Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11-338 & 11-347

IN THE

Supreme Court of the United States

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS

OREGON STATE FORESTER, et al., Petitioners,

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

GEORGIA-PACIFIC WEST, INC., et al., Petitioners,

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR NATIONAL ALLIANCE OF FOREST

OWNERS, AMERICAN FARM BUREAU FEDERATION,

FOREST RESOURCES ASSOCIATION, EMPIRE STATE

FOREST PRODUCTS ASSOCIATION, FLORIDA

FORESTRY ASSOCIATION, GEORGIA FORESTRY

ASSOCIATION, LOUISIANA FORESTRY ASSOCIATION,

MAINE FOREST PRODUCTS COUNCIL, MICHIGAN

FOREST PRODUCTS COUNCIL, NEW HAMPSHIRE

TIMBERLAND OWNERS ASSOCIATION, SOUTH

CAROLINA FORESTRY ASSOCIATION, VIRGINIA

FORESTRY ASSOCIATION, AND WASHINGTON FOREST

PROTECTION ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONERS

WILLIAM R. MURRAY CLIFTON S. ELGARTEN

NATIONAL ALLIANCE OF Counsel of Record

FOREST OWNERS KIRSTEN L. NATHANSON

122 C Street, NW DAVID Y. CHUNG

Suite 630 CROWELL & MORING LLP

Washington, DC 20001 1001 Pennsylvania Ave., N.W.

(202) 747-0742 Washington, DC 20004

(202) 624-2500

Counsel for Amici Curiae

[Additional Counsel Listed On Inside Cover]

WiILSON-EPEsS PRINTING CO., INC. — (202) 789-0086 — WASHINGTON, D. C. 20002

Of Counsel

ELLEN STEEN

DANIELLE QUIST

AMERICAN FARM BUREAU FEDERATION

600 Maryland Avenue, SW

Suite 1000

Washington, DC 22024

(202) 406-3600

QUESTIONS PRESENTED

1. Given that challenges to Clean Water Act

(“CWA” or “Act”) rules must be presented in an action

against the U.S. Environmental Protection Agency

(“EPA”) in a court of appeals within 120 days of

promulgation, and that such challenges are not prop-

erly raised in an action for civil or criminal enforce-

ment, and where the intended broad scope of the

rules at issue were explained by EPA at the time of

promulgation but not challenged then, could the

intended scope of the rules nonetheless be challenged

years later in a district court enforcement action to

which EPA is not a party, based on the theory that

the intended scope of the rule had been inconsistent

with the Act all along and the rule could be read

narrowly to make it consistent with the court’s inter-

pretation of the Act?

2. In light of EPA’s longstanding view that runoff

from forest roads is not subject to CWA permitting

requirements, with EPA having excluded such activ-

ity from permitting in its 1990 Phase I regulations

under the 1987 CWA amendments, and with EPA

expressing its view that roads built and used for

timber harvesting are not “associated with industrial

activity,” could the Ninth Circuit nonetheless prop-

erly hold that runoff from roads used for timber

harvesting is necessarily treated as “associated

with industrial activity,” subject to CWA permitting

requirements, without recognizing EPA’s existing

interpretation and allowing EPA to consider the issue

through rulemaking?

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TABLE OF CONTENTS

QUESTIONS PRESENTED...............2.....0:c0ecee00

TABLE OF AUTHORITIES ..................ccccceeeeeeees

I. The Ninth Circuit’s Failure To Respect

The Prescribed Means For Challenging

Agency Rules Makes This A Case Of

Exceptional Importance. .......................00+

A. The Ninth Circuit Forced A Trans-

formative Construction Upon The

Silvicultural Rule To Render It Con-

sistent With Its View Of The Re-

quirements Of The Clean Water Act. .

B. The Ninth Circuit Further Allowed

This Enforcement Action To Displace

EPA’s Rulemaking Authority With

Respect To The 1987 Stormwater

Amendment. .............cccceececesceseneceeceeees

C. The Decision Below Undermines

Congressional Limits On Judicial

Review Under Various Statutes. ........

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TABLE OF AUTHORITIES

CASES Page

Am. Mining Cong. v. U.S. E.P.A., 965 F.2d

PN I, HI ccinccscedncvsscecnicccosssnsesscses 17

Auer v. Robbins, 519 U.S. 452 (1997).......... 8,15

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

STE tcionisieidestciencieneainttinonesinnentiinninaitiabisepisiiitienmes 15

Chevron U.S.A., Inc. v. U.S. E.P.A., 908

F.2d 468 (9th Cir. 1990)..............ce.ceceeeeeeee 21

Envtl. Def. Ctr. v. U.S. E.PA., 344 F.3d

BEB CEE Ce. BOGE) .nccccccccvcescccveccsecescsccsscese 18

Nat'l Mining Ass’n v. U.S. Dep't of the

Interior, 70 F.3d 1345 (D.C. Cir. 1995) .... 21, 22

Natural Res. Def. Council v. U.S. E.PA.,

571 F.3d 1245 (D.C. Cir. 2009)................. 21

Natural Res. Def. Council v. U.S. E.PA.,

966 F.2d 1292 (9th Cir. 1992)................... 17

Newton Cnty. Wildlife Ass’n v. Rogers, 141

F.3d 803 (8th Cir. 1998)..................ccceeeeeee 4,15

Sierra Club v. Martin, 71 F. Supp. 2d 1268

SEES TAs SEED concccncencedhenseenenennbonsammesennenn 4,15

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

BS Gs VE Gee Pecsccccccccsevecncscsssncssonscsces 23

Tex. Mun. Power Agency v. Adm’r of U.S.

