 1188 (D. Or. 2007). It is included in the appendix.

(Pet. App. 53-77).

JURISDICTION

The court of appeals filed its original opinion

on August 17, 2010. The court of appeals denied re-

hearing and issued a superseding opinion on May 17,

2011. In Case No. 11A146, Justice Kennedy granted

petitioners’ application for an extension of time in

which to file the petition for certiorari, allowing for

the petition to be filed on or before September 14,

2011. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

* The Ninth Circuit’s original opinion was reported at

617 F.3d 1176 (9th Cir. 2010).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The relevant statutory and regulatory provisions

are reproduced in the appendix to this petition. The

pertinent statutory provisions involved are 33 U.S.C.

§ 1342(p); 33 U.S.C. § 13862(12) and (14); 33 U.S.C.

§ 1365(a) and (f); and 33 U.S.C. § 1369(b) (Pet. App.

78-87). The pertinent regulatory provisions are 40

C.F.R. § 122.26(a)(1) and (b)(14); and 40 C.F.R.

§ 122.27 (Pet. App. 88-96).

STATEMENT OF THE CASE

A. The regulation of stormwater runoff from

logging roads under the Clean Water Act and

EPA’s silvicultural and stormwater rules.

1. Congress enacted the Clean Water Act to

establish a uniform, nationwide system

for protecting the waters of the United

States.

Congress enacted the CWA in 1972. Its objective

was to create a uniform system for protecting the wa-

ters of the United States from pollution. See, e.g., Ar-

kansas v. Oklahoma, 503 U.S. 91, 110 (1992) (CWA’s

objective was “authorizing the EPA to create and

manage a uniform system of interstate water pollu-

tion regulation.”). Before the enactment of the CWA,

protection of the waters was handled by individual

states, leading to wide discrepancies in the levels of

water protection across the country. See S. Rep. No.

92-414, at 1-11 (1971).

To accomplish its objective, Congress, among other

things, created a permitting requirement for “point

source” discharges, i.e., discharges of pollutants

through “any discernible, confined and discrete con-

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

channel, tunnel, conduit, well, discrete fissure, con-

tainer, rolling stock, concentrated animal feeding op-

eration, or vessel or other floating craft....” 33

U.S.C. § 1362(14). The permitting program for point

source discharges is the National Pollutant Discharge

Elimination System (NPDES) permitting program.

2. To implement the CWA, EPA adopted the

silvicultural rule to identify which silvi-

cultural activities require NPDES permits

and which do not.

EPA promulgated rules to implement the NPDES

permitting program, including rules clarifying when

permits were and were not required. One of those

rules was an early version of the current silvicultural

rule.* It stated that, in general, all discharges con-

nected to silvicultural activities—both point source

and nonpoint source discharges—were exempt from

the NPDES permit requirements. 40 C.F.R § 125.4(j)

(1975). The United States District Court for the Dis-

trict of Columbia invalidated that rule in Natural

Res. Def. Council, Inc. v. Train, 396 F. Supp. 1393

(D.D.C. 1975), affd sub nom. Natural Res. Def. Coun-

2 “Silviculture” means “a phase of forestry that

deals with the establishment, development, reproduc-

tion, and care of forest trees.” Webster’s Third New

Intl Dictionary at 2120 (unabridged ed. 1993).

cil, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). The

court reasoned that EPA lacked authority “to exempt

entire classes of point sources from the NPDES per-

mit requirements.” Id. at 1396.

Although the court invalidated the rule, it recog-

nized that Congress had delegated to EPA the power

to determine precisely what silvicultural activities

constitute point sources subject to the NPDES per-

mitting program: “it appears that Congress intended

for the agency to determine, at least in the agricul-

tural and silvicultural areas, which activities consti-

tute point and nonpoint sources.” Jd. at 1401-1402.°

EPA promulgated a new silvicultural rule in 1976

to replace the invalidated one. Unlike the old rule,

the new rule did not exempt all discharges from silvi-

cultural activities from the permitting program. In-

stead, it defined what silvicultural activities were

point sources and what were not, explaining that

those activities resulting in discharges of runoff from

“precipitation events” were nonpoint source activities.

The rule further stated that only those silvicultural

activities defined as point sources were subject to the

NPDES permitting requirements. 40 C.F.R. § 124.85

(1976). Specifically, it provided that “silvicultural

point source” did not “include nonpoint source activi-

ties inherent to silviculture such as. . . surface drain-

° The D.C. Circuit reiterated the same point on appeal:

“We agree with the district court ‘that the power to define

point and nonpoint sources is vested in EPA and should be

reviewed by the court only after opportunity for full

agency review and examination.” Costle, 568 F.2d at 1382

(quoting Train, 396 F. Supp at 1396).

age, and road construction and maintenance from

which runoff results from precipitation events.” Jd.

The current version of the silvicultural rule is

nearly identical to the rule promulgated in 1976. Last

amended in 1980, it provides, in part:

(a) Permit requirement. Silvicultural point

sources, as defined in this section, as point

sources subject to the NPDES permit program.

(b) Definitions.

(1) Silvicultural point source means any dis-

cernible, confined and discrete conveyance re-

lated to rock crushing, gravel washing, log sort-

ing, or log storage facilities which are operated

in connection with silvicultural activities and

from which pollutants are discharged into wa-

ters of the United States. The term does not in-

clude non-point source silvicultural activities

such as nursery operations, site preparation,

reforestation and subsequent cultural treat-

ment, thinning, prescribed burning, pest and

fire control, harvesting operations, surface

drainage, or road construction and mainte-

nance from which there is natural runoff. How-

ever, some of these activities (such as stream

crossing for roads) may involve point source

discharges of dredged or fill material which

may require a CWA section 404 permit (See 33

CFR 209.120 and part 233).

40 C.F.R. § 122.27. No one sought judicial review of

the validity of the silvicultural rule when it was

promulgated in 1976, or when it was amended in

1980.

3. Congress adopted amendments to the CWA

to address water pollution caused by

stormwater.

In 1987, Congress amended the CWA to more ef-

fectively regulate water pollution caused by stormwa-

ter. In the amendments, Congress addressed both

point source and nonpoint source discharges of

stormwater.

With respect to point source discharges of storm-

water, the amendments created a two-phase scheme

for the development of NPDES permitting programs

for those stormwater discharges. The amendments

required EPA to develop permitting programs within

a few years for five specific types of stormwater dis-

charges (“Phase I”) and prohibited EPA from requir-

ing permits for other types of stormwater discharges

(“Phase II”) before October 1, 1994. 33 U.S.C. §

1342(pX1), (pX2)-(4) (2006). One of the five types of

Phase I stormwater discharges is the category of “dis-

chargel[s] associated with industrial activity.” 33

U.S.C. § 1342(p)(2)(B). The amendments directed

EPA to conduct a study to identify the types of

stormwater discharges that were not Phase I dis-

charges (i.e., the Phase II discharges), 33 U.S.C. §

1342(p)(5), and to “establish a comprehensive pro-

gram to regulate such designated sources.” 33 U.S.C.

§ 1342(pX6).

At the same time that it established its two-phase

program to address stormwater discharges from point

source activities, Congress enacted 33 U.S.C. § 1329

to better guard against water pollution resulting from

stormwater associated with nonpoint-source activi-

ties. Congress recognized that stormwater from non-

point-source activities, including, among other things,

runoff from logging roads and timber harvesting op-

erations, caused a substantial amount of water pollu-

tion, undermining the objective of the CWA.* Con-

gress further recognized that such water pollution re-

sulting from nonpoint source activities is best regu-

lated at a local level. To that end, 33 U.S.C. § 1329

requires states to develop management programs for

* See 1 Env’'t & Natural Res. Pol’y Div., Cong. Research

Serv., A Legislative History of the Water Quality Act of

1987, at 353 (statement of Mr. Bonker) (nonpoint program

“targets one of the most significant, and most elusive,

causes of water pollution: nonpoint source pollution from

poor forestry and farming practices....”) {hereinafter

Legislative History of the Water Quality Act of 1987); 1 id.

at 483 (statement of Mr. Durenberger) (nonpoint source

program targets “runoff from farms and cities, construc-

tion sites and timber cutting operations”); 1 id. at 498

(statement of Mr. Simpson) (“For the first time we have

included a provision in the Clean Water Act related to

non-point source pollution that comes from farm lands,

timber operations, and other sources of runoff which are

not considered point-sources.”); 2 id. at 639-41 (statement

of Mr. Durenberger) (new nonpoint source program re-

quires development of management programs to manage

nonpoint source pollution, including that from silviculture;

management practices for reducing runoff from silvicul-

tural areas include “careful road placement, culverting,

grassing of abandoned roads and skid trails).

nonpoint-source pollution and report to EPA on the

best management practices used to reduce water pol-

lution from nonpoint sources. See generally 33 U.S.C.

§ 1329. ‘

4. EPA implemented the 1987 stormwater

amendments by adopting the Phase I and

the Phase II stormwater rules.

As required by the 1987 amendments, EPA prom-

ulgated additional rules to govern stormwater dis-

charges. It first promulgated its Phase I rule to iden-

tify what stormwater discharges were subject to the

Phase I permitting requirements. In the rule, EPA

identified what activities qualify as “industrial activ-

ity” for purposes of the stormwater permitting re-

quirements. Among other things, EPA specified that

“(flacilities classified as Standard Industrial Classifi-

cation[] 24 (except 2434)” are “considered to be engag-

ing in ‘industrial activity” under the rule. 40 C.F.R.

§ 122.26(b)(14)(ii). Logging and other wood products

businesses are listed under Standard Industrial Clas-

sification 24.

Although the rule provides that activities identi-

fied in Standard Industrial Classification 24 fall

within the definition of “industrial activity,” EPA also

states in the rule that not all activities listed in Stan-

dard Industrial Classification 24 qualify as “indus-

trial activity” for the purpose of the Phase I stormwa-

ter rule. 40 C.F.R. § 122.26(b)(14Xii). In particular,

EPA excluded those silvicultural activities defined as

“nonpoint source” activities in the silvicultural rule

from the definition of “industrial activity”:

Storm water discharge associated with indus-

trial activity means the discharge from any

conveyance that is used for collecting and con-

veying storm water and that is directly related

to manufacturing, processing or raw materials

storage areas at an industrial! plant. The term

does not include discharges from facilities or

activities excluded from the NPDES program

under this part 122.

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

EPA explained in the preamble to the Phase I regula-

tions that the term “industrial activity” excludes

those silvicultural activities defined to be nonpoint

sources by 40 C.F.R. § 122.27: “the definition of ‘storm

water discharge associated with industrial activity

does not include sources that may be included under

[Standard Industrial Classification] 24, but which are

excluded under 40 CFR 122.27.” 55 Fed. Reg. 47,990,

48,011 (Nov. 16, 1990).

The validity of the Phase I stormwater rule was

challenged on judicial review under 33 U.S.C. § 1369

in Natural Res. Def. Council v. EPA, 966 F.2d 1292

(9th Cir. 1992). No one contested the validity of EPA’s

determination that those activities defined by the sil-

vicultural rule as “nonpoint source silvicultural ac-

tivities” were not “industrial activity.” See generally

id. The Ninth Circuit upheld the Phase I rule in most

respects, but invalidated it to the extent that it ex-

empted certain construction sites from the Phase I

permit requirements. Jd. at 1306.

EPA subsequently promulgated Phase II stormwa-

ter regulations. In them, EPA created permit re-

quirements for two additional types of stormwater

discharges, but did not include stormwater discharges

from logging roads (or any other silvicultural storm-

water discharges) in those rules. 40 C.F.R.

