Petition for Writ of Certiorari — Decker v. Northwest Environmental Defense Center

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SEP 13 201 |

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In the Supreme Court of the Anited States

GEORGIA-PACIFIC WEST, INC., HAMPTON TREE FARMS,

INC., STIMSON LUMBER Co., SWANSON GROUP, INC.,

AMERICAN FOREST & PAPER ASSOCIATION, OREGON

FOREST INDUSTRIES COUNCIL, & TILLAMOOK COUNTY,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

PER A. RAMFJORD TIMOTHY S. BISHOP

LEONARD J. FELDMAN Counsel of Record

JASON T. MORGAN RICHARD BULGER

Stoel Rives LLP CHAD CLAMAGE

900 SW Fifth Ave., Mayer Brown LLP

Suite 2600 71 South Wacker Drive

Portland, OR 97204 Chicago, IL 60606

(503) 224-3380 (312) 782-0600

tbishop@mayerbrown.com

Additional counsel listed on signature page

QUESTION PRESENTED

Since passage of the Clean Water Act, the Envi-

ronmental Protection Agency has considered runoff

of rain from forest roads—whether channeled or not

—to fall outside the scope of its National Pollutant

Discharge Elimination System (“NPDES”) and thus

not to require a permit as a point source discharge of

pollutants. Under a rule first promulgated in 1976,

EPA consistently has defined as nonpoint source ac-

tivities forest road construction and maintenance

from which natural runoff results. And in regulating

stormwater discharges under 1987 amendments to

the Act, EPA again expressly excluded runoff from

forest roads. In consequence, forest road runoff long

has been regulated as a nonpoint source using best

management practices, like those imposed by the

State of Oregon on the roads at issue here. EPA’s

consistent interpretation of more than 35 years has

survived proposed regulatory revision and legal chal-

lenge, and repeatedly has been endorsed by the

United States in briefs and agency publications.

The Ninth Circuit—in conflict with other cir-

cuits, contrary to the position of the United States as

amicus, and with no deference to EPA—rejected

EPA’s longstanding interpretation. Instead, it di-

rected EPA to regulate channeled forest road runoff

under a statutory category of stormwater discharges

“associated with industrial activity,” for which a

permit is required. The question presented is:

Whether the Ninth Circuit should have deferred

to EPA’s longstanding position that channeled runoff

from forest roads does not require a permit, and

erred when it mandated that EPA regulate such

runoff as industrial stormwater subject to NPDES.

il

RULES 14.1 AND 29.6 STATEMENT

Defendants-appellees below and petitioners here

are Georgia-Pacific West LLC, Hampton Tree Farms,

Inc., Stimson Lumber Company, and Swanson

Group, Inc. Intervenor defendants-appellees below

and petitioners here are American Forest and Paper

Association, Oregon Forest Industries Council, and

Tillamook County, Oregon.

Additional defendants-appellees below were

Marvin Brown, Oregon State Forester, in his official

capacity, and Stephen Hobbs, Barbara Craig, Diane

Snyder, Larry Giustina, Chris Heffernan, William

Hutchison, and Jennifer Phillippi, members of the

Oregon Board of Forestry, in their official capacities.

The State defendants-appellees are filing a separate

certiorari petition.

Petitioner Georgia-Pacific West LLC (formerly

Georgia-Pacific West, Inc.) is a privately held Oregon

limited liability company, the sole member of which

is Georgia-Pacific LLC, a privately held Delaware

limited liability company. The ultimate, indirect par-

ent of Georgia-Pacific LLC is Koch Industries, Inc.

No publicly held company owns 10 percent or more of

the membership interests or stock of Georgia-Pacific

LLC or Koch Industries, Inc., respectively.

Petitioner Hampton Tree Farms, Inc. is a family

owned corporation, the parent of which is Hampton

Resources, Inc., a family held Oregon corporation. No

publicly held company owns 10 percent or more of

the stock of Hampton Resources, Inc.

Petitioner Stimson Lumber Company is a family

owned corporation organized under the laws of Ore-

gon. It has no parent company, and no publicly held

company owns 10 percent or more of its stock.

Petitioner Swanson Group, Inc. is a family owned

corporation organized under the laws of Oregon. No

publicly held company owns 10 percent or more of its

stock.

Petitioner American Forest and Paper Associa-

tion is the national trade association of the forest

products industry, representing pulp, paper, packag-

ing and wood products manufacturers, and forest

landowners. No parent corporation or publicly held

company has a 10 percent or greater ownership in-

terest in AF&PA.

Petitioner Oregon Forest Industries Council is a

mutual benefit corporation organized under the laws

of Oregon and Section 501(c)(6) of the Internal Reve-

nue Code. It has no parent corporation and no pub-

licly held company owns a 10 percent or greater in-

terest in OFIC.

Petitioner Tillamook County is a governmental

unit of the State of Oregon, with a population of ap-

proximately 25,000 persons. Some 44 percent of the

land within the County’s borders is State-owned,

most as part of Tillamook State Forest, and 93 per-

cent of the County is classified as forest land.

1V

TABLE OF CONTENTS

Page

Fe Or GE BR ccccccnccccenccsccsscesocccessecsecesess i

RULES 14.1 AND 29.6 STATEMENT ...................... i

sits iaensenieabaibiintiediia 1

ST i iisiceittiinncnciiiatiiniannsidisadsnmumiessteiubiinann 1

STATUTORY AND REGULATORY

PROVISIONS INVOLVED ..........0cccccccccccsscscccsscesecceress 1

ET sic csiianintisiiiciaiaitieeiaatsaabieiuasiiceiairebiaaieaieiainiinia 1

A. The Federal Statutory Context........................ 5

B. EPA’s Silvicultural Rulle...................ccsseeeessseeees 6

C. Stormwater Regulation Under The 1987

Amendments To The Clean Water Act.......... 10

D. Oregon’s Regulation Of Runoff From

SO iticcciaciataiecinsinainnticiadbeninnintiia 12

E. The District Court’s Decision

Dismissing Plaintiff's Suit. ...................... 13

F. The Ninth Circuit’s Decision Ordering

EPA To Regulate Forest Road Runoff As

An Industrial Stormwater Discharge. ........... 14

REASONS FOR GRANTING THE PETITION ....... 15

1. IN CONFLICT WITH DECISIONS OF

THIS COURT AND OTHER CIRCUITS,

THE NINTH CIRCUIT FAILED TO

DEFER TO EPA’S INTERPRETATION OF

THE CLEAN WATER ACT. ...................ccceeeeeeeees 16

A. This Court’s Precedents Require

Deference To EPA’s Silvicultural And

I a ccetietll 16

B. The Ninth Circuit’s Ruling Conflicts

With Decisions Of Other Circuits. ................. 25

Vv

TABLE OF CONTENTS—continued

C. The Ninth Circuit’s Errors On The

Merits Led It To Err In Finding Subject

ESTERASE RETA

II. THE QUESTION PRESENTED IS OF

GREAT PRACTICAL IMPORTANCE AND

IS RIPE FOR THIS COURT'S REVIEW. ....

ET sncecinniiticiaiasinnnenniMuanstatnaiiinniiauiniaines

APPENDIX

Opinion for the U.S. Court of Appeals for the

Ninth Circuit and Order Denying Rehear-

ing and Rehearing En Banc (May 17, 2011)

Opinion for the District Court for the District

of Oregon (Mar. 1, 2007)...................cceeeeeeeeeees

Pertinent Statutes and Regulations...................

EPA’s Statement of Non-Opposition And

Memorandum in Support of PALCO’s Mo-

tion to Dismiss, Environmental Protection

Information Center v. Pacific Lumber Co.,

No. C 01-2821 (N.D. Cal. filed Nov. 17,

IIE enttssnsccnssonemenneiiacanninenpniibasehictammetnedmesonene

United States’ Amicus Brief, Northwest Envi-

ronmental Defense Center v. Brown, No.

3:06 CV 01270 (D. Or. filed Dec. 6, 2006) .....

Page

— 30

vi

TABLE OF AUTHORITIES

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992)............. 5

Association to Protect Hammersley, Eld &

Totten Inlets v. Taylor Resources, Inc., 299

Fb 5 Yo er eneeenmeneene 28

Auer v. Robbins, 519 U.S. 452 (1997)............. passim

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 244 F.

Supp. 2d 41 (N.D.N.Y. 2003) ...............ccccceeeeeees 33

CFTC v. Schor, 478 U.S. 833 (1986)..................006. 24

Chase Bank USA v. McCoy, 131 S. Ct. 871

Ree ek Oe TON een 23

Chemical Mfrs. Ass’n v. Nat. Res. Def. Council,

ls ST icniiccnenensincnseaniiiiceinintieciiecanesis 19

Chevron U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984) .................000 16, 24

Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council, 129 S. Ct. 2458

TORR AT A a LOMA NT ee 16, 24

Conservation Law Foundation v. Hannaford

Bros. Co., 327 F. Supp. 2d 325 (D. Vt.

2004), aff'd, 139 F. App’x 3381 (2d Cir.

