Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Supreme Court brief2013

Ask Donna

What actually matters in this document.

Text

Nos. 11-338 and 11-347

Jn the Supreme Court of the GAnited States

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL., PETITIONERS

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ETHAN G. SHENKMAN

Deputy a Attorney

eneral

PRATIK A. SHAH

Assistant to the Solicitor

General

JuDY B. HARVEY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

ALTRI OEE STA TE TANS S DT OEEIES

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding

that a suit in which liability depends on the interpreta-

tion of Clean Water Act (CWA) regulations, and in

which the court rejected the construction of the regula-

tions proffered by the Environmental Protection Agency

(EPA), may be adjudicated under the CWA’s citizen-suit

provision, 33 U.S.C. 1365(a), rather than under the

CWA’s judicial-review provision, 33 U.S.C. 1369(b).

2. Whether the court of appeals erred in not defer-

ring to EPA’s interpretation of the Silvicultural Rule, 40

C.F.R. 122.27(b)(1), that channeled runoff from logging

roads does not constitute a point-source discharge.

3. Whether the court of appeals erred in not defer-

ring to EPA’s interpretation of the Phase I industrial

stormwater regulation, 40 C.F.R. 122.26(b)(14), that

channeled runoff from logging roads does not constitute

a stormwater discharge “associated with industrial activ-

ity.”

(1)

TABLE OF CONTENTS

Page

EEE ee 1

SE ee ee ee 8

A. The CWA confers jurisdiction over this citizen

DPA Ced eee Reh eadbeeee bebe eesesadcnceccece 8

B. The court of appeals erred in failing to defer to

EPA’s interpretations of its regulations ad-

vanced in the government’s amicus brief ........... 11

C. This case does not warrant further review ......... 14

1. There is no conflict among the courts of ap-

peals warranting further review ............... 14

2. Both Congress and EPA have taken steps to

mitigate petitioners’ practical concerns about

the effects of the decision below ................ 16

GR er 21

TABLE OF AUTHORITIES

Cases:

Auer v. Robbins, 519 U.S. 452 (1997) ..............0.. ll

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

EE ee ee il

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ..... 11

Conservation Law Found. v. Hannaford Bros. Co.,

327 F.. Supp. 2d 325 (D. Vt. 2004), aff’d, 139 Fed.

EE 15

EI. du Pont de Nemours & Co. v. Train, 430 U.S. 112

Oe ESS ee 7

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208

De ehEhe eee keddoeeerneeeseeeedeesceecns 11

Environmental Def. v. Duke Energy Corp., 549 U.S.

ee eed Lee bk Geek sO hN a EUS KO 60940 000% 10

Cases—Continued: Page

Environmental Def. Ctr. v. EPA, 344 F.3d 832

(9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004) ..... 4

Newton County Wildlife Ass'n v. Rogers, 141 F.3d

i ond 6 cite daueaueieesesateeees 15

NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) ........ 12

NRDC vy. EPA, 673 F.2d 400 (D.C. Cir.), cert. denied,

ED: oun vnueen eadegennsestedesenesae 7

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) ........... 7

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 551 et seg. ..... 15

Clean Water Act, 33 U.S.C. 1251 et seq.:

ED cn a5s ed hen eaddbeeneonessesuneed 2,9

EE \ iv cxvcevedadsecendoeuduegseeeeakaet 2

ET £6445 ocncuvcdsedncnedendéestiesseanes 2

ee i enn icenccvesesbaaenens 2,16

ee ls PIED v6 ccc cuseccscandeuceecdes 3

ED vcicddvnuketceddenteseasionenes 4

ee sc ccciucdceseneeneaceeeenus 3

ED. inciveenedsdcdensdeenneedeeveus 3

Ee is. cieicncheenedensesawenenbas 3

oc ink bene egeundenesaeehedens 4

ED i wit oncucekedecenteukddons 4,19

Es 6d 6 tne geveddeneseeneusstaaenens 2

Es nt ocd waseiendedeennoudeeseunnt 2

id vs vannddeeseesseeusseneeieceuees 4

Se NE BED eo ccdcccseccessccsereces 6, 8,9, 10, 11

Statutes and regulations—Continued: Page

Ee yr re 11

i ee rcdinenh knead nie eeecens 9

ccc cc eiecinvadsanceeavas 7, 8,9, 18

a eee dae 7,9, 10

i se Cahn de eewke nee’ 7

oo cen nees sea hhneee babes 7

PE EP eT errr 7,9

Water Quality Act of 1987, Pub. L. No. 100-4, 101

-ateeeiee cele debe Keka baee is sekkus 3, 17,19

Consolidated Appropriations Act, 2012, Pub. L.