§ 122.26(a)(9)(iA)-(B); see also Envtl. Def. Ctr., Inc.

v. EPA (EDC), 344 F.3d 832, 842-43, 860-63 (9th Cir.

2003) (explaining development of Phase II rules). In

2003, on judicial review of the Phase II regulations,

the Ninth Circuit directed EPA to evaluate further

whether stormwater discharges from forest roads

should be regulated under Phase II, holding that the

1987 amendments to the CWA triggered an obligation

for the EPA to analyze forest roads in its program to

protect water quality under § 402(p)6) (the provision

requiring Phase II regulation). EDC, 344 F.3d at 861-

62. EPA has not responded to that remand order.

B. Plaintiff filed a citizen suit alleging that de-

fendants are violating the CWA by discharg-

ing stormwater runoff from logging roads

without NPDES permits, and the district

court dismissed for failure to state a claim.

Plaintiff filed this action as a citizen suit under 33

U.S.C. § 1365. Plaintiff alleged that state defendants

own or operate two logging roads (Trask Road and

Sam Downs Road) in Tillamook County, Oregon, and

that private defendants maintain and harvest timber

along those two roads. (Pet. App. 56). Plaintiff further

alleged that defendants are violating the CWA by dis-

charging stormwater runoff from those logging roads

without NPDES permits. (Pet. App. 56). Plaintiff con-

tended that stormwater runoff from those logging

roads is runoff “associated with industrial activity,”

as defined by 40 C.F.R. § 122.26(b)(14) that therefore

requires a permit under EPA’s Phase I rule and 33

U.S.C § 1342(p). (Pet. App. 56, 64-65; C.R. 7, First

Amended Complaint 17-21).

Tillamook County, which owns and operates the

Trask Road, intervened as a defendant in the case, as

did the Oregon Forest Industries Council and the

American Forest and Paper Association. Defendants

and intervenor-defendants then moved to dismiss un-

der Federal Rule of Civil Procedure 12(b)(6). (Pet.

App. 55-56). Defendants argued that EPA’s silvicul-

tural rule and stormwater rule each provide that

stormwater runoff from logging roads does not re-

quire NPDES permits, even when the runoff is col-

lected in roadside ditches and culverts and ultimately

discharged into the waters of the United States. (Pet.

App 66-67). EPA submitted an amicus brief explain-

ing that its silvicultural rule and its stormwater rule

mean that no NPDES permits are required for

stormwater runoff from logging roads. (Pet. App. 56,

71-72; C.R. 44, United States Amicus Curiae Brief).

The district court granted the motion to dismiss. It

ruled that the silvicultural rule, as interpreted by

EPA, establishes that the stormwater discharges

from logging roads alleged in the complaint do not re-

quire NPDES permits. (Pet. App. 71-72). The court

did not address whether EPA’s stormwater rule also

operates to exclude from the NPDES permitting pro-

gram the stormwater discharges alleged in the com-

plaint. (Pet. App. 72). Plaintiff appealed.

C. The Ninth Circuit reversed, holding that

stormwater runoff from logging roads that

ultimately is discharged into the waters of

the United States is a discharge “associated

with industrial activity” that requires an

NPDES permit whenever it is collected in

roadside ditches and culverts.

On appeal, plaintiff asserted that stormwater dis-

charges from logging roads are discharges “associated

with industrial activity” under the stormwater rule,

as it had in the district court; plaintiff also asserted

that the rules were invalid to the extent that they

provided that the alleged stormwater discharges from

logging roads did not require NPDES permits. (Plain-

tiff-Appellant’s Opening Br. 10-14, 27-28, 52-53;

Plaintiff-Appellant’s Reply Br. 31-35). EPA again sub-

mitted an amicus brief confirming its longstanding

view that, under the silvicultural and stormwater

rules, an NPDES permit is not required for stormwa-

ter discharges from logging roads. (United States

Amicus Curiae Br. 28-32, Nov. 17, 2007).

The Ninth Circuit reversed the district court. It

concluded that EPA’s stormwater and silvicultural

rules are invalid to the extent the rules specify that

NPDES permits are not required for stormwater run-

off from logging roads that is collected in ditches and

culverts. Nw. Envtl. Def. Ctr. v. Brown, 617 F.3d 1176

(9th Cir. 2010). Defendants filed petitions for panel

rehearing with a suggestion for rehearing en banc.

While the petitions for rehearing were pending, the

court requested that the parties respond to questions

about its jurisdiction to invalidate EPA’s rules im-

plementing the NPDES permitting program in a citi-

zen suit. (Pet. App. 8). The United States submitted

another amicus brief, arguing that 33 U.S.C. § 1369

usually would preclude the court from reviewing the

validity of EPA’s rules in a citizen suit, but that it did

not do so in this case because, in the United States’

view, plaintiff would not have been aware of EPA’s

interpretation of the challenged rules before EPA

filed its amicus briefs in this case. (Pet. App. 8-10).

The court denied the petitions for rehearing, but

vacated its original opinion and issued a superseding

opinion in which it again reversed the judgment of

the district court. (Pet. App. 4). The Ninth Circuit

first addressed whether it had jurisdiction to review

the validity of EPA’s silvicultural and stormwater

rules in this citizen suit. (Pet. App. 8-10). Recognizing

that 33 U.S.C. § 1369 ordinarily provides the exclu-

sive avenue for challenging the validity of EPA’s rules

implementing the NPDES permitting system, the

court nonetheless held 33 U.S.C. § 1369 did not pre-

clude it from reviewing the validity of EPA’s silvicul-

tural and stormwater rules. (Pet. App. 8-10). The

court reasoned that before EPA filed its amicus briefs

in this case, plaintiff could not have known that EPA

interpreted its rules to exclude from the NPDES per-

mitting program stormwater discharges from logging

roads and their associated ditches and culverts. (Pet.

App. 9). Plaintiff thus could not have sought review of

EPA’s rules when they were promulgated. (Pet. App.

9). As a result, the court concluded that the challenge

to EPA’s rules could proceed in this citizen suit, and

did not have to be brought in a judicial review pro-

ceeding under 33 U.S.C. § 1369. (Pet. App. 8-10).

Next, the court addressed whether the silvicul-

tural rule established that the stormwater discharges

from logging roads alleged in the complaint did not

require NPDES permits. The court recognized that

EPA interprets the silvicultural rule to exclude

stormwater discharges from logging roads from the

NPDES permitting system even when that water is

collected and channeled in roadside ditches and cul-

verts. (Pet. App. 36). It also acknowledged that EPA’s

interpretation of the rule is reasonable. (Pet. App. 36,

acknowledging that EPA’s interpretation of its silvi-

cultural rule is one of two “possible” interpretations).

However, it concluded that the rule, as interpreted by

EPA, is invalid, and thus does not excuse defendants

from obtaining NPDES permits for the stormwater

discharges alleged in the complaint.® (Pet. App. 36-

37).

° The court initially stated that it did not need to de-

termine affirmatively what the silvicultural rule meant,

reasoning that if the rule means what EPA says it means,

then it is invalid, but if the rule means what plaintiff con-

tends it means, it does not exempt runoff from logging

roads from the NPDES permitting program if that runoff

is collected in ditches and culverts. (Pet. App. 36-37).

However, the court subsequently acknowledged that it was

invalidating EPA’s rules, by observing that courts previ-

ously had invalidated similar EPA rules, and by recogniz-

ing that “[uJntil now, EPA has acted on the assumption

that NPDES permits are not required fer discharges of

pollutants from ditches, culverts, and chagnels that collect

The court next addressed whether NPDES per-

mits were required for stormwater discharges from

logging roads under EPA’s stormwater rule and 33

U.S.C. § 1342(p). It concluded that permits are re-

quired, rejecting EPA’s contrary interpretations of the

rule and statute. (Pet. App. 42-47). In so doing, the

court employed an unclear interpretive methodology.

The court did not analyze whether EPA reasonably

interpreted its stormwater rule when it concluded

that the silvicultural activities defined as “nonpoint

source silvicultural activities” in the silvicultural rule

did not constitute “industrial activity” under the

stormwater rule. (See generally Pet. App. 42-47). The

court also did not analyze whether it was reasonable

for EPA to construe the undefined phrase “industrial

activity” in 33 U.S.C. § 1342(p) to exclude stormwater

from logging road maintenance, construction, and

drainage. (See generally Pet. App. 42-47). The court

did not attempt to determine what Congress intended

by the phrase “industrial activity.” (See generally Pet.

App. 42-48). Instead, the court appears to have rea-

soned as follows:

e EPA’s silvicultural rule is invalid to the extent

it excludes stormwater runoff from logging

roads from the NPDES permitting program

when that runoff is collected in roadside drain-

age ditches and culverts;

stormwater runoff from logging roads,” and stating that it

expected EPA to “expeditiously” establish a permitting

system. (Pet. App. 48-52).

e Because of the invalidity of the silvicultural

rule, EPA’s stormwater rule is invalid to the

extent that it states that discharges excluded

from the NPDES permit program under the

silvicultural rule do not qualify as “industrial

activity”; therefore

e Those silvicultural activities defined as “non-

point source silvicultural activities” in the sil-

vicultural rule necessarily constitute “indus-

trial activity” under the stormwater rule and

33 U.S.C. § 1342(p) because

(1) 40 C.F.R. § 122.26(b14) references Stan-

dard Industrial Classification 24;

(2) logging is one of the activities listed in

Standard Industrial Classification 24;

(3) When the invalid reference to the sil-

vicultural rule is excised from 40 C.F.R.

§ 122.26(b)(14), then all activities listed

in Standard Industrial Classification 24,

including logging, are “industrial activ-

ity” under both 40 C.F.R. § 122.26 and

33 U.S.C. § 1342.

(Pet. App. 42-48).

On the basis of that reasoning, the court held that

stormwater discharges from logging roads are dis-

charges “associated with industrial activity” under 40

C.F.R. 3 122.26(b)(14) and 33 U.S.C. § 1342 that re-

quire Phase I stormwater permits. (Pet. App. 48).

The court concluded by pointing out other cases in

which courts had invalidated NPDES permitting

rules, and by summarizing its expectations of how

non-party EPA should respond to its decision:

Until now, EPA has acted on the assumption

that NPDES permits are not required for dis-

charges 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 proc-

ess for stormwater runoff from other kinds of

roads, that EPA will do so effectively and rela-

tively expeditiously.

(Pet. App. 48-52).

REASONS FOR GRANTING THE PETITION

The petition should be granted for four reasons.

First, the Ninth Circuit’s ruling that it had juris-

diction to review plaintiffs challenge to the validity of

EPA’s silvicultural rule and stormwater rule in a citi-

zen suit creates a circuit split; other circuits have

held that challenges to the validity of EPA’s rules

must be brought exclusively under 33 U.S.C. § 1369.

That jurisdictional ruling warrants review now be-

cause it undermines Congress’s primary objective in

enacting the CWA: establishing a uniform system for

protecting the nation’s waters. Allowing EPA’s per-

mitting rules to be invalidated in citizen suits to

which EPA is not party creates a significant risk of

conflicting decisions on the validity of those rules,

which will result in inconsistent permitting require-

ments across the country.

Second, the Ninth Circuit’s ruling displaces the

longstanding system for regulating pollution caused

by stormwater runoff from logging roads. The court’s

ruling will require affected states to shift from regu-

lating logging-road stormwater under state forest

practices acts to yet-to-be designed NPDES permit-

ting programs. Designing the new permit required by

the Ninth Circuit’s decision will consume a substan-

tial amount of state resources, especially in light of

the fact that EPA need not take action in response to

the decision. Because Congress did not intend to re-

quire the regulatory shift mandated by the Ninth Cir-

cuit, the petition should be granted to ensure that

limited governmental resources are preserved for the

purpose of protecting the country’s waters in the

manner Congress intended, rather than expended de-

veloping a permitting program that Congress did not

intend.

