Joint Appendix — Decker v. Northwest Environmental Defense Center

Supreme Court brief2013

Ask Donna

What actually matters in this document.

Text

AND

RECORD soTTTTS |

BRIEFS |

Nos. 11-338 and 11-347

Jn the Supreme Court of the Anited States

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL., PETITIONERS

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

RESPONDENT

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

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

RESPONDENT

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

JOINT APPENDIX —- VOLUME I

ANNA M. JOYCE TIMOTHY S. BISHOP JEFFREY L. FISHER

Solicitor General Mayer Brown LLP. Stanford Law School

Oregon Department 71 South Wacker Dr. 559 Nathan Abbott Way

of Justice Chicago, IL 60606 Stanford, CA 94305

1162 Court St. NE (312) 782-0600 (650) 724-7081

Salem, OR 97301 tbishop@ jfisher@

(503) 378-4402 mayerbrown.com law.stanford.edu

anna joyce@ Counsel for Petitioners Counsel for Respondent

doj.state.or.us in No. 11-347

Counsel for Petitioners

in No. 11-338

PETITIONS FOR CERTIORARI FILED SEPTEMBER 13, 2011

CERTIORARI GRANTED JUNE 25, 2012

Library of Congress

Law Library

TABLE OF CONTENTS

VOLUME I

Page

Relevant Docket Entries in the United States

District Court for the District of Oregon............... 1

Relevant Docket Entries in the United States

Court of Appeals for the Ninth Circuit ................. 4

Amicus Curiae Brief of the United States

of America in NEDC v. Brown

(9th Cir. Dkt. 42, filed Nov. 16, 2007)................... gy

Amicus Curiae Brief of the United States

in NEDC v. Brown Responding to the Court’s

Questions of October 21, 2010

(9th Cir. Dkt. 126, filed Feb. 11, 2011) ............... 46

Federal Statutes and Regulations............................ 62

Oregon Statutes and Rules........................cceeeeeeeeees 107

VOLUME I

First Amended Complaint, Including Exhibits

Be ey Gs Sy Pilicccccnncccsesonestucedtstnnensseeseenes 1

Exhibit 1 to Request for Judicial Notice filed in

Support of Motion to Dismiss First Amended

Complaint (Dist. Ct. Dkt. 23) (EPA, Storm

Water Discharges Potentially Addressed by

Phase II of the NPDES Storm Water Program

SETI. PERI ndiacdccnscinisnennneennasensndtinenmenetteneeunes 45

Exhibit 2 to Plaintiff NEDC’s Request for Judicial

Notice (Dist. Ct. Dkt. 47) (OMB, Standard

Industrial Classification Manual (1987)) ........... 52

Plaintiff NEDC’s Second Request for Judicial

Notice, Including Exhibits 1 and 2

Ses TENA. HIIUIIINS Ts oticihcieneniiutnendunnipnnnanandqnecnnstsocannete 71

Exh. 1: Oregon Dept. of Forestry,

Installation and Maintenance of Cross

Drainage Systems on Forest Roads

asl licen dil neetnnnnninninueint 73

Exh. 2: Oregon Dept. of Forestry,

State Forests Program: Forest Roads

Manual (July 2OOO)................ccccececeecceseseceececececes 87

Exhibits A and B to Request for Judicial Notice

filed by Natural Resources Defense Council

and Environmental Protection Information

Center (9th Cir. Dkt. 26) .................c2cceceeeeeee eens 117

Exh. A: Oregon Dept. of Forestry,

Forest Road Sediment and Drainage

Monitoring Project Report for Private and

State Lands in Western Oregon

Sy CIE Iii cceteiarttcariethbttilintniimingsbandasbauninsinne 117

Exh. B: Oregon Dept. of Forestry,

Forest Road Drainage and Sediment

Delivery in the Kilchis River Watershed

I TTT inn tnincinsts in eictenietcnttaaemarnadinmeiiatabinaenieniadntdl 125

PETITION 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)....... la

Opinion for the U.S. District Court for the

District of Oregon (Mar. 1, 2007) ...................... 48a

Pertinent Statutes and Regulations....................... 69a

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, 2003) ..8la

United States’ Amicus Brief, Northwest Environ-

mental Defense Center v. Brown, No. 3:06 CV

01270 (D. Or. filed Dec. 6, 2006) ....................... 93a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

No. 06-1270-BR

Northwest Environmental Defense Center,

Plaintiff,

Vv.

Doug Decker, Oregon State Forestor, in his

official capacity, Jennifer Phillipi, John

Blackwell, Sybill Ackerman, Peter Hayes,

Calvin Mukumoto, Gary Springer, Steve

Wilson, mebers of the Oregon Board of

Forestry, in their official capacity, Hampton

Tree Farms, Inc., Stimson Lumber Co., Georgia-

Pacific West, Inc. and Swanson Group, Inc.,

Defendants

and

Oregon Forest Industries Council, American

Forest and Paper Association, and Tillamook

County, Intervenor-Defendants.

RELEVANT DOCKET ENTRIES

NO. DATE DESCRIPTION

1 09/05/2006 Complaint pursuant to

Section 505 of the Clean

Water Act

7 09/22/2006 First Amended Complaint

pursuant to Section 505 of

the CWA

DATE

11/03/2006

12/06/2006

12/21/2006

12/22/2006

DESCRIPTION

Motion to Dismiss by State

of Oregon Defendants

Memorandum in Support of

Motion to Dismiss by State

of Oregon Defendants

Motion to Dismiss by Timber

Defendants

Memorandum in Support of

Motion to Dismiss by Timber

Defendants

Industry defendants’ and de-

fendant-intervenors’ request

for judicial notice

Amicus Curiae Brief of the

United States

Plaintiffs Memorandum in

Opposition to Timber

Defendants’ Motion to

Dismiss

Plaintiffs Response to State

of Oregon’s Motion to

Dismiss

Plaintiff NEDC’s request for

judicial notice

State defendants’ request for

judicial notice

Reply Memorandum in

Support of State of Oregon’s

Motion to Dismiss

NO.

DATE

12/22/2006

01/10/2007

03/01/2007

03/27/2007

05/24/2007

DESCRIPTION

Reply Memorandum in

Support of Timber

Defendants’ Motion to

Dismiss

Plaintiffs Memorandum in

Opposition to EPA’s Amicus

Curiae brief

Plaintiff NEDC’s second

request for judicial notice

Opinion and Order Granting

Motions to Dismiss

Judgment

Notice of Appeal

Transcript of oral argument

at the U.S. District Court

IN THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

No. 07-35266

Northwest Environmental Defense Center,

Plaintiff-Appellant,

Vv.

Marvin Brown, Oregon State Forestor, in his

official capacity, Stephen Hobbs, Barbara

Craig, Diane Snyder, Larry Giustina, William

Heffernan, William Hutchison, Jennifer

Phillipi, mebers of the Oregon Board of

Forestry, in their official capacity, Hampton

Tree Farms, Inc., Stimson Lumber Co., Georgia-

Pacific West, Inc. and Swanson Group, Inc.,

Defendants-Appellees

and

Oregon Forest Industries Council, American

Forest and Paper Association, and Tillamook

County, Intervenor-Defendants-Appellees.

RELEVANT DOCKET ENTRIES

NO. DATE DE IPTION

04/06/2007 Plaintiff-Appellant NEDC’s

statement of issues

23 09/17/2007 Plaintiff-Appellant’s brief

24 09/17/2007 NEDC’s motion for leave to

file Riskedahl declaration

NO,

DATE

09/24/2007

11/09/2007

11/16/2007

12/17/2007

08/04/2008

08/07/2008

08/14/2008

10/31/2008

DESCRIPTION

Amicus brief and request for

judicial notice of the Natural

Resources Defense Council

and the Environmental

Protection Information

Center

Amicus Curiae California

Forestry’s and Pacific Legal

Foundation’s brief

Defendants-Appellees

Timber Companies’ brief

Defendants-Appellees State

of Oregon’s brief

Amicus Curiae brief of the

United States

Plaintiff-Appellant’s reply

brief

NEDC’s Fed. R. App. P. 28G)

notice of supplemental

authority

United States’ response to

NEDC’s notice of

supplemental authority

Industry appellees’ and

intervenor-appellees’

response to NEDC’s notice of

supplemental authority

Order granting NRDC and

EPIC motion for leave to file

amicus brief

NO.

DATE

11/19/2008

11/24/2008

08/17/2010

10/05/2010

10/15/2010

DE I

Argued and submitted to

William A. Fletcher,

Raymond C. Fisher, and

Charles Breyer

Intervenor-appellee AFPA’s

letter to court of appeals

panel re: response to

question at oral argument

Filed Opinion:

Reversed and Remanded

Defendants-Appellees

Timber Companies’ Petition

for Panel Rehearing and

Rehearing En Banc

Defendants-Appellees State

of Oregon’s Petition for

Panel Rehearing and

Rehearing En Banc

Amicus Curiae American

Forest Resource Council’s

brief

Amicus Curiae Association

of Counties’ brief

Amicus Curiae American

Loggers Council's brief

Amicus Curiae Mountain

States Legal Foundation’s

brief

NO.

106

111

112

124

126

127

128

129

DATE

10/21/2010

12/13/2010

12/23/2010

01/27/2011

02/11/2011

05/10/2011

05/11/2011

05/17/2011

DE I

Order directing Plaintiff-

Appellant to file Reponse to

Petition For Rehearing and

Rehearing En Banc

Plaintiff-Appellant’s

Response to Petition for

Panel Rehearing and

Rehearing En Banc

Wildlands CPR and

Environmental Protection

Information Center amicus

brief and request for judicial

notice received

Defendants-Appellees’ Reply

in support of petition for

panel rehearing or rehearing

en banc

Amicus Curiae brief of the

United States

Order granting Wildlands

CPR and EPIC motion to file

amicus brief and denying

accompanying request for

judicial notice

Amicus Curiae CPR and

EPIC brief

Order and Opinion

withdrawing and replacing

prior opinion, denying

petitions for rehearing and

rehearing en banc

NO. DATE

131 06/02/2011

132 06/03/2011

134 06/14/2011

DESCRIPTION

NEDC response to industry

motion to stay the mandate

Order denying motion to

stay mandate

Order denying motion to

reconsider stay of mandate

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 07-35266

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER,

Plaintiffs-Appellants,

Vv.

MARVIN BROWN, Oregon State Forester, in his

official capacity; STEPHEN HOBBS, BARBARA

CRAIG, DIANE SNYDER, LARRY GIUSTINA,

CHRIS HEFFERNAN, WILLIAM HUTCHISON,

AND JENNIFER PHILLIPPI, members of the Ore-

gon Board of Forestry, in their official capacities;

HAMPTON TREE FARMS, INC.; STIMSON

LUMBER CO.; GEORGIA-PACIFIC WEST, INC.;

and SWANSON GROUP, INC.,

Defendant-Appellees, and

OREGON FOREST INDUSTRIES COUNCIL;

AMERICAN FOREST AND PAPER ASSOCIATION;

and TILLAMOOK COUNTY, Intervenor-Appellees.

ON APPEAL FROM THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF OREGON,

Civ. No. 06-1270-KI

AMICUS CURIAE BRIEF OF THE UNITED

STATES OF AMERICA

Of Counsel:

RICHARD WITT

Office of the General

Counsel

U.S. Environmental

Protection Agency

Washington, D.C.

RONALD J. TENPAS

Acting Assistant Attorney

General

KATHRYN KOVACS

KAREN WARDZINSKI

BRADFORD MCLANE

U.S. Department of Justice

Environment & Natural

Resources Div.

P.O. Box 4390, Ben Frank-

lin Station

Washington, D.C. 20044-

4390

(202) 305-0544

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIESG........................2......- iii

IIIT scsiitisnbsiiehisenicinatiinaiddnmiehenpiaiinmiincniidindinniaaionee Vili

INTEREST OF THE UNITED STATES............. 1

STATEMENT OF THE ISSUES ........................ 1

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

A. Statutory and Regulatory Back-

ESTEE LTRS ee ee 2

1. EPA’s Silvicultural Rule...................... 3

2. CWA Section 402(p).................2.2.2..e200 5

3. EPA’s Stormwater Rules..................... 7

B. Procedural History ......................0.0-eeeeeeee 9

SUMMARY OF ARGUMENT...........................4-. 10

ED scincititshinsiecciihinicieiniiicintenditanaiininntaenbineinsanens 11

I STANDARD OF REVIEW .......................--- 11

II. FOR OVER THIRTY YEARS, EPA’S

SILVICULTURAL RULE HAS REA-

SONABLY DEFINED PRECIPITA-

TION-DRIVEN RUNOFF FROM

FOREST ROADS AS A NONPOINT

ee ctedesnsesesnndinemnsoseccennsmniannenienmevscescces 11

A. NEDC Cannot Challenges EPA’s

Longstanding Silvicultural Rule at

SET Tit isinicctnciunnendebnbabannnnittinipbesenaniineenen 12

B. EPA’s Silvicultural Rule is Entitled

LE Re ee ee en mene ane 13

1. The CWA’s Definition of the Term

“Point Source” is Ambiguous..............

2. EPA’s Definition of Forest Roads

as a Nonpoint Source is Reasona-

Sci ocnicesicitiieecieaieiinandlatinaiaieat nalts iiatieeenes

Ill. THE DISTRICT COURT CORRECT-

LY HELD THAT RUNOFF FROM

FOREST ROADS IS A NONPOINT

Pe ansccuntrscnccenstcenssnsntcatnianesatenneiesaneoess

A. The District Court Correctly Applied

SII sits ceetiianhicteiginedabiaianddiiteniinbiinbeinbinbiaenios

B. Stormwater from Forest Roads is

“Natural Runoff’ Under EPA’s Silvi-

GUIS TEED nccccccccccencsecccensscscesseccecscccsoecs

IV. EPA’S PHASE I STORMWATER

RULE DOES NOT INCLUDE

STORMWATER DISCHARGES

FROM FOREST ROADG.......0............:..0008

IIS cctccccmssenssenssemnenniasenesansesmtannestnneses

TABLE OF AUTHORITIES

Page

CASES:

A&W Smelter and Refiners v. Clinton, 146 F.3d

Be CE IG, TE iciccnnncsnsnccscietdonnsdesdienesnsentens 18

America’s Community Bankers v. FDIC, 200

F.3d 822 (D.C. Cir. 2000) ..................02 2.2 eeeeeeee ees 14

American Mining Congress v. EPA, 965 F.2d 759

(9th Cir. 1992) “CAMC?”) ...........0..eccceeeeeeee 7, 12,13

Association to Protect Hammersley, Eld, and

Totten Inlets v. Taylor Res., 299 F.3d 1007

(9th Cir. 2002) (“Hammersley”) .................. 19, 26

Auer v. Robbins, 519 U.S. 452 (1997) .. 11, 23, 24, 26

Bowles v. Seminole Rock & Sand Co., 325 U.S.

BD GRD cevcccvccecceccaccnescncevesnssonnseccnvenenseesosocenees 24

Bunker Hill Co. v. EPA, 658 F.2d 1280 (9th Cir.

FEIT) ccesevacsseccccncnccnesesensnsneesennpusennsssenssonnennnnneenenes 20

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) (“Che-

DUTT Tr ccnncccnstsnncssnnmdetieidnpenatedinanaiiaabianaiines 11, 14, 24

Chevron U.S.A., Inc. v. EPA, 908 F.2d 468 (9th

SE: ST icsnnrsneiensetnceneeiennieimniesiimbbiianmnen 13

Commodity Futures Trading Comm'n v. Schor,

re Se ee i ccstccceenncgectnitniinaminniniinesesemens 19

Conservation Law Found. v. Hannaford Bros.

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

139 Fed. Appx. 338 (2d Cir. 2005)...................... 7

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

(9th Cir. 2003) (“EDC’)........... 8, 9, 12, 13, 25, 31

Environmental Protection Info. Center v. Pacific

Lumber Co., 2003 WL 25506817, at * 15 (N.D.

I le 26

FDA v. Brown & Williamson Tobacco Corp., 529

i 19

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

PN htt cidesiees ancient alli iittala 24

Friends of Pinto Creek v. EPA, — F.3d —, 2007

WL 2874355, *3 (9th Cir. 2007)........................ 22

Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005)... 11

League of Wilderness Defenders v. Forsgren, 309

F.3d 1181 (9th Cir. 2002).......... 16, 20, 21, 22, 26

Maine v. Thiboutot, 448 U.S. 1 (1980)................... 23

McCoog v. Hegstrom, 690 F.2d 1280 (9th Cir.

adelaide ain 18

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

I I, iin 16, 17

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

STaT Ti cetaceans ceeaibaetepieiitaiinaiatibainiain 4,16

Natural Resources Def. Council v. EPA, 966 F.2d

I, a llth 7

NRDC v. Train, 396 F. Supp. 1393 (D.D.C.

I ehh telecine ila ladle 3, 16

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

I acacia 27

North Carolina Shellfish Growers Ass’n v. Holly

Ridge Assoc., 278 F. Supp. 2d 654 (E.D. N.C.

I i iininsiisesingeismmmiioceanigaaaiiene 27

Northern California River Watch v. Healdsburg,

496 F.3d 993 (9th Cir. 2007)....................... 24, 25

O ‘Aha ‘ino v. Galiher, 28 F. Supp. 2d 1258 (D.