No. 112-74, Div. E, § 429, 125 Stat. 1046-1047 ........ 17

40 C.F.R.:

i senshi eee ee ciledet 15

ie i en eee eee ines 17

ee eee ee 4

EE Er ee 4,6, 13, 15

i ns ieee eee eeheeeuees 13

ee eee ied eee we owed aetna se 13

rn 6. 6 id scGusebandawwanes 2,5, 12, 15

EE Pe er ee ere oe” 20

Miscellaneous:

64 Fed. Reg. (Dec. 8, 1999):

EE hance cen Kee tnckek hee neces neadtededonaien 4

CE ed Ceca cd eee eased hhes adeeb enanes 4

73 Fed. Reg. (Sept. 29, 2008)

PE. ctieden peeeegnehiael on deesewnseennn ees 19

Miscellaneous—Continued: Page

77 Fed. Reg. (May 23, 2012):

hee te A OS Ee De Ae Ee 4

iE cide eee eedenv ice egueenehen behead 18

0 ee ee ree 4, 12,18

H.R. 2541, 112th Cong., Ist Sess. (2011) ............... 17

Letter from Nancy K. Stoner, Acting Assistant Ad-

ministrator, EPA, to Congressman Kurt Schrader

SE ED 60 cu ccndebustedbaveisetenesceseesea 19

S. 1369, 112th Cong., Ist Sess. (2011) ................. 17

Jn the Supreme Court of the Gnited States

No. 11-338

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL., PETITIONERS

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL,

No. 11-347

GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States. In the view of the United States, the peti-

tions for writs of certiorari should be denied.

STATEMENT

1. a. Section 301(a) of the Clean Water Act (CWA or

Act) prohibits the “discharge of any pollutant” defined as

the addition of any pollutant to navigable waters from any

point source—except “as in compliance with” specified pro-

(1)

visions of the Act. 33 U.S.C. 1311(a), 1862(12). The Act

defines “point source” as

any discernible, confined and discrete conveyance, in-

cluding but not limited to any pipe, ditch, channel, tun-

nel, conduit, well, discrete fissure, container, rolling

stock, concentrated animal feeding operation, or vessel

or other floating craft, from which pollutants are or may

be discharged.

33 U.S.C. 1362(14). For most point-source discharges, reg-

ulated entities achieve compliance by obeying the terms of

a permit issued under the National Pollution Discharge

Elimination System (NPDES) pursuant to CWA Section

402, 33 U.S.C. 1342. Other CWA provisions address “non-

point sources” through methods other than the NPDES

program. See, e.g., 33 U.S.C. 1314(f), 1329.

b. The Environmental Protection Agency (EPA) has

promulgated regulations that further define the term

“point source” as it applies to various activities and facili-

ties. EPA’s Silvicultural Rule defines “silvicultural point

source” as “any discernible, confined and discrete convey-

ance related to rock crushing, grave] washing, log sorting,

or log storage facilities which are operated in connection

with silvicultural activities and from which pollutants are

discharged into waters of the United States.” 40 C.F.R.

122.27(b)(1). The Rule excludes from the definition “non-

point source silvicultural activities such as * * * road con-

struction and maintenance from which there is natural run-

off.” Ibid. EPA has construed that rule to exclude from

NPDES permitting requirements all precipitation-driven

runoff from the specified nonpoint sources, including log-

ging roads, even if the runoff flows through a ditch, chan-

nel, or culvert before being released into navigable waters.

See 2007 Gov't C.A. Amicus Br. 10.

c. In 1987, recognizing the special regulatory problems

posed by stormwater discharges, Congress amended the

CWA. Pub. L. No. 100-4, 101 Stat. 52 (1987 CWA amend-

ments). CWA Section 402(p) establishes a phased process,

commonly referred to as Phase I and Phase II, for the reg-

ulation of stormwater point-source discharges. 33 U.S.C.

1342(p).