ST icncinclédtetuinninidiinnseiiicbiineidnatidliatbialatiibiiabiaediatnitied 26, 27

vil

TABLE OF AUTHORITIES—continued

Page(s)

Environmental Defense Center v. EPA, 344

F.3d 832 (9th Cir. 2003).....................044 11, 14, 28

Fishermen Against the Destruction of the Envi-

ronment v. Closter Farms, 300 F.3d 1294

EE CITT iccicetihnpnsiesniinmsabiimeminniaiebiciiemeces 27

League of Wilderness Defenders v. Forsgren,

309 F.3d 1181 (9th Cir. 2002)............000..0.....0.. 28

Mayo Foundation for Med. Educ. & Research

v. United States, 131 S. Ct. 704 (2011)............. 24

Natural Res. Def. Council v. Train, 396 F.

Supp. 1393 (D.D.C. 1975), affd sub nom.

Natural Res. Def. Council v. Costle, 568

Fe BERD GAG. Gab. BGG) .ccccccccecccesccccscccesceccssees 7

Newton County Wildlife Association v. Rogers,

141 F.3d 803 (8th Cir. 1998)....................00 25, 26

Rapanos v. United States, 547 U.S. 715 (2006)..... 34

Smiley v. Citibank (South Dakota), N.A., 517

Ne i niaiclasinesbiniciedaiiadinteiininanietiinneidinnian 17

SWANCC v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001)......cccesccscccssscscsesseseseseseeeeeees 34

Talk America, Inc. v. Michigan Bell Tel. Co.,

Bs Se cc iccinicdetinibinenieeticemnbiiates 16

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Mead Corp., 533 U.S. 218

Waterkeeper Alliance v. EPA, 399 F.3d 486 (2d

SSE ECan a Rem NT NN nee 32

STATUTORY AND REGULATORY MATERIALS

IS Oe Ie iisscensninnindadiiihereitemnapinnionniannniniiins 1

OEE LEO RD 5, 34

TT a 6,17

een 5

as 6

ee Oe I rcticcencesnnciannntnnincvinmenennaniiinaniaivit 6,17

Bs Oe EE icctericcnentcseemantnictnnnntmensinnienreninnnanii 33

ee i ie Pe crcnvicnonstupesscinsenssnniieninsennnnesimnnenti 6

Be i IE cicrnsssnnnuicninierneiiccieubuticcnmnueenedl passim

Be a Oe SU icnrnctcnntcinescnssicenennsinninnimennneuninies 5, 17

a ey Ob ER icnccisnecisninincinnionineiotants 1, 15, 29, 33

ee Es Ob EP intcrsnnseornenniveementncmnveenions 15, 29, 30

I oo iccrescicstieininietiinstconinssineinmesi 28

ix

TABLE OF AUTHORITIES—continued

Page(s)

oe a ERE ee 10, 20, 21

Ne SEE Wittiiniedecsssacuinininniiinniicindsiiial passim

a ae Se Se itinsctitniscnciteininniisniidie 8,18

40 C.F.R. § 125.4 (1975) v.cccscccccsscsescsssssssscseseatene, 6, 18

40 Fed. Reg. 56932 (Dec. 5, 1975).......... 7, 19, 20, 34

41 Fed. Reg. 6281 (Feb. 12, 1976)................... passim

41 Fed. Reg. 24709 (June 18, 1976)....... 8, 18, 19, 20

45 Fed. Reg. 33290 (May 19, 1980).........-sseee-o-e 9, 18

55 Fed. Reg. 20521 (May 17, 1990)...........-.. 9, 19, 20

55 Fed. Reg. 47990 (Nov. 16, 1990) ............. cee 10

64 Fed. Reg. 46058 (Aug. 23, 1999) ...................00000 9

64 Fed. Reg. 68722 (Dec. 8, 1999)..............ccccceeeeeee 1]

65 Fed. Reg. 43586 (July 13, 2000)..................000000 9

Bi a I cas iccsiscahninsiniecclinesieiticheiels 12

__ nT 13

MISCELLANEOUS

157 Cong. Rec. $4611 (daily ed. July 14, 2011)..... 30

x

TABLE OF AUTHORITIES—continued

Page(s)

Kevin Belt & Robert Campbell, Silvics & Sil-

viculture: The Agriculture of Trees, avail-

able at www.wvu.edu/~agexten/

i eanlals 17

The Clean Water Act Handbook (M. Ryan ed.

ST iaistielcsnsieisiaiailieddiadetiasdasdabiaeidipabinicelaiadiblithaadinmnbandeiodweineden 5

EPA, Storm Water Discharges Potentially

Addressed by Phase II of the NPDES Storm

Water Program (Mar. 1995).............c.c0cec00s passim

EPA, Stormwater Phase II Final Rule,

Construction Site Runoff Control,

Minimum Control Measures (rev'd Dec.

Se ae ee ok ona Eee oO ll

EPA, NPDES Permit Writers Manual,

http://www.epa.gov/npdes/

TET siiuinidsiitinceisnnndinisnnenennsannnsenniinen 32

EPA Office of Water, General Permit Program

RTE en 32

John Gifford, Practical Forestry (1907)..............0 17

House Comm. on Oversight and Government

Reform, Subcomm. on Regulatory Affairs,

Assessing the Cumulative Impact of

Regulation on U.S. Manufacturers (Mar. 9,

RRC ee ane ere ee Ran re Ie Oe Pe ee 31

x]

TABLE OF AUTHORITIES—continued

Page(s)

http://water.epa.gov/polwaste/nps/forestry/fore

I I i cericcisrnstintntasticsannitilbareneiiiis 20

Jeffrey M. Jaba, Generally Illegal: NPDES

General Permits Under the Clean Water

Act, 31 HARV. ENVT’L L. REV. 409 (2007).......... 32

S. Rep. 99-50 (S. 1128) (May 14, 1985),

reprinted in 2 Leg. Hist of Water Quality

p * ger mennae baie anne t Mer LONE OT Saree 33

Erik Schilling, Nat'l Council for Air and

Stream Improvement, Compendium of For-

estry Best Management Practices for Con-

trolling Nonpoint Source Pollution in North

America (Tech. Bull. 966, Sept. 2009)........ 12, 33

W. Brad Smith et al., Forest Resources of the

U.S., 2007, available at http://www.fs.

fed.us/nrs/pubs/gtr/gtr_wo78.pdf..................0065 31

Karen Sorali, U.S. Dep’t of Agriculture Forest

Service, Forestry Best Management Prac-

tices in Watersheds, available at

http://www.

epa.gov/owow/watershed/wacademy/acad20

I I i tineissnninitcrtiniivianiinscinmianiionansenie 12

U.S. Forest Service, Implications of Decision

in NEDC v. Brown to Silvicultural Activi-

ties on National Forest System Land, Doc.

ee ie SEE tiiaiicthindirensiniintiiceitncniesincinasins 31

Petitioners respectfully petition for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-47a) is reported at 640 F.3d 1063. The opinion of

the district court (App., infra, 48a-68a) is reported at

476 F.Supp.2d 1188.

JURISDICTION

The judgment of the court of appeals was entered

on August 17, 2010. After the court of appeals ex-

tended the time to file, petitioners filed a timely peti-

tion for rehearing and rehearing en banc on October

5, 2010. The court issued an amended opinion on

May 17, 2011. By order of the same date, the court

denied the petitions for panel and en banc rehearing.

App., infra, 2a. On August 4, 2011, Justice Kennedy

extended the time for filing petitions for certiorari to

September 14, 2011. This Court’s jurisdiction rests

on 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY PROVI-

SIONS INVOLVED

Relevant statutory and regulatory provisions are

reproduced at App., infra, 69a-80a.

STATEMENT

Plaintiff Northwest Environmental Defense Cen-

ter (“NEDC”) brought a citizen suit under Clean Wa-

ter Act (“CWA”) § 505, 33 U.S.C. § 1365, against for-

est products companies, petitioners here, and the

Oregon State Forester and members of the Oregon

Board of Forestry (the “State defendants”). Petition-

ers American Forest & Paper Association, Oregon

Forest Industries Council, and Tillamook County in-

2

tervened in support of defendants. Plaintiff alleges

that defendants violated CWA §§ 301 and 402 be-

cause “ditches, channels, culverts, pipes and other

‘point sources” along the Trask and Sam Downs

Roads and at “hundreds of other locations” through-

out Oregon State Forests discharge precipitation

runoff containing pollutants into Oregon waters

without a National Pollutant Discharge Elimination

System (“NPDES”) permit. First Am. Cmplt. 44 1-6.

NEDC alleges that the Trask and Sam Downs

Roads are State-owned roads used by petitioner

companies for hauling timber. Under timber sale

contracts with the Oregon Department of Forestry,

petitioner companies maintain the roads as needed.

Petitioners’ use of these public roads, plaintiff al-

leges, creates sediment and other pollutants that are

carried by runoff into roadside culverts and ditches

and eventually deposited into navigable waters. First

Am. Cmplt. 4 5. Plaintiff alleges that, as a result, de-

fendants were required to obtain NPDES permits

from Oregon’s Department of Environmental Quality

—to which EPA has delegated the NPDES program.

Id. 44 32, 77. NEDC sought injunctive and declara-

tory relief, penalties, and attorneys’ fees. Id. § 1.

