Petitioners Brief — Decker v. Northwest Environmental Defense Center

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Suprana Court, US

FILED

EFS AUS 28 2012

No. 11-347 OFFICE OF THE CLEPK

In the Supreme Court of the Anited States

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

INC., STIMSON LUMBER CO., SWANSON GROUP, INC.,

AMERICAN FOREST & PAPER ASSOCIATION, OREGON

FOREST INDUSTRIES COUNCIL, & TTILLAMOOK COUNTY,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR PETITIONERS

MICHAEL B. KIMBERLY TIMOTHY S. BISHOP

Mayer Brown LLP Counsel of Record

1999 K St., NW JEFFREY W. SARLES

Washington, DC 20006 RICHARD BULGER

(202) 263-3000 CHAD CLAMAGE

Mayer Brown LLP

PER A. RAMFJORD 71 South Wacker Dr.

LEONARD J. FELDMAN Chicago, IL 60606

JASON T. MORGAN (312) 782-0600

Stoel Rives LLP tbishop@mayerbrown.com

900 SW 5th Ave., Ste. 2600

Portland, OR 97204

(503) 224-3380

Additional counsel listed on signature page

— +" Par eenc:

QUESTION PRESENTED

Whether the Ninth Circuit should have deferred

to EPA’s long-standing position that channeled run-

off from forest roads does not require a permit, and

erred when it mandated that EPA regulate such run-

off as industrial stormwater subject to NPDES.

‘i

RULES 24.1 AND 29.6 STATEMENT

Defendants-appellees below and petitioners here

are Georgia-Pacific West LLC, Hampton Tree Farms,

Inc., Stimson Lumber Company, and Swanson

Group, Inc. Intervenor defendants-appeliees below

and petitioners here are American Forest & Paper

Association, Oregon Forest Industries Council, and

Tillamook County, Oregon.

Additional defendants-appellees below, petition-

ers in No. 11-338, are the Oregon State Forester and

members of the Oregon Board of Forestry, in their

official capacities.

Petitioner Georgia-Pacific West LLC (formerly

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

limited liability company, the sole member of which

is Georgia-Pacific LLC, a privately held Delaware

limited liability company. The ultimate, indirect par-

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

No publicly held company owns 10 percent or more of

the membership interests or stock of Georgia-Pacific

LLC or Koch Industries, Inc., respectively.

Petitioner Hampton Tree Farms, Inc. is a family

owned corporation, the parent of which is Hampton

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

publicly held company owns 10 percent or more of

the stock of Hampton Resources, Inc.

Petitioner Stimson Lumber Company is a family

owned corporation organized under the laws of Ore-

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

company owns 10 percent or more of its stock.

Petitioner Swanson Group, Inc. is a family owned

corporation organized under the laws of Oregon. No

publicly held company owns 10 percent or more of its

stock.

Petitioner American Forest & Paper Association

is the national trade association of the forest prod-

ucts industry, representing pulp, paper, packaging

and wood products manufacturers, and forest land-

owners. No parent corporation or publicly held com-

pany has a 10 percent or greater ownership interest

in American Forest & Paper Association.

Petitioner Oregon Forest Industries Council is a

mutual benefit corporation organized under the laws

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

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

ly held company owns a 10 percent or greater inter-

est in Oregon Forest Industries Council.

Petitioner Tillamook County is a governmental

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

proximately 25,000 persons. About 44 percent of the

land within the county’s borders is State owned,

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

cent of the County is classified as forest land.