Phase I covers various enumerated sources of storm-

water pollution, see 33 U.S.C. 1342(p)(2), including dis-

charges of stormwater “associated with industrial activity,”

33 U.S.C. 1342(p)(2)(B). The 1987 CWA amendments re-

quired NPDES permits for those discharges and directed

EPA to regulate them accordingly. 33 U.S.C. 1342(p)(3)

and (4). The CWA does not define the term “storm water

discharge associated with industrial activity.” In 1990,

EPA promulgated Phase I regulations that define the term

the discharge from any conveyance that is used for col-

lecting and conveying 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. For the

categories of industries identified in this section, the

term includes, but is not limited to, storm water dis-

charges from * * * immediate access roads * * *

used or traveled by carriers of raw materials, manufac-

tured products, waste material, or by-products used or

created by the facility[.} * * * The following catego-

ries of facilities are considered to be engaging in “in-

dustrial activity” for purposes of paragraph (b)(14):

* * * (ii) Facilities classified as Standard Industrial

Classifications 24 (except 2434).

40 C.F.R. 122.26(b)(14).

For stormwater discharges other than those enumer-

ated in 33 U.S.C. 1342(p)(2), the CWA authorizes EPA to

designate, as part of Phase II, any additional stormwater

discharges “to be regulated to protect water quality.” 33

U.S.C. 1342(p)(5) and (6). For Phase II discharges, EPA

must “establish a comprehensive program,” which “may

include performance standards, guidelines, guidance, and

management practices and treatment requirements, as ap-

propriate.” 33 U.S.C. 1342(p)(6). EPA is authorized to re-

quire NPDES permits for Phase II discharges, but it is not

required to do so. [bid. In 1999, EPA promulgated regula-

tions that designated two categories of stormwater point-

source discharges (neither of which is relevant to this case)

for Phase II regulation. 64 Fed. Reg. 68,722, 68,734 (Dec.

8, 1999) (codified in pertinent part at 40 C.F.R.

122.26(a)(9)(i)). EPA also reserved the authority to desig-

nate additional discharges for Phase II regulation at a later

date. Ibid.'

2. Respondent commenced this action under the

CWA’s citizen-suit provision, 33 U.S.C. 1365. Respondent

alleged that stormwater discharges associated with two

' In 2003, the Ninth Circuit remanded to EPA the question whether

to regulate stormwater discharges from forest roads under Phase II.

See Environmental Def. Ctr. v. EPA, 344 F.3d 832, 863, cert. denied,

541 U.S. 1085 (2004). EPA continues to review available information on

the water-quality impacts of stormwater discharges from forest roads,

including logging roads, as well as existing practices to control those

discharges. On May 23, 2012, EPA announced that it “is considering

designating a subset of stormwater discharges from forest roads for

appropriate action” under the agency’s Phase II rulemaking authority.

Notice of Intent To Revise Stormwater Regulations To Specify That an

NPDES Permit Is Not Required for Stormwater Discharges From

Logging Roads and To Seek Comment on Approaches for Addressing

Water Quality Impacts From Forest Road Discharges, 77 Fed. Reg.

30,479; see pp. 17-18, infra.

logging roads in Oregon violate the Act because the roads

at issue collect, channel, and discharge stormwater runoff

to navigable waters—without NPDES permits—via

ditches, pipes, and culverts. First Am. Compl. 2-4, 17-18,

21-24.

Petitioners are state officials and private timber compa-

nies who contro) the relevant logging roads and were

named as defendants in this suit. Supported by the United

States as amicus curiae, petitioners moved to dismiss the

complaint for failure to state a claim. The district court

granted the motion. The court held that, under EPA’s

Silvicultural Rule, 40 C.F.R. 122.27(b)(1), the logging roads

had been categorized as nonpoint sources of natural] runoff,

and that stormwater discharges from those roads therefore

were not subject to NPDES permitting requirements. Pet.

App. 53-77.”

3. The court of appeals reversed. Pet. App. 1-52.°

a. As in the district court, the government filed an ami-

cus brief arguing that, under EPA’s Silvicultural Rule, all

precipitation-driven runoff from logging roads is excluded

from NPDES permitting requirements, even if it flows

through a ditch, channel, or culvert before being discharged

into navigable waters. See 2007 Gov’t C.A. Amicus Br. 10.