I a a aes 27

Oregon Natural Desert Ass'n v. Dombeck, 172

F.3d 1092 (Oth Cir. 1998)..........cccccccccscssseces 22, 23

Oregon Natural Council v. U.S. Forest Serv., 834

Be Ge EE GI, HI Rctitrinseccnsenndeenedennedsonces 2, 22

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

FESS REET Rey Onan seat wee ee ee 22, 26

San Francisco Baykeeper v. Cargill Salt Div., 481

ee I, Be icc cohcicereerdinitiininsninininmenieniin 19

Shays v. Federal Election Com’n, 414 F.3d 76

i INN, SI css itiecieliaen nlatilaieamnicathdeaiedidanamadion 14

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

RAs SIE hinncnnidinniseteenieemiegenedniinnemeinmemnenimani 27

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

IT ianienicnitesitaaniceessiieinta dikaiseeiiibalabiniagiibaitinitatemiimebieeiatiincaiadiads 24

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

EE eee ener rere n 11, 13, 14

Udall v. Taliman, 380 U.S. 1 (1965)...................... 24

STATUTES:

Clean Water Act, 33 U.S.C. §§ 1251 - 1387:

Section 101(a), 33 U.S.C. § 1251(a)...............0....... 2

Section 208(a), 33 U.S.C. § 1288(a).....................4. 3

Section 208(b)(2)(F), 33 U.S.C. §

ER aE Ce ne 3, 16

Section 301(a), 33 U.S.C. § 131 1(a)....................... 2

Section 304(f), 33 U.S.C. § 1314(f .................. 3,15

Section 319, 38 U.S.C. § 1BBD .......ccccccccccscccscccceees 3

Section 402, 33 U.S.C. § 1842 .....................ccc00 a

Section 402(p), 33 U.S.C. § 1342(p).............00-+- 2,5

Section 402(p)(2), 33 U.S.C. § 1342(p)(2).............. 6

Section 402(p)(5)(B) & (C), 33 U.S.C. §

RES Se eee 6

Section 402(p)(6), 33 U.S.C. § 1342(p)(6).............. 6

Section 502(12), 33 U.S.C. § 1362(12)................... 2

Section 502(14), 33 U.S.C. § 1362(14)............. 2, 15

Section 509(b), 33 U.S.C. § 1369(b)..................... 32

Section 509(b)(1), 33 U.S.C. § 1369(b)(1)............ 12

Section 509(b)(2), 33 U.S.C. § 1369(b)(2)............ 12

RULES:

Federal Rule of Appellate Procedure 29(a) ............. 1

FEDERAL REGULATIONS:

Or i ciscsnsioniiinaielinlin 11, 29

a. i aciieplindnialaaibomiaaa 1

ee ee ee iiticsiincicsctesnctcsnnisinnniiedeienats 26

40 C.F.R. § 122.26(b)(14).................... 1, 7, 28, 29, 30

re Oe I i cisvineccttestccccnncccsncesccetens 26

es Oe ED cntcscecinccesccccsccccnssccennsnes 27

ee ae I cincccctciccisnctecsiccicesisnnccadsenenss 26

| 1, 12, 30

a ll 4, 30

i iceenicnininileinineiiiaitembiniiniionidiliigs 26

I ee I i icitivcncccnncisewsccdccnvicnsccssicseian 3

ee ae ee I wisthsiisitiiciciectensicttitenisnersineinsinctinseiiie 4

FEDERAL REGISTER:

38 Fed. Reg. 18,000 (July 5, 1973)...................... 2... 3

41 Fed. Reg. 6281 (Feb. 12, 1976).....................-2..... 5

41 Fed. Reg. 24,709 (Jume 18, 1976)................ 17, 18

45 Fed. Reg. 33,290 (May 19, 1980)................. 13, 23

55 Fed. Reg. 47,990 (Nov. 16, 1990) ........ 7, 8, 29, 30

60 Fed. Reg. 50,804 (Sept. 29, 1995) ....................... 5

64 Fed. Reg. 46,058 (Aug. 23, 1999) ..................-.... 5

64 Fed. Reg. 68,722 (Dec. 8, 1999)..................... 8, 31

65 Fed. Reg. 43,586 (July 13, 2000)...............0...20.... 5

AMC

Chevron

CWA

EDC

EPA

EPIC

Forsgren

Hammersley

Large MS4

Medium

MS4

NPDES

SIC code

GLOSSARY

American Mining Congress v. EPA,

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

Chevron, U.S.A., Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S.

837 (1984)

Clean Water Act

Environmental Def. Ctr v. EPA, 344

F.3d 832 (9th Cir. 2003)

Environmental Protection Agency

Environmental Protection Info. Center

uv. Pacific Lumber Co., 2003 WL

24550681 (N.D. Cal. 2003)

League of Wilderness Defenders v.

Forsgren, 309 F.3d 1181 (9th Cir.

2002)

Association to Protect Hammersley,

Eld, and Totten Inlets v. Taylor Res.,

299 F.3d 1007 (9th Cir. 2002)

Municipal separate storm sewer sys-

tem serving a population of 250,000 or

Municipal separate storm sewer sys-

tem serving a population of 100,000 or

more but less than 250,000

Municipal separate storm sewer sys-

tems

National Pollutant Discharge Elimi-

nation System

Standard Industrial Classification

Code

Small MS4 #£=Municipal separate storm sewer sys-

tems serving under 100,000

Pursuant to Federal Rule of Appellate Procedure

29(a), the United States of America respectfully

submits this brief as amicus curiae.

INTEREST OF THE UNITED STATES

Congress entrusted the United States Environ-

mental Protection Agency (“EPA”) to oversee the Na-

tional Pollutant Discharge Elimination System

(“NPDES”) created by section 402 of the Clean Water

Act (“CWA”), 33 U.S.C. § 1342. EPA has a strong in-

terest in this case because it involves the interpreta-

tion of the agency’s NPDES regulations at 40 C.F.R.

§§ 122.27 and 122.26. The United States thus files

this brief as amicus curiae to explain that natural

runoff from forest roads is not subject to the NPDES

program under these regulations.

STATEMENT OF THE ISSUES

The issues presented in this appeal are: (1)

whether EPA’s silvicultural rule, found at 40 C.F.R.

§ 122.27, is properly read to define stormwater runoff

associated with forest roads as “nonpoint sources,”

which do not require NPDES permits; and (2) assum-

ing arguendo that there could be “point source” dis-

charges associated with forest roads, whether EPA’s

definition of stormwater discharge “associated with

industrial activity,” found at 40 #£C.F.R.

§122.26(b)(14), is properly read to exclude logging

and forest roads, and thus does not subject stormwa-

ter associated with forest roads to the NPDES pro-

gram?

STATEMENT OF THE CASE

A. Statutory and Regulatory Background

The CWA is a comprehensive statute to “restore

and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

CWA section 301(a) prohibits the “discharge of any

pollutant” by any person from a “point source” into

waters of the United States, except in compliance

with certain enumerated provisions, including sec-

tion 402. See 33 U.S.C. §§ 1311(a), 1342. Section

502(12) defines the term “discharge of a pollutant” to

mean any addition of any pollutant to a navigable

water from any “point source,” 33 U.S.C. § 1362(12).

Section 502(14) defines the term “point source” as:

any discernible, confined and discrete con-

veyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well,

[or] discrete fissure . . . from which pollutants

are or may be discharged. This term does not

include agricultural stormwater discharges

and return flows from irrigated agriculture.

33 U.S.C. § 1362(14). Sources of pollution that are

not “point sources” are “nonpoint sources.” See Ore-

gon Natural Resources Council v. U.S. Forest Service,

834 F.2d 842, 849 n.9 (9th Cir. 1987).

CWA section 402, enacted in 1972, created the

NPDES program to regulate point source discharges.

See 33 U.S.C. § 1342. In 1987 Congress added CWA

section 402(p), which required EPA to establish a

program to address certain point source discharges

composed entirely of stormwater. See 33 U.S.C,

§ 1342(p). As explained in more detail below, storm-

water point sources that are not covered by EPA’s

stormwater rules are not subject to the NPDES pro-

gram.

Unlike point sources, nonpoint sources are not

(and never were) regulated under section 402, but

are addressed through other programs. For example,

section 208 creates an “areawide waste treatment

management” program to address “areas with sub-

stantial water quality control problems[.]” 33 U.S.C.

§ 1288(a). The section 208 program authorizes EPA

to “identify, if appropriate, agriculturally and silvi-

culturally related nonpoint sources of pollution”

within such areas. 33 U.S.C. § 1288(b)(2)(F). Section

304(f) requires EPA to issue “(1) guidelines for iden-

tifying and evaluating ... nonpoint sources of pollu-

tants, and (2) processes, procedures, and methods to

control pollution resulting from—({A) agricultural

and silvicultural activities, inc)uding runoff from

fields and crops and forest lands. .. .” 33 U.S.C. §

1314(f). Section 319 authorizes a federal grant pro-

gram to address nonpoint sources. See 33 U.S.C. §

1329.

1. EPA’s Silvicultural Rule

In 1973 EPA promulgated a rule exempting silvi-

cultural point source discharges of stormwater from

the NPDES program. 38 Fed. Reg. 18,000, 18,004

(July 5, 1973) (codified at 40 C.F.R. § 125.4(). The

District Court for the District of Columbia over-

turned this rule in 1975. See NRDC v. Train, 396 F.

Supp. 1393, 1395 (D. D.C. 1975). In upholding that

decision, the court of appeals explained that, if a

source 1s defined as a point source, it is illegal unless

authorized by permit.! See NRDC v. Costle, 568 F.2d

1369 (D.C. Cir. 1977). The court acknowledged, how-

ever, that EPA has authority to exclude some sources

from the definition of “point source” by interpreta-

tion. Id. at 1378.

In 1976 EPA adopted a rule defining four catego-

ries of silvicultural activities as point sources. In this

rule, EPA also explained that silvicultural nonpoint

sources include “road construction and maintenance

1 This decision reflected the CWA before Congress added section

402(p) in 1987.

from which runoff results from precipitation events.”

40 C.F.R. §125.54 (1976). In 1980 EPA slightly

amended the silvicultural rule, which still defines

only four categories of silvicultural point sources, to

read as follows:

Silvicultural point source means any discern-

ible, confined and discrete conveyance re-

lated to rock crushing, gravel washing, log

sorting, or log storage facilities which are op-

erated in connection with silvicultural activi-

ties and from which pollutants are dis-

charged into waters of the United States. The

term does not include non-point source silvi-

cultural activities such as . . . harvesting op-

erations, surface drainage, or road construc-

tion and maintenance from which there is

natural runoff.

40 C.F.R. § 122.27(b) (emphasis added). EPA has

consistently interpreted this rule to define all preci-

pitation-driven runoff from the listed nonpoint

sources as not subject to the NPDES program.

In proposing the rule in 1976, EPA explained

that most pollution related to silvicultural activities

is “basically runoff induced by precipitation events

and is not and should not be subject to the [NPDES

program].” 41 Fed. Reg. 6281, 6282 (Feb. 12, 1976).

In 1995 EPA further explained that the silvicultural

rule’s exclusion of runoff from harvesting operations

includes “initial transport of forest products from an

active harvest site.” 60 Fed. Reg. 50,804, 50,835

(Sept. 29, 1995).

In 1999 EPA reiterated this interpretation of the

silvicultural rule when it sought public comment on

a proposal to modify the rule to allow for case-by-case

regulation of silvicultural stormwater sources as

point sources where appropriate. In proposing this

amendment, EPA explained that runoff from the

listed nonpoint source activities in the current rule is

“categorically excluded from the NPDES program.”

64 Fed. Reg. 46058, 46077 (Aug. 23, 1999) (emphasis

added).?

2. CWA Section 402(p)

In 1987 Congress added CWA section 402(p), es-

tablishing a program to address stormwater point

sources, including through the staged permitting of

appropriate sources. See 33 U.S.C. § 1342(p). Sec-

tions 402(p)(1) and 402(p)(2) prohibited EPA from

requiring NPDES permits for discharges “composed

entirely of stormwater” until October 1, 1994, except

for five categories of so-called “phase I” stormwater

point sources. The five classes of “phase I” sources

are: (1) discharges for which an NPDES permit had

been issued before February 4, 1987; (2) discharges

associated with industrial activity; (3) discharges

from a municipal separate storm sewer system

(“MS4”) serving a population of 250,000 or more

(“large MS4”); (4) discharges from an MS4 serving a

population of 100,000 or more but less than 250,000

(“medium MS4”); and (5) a discharge which contri-

butes to a violation of a water quality standard or is

a significant contributor of pollutants. See 33 U.S.C.

§ 1342(p)(2). None of these categories include logging

or forest roads. Section 402(p)(3) provided that

NPDES permits are required for these phase I

stormwater discharges, and section 402(p)(4) di-

rected EPA to promulgate regulations governing

them.

2 After considering public comments, EPA decided not to adopt

this proposal. See 65 Fed. Reg. 43,586, 43,652 (July 13, 2000).

With respect to those stormwater discharges not

included in phase I, section 402(p)(5) required EPA

to conduct a study to identify these sources, and es-

tablish “procedures and methods to control stormwa-

ter discharges to the extent necessary to mitigate

impacts on water quality.” 33 U.S.C. § 1342(p)(5)(B)

& (C). Section 402(p)(6) then required EPA to desig-

nate the so-called “phase II” sources for regulation.

33 U.S.C. § 1342(p)(6).

In summary, section 402(p) establishes a two-

phase permitting scheme for stormwater point

source discharges and delegates to EPA the authori-

ty to promulgate rules to implement these require-

ments. Point source discharges composed entirely of

stormwater from sources not designated for regula-

tion under EPA’s stormwater rules are not subject to

the NPDES program. See Conservation Law Found.

v. Hannaford Bros. Co., 327 F. Supp. 2d 325, 328 (D.

Vt. 2004), affd, 139 Fed. Appx. 338 (2d Cir. 2005).

3. EPA’s Stormwater Rules

EPA adopted its phase I stormwater rule in

1990. This Court largely upheld the phase I rule. See

American Mining Congress v. EPA, 965 F.2d 759 (9th

Cir. 1992) (“AMC”); NRDC v. EPA, 966 F.2d 1292

(9th Cir. 1992). The rule includes an extensive defi-

nition of the term stormwater discharge “associated

with industrial activity.” See 55 Fed. Reg. 47,990

(Nov. 16, 1990). The definition references numerous

Standard Industrial Classification codes (“SIC

codes”), including SIC code 24, which includes the

code for “logging” (SIC code 2411). See OMB, Stan-

dard Industrial Classification Code Manual, 107

(1987).

Despite the indirect reference to the SIC code for

“logging,” the definition states that it “does not in-

clude discharges from the facilities or activities ex-

cluded from the NPDES program under this part

122.” 40 C.F.R. § 122.26(b)(14). This reference in-

cludes EPA’s silvicultural rule, which is contained in

part 122. Thus, the reference to SIC code 2411 only

covers silvicultural stormwater discharges from the

four categories of facilities defined as point sources in

the silvicultural rule described supra: rock crushing,

gravel washing, log sorting and log storage facilities.

To remove any doubt, EPA expressly explained in

the preamble tha.: “EPA does not intend to change

the scope of 40 CFR 122.27 in this rulemaking. Ac-

cordingly, the definition of ‘storm water discharge

associated with industrial activity’ does not include

sources that may be included under SIC 24, but

which are excluded under 40 CFR 122.27.” 55 Fed.

Reg. at 48,011.

EPA adopted its phase II stormwater rule in

1999, designating two additional categories of

stormwater discharges for regulation,? and retaining

the authority to designate stormwater point sources

for regulation on a case-by-case basis. See 64 Fed.

Reg. 68,722 (Dec. 8, 1999). In Environmental Def.

Ctr. v. EPA, 344 F.3d 832 (9th Cir. 2003) (“EDC”),

this Court upheld EPA’s phase II rule in most re-

spects. As relevant here, this Court found that, in

promulgating the phase II rule, EPA had not re-

sponded adequately to comments asserting that EPA

should require NPDES permits for stormwater dis-

charges from forest roads under section 402(p)(6).4

3 These two categories are: (1) certain small MS4s; and (2) con-

struction sites disturbing one to five acres.

4 The court also remanded “three aspects of the Rule concerning

the issuance of notices of intent under the Rule’s general per-

mitting scheme.” EDC, 344 F.3d at 840.

Id. at 861. This Court thus remanded the rule to

EPA for a further explanation of its decision. Pur-

suant to this remand, EPA is currently assessing the

options for addressing runoff from forest roads con-

sistent with section 402(p)(5)-(6).

B. Procedural History

In the district court, Plaintiff Northwest Envi-

ronmental Defense Center (““NEDC’”) filed a CWA cit-

izen suit alleging that Oregon officials and private

timber companies violated the CWA by discharging

pollutants from “point sources” associated with two

roads in the Tillamook State Forest without NPDES

permits. (Complaint, NEDC ER 20-25, 4 83 to 92.)

Defendants, supported by the United States as ami-

cus curiae, moved to dismiss the complaint for failure

to state a claim. The district court granted these mo-

tions and dismissed the action on March 1, 2007.

(Judgment, NEDC ER 67, at 140.) The United States

incorporates by reference the further discussion of

the district court proceedings in the reply brief sub-

mitted by private industry defendants-appellees. Re-

ply Br. of Hampton Tree Farms, Inc. et al. 5-9.

SUMMARY OF ARGUMENT

Under the CWA, all sources of water pollution

are either “point sources” or “nonpoint sources.”

Nonpoint sources are not subject to the NPDES per-

mitting requirements.

Stormwater runoff from forest roads is a non-

point source under EPA’s silvicultural rule. Courts

have long recognized that Congress authorized EPA

to distinguish between point and nonpoint sources.