TABLE OF CONTENTS

Page

QUESTION PRESENTED....................cccccseccssccccsseeses i

RULES 24.1 AND 29.6 STATEMENT ...................... ii

I i a 1

i lilac 1

STATUTORY AND REGULATORY

PROVISIONS INVOLVED ....000000....22...0ccceeccceeeeeeeeeeees 1

TE EE TE See OE TEE EES 1

Tig iit lane acecnand hil 3

B. The Federal Statutory Context........................ 4

C. EPA’s Silvicultural Rule...........................0020000 6

D. EPA’s Stormwater Regulations........................ 9

E. Oregon’s Regulation Of Forest Roads............ 12

re NI i tcacinendiniennaeniinsinninaninichieindh 13

SUMMARY OF ARGUMENT.....00000....0.....cc cece eeeees 15

EE aiid caieilnaenbihiiiicineliiataidntciisicassidenctiminsacnoendions 18

I. THE NINTH CIRCUIT ERRED IN

SECOND-GUESSING EPA’S LONG-

SETTLED INTERPRETATIONS OF THE

CWA AND ITS IMPLEMENTING

a icienssinidionesiteascmsinidiannntessnmnenicancenneeres 18

A. EPA’s Determination That Channeled

Forest Road Runoff Is Nonpoint Source

Is Entitled To Deference..........................0e000e- 19

1. Congress left a gap for EPA to fill

concerning the definition of

silvicultural point source discharges. ....... 19

2. The Silvicultural Rule is a

reasonable interpretation of the

CWA to which deference is

EE AE Se 29

TABLE OF CONTENTS—continued

Page

3. EPA’s interpretation of the

Silvicultural Rule also is entitled to

EERE TE ER A Pater nee ate ee a 33

B. The Ninth Circuit Erred In Holding

That Channeled Silvicultural Runoff Is

“Associated With Industrial Activities”

Within The Meaning Of EPA’s

Stormwater Regulation. ..........................00000 37

1. Discharges “associated with

industrial activities” do not include

runoff from forest roads. .................0......0+- 37

2. EPA’s interpretation of its own

regulation is entitled to substantial

PII siicsinieeetnhieshicitisrinibitineicidnintpenicanennent 4l

C. As EPA Determined, Forest Road

Runoff Is Better Addressed With Best

Management Practices Than NPDES

REE REESE i SP a nT a 43

Il. THE COURTS LACK SUBJECT MATTER

JURISDICTION OVER THIS SUIT. .................. 50

A. Courts Have No Authority To Invalidate

The Silvicultural Rule Unless CWA

Jurisdictional Requirements Are

SIE ciscsilscipiaistinnadehiininiaditnienitihtngiiddinnnedacinencitionel 50

B. The Ninth Circuit Erred In

Undertaking Judicial Review Of EPA’s

C. The Statutory Exception For Grounds

Arising After The Filing Deadline Is

SITTIN: asicedbscaisnianinlistdldinaetddeicienbdhendiaibaneadianiens 55

TABLE OF CONTENTS—continued

Page

D. The Ruling Below Undermines The

Purposes Of The CWA’s Jurisdictional

BE ITIIN sinipsacensnmninnsenedurebsnemsonidwonsensonnnene 57

IT cececesenecessesnssssseniwessecesenseeneneenenvnenesssvans 58

TABLE OF AUTHORITIES

Page(s)

CASES

Adamo Wrecking Co. v. United States,

I aici 57

American Road & Transp. Builders Ass'n v.

EPA, 588 F.3d 1109 (D.C. Cir. 2009)................ 56

Arkansas v. Oklahoma, 503 U.S. 91 (1992)............. 4

Atl. States Legal Found., Inc. v. EPA,

$25 F.3d 261 (D.C. Cir. 2008) ..........ccccccceseceeees. 56

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

Barnhart v. Walton, 535 U.S. 212 (2002).............. 30

Bowles v. Seminole Rock & Sand Co.,

I os eetaiindsiaie 35

Catskill Mountains Chapter of Trout

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

Supp. 2d 41 (N.D.N.Y. 2003), affd in

relevant part, 451 F.3d 77 (2d Cir. 2006)......... 45

Chamber of Commerce of United States v.

EPA, 642 F.3d 192 (D.C. Cir. 2011).................. 55

Chase Bank USA, N.A. v. McCoy,

In led 35, 36

Chem. Mfrs. Ass'n v. NRDC, Inc.,

470 U.S. 116 (1985)................... 20, 25, 28, 29, 31

TABLE OF AUTHORITIES—continued

Page(s)

Chevron U.S.A., Inc. v. NRDC, Inc.,

Se le Se Gi nasetictinanciscsaccnesecee 3, 15, 19, 30

Chickasaw Nation v. United States,

es iar ciachithisinndimeneideiiininiinincien 20

Christopher v. SmithKline Beecham Corp.,

ae a: SI ica aisniccuestinctancininitiiaipeiaiiel 35, 36

Clean Air Implementation Project v.