The court of appeals rejected that interpretation of the reg-

ulation. Pet. App. 34-37. The court stated that “there are

two possible readings of the Silvicultural Rule,” and it ac-

knowledged that the interpretation advanced in the govern-

ment’s amicus brief “reflects the intent of EPA in adopting

the Rule.” Jd. at 36. The court concluded, however, that an

* References to “Pet. App.” are to the appendix to the petition for a

writ of certiorari in No. 11-338.

* The initial court of appeals opinion was published at 617 F.3d 1176,

but the discussion in this brief cites the superseding opinion, which was

published at 640 F.3d 1063 and is reprinted in the petition appendix.

alternative reading of the rule was preferable because it

would “allow [the court] to construe the Rule to be consis-

tent with the statute,” in particular, the CWA’s definition of

“point source.” Jd. at 37. The court held that the Silvi-

cultural Rule does not encompass stormwater runoff from

logging roads that is systemically collected and channeled

through man-made ditches and culverts before being dis-

charged into waters of the United States. /bid.

b. Petitioners and the United States further argued

that, even if such channeled runoff from logging roads con-

stitutes a “point source” discharge, such discharges are not

subject to NPDES permitting requirements under EPA’s

stormwater regulations promulgated pursuant to 33 U.S.C.

1342(p). Pet. App. 37-48. Petitioners and the government

contended, in particular, that the discharges at issue here

are not “associated with industrial activity” as EPA has

defined that term. See id. at 44-47; 40 C.F.R. 122.26(b)(14).

The court of appeals rejected that understanding of EPA’s

regulatory definition. The court found it “undisputed that

‘logging,’ which is covered under SIC (Standard Industrial

Classification] subcategory 2411 (part of SIC 24), is an ‘in-

dustrial activity.’” Pet. App. 44-45. The court construed

the regulation’s reference to “immediate access roads” —

defined in EPA’s preamble to mean “roads which are exclu-

sively or primarily dedicated for use by the industrial facil-

ity”—as covering the logging roads at issue here. Jd. at 45-

47.

4. a. Petitioners filed petitions for rehearing in the

court of appeals. The court of appeals thereafter ordered

a response and posed two threshold questions: (1) “Cana

suit challenging EPA’s interpretation of its regulations

implementing the Clean Water Act’s permitting require-

ments be brought under the Act’s citizen suit provision, 33

U.S.C. 1365(a)?” (2) “Must a suit challenging EPA’s deci-

sion to exempt the discharge of a pollutant from the Clean

Water Act’s permitting requirements be brought under the

Act’s agency review provision, 33 U.S.C. 1369(b)?” 10/21/10

Order.

Section 1369(b) authorizes private parties to obtain di-

rect court of appeals review of certain EPA actions, includ-

ing actions taken in “promulgating any effluent limitation

or other limitation under section 1311” or “in issuing or

denying any permit under section 1342.” 33 U.S.C.

1369(b)(1)(E) and (F'). EPA’s NPDES regulations are gen-

erally subject to immediate appellate review under that

provision. See, e.g., NRDC v. EPA, 673 F.2d 400, 404-406

(D.C. Cir.), cert. denied, 459 U.S. 879 (1982) (citing EJ. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 186 (1977));

NRDC v. EPA, 966 F.2d 1292, 1296-1297 (9th Cir. 1992).

Such review must be sought within 120 days of the relevant

EPA action, unless a challenge is “based solely on grounds

which arose after such 120th day.” 33 U.S.C. 1369(b)(1).

Any EPA action “with respect to which review could have

been obtained under [Section 1369(b)(1)] shall not be sub-

ject to judicial review in any civil or criminal proceeding for

enforcement.” 33 U.S.C. 1369(b)(2).

In response to the court of appeals’ questions, the

United States filed another amicus brief. The government

expressed the view that, although Section 1369(b)(2) would

preclude the court in a Section 1365(a) citizen suit from

invalidating the EPA regulations implicated by this case,

Section 1369(b)(2) did not preclude the court from inter-

preting those regulations in a manner different from the

interpretations advanced in the government's prior amicus

brief on the merits. See 2011 Gov’t C.A. Amicus Br. 7-11.

b. The court of appeals denied rehearing and issued a

superseding panel opinion. Pet. App. 1-52; see n.3, supra.