E.P.A., 836 F.2d 1482 (5th Cir. 1988) ...... 21, 22

W. Neb. Res. Council v. E.PA., 793 F.2d

Ne CG BE sciecncncicccesenivcnsdnccnsicensios 21-22

STATUTES

BD BEAD. © BI FE Bdvccvccoscesccssecscssesesccscesoses 21

TABLE OF AUTHORITIES—Continued

Page

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ee Ses OP BD ciccccvcesesencesesssennscessesenesonss 16, 20

SB ULC. | SREB) 22cccccccsccccccccccscscossseceses 7,16

33 U.S.C. § 1B42(pNZ) ...........ccrccccceseccreseresees 7,16

BB UB.C. § 1DEBIMMS) ......ccccccccccccccsocevsssveccce 7,16

Se OF eee © IED csiccincceccevescossesseessesneseee 7

Be le OF IED cnccscnsenrescscencessesssecsenens 16

33 U.S.C. § 1B42(pHG) .......... cceeeeeeeeeseeeeeeees 16

Be Rs Oe I tctdcsisccecnsecnnsecnmnieccsmennninnncaes 4,21

Be els Oe I edccinctcecccdtececnntsencesenesoinenseseene 21

33 U.S.C. § 1360(b).................cceereeeeee 12, 13, 22, 23

33 U.S.C. § 1369(b)(1)..............22e eee 5, 9, 12, 14, 18

33 U.S.C. § 1LBGB(DNMZ)........0....cccccccccecsccces 5, 6,9, 13

40 C.F.R. § 122.26(b)(14).............eeeeeeeeeee cree: 16, 20

40 C.F.R. § 122.26(b)(14 (il) .......... 0... eee eee 17

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a es Se vc cccdcednedstnasnndansdanitetnnacie 21

OD Saas BO icctcevensssencccscssecescsccsecsccee 21

Be le Oe iincicensscceccescctncsonssindnetieeees 21

43 USB.C. § GBTELAMD)..........ccccccccccsscccssvcecccees 21

42 U.S.C. § TEOT(D)......ccccccccccrcccccesccccscvecesseces 21

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page

41 Fed. Reg. 6281 (Feb. 12, 1976)................ 11

41 Fed. Reg. 24709 (June 18, 1976)........ 10, 11, 12

45 Fed. Reg. 33,290 (May 19, 1980)............. 10

55 Fed. Reg. 47,990 (Nov. 16, 1990) ............ 16, 17

64 Fed. Reg. 68,722 (Dec. 8, 1999).............-. 18

INTERESTS OF AMICI CURIAE'*

The National Alliance of Forest Owners is a trade

association that represents owners and managers of

over 79 million acres of private forests in 47 states.

Its mission is to protect and enhance the economic

and environmental values of privately-owned forests

through targeted national policy advocacy.

The American Farm Bureau Federation is the

largest non-profit general farm organization in the

United States, representing more than 6.2 million

member facilities in fifty states and Puerto Rico. Its

mission is to protect, promote, and represent the

business, economic, social, and educational interests

of American farmers.

The Forest Resources Association is a trade associ-

ation concerned with the safe, efficient, and sustain-

able harvest of forest products and their transport

from woods to mill. It represents wood consumers,

independent logging contractors, wood dealers, forest

landowners, and others with an interest in wood

supply chain management.

In addition to these national organizations, the

amici include the following group of state forestry

associations from various forested regions across the

country: Empire State Forest Products Association

(New York), Florida Forestry Association, Georgia

' Pursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part and

that no persons other than amici and their counsel made a

monetary contribution to its preparation or submission. Coun-

sel for amici appeared on behalf of intervenors below but did not

participate in drafting either Petition. Letters of consent for the

submission of this brief are on file with the Clerk.

Forestry Association, Louisiana Forestry Association,

Maine Forest Products Council, Michigan Forest Pro-

ducts Council, New Hampshire Timberland Owners

Association, South Carolina Forestry Association,

Virginia Forestry Association, and Washington

Forest. Protection Association. Each of these organi-

zations has members, including companies, individu-

als, and families, that work on, own, or manage forest

lands in their reepective states. Each of these organi-

zations promotes the stewardship and wise use of

forest resources and is dedicated to forest conser-

vation and the sustainable use of natural resources.

Each of them has independently decided that for the

reasons expressed in this brief, the Petitions present

important issues affecting their members and that

those issues warrant this Court’s attention.

Amici have direct interests in the outcome of this

case. These organizations have member: who own or

manage forest lands and/or roads with stormwater

conveyance structures—e.g., ditches and culverts—

that, under the Ninth Circuit’s decision, would for the

first time be subjected to permitting under CWA

section 402, 33 U.S.C. §1342. The decision below

could require these members to change longstanding

practices and obtain permits for discharging storm-

water runoff associated with tree harvests and road

construction and maintenance, heretofore defined

for over three decades by the Silvicultural Rule, 40

C.F.R. §122.27, as nonpoint source discharges not

subject to permitting.

The use of ditches and culverts to protect forest

roads from the destructive effects of precipitation is

integral to building and maintaining those roads.

