# Joint Appendix — Decker v. Northwest Environmental Defense Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2013 - **Citation:** 568 U.S. 1118 ## 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 i 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 3s 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 1 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 21 22 44 45 46 47 50 51 DATE 11/03/2006 11/03/2006 11/03/2006 11/03/2006 11/03/2006 12/06/2006 12/06/2006 12/06/2006 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. 52 53 54 66 67 68 72 DATE 12/22/2006 01/10/2007 01/10/2007 03/01/2007 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 4 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 5 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, 26 40 43 44 42 46 57 58 59 DATE 09/24/2007 11/09/2007 11/09/2007 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. 68 69 73 88 89 94 95 98 99 DATE 11/19/2008 11/24/2008 08/17/2010 10/05/2010 10/05/2010 10/15/2010 10/15/2010 10/15/2010 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 9 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. 10 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 1l 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 12 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 13 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 14 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 15 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 16 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 MS4 NPDES SIC code 17 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 more 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 18 Small MS4 #£=Municipal separate storm sewer sys- tems serving under 100,000 19 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 20 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. 21 § 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. 22 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 23 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). 24 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- 25 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. 26 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 27 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 28 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 29 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 30 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- 31 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- 32 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. 33 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- 34 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- 35 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. 36 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.) 37 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 38 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 39 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- 40 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. 41 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 42 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. 43 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 44 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 45 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.] 46 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 v. 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 47 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 48 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 49 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 51 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 52 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- 53 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. 54 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 55 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.” 56 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. 57 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 58 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). 59 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. 60 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. 61 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.] 62 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. 63 (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. 64 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. 65 (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 66 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 67 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*** (c) Review; revised standards; publication 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. 68 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, 69 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; (C) all construction activity, including runoff from 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. 70 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. 71 (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 72 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. 73 (B) A discharge associated with industrial activi- ty. (C) A discharge from a municipal separate storm 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; 74 (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 75 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 (C) establishing procedures and methods to con- 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). 76 (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. 77 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 78 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; 79 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 80 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. 81 (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. 82 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 83 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. (c) Venue; intervention by Administrator; Unit- 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 84 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 85 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: 86 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, 87 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=* & 88 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 89 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*** 90 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 indus [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A14. Public record. Not legal advice.