Defendants and intervenors moved to dismiss. As

relevant here, their motion relied on EPA’s Silvicul-

tural Rule, 40 C.F.R. § 122.27, under which natural

runoff from forest roads is categorized as nonpoint

source activity that does not require an NPDES per-

mit, and on EPA stormwater regulations that ex-

clude forest road runoff from permitting. The United

States filed an amicus brief in support of dismissal,

urging deference to EPA’s interpretation of the CWA

and its own rules. App., infra, 93a-133a. The district

court dismissed, reasoning that the roads and asso-

3

ciated runoff collection systems are nonpoint sources

and that EPA’s Silvicultural Rule applies. App., in-

fra, 48a-68a.

The Ninth Circuit reversed, rejecting the views of

EPA set forth in an amicus brief and at argument.

App., infra, 1a-47a. It held, first, that although EPA

intended the Silvicultural Rule to define runoff col-

lected in ditches and culverts as a nonpoint source,

those ditches and culverts are in fact point sources

that require NPDES permits. Second, the court held,

channeled runoff from forest logging roads is storm-

water discharge “associated with industrial activity”

under Section 402(p) of the CWA that must be per-

mitted. These rulings conflict with decisions of the

Second, Eighth, and Eleventh Circuits; disregard the

proper relationship between executive and judicial

authority set forth in this Court’s precedents; and

undermine the role of the States under the Clean

Water Act.

EPA has not since passage of the CWA required

permits for forest roads used to transport timber. By

its Silvicultural Rule, it has for 35 years defined

natural runoff from such roads—including runoff col-

lected by drainage systems that are an integral part

of forest road construction and operation—as non-

point source pollution to be addressed by best man-

agement practices rather than point source effluent

standards. EPA's position has repeatedly been set

forth in iterations of the Silvicultural Rule, explana-

tions of the rule, and briefs.

After 1987 amendments to the CWA established

a new, two-phase, regime for regulating stormwater,

EPA maintained the same position. When EPA im-

plemented Congress’s “Phase I” mandate that

stormwater “associated with industrial activity” be

4

subject to NPDES, EPA provided that stormwater

runoff defined by the Silvicultural Rule as nonpoint

source was not covered by this requirement. And

when EPA in “Phase II” considered what other

stormwater might appropriately be permitted under

NPDES, it weighed extending permitting to forest

roads, but ultimately did not do so.

The Ninth Circuit not only disapproved EPA’s in-

terpretation of the Act and EPA’s own rules, but also

required EPA to regulate collected natural runoff

from forest roads as stormwater “associated with in-

dustrial activity’—-even though that statutory phrase

plainly leaves discretion to EPA. Substituting its

own views for those of the agency, the Ninth Circuit

violated fundamental tenets of administrative law

and created its own flawed environmental policy.

EPA’s consistent position of 35 years is reason-

able. Natural runoff over thousands of miles of forest

roads is more effectively addressed, EPA determined,

by best management practices (“BMPs”) rather than

by effluent limitations normally applied to end-pipe

discharges. Indeed, Oregon has specifically required

drainage systems like those on the Trask and Sam

Downs Roads as BMPs to reduce water pollution.

The Ninth Circuit’s ruling is environmentally

counterproductive, forcing an effluent limitation re-

gime onto natural runoff for which it is a poor fit. It

would divert resources from addressing pollution

through more effective BMPs to costly and time-

consuming permitting and litigation. It could even,

perversely, cause states to alter road drainage sys-

tem requirements in order to reduce point-source

permitting costs and risks. The Ninth Circuit should

have deferred to EPA’s long-standing interpretation

of the CWA and its own regulations, as other courts

5

of appeals have done. This Court’s review is urgently

required to resolve the resulting split in the Circuits,

to restore EPA and State authority, and to bring cer-

tainty to users of forest roads, who face the risk of

criminal and civil penalties and citizen enforcement

if permits are required.

A. The Federal Statutory Context.

The Clean Water Act balances federal and state

powers, forming “a partnership” “animated by a

shared objective: ‘to restore and maintain the chemi-

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

waters.” Arkansas v. Oklahoma, 503 U.S. 91, 101

(1992).

CWA § 402 creates the NPDES permitting sys-

tem for “point sources” that “discharge” “any pollut-

ant” to U.S. waters. 33 U.S.C. § 1342(a); see CWA

§ 301(a), 33 U.S.C. § 1311(a). A “point source” is “any

discernible, confined and discrete conveyance,” in-

cluding a “ditch, channel, tunnel [or] conduit,” from

which pollutants are discharged to navigable waters.

CWA § 502(14), 33 U.S.C. § 1362(14). But the term

“point source” expressly “does not include agricul-

tural stormwater discharges.” Jbid.

Beyond Section 402 and the separate Section 404

permit scheme for dredged and fill material, Con-

gress largely left the task of addressing water pollu-

tion to the States, with federal assistance and over-

sight. See The Clean Water Act Handbook 191-220

(M. Ryan ed. 2003). Consistent with Congress’s pur-

pose to “preservie] and protect the primary responsi-

bilities and rights of States to prevent, reduce, and

eliminate pollution” and “plan the development and

use” of “land and water” (CWA § 101(b), 33 U.S.C.

§ 1251(b)), States are responsible for establishing

6

water quality standards (CWA § 303(a), 33 U.S.C.

§ 1313(a)) and for developing programs to manage

nonpoint sources of water pollution like runoff. CWA

§§ 208, 303(d), 319, 33 U.S.C. §§ 1288, 1313(d), 1329.

Congress understood that “nonpoint sources of

pollutants” include “agricultural and silvicultural ac-

tivities” such as “runoff from fields and crop and for-

est lands.” CWA § 304(f)(1) & (2)(A), 33 U.S.C.

§ 1314(f)(1) & (2)(A). It directed EPA to assist States

in developing “procedures and methods,” including

“land use requirements” like BMPs, “to control to the

extent feasible” “silviculturally related nonpoint

sources of pollution.” 33 U.S.C. § 1288(b)(2)(F).

B. EPA’s Silvicultural Rule.

1. Since passage of the CWA—the Ninth Circuit

recognized—EPA has “treatfed] all natural runoff’

from most silvicultural] activities “as nonpoint pollu-

tion, even if channeled and discharged through a dis-

cernible, confined and discrete conveyance” like a

roadside ditch or culvert. App., infra, 22a; see id. at

24a (“collected runoff from silviculture” is “categori-

cally” not subject to NPDES), 32a (“the intent of

EPA” is to define “all natural runoff from silvicul-

tural activities” as nonpoint source, “irrespective of

whether, and the manner in which, the runoff is col-

lected, channeled, and discharged”).

EPA promulgated a rule in 1973 providing that

“(djischarges of pollutants from agricultural and sil-

vicultural activities,” including “runoff” from “forest

lands,” “do not require an NPDES permit” unless

identified by regulators “as a significant contributor

of pollution.” App., infra, 17a, quoting 40 C.F.R.

§ 125.44) (1975). When that rule was challenged,

EPA told a district court that the “exempted catego-

7

ries” are “ill-suited for inclusion in a permit pro-

gram.” Natural Res. Def. Council v. Train, 396

F.Supp. 1393,.1395 (D.D.C. 1975), affd sub nom.

Natural Res. Def. Council v. Costle, 568 F.2d 1369

(D.C. Cir. 1977).

2. The district court in Train held the exemption

in the 1973 rule too broad and suggested that EPA

use its authority to identify specific nonpoint source

activities as a means of managing its program. See

396 F.Supp. at 1401-1402 (“Congress intended for

{EPA} to determine, at least in the agricultural and

silvicultural areas, which activities constitute point

and nonpoint sources”), affd, 568 F.2d at 1382

(“power to define point and nonpoint sources is

vested in EPA”).

When EPA revisited the rule, it explained that

agriculture and silviculture “present runoff-related

problems not susceptible to the conventional NPDES

permit program including effluent limitations.” App.,

infra, 18a-19a, quoting 40 Fed. Reg. 56932 (Dec. 5,

1975). EPA stated that “whether or not the rainfall

happens to collect before flowing into navigable wa-

ters”—as “[a]gricultural and silvicultural runoff * * *

frequently flows into ditches * ** before discharg-

ing”’—such runoff “is more properly regulated under

section 208” by States as “nonpoint in nature and

should not be covered by the NPDES permit pro-

gram.” Jd. at 19a (emphasis added).

Accordingly, when EPA proposed the Silvicul-

tural Rule in 1976, it “determined that most water

pollution related to silvicultural activities is nonpoint

in nature.” App., infra, 19a, quoting 41 Fed. Reg.

6282 (Feb. 12, 1976). “Only those silvicultural activi-

ties” where a discharge from a point source results

from “controlled water used by a person” were to be

8

subject to NPDES permitting. Jd. at 192-20a. EPA’s

final rule identified four “controlled water” dis-

charges—from “rock crushing, gravel washing, log

sorting,” and “log storage facilities.” App., infra, 20a,

citing 41 Fed. Reg. 24709, 24711 (June 18, 1976); 40

C.F.R. § 124.85 (1976). The Ninth Circuit explained

that in consequence of this rule, “[a]ny other silvicul-

tural] discharge of pollutants, even if made through a

discernible, defined and discrete conveyance, was

considered a nonpoint source of pollutants.” App., in-

fra, 20a.