For over thirty years, EPA has exercised this author-

ity to define “harvesting operations, surface drai-

nage, or road construction and maintenance from

which there is natural runoff’—i.e. runoff resulting

from precipitation events—as nonpoint sources. This

rule categorically defines stormwater runoff from

forest roads and harvesting activities as nonpoint

sources. Stormwater runoff from these sources is not

subject to the NPDES program even if it flows

through a ditch, channel, or culvert. Thus the district

court correctly held that runoff from these forest

roads is a nonpoint source, which does not require an

NPDES permit.

But even if this Court were to find that some for-

est road runoff might constitute a point source, any

stormwater point source discharges from forest roads

are not subject to NPDES permitting under CWA

section 402(p) and EPA’s stormwater rules. EPA’s

stormwater rules do not regulate logging or forest

roads. In fact, the phase I stormwater rule expressly

excludes from coverage all “facilities or activities ex-

cluded from the NPDES program” elsewhere within

40 C.F.R. part 122. This reference encompasses

EPA’s silvicultural rule, which is codified in part 122.

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews de novo the district court’s

dismissal for failure to state a claim. See Knievel v.

ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Where

Congress either implicitly or explicitly delegates au-

thority to an agency to fill a gap left in a statute, the

agency’s construction is entitled to deference as long

as it is a reasonable one. See United States v. Mead

Corp., 533 U.S. 218, 226-30 (2001) (citing Chevron

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

Inc., 467 U.S. 837, 842-843 (1984) (“Chevron”)). An

agency's construction of its regulation is entitled to

deference unless “plainly erroneous or inconsistent

with the regulation.” Auer v. Robbins, 519 U.S. 452,

461 (1997).

Il. FOR OVER THIRTY YEARS, EPA’S SILVI-

CULTURAL RULE HAS REASONABLY DE-

FINED PRECIPITATION-DRIVEN RUNOFF

FROM FOREST ROADS AS A NONPOINT

SOURCE.

NEDC argues that stormwater runoff from forest

roads is a statutorily defined point source where that

runoff flows through pipes, ditches, or channels.

NEDC Br. 24-31. This argument both lacks merit

and constitutes an improper challenge that cannot be

brought in this action.

A. NEDC Cannot Challenge EPA’s

Longstanding Silvicultural Rule at this

Time.

Although NEDC couches its challenge in terms of

the CWA’s definition of “point source,” NEDC’s ap-

peal is actually an improper challenge to EPA’s defi-

nition of silvicultural nonpoint sources in 40 C.F.R.

§ 122.27. NEDC, having not challenged the silvicul-

tural rule within the time frame provided by the sta-

tute, cannot now challenge the rule some thirty years

later. CWA section 509(b)(1)—and not the citizen

suit provision at 505(a)}—provides for challenges to

final EPA actions, including promulgation of “any ef-

fluent limitation or other limitation under section

1311.” 33 U.S.C. § 1369(b)(1). Moreover, section

509(b)(2) expressly provides that agency action re-

viewable under 509(b)(1) “shall not be subject to

judicial review in any civil or criminal proceeding for

enforcement.” 33 U.S.C. § 1369(b)(2).

It 1s well established that section 509(b)(1) pro-

vides the exclusive mechanism for challenging EPA

rules excluding sources from the NPDES program.

See, EDC, 344 F.3d at 843; AMC, 965 F.3d at 763,

767-68. Such challenges must be brought in the ap-

propriate circuit court within 120 days of promulga-

tion, “or after such date only if such application is

based solely on grounds which arose after such 120th

day.” Id. NEDC’s challenge to the silvicultural rule is

decades too late. NEDC did not bring such a chal-

lenge to the silvicultural rule within the time frame

provided by the CWA and may not do so now in this

citizen enforcement action. EPA adopted the current

version of the rule in 1980, see 45 Fed. Reg. 33,290,

33,446-47 (May 19, 1980), and NEDC’s challenge,

which argues that the rule is inconsistent with the

statute’s definition of the term “point source,” is not

based on grounds that have arisen since the expira-

tion of the period during which the rule was subject

to challenge. Thus, this Court should reject NEDC’s

attempt to resurrect a time-barred challenge in the

context of this citizen suit. See Chevron U.S.A., Inc.

v. U.S. EPA, 908 F.2d 468, 471 (9th Cir. 1990).

B. EPA’s Silvicultural Rule is Entitled to

Deference.

Should this Court nevertheless consider NEDC’s

improper and untimely challenge, this Court should

defer to EPA’s reasonable interpretation of the CWA

to not require regulation of stormwater runoff from

forest roads as point sources.

The two-step test set forth in Chevron, 467 U.S.

837, governs the review of an agency’s interpretation

of a statute in circumstances like these, where the

agency interpretation is promulgated in an exercise

of delegated authority. See Mead Corp., 533 U.S. at

226-27. First, if “Congress has directly spoken to the

precise question at issue,” the agency must effectuate

Congress’ express intent. Chevron, 467 U.S. at 842.

Under step one of Chevron, the Court looks to the

language of the statute, as well as its context, struc-

ture, legislative history, and purpose. See Shays v.

Federal Election Com’n, 414 F.3d 76, 105 (D.C. Cir.

2005).

Second, if the statute is “silent or ambiguous

with respect to the specific issue,” the Court should

defer to the agency’s interpretation if it is reasona-

ble. Chevron, 467 U.S. at 843. Under Chevron step

two, an agency may “advance a iegal argument in

support of its administrative position which bolsters

rather than duplicates the consistent position upon

which its decision was made below.” See America’s

Community Bankers v. FDIC, 200 F.3d 822, 836

(D.C. Cir. 2000).

In this case, the CWA’s definition of the term

point source, as well as its treatment of silvicultural

sources, is sufficiently ambiguous to constitute an

implicit delegation of authority to EPA under Che-

vron step two. See Mead Corp., 533 U.S. at 227-229

(explaining concept of implicit delegation, and that

the court is to defer to the agency unless its rule is

“manifestly contrary to the statute”) (citing Chevron,

467 U.S. at 842-43).

1. The CWA’s Definition of the Term

“Point Source” is Ambiguous.

The ambiguity in the CWA’s definition of the

term “point source” is, in large part, found in its

over-breadth. The statutory definition includes “any

pipe, ditch for] channel. . . from which pollutants are

or may be discharged.” 33 U.S.C. § 1362(14). But

Congress could not have meant that all drainage

that happens to flow through a pipe or ditch is al-

ways and inevitably subject to regulation as a statu-

torily-defined point source. For example, the defini-

tion should not be read so broadly as to encompass

pollutants washed into a covered water by precipita-

tion through rain gutters on a home, or through a

ditch or pipe in a homeowner's backyard. Under

NEDC’s construction of the term point source, even

hikers contributing to the erosion of sediment from

footpaths in designated wilderness areas could be

point sources. Such a reductio ad absurdum of the

definition of the term “point source” cannot be what

Congress intended. Thus, by virtue of its over-

breadth, the point source definition is ambiguous.

Furthermore, when the definition of point source is

read in concert with CWA section 402(p), where Con-

gress made it clear that EPA has tremendous discre-

tion in determining what stormwater runoff will re-

quire an NPDES permit, this ambiguity is self-

evident.

The ambiguity in the statutory definition is fur-

ther underscored when the definition is read togeth-

er with those CWA sections which specifically speak

to silvicultural sources. As already noted, the CWA

elsewhere refers to silvicultural activities as generat-

ing nonpoint sources. See, eg. 33 U.S.C.

§ 1288(b)(2)(F) (referring to “agriculturally and silvi-

culturally related nonpoint sources of pollution”); 33

U.S.C. § 1314. Thus the definition of point source

in section 502(14) is ambiguous.

Indeed, the circuit courts have also found that

the statute is sufficiently ambiguous that EPA has

authority to define the line between point and non-

point sources. Most recently, in League of Wilderness

Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002)

(“Forsgren”), this Court noted that “EPA has some

power to define point source and nonpoint source pol-

lution where there is room for reasonable interpreta-

tion of the statutory definition.” Id. at 1190 (emphasis

in original). Likewise, the D.C. Circuit explained that

the definition of point source, “including the concept

of a ‘discrete conveyance,’ suggests that there is room

here for some exclusion by interpretation.” NRDC v.

Costle, 568 F.2d at 1377.5 Also, in National Wildlife

Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), the

court deferred to EPA’s decision not to require

NPDES permits for discharges from dams. The court

noted that Congress meant for EPA to have “at least

some power’ to define the term point source, id. at

167, and found that it could not conclude “that the

Act requires EPA to adopt the strictest possible regu-

latory solution.” Jd. at 183. These cases all found

ambiguity in the statutory definition of point source.

Thus, should this Court entertain NEDC’s argument

that the silvicultural rule is inconsistent with the

statutory definition,® the only question before this

court is whether EPA’s interpretation of the CWA to

not require regulation of stormwater runoff from for-

est roads is reasonable.

2. EPA’s Definition of Forest Roads as a

Nonpoint Source is Reasonable.

EPA’s definition of most silvicultural activities as

generating only nonpoint sources is a reasonable

construction of the CWA. Contemporaneous with its

promulgation of the silvicultural rule, EPA explained

5 In the district court opinion upheld in Costle, the district court

noted that the plaintiff did “not contend that every farm ditch,

water bar, or culvert on a logging road is properly meant to be a

point source under the Act.” NRDC v. Train, 396 F. Supp. at

1401 (emphasis added).

6 Of course, as noted supra, this challenge to EPA’s silvicultural

rule is untimely and improper in this litigation.

that the silvicultural sources EPA identified as non-

point sources meet the following three criteria:

(i) The pollutants discharged are induced by

natural processes, including precipitation,

seepage, percolation, and runoff; (ii) The pol-

lutants discharged are not traceable to any

discrete or identifiable facility; and (iii) The

pollutants discharged are better controlled

through the utilization of best management

practices, including process and planning

techniques.

41 Fed. Reg. 24,709, 24,710 (June 18, 1976). All three

of these criteria apply to stormwater runoff from for-

est roads. First, runoff from these roads is induced

by natural processes—namely, precipitation events.

Second, forest roads are not discrete or identifiable

facilities. In fact, the forest roads at issue in this case

are public roads used largely for recreational purpos-

es. Third, in adopting the silvicultural rule, EPA

found that stormwater runoff from forest roads is

best addressed by the states. See 41 Fed. Reg. at

24,710 (“EPA recognizes that numerous forest prac-

tices acts, State environmental programs, and local

ordinances are excellent sources of effective regula-

tion and does not intend to disrupt or supplant such

regulation.”); see also Oregon State Appellees’ Br. 7-

11 (discussing Oregon’s regulation of forest roads).

Deference to EPA’s reasonable reading of the sta-

tute is also appropriate here because EPA has “con-

sistently followed” this interpretation of the CWA for

over thirty years. A&W Smelter and Refiners v. Clin-

ton, 146 F.3d 1107, 1112 (9th Cir. 1998); McCoog v.

Hegstrom, 690 F.2d 1280, 1284 (9th Cir. 1982). As

discussed supra, since 1976 EPA has consistently in-

terpreted the silvicultural rule to categorically ex-

clude runoff from the listed categories of silvicultural

nonpoint sources. While EPA considered changing

course in 1999, the agency ultimately elected not to

do so.

Moreover, deference to EPA in this case is consis-

tent with this Court’s decisions in other CWA cases.

See Association to Protect Hammersley, Eld, and Tot-

ten Inlets v. Taylor Res., 299 F.3d 1007, 1018-1019

(9th Cir. 2002) (“Hammersley”) (deferring to an EPA

rule defining a mussel farm as a nonpoint source,

and noting that a contrary determination would im-

properly “undermine the agency’s interpretation of

the Clean Water Act”); see also San Francisco Bay-

keeper v. Cargill Salt Div., 481 F.3d 700, 704-705

(9th. Cir. 2007) (deferring to the regulatory definition

of the CWA term “waters of the United States”).

Furthermore, although aware of EPA’s regulato-

ry definition for more than thirty years, Congress

has not altered the CWA’s regulation of silvicultural

activities since EPA adopted the silvicultural rule in

1976. While Congress has amended the CWA to mod-

ify the regulation of other activities—including by

adding section 402(p) addressing stormwater

sources—it did not repeal the silvicultural rule. As

the Supreme Court has explained, “when Congress

revisits a statute giving rise to a longstanding ad-

ministrative interpretation without pertinent

change, the congressional failure to revise or repeal

the agency’s interpretation is persuasive evidence

that the interpretation is the one intended by Con-

gress.” Commodity Futures Trading Comm'n uv.

Schor, 478 U.S. 833, 846 (1986); see also FDA uv.

Brown & Williamson Tobacco Corp., 529 U.S. 120,

156 (2000) (finding that “Congress’ tobacco-specific

legislation has effectively ratified the FDA’s previous

position that it lacks jurisdiction to regulate tobac-

co”); Bunker Hill Co. v. EPA, 658 F.2d 1280, 1284 n.2

(9th Cir. 1981) (deferring to an EPA rule where Con-

gress “made no effort to indicate any disagreement

with EPA’s construction” of the statute and did not

“take advantage of an opportunity to alter it”).

Here, if Congress had disagreed with EPA’s in-

terpretation, or had intended to take away EPA's

discretion to elect not to regulate stormwater from

forest roads, it would have said so in 1987 when it

enacted section 402(p). Instead, when Congress

enacted section 402(p) it did not include logging or

forest roads within the five categories of phase I

stormwater point sources that must be permitted

under the NPDES program.

il. THE DISTRICT COURT CORRECTLY

HELD THAT RUNOFF FROM FOREST

ROADS IS A NONPOINT SOURCE.

A. The District Court Correctly Applied

Forsgren.

Much of NEDC’ s argument is predicated on its

misreading of this Court’s decision in Forsgren, 309

F.3d 1181. See NEDC Br. 25-28. As noted above, For-

sgren held that the statutory definition of point

source in CWA section 502(14) “clearly encompasses

an aircraft . . . spraying pesticide . . . directly over

covered waters.”? 309 F.3d at 1185. In reaching this

conclusion, the Court explained that “silvicultural

pest control from which there is natural runoff would

be an example of a ‘nonpoint source silvicultural’ ac-

7 In Forsgren this Court did not consider whether the pesticides

were pollutants, because it assumed that the parties agreed

that they were. See 309 F.3d at 1184 n.2. In fact the United

States expreasly reserved its argument on that issue in its brief

to the district court.

tivity not included in the term ‘point source.” Id.

Thus, under Forsgren, “natural runoff’ from “con-

struction and maintenance” of forest roads is like-

wise a nonpoint source.

NEDC nevertheless asks this Court to disregard

the silvicultural rule, arguing that Forsgren ren-

dered the statutory definition of the term point

source “controlling” here. NEDC Br. 25-29. But For-

sgren did not displace EPA’s silvicultural rule. The

Forsgren Court merely found that the rule’s defini-

tion of nonpoint sources did not apply in the very dif-

ferent factual setting of pesticides discharged from

an airplane directly over covered waters. The For-

sgren Court read the phrase “from which there is

natural runoff to modify all the nonpoint source ac-

tivities listed in the second sentence of the regula-

tion. 309 F.3d at 1186. Having read the silvicultural

rule’s list of nonpoint sources to only reach various

categories of “natural runoff,” the Court inevitably

proceeded to find that discharges of pesticides from

an airplane are point sources. Such discharges are

obviously not “natural runoff,” but result from hu-

man action taken from a discrete facility—an air-

plane. Unlike in Forsgren, this case involves precipi-

tation eroding sediment and washing it into waters—

in other words, “natural runoff.” Thus, the district

court properly applied the silvicultural rule, as expli-

cated in Forsgren, to the facts of this case.®

NEDC’s argument that forest roads involve point

sources is also inconsistent with multiple cases de-

* NEDC also misreads the district court opinion to suggest that

Forsgren created a “new test” for distinguishing point sources

from nonpoint sources. See NEDC Br. 31-34. The district court

did not apply a new test, but merely applied EPA’s rules to the

facta of this case. (Opinion, NEDC ER 66, at 129-134.)

cided by this Court noting that timber harvesting

generates only nonpoint source pollution. For exam-

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

Cir. 2002), this Court upheld a CWA study address-

ing sedimentation from silvicultural activities—

which EPA considered to stem exclusively from non-

point sources. This Court again recently noted that

an example “of a non-discrete source is runoff from a

farmland or timber harvesting.” Friends of Pinto

Creek v. EPA, — F.3d —, 2007 WL 2874335, *3 (9th

Cir. 2007); see also Oregon Natural Resources Coun-

cil, 834 F.2d at 849 (noting that the timber harvest-

ing activities at issue were nonpoint sources); Oregon

Natural Desert Ass’n v. Dombeck, 172 F.3d 1092,

1098 (9th Cir. 1998) (noting that “examples of non-

point source pollution include .. . silvicultural activi-

ties”).

B. Stormwater from Forest Roads is “Nat-

ural Runoff’ Under EPA’s Silvicultural

Rule.

NEDC also argues that channeled conveyances

from forest roads must be point sources because the

term “natural runoff’ in EPA’s silvicultural rule does

not include stormwater when it flows through “man-

made” ditches, channels, and culverts. NEDC Br. 37-

40. This reading conflicts with EPA’s interpretation

of its rule. It is EPA’s interpretation of its rule—and

not NEDC’s—that is entitled to substantial defe-

rence. See Auer, 519 U.S. at 461.

EPA has consistently interpreted the term “natu-

ral runoff as synonymous with all “runoff from pre-

cipitation events.” In 1980 EPA replaced the lan-

guage from its 1976 rule, “from which runoff results

from precipitation events,” with the shorthand “from

which there is natural runoff’ without comment. 45

Fed. Reg. 33,290, 33,447 (May 19, 1980). EPA’s subs-

titution of these terms did not substantively change

the rule. See generally, Maine v. Thiboutot, 448 U.S.