Given the number of such roads and the need for

maintenance, the Ninth Circuit’s decision would

require the private, state, county, and federal actors

that build and maintain roads for timber harvesting

to obtain potentially hundreds of thousands (or

millions) of section 402 permits. See Ex. 1. to Am.

Forest Res. Council C.A. Amicus Br. (“If the [U.S.

Forest Service] is required to obtain permits on a

road by road basis, that would mean obtaining up to

400,000 permits.”); Am. Loggers Council C.A. Amicus

Br. 13 (“At the national level, Amici estimate that the

decision will create an additional 3,000,000 permit

applications, based on number of affected landown-

ers, or 750,000 applications, based on number of tree

harvests, or 264,000,000 point source discharges

requiring permits.”). The expansion of the section

402 permitting program resulting from the Ninth

Circuit’s decision is well-illustrated by comparing

the number of permits this decision will require

with EPA’s 2009 estimate that the total universe of

discharges then requiring permits (individual or gen-

eral) was only 400,000. See Hanlon Decl. in Supp. of

Am. Loggers Council C.A. Amicus Br. { 11.

Accordingly, amici emphasize the practical impor-

tance of the decision on their ongoing forestry activi-

ties. But for the reasons set forth below, they also

emphasize the broader disruption flowing from the

type of belated review of long-established EPA rules

that the Ninth Circuit’s decision allows.

The basic principle that should control here is

clear. If an agency tries to apply a rule in a manner

not specified at the time of promulgation, that appli-

cation should then be susceptible to challenge as

inconsistent with the governing law. But if the scope

of a rule was announced at the time of promulgation,

and left unchallenged, then affected parties should

be able to continue to rely on that rule, as they have

on the 1976 Silvicultural Rule and the 1990 Phase

I regulations. The Ninth Circuit undercuts these

fundamental understandings, threatening the impo-

sition of new, unexpected obligations on amici and

others potentially subject to the Clean Water Act.

INTRODUCTION AND SUMMARY

This case began as a citizen suit brought in a

district court under 33 U.S.C. § 1365. The district

court had little difficulty concluding that the chal-

lenged failure to obtain section 402 (33 U.S.C. § 1342)

permits for sediment runoff from forest roads did not

violate the CWA. The Silvicultural Rule, promul-

gated in 1976, made it clear that such runoff did not

involve point source discharges and thus was beyond

the reach of section 402 permitting requirements.

See Pet. App. 53-77. In so holding, the district court

followed a conventional approach, consistent with

other courts, in concluding that under the Silvicul-

tural Rule, forest road rainwater runoff is from a

“non-point” source, and thus no permits were

required. See Newton Cnty. Wildlife Ass’n v. Rogers,

141 F.3d 803 (8th Cir. 1998); Sierra Club v. Martin,

71 F. Supp. 2d 1268 (N.D. Ga. 1996). Because the

Silvicultural Rule itself made clear that such runoff

was not subject to section 402 permitting, the district

court concluded that it need not address the chal-

lenge to EPA’s rules implementing Phase I of the

1987 CWA amendments, which also declined to sub-

ject such rainwater runoff to section 402 permitting

requirements.

On appeal, however, this case took on a very differ-

ent cast. The Ninth Circuit allowed this enforcement

action, to which EPA was not a party, to become the

vehicle for attacking EPA rules that had been in

effect for decades. It then seemingly leap-frogged

EPA’s primary authority and responsibility to

consider in the first instance, through continued

rulemaking, whether stormwater runoff from forest

roads used for logging gave rise to a need for section

402 permits under the 1987 CWA amendments.

In so doing, the Ninth Circuit created a device

for bypassing jurisdictional requirements limiting

challenges to EPA-promulgated rules. By statute,

such challenges must be raised in a case against EPA

in a court of appeals no more than 120 days after

promulgation, unless the grounds for the challenge

arose later. See 33 U.S.C. § 1369(b)(1). A claim that

the rule’s intended scope as described by EPA would

render the rule inconsistent with the CWA is, of

course, an issue that could have been raised in such a

review action. If such a challenge could have been

presented under §1369(b)(1), then the following

subsection, 33 U.S.C. §1369(b)(2), makes it clear that

the rule is truly final, and the claim cannot be

pursued later by way of collateral attack in enforce-

ment proceedings.

When EPA promulgated the two rules at issue in

this case—the 1976 Silvicultural Rule and the 1990

Phase I regulations—it made clear how those rules

were to apply to the issues raised in this case. Any

affected party who believed that the rules as

explained by EPA were inconsistent with the CWA

could have challenged them at that time.

Nonetheless, under the Ninth Circuit’s decision,

there is now an alternative way of attacking long-

standing rules as inconsistent with the CWA. That

attack may be mounted decades after promulgation,

even if the intended scope of the rule was clear at the

time of promulgation and could have been timely

challenged. Moreover, that attack can be pursued in

a district court citizen suit to which EPA is not even

a party. Even decades later, if the court concludes

that the scope of the rule as described by the agency

had been inconsistent with the CWA, the court can

force a transformative interpretation upon the rule to

now render it consistent with (the court’s current

understanding of) the CWA, but inconsistent with the

agency’s contemporaneously stated intent. Under

that approach, the rule is, in theory, merely “inter-

preted.” It survives as neutered, deprived of its

intended contemporaneously described meaning.

That approach, however, ignores the central question

under 33 U.S.C. § 1369(b\2), namely, whether the

challenge to the scope of the rule as inconsistent with

the CWA “could have been” maintained—and thus

was required to have been maintained—at the time

of promulgation.