EPA, 150 F.3d 1200 (D.C. Cir. 1998)................ 56

Coal. for Responsible Regulation, Inc. v. EPA,

684 F.3d 102 (D.C. Cir. 2012)..................4.. 55, 56

Conn. Natl Bank v. Germain, 503 U.S. 249

ET SRST Hee Ree Nae ei aa NTR REOPEN 41

E.I. du Pont de Nemours & Co. v. Train,

ee cccstininctesiniseniescinnanaliininineiinnanianniie 51

Ecological Rights Found. v. Pac. Lumber Co.,

230 F.3d 1141 (9th Cir. 2000)...................0ecce0es 47

Environmental Def. v. Duke Energy Corp.,

ee eT cicctinindedstchdniadoninaiesinnnsnuannen 52

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

ERI ane eae nE me mee em mn 11

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

a ne: CI isnincndictciccnebiinepebeiaitiininiionenitia 25

TABLE OF AUTHORITIES—continued

Page(s)

FDA v. Brown & Williamson Tobacco Corp.,

eS issicsisencaninsstepnntscmntintiinsniniciipinin 25

Henderson v. Shinseki, 131 S. Ct. 1197 (2011) ..... 52

Humane Soc. of United States v. HVFG, LLC,

2010 WL 3322512 (S.D.N.Y. Aug. 19, 2010).... 48

K Mart Corp. v. Cartier, Inc.,

I i csrninieantninnninaiiie 20

Kennedy v. Plan Adm’r for DuPont Sav.

& Inv. Plan, 555 U.S. 285 (2009)................ 35, 36

League of Wilderness Defenders v. Forsgren,

309 F.3d 1181 (9th Cir. 2002)......................c000 21

Long Island Care at Home, Ltd. v. Coke,

ERE En Ree a 35

Mayo Found. for Med. Educ. & Research v.

United States, 131 S. Ct. 704 (2011) .......... 24, 29

Med. Waste Inst. v. EPA, 645 F.3d 420

ST SL See eC OE ane 52

Nat'l Ass'n of Homebuilders v. Defenders of

Wildlife, 551 U.S. 644 (2007).............cccceeeceeeeees 30

Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156

I 21

TABLE OF AUTHORITIES—continued

Page(s)

Newton County Wildlife Ass’n v. Rogers,

141 F.3d 803 (8th Cir. 1998).........................060 34

NLRB v. Bell Aerospace Co., 416 U.S. 267

ak od eaicheiaainiads 31, 32

NRDC vy. Costle, 568 F.2d 1369

I el 5, 21

NRDC v. EPA, 966 F.2d 1292

I a geinieeiiien 10

NRDC vy. Sw. Marine, Inc., 236 F.3d 985

I a cecil 47

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

1975), aff'd sub nom. NRDC v. Costle,

568 F.2d 1369 (D.C. Cir. 1977).............c0.c000 7,21

Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011) ...... 35

Rapanos v. United States,

taille 27, 45

RSR Corp. v. EPA, 102 F.3d 1266

(D.C. Cir. 1997) ........... ee ae eT 57

S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,

I i niaiain 4

S.F. BayKeeper, Inc. v. Tosco Corp.,

309 F.3d 1153 (9th Cir. 2002).....................00000 47

TABLE OF AUTHORITIES—continued

Page(s)

Sackett v. EPA, 132 S. Ct. 1367 (2012).................. 44

Shanty Town Assocs. Ltd. P’ship v. EPA,

843 F.2d 782 (4th Cir. 1988)...................cccecceee 31

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Eng’rs,

fT LT RR 4

Talk Am., Inc. v. Mich. Bell Tel. Co.,

Be es ls SE icc cicnnccniniinitatiadneddneeis 35, 36

Thomas Jefferson Univ. v. Shalala,

Re Ce Se Oe ciictncssevessnvnstctenssimsersintins 35, 43

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

United States v. Ron Pair Enters., Inc.,

SE 20

Waterkeeper Alliance, Inc. v. EPA,

380 F.3d 486 (2d Cir. 2006) ..........00.0..00.0c.0.00000 47

WaterKeepers N. Cal. v. AG Indus. Mfg., Inc.,

2005 WL 2001037 (E.D. Cal. Aug. 19, 2005).... 48

WaterKeepers N. Cal. v. AG Indus. Mfg., Inc.,

375 F.3d 913 (Oth Cir. BOO4)............0000.0..0........ 47

Weinberger v. Bentex Pharm., Inc.,

EAE A 44

xii

TABLE OF AUTHORITIES—continued

Page(s)