1, 17 n.4 (1980) (noting that a proposed minor revi-

sion to a statute, without comment, provided “strong

evidence that the revisers intended no substantive

change”). EPA intended the term “natural runoff’ to

continue to encompass all runoff from precipitation

events. Had EPA intended a more limited use of the

term “natural runoff,” the agency would have said so

in the preamble.

Just as EPA’s construction of the CWA is entitled

to deference under Chevron, EPA’s construction of its

own rule is entitled to deference where it is neither

“plainly erroneous” nor “inconsistent with the regu-

lation.” Auer, 519 U.S. at 461 (deferring to the De-

partment of Labor’s interpretation of its regulations

as contained in an amicus brief); see also Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512-13

(1994); Udall v. Tallman, 380 U.S. 1, 16 (1965);

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,

414 (1945). This general rule of substantial deference

is further reinforced where an agency applies its ex-

pertise to interpret complex regulations, such as

those EPA has promulgated to administer the CWA.

See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,

566 n.9 (1980) (stating that deference to an agency’s

interpretation of regulations is rooted in respect for

agency expertise in the area).

NEDC nevertheless presents several incorrect

arguments that the meaning of the term “natural

runoff’ in EPA’s silvicultural rule only reaches dif-

fuse sources of runoff. NEDC Br. 36-50. First, citing

to this Court’s recent decision in Northern California

River Watch v. Healdsburg, 496 F.3d 993 (9th Cir.

2007), NEDC argues that this Court must construe

EPA’s silvicultural rule narrowly to achieve the pur-

poses of the CWA. NEDC Br. 23, 35 (citing

Healdsburg, 496 F.3d at 1001). Healdsburg, however,

addressed the extent of federal jurisdiction over “wa-

ters of the United States,” not the extent to which

stormwater sources are regulated under the NPDES

program. Moreover, by adding CWA section 402(p),

Congress left no doubt that EPA need not require all

stormwater point sources to secure NPDES permits.

In another attempt to alter the meaning of the

silvicultural rule, NEDC tries to redefine the term

“runoff” to refer only to diffuse sources by stringing

together dicta from several cases, including this

Court’s opinion in EDC. NEDC Br. 37-40. Thus,

NEDC suggests that the term “runoff’ does not apply

to water that passes through a ditch or culvert. How-

ever, as illustrated by a proper reading of EDC itself,

the term “runoff’ is not inherently limited to storm-

water that is in no way channelized. See EDC, 344

F.3d at 869 (referring to stormwater point sources

that EPA chose to regulate as “runoff’). EPA has

made it clear that the term “natural runoff’ in the

silvicultural rule categorically excludes all stormwa-

ter runoff from forest roads, even where the roads in-

clude channels, ditches, or culverts.

The cases cited by NEDC that address mining

activities, NEDC Br. 40-42, which purportedly sup-

port its distinction between “natural” runoff and ru-

noff through “man-made” conveyances, are simply

inapposite. Unlike silviculture, EPA expressly de-

fines mining as “industrial activity” subject to the

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

NEDC also draws an analogy between the natu-

ral runoff at issue here and small MS4s, some of

which are regulated under EPA’s phase II stormwa-

ter rule. NEDC Br. 48-50. However, ditches, chan-

nels, and culverts on forest roads are simply not re-

gulated small MS4s under EPA’s stormwater rules.

See, e.g., 40 C.F.R. §§ 122.26(b)(8), 122.26(b)(16),

122.32.

Finally, NEDC wrongly relies on two district

court cases. First, NEDC cites an unpublished opi-

nion in Environmental Protection Info. Ctr. v. Pacific

Lumber Co., 2003 WL 25506817, *15 (N.D. Cal.

2003) (“EPIC”) (finding that the statutory definition

of point source encompasses ditches, culverts and

channels associated with forest roads). It is our posi-

tion, however, that EPIC was wrongly decided, and

the district court agreed.? (Opinion, NEDC ER 66, at

134.) The EPIC court failed to defer to EPA’s con-

struction of its rule, in conflict with Auer, 519 U.S. at

461, and Hammersley, 299 F.3d at 1018-1019. EPIC

also conflicts with this Court’s analysis in Forsgren

and runs contrary to this Court’s assertions that ru-

noff from timber harvesting is a nonpoint source.

See, e.g., Pronsolino, 291 F.3d at 1126.

NEDC’s reliance on North Carolina Shellfish

Growers Ass'n v. Holly Ridge Assoc., 278 F. Supp. 2d

654, 681-683 (E.D. N.C. 2003) (“Holly Ridge”), is

likewise misplaced. See NEDC Br. 47. The district

court in Holly Ridge correctly found that a construc-

tion site disturbing more than five acres of land was

an expressly-defined “industrial activity” under

EPA’s phase I stormwater rule that required a

stormwater permit. 278 F. Supp. 2d at 679 (citing 40

C.F.R. § 122.26(b)(14)(x)). Thus, unlike in this case,

® EPIC is stayed pending bankruptcy proceedings initiated by

defendant. EPIC, 3:01-cv-2821 MHP (N.D. Cal. July 24, 2001).

Thus, the United States has not had an opportunity to seek re-

view of the district court’s decision.

the defendants in Holly Ridge were discharging

stormwater in direct violation of EPA regulations.

Moreover, EPIC and Holly Ridge are contra-

dicted by persuasive authority that is directly on

point. For example, in Newton County Wildlife Ass’n

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

Eighth Circuit found that EPA’s silvicultural rule ex-

cluded runoff from logging and road construction ac-

tivities. Accord Sierra Club v. Martin, 71 F. Supp. 2d

1268 (N.D. Ga. 1996);-see also O ‘Aha‘titno v. Galiher,

28 F. Supp. 2d 1258, 1261-1262 (D. Haw. 1998) (re-

jecting claims that farm access roads should be sub-

ject to NPDES permitting, and finding “no substan-

tial difference between the harm caused by forest

roads and that caused by defendant’s farm roads”).

In summary, EPA has reasonably and consistent-

ly construed its silvicultural rule to define stormwa-

ter from forest roads as nonpoint sources. The dis-

trict court’s judgment that runoff from forest roads is

a nonpoint source should be affirmed. This Court

need go no further to affirm the district court.

IV. EPA’S PHASE I STORMWATER RULE

DOES NOT INCLUDE STORMWATER DIS-

CHARGES FROM FOREST ROADS.

Below NEDC asserted that, despite EPA’s deci-

sion in the silvicultural rule that runoff from forest

roads is a nonpoint source, EPA nonetheless defined

stormwater runoff from forest roads as a point source

discharge “associated with industrial activity” when

it promulgated the phase I stormwater rule at 40

C.F.R. § 122.26(b)(14). The district court disposed of

this argument without analysis under EPA’s phase I

stormwater rule, because it held that runoff from

forest roads is a nonpoint source. (Opinion, NEDC

ER 66, at 134.) NEDC does not brief this argument

on appeal, and asks this Court to remand this issue

to the district court. NEDC Br. 8.

First, this Court need not reach this issue if it

agrees with EPA’s reasonable interpretation that ru-

noff from forest roads is a nonpoint source as the dis-

trict court held. But even if this Court were to find to

the contrary—that some of the runoff associated with

forest roads is a point source—NEDC’s argument

that the phase I stormwater rule applies to forest

roads must fail. The only silvicultural stormwater

sources subject to EPA’s stormwater rule are the four

expressly-defined point sources in the silvicultural

rule: rock crushing, gravel washing, log sorting, and

log storage facilities.

NEDC’s position in the district court that forest

roads involve discharges “associated with industrial

activity” ignores the plain language of the rule and

the clear intent of EPA in promulgating the rule.

First, the second sentence of the regulatory defini-

tion states that this term “does not include dis-

charges from the facilities or activities excluded from

the NPDES program under this part 122.” 40 C.F.R.

§ 122.26(b)(14). As explained supra, the silvicultural

rule is found in 40 C.F.R. part 122 and excludes ru-

noff from forest roads from the NPDES program.!°

NEDC likewise misconstrues EPA’s reference to

SIC code 24 in the phase I rule. EPA primarily refe-

renced this SIC code to regulate traditional industri-

al sources such as sawmills. See 55 Fed. Reg. at

‘0 Even if this court were to find that EPA’s silvicultural rule

does not define ditches, channels and culverts associated with

forest roads as a nonpoint source, EPA clearly articulated ite

intent to exclude these sources from the phase I stormwater

rule.

48,008 (explaining in the preamble that establish-

ments under SIC code 24 “are engaged in operating

sawmills, planing mills and other mills engaged in

producing lumber and wood basic materials”). By 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 1976, in order to make clear that these fa-

cilities would continue to be subject to the NPDES

requirements. These four categories are “rock crush-

ing, gravel washing, log sorting, [and] log storage fa-

cilities.” 40 C.F.R. § 122.27(b). SIC code 2411 in-

cludes “logs” and “saw logs’—categories which could

be construed to encompass log sorting or log storage

facilities. Thus, this reference to SIC code 24 ensured

that the phase I stormwater rule would preserve the

silvicultural rule’s longstanding definition of silvicul-

tural point and nonpoint sources.

In fact, in response to a comment raising the con-

cern that the rule could be misread in the same way

that NEDC misreads the rule, EPA explained in the

preamble that: “EPA does not intend to change the

scope of 40 CFR 122.27 in this rulemaking. Accor-

dingly, the definition of ‘storm water discharge asso-

ciated with industrial activity does not include

sources that may be included under SIC 24, but

which are excluded under 40 CFR 122.27.” 55 Fed.

Reg. at 48,011.

In addition, the first sentence of the definition of

stormwater discharge “associated with industrial ac-

tivity” limits the term to “the discharge from any

conveyance that is used for collecting and conveying

storm water and that is directly related to manufac-

turing, processing or raw materials storage areas at

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

discussed above, EPA has not defined logging as an

industrial activity, nor are these forest roads “direct-

ly related” to “manufacturing, processing, or raw ma-

terial storage areas at an industrial plant.” Jd. Not

only are logging and timber hauling not industrial

activities under this definition, but these public

roads are also used for recreational and other pur-

poses that are indisputably not “industrial” in na-

ture.

Moreover, the procedural posture of EPA’s phase

II stormwater rule provides further support that the

phase I rule does not cover forest roads. EPA adopted

the phase II rule on December 8, 1999. See 64 Fed.

Reg. 68,722. One question raised in direct challenge

to the phase II rule was whether EPA should have

exercised its discretion to regulate forest roads. In

response to this argument, this Court in EDC re-

manded the rule to EPA to determine whether sec-

tion 402(p)(6) “requires EPA to regulate forest

roads.” EDC, 344 F.3d at 863. If forest roads were al-

ready covered by the phase I stormwater rule, this

remand of EPA’s phase II rule would have been un-

necessary, because forest road sources would have

already been subject to the NPDES permitting re-

quirements.

Finally, because this very question remains

pending before EPA, it would be inappropriate for

this Court to pre-judge EPA’s conclusion regarding

the EDC remand without the benefit of a final deci-

sion on the phase II rule supported by an adminis-

trative record. Thus, any challenge to EPA’s discre-

tion to chose not to regulate forest roads under the

phase I stormwater rule is simply not ripe at this

time. Meanwhile, any such challenge is also time-

barred under CWA section 509(b). 33 U.S.C.

§ 1369(b). NEDC did not challenge EPA’s phase I

stormwater rule in the statutory time frame and

cannot now collaterally attack the rule.

CONCLUSION

For the forgoing reasons, this Court should af-

firm the district court’s judgment dismissing this

CWA citizen suit.

Respectfully submitted,

RONALD J. TENPAS

Acting Assistant Attorney General

KATHRYN KOVACS

KAREN WARDZINSKI

BRADFORD T. MCLANE

Environment & Natural Resources Di-

vision

U.S. Department of Justice

P.O. Box 4390, Ben Franklin Station

Washington, DC 20044-4390

(202) 305-0544

Fax (202) 514-4231

[Certificates omitted in printing.]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 07-35266

(Panel: William A. Fletcher, Raymond C. Fisher,

Charles R. Breyer)

NORTHWEST ENVIRONMENTAL DEFENSE

CENTER,

Plaintiff-Appellant

MARVIN BROWN, et ai.,

Defendant-Appellees

and

OREGON FOREST INDUSTRIES COUNCIL, et al.,

Intervenor-Appellees

ON APPEAL FROM THE UNITED STATES DIS-

TRICT COURT FOR THE DISTRICT OF OREGON,

Civ. No. 06-1270-KI

AMICUS CURIAE BRIEF OF THE UNITED

STATES RESPONDING TO THE COURT'S

QUESTIONS OF OCTOBER 21, 2010

IGNACIA S. MORENO

Assistant Attorney General

LISA JONES

KAREN WARDZINSKI

AARON AVILA

JUDY B. HARVEY

U.S. Department of Justice

Environ. and Natural Resources Div.

P.O. Box 4390, Ben Franklin Station

Washington, DC 20044-4390

(202) 514-3932

TABLE OF CONTENTS

TABLE OF AUTHORITIBG........................000

STATEMENT OF INTEREST........................

STATUTORY AND REGULATORY

PIED cccanecesusnesensonesscnneionspinenninbnnaiinin

FEES corcscrsccencnscensnmntameessaminanmeniianiaianiin

I. A Challenge to an EPA Regulation

Must be Brought in the Appropriate

Court of Appeals Through the Spe-

cial Judicial-Review Mechanism Es-

tablished by 33 U.S.C. 1369(b).............

II. How Sections 1365 and 1369 Apply

to EPA’s Interpretation of an Ambi-

SR TEI ceccncsessatsccenniminguaiiiinietas

TABLE OF AUTHORITIES

Page

CASES

Auer v. Robbins, 519 U.S. 452 (1997)............... 4, 8,10

Chase Bank USA, N.A. v. McCoy, No. 09-329,

2011 WL 197641 (S. Ct. Jan. 24, 2011)........... 8, 10

Christensen v. Harris Cnty., 529 U.S. 576

ESSE TEESE EOS Se Ot a 8

Christian v. City of Gladstone, Mo., 108 F.3d

EE 8

Conservation Law Found. v. Hannaford Bros.

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

139 Fed. Appx. 338 (2d Cir. 2005)......................... 5

Envtl. Def. Ctr. v. EPA, 344 F.3d 832 (9th Cir.

EE SEES en ae a cara 5

Envtl. Def. v. Duke Energy, 549 U.S. 561 (2007)........ 8

Lujan v. Natl Wildlife Fed’n, 497 U.S. 871

a sae ereemanenenascneses 7

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992)............ 6

Northwest Envtl. Def. Ctr. v. Brown, 617 F.3d

is cen tpeuannntnent 2, 3,11

STATUTES

TL 1

i sssdeniesbednnnneennnes 1

sa cnt rmpnsonncenonnesios 2,4,5

ais tnnennesienienedeneds 5

ain si cenattonnddnianeedees 1

TT AN 3, 5, 7,9

dcr casi cencseniensongntaieis 6

ET A a passim

FEDERAL REGULATIONS

a ssevesinnisaneunesien 5

40 C.F.R. § 122.27 ..............ccc.0000e0-

FEDERAL REGISTER

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

RULES

Federal Rule of Appellate Procedure 29(a) ................ 1

STATEMENT OF INTEREST

Pursuant to Federal Rule of Appellate Procedure

29(a), the United States of America respectfully

submits this brief as amicus curiae, responding to

the two questions posed by the Court in its October

21, 2010 order regarding jurisdictional provisions of

the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-

1387, and their applicability to the issues in this

case.

Congress entrusted the United States Environ-

mental Protection Agency (“EPA”) with the responsi-

bility of implementing the CWA. That responsibility

includes promulgating regulations regarding the Na-

tional Pollutant Discharge Elimination System

(“NPDES”) created by Section 402 of the CWA, 33

U.S.C. § 1342. The United States has an interest in

the proper interpretation of the provisions of the

CWA that provide for judicial review of specified

agency actions. The United States also has an inter-

est in the proper application of the citizen suit provi-

sion of the CWA, 33 U.S.C. § 1365, which is an im-

portant supplement to EPA’s and the States’ CWA

enforcement authority.

SUMMARY

This case involves a CWA citizen suit brought by

the Northwest Environmental Defense Center

(“NEDC”) against the Oregon State Forester and the

Board of Forestry (the “State”) as well as private

companies engaged in logging operations (the “pri-

vate defendants”), alleging that the defendants were

facilitating discharges without a permit from two

specific roads in the Tillamook State Forest, in viola-

tion of the CWA and applicable regulations. The dis-

trict court dismissed the case, finding that dis-

charges of stormwater from the forest roads at issue

were excluded from CWA permitting requirements

by effect of EPA’s interpretation of its silvicultural

point source regulation at 40 C.F.R. § 122.27 (“Silvi-

cultural Rule”). A panel of this Court reversed.

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

(9th Cir. 2010). Recognizing that the Silvicultural

Rule is open to at least two possible interpretations

(i.e., that the rule is ambiguous), the panel concluded

that under either reading, stormwater runoff from

logging roads that has been collected by and then

discharged from a system of man-made ditches, cul-

verts, and channels—as NEDC alleges—is not ex-

empt from the CWA’s definition of point source. Id.

at 1191.

The panel then considered whether, even if such

discharges are from point sources within the mean-

ing of the CWA, the discharges are nonetheless ex-

empt because of the 1987 amendments to the CWA

pertaining to stormwater pollution, 33 U.S.C.