The Ninth Circuit used that tack here. Based on

the CWA’s definition of “point source,” the Ninth

Circuit held that because ditching and culverts chan-

nel runoff from forest roads, the runoff requires

section 402 permitting. It then applied that holding

to overturn one of the core applications of EPA’s

Silvicultural Rule, which since the Act’s earliest days

defined runoff from forest roads as “non-point source”

in nature, and thus not subject to section 402

permitting.

The Ninth Circuit then reviewed EPA’s 1990

rulemaking in connection with Congress’s effort to

comprehensively address stormwater runoff with the

1987 CWA amendments. See 33 U.S.C. § 1342(p)1)-

(4). In 1990, EPA determined that channeled runoff

from forest roads were not discharges “associated

with industrial activity” and thus did not require

permits under Phase I rulemaking implementing the

1987 amendments. It did so in part—but only in

part—because the Silvicultural Rule already speci-

fied that discharges from such activities were not

point source discharges. Indeed, EPA filed an amicus

brief in this case noting that even if the Silvicultural

Rule was not itself sufficient to clarify that logging

road runoff is not “industrial activity,” the preamble

to the Phase I rulemaking explains that timber

harvesting—silviculture—is not industrial activity.

See U.S. 1st C.A. Amicus Br. 28-31.

But the Ninth Circuit nonetheless declared that

runoff from forest roads used for logging must be

deemed discharges “associated with industrial activ-

ity,” preempting EPA’s longstanding contrary posi-

tion under its Phase I regulations. See Pet. App. 42-

48. The Ninth Circuit relied on EPA’s reference to

facilities classified within Standard Industrial Classi-

fication (“SIC”) 24 as being “associated with indus-

trial activity.” In so holding, it declined to recognize

EPA’s clarification, made at the time of promulgation

and again as amicus in this case, that the Agency’s

reference to SIC 24 did not encompass “logging” and

forest roads used for logging. And it paid no heed to

EPA’s stated view, in its district court amicus brief,

that silviculture is more akin to agriculture than

“industrial activity.” See Pet. App. 124a n. 19. The

Ninth Circuit thus did not noticeably defer to EPA’s

interpretation of its Phase I regulations as required

by this Court’s precedents. See, e.g., Auer v. Robbins,

519 U.S. 452, 461 (1997).

But the error runs deeper. Even assuming that the

Ninth Circuit’s narrowing of the Silvicultural Rule

now opened the door to reexamination of EPA’s deci-

sion to exclude forest road runoff from Phase I regu-

lation, that reexamination must be conducted first by

EPA, as part of its rulemaking responsibility, and not

the courts. But the Ninth Circuit did precisely that,

again using an enforcement action to intrude on

agency rulemaking.

The practical impact of the Ninth Circuit’s ruling

on forest road construction and maintenance is likely

to be overwhelming. Forest roads of the type used for

timber harvesting cover hundreds of thousands of

miles, crossing “waters of the United States” in

countless locations. They are built and maintained

by private citizens and companies, counties and

states, and the federal government. To ensure that

they remain useful, the roads are constructed with

appropriate ditching and culverts to channel precipi-

tation runoff. And for the last 35 years, under the

Silvicultural Rule and EPA’s 1990 Phase I regula-

tions, runoff from forest roads has not been subjected

to the Act’s section 402 permitting requirements. Yet

according to the Ninth Circuit, all that has been

wrong. We have set forth additional information

about the practical impact of the decision on forest

and farm owners in the amici’s statement of interests

and will not repeat it here. The ruling below casts a

wide net over forestry.

The effects of the decision on administrative law

and process are even wider for it allows belated

challenges to longstanding EPA rules to be boot-

strapped into enforcement actions to which the EPA

is not even a party. It thus allows collateral chal-

lenges to rules that—because no timely challenge had

been raised at the time of promulgation—had long

taken on the force of established law. This Court

should grant the petitions to resolve the important

questions presented.

ARGUMENT

I. The Ninth Circuit’s Failure To Respect

The Prescribed Means For Challenging

Agency Rules Makes This A Case Of

Exceptional Importance.

Challenges to rules promulgated under the CWA

must be initiated in a Circuit Court of Appeals of the

United States within 120 days of the rule’s promulga-

tion unless “based solely on grounds which arose af-

ter such 120th day.” 33 U.S.C. § 1369(b)(1). Absent

challenge, the rule becomes law. The prohibition on

collateral challenges to EPA rules is emphatic:

“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 criminal proceeding for enforcement.” 33 U.S.C.

§ 1369(bX(2). The Ninth Circuit’s rulings in this case

flout this basic, jurisdictional limitation on judicial

review of agency rules.

A. The Ninth Circuit Forced A Trans-

formative Construction Upon The

Silvicultural Rule To Render It

Consistent With Its View Of The

Requirements Of The Clean Water Act.

A foundational requirement of the CWA is that

pollutant discharges from “point sources” are prohi-

bited unless grarted a permit under section 402. See

33 U.S.C. §§ 1311(a), 1342. More than 35 years ago,

however, EPA promulgated the Silvicultural Rule

(currently, 40 C.F.R. § 122.27). That rule specifies

that permits are not required for silvicultural rain-

water runoff, including runoff from the hundreds of

thousands of miles of forest roads nationwide,

because such runoff is “nonpoint source” in nature.