In a new section entitled “Subject Matter Jurisdiction,” the

court agreed with the position set forth in the government’s

rehearing brief that Section 1369(b) “does not bar a citizen

suit challenging EPA’s Silvicultural Rule interpretation

first adopted in its initial amicus brief in this case.” Pet.

App. 8-10. The court adhered to the remainder of its previ-

ous opinion.

DISCUSSION

The court of appeals correctly rejected petitioners’ ju-

risdictional challenge to this citizen suit, since the dispute

between the parties concerns the proper interpretation,

rather than the validity, of the EPA regulations at issue

here. On the merits, the court erred in failing to give ap-

propriate deference to EPA’s interpretation or its own reg-

ulations. That error, however, does not warrant this

Court’s review.

No square circuit conflict exists on the questions pre-

sented in the certiorari petitions. And while the court of

appeals construed EPA’s current Phase I industrial storm-

water regulation to require NPDES permits for channeled

stormwater discharges associated with logging roads, the

court did not hold that the CWA compels that result. Con-

gress has temporarily barred EPA from implementing the

court of appeals’ decision, and EPA has announced its in-

tent to amend expeditiously its Phase I regulation to make

clear that discharges of the sort at issue here do not require

NPDES permits. Those developments address petitioners’

concerns about the practical burdens that the court’s ruling

could entail. The petitions for writs of certiorari therefore

should be denied.

A. The CWA Confers Jurisdiction Over This Citizen Suit

A citizen suit under Section 1365(a) may be brought

against a person or entity alleged to be violating the CWA

by, inter alia, discharging pollutants into navigable waters

without an NPDES permit. 33 U.S.C. 1365(a) and (f)(1);

see 33 U.S.C. 1311(a). Section 1369(b), by contrast, pro-

vides for immediate review of various EPA actions, includ-

ing the promulgation of NPDES regulations. 33 U.S.C.

1369(b)(1); see p. 7, supra. A review proceeding under Sec-

tion 1369(b)(1) must be commenced within 120 days of the

challenged EPA action, unless the basis for the suit arises

after that period. /bid. Any EPA action that could have

been challenged under Section 1369(b)(1) “shall not be sub-

ject to judicial review in any civil or criminal proceeding for

enforcement.” 33 U.S.C. 1369(b)(2).

The court of appeals correctly held that Section

1369(b)(2) did not preclude the courts below from exercis-

ing jurisdiction over this citizen suit. See Pet. App. 8-10.

Petitioners premise their jurisdictional challenge on the

assertion that the court of appeals invalidated an EPA rule.

11-338 Pet. 19-24. If the court had taken that step, its deci-

sion would have run afoul of Section 1369(b)(2), since the

pertinent EPA regulations could have been challenged at

the time those rules were promulgated. See 2011 Gov't

Amicus Br. 6-7; Br. in Opp. 19-24.

Contrary to petitioners’ contention, however, the court

of appeals did not expressly or implicitly invalidate either

the Silvicultural Rule or the EPA regulation that defines

the term “stormwater discharge associated with industrial

activity.” Rather, the court of appeals simply interpreted

those regulations in a manner different from the construc-

tions advanced in the government’s amicus brief. See Pet.

App. 36-37, 44-47. To be sure, in choosing between two

competing interpretations of the Silvicultural Rule, the

court was significantly influenced by its view that the Rule

would be contrary to the CWA if EPA’s interpretation were

adopted. See id. at 36-37. But just as a court does not in-

validate a statute by construing it to avoid perceived consti-

tutional difficulties, the court of appeals did not invalidate

the Silvicultural Rule by adopting the interpretation that

the court viewed as necessary to achieve compliance with

the governing statute. Cf. Environmental Def. v. Duke

Energy Corp., 549 U.S. 561, 573, 581 (2007) (distinguishing,

for purposes of an analogous Clean Air Act judicial-review

provision, “between a purposeful but permissible reading of

the regulation adopted to bring it into harmony with the

Court of Appeals’s view of the statute, and a determina-

tion that the regulation as written is invalid”). And be-

cause EPA did not announce its official reading of the

Silvicultural Rule at the time of the rule’s promulgation,

respondent could not reasonably have been expected to

challenge that potential reading under Section 1369(b)(1) at

that time. Pet. App. 9-10; see 2011 Gov’t Amicus Br. 7-11 &

n.d.

The decisions cited by the state petitioners (11-338 Pet.