Third, the Ninth Circuit’s methodology for con-

struing EPA’s stormwater rule conflicts with this

Court’s established methodology for the interpreta-

tion of regulations. The petition should be granted be-

cause the Ninth Circuit’s failure to adhere to this

Court’s methodology caused it to interpret the storm-

water rule incorrectly, and to create a permit re-

quirement that EPA did not intend.

Fourth, the Ninth Circuit’s methodology for re-

viewing EPA’s interpretation of 33 U.S.C. § 1342(p)

conflicts with this Court’s decision in Chevron uv.

Natural Res. Def. Council. Had the Ninth Circuit ad-

hered to Chevron, it would have interpreted the CWA

differently. Because the CWA, when interpreted un-

der Chevron, effectuates Congress’s intent, and be-

cause the CWA, as interpreted by the Ninth Circuit,

conflicts with that intent, the petition should be

granted.

A. The Ninth Circuit’s jurisdictional ruling cre-

ates a circuit split and should be reviewed

because it undermines Congress’s objective

of establishing a uniform system for protect-

ing the nation’s waters.

The petition should be granted because the Ninth

Circuit’s ruling that a court has jurisdiction in a citi-

zen suit to invalidate an EPA rule implementing the

NPDES permitting program creates a circuit split.

The court’s ruling conflicts with the rulings of other

circuits that the judicial review provisions of 33 USC

§ 1369 provide the exclusive mechanism for review of

the validity of EPA’s rules implementing the NPDES

permitting syste...

33 U.S.C. § 1369(b1E) and (F) provide that the

Courts of Appeals have jurisdiction to review “the

Administrator’s action .. . in approving or promulgat-

ing any effluent limitation or other limitation under

section 1311, 1312, 1316, or 1345 of this title, [and] in

issuing or denying any permit under section 1342 of

this title.” 33 U.S.C. § 1369(b)(2) further specifies

that “Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) of this subsection shall not be subject to ju-

dicial review in any civil or criminal proceeding for

enforcement.”

As this Court and the Courts of Appeals (including

the Ninth Circuit) have recognized, those provisions

confer jurisdiction on the Courts of Appeals to review

the validity of EPA’s regulations implementing the

NPDES permitting system. E.J. DuPont de Nemours

& Co. v. Train, 430 U.S. 112 (1977); Nat'l Pork Pro-

ducers Council v. EPA, 635 F.3d 738 (5th Cir. 2011);

Nati Cotton Council v. EPA, 553 F.3d 927, 933 (6th

Cir. 2009); Maier v. EPA, 114 F.3d 1032, 1037-38

(10th Cir. 1997); Am. Mining Cong. v. EPA, 965 F.2d

759, 763 (9th Cir. 1992); Natural Res. Def. Council v.

EPA, 673 F.2d 400 (D.C. Cir. 1982); Cent. Hudson

Gas and Elec. Corp. v. EPA, 587 F.2d 549 (2d Cir.

1978). More significantly, other circuits have held

that where the Courts of Appeals would have jurisdic-

tion to review an EPA regulation under 33 U.S.C. §

1369, that jurisdiction is exclusive. Maier, 114 F.3d at

1037-38; Natural Res. Def. Council v. EPA, 673 F.2d

400 (D.C. Cir. 1982); Cent. Hudson Gas and Elec.

Corp., 587 F.2d 549. In other words, as both the

Tenth Circuit and the Third Circuit have explained in

construing the near-identical review provisions of the

Clean Air Act, when a citizen seeks to challenge the

adequacy of the standards promulgated by EPA, the

citizen must seek judicial review of those standards

in a circuit court of appeals, and cannot challenge

their validity in a citizen suit. United Steelworkers v.

Oregon Steel Millis, Inc., 322 F.3d 1222, 1225-26 (10th

Cir. 2003); Del. Valley Citizens Council for Clean Air

v. Davis, 932 F.2d 256, 265 (3rd Cir. 1991). That is

because the purpose of a citizen suit is to enforce EPA

standards, not invalidate them. Del. Valley Citizens

Council, 932 F.2d at 265; see also 33 U.S.C. § 1365

(explaining that citizen suit may be brought to en-

force EPA’s requirements under the CWA). Put yet

another way, when a citizen’s complaint is that EPA,

through its NPDES regulations, is not administering

the CWA properly, the citizen must seek judicial re-

view of EPA’s regulations under 33 U.S.C. § 1369. By

contrast, when a citizen does not contest EPA’s regu-

lations, but wants to enforce them against a regu-

lated party, a citizen suit is proper.

Notwithstanding other circuits’ recognition that

33 U.S.C. § 1369 provides the exclusive mechanism

for reviewing the validity of EPA’s rules administer-

ing the NPDES permitting system, the Ninth Circuit

held that it had jurisdiction to review plaintiffs chal-

lenge to the validity of EPA’s rules in a citizen suit,

even though EPA was not a party, and even though

the court had no rulemaking record before it on which

to evaluate the bases for EPA’s rulemaking choices.®

§ The Ninth Circuit concluded that the fact that plain-

tiff could not have known how EPA interpreted its rules

before EPA filed its amicus briefs in this case permitted

plaintiff to bypass the exclusive jurisdictional provisions of

33 U.S.C. § 1369. (Pet. App. 8-10). That ruling confuses

the issue of the proper timing of a challenge to the validity

of EPA’s regulations with the issue of proper forum for re-

viewing the validity those regulations. Natural Res. Def.

Council v. EPA, 673 F.2d at 404 (distinguishing between

timing of rule challenges and forum for rule challenges).

Thus, even if the Ninth Circuit is correct that plaintiff

could not have brought its challenge earlier, plaintiff is not

excused from bringing its challenge under 33 U.S.C. §

1369. Rather, plaintiff was required to seek review of

EPA’s rules under 33 U.S.C. § 1369 once it became aware

By so holding, the court created a circuit split as to

the exclusivity of jurisdiction under 33 U.S.C. § 1369.

Although the Ninth Circuit is the only circuit to

rule that 33 U.S.C. § 1369 does not provide the exclu-

sive mechanism for challenging the validity of EPA’s

NPDES permitting rules, the ruling warrants review

now. That is because it poses a significant threat to

the accomplishment of Congress’s objective in prom-

ulgating the CWA. By holding that EPA’s rules may

be invalidated in citizen suits in which EPA need not,

and often is not, a party, the Ninth Circuit has cre-

ated a system in which the validity of EPA’s NPDES

permitting rules will vary by judicial district and/or

circuit. That holding undermines Congress’s primary

objective in enacting the CWA: establishing a uniform

system for protecting the waters of the United States.

Arkansas v. Oklahoma, 503 U.S. at 110 (CWA’s objec-

tive was “authorizing the EPA to create and manage

a uniform system of interstate water pollution regula-

tion.”).

Because EPA was not a party to this citizen suit,

EPA need take no action in response to the court’s in-

validation of its rules. As the United States itself ex-

plained in the amicus brief it submitted in response

to the Ninth Circuit’s jurisdictional questions:

of the grounds for challenge. 33 U.S.C. § 1369(bX1) (allow-

ing for review of EPA’s actions outside of 120-day period

based “on grounds which arose after the 120th day.”);

Maier, 114 F.3d at 1036-39 (citizens may seek review of

EPA’s NPDES rules under 33 U.S.C. § 1369 based on new

information obtained outside of original 120-day review

period).

Although the United States filed amicus briefs

at the district court and appellate court levels

to provide its views to the Court on important

matters of interpreting the CWA and associ-

ated regulatory provisions, the United States is

not a party to this action. As such, any relief af-

forded to NEDC in this case must be limited to

the parties and applicable only to the specified

discharges before the Court, and cannot di-

rectly bind EPA, a non-party.

(United States Amicus Br. 3 n.1, Feb. 10, 2011).

If the rules had been invalidated on judicial re-

view under 33 U.S.C. § 1369, EPA necessarily would

have had to engage in rulemaking to address the

court’s ruling. The court would have remanded the

rules to EPA to correct the identified deficiencies, and

Oregon and other interested and affected parties

across the nation would have the opportunity to par-

ticipate in that rulemaking process. That process is

not required to occur here. As a result, Oregon and

other regulated parties in the Ninth Circuit remain in

regulatory limbo, while waiting to see whether EPA

will opt to engage in some kind of rulemaking to ad-

dress the Ninth Circuit’s ruling. Meanwhile, EPA’s

rules remain valid in all but the states in the Ninth

Circuit, meaning that NPDES permits are required

for stormwater runoff from logging roads only in the

western states.

That patchwork system of regulation is not what

Congress intended in enacting the CWA. And it can

be avoided if challenges to EPA’s NPDES permitting

regulations are reviewable exclusively under 33

U.S.C. § 1369, in a proceeding to which EPA will al-

ways be a party. As the D.C. Circuit has explained:

National uniformity .. . is best served by initial

review in a court of appeals. All petitions may

be consolidated in one court.... [If review

were allowed to proceed in the district courts],

there would be a real possibility ... that sev-

eral different district courts would proceed to

review the NPDES-related [regulations], with

the attendant risk of inconsistent decisions ini-

tially and on appeal.

Natural Res. Def. Council v. EPA, 673 F.2d at 405

n.15 (citations omitted) (outlining the rationale for

requiring review of EPA’s NPDES regulations in the

courts of appeal under 33 U.S.C. § 1369(b)(1), includ-

ing the fact that doing so promotes uniformity in the

administration of the NPDES program). The petition

should be granted to ensure that Congress’s objective

of uniformity in the water protection laws is not

thwarted by the Ninth Circuit’s ruling that the valid-

ity of EPA’s regulations can be determined district by

district.

B. The Ninth Circuit’s ruling that stormwater

discharges from logging roads require

NPDES permits displaces the longstanding

scheme for regulating runoff.

The Ninth Circuit’s decision displaces the long-

standing regulatory scheme in place for protecting

the country’s waters from pollution associated with

stormwater runoff from logging roads. Implementing

the shift from the current scheme to the one man-

dated by the Ninth Circuit will consume a substantial

amount of resources. Because Congress did not intend

to mandate the shift, this Court should grant the pe-

tition to preserve the scheme intended by Congress.

Because stormwater runoff from logging roads

long has been viewed as nonpoint source pollution—

both by EPA and by Congress—states have invested

substantial resources in determining how best to

manage that runoff through best management prac-

tices, rather than through permitting programs. Ore-

gon, for example, through its Forest Practices Act and

the regulations promulgated thereunder, has estab-

lished an extensive scheme to protect the waters of

the state from pollution connected to stormwater run-

off from logging roads. Specifically, the Oregon legis-

lature directed the Oregon Board of Forestry, in con-

sultation with the Oregon Environmental Quality

Commission, to establish best management practices

to protect Oregon’s waters from pollution caused by

forest operations Or. Rev. Stat. § 527.765(1). In ac-

cordance with those directives, and the overarching

scheme of the CWA, the Board of Forestry promul-

gated administrative rules establishing best man-

agement practices for logging road construction and

maintenance in order to protect water quality, fish,

and wildlife. Or. Admin. R. 629-625-0000(3); see gen-

erally Or. Admin. R. ch. 629, div. 625. The rules pro-

vide standards for locating, building, maintaining,

and using roads used for logging—and their associ-

ated draining structures—to minimize the amount of

sediment delivered to the waters of the state by the

precipitation-based runoff that passes over those

roads. Or. Admin. R. 629-625-0200(2); Or. Admin. R.