§ 1342(p). The United States had argued in its pre-

vious brief to this panel that the first phase of regu-

lations implementing the 1987 amendments ex-

empted the silvicultural discharges at issue from

NPDES permitting. Amicus Br. of the United States

of America (Dkt. 42), at 28-32, Nov. 15, 2007. The

panel disagreed, concluding that the statute prec-

luded that interpretation of the regulations, and re-

manded to the district court for further proceedings

consistent with its opinion. 617 F.3d at 1196, 1198.!

' Although the United States filed amicus briefs at the district

court and appellate court levels to provide its views to the Court

on important matters of interpreting the CWA and associated

regulatory provisions, the United States is not a party to this

action. As such, any relief afforded to NEDC in this case must

be limited to the parties and applicable only to the specified dis-

In considering the petitions for panel rehearing

or rehearing en banc filed by the State and private

defendants, the Court has posed two questions relat-

ing to jurisdictional provisions of the CWA:

1) Can a suit challenging EPA’s interpretation

of its regulations implementing the Clean

Water Act’s permitting requirements be

brought «nder the Act’s citizen suit provi-

sion, 33 U.S.C. § 1365(a)?

2) Must a suit challenging EPA’s decision to ex-

empt 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)?

At issue here is whether a court has jurisdiction to

entertain a citizen suit under Section 1365(a) where

the claim is that EPA’s interpretation of the regula-

tion is plainly erroneous or contrary to the CWA.

Where EPA promulgates an ambiguous regulation

and (as here) subsequently offers an interpretation of

that regulation in an amicus brief, that interpreta-

tion is entitled to a high level of deference under

Auer v. Robbins, 519 U.S. 452, 461 (1997). Even so,

where the reviewing court determines that the prof-

fered interpretation is plainly erroneous or would

bring the regulation into conflict with the plain

terms of the CWA, Section 1369(b) does not bar the

court in a citizen suit from rejecting the interpreta-

tion on that narrow ground if EPA’s interpretation of

the regulation has only been publically pronounced

in an amicus brief filed after commencement of the

lawsuit.

charges before the Court, and cannot directly bind EPA, a non-

party.

STATUTORY AND REGULATORY BACK-

GROUND

EPA’s Silvicultural Rule, 40 C.F.R. § 122.27, re-

quires that “silvicultural point sources” be subject to

the CWA’s NPDES permitting requirements. In its

rule, EPA defined silvicultural point sources 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 silvicultural activities and from which pollu-

tants are discharged into waters of the United

States.” Id. Expressly not included as “silvicultural

point source[s}” are “non-point source silvicultural

activities,” including “... harvesting operations ... or

road construction and maintenance from which there

is natural runoff.” Id.

In the 1987 amendments to the CWA under Sec-

tion 1342(p), Congress established a two-phase per-

mitting scheme for stormwater runoff. In 1990, EPA

promulgated the Phase I regulations, which require

NPDES permits for the most significant sources of

stormwater pollution, including discharges “asso-

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

§ 1342(p)(2)(B). See 40 C.F.R. § 122.26 (regulations

implementing Phase I). Phase II stormwater regula-

tions were adopted by EPA in 1999; these specified

two additional categories of stormwater point source

discharges for regulation pursuant to Section 1342(p)

and also retained the authority to designate addi-

tional discharges for regulation. Regulations for Re-

vision of the Water Pollution Control Program Ad-

dressing Storm Water Discharges, 64 Fed. Reg.

68,722 (Dec. 8, 1999). In 2003, this Court remanded

to EPA a portion of its Phase II regulations to con-

sider, inter alia, whether Section 1342(p) requires

EPA to regulate stormwater discharges from forest

roads, Environmental Defense Center v. EPA, 344

F.3d 832, 863 (9th Cir. 2003), and that remand re-

mains pending before the Agency. All sources of

stormwater not covered by Phase I or II are exempt

from the permitting requirements of the CWA. Cf.

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

327 F. Supp. 2d 325, 328 (D. Vt. 2004), affd, 139 Fed.

Appx. 338 (2d Cir. 2005).

DISCUSSION

1. A Challenge to an EPA Regulation Must be

Brought in the Appropriate Court of Ap-

peals Through the Special Judicial-Review

Mechanism Established by 33 U.S.C.

1369(b).

The CWA’s citizen suit provision, 33 U.S.C.

§ 1365(a), allows private citizens to bring enforce-

ment actions against any person who is alleged to be

in violation of “an effluent standard or limitation”

under the CWA, including actions against persons al-

leged to be illegally discharging a pollutant into wa-

ters of the United States without a NPDES permit.

See 33 U.S.C. § 1365(f) (defining “effluent standard

or limitation” for purposes of citizen suit provision).

The CWA’s special judicial-review mechanism in 33

U.S.C. § 1369(b) authorizes private parties to obtain

court of appeals review of certain EPA actions, in-

cluding promulgation of “any effluent limitation or

other limitation under section 1311,” or rules that

regulate the underlying NPDES permit procedures,

as soon as they are promulgated, without waiting for

the regulations to be applied to any concrete factual

settings. See, e.g.. NRDC v. EPA, 966 F.2d 1292,

1296-97 (9th Cir. 1992). However, such a challenge

must be brought within 120 days after the rule’s

promulgation, except where a challenge “is based

solely on grounds which arose after such 120th day.”

33 U.S.C. § 1369(b)(1). The statute expressly states

that any EPA action “with respect to which review

could have been obtained under [33 U.S.C.

1369(b)(1)] shall not be subject to judicial review in

any civil or criminal proceeding for enforcement.” 33

U.S.C. § 1369(b)(2).

Thus, a challenge to an EPA regulation may not

be brought in a citizen suit, but must instead be

brought in the appropriate court of appeals through

the special judicial-review mechanism established by

33 U.S.C. § 1369(b). For purposes of the exclusive re-

view provision in Section 1369(b), moreover, a suit

may constitute a “challenge” to an EPA regulation

even if the only tangible relief the plaintiff seeks is

an order directing a private party to cease a particu-

lar type of discharge. If the plaintiffs request for re-

lief against a private party logically depends on the

proposition that an EPA regulation is invalid, the

suit is an impermissible “challenge” to the regulation

itself, even if the plaintiff does not seek a declaratory

judgment that the regulation is invalid or the entry

of relief against EPA itself.

2 The exclusive review regime in 33 U.S.C. § 1369(b) offers po-

tential benefits to citizen plaintiffs. For example, the provision

benefits potential challengers by superseding ordinary rules of

prudential ripeness that might otherwise bar prompt review of

promulgated regulations. Lujan v. Natl Wildlife Fed'n, 497 U.S.

871, 891 (1990). The tradeoff for that authorization of pre-

enforcement review, however, is that such a challenge must be

brought within the 120-day window if it is to be brought at all.

The exclusive review provision also benefits the regulated pub-

lic by allowing all challenges to the breadth and substance of

CWA regulations to be brought and resolved in one forum at

one time, thus providing clarity to regulated entities regarding

their obligations and repose to longstanding regulations.

II. How Sections 1365 and 1369 Apply to EPA’s

Interpretation of an Ambiguous Regulation.

Within 120 days of its issuance, a person must

challenge the validity of a regulation and any con-

temporaneous agency interpretation of such regula-

tion (such as an interpretation offered in its pream-

ble) that falls within 33 U.S.C. § 1369(b)’s exclusive

review provision. A court, however, has jurisdiction

to entertain under Section 1365(a) a citizen suit chal-

lenging EPA’s non-contemporaneous interpretation

of its own regulation advanced in an amicus brief

where such a challenge does not call into question

the validity of the regulation itself. Yet the challen-

ger takes on a heavy burden. In resolving that citizen

suit, the court must accord the agency’s interpreta-

tion heightened deference under Auer v. Robbins,

519 U.S. 452, 461 (1997), most recently applied by

the Supreme Court in Chase Bank USA, N.A. uv.

McCoy, No. 09-329, 2011 WL 197641 (S. Ct. Jan. 24,

2011). Auer deference applies only where a regula-

tion is ambiguous as to the question presented. /d.,

at *7; Christensen v. Harris Cnty., 529 U.S. 576, 588

(2000).3 If the regulation is clear on its face, then the

regulation itself obviously controls.4

3 In Chase Bank, the Supreme Court explained that deference is

not warranted where the text of a regulation is unambiguous,

as “a conflicting agency interpretation advanced in an amicus’

brief will necessarily be plainly erroneous or inconsistent with

the regulation in question.” 2011 WL 197641, at *9 (internal

quotations omitted). Moreover, “adopting the agency’s contrary

interpretation [of an unambiguous regulation] would permit the

agency, under the guise of interpreting the regulation, to create

de facto a new regulation.” Jd. (quoting Christensen v. Harris

Cnty., 529 U.S. at 588).

4 If the regulation is unambiguous as to the question presented,

and the court’s construction is contrary to the plain text of the

Under the standard set forth in Auer, the court

must defer to an agency’s interpretation that is not

“plainly erroneous or inconsistent with the regula-

tion,” Chase Bank, 2011 WL 197641, at *8, and is

based on a permissible construction of the governing

statute. Christian v. City of Gladstone, Mo., 108 F.3d

929, 934 (8th Cir. 1997). That is, courts are appro-

priately reluctant to conclude that a federal agency’s

construction of its own rule is textually unsupporta-

ble. Nevertheless, if the agency’s interpretation was

not set forth contemporaneously with the rule but ra-

ther in an amicus brief filed after the challenged

conduct took place, Section 1369(b) does not prevent

a plaintiff from asserting the invalidity of the agen-

cy’s interpretation in the course of a citizen suit

brought under 33 U.S.C. § 1365(a).

At issue here is whether a court in a citizen suit

may reject EPA’s textually-reasonable interpretation

of its own ambiguous regulation based on the court’s

view that the interpretation is contrary to the defini-

tion of “point source” contained in the CWA. The an-

swer to that depends on when EPA’s interpretation

is announced. If EPA states its interpretation at the

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

companying Federal Register preamble), a potential

plaintiff must accept EPA’s interpretation as author-

itative and challenge the regulation directly and in a

timely fashion in the court of appeals pursuant to 33

U.S.C. § 1369(b). Otherwise, Section 1369(b)’s pur-

poses would be completely subverted by allowing a

regulation, that construction would constitute an implicit inva-

lidation of that regulation, which is improper. Cf. Envtl. Def. v.

Duke Energy, 549 U.S. 561, 573, 581 (2007) (recognizing the

fine line between a court’s reading of a regulation to align it

with the court’s view of the statute, and a determination that

the regulation, as written, is invalid).

court to reject EPA’s interpretation in a later citizen

suit. For purposes of 33 U.S.C. § 1369(b)’s exclusive

review provision, a later challenge to EPA’s contem-

poraneous interpretation of its own regulation, if

based on the view that the regulation as so construed

would be contrary to the statute, is an untimely de

facto challenge to the regulation itself.

The situation is significantly different where, as

here, the court holds that the pertinent EPA inter-

pretation is offered well after the regulation is prom-

ulgated.5 To be sure, courts must give due deference

under Auer to an agency interpretation of its own

regulation, even one that is first offered in an amicus

brief and even though such an interpretation post-

dates the promulgation of the rule. See Chase Bank,

5 In its briefing to this Court, in places, NEDC appeared to at-

tack the Silvicultural Rule based upon its applicability to forest

roads generally. This sort of challenge should have been

brought within 120 days pursuant to Section 1369(b). That is

why the United States argued in its previous Court of Appeals

amicus brief that “NEDC’s challenge, which argues that the

[silvicultural] rule is inconsistent with the statute’s definition of

the term ‘point source’ [wa]s not based on grounds that have

arisen since the expiration of the period during which the rule

was subject to challenge” under 33 U.S.C § 1369(b). Amicus Br.

(Dkt. 42), at 13. Subsequently, however, NEDC honed its ar-

gument to clearly challenge only whether the Rule could ex-

clude stormwater discharges associated with logging activities

that are collected and channeled by man. NEDC argued that

this would not be “natural runoff’ within the meaning of the

Silvicultural Rule. The term “natural runoff’ is ambiguous, and

neither the Rule itself nor EPA statements in the preamble

clearly addressed whether such channeled and collected runoff

is included in the term “natural runoff.” The first time EPA ex-

pressed in an official document its interpretation that “natural

runoff’ would include runoff that is channeled, ditched or cul-

verted into man-made structures was in its amicus brief in this

matter.

2011 WL 197641, at *8. At the time an ambiguous

regulation is promulgated, however, the public can-

not reasonably be expected to challenge potential

regulatory interpretations that are textually plausi-

ble but that the agency has not contemporaneously

offered and may never adopt. Indeed, a rule encour-

aging such challenges to hypothetical interpretations

would likely only foster unnecessary litigation.

Thus, if EPA promulgates an ambiguous regula-

tion and subsequently offers an interpretation of its

regulation in an amicus brief that a court determines

is plainly erroneous or would bring the regulation in-

to conflict with the plain terms of the CWA, Section

1369(b) does not bar the court in a citizen suit from

rejecting the interpretation on that narrow ground.

This Silvicultural Rule was ambiguous at the time

the rule was promulgated. E.g., 617 F.3d at 1191

(“[T]here are two possible readings of the Silvicul-

tural Rule.”); see also supra n.5. A citizen suit, there-

fore, could properly challenge a non-contemp-

oraneous agency interpretation set forth for the first

time in an amicus brief, such as EPA’s interpretation

here.

Dated: February 10, 2011 Respectfully submitted,

IGNACIA S. MORENO

Assistant Attorney Gen-

eral

/s Judy B. Harv

LISA JONES

KAREN WARDZINSKI

AARON AVILA

JUDY B. HARVEY

U.S. Department of Jus-

tice

Environment & Natural

Resources Division

P.O. Box 4390, Ben

Franklin Station

Washington, DC 20044-

4390

(202) 514-3932

[Certificates omitted in printing.]

FEDERAL STATUTES AND REGULATIONS

33 U.S.C. § 1251. Congressional declaration of

goals and policy

(a) Restoration and maintenance of chemical,

physical and biological integrity of Nation's

waters; national goals for achievement of ob-

jective

The objective of this chapter is to restore and main-

tain the chemical, physical, and biological integrity

of the Nation's waters. In order to achieve this objec-

tive it is hereby declared that, consistent with the

provisions of this chapter—

(1) it is the national goal that the discharge of pol-

lutants into the navigable waters be eliminated by

1985;

(2) it is the national goal that wherever attainable,

an interim goal of water quality which provides for

the protection and propagation of fish, shellfish,

and wildlife and provides for recreation in and on

the water be achieved by July 1, 1983;

x*x**

(7) it is the national policy that programs for the

control of nonpoint sources of pollution be devel-

oped and implemented in an expeditious manner so

as to enable the goals of this chapter to be met

through the control of both point and nonpoint

sources of pollution.

(b) Congressional recognition, preservation,

and protection of primary responsibilities and

rights of States

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources, and to consult with the Administrator in

the exercise of his authority under this chapter. It is

the policy of Congress that the States manage the

construction grant program under this chapter and

implement the permit programs under sections 1342

and 1344 of this title. It is further the policy of the

Congress to support and aid research relating to the

prevention, reduction, and elimination of pollution,

and to provide Federal technical services and finan-

cial aid to State and interstate agencies and munici-

palities in connection with the prevention, reduction,

and elimination of pollution.

xz=**

(e) Public participation in development, revi-

sion, and enforcement of any regulation, etc.

Public participation in the development, revision,

and enforcement of any regulation, standard, efflu-

ent limitation, plan, or program established by the

Administrator or any State under this chapter shall

be provided for, encouraged, and assisted by the Ad-

ministrator and the States. The Administrator, in

cooperation with the States, shall develop and pub-

lish regulations specifying minimum guidelines for

public participation in such processes.

*xx*x*

33 U.S.C. § 1288. Areawide waste treatment

management

(b) Planning process

(1)(A) Not later than one year after the date of de-

signation of any organization under subsection (a) of

this section such organization shall have in operation

a continuing areawide waste treatment management

planning process consistent with section 1281 of this

title. Plans prepared in accordance with this process

shall contain alternatives for waste treatment man-

agement, and be applicable to all wastes generated

within the area involved. The initial plan prepared in

accordance with such process shall be certified by the

Governor and submitted to the Administrator not

later than two years after the planning process is in

operation.

(2) Any plan prepared under such process shall in-

clude, but not be limited to—

x***

(F) a process to (i) identify, if appropriate, agricul-

turally and silviculturally related nonpoint sources

of pollution, including return flows from irrigated

agriculture, and their cumulative effects, runoff

from manure disposal areas, and from land used for

livestock and crop production, and (ii) set forth pro-

cedures and methods (including land use require-

ments) to control to the extent feasible such

sources;

(G) a process to (i) identify, if appropriate, mine-

related sources of pollution including new, current,

and abandoned surface and underground mine ru-

noff, and (ii) set forth procedures and methods (in-

cluding land use requirements) to control to the ex-

tent feasible such sources;

(H) a process to (i) identify construction activity re-

lated sources of pollution, and (ii) set forth proce-

dures and methods (including land use require-

ments) to control to the extent feasible such

sources;

(e) Permits not to conflict with approved plans

No permit under section 1342 of this title shall be is-

sued for any point source which is in conflict with a

plan approved pursuant to subsection (b) of this sec-

tion.

x**

33 U.S.C. § 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person

shall be unlawful.