Accordingly, private actors, states, counties and

federal agencies were not required to obtain section

402 permits when they installed a culvert, deepened

ditches, or extended or moved a forest road used for

timber harvesting and similar silvicultural activities.

The Ninth Circuit’s decision recollects the history

of the Silvicultural Rule and its intended scope. See

Pet. App. 20-32. EPA first tried to exempt categories

of discharges, including any related to silviculture,

from the CWA’s permitting requirements. But upon

the D.C. courts’ determination that EPA could not

simply exempt point source discharges from the Act,

it issued the Silvicultural Rule. See 41 Fed. Reg.

24709 (June 18, 1976).” The Rule clarifies and lists

the four silvicultural activities that EPA regarded as

? EPA codified the current version of the Rule in 1980, but

that version differs from the 1976 version only in minor res-

pects. See 45 Fed. Reg. 33,290, 33,446-47 (May 19, 1980).

involving point sources: discharges through “discern-

ible, confined, and discrete conveyance[s] related to

rock crushing, gravel washing, log sorting, or log

storage facilities.” At the same time, EPA deter-

mined by rule that stormwater runoff from roads and

road maintenance, including through ditches and

culverts integral to forest road survival, was a

nonpoint source discharge outside the permitting

process. See Pet. App. 31-32.

Throughout most of its opinion, the Ninth Circuit

correctly described the Silvicultural Rule as unambi-

guously defining stormwater runoff from forest roads

as nonpoint sources, whether channeled through

ditches and culverts or not. See Pet. App. 20-32.

Relying on the text and EPA’s explanatory state-

ments in the preambles to the proposed rule, see 41

Fed. Reg. 6281 (Feb. 12, 1976), and the final rule, see

41 Fed. Reg. 24709 (June 18, 1976), the Ninth Circuit

panel stated repeatedly that the Rule treated storm-

water runoff from forest roads as nonpoint source,

even if channeled. See, e.g., Pet. App. 24 (“[A]ny

natural runoff containing pollutants was not a point

source, even if the runoff was channeled and con-

trolled through a ‘discernible, confined and discrete

conveyance’ and then discharged into navigable

waters.”); id. at 26 (“[T]he effect of the Rule was

to treat all natural runoff as nonpoint pollution, even

if channeled and discharged through a discernible,

confined and discrete conveyance.”); id. at 31 (“[Dlis-

charges of ‘natural runoff are nonpoint sources of

pollution, even if such discharges are channeled and

controlled through a ‘discernible, confined and

discrete conveyance.”).

Even if some ambiguity could be forced on the bare

words of the Rule as written, its intended application

to stormwater runoff through culverts and ditches—

the issue here—was unequivocally set forth and

ripe for challenge at the time of promulgation. The

preamble to the proposed rule declared that “ditches,

pipes and drains that serve only to channel, direct,

and convey non-point runoff from precipitation are

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

Id. at 27. Responding to comments on the proposed

rule, EPA emphasized that “[iJnsofar as [surface]

drainage serves only to channel diffuse runoff from

precipitation events, it should also be considered

nonpoint in nature.” 41 Fed. Reg. at 24,711.

Such statements put all affected parties on notice

that runoff from forest roads, even if channeled

through ditches and culverts and the like, was not

subject to permitting. If anyone believed the Rule

was improper because ditches, pipes, and drains that

channel runoff are, in fact, point sources that must be

permitted under section 402, this was a challenge

that “could have been” mounted under 33 U.S.C.

§ 1369(b)(1) within 120 days of the Rule’s promulga-

tion.

The Ninth Circuit nevertheless found itself uncon-

strained by the jurisdictional bar of § 1369{b). The

Ninth Circuit first concluded that the Rule, as origi-

nally intended by EPA, would be inconsistent with

the Act. See Pet. App. 36-37. Having so concluded, it

forced an alternative interpretation on the Rule—

contrary to its contemporaneously described scope—

to conform it to the Act. Thus, the Ninth Circuit

miraculously read the Rule as applying only to

stormwater runoff from forest roads in the rare

circumstance where no channeling of the runoff

through ditches and culverts occurs. Of course, with-

out ditches and culverts to carry away the forest

stormwater, the stormwater would wash away the

forest roads.

By converting arguments about whether the

Rule is consistent with the CWA—which should have

been raised upon promulgation—into a mechanism

for belatedly giving the Rule a transformative re-

interpretation, the Ninth Circuit’s approach to 33

U.S.C. § 1369%b) renders its jurisdictional bar ineffec-

tual. If EPA has described the scope of a rule at the

time of promulgation, then that is the time to object

to that scope as being inconsistent with the CWA. It

is no longer subject to challenge in an enforcement

proceeding. The decisive jurisdictional question is

whether the claim could have been brought at the

time of promulgation. 33 U.S.C. § 1369(b)(2).

The controlling principle was explained by the

United States in its second amicus brief to the Ninth

Circuit: “If EPA states its interpretation at the time

it promulgates the regulation (e.g., in an accompa-

nying Federal Register preamble), a potential plain-

tiff must accept EPA’s interpretation as authoritative

and challenge the regulation directly and in a timely

fashion.... Otherwise, Section 1369(b)’s purposes

would be completely subverted by allowing a court to

reject EPA’s interpretation in a later citizen suit.”

U.S. 2d C.A. Amicus Br. 9. The issue is not whether

the Rule is ambiguous in the eyes of one reading the

Rule today, but whether an affected party could have

mounted the challenge in a court of appeals against

EPA within 120 days of promulgation. 33 U.S.C.