629-625-0300(2); Or. Admin. R. 629-624-0330; Or.

Admin. R. 629-625-0430; Or. Admin. R. 629-625-0600;

Or. Admin R. 629-625-0700.

In addition to the logging road rules, the Board of

Forestry also has promulgated specific water protec-

tion rules. Or. Admin. R. ch. 629, div. 635. Those

rules serve “to ensure through the described forest

practices that, to the maximum extent practicable,

non-point source discharges of pollutants resulting

from forest operations do not impair the maintenance

and achievement of water quality standards.” Or.

Admin. R. 629-635-0100(7)(a). The rules require ongo-

ing monitoring and evaluation of the effectiveness of

the practices, Or. Admin. R. 629-635-0110, and re-

quire, at least in some circumstances, written plans

for conducting operations near the waters of the

state. Or. Admin. R. 629-635-0130. Finally, the rules

contain an enforcement scheme, requiring the state

forester to investigate and inspect forest operators for

compliance with those rules, and authorizing the for-

é€..er to initiate enforcement actions. Or. Admin. R.

ch. 629, div. 670.

The Ninth Circuit’s decision—without even dis-

cussing the current regulatory scheme for stormwater

runoff from logging roads in Oregon or elsewhere—

displaces that scheme, substituting it with a yet-to-

be-designed permitting program to address logging

road stormwater runoff.’ To address that displace-

’ The Ninth Circuit’s decision expressly acknowledges

that the NPDES permitting system, in its current form,

has not been designed to address stormwater runoff from

logging roads, given EPA’s longstanding belief that

ment in Oregon, the Oregon Department of Environ-

mental Quality, which operates the NPDES permit-

ting program in Oregon, will have to design a new

NPDES permit for logging-road stormwater, a process

that will take a substantial amount of time. That

process also poses a risk of the wasted expenditure of

limited state resources. Because EPA has not prom-

ulgated rules establishing a permit for stormwater

discharges from logging roads, if Oregon has to design

a permit in the absence of action by EPA, it risks cre-

ating one which ultimately does not meet EPA stan-

dards, should EPA eventually decide to create an

NPDES permit for stormwater from logging roads.

Congress did not mandate that result. Instead, it

gave EPA the discretion to regulate stormwater run-

off from logging roads in a way that would preserve or

build upon existing state forest practices acts, rather

than requiring that EPA regulate logging-road

stormwater under the NPDES permitting program. If

anything, the history of the 1987 amendments indi-

cates that Congress anticipated that stormwater run-

off from logging roads would continue to be ad-

dressed, for the most part, through locally designed

best-practices programs and the newly established

nonpoint-source-pollution program.

The Ninth Circuit nonetheless has required the

stormwater runoff from logging roads be regulated

under the NPDES permitting program. Implementing

that shift in regulation will take a substantial

NPDES permits are not required for discharges associated

with most silvicultural activities. (Pet. App. 52).

amount of time and monetary resources at a time

when state resources, in Oregon and elsewhere, are

limited. The petition should be granted to prevent the

needless expenditure of resources toward an objective

that Congress did not intend.

C. The Ninth Circuit’s ruling that stormwater

discharges from logging roads are stormwa-

ter discharges associated with industrial ac-

tivity under EPA’s stormwater rule conflicts

with this Court’s established methodology

for interpreting administrative rules.

The Ninth Circuit disregarded this Court’s pre-

scribed methodology for interpreting agency rules

when it construed EPA’s stormwater rule to require

NPDES permits for stormwater runoff from logging

roads. The petition should be granted because the

Ninth Circuit’s failure to adhere to the proper inter-

pretive methodology led it to construe EPA’s rule to

mean the opposite of what the rule says, and what

EPA intended.

This Court has held that a reviewing court must

accept an agency’s interpretation of its own regula-

tion, even when that interpretation is presented in an

amicus brief, provided that interpretation is not

plainly erroneous, inconsistent with the regulations,

or that there is some reason to suspect that the pro-

posed interpretation does not reflect the agency’s rea-

soned judgment. Talk Am., Inc. v. Mich. Bell Tel. Co.,

__ U.S. _., 1381 S. Ct. 2254, 2260-61, 180 L. Ed. 2d 96

(2011); Chase Bank USA, N.A. v. McCoy, 562 U.S. __,

131 S. Ct. 871, 880, 178 L. Ed. 2d 716 (2011).

Here, EPA submitted amicus briefs in the district

court and the Ninth Circuit explaining that it inter-

prets its stormwater rule to exclude from the defini-

tion of “industrial activity” those activities defined to

be nonpoint-source silvicultural activities in the silvi-

cultural rule. (See United States Amicus Br. 28-31,

Nov. 15, 2007). That is a reasonable (if not the only

reasonable) interpretation of the stormwater rule.

The rule expressly states that the term “industrial

activity” does not include any activity that is excluded

from the NPDES permitting program under the Part

122 regulations, and the preamble to the Phase I rule

reiterates that EPA did not intend to require Phase I

permits for stormwater runoff from the silvicultural

activities defined to be nonpoint-source activities by

the silvicultural rule. As a result, if it had followed

this Court’s precedent, the Ninth Circuit would have

been required to accept EPA’s interpretation of its

Phase I rule. In particular, the Ninth Circuit would

have been required to accept EPA’s interpretation of

40 C.F.R. § 122.26 to mean that stormwater runoff

from logging roads is not runoff “associated with in-

dustrial activity.”

But the Ninth Circuit rejected EPA’s interpreta-

tion of 40 C.F.R. § 122.26(b)\14). In so doing, it did

not even attempt to undertake the analysis mandated

by this Court. Rather, having concluded that EPA’s

silvicultural rule is invalid, the Ninth Circuit took it

upon itself to rewrite EPA’s stormwater rule to elimi-

nate that rule’s reference to the silvicultural rule,

without seeking to ascertain whether EPA would

have written the rule differently had EPA known of

the Ninth Circuit’s concerns about the silvicultural

rule. As a result, the Ninth Circuit strayed far from a

court’s primary objective in rule interpretation: giving

effect to the intent of the promulgating agency. The

petition should be granted to compel the Ninth Cir-

cuit to employ the methodology used by this Court

when it construes administrative rules.

D. The Ninth Circuit’s ruling that stormwater

discharges from logging roads are dis-

charges associated with industrial activity

under 33 U.S.C. § 1342(p) conflicts with this

Court’s established methodology for review-

ing an agency’s interpretation of a statute

that it administers.

The Ninth Circuit’s determination that stormwa-

ter discharges from logging roads are discharges “as-

sociated with industrial activity” under 33 U.S.C. §

1342 conflicts with Mayo Foundation for Med. Educ.

& Research v. United States, _ U.S. _, 131 S.Ct.

704, 711, 178 L. Ed.2d 588 (2011), and Chevron

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

Inc., 467 U.S. 837, 843-44 (1984). Rather than defer-

ring to EPA’s reasonable determination that storm-

water discharges from logging roads are not dis-

charges “associated with industrial activity,” the

Ninth Circuit substituted its own definition of “indus-

trial activity” for that adopted by EPA. That is ex-

actly what Chevron prohibits. The petition should be

granted to enforce the Ninth Circuit’s compliance

with this Court’s well-established rules for reviewing

an agency’s interpretation of the statute it imple-

ments.

Congress did not define the term “industrial activ-

ity” in 33 U.S.C. § 1342(p), and the statute does not

otherwise indicate whether timber cultivation and

harvesting, and the maintenance of logging roads,

qualify as “industrial” activities. Because the term is

not subject to a single, precise definition, EPA had

the power and responsibility to define its scope. Mayo

Found. for Med. Educ. & Research, 131 S. Ct. at 711

(agency had power to determine whether medical

residents were students within meaning of statute

that did not specifically define the term “student”);

Chevron U.S.A. Inc., 467 U.S. at 843-44 (“The power

of an administrative agency to administer a congres-

sionally created . . . program necessarily requires the

formulation of policy and the making of rules to fill

any gap left, implicitly or explicitly, by Congress.”

(quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)); 2

A Legislative History of the Water Quality Act of 1987,

at 879 (statement of Mr. Roe) (“In the case of dis-

charges from industrial sites, EPA is directed to iden-

tify within 1 year those classes and categories that

are required to apply for a permit.”); cf. Arkansas v.

Oklahoma, 503 U.S. at 110 (Congress’s point in enact-

ing the CWA was to “authorize[e] the EPA to create

and manage a uniform system of interstate water pol-

lution regulation.” (emphasis supplied)). The task for

a reviewing court is thus to determine (1) how EPA

has defined industrial activity; and (2) whether that

definition is reasonable. Chevron U.S.A. Inc., 467

U.S.at 843-44.

As outlined above, EPA defined “industrial activ-

ity” in 40 C.F.R. § 122.26(b14). In so doing, it ex-

pressly excluded those silvicultural activities classi-

fied as nonpoint sources by 40 C.F.R. § 122.27 from

the definition of “industrial activity.” The activities

thus excluded from the definition of “industrial activ-

ity” include: “activities such as nursery operations,

site preparation, reforestation and subsequent cul-

tural treatment, thinning, prescribed burning, pest

and fire control, harvesting operations, surface drain-

age, or road construction and maintenance from

which there is natural runoff.” 40 C.F.R.

§ 122.27(b)(1). The terms of EPA’s rules, as well as

EPA’s amicus briefs, make the agency’s intent clear.

Further, EPA’s interpretation of the statutory

term “industrial activity” to exclude the maintenance

of logging roads and the other “non-point source silvi-

cultural activities” identified in 40 C.F.R. § 122.27 is

reasonable. It is not implausible to view the growing

and cutting of trees, and the maintenance of the

roads needed to grow and harvest trees, as non-

industrial. The legislative history of the 1987

amendments suggests that Congress did not view

most silvicultural activities as industrial. Rather,

Congress viewed industrial activities to be those that

are “directly related to manufacturing, processing or

raw materials storage areas at an industrial plant.” 1

A Legislative History of the Water Quality Act of 1987,

at 529, 538; 2 id. at 665. And, as noted above, Con-

gress frequently discussed the need to regulate runoff

associated with forest practices and logging roads un-

der the new nonpoint-source management program

established by 33 U.S.C. § 1329. Had Congress in-

tended to mandate that EPA treat logging-road

stormwater runoff as industrial stormwater, there

would have been little reason for it to discuss so ex-

tensively the need to regulate logging-road runoff un-

der the nonpoint-source management program.

The Ninth Circuit nevertheless concluded that

stormwater runoff from logging roads is runoff “asso-

ciated with industrial activity” under 33 U.S.C.

§ 1342(p). In reaching that conclusion, the court did

not ask whether EPA’s contrary determination was

reasonable. The court did not even ask whether Con-

gress intended to require that stormwater runoff from

logging roads be treated as stormwater “associated

with industrial activity” under 33 U.S.C. § 1342(p).

Instead, the court defined the term itself, without at-

tempting to ascertain either EPA’s or Congress’s in-

tent. That conflicts with Chevron. Chevron U.S.A.

Inc., 467 U.S. at 842 (court of appeals erred by adopt-

ing “static judicial definition” of term that Congress

intended for EPA to define). The petition should be

granted to ensure that the Ninth Circuit adheres to

this Court’s established methodology for reviewing

agency interpretations of the statutory provisions

that they administer. That, in turn, will ensure the

proper effectuation of Congress’s intent in enacting 33

U.S.C. § 1842(p), which, after all, is the essential ob-

jective of statutory interpretation. Chevron, 467 U.S.

at 843-44 & 843 n.9 (observing that Court’s objective

in interpreting a statute is to effectuate congressional

intent).