STATUTORY AND REGULATORY MATERIALS

Dy Ey Oe Pl issninsesticniiiinbiidnaseamdeiaasaie 51

OO 6 i a eteciiesnsitienscciiniamsrieaatanaaitbae ica 1

a Be ivicticicdcictciciieeieeeaneee 58

SP Se i I sctcesiiontciesncitepielaninnshasuabisiomiionsaictimebihiiea 4,27

TREE, 0 I i eiictiitininniettiie ee 6

SO TG, © I occcececeesesicnsstensirmccninnsastossiniat 12, 23

Oe 6 iinet 4, 20, 23

BU WEI. © SBI secvciestscsvssccecicensonesnenectitnmn 23

TA, 0 WI aiciccrctonecensciedinuierndnanaiaateeannes 25

GR, © I oecrcevecsmesccvniecitniinssreimtaiataniatatis 23

Fe EN Oe Se ictcntrrenicssecintiatidanipimmiamaampeaiaas 6

ee Es Be SE eininsisitescnerenisheiiudieuiintamtaahaameiaanl 6

Le Te | eRe AteN ON 5, 22, 29

See eS 1 SD tctvccescnscvssvitcbendesisainadiadadpadaeaile 45

ee ae Oe I itiivinncnnsaninsisnueddidaiunininiaaaiaianian 45

INE, 6 ID vaceecxscnceintecninivtcencteteaennn 6

TABLE OF AUTHORITIES—continued

Page(s)

SLL LE passim

Be ls OF I crcccncesvecensnsoneensones 4, 5, 21, 24, 29

SI Th ctceadinanmictiomesnenieansetorosens 3, 45, 51

Bee Ne Oe I iiciicscnssoneresevesovencecnssonseoseoens passim

ee .csduasiiennenenstnnnebien 52

TL passim

IIIT scrinriasredunsummnenevcensensensonvenese passim

TT ai iiininaindpiiiedatididuiininenesememmnnseneoines 45

es ey Be CI cececcccccevsnvescossesesccesevensees 7,8

ee Oe Be Ge i iccccccccccccosocevecescscesecscosccess 6

es EPID CET Th dnnicccnonsnccnsceseceserecssessescoesoues 26

iis ncnscsnntasensnnnseinssesesensvacsoseciones 50

38 Fed. Reg. 10960 (May 3, 1973).....................c0ee00 6

40 Fed. Reg. 56932 (Dec. 5, 1975).... 7, 19, 26, 27, 45

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

41 Fed. Reg. 24709 (June 18, 1976)................ passim

45 Fed. Reg. 33290 (May 19, 1980)..................0.. 8,9

X1V

TABLE OF AUTHORITIES—continued

Page(s)

55 Fed. Reg. 20521 (May 17, 1990).............. 9, 30, 40

55 Fed. Reg. 47990 (Nov. 16, 1990) ................ passim

60 Fed. Reg. 50834 (Sept. 29, 1995) .......... 30, 41, 42

64 Fed. Reg. 46058 (Aug. 23, 1999) .................02.... 11

64 Fed. Reg. 68722 (Dec. 8, 1999)...............:ceceeeeees 11

65 Fed. Reg. 43586 (July 13, 2000)........................ 12

73 Fed. Reg. 33697 (June 13, 2008)....................04. 23

77 Fed. Reg. 30473 (May 23, 2012)................. passim

Ss. SEs TE, Be Gre I cicctcrneiccinitcsincsccccnnivtsnnionnen 13

ee 13

Or. Admin. R. § 629-625-0000(3) ................cceeeeeeees 13

Or. Admin. R. § 629-625-0200(2) ............ cc ceeeeeeeeeee 13

Or. Admin. R. § 629-625-0300(2) ................eeeeeeeeees 13

Or. Admin. R. § 629-625-0330(1) .................::cceeeee 13

MISCELLANEOUS

Kevin Belt, Silvics & Siluiculture—The Agri-

culture of Trees, http://tinyurl.com/silvics........ 24

TABLE OF AUTHORITIES—continued

Page(s)

The Clean Water Act Handbook (Mark A.