EPA explained its basis for defining most silvi-

cultural discharges as nonpoint source: the pollut-

ants discharged were “induced by natural processes,

including precipitation” and “runoff’; were “not

traceable to any discrete and identifiable facility”;

and were “better controlled through the utilization of

best management practices.” App., infra, 21a, quot-

ing 41 Fed. Reg. 24710 (June 18, 1976). Under these

criteria, the final rule stated in a comment, “[t]he

term ‘silvicultural point source’ * * * does not include

nonpoint source activities inherent to silviculture

such as * * * surface drainage, and road construction

and maintenance from which runoff results from

precipitation events.” Id. at 22a, quoting 40 C.F.R.

§ 124.85 (1976). EPA stated that, pursuant to this

rule, “ditches, pipes and drains that serve only to

channel, direct and convey non-point runoff from pre-

cipitation are not meant to be subject to the § 402

permit program.” Id. at 23a, quoting 41 Fed. Reg.

6282 (Feb. 12, 1976) (emphasis added). Rather, “run-

off from road construction and maintenance for the

purposes of forest management falls more generally

under the characteristics of nonpoint source pollu-

tion.” 41 Fed. Reg. 24711 (June 18, 1976).

9

3. The current version of EPA’s Silvicultural

Rule, promulgated in 1980, differs “in only minor re-

spects.” App., infra, 26a. It retained the four “silvi-

cultural point sources.” 40 C.F.R. § 122.27(b), App.,

infra, 26a-27a. And it moved the definition of “non-

point source silvicultural activities” from the com-

ment to the text of the rule, slightly modifying the

language to provide that nonpoint source activities

include “surface drainage, or road construction and

maintenance from which there is natural runoff.”

Ibid.; see 45 Fed. Reg. 33290, 33446-33447 (May 19,

1980).

Substituting “from which there is natural runoff’

for “from which runoff results from precipitation

events” was not a substantive change. EPA made

clear that after this change, runoff from forest roads,

“although sometimes channeled,” remains “non-point

source in nature” because it is “caused solely by

natural processes, including precipitation and drain-

age,” is “not otherwise traceable to any single identi-

fiable source,” and is “best treated by non-point

source controls.” 55 Fed. Reg. 20521, 20522 (May 17,

1990) (emphasis added).

4.In 1999, EPA proposed to modify 40 C.F.R.

§ 122.27 to replace the categorical treatment of run-

off from silvicultural activities with case-by-case con-

sideration of whether a permit is required in order to

achieve water quality standards. See 64 Fed. Reg.

46058, 46077, 46088 (Aug. 23, 1999). Following pub-

lic comment EPA abandoned that proposal. See 65

Fed. Reg. 43586, 43652 (July 13, 2000).

10

C. Stormwater Regulation Under The 1987

Amendments To The Clean Water Act.

As enacted in 1972 the CWA made no distinction

between stormwater and other sources of pollutants.

But in 1987 Congress enacted a new two-step regime

for regulating point sources that convey stormwater

into navigable waters. 33 U.S.C. § 1342(p).

In Phase I, Congress identified five classes of

stormwater discharges that required NPDES per-

mits, including discharges “associated with indus-

trial activity." CWA § 402(p)(1)-(3), 33 U.S.C.

§ 1342(p)(1)-(3). EPA’s 1990 regulations implement-

ing Phase I defined “associated with industrial activ-

ity” to mean discharges “directly related to manufac-

turing, processing, or raw materials storage areas at

an industrial plant.” 40 C.F.R. § 122.26(b)(14) (em-

phasis added). And they provided that Phase I per-

mitting does not apply to “discharges from facilities

or activities excluded from the NPDES program un-

der this Part 122” (ibid.), which includes the silvicul-

tural exclusion at § 122.27. See 55 Fed. Reg. 47990,

48011 (Nov. 16, 1990) (“existing regulations at 40

CFR 122.27 currently define the scope of the NPDES

program with regard to silvicultural activities,” and

“EPA does not intend to change the scope of 40 CFR

122.27 in this rulemaking”).

Phase II required EPA to consider whether addi-

tional stormwater discharges should be subject to

NPDES. CWA § 402(p)(6). In developing Phase II

regulations, EPA explained that its Phase I regula-

tions excluded “runoff from agricultural and silvicul-

tural activities.” EPA, Storm Water Discharges Po-

tentially Addressed by Phase II of the NPDES Storm

Water Program, at 2-23 n.8 (Mar. 1995). And in list-

ing “Timber Products Facilities” that are “associated

11

with industrial activity” and hence subject to Phase I

permitting, EPA identified cutting, planing, loading,

sorting and storing logs, and manufacturing, assem-

bling, and preserving wood products, but not the use

of forest roads to transport timber. Jd., Appendix E,

at E-2-3.

In Phase II rules promulgated in 1999, EPA des-

ignated two categories of stormwater discharge that

“present a high likelihood of having adverse water

quality impacts”: small municipal storm sewer sys-

tems and some construction sites. EPA, NPDES—

Regulations for Revision of the Water Pollution Con-

trol Program Addressing Storm Water Discharges, 64

Fed. Reg. 68722, 68734 (Dec. 8, 1999). EPA reached

this decision after considering studies that showed

urban storm sewers and construction pollution were

a much more serious problem than pollution from

“agricultural” or “silvicultural” sources. Id. at 68726-

68727. See EPA, Stormwater Phase II Final Rule,

Construction Site Runoff Control, Minimum Control

Measures 1 (rev'd Dec. 2005) (“Sediment runoff rates

from construction sites” are “1,000 to 2,000 times

greater than those of forest lands”).

An environmental group challenged EPA’s deci-

sion not to require Phase II permitting of discharges

from roads used for logging. In Environmental De-

fense Center v. EPA, 344 F.3d 832, 861 (9th Cir.

2003), the Ninth Circuit remanded the rule to EPA

to explain its decision not to apply NPDES to forest

roads under Phase II, but did not strike down the

rule. Since 2003, EPA has taken no public action on

that remand.

12

D. Oregon’s Regulation Of Runoff From

Forest Roads.

Consistent with this statutory and regulatory

scheme, States regulate forestry operations, includ-

ing forest roads, using best management practices

adapted to their own “climate, soils, topography, and

aquatic biota.” Erik Schilling, Nat’l Council for Air

and Stream Improvemert, Compendium of Forestry

Best Management Practices for Controlling Nonpoint

Source Pollution in North America 194 (Tech. Bull.

966, Sept. 2009). EPA provides States with guidance

in the design and implementation of BMPs. See, e.g.,

Karen Sorali, U.S. Dep’t of Agriculture Forest Ser-

vice, Forestry Best Management Practices in Water-

sheds, available at http://www.epa.gov/owow/water-

shed/wacademy/acad2000/forestry/index.htm. And

“all jurisdictions in North America with substantial

levels of timber harvest have made substantial in-

vestments in their forestry [nonpoint source} control

programs,” which are “based on BMPs that have

been proven effective through research and practical

experience” and that are backed by “monitoring pro-

grams” that “report generally high levels of compli-

ance and/or few significant risks to water quality.”

Schilling, supra, at 196.

Like other States, Oregon regulates runoff from

forest roads as nonpoint source pollution. By statute,

the Oregon Board of Forestry is charged, in consulta-

tion with Oregon’s Environmental Quality Commis-

sion, with establishing BMPs “to insure that to the

maximum extent practicable nonpoint source dis-

charges of pollutants resulting from forest operations

on forestlands do not impair’ achievement of the

State’s water quality standards. Or. Rev. Stat.

§ 527.765(1), (2).

13

Oregon’s Board of Forestry has promulgated

“standards for locating, designing, constructing and

maintaining efficient and beneficial forest roads” in a

manner that provides “maximum practical protec-

tion” for “water quality.” Cr. Admin. R. § 629-625-

0000(3). Roads must be located, constructed, and op-

erated to minimize “risk of sediment delivery to wa-

ters of the state.” Id. § 629-625-0330; see id. § 629-

625-0200(2) & -0300(2). To meet this goal, road op-

erators must “provide a drainage system” that satis-

fies six criteria. Id. § 629-625-0330(1). As Oregon ex-

plained to the Ninth Circuit, “drainage ditches and

culverts” are among the “best management practices”

it has adopted. Br. of the State Appellees, No. 07-

35266, at 18-20.

E. The District Court’s Decision Dismissing

Plaintiffs Suit.

The District Court dismissed NEDC’s suit for

failure to state a claim. Judge King determined that

under the Silvicultural Rule “the building and main-

tenance of the forest roads and the hauling of timber

on the roads” are “not point sources when the natu-

ral runoff flows into the waters of the United States.”

App., infra, 62a. Rather, the “road/diich/culvert sys-

tem and timber hauling on it is a traditional dis-

persed activity from which pollution flowing into the

water cannot be traced to single discrete sources.”

Ibid. In so holding, the District Court deferred to

EPA’s interpretation of its own rule, citing Auer v.

Robbins, 519 U.S. 452 (1997).

Given this holding, the court did not reach the

question whether those discharges are otherwise ex-

cluded from permitting under the stormwater

amendments and regulations. It did, however, reject

plaintiffs argument that NPDES permits are re-

14

quired as a result of the Ninth Circuit’s previous re-

mand of EPA’s Phase II regulations in EDC, 344

F.3d 832. As the District Court explained, the Ninth

Circuit remanded to allow EPA to address objections

and thereby “permit judicial review,” not because

the regulations were substantively deficient. App.,

infra, 65a-66a. And “[w]hen [EPA’s] Phase II regula-

tions went into effect, a stormwater discharge left

unregulated” as a point source, like forest road run-

off, complied with the CWA. Id. at 67a.