CONCLUSION

The Ninth Circuit’s decision conflicts with the de-

cisions of this Court and of other circuits, thwarts the

intent of Congress in enacting the CWA and the in-

tent of EPA in administering it, displaces the long

standing scheme for regulating water pollution

caused by logging road runoff, and creates untenable

conflict and confusion for both the state agencies

charged with administering the NPDES permitting

program and for regulated parties. The petition for

certiorari should be granted.

Respectfully submitted,

JOHN R. KROGER

Attorney General of Oregon

MARY H. WILLIAMS

Solicitor General

ERIN C. LAGESEN

Assistant Attorney General

Counsel for Petitioners

APPENDIX

App. 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHWEST ENVIRON-

MENTAL DEFENSE CEN-

TER, an Oregon non-profit

corporation,

Plaintiff-Appellant,

and

OREGON FOREST INDUS-

TRY COUNCIL; AMERICAN

FOREST & PAPER ASSO-

CIATION,

Intervenors,

Vv. No. 07-35266

MARVIN BROWN, Oregon D.C. No. CV-06-

State Forester, in his official 01270-GMK

capacity; STEPHEN HOBBS; ORDER WITH-

BARBARA CRAIG; DIANE DRAWING OPIN-

SNYDER; LARRY ION AND DENYING

GIUSTINA; WILLIAM HEF- REHEARING AND

FERNAN > WILLIAM OPINION

HUTCHISON; JENNIFER

PHILLIPPI, (members of the

Oregon Board of Forestry, in

their official capacities);

HAMPTON TREE FARMS,

INC., an Oregon domestic

business corporation; STIM-

SON LUMBER COMPANY,

an Oregon domestic business

App. 2

corporation; GEORGIA-

PACIFIC WEST INC., an

Oregon domestic business

corporation; SWANSON

GROUP, INC., an Oregon do-

mestic business corporation;

TILLAMOOK COUNTY,

Defendants-Appellees.

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

COUNSEL

Paul A. Kampmeier, WASHINGTON FOREST LAW

CENTER, Seattle, Washington; Christopher G. Win-

ter, CRAG LAW CENTER, Portland, Oregon, for the

plaintiff-appellant.

* The Honorable Charles R. Breyer, United States Dis-

trict Judge for the Northern District of California, sitting

by designation.

App. 3

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

Oregon Forest Industries Council; Ellen B. Steen,

CROWELL & MOORING, Washington, D.C. for in-

tervenor American Forest and Paper Association; and

William K. Sargent, Tilamook, Oregon, for intervenor

Tillamook County.

Marc Abrams, Erin C. Lagesen, Richard D.

Wasserman, OFFICE OF THE OREGON ATTOR-

NEY GENERAL, Salem, Oregon; Louis A. Ferreira, J.

Mark Morford, Per Albert Ramfjord, STOEL RIVES

LLP, Portland, Oregon; William K. Sargent, Tilla-

mook, Oregon, for the defendants-appellees.

Damien M. Schiff and Ralph W. Kasarda, PACIFIC

LEGAL FOUNDATION, Sacramento, California;

Michele A. Dias, CALIFORNIA FORESTRY ASSO-

CIATION, Sacramento, California, for Amici PA-

CIFIC LEGAL FOUNDATION and CALIFORNIA

FORESTRY ASSOCIATION in support of the defen-

dants-appellees.

Bradford T. McLane, US DEPARTMENT OF JUS-

TICE, 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

Buccinon, NATURAL RESOURCES DEFENSE

App. 4

COUNCIL, Washington, D.C., Sharon E. Duggan,

LAW OFFICES OF SHARON E. DUGGAN, for

amicus curiae NATURAL RESOURCES DEFENSE

COUNCIL, INC., and the ENVIRONMENTAL PRO-

TECTION INFORMATION CENTER in support of

the plaintiffs-appellants.

ORDER

This court’s opinion filed August 17, 2010, and re-

ported at 617 F.3d 1176, is withdrawn, and is re-

placed by the attached Opinion.

With the filing of the new opinion, the panel has

voted unanimously to deny the petitions for rehear-

ing. 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

rehearing en banc and no judge of the court has re-

quested 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.

No further petitions for rehearing or rehearing en

banc will be accepted.

App. 5

OPINION

W. FLETCHER, Circuit Judge:

Northwest Environmental Defense Center

(“NEDC”) brings suit against the Oregon State For-

ester and members of the Oregon Board of Forestry in

their official capacities (collectively, “State Defen-

dants”) and against various timber companies (“Tim-

ber Defendants,” and collectively with State Defen-

dants, “Defendants”). NEDC contends that Defen-

dants have violated the Clean Water Act (“CWA”) and

its implementing regulations by not obtaining per-

mits from the Environmental Protection Agency

(“EPA”) for stormwater — largely rainwater — runoff

that flows from logging roads into systems of ditches,

culverts, and channels and is then discharged into

forest streams and rivers. NEDC contends that these

discharges are from “point sources” within the mean-

ing of the CWA and that they therefore require per-

mits under the National Pollutant Discharge Elimi-

nation System (“NPDES”).

The district court concluded that the discharges

are exempted from the NPDES permitting process by

the Silvicultural Rule, 40 C.F.R. § 122.27, promul-

gated under the CWA to regulate discharges associ-

ated with silvicultural activity. The district court did

not reach the question whether the discharges are ex-

empted by amendments to the CWA made in 1987.

We reach both questions and conclude that the dis-

charges require NPDES permits.

App. 6

I. Background

NEDC contends that discharges from systems of

ditches, culverts, and channels that receive stormwa-

ter runoff from 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 De-

fendants use the roads pursuant to timber sales con-

tracts with the State of Oregon. These contracts des-

ignate 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 con-

structed with systems of ditches, culverts, and chan-

nels that collect and convey stormwater runoff. For

most of their length, the roads are graded so that wa-

ter 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 intervals,

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 storm-

water 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

App. 7

discharge the stormwater into the rivers. When tribu-

tary 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.

Timber hauling on the logging roads is a major

source of the sediment that flows through the storm-

water collection systems. 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 discharged di-

rectly 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 Defen-

dants 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 pro-

vides 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 Defen-

App. 8

dants have violated the CWA by not obtaining

NPDES permits. On March 1, 2007, the district court

dismissed 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 Sil-

vicultural Rule was unambiguous and that, as a con-

sequence, 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 jurisdic-

tion is, of course, not waivable.

Without discussing subject matter jurisdiction, we

held on the merits that the Silvicultural Rule is am-

biguous. After we published our opinion, one of our

colleagues asked us to discuss our subject matter ju-

risdiction. We asked for supplemental 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 person, including the United States, who is al-

leged to be in violation of “an effluent standard or

limitation” under the CWA. A citizen suit may be

brought against a person or entity illegally discharg-

App. 9

ing a pollutant into covered waters without an

NPDES permit. Jd at § 1365(f(6). Suits under § 1365,

however, 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 Administra-

tor, including the promulgation of effluent standards,

prohibitions, or limitations, as soon as those actions

take place. Jd. at § 1369(b)(I). Such suits must be

brought within 120 days from the date of the Admin-

istrator’s “determination, approval, promulgation, is-

suance or denial,” unless the basis for the suit arose

more than 120 days after the agency action. Jd 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.” Jd at §

1369(b)(2).

The basis for NEDC’s challenge to the Silvicul-

tural Rule arose more than 120 days after the prom-

ulgation of the Rule. As we discuss in greater detail

below, the Silvicultural Rule is susceptible to two dif-

ferent 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 Silvicultural 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 Rule it

would adopt. As the government states in its second

amicus brief to us,

App. 10

At the time an ambiguous regulation is prom-

ulgated ... the public cannot reasonably be ex-

pected to challenge potential regulatory inter-

pretations that are textually plausible but that

the agency has not contemporaneously offered

and may never adopt. Indeed, a rule encourag-

ing such challenges to hypothetical interpreta-

tions would likely only foster unnecessary liti-

gation.

Because the Silvicultural Rule was subject to two

readings, only one of which renders the Rule invalid,

and because the government first adopted its inter-

pretation 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 juris-

diction under 33 U.S.C. § 1365(a).

Ill. Standard of Review

We review de novo a district court’s dismissal un-

der 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 material 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 Wilder-

ness Defenders/ Blue Mts. Biodiversity Project v. Fors-

gren, 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, incon-

App. 11

sistent with the regulation, or based on an impermis-

sible construction of the governing statute. 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 di-

rectly and unambiguously spoken to the precise ques-

tion at issue, then the “unambiguously expressed in-

tent of Congress” controls. Jd. at 843. At Chevron step

two, if we determine that the statute is “silent or am-

biguous 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 permissi-

ble construction of the statute controls. Id. at 844.

IV. Discussion

NEDC contends that stormwater runoff from log-

ging 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 sub-

ject to NPDES permitting under the CWA. Defen-

dants, however, contend that the Silvicultural Rule

exempts such runoff from the definition of point

source discharge, and thus exempts it from the

NPDES permitting process. Alternatively, Defen-

dants contend that the 1987 amendments to the CWA

and regulations implementing those amendments ex-

empt such runoff from the definition of point source

discharge and from the permitting process. We dis-

cuss, in turn, the definition of point source discharge,

App. 12

the Silvicultural Rule, and the 1987 amendments to

the CWA.

A. Definition of Point Source Discharge

{1} In 1972, in the Federal Pollution Control Act

(“FWPCA”), Congress substantially revised federal

law governing 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). Congress enacted the FWPCA to

“restore and maintain the chemical, physical, and bio-

logical integrity of the Nation’s waters” by replacing

water quality standards with point source effluent

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 unlawful.” 33 U.S.C. § 1311

(a). One of these exceptions is a point source dis-

charge 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 pol-

lutant 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). “Pollutants” include “rock” and “sand.” 33

U.S.C. § 1362(6). Defendants do not contest that

sediment discharges from logging roads constitute

pollutants within the meaning of the CWA.

App. 13

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

terpreting a statute is the language of the statute it-

self.” 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 convey-

ance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other

floating craft, from which pollutants are or may

be discharged. This term does not include agri-

cultural stormwater discharges and return

flows from irrigated agriculture.

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

“nonpoint source” is left undefined.

[3] Stormwater that is not collected or channeled

and then discharged, but rather runs off and dissi-

pates 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 pollution 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 diffi-

cult to regulate through individual permits.

The most common example of nonpoint source

App. 14

pollution is the residue left on roadways by

automobiles. Small amounts of rubber are

worn off of the tires of millions of cars and de-

posited as a thin film on highways; minute par-

ticles 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 pol-

luted 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 “discern-

able, 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

nonpoint 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).

Our caselaw has consistently recognized the dis-

tinction between nonpoint and point source runoff. In

Natural Resources Defense Council v. California De-

partment 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

App. 15

storm drains “to control polluted stormwater 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 eventu-

ally 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 classified nonpoint source pollution as

runoff caused primarily by rainfall around ac-

tivities that employ or create pollutants. Such

runoff could not be traced to any identifiable

point of discharge. The court concluded 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 pollution

App. 16

and is not subject to federal regulation.” Jd. at 841,

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

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

caselaw, would ordinarily make recourse to legisla-

tive history unnecessary. The “unambiguously ex-

pressed intent of Congress” controls. Chevron, 467

U.S. at 842-43. However, because EPA relied on the

legislative history of the FWPCA in promulgating 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 traceable to nonpoint sources.”

Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir.

2002). The Senate Committee elected to impose strin-

gent 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 [non-

point] 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 problem.” 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 pollut-

ants’ 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

App. 17

the [EPA] Administrator should not ignore dis-

charges resulting from point sources other than

pipelines 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 conveyances.

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

plained his understanding of the distinction as it re-

lated to the problem of agricultural pollution:

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 discretion to define the statutory terms. Senator

Randolph, the Chairman of the Senate Committee,

explained, “We have written into law precise stan-

dards and definite guidelines on how the environment

should be protected. We have done more than just

provide broad directives [for] administrators to fol-

low.” 117 Cong. Rec. 38805 (Nov. 2, 1971). Senator

Muskie, another major proponent of the legislation,

clarified that EPA would provide “|g)uidance with re-

spect to the identification of ‘point sources’ and ‘non-

App. 18

point sources.” 117 Cong. Rec. 38816 (Nov. 2, 1971).

However, “(ilf a man-made drainage, ditch, flushing

system or other such device is involved and if meas-

urable waste results and is discharged into water, it

is considered a ‘point source.” Jd.

{4] Congress also sought to require permits for

any activity that met the legal definition of “point

source,” regardless of feasibility concerns. For exam-

ple, Congressman Roncalio of Wyoming proposed an

amendment to exempt irrigated agriculture from the

NPDES permit program because it was “virtually im-

possible 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 ex-

clude large point source polluters simply because the

channeled water originally derived from irrigated ag-

riculture. Congressman Waldie explained:

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 trans-

port[s] it several hundreds of miles and then

dumps it into the San Joaquin River which

flows into the estuary and then into San Fran-

cisco Bay. It is highly polluted water that is be-

ing dumped in waters already jeopardized by

pollution.

Will the gentleman’s amendment establish

that as a nonpoint source pollution or will it

come under the point source solution dis-

charge?

App. 19

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 pollu-

tion. His amendment was then rejected on the House

floor. See id.

Congress eventually adopted a statutory exemp-

tion for agricultural irrigation in 1977, five years af-

ter the passage of the FWCPA. See CWA § 402(1), 33

U.S.C. § 1342(1) (“The Administrator shall not re-

quire a permit under this section for discharges com-

posed entirely of return flows from irrigated agricul-

ture, nor shall the Administrator directly or indi-

rectly, require any State to require such a pemit.”);

CWA § 502(14), 33 U.S.C. § 1362(14) (“This term does

not include return flows from irrigated agriculture.”).

Congress did so to alleviate EPA’s burden in having

to issue permits for every agricultural point source.

“The problems of permitting every diserete source or

conduit returning water to the streams from irrigated

lands is simply too burdensome to place on the re-

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

(statement of Rep. Roberts). Congress did not, how-

ever, grant EPA the discretion to exempt agricultural

discharges from the general statutory definition of

point source discharges. Rather, Congress exempted

such discharges by amending the statute. 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

App. 20

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

then discharged into streams and rivers, is a non-

point 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 dis-

charges from the permitting system. We discuss de-

fendants’ 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 exempt-

ing several kinds of discharges from the NPDES per-

mit program. Exempted discharges included dis-

charges from storm sewers composed entirely of

storm runoff uncontaminated by industrial or com-

mercial activity, discharges from relatively small

animal confinement facilities, discharges from silvi-

cultural 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 per-

mit:

(j) Discharges of pollutants from agricul-

tural and silvicultural activities, including irri-

gation return flow and runoff from orchards,

cultivated crops, pastures, rangelands, and for-

App. 21

est 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 De-

fense Council challenged the regulations as inconsis-

tent 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 pro-

gram.” 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 regula-

tions were fatally inconsistent with the definition

contained in § 502(14), writing “that the Administra-

tor lof the EPA] cannot lawfully exempt point sources

discharging pollutants from regulation under

NPDES.” Id. at 1402.

App. 22

EPA appealed to the D.C. Circuit. While the ap-

peal was pending, EPA grudgingly promulgated re-

vised regulations. For example, in soliciting public

comment on a proposal for a “system for separate ag-

ricultural and silvicultural storm sewers” rule in De-

cember 1975, EPA wrote:

In promulgating the [earlier] regulations EPA

stated its belief that while some point sources

within the excluded categories may be signifi-

cant contributors of pollution which should be

regulated consistent with the purposes of the

FWPCA, it would be administratively difficult

if not impossible, given Federal and State re-

source levels, to issue individual permits to all

such point sources. .. . Essentially, these [ear-

lier] regulations providing for exemptions were

based on EPA’s view (a view which it continues

to maintain is correct) that most sources within

the exempted categories present runoff-related

problems not susceptible to the conventional

NPDES permit 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 permits],

whether or not the rainfall happens to collect

before flowing into navigable waters. Agricul-

tural and silvicultural runoff, as well as runoff

from city streets, frequently flows into ditches

or is collected in pipes before discharging into

streams. EPA contends that most of these

App. 23

sources are nonpoint in nature and should not

be covered by the NPDES permit program.

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

[5] Two months later, in February 1976, EPA pro-

posed a revised Silvicultural Rule and solicited public

comment. EPA wrote,

(T]he Agency has carefully examined the rela-

tionship between the NPDES permit program

(which is designed to control and eliminate dis-

charges of pollutants from discrete point

sources) and water pollution from silvicultural

activities (which tends to result from precipite-

tion events). It has been determined that most

water pollution related to silvicultural activi-

ties is nonpoint in nature.

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

EPA continued:

Those silvicultural activities which are speci-

fied in the regulations (rock crushing, gravel

washing, log sorting and log storage facilities),

and are thus point sources, are subject to the

NPDES permit program. Only those silvicul-

tural activities that, as a result of controlled

water used by a person, discharge pollutants

through a discernible, confined and discrete

conveyance into navigable waters are required

to obtain a § 402 pollution discharge permit.

Id. This passage provides EPA’s central criterion for

distinguishing between silvicultural point and non-

point sources. EPA proposed to characterize dis-

App. 24

charges of pollutants through a discerniblg, confined

and discrete conveyance as point source discharges

only when they were “a result of controlled water

used by a person.” Under this criterion, the proposed

rule named as point source discharges only those re-

lated to “rock crushing, gravel washing, log sorting,

[and] log storage facilities.” Jd. 6283 (Proposed Rule);

41 Fed. Reg. 24711 (Jun. 18, 1976) (Final Rule); 40

C.F.R. § 124.85 (1976). Any other silvicultural dis-

charge of pollutants, even if made through a discerni-

ble, confined and discrete conveyance, 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 dis-

crete conveyance” and then discharged into navigable

waters. ,

In its “response to comments” accompanying the

final version, EPA provided more general criteria by

which to distinguish nonpoint from point sources of

pollution. It wrote:

Basically, nonpoint sources of water pollu-

tion are identified by three characteristics:

(i) The pollutants discharged are induced by

natural processes, including precipitation,

seepage, percollation [sic], and runoff;

(ii) The pollutants discharged are not trace-

able to any discrete or identifiable facility; and

(iii) The pollutants discharged are better

controlled through the utilization of best man-

App. 25

agement practices, including process and plan-

ning techniques.

In contrast to these criteria identifying

nonpoint sources, point sources of water pollu-

tion are generally characterized by discrete and

confined conveyances from which discharges of

pollutants into navigable waters can be con-

trolled by effluent limitations. 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 discharges of wood chips

and bark directly into navigable water. Jd.

{6] However, the actual text of the final version of

the Silvicultural Rule was little changed from the

version proposed in February. See 41 Fed. Reg. 24711

(Jun. 18, 1976). The revised Rule provided in perti-

nent part:

Silvicultural activities.

(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 connection with silvicul-

App. 26

tural activities and from which pollutants are

discharged into navigable waters of the United

States.

Comment: This term does not include non-

point source activities inherent to silviculture

such as nursery operations, site preparation,

reforestation and subsequent cultural treat-

ment, thinning, prescribed burning, pest and

fire control, harvesting operations, surface

drainage, and road construction and mainte-

nance from which runoff results from precipita-

tion 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. Jd. 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 discerni-

ble, confined and discrete conveyance.

In comments accompanying the proposed Silvicul-

tural Rule in February 1976, EPA provided, in con-

cise form, its justification for the Rule. It wrote:

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

cernible, confined and discrete conveyance, in-

cluding 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 FWPCA as ex-

App. 27

plained 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 nonpoint 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 justi-

fication.

In the first sentence, EPA wrote that

“[tlechnically, 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 mis-

leading; perhaps EPA hoped that the word would di-

minish the force of the statutory definition. But

whatever its motive, EPA would have been more ac-

curate if it had written “textually” instead of “techni-

cally.”

In the second sentence, EPA wrote that “a proper

interpretation of the FWCPA as explained in the leg-

islative 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

App. 28

“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 argu-

ment. See Train, 396 F. Supp. at 1401 (“NRDC does

not contend that every farm ditch, water bar, or cul-

vert 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 cul-

vert” that does not discharge into navigable waters is

not a point source. But the regulation does not ex-

empt only such ditches water bars or culverts. In-

stead, 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 precipitation are not meant to be subject

to the § 402 permit program.” The text of § 502(14),

quoted in the first sentence of the paragraph, is flatly

inconsistent with this statement. Under § 502(14), a

pollutant comes from a point source if it is collected

and discharged through ditches, pipes, channels, and

similar conveyances. Section 502(14) says nothing,

either explicitly or implicitly, about the source of the

water contained 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 identical system that collects and

discharges natural precipitation is not.

App. 29

{8] After EPA promulgated the revised Silvicul-

tural 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 Adminis-

trator 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 tough law that

relied on explicit mandates to a degree un-

common in legislation of this type.

Id. at 1375.

The court responded to EPA’s argument that a lit-

eral interpretation of the FWCPA’s definition of

“point source” “would place unmanageable burdens on

the EPA”:

There are innumerable references in the legis-

lative 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 compliance with the

limitations and conditions for a permit are

unlawful.” Even when infeasibility arguments

were squarely raised, the legislature declined to

abandon the permit requirement.

App. 30

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

The wording of the statute, legislative history,

and precedents are clear: the EPA Administra-

tor does not have authority to exempt catego-

ries of point sources from the permit require-

ments of § 402. Courts may not manufacture

for an agency a revisory power inconsistent

with the clear intent of the relevant statute.

Id. at 1377.

{9} Although the D.C. Circuit did not address the

revised Silvicultural Rule in its opinion, its reasoning

is no less applicable to the new version of the Rule.

The court concluded that EPA docs not have the au-

thority 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.

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 Silvi-

cultural Rule is different in only minor respects from

the version promulgated in 1976. In pertinent part,

the current version provides:

(b) Definitions. (1) “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 connection with silvicul-

tural activities and from which pollutants are

App. 31

discharged into waters of the United States.

The term does not include nonpoint source sil-

vicultural activities such as nursery opera-

tions, site preparation, reforestation and sub-

sequent cultural treatment, thinning, pre-

scribed burnng, pest and fire control, harvest-

ing operations, surface drainage, or road con-

struction and maintenance from which there is

natural runoff.

40 C.F.R. § 122.27.

The text of the CWA distinguishes between point

and nonpoint sources depending on whether the pol-

lutant is channeled and controlled through a “dis-

cernible, confined and discrete conveyance.” CWA §

§02(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 “dis-

cernible, confined and discrete conveyance[s],” but

only when they are direct discharges of wood chips,

bark, and the like, or discharges resulting from ‘con-

trolled water used by a person.” See 41 Fed. Reg.