ic sanbibiiatill 6

117 Cong. Rec. 38816 (1971).................ccesceereeees 5, 25

132 Cong. Rec. 32380 (1986) ...............ccccceeeeeeeeeeeees 33

132 Cong. Rec. 32396 (1986)..................ccssssserseseees 6

a Fe, Te i ccecccnsnsenncnnsecntansecssnnises 6

Be I, I, Fe Ca rctsctcncentennccenescntonnncesens 25

EPA, NPDES Multi-Sector General Permit for

Stormwater Discharges Associated with

Industrial Activity (eff. May 27, 2009)............. 46

EPA, NPDES Permit Writers’ Manual,

www .epa.gov/npdes/pubs/pwm_2010............... 44

EPA, National Management Measures to

Control Nonpoint Source Pollution from

Forestry (May 2005), http://tiny.cc/EPA1......... 12

EPA, Storm Water Discharges Potentially

Addressed by Phase II of the NPDES

Storm Water Program (Mar. 1995)............. 10, 11

EPA, Stormwater Phase II Final Rule,

Construction Site Runoff Control,

Minimum Control Measures (revised Dec.

I cisuietichliatac dca iat i 11

xvl

TABLE OF AUTHORITIES—continued

Page(s)

EPA Office of Water, General Permit Program

ETI LR RCE BLL es CO

Florida Dep’t of Agriculture & Consumer

Services, Silviculture Best Management

Practices (rev. 2011), http://tiny.cc/Flaman.

FOREST2MARKET, INC., THE ECONOMIC IMPACT

OF PRIVATELY-OWNED FORESTS (2009) .........

Jeffrey M. Gaba, Generally Illegal: NPDES

General Permits Under the Clean Water

Act, 31 HARV. ENVTL. L. REV. 409

abe ihc cidade lanai eal ae

JOHN GIFFORD, PRACTICAL FORESTRY (1902).....

—§ 8 8 ee

George Ice, et al., Trends for Forestry Best

Management Practices Implementation,

J. FORESTRY, Sept. 2010, at 267 ...................

George Ice, History of Innovative Best

Management Practice Development and Its

Role in Addressing Water Quality Limited

Waterbodies, 130 J. ENVTL. ENG’G 684

SET icdcitniednecnbassbiahesnndinsibnltinpinaidiatdiiidteesienancasineiiiaiiibeds

Ronald M. Levin, Statutory Time Limits on

Judicial Review of Rules: Verkuil Revisited,

32 CARDOZO L. REV. 2203 (2011) ..................

xvi

TABLE OF AUTHORITIES—continued

Page(s)

John F. Manning, Constitutional Structure &

Judicial Deference to Agency Interpreta-

tions of Agency Rules, 96 COLUM. L. REV.

nici eli leniaielateeediiaiiediaianabeetindinbliieummanates 36

Minnesota Forest Resources Council, Sustain-

ing Minnesota Forest Resources (2005),

http://tinyurl.com/Minnman1........................6+ 48

Office of Management & Budget, Standard

Industrial Classification Manual (1987) ... 10, 39

Bs A Se cnc ertensnenccncennncinnimencnsonsennen 6, 33

Erik Schilling, Compendium of Forestry Best

Management Practices for Controlling

Nonpoint Source Pollution in North

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

NORMAN J. SINGER & J.D. SHAMBIE SINGER,

STATUTES AND STATUTORY CONSTRUCTION

EE en 20

Karen Solari, Forestry Best Management

Practices in Watersheds (2008),

tte ://timy .co/Golari..........ccccccscccccscccssscccsscees 12, 28

U.S. Forest Service, Implications of Decision

in NEDC v. Brown to Silvicultural

Activities on National Forest System Land,

Doc. 1570-1 (Sept. 17, 2010) ...................0eeeeeeees 44

TABLE OF AUTHORITIES—-continued

Page(s)

WEBSTER’S THIRD NEW INT’L DICTIONARY

RAUF REE te So aa Bon EE Oem 22, 39

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

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

district court (Pet. App. 48a-68a) is reported at 476

F. Supp. 2d 1188.

JURISDICTION

The judgment of the court of appeals was entered

on August 17, 2010. After the time to file was ex-

tended, petitioners filed a timely petition for rehear-

ing and rehearing en banc on October 5, 2010. The

court issued an amended opinion and denied the pe-

titions for panel and en banc rehearing on May 17,

2011. Pet. App. la. This Court granted a timely peti-

tion for certiorari on June 25, 2012. Jurisdiction

rests on 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant statutory and regulatory provisions are

reproduced at 1 Joint Appendix (“1JA”) 62-125.