33 U.S.C. § 1312. Water quality related effluent

limitations

(a) Establishment

Whenever, in the judgment of the Administrator or

as identified under section 1314() of this title, dis-

charges of pollutants from a point source or group of

point sources, with the application of effluent limita-

tions required under section 1311(b)(2) of this title,

would interfere with the attainment or maintenance

of that water quality in a specific portion of the na-

vigable waters which shall assure protection of pub-

lic health, public water supplies, agricultural and in-

dustrial uses, and the protection and propagation of

a balanced population of shellfish, fish and wildlife,

and allow recreational activities in and on the water,

effluent limitations (including alternative effluent

control strategies) for such point source or sources

shall be established which can reasonably be ex-

pected to contribute to the attainment or mainten-

ance of such water quality.

x=**

33 U.S.C. § 1313. Water quality standards and

implementation plans

x***

x**

(2)(A) Whenever the State revises or adopts a new

standard, such revised or new standard shall be

submitted to the Administrator. Such revised or new

water quality standard shall consist of the designat-

ed uses of the navigable waters involved and the wa-

ter quality criteria for such waters based upon such

uses. Such standards shall be such as to protect the

public health or welfare, enhance the quality of wa-

ter and serve the purposes of this chapter. Such

standards shall be established taking into considera-

tion their use and value for public water supplies,

propagation of fish and wildlife, recreational purpos-

es, and agricultural, industrial, and other purposes,

and also taking into consideration their use and val-

ue for navigation.

33 U.S.C. § 1314. Information and guidelines

*x*x* «*

(e) Best management practices for industry

The Administrator, after consultation with appropri-

ate Federal and State agencies and other interested

persons, may publish regulations, supplemental to

any effluent limitations specified under subsections

(b) and (c) of this section for a class or category of

point sources, for any specific pollutant which the

Administrator is charged with a duty to regulate as a

toxic or hazardous pollutant under section 1317(a)(1)

or 1321 of this title, to control plant site runoff, spil-

lage or leaks, sludge or waste disposal, and drainage

from raw material storage which the Administrator

determines are associated with or ancillary to the in-

dustrial manufacturing or treatment process within

such class or category of point sources and may con-

tribute significant amounts of such pollutants to na-

vigable waters. Any applicable controls established

under this subsection shall be included as a require-

ment for the purposes of section 1311, 1312, 1316,

1317, or 1343 of this title, as the case may be, in any

permit issued to a point source pursuant to section

1342 of this title.

(f) Identification and evaluation of nonpoint

sources of pollution; processes, procedures,

and methods to control pollution

The Administrator, after consultation with appropri-

ate Federal and State agencies and other interested

persons, shall issue to appropriate Federal agencies,

the States, water pollution control agencies, and

agencies designated under section 1288 of this title,

within one year after October 18, 1972 (and from

time to time thereafter) information including (1)

guidelines for identifying and evaluating the nature

and extent of nonpoint sources of pollutants, and (2)

processes, procedures, and methods to control pollu-

tion resulting from—

(A) agricultural and silvicultural activities, includ-

ing runoff from fields and crop and forest lands;

(B) mining activities, including runoff and siltation

from new, currently operating, and abandoned sur-

face and underground mines;

the facilities resulting from such construction;

(D) the disposal of pollutants in wells or in subsur-

face excavations;

(E) salt water intrusion resulting from reductions

of fresh water flow from any cause, including ex-

traction of ground water, irrigation, obstruction,

and diversion; and

(F) changes in the movement, flow, or circulation of

any navigable waters or ground waters, including

changes caused by the construction of dams, levees,

channels, causeways, or flow diversion facilities.

Such information and revisions thereof shall be pub-

lished in the Federal Register and otherwise made

available to the public.

33 U.S.C. § 1342. National pollutant discharge

elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity

for public hearing, issue a permit for the discharge of

any pollutant, or combination of pollutants, notwith-

standing section 1311(a) of this title, upon condition

that such discharge will meet either (A) all applica-

ble requirements under sections 1311, 1312, 1316,

1317, 1318, and 1348 of this title, or (B) prior to the

taking of necessary implementing actions relating to

all such requirements, such conditions as the Admin-

istrator determines are necessary to carry out the

provisions of this chapter.

(2) The Administrator shall prescribe conditions for

such permits to assure compliance with the require-

ments of paragraph (1) of this subsection, including

conditions on data and information collection, report-

ing, and such other requirements as he deems ap-

propriate.

(k) Compliance with permits

Compliance with a permit issued pursuant to this

section shall be deemed compliance, for purposes of

sections 1319 and 1365 of this title, with sections

1311, 1312, 1316, 1317, and 1343 of this title, except

any standard imposed under section 1317 of this title

for a toxic pollutant injurious to human health. Until

December 31, 1974, in any case where a permit for

discharge has been applied for pursuant to this sec-

tion, but final administrative disposition of such ap-

plication has not been made, such discharge shall not

be a violation of (1) section 1311, 1316, or 1342 of

this title, or (2) section 407 of this title, unless the

Administrator or other plaintiff proves that final

administrative disposition of such application has

not been made because of the failure of the applicant

to furnish information reasonably required or re-

quested in order to process the application. * * *

(1) Limitation on permit requirement

(1) Agricultural return flows

The Administrator shall not require a permit under

this section for discharges composed entirely of re-

turn flows from irrigated agriculture, nor shall the

Administrator directly or indirectly, require any

State to require such a permit.

(2) Stormwater runoff from oil, gas, and mining op-

erations

The Administrator shall not require a permit under

this section, nor shall the Administrator directly or

indirectly require any State to require a permit, for

discharges of stormwater runoff from mining oper-

ations or oil and gas exploration, production,

processing, or treatment operations or transmission

facilities, composed entirely of flows which are from

conveyances or systems of conveyances (including

but not limited to pipes, conduits, ditches, and

channels) used for collecting and conveying precipi-

tation runoff and which are not contaminated by

contact with, or do not come into contact with, any

overburden, raw material, intermediate products,

finished product, byproduct, or waste products lo-

cated on the site of such operations.

x*«*

(p) Municipal and industrial stormwater dis-

charges

(1) General rule

Prior to October 1, 1994, the Administrator or the

State (in the case of a permit program approved

under this section) shall not require a permit under

this section for discharges composed entirely of

stormwater.

(2) Exceptions

Paragraph (1) shall not apply with respect to the

following stormwater discharges:

(A) A discharge with respect to which a permit

has been issued under this section before Febru-

ary 4, 1987.

(B) A discharge associated with industrial activi-

ty.

sewer system serving a population of 250,000 or

more.

(D) A discharge from a municipal separate storm

sewer system serving a population of 100,000 or

more but less than 250,000.

(E) A discharge for which the Administrator or

the State, as the case may be, determines that the

stormwater discharge contributes to a violation of

a water quality standard or is a significant con-

tributor of pollutants to waters of the United

States.

(3) Permit requirements

(A) Industrial discharges

Permits for discharges associated with industrial ac-

tivity shall meet all applicable provisions of this sec-

tion and section 1311 of this title.

(B) Municipal discharge

Permits for discharges from municipal storm

sewers—

(i) may be issued on a system- or jurisdiction-

wide basis;

(ii) shall include a requirement to effectively

prohibit non-stormwater discharges into the

storm sewers; and

(iii) shall require controls to reduce the dis-

charge of pollutants to the maximum extent

practicable, including management practices,

control techniques and system, design and engi-

neering methods, and such other provisions as

the Administrator or the State determines ap-

propriate for the control of such pollutants.

(4) Permit application requirements

(A) Industrial and large municipal discharges

Not later than 2 years after February 4, 1987, the

Administrator shall establish regulations setting

forth the permit application requirements for

stormwater discharges described in paragraphs

(2)(B) and (2)(C). Applications for permits for

such discharges shall be filed no later than 3

years after February 4, 1987. Not later than 4

years after February 4, 1987, the Administrator

or the State, as the case may be, shall issue or

deny each such permit. Any such permit shall

provide for compliance as expeditiously as prac-

ticable, but in no event later than 3 years after

the date of issuance of such permit.

(B) Other municipal discharges

Not later than 4 years after February 4, 1987, the

Administrator shall establish regulations setting

forth the permit application requirements for

stormwater discharges described in paragraph

(2)(D). Applications for permits for such dis-

charges shall be filed no later than 5 years after

February 4, 1987. Not later than 6 years after

February 4, 1987, the Administrator or the State,

as the case may be, shall issue or deny each such

permit. Any such permit shall provide for com-

pliance as expeditiously as practicable, but in no

event later than 3 years after the date of issuance

of such permit.

(5) Studies

The Administrator, in consultation with the States,

shall conduct a study for the purposes of—

(A) identifying those stormwater discharges or

classes of stormwater discharges for which per-

mits are not required pursuant to paragraphs (1)

and (2) of this subsection;

(B) determining, to the maximum extent practic-

able, the nature and extent of pollutants in such

discharges; and

trol stormwater discharges to the extent neces-

sary to mitigate impacts on water quality.

Not later than October 1, 1988, the Administrator

shall submit to Congress a report on the results of

the study described in subparagraphs (A) and (B).

Not later than October 1, 1989, the Administrator °

shall submit to Congress a report on the results of

the study described in subparagraph (C).

(6) Regulations

Not later than October 1, 1993, the Administrator,

in consultation with State and local officials, shall

issue regulations (based on the results of the stu-

dies conducted under paragraph (5)) which desig-

nate stormwater discharges, other than those dis-

charges described in paragraph (2), to be regulated

to protect water quality and shall establish a com-

prehensive program to regulate such designated

sources. The program shall, at a minimum, (A) es-

tablish priorities, (B) establish requirements for

State stormwater management programs, and (C)

establish expeditious deadlines. The program may

include performance standards, guidelines, guid-

ance, and management practices and treatment re-

quirements, as appropriate.

*x***

(r) Discharges incidental to the normal opera-

tion of recreational vessels

No permit shall be required under this chapter by

the Administrator (or a State, in the case of a permit

program approved under subsection (b)) for the dis-

charge of any graywater, bilge water, cooling water,

weather deck runoff, oil water separator effluent, or

effluent from properly functioning marine engines, or

any other discharge that is incidental to the normal

operation of a vessel, if the discharge is from a recre-

ational vessel.

33 U.S.C. § 1344. Permits for dredged or fill ma-

terial

(a) Discharge into navigable waters at speci-

fied disposal sites

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites. Not later than the fifteenth

day after the date an applicant submits all the in-

formation required to complete an application for a

permit under this subsection, the Secretary shall

publish the notice required by this subsection.

x**

(e) General permits on State, regional, or na-

tionwide basis

(1) In carrying out his functions relating to the dis-

charge of dredged or fill material under this section,

the Secretary may, after notice and opportunity for

public hearing, issue general permits on a State, re-

gional, or nationwide basis for any category of activi-

ties involving discharges of dredged or fill material if

the Secretary determines that the activities in such

category are similar in nature, will cause only mi-

nimal adverse environmental effects when performed

separately, and will have only minimal cumulative

adverse effect on the environment. Any general per-

mit issued under this subsection shali (A) be based

on the guidelines described in subsection (b)(1) of

this section, and (B) set forth the requirements and

standards which shall apply to any activity autho-

rized by such general permit.

(2) No general permit issued under this subsection

shall be for a period of more than five years after the

date of its issuance and such general permit may be

revoked or modified by the Secretary if, after oppor-

tunity for public hearing, the Secretary determines

that the activities authorized by such general permit

have an adverse impact on the environment or such

activities are more appropriately authorized by indi-

vidual permits.

(f) Non-prohibited discharge of dredged or fill

material

(1) Except as provided in paragraph (2) of this sub-

section, the discharge of dredged or fill material—

x**

(E) for the purpose of construction or mainten-

ance of farm roads or forest roads, or temporary

roads for moving mining equipment, where such

roads are constructed and maintained, in accor-

dance with best management practices, to assure

that flow and circulation patterns and chemical

and biological characteristics of the navigable wa-

ters are not impaired, that the reach of the navig-

able waters is not reduced, and that any adverse

effect on the aquatic environment will be other-

wise minimized;

is not prohibited by or otherwise subject to regula-

tion under this section or section 1311(a) or 1342 of

this title (except for effluent standards or prohibi-

tions under section 1317 of this title).

x=*«*

33 U.S.C. § 1362. Definitions

Except as otherwise specifically provided, when used

in this chapter:

(5) The term “person” means an individual, corpora-

tion, partnership, association, State, municipality,

commission, or political subdivision of a State, or any

interstate body.

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological mate-

rials, radioactive materials, heat, wrecked or dis-

carded equipment, rock, sand, cellar dirt and indus-

trial, municipal, and agricultural waste discharged

into water. This term does not mean (A) “sewage

from vessels or a discharge incidental to the normal

operation of a vessel of the Armed Forces” within the

meaning of section 1322 of this title; or (B) water,

gas, or other material which is injected into a well to

facilitate production of oil or gas, or water derived in

association with oil or gas production and disposed of

in a well, if the well used either to facilitate produc-

tion or for disposal purposes is approved by authority

of the State in which the well is located, and if such

State determines that such injection or disposal will

not result in the degradation of ground or surface

water resources.

(11) The term “effluent limitation” means any re-

striction established by a State or the Administrator

on quantities, rates, and concentrations of chemical,

physical, biological, and other constituents which are

discharged from point sources into navigable waters,

the waters of the contiguous zone, or the ocean, in-

cluding schedules of compliance.

(12) The term “discharge of a pollutant” and the

term “discharge of pollutants” each means (A) any

addition of any pollutant to navigable waters from

any point source, (B) any addition of any pollutant to.

the waters of the contiguous zone or the ocean from

any point source other than a vessel or other floating

craft.

(14) The term “point source” means any discernible,

confined and discrete conveyance, including but not

limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock, con-

centrated animal feeding operation, or vessel or oth-

er floating craft, from which pollutants are or may be

discharged. This term does not include agricultural

stormwater discharges and return flows from irri-

gated agriculture.

(16) The term “discharge” when used without quali-

fication includes a discharge of a pollutant, and a

discharge of pollutants.

(19) The term “pollution” means the man-made or

man-induced alteration of the chemical, physical, bi-

ological, and radiological integrity of water.

x«*««*

33 U.S.C. § 1365. Citizen suits

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this section

and section 1319(g)(6) of this title, any citizen may

commence a civil action on his own behalf—

(1) against any person (including (i) the United

States, and (ii) any other governmental instrumen-

tality or agency to the extent permitted by the ele-

venth amendment to the Constitution) who is al-

leged to be in violation of (A) an effluent standard

or limitation under this chapter or (B) an order is-

sued by the Administrator or a State with respect

to such a standard or limitation, or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any

act or duty under this chapter which is not discre-

tionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stan-

dard or limitation, or such an order, or to order the

Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil pe-

nalties under section 1319(d) of this title.

(b) Notice

No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the Adminis-

trator, (ii) to the State in which the alleged viola-

tion occurs, and (iii) to any alleged violator of the

standard, limitation, or order, or

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil or criminal

action in a court of the United States, or a State

to require compliance with the standard, limita-

tion, or order, but in any such action in a court of

the United States any citizen may intervene as a

matter of right.

(2) under subsection (a)(2) of this section prior to

sixty days after the plaintiff has given notice of

such action to the Administrator,

except that such action may be brought immediately

after such notification in the case of an action under

this section respecting a violation of sections 1316

and 1317(a) of this title. Notice under this subsection

shall be given in such manner as the Administrator

shall prescribe by regulation.

ed States interests protected

=z**

(2) In such action under this section, the Adminis-

trator, if not a party, may intervene as a matter of

right.

(3) Protection of interests of United States

Whenever any action is brought under this section in

a court of the United States, the plaintiff shall serve

a copy of the complaint on the Attorney Generai and

the Administrator. No consent judgment shall be en-

tered in an action in which the United States is not a

party prior to 45 days following the receipt of a copy

of the proposed consent judgment by the Attorney

General and the Administrator.

x*«*«*

(f) Effluent standard or limitation

For purposes of this section, the term “effluent stan-

dard or limitation under this chapter” means (1) ef-

fective July 1, 1973, an unlawful act under subsec-

tion (a) of section 1311 of this title; (2) an effluent li-

mitation or other limitation under section 1311 or

1312 of this title; (3) standard of performance under

section 1316 of this title; (4) prohibition, effluent

standard or pretreatment standards under section

1317 of this title; (5) certification under section 1341

of this title; (6) a permit or condition thereof issued

under section 1342 of this title, which is in effect un-

der this chapter (including a requirement applicable

by reason of section 1323 of this title); or (7) a regula-

tion under section 1345(d) of this title.

x* *

33 U.S.C. § 1369. Administrative procedure and

judicial review

(b) Review of Administrator's actions; selection

of court; fees

(1) Review of the Administrator's action (A) in prom-

ulgating any standard of performance under section

1316 of this title, (B) in making any determination

pursuant to section 1316(b)(1)(C) of this title, (C) in

promulgating any effluent standard, prohibition, or

pretreatment standard under section 1317 of this

title, (D) in making any determination as to a State

permit program submitted under section 1342(b) of

this title, (E) in approving or promulgating any efflu-

ent limitation or other limitation under section 1311,

1312, 1316, or 1345 of this title, (F) in issuing or de-

nying any permit under section 1342 of this title, and

(G) in promulgating any individual control strategy

under section 1314() of this title, may be had by any

interested person in the Circuit Court of Appeals of

the United States for the Federal judicial district in

which such person resides or transacts business

which is directly affected by such action upon appli-

cation by such person. Any such application shall be

made within 120 days from the date of such determi-

nation, approval, promulgation, issuance or denial,

or after such date only if such application is based

solely on grounds which arose after such 120th day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1)

of this subsection shall not be subject to judicial re-

view in any civil or criminal proceeding for enforce-

ment.