24710 (Jun. 18, 1976); 41 Fed. Reg. 6282 (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 “re-

lated to rock crushing, gravel washing, log sorting,

land] log storage facilities.” A nonexhaustive list of

App. 32

silvicultural nonpoint sources of pollution under the

Rule includes “silvicultural activities such as nursery

operations, site preparation, reforestation and subse-

quent cultural treatment, thinning, prescribed burn-

ing, pest and fire control, harvesting operations, sur-

face drainage, or road construction and maintenance.”

{10] The original Silvicultural Rule, which was

struck down by the district court in Train and on ap-

peal in Costle, categorically exempted all discharges

from silvicultural activities. The current Rule cate-

gorically exempts all discharges from silvicultural ac-

tivities 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 activities") is

categorically excluded from the NPDES program.”).

The question before us is whether the categorical ex-

emption from the NPDES permit program in the cur-

rent Rule is based on a permissible interpretation of §

502(14).

We have dealt with the Silvicultural Rule once be-

fore. In League of Wilderness Defenders/ Blue Moun-

tain Diversity Project v. Forsgren (“Forsgren”), 309

F.3d 1181 (9th Cir. 2002), several environmental

groups sued to enjoin unpermitted 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-

App. 33

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 discharge, and that a permit

was therefore not required. We disagreed 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 Silvicultural Rule as not constituting a

point source discharge. We wrote:

The Forest Service’s argument fails because

the statute 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 air-

craft equipped with tanks spraying pesticide

from mechanical sprayers directly over covered

waters. The Forest Service cannot contravene

the will of Congress through its reading of ad-

ministrative 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 “silvi-

cultural pest control from which there is natural run-

off.” Id. at 1186 (emphasis in original). If pest control

activity resulted in natural 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

App. 34

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

whether silvicultural activities from which there is

natural runoff that is channeled, controlled, and dis-

charged through a “discernible, confined and discrete

conveyance” is a point source under § 502(14).

[11] We emphatically “reject[ed] the Forest Ser-

vice’s argument that the EPA has the authority to ‘re-

fine’ the definitions of point source and nonpoint

source pollution in a way that contravenes the clear

intent of Congress as expressed in the statute.” Jd. 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 nonpoint source. Al-

lowing the EPA to contravene the intent of

Congress, by simply substituting the word “de-

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

on its head.

Id. We now reach the question not reached or dis-

cussed in Forsgren — whether discharge of natural

runoff becomes a point source discharge when it is

channeled and controlled through a “discernible, con-

fined 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 pre-

App. 35

sented in Costle and in Forsgren. The CWA prohibits

“the discharge of any pollutant by any person” with-

out 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 convey-

ance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other

floating craft, from which pollutants are or may

be discharged.

33 U.S.C § 1362(14). The definition in no way de-

pends on the manner in which the pollutant arrives

at the “discernible, confined and discrete conveyance.”

That is, it makes no difference whether the pollutant

arrives as the result of “controlled water used by a

person” or through natural runoff.

We agree with the analysis of the district court in

Environmental Protection Information Center v. Pa-

cific Lumber Co. (“*EPIC”), 2003 WL 25506817 (N.D.

Cal.). Relying on Forsgren, Judge Patel concluded

that stormwater runoff from logging roads that was

collected in a system of ditches, culverts, and chan-

nels, 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

App. 36

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 run-

off,” 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 can-

not 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 an-

other, 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—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 adopt-

ing 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,

irrespective 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

App. 37

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 runoff from silvicultural activi-

ties such as those listed, but only as long as the

“natural runoff’ remains natural. That is, the exemp-

tion ceases to exist as soon as the natural runoff is

channeled and controlled in some systematic way

through a “discernible, confined and discrete convey-

ance” and discharged into the waters of the United

States.

[14] Under either reading, we hold that the Silvi-

cultural Rule does not exempt from the definition of

point source discharge under § 512(14) stormwater

runoff from logging roads that is collected and chan-

neled in a system of ditches, culverts, and conduits

before being discharged into streams and rivers.

C. 1987 Amendments to the CWA

Defendants contend in the alternative that even if

the discharges from a system of ditches, culverts, and

channels are point source discharges within the

meaning of § 502(14), and even if the Silvicultural

Rule does not exempt such discharges from § 502(14),

the discharges are nonetheless exempt from the per-

mitting process because of the 1987 amendments to

the CWA. Defendants made this contention in the

district court, but that court did not decide the ques-

tion.

App. 38

We can affirm the decision of the district court on

any ground supported by the record, even one not re-

lied 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 un-

der Rule 12(bX6). The parties have briefed the ques-

tion 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, Con-

gress sub silentio approved of, or acquiesced in, the

Silvicultural Rule. We conclude 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 in-

terpretation placed on a statute by an agency charged

with its administration. This is especially so where

Congress has re-enacted the statute without perti-

nent 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 Fu-

tures 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

App. 39

and Schor. First, in both Bell Aerospace and Schor,

the legislative histories made clear that when Con-

gress re-enacted the statutes at issue it was well

aware of the existing administrative interpretation 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 reenacted essentially

without change. Here, as we explain below, the 1987

amendments fundamentally changed the statutory

treatment of stormwater discharges. Third, the lan-

guage of the original and the re-enacted statutes in

both Bell Aerospace and Schor was readily susceptible

to the administrative interpretations of those stat-

utes. Here, by contrast, the relevant statutory lan-

guage is flatly inconsistent with the Silvicultural

Rule.

In other instances, congressional ection or inaction

can constitute 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, “Al-

though we have recognized congressional acquies-

cence 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 unsuc-

cessful attempts to overturn the regulation, the Court

App. 40

wrote, “Absent such overwhelming evidence of acqui-

escence, we are loath to replace the plain text and

original understanding of a statute with an amended

agency interpretation.” Jd. at 169-70, n.5. Here, there

is no evidence whatsoever of congressional acquies-

cence in the Silvicultural Rule, let alone “overwhelm-

ing evidence.”

2. The 1987 Stormwater Amendments

[15] Congress amended the CWA in 1987 to deal

specifically with stormwater discharges. Pub. L. No.

100-4, 101 Stat. 7 (1987). Congress added § 402(p) to

the CWA, establishing a “phased and tiered ap-

proach” to NPDES permitting of stormwater dis-

charges. See 55 Fed. Reg. 47994 (Nov. 16, 1990) (de-

scribing 33 U.S.C. § 1342(p)). Section 402(p) funda-

mentally redesigned the CWA’s approach to stormwa-

ter discharges.

Under the framework created by the FWCPA in

1972, EPA was required to establish a permitting sys-

tem 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.

App. 41

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

Stafford, the Chairman of the Committee on Envi-

ronment 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 stormwa-

ter sources falling within the definition of a point

source. See, e.g., 131 Cong. Rec. 19846, 19850 (Jul. 22,

1985) (statement of Rep. Rowland) (“Under existing

law, the [EPA] must require [NPDES] permits for

anyone who has stormwater runoff on their property.

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 device to divert,

gather, or collect stormwater runoff and snowmelt to

get a permit from EPA as a point source. . . . Requir-

ing a permit for these kinds of stormwater runoff

conveyance systems would be an administrative

nightmare.”).

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

ments, Congress required NPDES permits for the

most significant sources of stormwater pollution un-

der so-called “Phase I” regulations. See 133 Cong.

Rec. 983, 1006 (Jan. 8, 1987) (statement of Rep. Roe)

(“[Section 402(p)] establishes an orderly procedure

which will enable the major contributors of pollutants

to be addressed first, and all discharges to be ulti-

App. 42

mately addressed in a manner which will not com-

pletely overwhelm EPA’s_ capabilities.”). Section

402(p) lists five categories of stormwater discharges,

including discharges “associated with industrial ac-

tivity,” that are covered in Phase I. 33 U.S.C. §

1342(p2\B). NPDES permits are required for all

five categories of discharges. Jd. §§ 1342(p)(1)-(2). A

permit was required for such discharges by 1990. Jd.

§ 1342(pX 4A).

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 permits for dis-

charges from small municipal storm systems and

small construction sites. We upheld most of that regu-

lation 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 re-

mand.

Stormwater discharges from churches, schools and

residential properties, through rain gutters or other-

wise, 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.

3. Phase I Stormwater Regulations

In 1990, EPA promulgated “Phase I” regulations

for the storm water discharges specified in § 402(p).

App. 43

55 Fed. Reg. 47990 (Nov. 16, 1990); 40 C.F.R. §

122.26. For discharges “associated with industrial ac-

tivity,” which require NPDES permits, EPA’s regula-

tions provide:

Storm water discharge associated with indus-

trial activity means the discharge from any

conveyance that is used for collecting and con-

veying storm water and that is directly related

to manufacturing, processing or raw materials

storage areas at an industrial plant. The term

does not include discharges from facilities or

activities excluded from the NPDES program

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 “dis-

charges associated with industrial activity” any activ-

ity that is defined as a nonpoint source in the Silvi-

cultural Rule. See id.

The preamble to the Phase I regulations makes

clear EPA’s intent to exempt nonpoint sources as de-

fined in the Silvicultural Rule from the permitting

program mandated by § 402(p). The preamble pro-

vides:

The definition of discharge associated with in-

dustrial activity does not include activities or

facilities that are currently exempt from per-

mitting under NPDES. EPA does not intend to

change the scope of 40 CFR 122.27 in this

rulemaking. Accordingly, the definition of

“storm water discharge associated with indus-

App. 44

trial activity” docs not include sources

which are excluded under 40 CFR 122.27.

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

[16] In the 1987 amendments, Congress exempted

many stormwater discharges from the NPDES per-

mitting 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 mandated that EPA es-

tablish a permitting process for such discharges. See

33 U.S.C, § 1342(p)(4XA) (“[T]he Administrator shall

establish regulations setting forth the permit applica-

tion requirements for stormwater discharges de-

scribed in paragraphs (2)B) [“discharge[s] associated

with industrial activity”) and (2XC).” (emphasis

added)). In NRDC v. EPA, 966 F.2d 1292 (9th Cir.

1992), we struck down a part of EPA’s Phase I regula-

tions exempting point source discharges from con-

struction sites of less than five acres. We wrote, “[I)|f

construction activity is industrial in nature, and EPA

concedes that it is, EPA is not free to create exemp-

tions from permitting requirements for such activity.”

Id at 1306. Similarly, if silvicultural activity is “in-

dustrial 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 ac-

cordance with Standard Industrial Classifications

(“SIC”). The applicable (and unchallenged) regulation

provides that facilities classified as SIC 24 are among

“those considered to be engaging in ‘industrial activ-

ity.” 40 C.F.R. § 122.26(b\14)ii). It is undisputed

App. 45

that “logging,” which is covered under SIC 2411 (part

of SIC 24), is an “industrial activity.” SIC 2411 de-

fines “logging” as “le]stablishments primarily en-

gaged in cutting timber and in producing . . . primary

forest or wood raw materials .. . in the field.”

The regulation further defines the term “stormwa-

ter discharge associated with industrial activity” as

follows:

For the categories of industries identified in

this section, the term includes, but is not lim-

ited to, storm water discharges from industrial

plant yards; immediate access roads and rail

lines used or traveled by carriers of raw mate-

rials, 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 Tim-

ber 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 ex-

clusively or primarily dedicated for use by the indus-

trial 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 log-

ging companies. Again, we disagree. We recognize

App. 46

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 sys-

tems 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 in-

dustrial plants. Therefore, according to the Timber

Defendants, any roads serving logging sites cannot be

the “immediate access roads” covered by this rule. We

continue to disagree. The definition of a “facility” en-

gaging in “industrial activity” is very broad. The ap-

plicable Phase I rule provides that many industrial

facilities beyond traditional industrial plants “are

considered to be engaging in ‘industrial activity,” in-

cluding mines, landfills, junkyards, and construction

sites. 40 C.F.R. § 122.26(b)(14 iii), (v), Gx).