20) simply reiterate the undisputed propositions that chal-

lenges to the validity of an EPA rule promulgated under

the CWA must be brought pursuant to Section 1369(b)(1),

and that a court may not invalidate an EPA rule in a citizen

suit brought under Section 1365(a). None of those decisions

suggests that the court in a CWA citizen suit is foreclosed

from either (a) rejecting EPA’s construction of its own rule,

or (b) adopting a competing construction that the court

views as necessary to render the rule consistent with the

statute. Because the court below did not explicitly or im-

plicitly invalidate any EPA rule, the precedents on which

* The industry petitioners argue (11-347 Pet. 23 n.2) that EPA had

officially interpreted the term “natural runoff” in the Silvicultural Rule

as including runoff that is systematically channeled well before the gov-

ernment filed its amicus brief in this case. The court of appeals rejected

that contention (Pet. App. 9), and that aspect of the court’s analysis

raises no legal issue of recurring importance.

the state petitioners rely are inapposite. Further review of

this issue is not warranted.

B. The Court Of Appeals Erred In Failing To Defer To EPA’s

Interpretations Of Its Regulations Advanced In The Govern-

ment’s Amicus Brief

In a CWA citizen suit, a court determines whether the

defendant’s discharges violate the requirements of the

CWA and applicable regulations. 33 U.S.C. 1365(a) and (f).

In making that determination, the court must defer to

EPA’s regulatory construction of an ambiguous CWA pro-

vision unless that interpretation conflicts with the statute.

See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 841-844

(1984); cf. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208,

218 (2009). When the legality of a citizen-suit defendant’s

conduct turns on the interpretation of EPA regulations, the

court similarly must defer to EPA’s construction of its own

rule unless that interpretation is “plainly erroneous or in-

consistent with the regulation.” Auer v. Robbins, 519 U.S.

452, 461-462 (1997) (citation omitted). An agency’s reason-

able interpretation of its regulation, as presented in an ami-

cus brief, is entitled to Auer deference. See, e.g., Chase

Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011).

1. The legality of petitioners’ conduct depends in part

on whether stormwater runoff from a logging road consti-

tutes a “point source” discharge within the meaning of the

CWA if the runoff is collected and channeled through pipes,

ditches, or culverts before entering waters of the United

States. In resolving that question, the court of appeals

should have given Chevron deference to EPA’s Silvicultural

Rule, which provides that “non-point source silvicultural

activities such as * * * road construction and maintenance

from which there is natural runoff” are excluded from the

definition of “silvicultural point source.” 40 C.F.R.

122.27(b)(1). The CWA’s broad definition of “point source”

under Section 502(14) gives EPA at least some discretion in

distinguishing between point and nonpoint sources. In par-

ticular, “the concept of a ‘discrete conveyance’” contained

in the statutory definition “suggests that there is room here

for some exclusion by interpretation” by the agency.

NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977); see

id. at 1382 (“(T]he 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 ex-

amination.”) (citation and internal quotation marks omit-

ted).

Although the Silvicultural Rule does not specifically

confirm that the reference to “natural runoff” includes sys-

tematically channeled runoff, neither does it suggest that

such runoff should be treated as a “point source” discharge.

To the extent that the absence of any specific reference to

channeled runoff renders the Silvicultural Rule ambiguous,

the court of appeals should have deferred under Auer to

EPA’s interpretation of its own Rule provided in the govern-

ment’s amicus brief. That brief unequivocally expressed

EPA’s view that “the term ‘natural runoff’ in the silvi-

cultural rule categorically excludes all stormwater runoff

from forest roads, even where the roads include channels,

ditches, or culverts.” 2007 Gov’t Amicus Br. 25.°

2. The court of appeals should also have deferred to

EPA’s interpretation of its Phase I industrial stormwater

regulation. Properly construed, that regulation provides an

independent basis for concluding that, under the current

* In its recent Federal Register notice, EPA stated that it is consi-

dering the possibility of regulating a subset of stormwater discharges

from forest roads under its Phase II stormwater rulemaking authority.

77 Fed. Reg. at 30,479; see pp. 17-18, infra.

regulatory scheme, petitioners were not required to obtain

an NPDES permit for any of the activities at issue here.