(3) Award of fees

In any judicial proceeding under this subsection, the

court may award costs of litigation (including rea-

sonable attorney and expert witness fees) to any pre-

vailing or substantially prevailing party whenever it

determines that such award is appropriate.

x*«

40 C.F.R. § 125.4 (1975) Exclusions.

The following do not require an NPDES permit:

x*x*

(j) Discharges of pollutants from agricultural and sil-

vicultural activities, including irrigation return flow

and runoff from orchards, cultivated crops, pastures,

rangelands, and forest lands, except that this exclu-

sion shall not apply to the following:

x=**

(5) Discharges from any agricultural or silvicul-

tural activity which have been identified by the

Regional Administrator or the Director of the

State water pollution control agency or interstate

agency as a significant contributor of pollution.

40 C.F.R. § 124.85 (1976) Silvicultural activities.

(a) Definitions. For the purpose of this section:

(1) The term “silvicultural point source” means any

discernible, confined and discrete conveyance related

to rock crushing, gravel washing, log sorting or log

storage facilities which are operated in connection

with silvicultural activities and from which pollu-

tants are discharged into navigable waters.

Comment: This term does not include nonpoint

source activities inherent to silviculture such as nur-

sery operations, site preparation, reforestation and

subsequent cultural treatment, thinning, prescribed

burning, pest and fire control, harvesting operations,

surface drainage, and road construction and main-

tenance from which runoff results from precipitation

events. However, some of these activities (such as

stream crossings for roads) may involve point source

discharges of dredged or fill material which may re-

quire a § 404 permit (see 33 CFR 209.120).

(2) The term “rock crushing and gravel washing facil-

ities” means those facilities which process crushed

and broken stone, gravel and riprap (see 40 CFR 436,

Subpart B, and the effluent limitations guidelines

pursuant thereto).

(3) The term “log sorting and log storage facilities”

means those facilities wherein discharges result from

the holding of unprocessed wood, i.e. logs or round-

wood with bark or after removal of bark in self-

contained bodies of water (mill ponds or log ponds) or

land storage where water is applied intentionally on

the logs (wet decking). (See 40 CFR 429, Subpart J,

and the effluent limitations guidelines pursuant the-

reto).

(b) Application for Permit. (1) Any person discharg-

ing or proposing to discharge pollutants from a silvi-

cultural point source, who has not previously submit-

ted an NPDES permit application in reliance on the

prior exclusion of silvicultural activities from the

permit program, shall file such an application with

the Director by December 31, 1976.

x*«*«*

40 C.F.R. § 122.2 Definitions.

The following definitions apply to Parts 122, 123,

and 124. Terms not defined in this section have the

meaning given by CWA. When a defined term ap-

pears in a definition, the defined term is sometimes

placed in quotation marks as an aid to readers.

*x=* &

Discharge of a pollutant means:

(a) Any addition of any “pollutant” or combination of

pollutants to “waters of the United States” from any

“point source,” or

(b) Any addition of any pollutant or combination of

pollutants to the waters of the “contiguous zone” or

the ocean from any point source other than a vessel

or other floating craft which is being used as a means

of transportation.

This definition includes additions of pollutants into

waters of the United States from: surface runoff

which is collected or channelled by man; discharges

through pipes, sewers, or other conveyances owned

by a State, municipality, or other person which do

not lead to a treatment works; and discharges

through pipes, sewers, or other conveyances, leading

into privately owned treatment works. This term

does not include an addition of pollutants by any “in-

direct discharger.”

x**

Facility or activity means any NPDES “point source”

or any other facility or activity (including land or ap-

purtenances thereto) that is subject to regulation

under the NPDES program.

x** *

Point source means any discernible, confined, and

discrete conveyance, including but not limited to, any

pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal

feeding operation, landfill leachate collection system,

vessel or other floating craft from which pollutants

are or may be discharged. This term does not include

return flows from irrigated agriculture or agricultur-

al storm water runoff. (See § 122.3).

x=**

Site means the land or water area where any “facility

or activity” is physically located or conducted, includ-

ing adjacent land used in connection with the facility

or activity.

40 C.F.R. § 122.3 Exclusions.

The following discharges do not require NPDES

permits:

(e) Any introduction of pollutants from non point-

source agricultural and silvicultural activities, in-

cluding storm water runoff from orchards, cultivated

crops, pastures, range lands, and forest lands, but

not discharges from concentrated animal feeding op-

erations as defined in § 122.23, discharges from con-

centrated aquatic animal production facilities as de-

fined in § 122.24, discharges to aquaculture projects

as defined in § 122.25, and discharges from silvicul-

tural point sources as defined in § 122.27.

*x***

40 C.F.R. § 122.26 Storm water discharges (ap-

plicable to State NPDES programs, see

§ 123.25).

(a) Permit requirement.

(1) Prior to October 1, 1994, discharges composed

entirely of storm water shall not be required to

obtain a NPDES permit except:

(i) A discharge with respect to which a permit has

been issued prior to February 4, 1987;

(ii) A discharge associated with industrial activity

(see § 122.26(a)(4));

(iii) A discharge from a large municipal separate

storm sewer system;

(iv) A discharge from a medium municipal sepa-

rate storm sewer system;

(v) A discharge which the Director, or in States

with approved NPDES programs, either the Di-

rector or the EPA Regional Administrator, deter-

mines to contribute to a violation of a water quali-

ty standard or is a significant contributor of pol-

lutants to waters of the United States. This de-

signation may include a discharge from any

conveyance or system of conveyances used for col-

lecting and conveying storm water runoff or a sys-

tem of discharges from municipal separate storm

sewers, except for those discharges from con-

veyances which do not require a permit under pa-

ragraph (a)(2) of this section or agricultural storm

water runoff which is exempted from the defini-

tion of point source at § 122.2.

The Director may designate discharges from mu-

nicipal separate storm sewers on a system-wide

or jurisdiction-wide basis. In making this deter-

mination the Director may consider the following

factors:

(A) The location of the discharge with respect

to waters of the United States as defined at 40

CFR 122.2.

(B) The size of the discharge;

discharged to waters of the United States; and

(D) Other relevant factors.

(2) The Director may not require a permit for dis-

charges of storm water runoff from the following:

(i) Mining operations composed entirely of flows

which are from conveyances or systems of con-

veyances (including but not limited to pipes, con-

duits, ditches, and channels) used for collecting

and conveying precipitation runoff and which are

not contaminated by contact with or that have not

come into contact with, any overburden, raw ma-

terial, intermediate products, finished product,

byproduct, or waste products located on the site of

such operations, except in accordance with para-

graph (c)(1)(iv) of this section.

(ii) All field activities or operations associated

with oil and gas’ exploration, production,

processing, or treatment operations or transmis-

sion facilities, including activities necessary to

prepare a site for drilling and for the movement

and placement of drilling equipment, whether or

not such field activities or operations may be con-

sidered to be construction activities, except in ac-

cordance with paragraph (c)(1)(iii) of this section.

Discharges of sediment from construction activi-

ties associated with oil and gas exploration, pro-

duction, processing, or treatment operations or

transmission facilities are not subject to the pro-

visions of paragraph (c)(1)(iii)(C) of this section.

Note to paragraph (a)(2)(ii): EPA encourages opera-

tors of oil and gas field activities or operations to im-

plement and maintain Best Management Practices

(BMPs) to minimize discharges of pollutants, includ-

ing sediment, in storm water both during and after

construction activities to help ensure protection of

surface water quality during storm events. Appro-

priate controls would be those suitable to the site

conditions and consistent with generally accepted

engineering design criteria and manufacturer speci-

fications. Selection of BMPs could also be affected by

seasonal or climate conditions.

(3) Large and medium municipal separate storm

sewer systems.

i) Permits must be obtained for all discharges

from large and medium municipal separate storm

sewer systems.

(ii) The Director may either issue one system-

wide permit covering all discharges from munici-

pal separate storm sewers within a large or me-

dium municipal storm sewer system or issue dis-

tinct permits for appropriate categories of dis-

charges within a large or medium municipal sep-

arate storm sewer system including, but not

limited to: all discharges owned or operated by

the same municipality; located within the same

jurisdiction; all discharges within a system that

discharge to the same watershed; discharges

within a system that are similar in nature; or for

individual discharges from municipal separate

storm sewers within the system.

Giii) The operator of a discharge from a municipal

separate storm sewer which is part of a large or

medium municipal separate storm sewer system

must either:

(A) Participate in a permit application (to be a

permittee or a co-permittee) with one or more

other operators of discharges from the large or

medium municipal storm sewer system which

covers all, or a portion of all, discharges from

the municipal separate storm sewer system;

(B) Submit a distinct permit application which

only covers discharges from the municipal

separate storm sewers for which the operator

is responsible; or

for submitting a permit application under the

following guidelines:

(1) The regional authority together with co-

applicants shall have authority over a

storm water management program that is

in existence, or shall be in existence at the

time part 1 of the application is due;

(2) The permit applicant or co-applicants

shall establish their ability to make a time-

ly submission of part 1 and part 2 of the

municipal application;

(3) Each of the operators of municipal sepa-

rate storm sewers within the systems de-

scribed in paragraphs (b)(4)(i), (ii), and (iii)

or (b)(7)G), (ii), and (iii) of this section, that

are under the purview of the designated

regional authority, shall comply with the

application requirements of paragraph (d)

of this section.

(iv) One permit application may be submitted for

all or a portion of all municipal separate storm

sewers within adjacent or interconnected large or

medium municipal separate storm sewer systems.

The Director may issue one system-wide permit

covering all, or a portion of all municipal separate

storm sewers in adjacent or interconnected large

or medium municipal separate storm sewer sys-

tems.

x«ek

(6) Non-municipal separate storm sewers. For

storm water discharges associated with industrial

activity from point sources which discharge

through a non-municipal or non-publicly owned

separate storm sewer system, the Director, in his

discretion, may issue: a single NPDES permit,

with each discharger a co-permittee to a permit

issued to the operator of the portion of the system

that discharges into waters of the United States;

or, individual permits to each discharger of storm

water associated with industrial activity through

the non-municipal conveyance system.

Gi) All storm water discharges associated with in-

dustrial activity that discharge through a storm

water discharge system that is not a municipal

separate storm sewer must be covered by an indi-

vidual permit, or a permit issued to the operator

of the portion of the system that discharges to wa-

ters of the United States, with each discharger to

the non-municipal conveyance a co-permittee to

that permit.

(ii) Where there is more than one operator of a

single system of such conveyances, all operators

of storm water discharges associated with indus-

trial activity must submit applications.

(iii) Any permit covering more than one operator

shall identify the effluent limitations, or other

permit conditions, if any, that apply to each oper-

ator.

x«*«*

(9)G) On and after October 1, 1994, for discharges

composed entirely of storm water, that are not re-

quired by paragraph (a)(1) of this section to ob-

tain a permit, operators shall be required to ob-

tain a NPDES permit only if:

(A) The discharge is from a small MS4 re-

quired to be regulated pursuant to § 122.32;

(B) The discharge is a storm water discharge

associated with small construction activity

pursuant to paragraph (b)(15) of this section;

NPDES programs either the Director or the

EPA Regional Administrator, determines that

storm water controls are needed for the dis-

charge based on wasteload allocations that are

part of “total maximum daily loads” (TMDLs)

that address the pollutant(s) of concern; or

(D) The Director, or in States with approved

NPDES programs either the Director or the

EPA Regional Administrator, determines that

the discharge, or category of discharges within

a geographic area, contributes to a violation of

a water quality standard or is a significant

contributor of pollutants to waters of the Unit-

ed States.

(ii) Operators of small MS4s designated pursuant

to paragraphs (a)(9)(i)(A), (a)(9)G@)(C), and

(a)(9)G)(D) of this section shall seek coverage un-

der an NPDES permit in accordance with §§

122.33 through 122.35. Operators of non-

municipal sources designated pursuant to para-

graphs (a)(9)()(B), (a)(9)(@(C), and (a)(9)G)(D) of

this section shall seek coverage under an NPDES

permit in accordance with paragraph (c)(1) of this

section.

ii) Operators of storm water discharges desig-

nated pursuant to paragraphs (a)(9)G@)(C) and

(a)(9)(i)(D) of this section shall apply to the Direc-

tor for a permit within 180 days of receipt of no-

tice, unless permission for a later date is granted

by the Director (see § 124.52(c) of this chapter).

(b) Definitions.

(8) Municipal separate storm sewer means a con-

veyance or system of conveyances (including

roads with drainage systems, municipal streets,

catch basins, curbs, gutters, ditches, man-made

channels, or storm drains):

(i) Owned or operated by a State, city, town, bo-

rough, county, parish, district, association, or oth-

er public body (created by or pursuant to State

law) having jurisdiction over disposal of sewage,

industrial wastes, storm water, or other wastes,

including special districts under State law such

as a sewer district, flood control district or drai-

nage district, or similar entity, or an Indian tribe

or an authorized Indian tribal organization, or a

designated and approved management agency

under section 208 of the CWA that discharges to

waters of the United States;

(ii) Designed or used for collecting or conveying

storm water;

(i111) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treat-

ment Works (POTW) as defined at 40 CFR 122.2.

(9) Outfall means a point source as defined by 40

CFR 122.2 at the point where a municipal sepa-

rate storm sewer discharges to waters of the

United States and does not include open con-

veyances connecting two municipal separate

storm sewers, or pipes, tunnels or other con-

veyances which connect segments of the same

stream or other waters of the United States and

are used to convey waters of the United States.

x**««*

(13) Storm water means storm water runoff, snow

melt runoff, and surface runoff and drainage.

(14) Storm water discharge associated with indus-

trial activity means the discharge from any con-

veyance that is used for collecting and conveying

storm water and that is directly related to manu-

facturing, processing or raw materials storage

areas at an industrial plant. The term does not

include discharges from facilities or activities ex-

cluded 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 discharges from industrial plant

yards; immediate access roads and rail lines used

or traveled by carriers of raw materials, manufac-

tured products, waste material, or by-products

used or created by the facility; material handling

sites; refuse sites; sites used for the application or

disposal of process waste waters (as defined at

part 401 of this chapter); sites used for the sto-

rage and maintenance of material handling

equipment; sites used for residual treatment, sto-

rage, or disposal; shipping and receiving areas;

manufacturing buildings; storage areas (including

tank farms) for raw materials, and intermediate

and final products; and areas where industrial ac-

tivity has taken place in the past and significant

materials remain and are exposed to storm water.

For the purposes of this paragraph, material

handling activities include storage, loading and

unloading, transportation, or conveyance of any

raw material, intermediate product, final product,

by-product or waste product. The term excludes

areas located on plant lands separate from the

plant's industrial activities, such as office build-

ings and accompanying parking lots as long as

the drainage from the excluded areas is not mixed

with storm water drained from the above de-

scribed areas. Industrial facilities (including in-

dustrial facilities that are federally, State, or mu-

nicipally owned or operated that meet the de-

scription of the facilities listed in paragraphs

(b)(14)(i) through (xi) of this section) include those

facilities designated under the provisions of para-

graph (a)(1)(v) of this section. The following cate-

gories of facilities are considered to be engaging

100

in “industrial activity” for purposes of paragraph

(b)(14):

(i) Facilities subject to storm water effluent limi-

tations guidelines, new source performance stan-

dards, or toxic pollutant effluent standards under

40 CFR subchapter N (except facilities with toxic

pollutant effluent standards which are exempted

under category (xi) in paragraph (b)(14) of this

section);

(ii) Facilities classified as Standard Industrial

Classifications 24 (except 2434), 26 (except 265

and 267), 28 (except 283), 29, 311, 32 (except 323),

33, 3441, 373;

(iii) Facilities classified as Standard Industrial

Classifications 10 through 14 (mineral industry)

including active or inactive mining operations

(except for areas of coal mining operations no

longer meeting the definition of a reclamation

area under 40 CFR 434.11(1) because the perfor-

mance bond issued to the facility by the appropri-

ate SMCRA authority has been released, or ex-

cept for areas of non-coal mining operations

which have been released from applicable State or

Federal reclamation requirements after Decem-

ber 17, 1990) and oil and gas exploration, produc-

tion, processing, or treatment operations, or

transmission facilities that discharge storm water

contaminated by contact with or that has come

into contact with, any overburden, raw material,

intermediate products, finished products, bypro-

ducts or waste products located on the site of such

operations; (inactive mining operations are min-

101

ing sites that are not being actively mined, but

which have an identifiable owner/operator; inac-

tive mining sites do not include sites where min-

ing claims are being maintained prior to distur-

bances associated with the extraction, beneficia-

tion, or processing of mined materials, nor sites

where minimal activities are undertaken for the

sole purpose of maintaining a mining claim);

(iv) Hazardous waste treatment, storage, or dis-

posal facilities, including those that are operating

under interim status or a permit under subtitle C

of RCRA;

(v) Landfills, land application sites, and open

dumps that receive or have received any industri-

al wastes (waste that is received from any of the

facilities described under this subsection) includ-

ing those that are subject to regulation under

subtitle D of RCRA;

(vi) Facilities involved in the recycling of mate-

rials, including metal scrapyards, battery reclai-

mers, salvage yards, and automobile junkyards,

including but limited to those classified as Stan-

dard Industrial Classification 5015 and 5093;

(vii) Steam electric power generating facilities, in-

cluding coal handling sites;

(viii) Transportation facilities classified as Stan-

dard Industrial Classifications 40, 41, 42 (except

4221-25), 43, 44, 45, and 5171 which have vehicle

maintenance shops, equipment cleaning opera-

tions, or airport deicing operations. Only those

102

portions of the facility that are either involved in

vehicle maintenance (including vehicle rehabilita-

tion, mechanical repairs, painting, fueling, and

lubrication), equipment cleaning operations, air-

port deicing operations, or which are otherwise

identified under paragraphs (b)(14) (i)-(vii) or

(ix)}(xi) of this section are associated with indus-

trial activity;

(ix) Treatment works treating domestic sewage or

any other sewage sludge or wastewater treatment

device or system, used in the storage treatment,

recycling, and reclamation of municipal or domes-

tic sewage, including land dedicated to the dis-

posal of sewage sludge that are located within the

confines of the facility, with a design flow of 1.0

mgd or more, or required to have an approved

pretreatment program under 40 CFR part 403.