§ 1369(b\(2).

The Ninth Circuit supported its tack here by citing

a statement in a footnote in an amicus brief of the

United States* suggesting that the first time EPA

had interpreted the Silvicultural Rule as defining

forest road runoff through ditches and culverts as

nonpoint source was in a brief filed earlier in this

very case. According to the Ninth Circuit, this

brought the issue within § 1369(b)(1)’s exception for

suits challenging a rule based on grounds arising

more than 120 days after promulgation. See Pet.

App. 9-10. But the Ninth Circuit’s explanation is

transparently incorrect. The notion that this inter-

pretation was new was inconsistent with EPA’s

statements at the time of promulgation. Even if

correct, that would only overcome the time bar in the

second sentence of § 1369(b)(1). It would not explain

how the challenge could be mounted through a

district court citizen suit, rather than in an appropri-

ate court of appeals.

In 1976, when EPA promulgated the Silvicultural

Rule, no affected party claimed that the Rule’s

prescribed scope exceeded EPA’s power under the

CWA, though such a challenge, if it had merit, would

have been ripe to be raised. Consequently, for over

three decades, discharges of the type in question here

were deemed nonpoint source discharges, not subject

to permitting. The Ninth Circuit, therefore, should

* That footnote, in a brief to which EPA was not a party, is

difficult to reconcile with EPA’s contemporaneous description of

the Silvicultural Rule. The footnote was in the same amicus

brief in which the United States stated clearly that a statement

of the rule’s scope in the preamble triggers the obligation to

mount a challenge to that stated scope within 120 days. See

Pet. App. 9-10.

have either rejected the suit as an untimely collateral

attack on the Rule, or followed the lead of the district

court and other federal courts in similar litigation, by

applying the Rule and dismissing the claim on the

merits. See Pet. App. 53-77; Newton Cnty. Wildlife

Ass’n, 141 F.3d 803; Sierra Club, 71 F. Supp. 2d

1268.

B. The Ninth Circuit Further Allowed

This Enforcement Action To Displace

EPA’s Rulemaking Authority With

Respect To The 1987 Stormwater

Amendments.

The Ninth Circuit went equally far afield in

addressing whether forest roads used for logging

are “industrial activity” subject to permitting under

Phase I of the 1987 CWA amendments. Although

EPA’s amicus brief made clear that EPA regarded

channeled runoff from logging roads to be beyond the

scope of Phase I regulations, see U.S. lst C.A. Amicus

Br. 28-31, the Ninth Circuit refused to defer to EPA’s

views on the proper scope of its Phase I regulations,

though deference was required under this Court’s

precedents. See Chase Bank USA v. McCoy, 1315S. Ct.

871, 880 (2011) (“[Wle defer to an agency’s inter-

pretation of its own regulation, advanced in a legal

brief, unless that interpretation is ‘plainly erroneous

or inconsistent with the regulation.”) (quoting Auer,

519 U.S. at 461-62). Even if the Ninth Circuit’s

reinterpretation of the Silvicultural Rule in this case

called into question EPA’s 1990 determination that

logging road runoff is outside the scope of Phase I

regulation, the Ninth Circuit should have stayed its

hand to allow EPA to reexamine whether such runoff

was nonetheless non-industrial and thus remained

beyond the scope of Phase I regulation.

That this issue is one for agency determination,

rather than judicial edict, is clear from the regulatory

history. As the Ninth Circuit recounted, EPA had

long been reluctant to regulate channeled stormwater

runoff, citing among other things the sheer scope of

such an effort. In 1987, Congress amended 33 U.S.C.

§ 1342(p) to address stormwater under a comprehen-

sive new regime. It directed EPA to erect a permit-

ting program for stormwater discharges in two

phases. As part of Phase I, Congress directed EPA to

require permits for five categories of stormwater

discharges, including those “associated with indus-

trial activity.” See 33 U.S.C. § 1342(p)1)-(3). EPA

promulgated its Phase I regulations in 1990. See 55

Fed. Reg. 47,990 (Nov. 16, 1990). Congress required

EPA to consider, in Phase II, whether other types of

stormwater discharges should also be subject to

permitting, given “the nature and extent of pollu-

tants in such discharges.” See id. § 1342(p)(5)-(6).

In its 1990 Phase I regulations, EPA defined dis-

charges “associated with industrial activity” to refer

only to discharges “directly related to manufacturing,

processing or raw materials storage areas at an

industrial plant.” See 55 Fed. Reg. at 48,011. Runoff

from a rural road running through the forest and

used to haul timber does not reasonably fit within

this definition. Moreover, EPA stated that its Phase

I permit requirement would “not include discharges

from facilities or activities excluded from the [permit-

ting) program under this Part 122.” See 40 C.F.R.

§ 122.26(b)(14); see also 55 Fed. Reg. at 48,011. Thus,

EPA specifically carried forward into the Phase I

regulations the understanding that runoff histori-

cally outside section 402 permitting obligations pur-

suant to the Silvicultural Rule was not “industrial.”