F. The Ninth Circuit’s Decision Ordering

EPA To Regulate Forest Road Runoff As

An Industrial Stormwater Discharge.

The Ninth Circuit reversed. It conceded that

when read to “reflect the intent of EPA,” the Silvicul-

tural Rule defines “natural runoff from silvicultural

activities” as a nonpoint source regardless of whether

“the runoff is collected, channeled, and discharged

into protected water.” App., infra, 32a. But the court

thought this reading inconsistent with the CWA’s

definition of “point source.” It substituted its own

reading of the rule—one it acknowledged “does not

reflect the intent of EPA.” Jbid. Under the court’s

reading, forest road runoff is nonpoint source “only

as long as the ‘natural runoff remains natural” and

is not “channeled and controlled.” Ibid.

The Ninth Circuit then held that the discharges

at issue are “associated with industrial activity” and

thus require NPDES permits under Phase I of EPA’s

stormwater regulations. App., infra, 38a. It did so

even though it acknowledged that EPA regulations

define “discharges ‘associated with industrial activ-

ity” not to include discharges that are “excluded

from the NPDES program under [the Silvicultural

Rule].” Jbid.; see ibid. (the “preamble to the Phase I

15

regulations makes clear EPA’s intent to exempt non-

point sources as defined in the Silvicultural Rule

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

In response to petitions for rehearing, the Ninth

Circuit addressed whether it had subject matter ju-

risdiction to reject EPA’s reading of the Silvicultural

Rule under 33 U.S.C. § 1365(a). App., infra, 5a-7a.

According to the court, jurisdiction turned on

whether the Silvicultural Rule is ambiguous. If un-

ambiguous, then NEDC would have had to challenge

the Rule within 120 days of its issuance, a window

that closed decades ago. 33 U.S.C. § 1369(b)(1). But

because the court concluded the rule is ambiguous, it

found jurisdiction. It held that NEDC’s challenge is

based on “grounds which arose after such 120th day,”

because the United States’ definitive interpretation

of the rule occurred for the first time in this litiga-

tion. App., infra, 7a. The court did not reconcile this

reasoning with its own citations to EPA materials

dating back to 1976 that clearly state that channeled

forest road runoff is nonpoint source. Nor did it ex-

plain the jurisdictional basis for its rejection of EPA’s

Phase I rule.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari because the

Ninth Circuit, in conflict with decisions of other cir-

cuits, cast aside more than three decades of EPA

regulation and impermissibly imposed its own read-

ing of the CWA on EPA, the States, and the regu-

lated community. In doing so, it violated the most

basic tenets of judicial review of administrative ac-

tion, upended the federal-state balance struck by

Congress, and imposed a costly and poor-fitting ef-

fluent-control regime that is more likely to harm

than help the environment. These errors also led the

16

court of appeals to assert jurisdiction when the time

for challenging the Silvicultural Rule (in the court of

appeals in the first instance, not the district court)

expired decades ago. The vast reach of the Ninth Cir-

cuit over hundreds of millions of acres of western

forests magnifies the impact of its erroneous deci-

sion.

I. IN CONFLICT WITH DECISIONS OF THIS

COURT AND OTHER CIRCUITS, THE

NINTH CIRCUIT FAILED TO DEFER TO

EPA’S INTERPRETATION OF THE CLEAN

WATER ACT.

A. This Court’s Precedents Require Defer-

ence To EPA’s Silvicultural And Storm-

water Rules.

This Court’s precedents establish the deference

due by a court to an agency’s interpretation of a

statute. When Congress has delegated to an agency

the authority to implement a statute by rulemak-

ing—as Congress did here—“a court may not substi-

tute its own construction of a statutory provision for

a reasonable interpretation made by the administra-

tor of an agency.” Chevron U.S.A., Inc. v. Natural

Res. Def. Council, 467 U.S. 837, 844 (1984); see

United States v. Mead Corp., 533 U.S. 218, 226-227

(2001). Furthermore, an agency’s interpretation of its

own regulations is “controlling unless plainly errone-

ous or inconsistent with the regulation.” Auer v.

Robbins, 519 U.S. 452, 461 (1997); see Coeur Alaska,

Inc. v. Southeast Alaska Conservation Council, 129

S.Ct. 2458, 2472-2474 (2009) (deferring to EPA’s rea-

sonable explanation of ambiguous CWA regulations,

set forth in an internal memorandum); Talk Amer-

ica, Inc. v. Michigan Bell Tel. Co., 131 S.Ct. 2254,

2260-2262 (2011). This Court has explained that def-

17

erence is necessary because “Congress, when it left

ambiguity in a statute meant for implementation by

an agency, understood that the ambiguity would be

resolved, first and foremost, by the agency, and de-

sired the agency (rather than the courts) to possess

whatever degree of discretion the ambiguity allows.”

Smiley v. Citibank (South Dakota), N.A., 517 U.S.

735, 740-741 (1996).

The Ninth Circuit violated these precepts. It ac-

corded no deference at all to EPA’s rules or interpre-

tation of those rules. And it commanded EPA to in-

terpret the statutory phrase “associated with indus-

trial activity” to include discharges of channeled for-

est road runoff, thereby substituting its own views

for those of the expert agency and wreaking havoc on

a regulatory scheme that has been in place for more

than 35 years.

1. On its face, the CWA defines the term “point

source” “not [to] include agricultural stormwater dis-

charges.” CWA § 502(14), 33 U.S.C. § 1362(14). Silvi-

culture is a form of agriculture. E.g., www.wvu.edu/

~agexten/forestry/silvics.htm (“Silviculture is the ag-

riculture of trees”); John Gifford, Practical Forestry

12 (1907) (“silviculture is a branch of agriculture”).

Congress treated the two together when it specified

in section 304(f) of the Act that “nonpoint sources of

pollutants” include “agricultural and silvicultural ac-

tivities” like “runoff from fields and crop and forest

lands.” 33 U.S.C. § 1314(f(1) & (2)(A). See 33 U.S.C.

§ 1288(b)(2)(F) (directing EPA to assist States to de-

velop BMPs “to control to the extent feasible” “agri-

culturally and silviculturally related nonpoint

sources of pollution”).

2. Consistent with this Congressional intent,

EPA has always treated precipitation runoff from

18

silvicultural activities as nonpoint source in nature.

Its 1973 rule broadly exempted “(djischarges of pol-

lutants from agricultural and silvicultural activities.”

40 C.F.R. § 125.4G) (1975). In promulgating the Sil-

vicultural Rule in 1976, EPA “determined that most

water pollution related to silvicultural activities is

nonpoint in nature.” 41 Fed. Reg. 6281, 6282 (Feb.

12, 1976). It required an NPDES permit only for sil-

vicultural discharges resulting from “controlled wa-

ter use”—specifically in “rock crushing, gravel wash-

ing, log sorting,” and “log storage facilities.” 41 Fed.

Reg. 24709, 24711 (June 18, 1976); 40 C.F.R.

§ 124.85 (1976). Precipitation runoff from forest

roads is none of those, and does not result from the

controlled use of water.

The current version of the Silvicultural Rule con-

tinues to define a “silvicultural point source” as “any

discernible, confined and discrete conveyance related

to rock crushing, gravel washing, log sorting, or log

storage facilities which are operated in connection

with silvicultura] activities.” 40 C.F.R § 122.27(b).

And it expressly defines as “nonpoint source” all dis-

charges from “surface drainage, or road construction

and maintenance from which there is natural run-

off.” Ibid.; see 45 Fed. Reg. 33290, 33446-33447 (May

19, 1980). EPA considered replacing this categorical

definition for case-by-case inquiry, but decided

against making that change. See supra, p. 9.

3. Throughout, EPA has left no doubt that pre-

cipitation runoff from forest roads is nonpoint source

in nature even when it is channeled by roadside

ditches and culverts. In 1975, EPA explained that

“silvicultural runoff *** frequently flows into

ditches” before discharge, but that “whether or not

the rainfall happens to collect before flowing into

19

navigable waters,” it “is properly regulated under

section 208” by States as “nonpoint in nature and

should not be covered by the NPDES permit pro-

gram.” 40 Fed. Reg. 56932 (Dec. 5, 1975).

Accordingly, in promulgating the 1976 Rule, EPA

stated that “ditches, pipes and drains that serve only

to channel, direct and convey non-point runoff from

precipitation are not meant to be the subject of the

§ 402 permit program.” 41 Fed. Reg. at 6282 (Feb.

12, 1976). See also 41 Fed. Reg. 24709 (June 18,

1976) (“Insofar as [surface] drainage serves only to

channel diffuse runoff from precipitation events, it

should also be considered nonpoint in nature”); 55

Fed. Reg. 20521, 20522 (May 17, 1990) (runoff from

forest roads, “although sometimes channeled,” is

“non-point source in nature”). The Ninth Circuit thus

correctly discerned that EPA treats “discharges of

‘natural runoff [as] nonpoint sources of pollution,

even if’ they “are channeled and controlled” through

ditches and culverts. App., infra, 27a.