STATEMENT

For more than 35 years, EPA’s Silvicultural Rule

has specified that precipitation runoff from forest

“road construction and maintenance”—which in-

cludes the ditch-and-culvert drainage systems that

are an integral part of nearly all forest roads—is

“non-point source silvicultural activity” that does not

require a Clean Water Act Section 402 permit. In-

stead, forest road runoff, whether or not collected in

ditches, has been addressed through state best man-

agement practices adapted to local conditions.

When Congress in 1987 established a new two-

phase process for regulating stormwater point source

discharges, EPA confirmed that forest road runoff is

not subject to Section 402 permitting. In promulgat-

ing Phase I regulations identifying discharges that

are “associated with industrial activity’—for which

Congress required permits—EPA provided that these

“do not include” activities covered by the Silvicultur-

al Rule. Then, when EPA considered under Phase II

whether permits should be required for additional

stormwater discharges not covered by the mandatory

Phase I program, it did not designate runoff from

forest roads in that category. Consistent with these

rules, EPA has never required CWA permits for

channeled forest road runoff.

The Ninth Circuit impermissibly rejected EPA’s

long-held position. It acknowledged that EPA in-

tended the Silvicultural Rule to define precipitation

runoff collected in ditches and culverts as nonpoint

source, but refused to defer to EPA because it incor-

rectly believed that the CWA inflexibly defines this

runoff as point source in nature.

That error by itself would not have been enough

to impose a permitting requirement. The 1987 CWA

Amendments require permits only for certain catego-

ries of point source stormwater discharges—as rele-

vant here, those “associated with industrial activity.”

But the Ninth Circuit contorted EPA’s stormwater

regulations beyond recognition, reading them to de-

fine forest road discharges as “associated with indus-

trial activities” despite EPA’s plain intent to the con-

trary.

This Court should reverse. EPA’s reasoned and

consistent position is entitled to deference. EPA’s in-

terpretation of the CWA in its silvicultural and

stormwater rules was entitled to Chevron deference.

EPA’s interpretation of its own rules was entitled to

Auer deference. The Ninth Circuit was not entitled to

substitute its own views of appropriate environmen-

tal regulation for those of Congress and EPA.

Alternatively, this Court should order this suit

dismissed for lack of subject matter jurisdiction.

Though this case masquerades as a citizen enforce-

ment suit, plaintiff sought and obtained invalidation

of key aspects of EPA’s rules. But rule challenges

must be brought against EPA in a court of appeals

within 120 days following promulgation of the rule.

33 U.S.C. § 1369(b). This is an out-of-time, filed-in-

the-wrong-court and against-the-wrong-defendant

rule challenge for which jurisdiction is lacking.

A. NEDC’s Suit.

Plaintiff NEDC brought this purported citizen

suit under CWA § 505, 33 U.S.C. § 1365, in Septem-

ber 2006. Defendants are forest products companies,

petitioners here, and the Oregon State Forester and

members of the Oregon Board of Forestry, petition-

ers in No. 11-338. American Forest & Paper Associa-

tion, Oregon Forest Industries Council, and Tilla-

mook County, also petitioners here, intervened in

support of defendants.

NEDC’s complaint (2JA 1-25) alleges that

“ditches, channels, culverts, [and] pipes” along the

Trask and Sam Downs Roads and at “hundreds of

other locations” throughout Oregon State Forests

discharge precipitation runoff into navigable waters

without a National Pollutant Discharge Elimination

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

NEDC alleges that petitioner companies use State-

owned roads for hauling timber and maintain those

roads pursuant to timber sale contracts with Ore-

gon’s Department of Forestry. Petitioners’ use of

these public roads allegedly creates sediment and

other pollutants that are carried by rain through

roadside ditches into navigable waters. Id. { 5.

Plaintiff argues that these are point source dis-

charges associated with industrial activity for which

petitioners were required to obtain permits from

Oregon’s Department of Environmental Quality, to

which EPA has delegated administration of the

NPDES program. Id. 44 32, 77. NEDC seeks injunc-

tive and declaratory relief, civil penalties, and attor-

neys fees. Id. ¢ 1.