Further, EPA explained that by including a refer-

ence to Standard Industrial Code (“SIC”) 24 in its

regulatory definition of “associated with industrial

activity,” see 40 C.F.R. § 122.26(b)(14 ii), it meant to

require permits for “sawmills . . . and other mills

engaged in producing lumber and wood basic mate-

rials” because such facilities could be expected to

contain potential pollution sources such as “storing

raw materials .. . [or] waste products . . . or chemi-

cals outside.” 55 Fed. Reg. at 48,008. But EPA speci-

fied that its reference to SIC 24 was not intended to

include silvicultural activities in the forest itself,

such as stormwater runoff from logging roads. See 55

Fed. Reg. at 48,011. It agreed with comments urging

exclusion of logging road runoff from Phase I permit-

ting, emphasizing that runoff is better controlled

through best management practices. Thus, the

“definition of discharge associated with industrial

activity does not include activities or facilities that

are currently exempt from permitting under [s]ection

402,” such as natural runoff from forest roads, even if

collected and discharged through ditches, culverts,

and channels. See id.

EPA’s decision that such activities are outside of

Phase I could have been challenged at the time of

promulgation. Notwithstanding timely challenges

to other aspects of the Phase I regulations, EPA’s

decision on forest roads emerged unscathed. See

Am. Mining Cong. v. U.S. E.PA., 965 F.2d 759 (9th

Cir. 1992); Natural Res. Def. Council v. U.S. E.PA.,

966 F.2d 1292 (9th Cir. 1992). Indeed, in 1999 EPA

declined to subject forest road runoff even to Phase II

regulation, a conclusion that the Ninth Circuit later

directed EPA to reconsider and which remains under

consideration.‘ If EPA was properly directed to

reconsider whether forest road runoff should be re-

gulated under Phase II, that same activity could not

have been mandatorily subject to Phase I regulation.

Nonetheless, more than a decade after the close of

the 120-day filing window under 33 U.S.C. § 1369(b\1),

the Ninth Circuit here addressed whether forest road

runoff was subject to Phase I regulation. Having

held that the Silvicultural Rule does not permissibly

define channeled forest road runoff as nonpoint

source discharges (a holding that arguably displaced

one of the reasons why EPA had found it beyond the

scope of Phase I regulation), the Ninth Circuit

decided to examine whether it was, in fact, subject to

Phase I permitting. It noted that EPA had refer-

enced SIC 24 in defining industrial activity, leading

the Ninth Circuit to declare it “undisputed that

* When EPA promulgated its Phase II regulations, it required

permits for activities that “present a high likelihood of having

adverse water quality impacts.” See 64 Fed. Reg. 68,722, 68,734

(Dec. 8, 1999). EPA did not subject channeled runoff from forest

roads to permitting under Phase II. Timely challenges to

EPA’s Phase II regulations were filed in three courts of appeals

and consolidated in the Ninth Circuit. See Envtl. Def. Ctr. v.

U.S. E.P.A., 344 F.3d 832, 843 (9th Cir. 2003). Among the many

issues raised was whether EPA’s decision not to subject forest

road runoff to Phase II permitting was unlawful. See id. at 860-

63. The Ninth Circuit remanded the issue to EPA on the theory

that even if EPA had previously concluded that such activity

was not subject to permitting, that did not mean that EPA

should not now consider whether it should be, as part of Phase

II. See id. at 863. See Pet. App. 48.

‘logging,’ which is covered under SIC 2411 (part of

SIC 24), is an ‘industrial activity.” See Pet. App. 44-

45. This analysis, however, bypassed EPA’s own

statements—made at the time of promulgation and in

its first amicus brief to the Ninth Circuit—that by

referencing SIC 24 in the regulation, EPA did not

intend to encompass runoff from roads used for log-

ging and did not view silvicultural activity as indus-

trial. In deciding the issue, the Ninth Circuit

thwarted Congress’ bar on untimely CWA rulemak-

ing challenges (and indeed, did not even discuss it),

failed to defer to the agency and thwarted Congress’

intent to allow EPA to decide how best to regulate

stormwater discharges—including how to define

discharges “associated with industrial activity.”

Even if the Ninth Circuit’s ruling on the proper

scope of the Silvicultural Rule opened the door to

rethinking EPA’s earlier conclusion that forest road

runoff is outside the scope of Phase I regulation, 1.e.,

it created grounds to challenge the Phase I regula-

tions that were unavailable 120 days after promulga-

tion, the Ninth Circuit had no warrant to determine

whether such forest road construction and mainten-

ance was, in fact, “industrial activity” subject to

Phase I regulation. Whether such runoff is “asso-

ciated with industrial activity” subject to Phase I

regulation, whether it should be subject to Phase II

regulation, or whether it should remain outside the

permitting process entirely, are questions for EPA to

resolve in the first instance. These questions are not

properly resolved in an enforcement action to which

EPA is not even a party.

Congress gave EPA broad discretion to determine

both whether stormwater discharges are industrial

and how best to regulate non-industrial stormwater

discharges. See 33 U.S.C. § 1342(p). The Ninth

Circuit’s assertion that silviculture, which is akin to

agriculture, is actually an “industrial activity,” is

far from obvious. Cf Pet. App. 124a n. 19 (“Forestry

roads and silvicultural harvesting . . . more closely

resemble agricultural land uses than industrial

ones.”). The operative definition of “storm water

discharge associated with industrial activity” applied

by EPA in Phase I—referring to discharges from

“industrial plants,” 40 C.F.R. § 122.26(b)(14)—was

not on its face broad enough to reach forest roads

used for logging. As amicus in this case, EPA had

clarified that even apart from the Silvicultural Rule,

it did not believe that forest road maintenance could

properly be considered industrial activity. U.S. Ist

C.A. Amicus Br. 29-31; Pet. App. 123a-127a. More-

over, the determination that runoff from forest roads,

channeled or not, ought not be subject to permitting,

had been the agency’s view for more than three

decades, since promulgation of the Silvicultural Rule

itself. Thus, EPA’s conclusion that silviculture is

more closely allied to agriculture than “industrial

activity,” is neither plainly erroneous nor inconsis-

tent with the regulation. Quite the contrary, it is

intuitively correct and consistent with the historical

treatment of silviculture.