This interpretation reflects EPA’s practice. EPA

does not, in fact, require NPDES permits for chan-

neled forest road runoff, and has not done so since

passage of the CWA. Instead, EPA provides states

with information and assistance to promulgate best

management practices to control forest road runoff.

And states have in fact adopted and monitored BMPs

best suited to their own conditions, providing effec-

tive nonpoint source regulation. See supra, pp. 12-13.

4. EPA has provided cogent reasons for not re-

quiring permits for silvicultural runoff. See Chemical

Mfrs. Ass'n v. Nat. Res. Def. Council, 470 U.S. 116,

125 (1985) (EPA’s interpretation must be upheld if it

“is a sufficiently rational one to preclude a court from

substituting its judgment for that of EPA”). From the

20

start, EPA explained that effluent limitations are not

a reasonable or practical means to address silvicul-

tural precipitation runoff. See 40 Fed. Reg. 56932

(Dec. 5, 1975). The three pillars of EPA’s interpreta-

tion are that runoff is “induced by natural processes,

including precipitation”; is “not traceable to any dis-

crete and identifiable facility”; and is “better con-

trolled through the utilization of best management

practices” than effluent limitations. 41 Fed. Reg. at

24710 (June 18, 1976); see 55 Fed. Reg. 20521, 20522

(May 17, 1990); http://water.epa.gov/polwaste/nps/

forestry/forestrymgmt_index.cfm (describing EPA-

recommended BMPs).

5. After Congress enacted a new regime for

stormwater regulation in 1987, EPA continued to

treat channeled runoff from forest roads as nonpoint

source in nature. Congress in section 402(p) required

EPA to establish “Phase I” permitting for point

source discharges of stormwater “associated with in-

dustrial activity.” In implementing that provision,

EPA limited permitting to point source discharges

“directly related to manufacturing, processing, or

raw materials storage areas at an industrial plant”—

language that on its face does not describe runoff

from public roads used to haul timber. 40 C.F.R.

§ 122.26(b)(14). The statutory terms “associated

with” and “industrial activity” “comfortably bea[r]

the meaning the [Administrator] assigns” in that

regulation. Auer, 519 U.S. at 461.

Furthermore, EPA’s rule provides that the

Phase I permit requirement “does not include dis-

charges from facilities or activities excluded from the

NPDES program under this Part 122.” 40 C.F.R.

§ 122.26(b)(14). That provision incorporates the set-

tled meaning of the Silvicultural Rule, described

21

above, to exclude channeled stormwater runoff from

forest roads. !

In Phase II, EPA studied discharges from forest

products facilities, explained which ones qualified as

associated with industrial activities, and chose not to

require permits for channeled discharges from forest

roads, signaling no change from its long-held position

under the Silvicultural Rule. See supra, pp. 10-11.

6. EPA has maintained the same position in liti-

gation. In a 2003 brief urging dismissal of a suit al-

leging that runoff from forest roads collected in

“ditches, channels, pipes, [and] culverts” must be

permitted, EPA told the court that “discharge associ-

ated with an industrial activity” “does not include

discharges from facilities or activities excluded from

the NPDES program under this part 122”; that Part

122.27 “excluded runoff from certain silvicultural ac-

tivities from the NPDES program”; and that,

“[clonsequently, EPA did not incorporate silvicul-

tural storm water discharges into the definition of

‘storm water discharges associated with industrial

activities.” EPA’s Mem. in Support of PALCO’s Mot.

to Dismiss, Env. Protection Info. Ctr. v. Pacific Lum-

ber Co., No. C01-2821 (N.D. Cal. filed Nov. 17, 2003),

! EPA included in Phase I regulation timber-related industrial

facilities that fall within Standard Industrial Code groupings

10 through 45, such as lumber mills, including their “industrial

plant yards” and “immediate access roads.” 40 C.F.R.

§ 122.26(b)(14); see EPA, Storm Water Discharges Potentially

Addressed by Phase II of the NPDES Storm Water Program, at

2-22 to 23 & E-2 to 4 (Mar. 1995). But EPA observed that

“NPDES regulations specifically exempt some categories of ac-

tivity from the definition of point source, including storm water

runoff from agricultural sources and silviculture activities. Id.

at 2-23 n.8.

22

at 4, App., infra, 86a-87a. Furthermore, “EPA de-

clined to regulate discharges from forest roads in the

Phase II rulemaking.” Jd. at 6, App., infra, 90a. Ac-

cordingly, EPA explained, “storm water discharges

from forest roads are not currently subject to NPDES

permit requirements, and will not be subject to them,

unless and until EPA regulates them under” Phase

II (App., infra, 91a)—which EPA has not done in the -

eight years since it filed that brief. See also U.S.

Amicus Br. in Conservation Law Foundation v. Han-

naford Bros., No. 2:03-cv-00121 (D. Vt. filed Jan. 23,

2004).

To the district court here, the United States ex-

plained why “forestry roads like those at issue in this

case are not required to secure NPDES permits un-

der a proper construction of section 402 of the CWA,”

and why “[a] contrary determination would have sig-

nificant implications for EPA.” U.S. Amicus Br.,

NEDC v. Brown, 3:06-cv-01270 (N.D. Or. filed Dec. 6,

2006), at 2, App., infra, 98a. Among other things, the

United States pointed out that because “ditches [and]

culverts” are “an integral part of forest roads,” “read-

ing them as outside the scope of the [Silvicultural

Rule] does not make any sense because it defeats the

plain language of the regulation.” Jd. at 17, App., in-

fra, 114a. And it called for “{e]levated deference” be-

cause EPA “has ‘consistently followed’ the same in-

terpretation of its regulations.” App., infra, 115a.

In its brief to the Ninth Circuit, the U.S. again

explained that “EPA has made it clear that the term

‘natural runoff in the silvicultural rule categorically

excludes all stormwater runoff from forest roads,

even where the roads include channels, ditches, or

culverts.” U.S. Amicus Br., NEDC v. Brown, No. 07-

35266 (9th Cir. filed Nov. 15, 2007), at 25. See Auer,

23

519 U.S. at 462 (that an “interpretation comes to us

in the form of a legal brief” does not “make it unwor-

thy of deference”); Chase Bank USA v. McCoy, 131

S.Ct. 871, 881 (2011).2

7. Congress has never interfered with EPA’s po-

sition of three decades that channeled forest road

runoff is not subject to NPDES—including when it

adopted stormwater amendments to section 402 in

1987 that provided ample opportunity to address

stormwater from forest roads. “[W]hen Congress re-

Visits a statute giving rise to a longstanding adminis-

trative interpretation without pertinent change, the

congressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the inter-

2 In its first brief to the Ninth Circuit, on which counsel for EPA

is listed, the United States argued that the Court lacked juris-

diction over plaintiff's suit because it was a too-late attack on

the Silvicultural Rule. The Ninth Circuit initially did not ad-

dress jurisdiction, but thereafter sought additional briefing on

that issue. The United States’s brief on jurisdiction (which

listed no counsel] from EPA) stated that because the court had

held that the Silvicultural Rule was ambiguous, the district

court had citizen suit jurisdiction. A footnote stated: “neither

the rule itself nor EPA statements in the preamble clearly ad-

dressed” whether “channeled and collected runoff is included in

the term ‘natural runoff.’ The first time EPA expressed in an of-

ficial document its interpretation that ‘natural runoff would in-

clude runoff that is channeled, ditched or culverted into man-

made structures was in its amicus brief in this matter.” Amicus

Br. of the U.S. Responding to the Court’s Questions of Oct. 21,

2010, filed Feb. 10, 2011, at 10 n.5. This statement must rest on

a narrow conception of “official document” and be narrowly fo-

cused on the preamble to the final 1980 rule, for as we demon-

strate in this petition, and as the Ninth Circuit's opinion shows,

EPA has taken this position for decades in regulatory pro-

nouncements and briefs, not to mention in its day-to-day appli-

cation of the CWA.

24

pretation is the one intended by Congress.” CFTC v.

Schor, 478 U.S. 833, 846 (1986).

8. In these circumstances, Chevron deference is

appropriate. EPA’s Silvicultural Rule and stormwa-

ter regulations are clear, are reasonable interpreta-

tions of the statute, and exclude channeled forest

road runoff from permitting by definition. EPA had

ample authority to interpret the phrase “associated

with industrial activity” to exclude forest road runoff.

E.g., Mayo Foundation v. United States, 131 S.Ct.

704, 711 (2011).

Even if the regulations did not provide a “defini-

tive answer” to the question whether a permit is re-

quired, “agency interpretation and agency applica-

tion of the regulation[s]” lead to the same result.

Coeur Alaska, 129 S.Ct. at 2473. EPA’s consistent

statements in regulatory materials and briefs, and

its consistent practice, stretching over 35 years, is

entitled to deference under Auer because it not

plainly erroneous or inconsistent with the silvicul-

tural or stormwater regulations. 519 U.S. at 461-463.

See U.S. Amicus Br., NEDC v. Brown, No. 07-35266

(9th Cir.), at 24 (arguing for Chevron and Auer defer-

ence).

The Court should grant this petition to restore

EPA’s long-held and reasonable interpretations of

the CWA’s text and EPA’s own silvicultural and

stormwater rules, to which this Court’s decisions re-

quire deference, and to reverse the Ninth Circuit’s

extraordinary decision that EPA must interpret “as-

sociated with industrial activity” to encompass chan-

neled runoff from forest roads.