B. The Federal Statutory Context.

In enacting the CWA, Congress created a federal-

state “partnership” “animated by a shared objective:

‘to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” Arkansas

v. Oklahoma, 503 U.S. 91, 101 (1992). Congress gave

EPA defined powers over the Sections 402 and 404

permit schemes, but also chose “to recognize, pre-

serve, and protect the primary responsibilities and

rights of States” to address pollution and “plan the

development and use” of “land and water resources.”

33 U.S.C. § 1251(b); see SWANCC v. U.S. Army

Corps of Eng’rs, 531 U.S. 159, 166-167 (2001); S.D.

Warren Co. v. Maine Bd. of Envil. Prot., 547 U.S.

370, 386 (2006).

Section 402 requires permits for “point sources”

that discharge pollutants into U.S. waters. 33 U.S.C.

§ 1342(a); see CWA § 301(a), 33 U.S.C. § 1311(a). A

“point source” is “any discernible, confined and dis-

crete conveyance,” including a “ditch, channel, tunnel

for] conduit,” from which pollutants are discharged.

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

expressly “does not include agricultural stormwater

discharges.” Jbid. Nor does it include “[nJonpoint

sources of pollutants,” such as “agricultural and sil-

vicultural activities” like “runoff from fields and crop

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

§ 1314(f)(1) & (2)(A). Congress expected EPA to fur-

ther flesh out which discharges fall into the point

and nonpoint source categories. As explained by

Senator Muskie—the “leading Congressional spon-

sor” of the Act (NRDC v. Costle, 568 F.2d 1369, 1374

(D.C. Cir. 1977)}—‘“[g]luidance with respect to the

identification of ‘point sources’ and ‘nonpoint

sources” will “be provided in regulations and guide-

lines of the Administrator.” 117 Cong. Rec. 38816

(1971).

The CWA initially did not expressly differentiate

stormwater from other potential sources of pollution.

But in 1987 Congress “fundamentally redesigned the

CWA’s approach” by creating a two-phase regime to

address stormwater discharged from point sources.

Pet. App. 35a. In Phase I, Congress required permits

for the “most significant sources of stormwater pollu-

tion” (Pet. App. 36a), including “discharge[s] asso-

ciated with industrial activity.” CWA § 402(p)(2)(B),

33 U.S.C. § 1342(p)(2)(B). In Phase II, Congress re-

quired EPA to study whether additional types of

stormwater discharge should be subject to permitting

or other regulation. CWA § 402(p)(5)-(6), 33 U.S.C.

§ 1342(p)(5)-(6). Point source stormwater discharges

not designated as requiring permits under Phase I or

II were excluded from the NPDES program.

Beyond Section 402 and the separate Section 404

permit scheme for dredged-and-fill material, Con-

gress largely left the task of addressing water pollu-

tion to the States, with federal assistance and over-

sight. See The Clean Water Act Handbook 191-220

(Mark A. Ryan ed., 2d ed. 2003). Consistent with its

purpose to preserve the “primary responsibility and

rights of States” in this area, Congress left States re-

sponsible for establishing water quality standards

and developing programs to manage nonpoint

sources of pollution. 33 U.S.C. §§ 1288, 1313(a), (d),

1329. In doing so, Congress recognized that “[bjest

management practices” (“BMPs”)—“including careful

road placement [and] culverting’—would “reducfe]

runoff’ from “silvicultural areas” and other nonpoint

sources like “streets, roads, [and] highways.” 132

Cong. Rec. 32396-32397 (1986) (statement of co-

sponsor Sen. Durenberger); see also S. Rep. No. 99-

50, at 35-36 (1985).

C. EPA’s Silvicultural Rule.

Ever since passage of the CWA—as the Ninth

Circuit acknowledged—EPA has “treatfed] all natu-

ral runoff’ from forest roads “as nonpoint pollution,

even if channeled and discharged through a discerni-

ble, confined and discrete conveyance” like a roadside

ditch or culvert. Pet. App. 22a.

1. EPA promulgated a rule in 1973 providing

that “[dJischarges of pollutants from agricultural and

silvicultural activities” generally do not require

NPDES permits. 40 C.F.R. § 125.4(j) (1975), 1JA 85.