Nonetheless, the Ninth Circuit inexplicably ignored

EPA’s interpretation, holding that roads used to

transport logged timber are “industrial,” thus

imposing its own view of what is industrial activity

under the Phase I regulations. See Pet. App. 44-47.

Again, the Ninth Circuit lost sight of the fact that

this was a citizen suit under 33 U.S.C. § 1365, not a

challenge to EPA rulemaking under 33 U.S.C. § 1369,

and that these were issues Congress assigned to

EPA, not to the courts.

C. The Decision Below Undermines Con-

gressional Limits On Judicial Review

Under Various Statutes.

Even beyond the great practical impact of the

Ninth Circuit’s ruling on the timber industry, the

Ninth Circuit’s rulings on the judicial review of

agency regulations in the context of an enforcement

action are important. Many federal statutes limit

judicial review of agency rules to suits against the

agency in particular venues, subject to specific filing

deadlines. See, e.g., 42 U.S.C. § 7607(b) (Clean Air

Act: 60 days); 30 U.S.C. § 1276(aX1) (Surface Mining

Control and Reclamation Act (SMCRA): 60 days);

42 U.S.C. § 300j-7(a) (Safe Drinking Water Act: 45

days); 42 U.S.C. § 300aa-32 (National Childhood

Vaccine Injury Act: 60 days); 42 U.S.C. § 4915(a)

(Noise Control Act: 90 days); 42 U.S.C. § 6976(a\(1)

(Resource Conservation and Recovery Act: 90 days).

Review provisions such as these are jurisdictional,

and courts routinely reject untimely rulemaking

challenges filed outside of the statutory review

period. See, e.g., Natural Res. Def. Council v. U.S.

E.P.A., 571 F.3d 1245, 1265, 1269 (D.C. Cir. 2009)

(Clean Air Act); Natl Mining Ass’n v. U.S. Dep’t of

the Interior, 70 F.3d 1345, 1350 (D.C. Cir. 1995)

(SMCRA); Chevron U.S.A., Inc. v. U.S. E.PA., 908

F.2d 468, 471 (9th Cir. 1990) (CWA); Tex. Mun.

Power Agency v. Adm’r of U.S. E.P.A., 836 F.2d 1482,

1485 (5th Cir. 1988) (same); W. Neb. Res. Council v.

E.P.A., 793 F.2d 194, 198 (8th Cir. 1986) (Safe Drink-

ing Water Act).

By limiting the time and circumstances under

which rules may be challenged, Congress “struck a

careful balance between the need for administrative

finality and the need to provide for subsequent

review in the event of unexpected difficulties.” Nat’

Mining Ass’n, 70 F.3d at 1350; see also Tex. Mun.

Power Agency, 836 F.2d at 1484 (“These time limita-

tions impart finality to the administrative process,

thus conserving administrative resources .... The

requirements show a congressional decision to im-

pose statutory finality on agency actions that we, as a

court, may not second-guess[.]”).

The Ninth Circuit’s approach to 33 U.S.C. § 1369(b)

allows for ready circumvention of statutory limits on

judicial review in the CWA and other statutes with

similar review provisions. Regulations that have

been interpreted and applied consistently by agencies

for decades, as announced at the time of promulga-

tion, may nevertheless be challenged based on claims

that the regulations were, all along, inconsistent with

statutory authority. Indeed, that inconsistency can

be used to drive a finding that the regulation is

somehow ambiguous. Yet, it was clearly Congress’s

intent that all available challenges to rules be

presented in an action against the agency near the

time of promulgation. Any other result would effec-

tively leave rules—here, a rule that has been con-

sistently applied for more than three decades—

perpetually open to judicial review as inconsistent

with the governing statute.

The requirement that a rulemaking challenge be

timely presented in a suit against the promulgating

agency addresses more than finality. Such chal-

lenges must be mounted against the agency, which is

thereby given a full and fair chance to defend its

views. Such challenges, where the agency is the

named defendant, allow for binding nationwide

uniform determinations about the validity of agency

rules. Moreover, other interested parties have the

opportunity to contribute to the defense of (or the

assault on) the rule. By contrast, collateral citizen

suit attacks on agency regulations risk inconsistent

and piecemeal litigation and determinations, and

uncertainty as to effect of judicial decisions on the

agency and non-parties.

Even apart from timing and venue requirements,

the Ninth Circuit’s decision to allow a citizen

enforcement action to become the vehicle for issuing

pronouncements that preempt an agency’s authority

to consider an issue plainly entrusted to its discretion

is inconsistent with basic principles of administrative

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

U.S. 735, 740-41 (1996), and subverts the jurisdic-

tional direction that rulemaking is to be reviewed

in the courts of appeals through 33 U.S.C. § 1369(b).

In this case of great practical importance, this

Court should resolve the questions presented on the

permissible scope of judicial review of agency rules in

an enforcement action.

CONCLUSION

The petitions for a writ of certiorari should be

granted.

Respectfully submitted,