# Record and brief — Decker v. Northwest Environmental Defense Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0742%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2013 - **Citation:** 568 U.S. 597 ## Text DOCKET ss er % & '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 V 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 4 2012 Jun 5 2012 Jun 25 2012 Jul 12 2012 Jul 12 2012 Jul 18 2012 Jul 23 2012 Jul 25 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 Sep 4 2012 Sep 4 2012 Sep 4 2012 Sep 4 2012 Sep 4 2012 Sep 4 2012 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 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? il 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 iv 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 ee ee Oe IE biisicsscesventncalahichnetipisicihtebinedbiiennenaicoaosinttaiel 1 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 ee ae Oe tlc ciennsinritinnitnniniiinsainmmneniie 16, 29 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). 2 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). 3 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). 4 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). 5 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 6 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 7 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). 8 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”: 9 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- 10 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,” 11 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. 12 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 13 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 14 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 15 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). 16 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 17 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. 18 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- 19 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.” 20 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 21 (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 22 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). 23 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 24 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- 25 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. 26 629-625-0300(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 27 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). 28 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). 29 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 30 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. 31 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- 32 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- 33 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 34 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0742%3A0. Public record. Not legal advice.