25

B. The Ninth Circuit’s Ruling Conflicts

With Decisions Of Other Circuits.

Other courts of appeals have ruled that NPDES

permits are not required in circumstances like those

at issue here. In Newton County Wildlife Association

v. Rogers, 141 F.3d 803, 810 (8th Cir. 1998), the

Eighth Circuit confronted the argument—in the con-

text of a suit by environmental groups against the

U.S. Forest Service to prevent timber sales in the

Ozark National Forest—that the Service “failed to

obtain necessary NPDES” permits for “discharges of

pollutants that will accompany logging and road con-

struction under the timber sales.”

Just as Oregon requires construction of drainage

systems as BMPs, it was “undisputed” in Newton

County that “the logging roads that the Forest Ser-

vice designed, engineered, staked and required the

[timber] purchasers to construct” include “culverts

and road-side ditches.” Reply Br. of Appellants, New-

ton County Wildlife Ass’n v. Rogers, No. 97-1852 (8th

Cir. filed Oct. 14, 1997), at 30. Plaintiffs argued that

these “culverts and other discrete sources and con-

veyances” were point sources requiring permits; that

EPA’s Silvicultural Rule “says nothing about silvicul-

tural point sources such as culverts”; and that the

district court’s ruling that no permit was required “is

contrary both to the plain language of the regulation

and to the purposes of the statute.” Br. of Appellants,

filed July 9, 1997, at 42-43; see Reply Br., supra, at

29-30 (“culverts” and “road-side drainage ditches” are

“point sources subject to NPDES,” “regardless

whether these improvements are constructed for a

‘logging road”).

The Eighth Circuit rejected these arguments as

“without merit.” 141 F.3d at 810. Judge Loken ex-

26

plained for a unanimous court that “EPA regulations

do not include the logging and road building activi-

ties cited by the Wildlife Association in the narrow

list of silvicultural activities that are point sources

requiring NPDES permits.” Jbid. Thus—in direct

conflict with the Ninth Circuit—the Eighth Circuit

deferred to EPA’s distinction in the Silvicultural

Rule between a narrowly defined set of point source

discharges from silviculture that require permits,

and other discharges, including those from logging

roads, that do not require permits. In the Eighth Cir-

cuit, the forest road runoff at issue here would not be

subject to NPDES.

The Ninth Circuit’s decision conflicts too with

Conservation Law Foundation v. Hannaford Bros.

Co., 327 F.Supp.2d 325 (D. Vt. 2004), affd, 139 F.

App’x 3381 (2d Cir. 2005) (“CLF”). There, the district

court rejected plaintiffs argument that a permit was

required for a commercial property’s “storm drain

and pipe”—a collection system that carried stormwa-

ter runoff to a brook that emptied to navigable wa-

ers. 327 F.Supp.2d at 326. The court “assumed” the

drain and pipe were a point source. Jbid. But in con-

tradiction to the Ninth Circuit here, it rejected the

contention that “all permit-less stormwater dis-

charges are prohibited” by the Act “even though nei-

ther EPA” nor State regulators required a permit. Jd.

at 330, 333; see also id. at 330 (the Act “cannot be in-

terpreted to require NPDES permits for all stormwa-

ter discharges notwithstanding [EPA’s] regulations”).

The Second Circuit summarily affirmed that ruling

“(flor substantially the reasons stated by the district

court.” 139 F. App’x at 338.

The court recognized in CLF that Congress

“grant(ed] EPA discretion to determine that certain

27

stormwater discharges require regulation while oth-

ers do not,” and that “EPA is not mandated to control

all stormwater discharges.” 327 F.Supp.2d at 330.

The Ninth Circuit, by contrast, gutted EPA’s discre-

tion by overriding EPA’s regulation specifying that

forest road runoff is not regulated as runoff “associ-

ated with industrial activity” under Phase I, and by

overriding EPA’s decision not to require NPDES

permits for such runoff under Phase IJ. Applying the

district court’s reasoning in CLF—which the Second

Circuit deemed worthy of summary affirmance—

would lead to the conclusion that the forest roads at

issue in this case do not require NPDES permits.

The Eleventh Circuit, addressing the agricul-

tural exemption, reached the same result. In Fish-

ermen Against the Destruction of the Environment v.

Closter Farms, plaintiff contended that Closter

Farms required an NPDES permit for a drainage

system that channeled precipitation runoff from ag-

ricultural lands then pumped it into a lake. 300 F.3d

1294 (11th Cir. 2002). Observing that the “CWA spe-

cifically exempts ‘agricultural stormwater discharges

* * * from the definition of a point source,” the Elev-

enth Circuit held that no permit was required. Jd. at

1297. By contrast to the Ninth Circuit here, the

Eleventh Circuit held that “[t]he fact that the

stormwater is pumped into Lake Okeechobee rather

than flowing naturally into the lake does not remove

it from the exemption. Nothing in the language of

the statute indicates that stormwater can only be

discharged where it naturally would flow.” Ibid.

The confusion on display in the Ninth Circuit’s

own decisions casts further doubt on its ruling. Here,

the Ninth Circuit commanded EPA to permit col-

lected runoff from forest roads as Phase I stormwater

28

“associated with industrial activity.” But in EDC,

344 F.3d at 862, 879, the Ninth Circuit held that

EPA had not adequately explained its decision to not

require NPDES permits for forest roads under Phase

I, remanding “so that EPA may consider in an ap-

propriate proceeding the Environmental Petitoners’

contention that § 402(p)(6) requires EPA to regulate

forest roads.” As EPA explained below, “[o]bviously,

if forestry roads were already covered by Phase I,

this remand would have been unnecessary.” U.S.

Amicus Br., No. 3:06-CV-01270, NEDC v. Brown (D.

Or. filed Dec. 6, 2006), at 27, App., infra, 127a. Other

Ninth Circuit rulings display similar inconsistency.

See League of Wilderness Defenders v. Forsgren, 309

F.3d 1181, 1185-1186 (9th Cir. 2002) (holding aerial

spraying of pesticides “directly into rivers” from a

“point source” requires NPDES permit, but distin-

guishing that activity from “silvicultural pest control

activities from which there is natural runoff’); id. at

1184 (“the most common example of nonpoint source

pollution is the residue left on roadways by automo-

biles”); Association to Protect Hammersley, Eld &

Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007,

1018-1019 (9th Cir. 2002) (upholding EPA regulation

defining certain “concentrated aquatic animal pro-

duction facilities” as nonpoint sources, 40 C.F.R.

§ 122.24(a), though rafts housing mussel farms were

“vessels” included in the statutory definition of a

point source; “I'’o hold that these facilities are * * *

point sources under the statutory definition would

render EPA’s criteria [for permitting] superfluous

and undermine the agency’s interpretation of the

[CWA]’).

29

C. The Ninth Circuit’s Errors On The Mer-

its Led It To Err In Finding Subject

Matter Jurisdiction.

Because of errors it made in interpreting the Sil-

vicultural Rule and stormwater amendments and

rules, the Ninth Circuit also erred in exercising sub-

ject matter jurisdiction. As the United States and pe-

titioners argued below, this suit is properly viewed

as a direct challenge to EPA’s rules. It does not al-

lege a violation of an “effluent standard or limita-

tion” under 33 U.S.C. § 1365(a). It therefore should

have been filed within 120 days of the rules’ promul-

gations, and filed in a court of appeals in the first in-

stance—neither of which requirements were met. 33

U.S.C. § 1369(b)(1); see also id. § 1369(b)(2) (“Action

of the Administrator with respect to which review

could have been obtained under [§ 1369(b)(1)] shall

not be subject to judicial review in any civil or crimi-

nal proceeding for enforcement”).

Plaintiffs challenge to the Silvicultural Rule

should have been brought within 120 days of the

Rule’s last promulgation in 1980, in a court of ap-

peals, because it was clear at that time that the Rule

excluded channeled runoff from NPDES permitting.

And because EPA excluded this runoff defined in the

Silvicultural Rule from the scope of its Phase I regu-

lations, it has been clear since those regulations were

promulgated in 1990 that channeled forest road run-

off is not a stormwater discharge associated with in-

dustrial activity.

The Ninth Circuit exercised jurisdiction because

it held that the Silvicultural Rule is ambiguous and

that the United States resolved that ambiguity for

the first time in this lawsuit. Supra, p. 23 & n.2; see

33 U.S.C. § 13869(b)(1) (allowing citizen suit after 120

30

days when “based solely on grounds which arose af-

ter such 120th day”). But EPA’s position has been

clear for decades. A court may not disregard EPA’s

regulations and rule interpretations, invent ambigu-

ity where none exists, and thereby resurrect a woe-

fully untimely rule challenge. To allow the Ninth

Circuit to do so here would destroy the repose Con-

gress granted in Section 1369(b)(1) and bring uncer-

tainty to every longstanding EPA regulation. This

serious error too warrants this Court’s review.

Il. THE QUESTION PRESENTED IS OF

GREAT PRACTICAL IMPORTANCE AND

IS RIPE FOR THIS COURT'S REVIEW.