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 “di-

rectly related to manufacturing, processing or

raw materials storage areas at an industrial

plant.”

App. 47

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 supplementing it with a descrip-

tion 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

process waters, sites used for the storage and

maintenance 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 permit-

ting process stormwater runoff from logging roads

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

channels, and is then discharged into streams and

rivers. This collected runoff constitutes a point source

discharge of stormwater “associated with 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 [log-

ging) activity is industrial in nature, and EPA con-

cedes that it is [see SIC 2411], EPA is not free to cre-

ate exemptions from permitting requirements for

such activity.” The reference to the Silvicultural Rule

App. 48

in 40 C.F.R. § 122.26(b)(14) does not, indeed cannot,

exempt such discharges from EPA’s Phase I regula-

tions 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 regulations to allow EPA to consider, in-

ter alia, whether stormwater 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 associated with indus-

trial 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 regulations 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

App. 49

definition of point source discharge contained in §

502(14) meant that EPA was suddenly required to es-

tablish an administrative system under which enor-

mous 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 discharges 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, Congress subsequently narrowed the

definition of point source discharge by providing spe-

cific statutory exemptions for certain 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

conduit 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(Z),

502(14), 33 U.S.C. §§ 1341(2), 1362(14). Then in 1987,

ten years later, Congress comprehensively 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 be-

cause under the existing definition 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

App. 50

the permitting process de minimus sources of storm-

water pollution.

However, in cases where Congress has not pro-

vided statutory exemptions from the definition of

point source, federal courts have invalidated EPA

regulations that categorically exempt discharges in-

cluded in the definition of point source discharge con-

tained in § 502(14). The most directly relevant exam-

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

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 defer-

ence to EPA’s approval of Montana’s permitting pro-

gram that exempted groundwater pollutants from

permitting requirements because “[o]Jnly Congress

may amend the CWA to create exemptions from regu-

lation”); 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 con-

struction 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 regulation that ex-

empted sewage discharges from vessels from the

App. 51

permitting process. In that case, the invalidated EPA

regulation 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 statu-

tory 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 en-

tity 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 discharge. As

we explained in Natural Resources Defense Council v.

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

NPDES permits come in two varieties: individ-

ual and general. An individual permit author-

izes a specific entity to discharge a pollutant in

a specific place and is issued after an informal

agency adjudication 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 pur-

suant 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 cov-

ered 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

App. 52

covered by the general permit submits a “notice

of intent” to discharge pursuant to the general

permit. Jd. § 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. Jd. § 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 permit-

ting process for such discharges. But we are confi-

dent, 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 expeditiously.

Conclusion

For the foregoing reasons, we conclude that

stormwater runoff from logging roads that is collected

by and then discharged from a system of ditches, cul-

verts, and channels is a point source discharge for

which an NPDES permit is required.

We therefore REVERSE the district court’s grant

of Defendants’ motion to dismiss, and we REMAND

to the district court for further proceedings consistent

with this opinion.

App. 53

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

NORTHWEST ENVIRON-

MENTAL DEFENSE CEN-

TER, an Oregon nonprofit

corporation,

Plaintiff,

vs.

MARVIN BROWN, Oregon

State Forester, in his official

capacity; STEPHEN HOBBS;

BARBARA CRAIG; DIANE

SNYDER; LARRY

GIUSTINA; WILLIAM HEF- ais

FERNAN; WILLIAM Civil Case No. 06-

HUTCHISON; JENNIFER 1270-KI

PHILLIPPI, members of the OPINION AND OR-

Oregon Board of Forestry, in DER

their official capacities;

HAMPTON TREE FARMS,

INC., an Oregon domestic

business corporation; GEOR-

GIA-PACIFIC WEST INC., an

Oregon domestic business

corporation; and SWANSON

GROUP, INC., an Oregon

business corporation,

Defendants.

OREGON FOREST INDUS-

TRIES COUNCIL, an Oregon

App. 54

nonprofit corporation; and

AMERICAN FOREST AND

PAPER ASSOCIATION, a

Delaware nonprofit corpora-

tion,

Intervenors,

Christopher G. Winter

Ralph O. Bloemers

Cascade Resources Advocacy Group

917 S.W. Oak Street, Suite 417

Portland, Oregon 97205

Paul August Kampmeier

Washington Forest Law Center

615 Second Avenue, Suite 360

Seattle, Washington 98104

Attorneys for Plaintiff

Marc Abrams

State of Oregon

1162 Court Street, N.E.

Salem, Oregon 97301

Attorney for State Defendants

J. Mark Morford

Louis A. Ferreira, [IV

Per A. Ramfjord

Stoel Rives, LLP

900 S.W. Fifth Avenue, Suite 2600

Portland, Oregon 97204

Attorneys for Forest Products Defendants and

Trade Association Intervenors

App. 55

William K. Sargent

1134 Main Avenue

Tillamook, Oregon 97141

Attorney for Intervenor Defendant Tillamook

County

Ellen Steen

Crowell & Moring LLP

1001 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2595

Attorney Intervenor American Forest and Pa-

per Association

Bradford Thomas McLane

U.S. Department of Justice

950 Pennsylvania Avenue, N.W., Room 2618

Washington, D.C. 20530

Amicus Advisor

KING, Judge:

Plaintiff Northwest Environmental Defense Cen-

ter (“NEDC”) brings this action under the Clean Wa-

ter Act (“CWA”) concerning discharges of stormwater

from ditches alongside logging roads in the Tillamook

State Forest. NEDC seeks to require defendants to

obtain National Pollutant Discharge Elimination Sys-

tem (“NPDES”) permits, which NEDC contends are

required by the CWA in this situation. Before the

court are State Defendants’ (Marvin Brown, Oregon

State Forester, and members of the Oregon Board of

Forestry, Stephen Hobbs, Barbara Craig, Diane Sny-

der, Larry Giustina, Chris Heffernan, William

Hutchison, and Jennifer Phillippi) Motion to Dismiss

(#16) and Forest Products Defendants’ (timber com-

App. 56

panies Hampton Tree Farms, Inc., Stimson Lumber

Company, Georgia-Pacific West, Inc., and Swanson

Group, Inc., along with intervenors Oregon Forest In-

dustries Council and American Forest and Paper As-

sociation) Motion to Dismiss First Amended Com-

plaint (#21). The United States filed an amicus curiae

brief. For the reasons below, I dismiss the First

Amended Complaint.

ALLEGATIONS

The logging roads at issue in the Tillamook State

Forest are the Trask River Road, running along the

South Fork Trask River, and the Sam Downs Road,

running along the Little South Fork of the Kilchis

River. Ditches, channels, and culverts associated with

logging roads often deliver collected stormwater into

existing streams and rivers. The stormwater, polluted

with sediment and other pollutants, degrades water

quality and adversely impacts aquatic life. The dis-

charges on these two roads are not authorized by

NPDES permits. The State Defendants own and con-

trol the logging roads. The Forest Product Defendants

haul timber on the roads and are contractually obli-

gated to maintain the roads. According to NEDC, de-

fendants violated the CWA by discharging pollutants

and/or industrial stormwater from point sources

along the Trask River Road and Sam Downs Road to

waters of the United States without NPDES permits.

LEGAL STANDARDS

A motion to dismiss under Rule 12(b)X6) will only

be granted if it “appears beyond doubt that the plain-

tiff can prove no set of facts in support of his com-

App. 57

plaint which would entitle him to relief.” Doe v.

United States, 419 F.3d 1058, 1062 (9th Cir. 2005)

(internal quotation omitted). Normally, the review is

limited to the complaint, and all allegations of mate-

rial fact are taken as true and viewed in the light

most favorable to the non-moving party. Id. The court

is not required to accept “allegations that are merely

conclusory, unwarranted deductions of fact, or unrea-

sonable inferences.” Cholla Ready Mix, Inc. v, Civish,

382 F.3d 969, 972 (9th Cir. 2004), cert. denied, 544

U.S. 974 (2005). The court may also review a docu-

ment extrinsic to the complaint if the authenticity of

the document is not contested and the document is

integral to the claims. Fields v. Legacy Health Sys-

tem, 413 F.3d 943, 958 n.13 (9th Cir. 2005). A second

exception is that a court may take judicial notice of

matters of public record. Lee v. City of Los Angeles,

250 F.3d 668, 688-89 (9th Cir. 2001).

DISCUSSION

I. Standing

The State Defendants contend that NEDC has not

sufficiently alleged facts to maintain its representa-

tional standing.

NEDC alleges that it is a nonprofit corporation

with the mission to protect and conserve the envi-

ronmental and natural resources of the Pacific

Northwest. Its members derive aesthetic, recrea-

tional, and other benefits from Oregon’s waterways,

including the rivers and tributaries near the Trask

River Road and Sam Downs Road. NEDC members

use and enjoy the Trask and Kilchis rivers, and their

App. 58

tributary waters, for fishing and other recreational

activities. NEDC alleges that it has at least one

member who is injured by defendants’ discharge of

pollutants and stormwater.

The State Defendants contend that this allegation

is generic and insufficiently concrete and particular-

ized to satisfy standing requirements because the al-

legation does not identify any specific members.

NEDC argues that its allegations are sufficient, spe-

cifically, that it does not need to identify a particular

member in the complaint but can provide that infor-

mation during discovery in a manner designed to pro-

tect the privacy interest of its members.

An organization has standing to bring suit on

behalf of its members when: (a) its members

would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect

are germane to the organizations’s purposes;

and (c) neither the claim asserted nor the relief

requested requires the participation of individ-

ual members in the lawsuit. Individual mem-

bers would have standing in their own right

under Article III if “they have suffered an ‘in-

jury in fact’ that is (a) concrete and particular-

ized and (b) actual and imminent, not conjec-

tural or hypothetical, . . . the injury is fairly

traceable to the challenged action of the defen-

dant; and . . . it is likely, as opposed to merely

speculative, that the injury will be redressed by

a favorable decision.” Laidlaw, 120 S. Ct. at

704 (citing Lujan v. Defenders of Wildlife, 504

App. 59

U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d

351 (1992)).

Ecological Rights Foundati Pacific Lumber Co..

230 F.3d 1141, 1147 (9th Cir. 2000) (some internal

citations omitted). The “injury in fact” requirement in

environmental cases is met if an individual “ade-

quately shows that she has an aesthetic or recrea-

tional interest in a particular place, or animal, or

plant species and that that interest is impaired by a

defendant’s conduct.” Id.

Here, the assertion of CWA protection for the riv-

ers and tributaries near the logging roads is germane

to NEDC’s purpose. There is also no argument by de-

fendants that an individual member’s participation in

the suit is necessary. The dispute centers on whether

an individual member has suffered an “injury in fact.”

The general allegation is that individual NEDC

members use the two rivers for recreation and at

least one member has been injured by the discharges.

Most of the cases cited by defendants, including

Ecological Rights, hash out this issue in a motion for

summary judgment when there is an evidentiary re-

cord, typically in the form of a declaration from an in-

dividual member explaining their particular use of

the area and injury suffered by the environmental

harm. Because this is a motion to dismiss, there is no

such declaration. I agree with NEDC that its allega-

tions are sufficient for standing purposes. In particu-

lar, it does not appear beyond

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