Not included are farm lands, domestic gardens or

lands used for sludge management where sludge

is beneficially reused and which are not physical-

ly located in the confines of the facility, or areas

that are in compliance with section 405 of the

CWA;

(x) Construction activity including clearing, grad-

ing and excavation, except operations that result

in the disturbance of less than five acres of total

land area. Construction activity also includes the

disturbance of less than five acres of total land

area that is a part of a larger common plan of de-

velopment or sale if the larger common plan will

ultimately disturb five acres or more;

103

(xi) Facilities under Standard Industrial Classifi-

cations 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283,

285, 30, 31 (except 311), 323, 34 (except 3441), 35,

36, 37 (except 373), 38, 39, and 4221—25;

x=**

40 C.F.R. § 122.27 Silvicultural activities (appli-

cable to State NPDES programs, see § 123.25).

(a) Permit requirement. Silvicultural point sources,

as defined in this section, as point sources subject to

the NPDES permit program.

(b) Definitions.

(1) Silvicultural point source means any discernible,

confined and discrete conveyance related to rock

crushing, gravel washing, log sorting, or log storage

facilities which are operated in connection with silvi-

cultural activities and from which pollutants are dis-

charged into waters of the United States. The term

does not include non-point source silvicultural activi-

ties such as nursery operations, site preparation, re-

forestation and subsequent cultural treatment, thin-

ning, prescribed burning, pest and fire control, har-

vesting operations, surface drainage, or road con-

struction and maintenance from which there is

natural runoff. However, some of these activities

(such as stream crossing for roads) may involve point

source discharges of dredged or fill material which

may require a CWA section 404 permit (See 33 CFR

209.120 and Part 233).

104

(2) Rock crushing and gravel washing facilities

means facilities which process crushed and broken

stone, gravel, and riprap (See 40 CFR Part 436, Sub-

part B, including the effluent limitations guidelines).

(3) Log sorting and log storage facilities means facili-

ties whose discharges result from the holding of un-

processed wood, for example, logs or roundwood with

bark or after removal of bark held in self-contained

bodies of water (mill ponds or log ponds) or stored on

land where water is applied intentionally on the logs

(wet decking). (See 40 CFR Part 429, Subpart I, in-

cluding the effluent limitations guidelines).

40 C.F.R. § 122.28 General permits (applicable

to State NPDES programs, see § 123.25).

(a) Coverage. The Director may issue a general per-

mit in accordance with the following:

(1) Area. The general permit shall be written to

cover one or more categories or subcategories of

discharges or sludge use or disposal practices or

. facilities described in the permit under paragraph

(a)(2)(ii) of this section, except those covered by

individual permits, within a geographic area. The

area should correspond to existing geographic or

political boundaries such as:

(i) Designated planning areas under sections 208

and 303 of CWA;

(ii) Sewer districts or sewer authorities;

105

(iii) City, county, or State political boundaries;

(iv) State highway systems;

(v) Standard metropolitan statistical areas as de-

fined by the Office of Management and Budget;

(vi) Urbanized areas as designated by the Bureau

of the Census according to criteria in 30 FR 15202

(May 1, 1974); or

(vii) Any other appropriate division or combina-

tion of boundaries.

(2) Sources. The general permit may be written to

regulate one or more categories or subcategories

of discharges or sludge use or disposal practices

or facilities, within the area described in para-

graph (a)(1) of this section, where the sources

within a covered subcategory of discharges are ei-

ther:

(i) Storm water point sources; or

(ii) One or more categories or subcategories of

point sources other than storm water point

sources, Or one or more categories or subcatego-

ries of “treatment works treating domestic se-

wage”, if the sources or “treatment works treating

domestic sewage” within each category or subca-

tegory all:

(A) Involve the same or substantially similar

types of operations;

106

(B) Discharge the same types of wastes or en-

gage in the same types of sludge use or dis-

posal practices;

erating conditions, or standards for sewage

sludge use or disposal;

(D) Require the same or similar monitoring;

and

(E) In the opinion of the Director, are more

appropriately controlled under a general per-

mit than under individual permits.

x**

107

OREGON STATUTES AND RULES

Or. Rev. Stat. § 527.765. Best management prac-

tices for maintenance of water quality

(1) The State Board of Forestry shall establish best

management practices and other rules applying to

forest practices as necessary to insure that to the

maximum extent practicable nonpoint source dis-

charges of pollutants resulting from forest operations

on forestlands do not impair the achievement and

maintenance of water quality standards established

by the Environmental Quality Commission for the

waters of the state. Such best management practices

shall consist of forest practices rules adopted to pre-

vent or reduce pollution of waters of the state. Fac-

tors to be considered by the board in establishing

best management practices shall include, where ap-

plicable, but not be limited to:

(a) Beneficial uses of waters potentially impacted;

(b) The effects of past forest practices on beneficial

uses of water;

managers;

(d) Technical, economic and institutional feasibility;

and

(e) Natural variations in geomorphology and hy-

drology.

(2) The board shall consult with the Environmental

108

Quality Commission in adoption and review of best

management practices and other rules to address

nonpoint source discharges of pollutants resulting

from forest operations on forestlands.

(3)(a) Notwithstanding ORS 183.310 (8), upon writ-

ten petition for rulemaking under ORS 183.390 of

any interested person or agency, the board shall re-

view the best management practices adopted pur-

suant to this section. In addition to all other re-

quirements of law, the petition must allege with rea-

sonable specificity that nonpoint source discharges of

pollutants resulting from forest operations being

conducted in accordance with the best management

practices are a significant contributor to violations of

such standards.

(b) Except as provided in paragraph (c) of this sub-

section, if the board determines that forest opera-

tions being conducted in accordance with the best

management practices are neither significantly re-

sponsible for particular water quality standards not

being met nor are a significant contributor to viola-

tions of such standards, the board shall issue an

order dismissing the petition.

practices is made by the Environmental Quality

Commission, the board shall not terminate the re-

view without the concurrence of the commission,

unless the board commences rulemaking in accor-

dance with paragraph (e) of this subsection.

(d) If a petition for review is dismissed, upon con-

clusion of the review, the board shall issue an order

109

that includes findings regarding specific allegations

in the petition and shall state the board's reasons

for any conclusions to the contrary.

(e) If, pursuant to review, the board determines

that best management practices should be re-

viewed, the board shall commence rulemaking pro-

ceedings for that purpose. Rules specifying the re-

vised best management practices must be adopted

not later than two years from the filing date of the

petition for review unless the board, with concur-

rence of the Environmental Quality Commission,

finds that special circumstances require additional

time.

(f) Notwithstanding the time limitation established

in paragraph (e) of this subsection, at the request of

the Environmental Quality Commission, the board

shall take action as quickly as practicable to pre-

vent significant damage to beneficial uses identi-

fied by the commission while the board is revising

its best management practices and rules as pro-

vided for in this section.

Or. Admin. R. 629-625-0000 Purpose

(1) Forest roads are essential to forest management

and contribute to providing jobs, products, tax base

and other social and economic benefits.

(2) OAR 629-625-0000 through 629-625-0650 shall be

known as the road construction and maintenance

rules.

(3) The purpose of the road construction and main-

110

tenance rules is to establish standards for locating,

designing, constructing and maintaining efficient

and beneficial forest roads; locating and operating

rock pits and quarries; and vacating roads, rock pits,

and quarries that are no longer needed; in manners

that provide the maximum practical protection to

maintain forest productivity, water quality, and fish

and wildlife habitat.

(4) The road construction and maintenance rules

shall apply to all forest practices regions unless oth-

erwise indicated.

Or. Admin. R. 629-625-0100 Written Plans for

Road Construction

(1) A properly located, designed, and constructed

road greatly reduces potential impacts to water qual-

ity, forest productivity, fish, and wildlife habitat. To

prevent improperly located, designed, or constructed

roads, a written plan is required in the sections

listed below.

(2) In addition to the requirements of the water pro-

tection rules, operators must submit a written plan

to the State Forester before:

(a) Constructing a road where there is an appar-

ent risk of road-generated materials entering wa-

ters of the state from direct placement, rolling,

falling, blasting, landslide or debris flow;

(b) Conducting machine activity in Type F or

Type D streams, lakes or significant wetlands; or

111

areas.

(3) Operators shall submit a written plan to the

State Forester before constructing roads on high

landslide hazard locations. Operators and the State

Forester shall share responsibility to identify high

landslide hazard locations and to determine if there

is public safety exposure from shallow, rapidly mov-

ing landslides using methods described in OAR 629-

623-0000 through 0300. If there is public safety ex-

posure, then the practices described in 629-623-0400

through 0800 shall also apply.

(4) In addition to the requirements of the water pro-

tection rules, operators shall submit a written plan

to the State Forester before placing woody debris or

boulders in stream channels for stream enhance-

ment.

Or. Admin. R. 629-625-0200 Road Location

(1) The purpose of this rule is to ensure roads are lo-

cated where potential impacts to waters of the state

are minimized.

(2) When locating roads, operators shall designate

road locations which minimize the risk of materials

entering waters of the state and minimize distur-

bance to channels, lakes, wetlands and floodplains.

(3) Operators shall avoid locating roads on steep

slopes, slide areas, high landslide hazard locations,

and in wetlands, riparian management areas, chan-

nels or floodplains where viable alternatives exist.

112

(4) Operators shall minimize the number of stream

crossings.

(5) To reduce the duplication of road systems and as-

sociated ground disturbance, operators shall make

use of existing roads where practical. Where roads

traverse land in another ownership and will ade-

quately serve the operation, investigate options for

using those roads before constructing new roads.

Or. Admin. R. 629-625-0300 Road Design

(1) The purpose of OARs 629-625-0300 through 629-

625-0340 is to provide design specifications for forest

roads that protect water quality.

(2) Operators shall design and construct roads to lim-

it the alteration of natural slopes and drainage pat-

terns to that which will safely accommodate the an-

ticipated use of the road and will also protect waters

of the state.

Or. Admin. R. 629-625-0310 Road Prism

(1) Operators shall use variable grades and align-

ments to avoid less suitable terrain so that the road

prism is the least disturbing to protected resources,

avoids steep sidehill areas, wet areas and potentially

unstable areas as safe, effective vehicle use require-

ments allow.

(2) Operators shall end-haul excess material from

steep slopes or high landslide hazard locations where

needed to prevent landslides.

113

(3) Operators shall design roads no wider than ne-

cessary to accommodate the anticipated use.

(4) Operators shall design cut and fill slopes to mi-

nimize the risk of landslides.

(5) Operators shall stabilize road fills as needed to

prevent fill failure and subsequent damage to waters

of the state using compaction, buttressing, subsur-

face drainage, rock facing or other effective means.

Or. Admin. R. 629-625-0320 Stream Crossing

Structures

(1) Operators shall design and construct stream

crossing structures (culverts, bridges and fords) to:

(a) Minimize excavation of side slopes near the

channel.

(b) Minimize the volume of material in the fill.

(A) Minimizing fill material is accomplished by

restricting the width and height of the fill to the

amount needed for safe use of the road by ve-

hicles, and by providing adequate cover over the

culvert or other drainage structure.

(B) Fills over 15 feet deep contain a large volume

of material that can be a considerable risk to

downstream beneficial uses if the material moves

downstream by water. Consequently, for any fill

over 15 feet deep operators shall submit to the

State Forester a written plan that describes the

114

fill and drainage structure design. Written plans

shall include a design that minimizes the likelih-

ood of:

(i) Surface erosion;

(ii) Embankment failure; and

(iii) Downstream movement of fill material.

(2) Operators shall design and construct stream

crossings (culverts, bridges, and fords) to:

(a) Pass a peak flow that at least corresponds to

the 50-year return interval. When determining

the size of culvert needed to pass a peak flow cor-

responding to the 50-year return interval, opera-

tors shall select a size that is adequate to prec-

lude ponding of water higher than the top of the

culvert; and

(b) Allow migration of adult and juvenile fish up-

stream and downstream during conditions when

fish movement in that stream normally occurs.

(3) An exception to the requirements in subsection

(2)(a) of this rule is allowed to reduce the height of

fills where roads cross wide flood plains. Such an ex-

ception shall be allowed if the operator obtains ap-

proval of a plan for an alternate practice. The State

Forester will approve such a plan when the plan de-

monstrates:

115

(a) The stream crossing site includes a wide flood

plain; and

(b) The stream crossing structure matches the

size of the active channel and is covered by the

minimum fill necessary to protect the structure;

in the flood plain; and

(d) The downstream edge of all fill is armored

with rock of sufficient size and depth to protect

the fill from eroding when a flood flow occurs.

Or. Admin. R. 629-625-0330 Drainage

(1) The purpose of this rule is to provide a drainage

system on new and reconstructed roads that mini-

mizes alteration of stream channels and the risk of

sediment delivery to waters of the state. Drainage

structures should be located based on the priority

listed below. When there is a conflict between the re-

quirements of sections (2) through (6) of this rule, the

lowest numbered section takes precedence, and the

later-numbered and conflicting section shall not be

implemented.

(2) Operators shall not concentrate road drainage

water into headwalls, slide areas, high landslide ha-

zard locations, or steep erodible fillslopes.

(3) Operators shall not divert water from stream

channels into roadside ditches.

(4) Operators shall install dips, water bars, or cross

116

drainage culverts above and away from stream cross-

ings so that road drainage water may be filtered be-

fore entering waters of the state.

(5) Operators shall provide drainage when roads

cross or expose springs, seeps, or wet areas.

(6) Operators shall provide a drainage system using

grade reversals, surface sloping, ditches, culverts

and/or waterbars as necessary to minimize develop-

ment of gully erosion of the road prism or slopes be-

low the road.

Or. Admin. R. 629-625-0430 Stream Protection

(1) When constructing stream crossings, operators

shall minimize disturbance to banks, existing chan-

nels, and riparian management areas.

(2) In addition to the requirements of the water pro-

tection rules, operators shall keep machine activity

in beds of streams to an absolute minimum. Accepta-

ble activities where machines are allowed in stream-

beds, such as installing culverts, shall be restricted

to periods of low water levels. Operators shall submit

a written plan to the State Forester for machine ac-

tivity in Type F or Type D streams, lakes, and signif-

icant wetlands.

(3) For all roads constructed or reconstructed opera-

tors shall install water crossing structures where

needed to maintain the flow of water and passage of

adult and juvenile fish between side channels or wet-

lands and main channels.

117

(4) Operators shall leave or re-establish areas of ve-

getation between roads and waters of the state to

protect water quality.

(5) Operators shall remove temporary stream cross-

ing structures promptly after use, and shall con-

struct effective sediment barriers at approaches to

channels.

Or. Admin. R. 629-625-0600 Road Maintenance

(1) The purpose of this rule is to protect water quali-

ty by timely maintenance of all active and inactive

roads.

(2) Operators shall maintain active and inactive

roads in a manner sufficient both to provide a stable

surface and to keep the drainage system operating as

necessary to protect water quality.

(3) Operators shall inspect and maintain culvert in-

lets and outlets, drainage structures and ditches be-

fore and during the rainy season as necessary to di-

minish the likelihood of clogging and the possibility

of washouts.

(4) Operators shall provide effective road surface

drainage, such as water barring, surface crowning,

constructing sediment barriers, or outsloping prior to

the rainy and runoff seasons.

(5) When applying road oil or other surface stabiliz-

ing materials, operators shall plan and conduct the

operation in a manner as to prevent entry of these

materials into waters of the state.

118

(6) In the Northwest and Southwest Oregon Regions,

operators shall maintain and repair active and inac-

tive roads as needed to minimize damage to waters

of the state. This may include maintenance and re-

pair of all portions of the road prism during and after

intense winter storms, as safety, weather, soil mois-

ture and other considerations permit.

(7) Operators shall place material removed from

ditches in a stable location.

(8) In order to maintain fish passage through water

crossing structures, operators shall:

(a) Maintain conditions at the structures so that

passage of adult and juvenile fish is not impaired

during periods when fish movement normally oc-

curs. This standard is required only for roads con-

structed or reconstructed after September 1994,

but is encouraged for all other roads; and

(b) As reasonably practicable, keep structures

cleared of woody debris and deposits of sediment

that would impair fish passage.

thority of ORS 498.268 and 509.605 that are ad-

ministered by other state agencies may be appli-

cable to water crossing structures, including those

constructed before September 1, 1994.

(9) Where needed to protect water quality, as di-

rected by the State Forester, operators shall place

additional cross drainage structures on existing ac-

119

tive roads within their ownership prior to hauling to

meet the requirements of OAR 629-625-0330.

Or. Admin. R. 629-625-0700 Wet Weather Road

Use

(1) The purpose of this rule is to reduce delivery of

fine sediment to streams cause by the use of forest

roads during wet periods that may adversely affect

downstream water quality in Type F or Type D

streams.

(2) Operators shall use durable surfacing or other ef-

fect

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.