Left undisturbed the Ninth Circuit’s decision

threatens economic and regulatory havoc. As Senator

Ron Wyden stated, “[iJf this decision is allowed to

stand, every use of forest roads will require permit-

ting and will therefore be subject to challenge by citi-

zen lawsuits,” which will “overburden landowners

and managers in the Ninth Circuit states by adding

significant compliance and permitting costs,” and

“create an opportunity for administrative appeal and

litigation every time a permit is approved.” 157

Cong. Rec. S4611 (daily ed. July 14, 2011). That

would undermine logging operations and “deny

States the use of their forests which they depend on

to pay for schools and services, while significantly

depressing the investment required to sustain pri-

vate forestry.” Jbid. Furthermore, the ruling upsets

the balance of responsibilities between the States

and the federal government, and it interferes with

good environmental stewardship.

1. The Ninth Circuit’s decision severely impacts

owners of public and private forest roads throughout

the west and Alaska and Hawaii. NEDC alleges that

31

there are “hundreds” of locations in Oregon State

Forests alone that require permits. First Am. Cmplt.

| 6. Nationwide, the U.S Forest Service—an agency

within the Department of Agriculture—has jurisdic-

tion over 193 million acres of forestland and 378,000

miles of roads and predicts that the Ninth Circuit’s

ruling could require it to obtain up to 400,000 per-

mits. U.S. Forest Service, Implications of Decision in

NEDC v. Brown to Silvicultural Activities on Na-

tional Forest System Land, Doc. 1570-1, at 3 (Sept. 7,

2010). Millions of acres of state-owned forests

throughout the Ninth Circuit will also be affected.

States own 75 million acres of forestland nationwide,

and in Alaska and Hawaii fully 20 percent of forest-

lands are state owned. W. Brad Smith et al., Forest

Resources of the U.S., 2007, at 19-20, available at

http://www.fs.fed.us/nrs/pubs/gtr/gtr_wo78.pdf.

The decision’s effect on the forest products indus-

try would be severe. Private forests provide 2.5 mil-

lion jobs and $87 billion in wages to American fami-

lies. Under the Ninth Circuit’s ruling, roads servic-

ing the Nation’s 423 million acres of privately owned

forestland would require countless permits. See

Smith, supra, at 12.

The burden of NPDES permitting is substantial.

Obtaining a permit involves a labyrinthine applica-

tion process that includes public hearings and com-

ments, extensive water sampling and testing, efflu-

ent limitations, strict technological standards, exten-

3 Statement of David P. Tenny, President and CEO, National

Alliance of Forest Owners, Before the House Committee on

Oversight and Government Reform, Subcomm. on Regulatory

Affairs, Assessing the Cumulative Impact of Regulation on U.S.

Manufacturers (Mar. 9, 2011).

32

sive monitoring, and the treatment of pollutants. See

EPA, NPDES Permit Writers Manual, http://www.

epa.gov/npdes/pubs/pwm_2010.pdf. And opportuni-

ties abound for litigation about the propriety of a

permit and compliance once it is issued.

Regulators and businesses already face a signifi-

cant backlog of permit renewals. NPDES permits

must be renewed at least every five years. As of De-

cember 2009, only 80% of major and 84% of minor fa-

cilities held current permits. See http://www.epa.

gov/npdes/pubs/grade.pdf; www.epa.gov/npdes/pubs/

grade_minor.pdf. Every year, thousands of facilities

must go through the renewal process, and new facili-

ties must be permitted. Adding a new permit re-

quirement for ditches and culverts on millions of

miles of forest roads will overwhelm the NPDES pro-

gram at a time of tightening constraints on agency

spending and challenging economic times for forest

owners and producers.

Contrary to the Ninth Circuit’s suggestion, gen-

eral permits offer no solution. General permits still

impose effluent limitations, technological standards,

costly treatment, monitoring, and sampling. See EPA

Office of Water, General Permit Program Guidance 4

(1988). Establishing a general permit through rule-

making often takes years, to determine that the

point sources are substantially similar and require

similar effluent limitations and monitoring. And

general permits are themselves targets of adminis-

trative and judicial challenge: the propriety of virtu-

ally every new general permit is litigated. See, e.g.,

Waterkeeper Alliance v. EPA, 399 F.3d 486, 498-506

(2d Cir. 2005) (sustaining challenges to general per-

mit for concentrated animal feeding operations); Jef-

frey M. Jaba, Generally Illegal: NPDES General

33

Permits Under the Clean Water Act, 31 HARV. ENVT’L

L. REV. 409, 461 & n.254 (2007) (identifying “growing

numbers of citizen suits”).

Under these circumstances, the legal uncertainty

from the Circuits’ conflicting holdings and the Ninth

Circuit’s upending of longstanding EPA regulations

is intolerable. It is exacerbated by CWA’s substantial

criminal and civil penalties. Violations of the CWA

carry fines up to $100,000 per day and six years’ im-

prisonment. 33 U.S.C. § 1319(c)(2). Even a negligent

violation can bring heavy fines and two years in

prison. Jd. § 1319(c)(1). And the citizen suit mecha-

nism ensures endless civil suits to require NPDES

permits and extract civil penalties. Jd. § 1365(a). See,

e.g., Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 244 F.Supp.2d 41 (N.D.N.Y.

2003) (citizen suit resulting in $5.7 million penalty).

2. The Ninth Circuit’s decision unsettles the bal-

ance of environmental responsibilities between the

States and the federal government. Relying on EPA’s

consistent vosition defining forest road runoff as a

nonpoint svurce to be regulated by the States, States

have long-established silvicultural regulations and

BMPs that protect the Nation’s waters. Like Oregon,

many control channeling of forest road runoff.‘ Con-

gress understood that channeling would be part of

state nonpoint source regulation. See S. Rep. 99-50

(S. 1128), at 35-36 (May 14, 1985), reprinted in 2

Leg. Hist. of Water Quality Act of 1987, 1420, 1456

(“best management practices” to “reducfe] runoff’

from “silvicultural areas” would include “careful road

‘ E.g., Schilling, Compendium of Forestry Best Management

Practices, supra, at 15-16 (Southeastern States), 48 (Alaska), 76

(Utah), 83-84 (Washington)

34

placement, culverting, {and] grassing of abandoned

roads’).

The Ninth Circuit's ruling eviscerates the foun-

dation for nonpoint source regulations by the States

and undermines their viability. As such, it improp-

erly “alters the federal-state framework” by com-

manding “encroachment upon a traditional state

power.” SWANCC vy. U.S. Army Corps of Engineers,

531 U.S. 159, 173 (2001); see 33 U.S.C. § 1251(b);

Rapanos v. United States, 547 U.S. 715, 738 (2006)

(plurality opinion).

3. The Ninth Circuit’s ruling is poor environ-

mental policy. EPA has explained that stormwater

runoff from forest roads is best addressed through

State regulations, not NPDES permitting. E.g., 41

Fed. Reg. at 6282 (precipitation runoff “is more effec-

tively controlled by the use of planning and man-

agement techniques”); 40 Fed. Reg. at 56932 (“most

raintall runoff is more properly regulated under Sec-

tion 208,” “whether or not the rainfall happens to col-

lect before following into navigable waters”). The

Ninth Circuit offered no reason to doubt the expert

agency's long-held assessment.

The Ninth Circuit’s ruling creates perverse in-

centives. lt makes whether costly permitting is re-

quired turn on whether runoff is collected. Accord-

ingly, states will “be deterred from using ditches and

culverts to manage silvicultural runoff,” which could

“result in an increase in the amount of road sediment

deposited into the waters of the state by runoff.” Br.

of State Defs., No. 07-35266, at 22. As the State de-

fendants explained, “Congress did not intend to re-

quire NPDES permits for silvicultural runoff simply

because” the BMPs used “happen to involve ditches

and culverts.” Jd. at 18-20. Requiring NPDES per-

35

mits for these ditches and culverts would “subvert

{the CWA’s] regulatory scheme, and deplete the tools

available to the states to manage water pollution.”

Id. at 27.

4. The Ninth Circuit's ruling conflicts with other

Circuits’ holdings, interprets EPA regulations in a

manner EPA never intended, sows confusion over the

regulation of hundreds of millions of acres of forests,

and jeopardizes American jobs that depend on the

forest products industry. It disrupts the settled divi-

sion of responsibilities between the federal govern-

ment and States and is environmentally counterpro-

ductive. And it subverts Congress’s design regarding

the procedures to be followed to challenge an EPA

rule. By rejecting en banc review, the Ninth Circuit

showed it will not reconsider its holding. No further

percolation is necessary, or tolerable as a practical

matter given the vast reach of the Ninth Circuit's

ruling over American forests.

CONCLUSION

The petition for a writ of certiorari should be

granted.

36

Respectfully submitted.

PER A. RAMFJORD TIMOTHY S. BISHOP

LEONARD J. FELDMAN Counsel of Record

JASON T. MORGAN RICHARD BULGER

Stoel Rives LLP CHAD CLAMAGE

900 SW Fifth Ave., Mayer Brown LLP

Suite 2600 71 South Wacker Dr.

Portland, OR 97204 Chicago, IL 60606

(503) 224-3380 (312) 782-0600

tbishop@mayerbrown.com

WILLIAM K. SARGENT

Tillamook County

Counsel

1134 Main Avenue

Tillamook, OR 97141

(503) 842-8862

Counsel for Petitioners

SEPTEMBER 2011