To identify the categories of “facilities” that are en-

gaged in “industrial activity,” EPA’s Phase I regulation

incorporates by reference Standard Industrial Classifica-

tions (SIC) codes, including SIC code 24, of which “logging”

is a subcategory. 40 C.F.R. 122.26(b)(14)(ii). In its amicus

brief below, the government explained that “EPA primarily

referenced this SIC code to regulate traditional industrial

sources such as sawmills.” 2007 Gov’t C.A. Amicus Br. 29.

The government further explained that, “(bly not excluding

SIC code 2411 (the logging subcategory), EPA intended to

reference only the four categories of silvicultural facilities

it had already defined as point sources in” the Silvicultural

Rule—ze., rock crushing, gravel washing, log sorting, and

log storage. Jd. at 29-30.° Those facilities are more closely

associated with traditional industrial activities than are

logging roads, which are often used for recreational pur-

poses rather than as “immediate access roads” to those

facilities. See id. at 31. EPA’s interpretation is also consis-

tent with the terms of SIC code 2411, which defines “log-

ging” facilities as “/e/stablishments primarily engaged in

cutting timber and in producing . . . primary forest or

wood raw materials . . . in the field.” Pet. App. 45 (em-

phasis added).

In concluding that the discharges at issue here are “as-

sociated with industrial activity” within the meaning of

EPA’s current Phase I rule (Pet. App. 42-47), the court of

appeals ignored EPA’s construction of its own regulation.

° That understanding is buttressed by the fact that EPA’s definition

of “storm water discharge associated with industrial activity” expressly

exempts activities that are “excluded from the NPDES program under

this part 122,” 40 C.F.R. 122.26(b)(14), including under the Silvicultural

Rule, 40 C.F.R. 122.27.

The interpretation set forth in the government’s amicus

brief did not clearly conflict with the text of the regulation.

Nor did the court of appeals hold that its expansive con-

struction of the term “associated with industrial activity”

was necessary to bring EPA’s Phase I regulation into con-

formity with the statute. In adopting a construction of the

regulation that was inconsistent with EPA’s own stated

understanding of the rule, the court of appeals misapplied

established Auer deference principles.

C. This Case Does Not Warrant Further Review

Notwithstanding the court of appeals’ errors on the

merits, the decision below does not warrant this Court’s

review. The decision does not create a square conflict

among the courts of appeals. And while application of

NPDES permitting requirements to petitioners’ storm-

water discharges could entail significant practical burdens

if the current regulatory scheme remained unchanged,

those concerns are being addressed by both Congress and

EPA—entities with greater institutional capacity to resolve

the complex regulatory issues involved.

1. There is no conflict among the courts of appeals war-

ranting further review

a. As discussed above (see pp. 10-11, supra), the Ninth

Circuit’s jurisdictional analysis does not conflict with other

court of appeals decisions holding that Section 1369(b) pro-

vides the exclusive CWA avenue to review the validity of an

EPA rule implementing the NPDES permitting system.

The court of appeals did not invalidate an EPA regulation

explicitly or implicitly. Rather, it interpreted the pertinent

EPA rules as requiring NPDES permits for the type of

discharges at issue, as urged by respondent in this Section

1365(a) citizen suit. /bid.; see Br. in Opp. 19-26. Although

the court of appeals’ interpretations of those rules were

flawed on the merits, the court did not err in entertaining

the suit.

b. The industry petitioners allege (11-347 Pet. 25-26) a

conflict between the court of appeals’ interpretation of the

Silvicultural Rule and that of the Eighth Circuit in Newton

County Wildlife Ass'n v. Rogers, 141 F.3d 803 (1998). The

court in Rogers held that the Forest Service’s failure to

obtain an NPDES permit before contracting with others to

harvest timber and build roads did not constitute an abuse

of discretion under the Administrative Procedure Act, 5

U.S.C. 551 et seg. 141 F.3d at 810. The court relied princi-

pally on the rationale that the private operator, not the For-

est Service, would be responsible for obtaining any re-

quired permit. J/bid. (citing 40 C.F.R. 122.21(b)). The

Eighth Circuit added that “EPA regulations do not include

the logging and road building activities cited by [plaintiff]

in the narrow list of silvicultural activities that are point

sources requiring NPDES permits.” J/bid. (citing, inter

alia, 40 C.F.R. 122.27(b)(1)). But that single, passing state-

ment was simply dictum, and it did not specifically refer to

the sort of channeled runoff at issue in this case. See ibid.;