EPA explained that “the Act and the legislative his-

tory indicate clearly that Congress regarded” such

discharges “as problems to be dealt with primarily

through the exercise of authorities concerning non-

point sources.” 38 Fed. Reg. 10960, 10961 (May 3,

1973). As EPA later summarized, permitting “was

not appropriate” for these sources because they

“present runoff-related problems not susceptible to

the conventional NPDES permit program including

effluent limitations”:

EPA’s position was and continues to be that

most rainfall runoff is more properly regu-

lated under section 208 of the [CWA], wheth-

er or not the rainfall happens to collect before

flowing into navigable waters. Agricultural

and silvicultural runoff, as well as runoff

from city streets, frequently flows into

ditches or is collected in pipes before dis-

charging into streams. EPA contends that

most of these sources are nonpoint in nature

and should not be covered by the NPDES

permit program.

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

A district court held EPA’s 1973 rule too broad

and suggested EPA use its authority to better define

nonpoint source activities that do not require per-

mits. NRDC v. Train, 396 F. Supp. 1393, 1401-1402

(D.D.C. 1975) (“Congress intended for [EPA] to de-

termine, at least in the agricultural and silvicultural

areas, which activities constitute point and nonpoint

sources”), affd sub nom. NRDC v. Costle, 568 F.2d

1369, 1382 (D.C. Cir. 1977) (“power to define point

and nonpoint sources is vested in EPA”).

2. EPA promulgated the Silvicultural Rule in

1976. The rule identified four discharges—those “re-

lated to rock crushing, gravel washing, log sorting or

log storage facilities’—as “silvicultural point

source[s].” 40 C.F.R. § 124.85 (1976), 1JA 86-87. The

rule stated in a “comment” that “silvicultural point

source” does “not include nonpoint source activities

inherent to silviculture” such as “harvesting opera-

tions,” “surface drainage,” and “road construction

and maintenance from which runoff results from

precipitation events.” Jbid. “[R]unoff from road con-

struction and maintenance for the purposes of forest

management” and “surface drainage” that “chan-

nel{s} diffuse runoff from precipitation events,” EPA

explained, “should be considered nonpoint in nature.”

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

In promulgating the Silvicultural Rule, EPA

“carefully examined the relationship between the

NPDES permit program” and “water pollution from

silvicultural activities” and “carefully considered”

numerous comments. 41 Fed. Reg. 6281, 6282 (Feb.

12, 1976); 41 Fed. Reg. 24709-24710. It concluded

“that most water pollution related to silvicultural ac-

tivities is nonpoint in nature.” Jd. at 6282. In expla-

nation, EPA observed that those discharges are “in-

duced by natural processes, including precipitation,”

are “not traceable to any discrete or identifiable facil-

ity,” and are “better controlled through the utiliza-

tion of [BMPs].” Jd. at 24710. EPA agreed with com-

mentators that “geographical, meteorological and to-

pographical variations” made “State and local regu-

lation of water pollution from silvicultural activities

*** more appropriate than Federal regulation,” con-

cluding that “the [Section] 208 process incorporating

BMPs should effectively prevent and abate” such pol-

lution. Ibid.

Accordingly, under the Silvicultural Rule, “dit-

ches, pipes and drains that serve only to channel, di-

rect, and convey nonpoint runoff from precipitation

are not meant to be subject to the § 402 permit pro-

gram,” but are regulated under Section 208 by the

States as “nonpoint in nature.” 41 Fed. Reg. 6282.

3. EPA re-promulgated the Silvicultural Rule in

1980 with “[m]inor wording changes.” 45 Fed. Reg.

33290, 33372 (May 19, 1980); 40 C.F.R. § 122.27(b),

1JA 103-104. The rule retained the four “silvicultural

point sources.” It moved the definition of “non-point

source silvicultural activities” from a comment to the

text, slightly modifying the language to provide that

nonpoint source activities include “surface drainage,

or road construction and maintenance from which

there is natural runoff.” 45 Fed. Reg. 33446-33447.

Substituting “from which there is natural runoff’

for “from which runoff results from precipitation

events” was not a substantive change. Following that

change, EPA restated its “longstanding view” that

runoff from forest roads, “although sometimes chan-

neled,” remains “non-point source in nature” because

it is “caused solely by natural processes, including

precipitation and drainage,” is “not otherwise trace-

able to any single identifiable source,” and is “best

treated by non-point source controls.” 55 Fed. Reg.

20521, 20522 (May 17, 1990) (emphasis added).

D. EPA’s Stormwater Regulations.

1. In 1990 regulations implementing Phase I of

Congress's stormwater amendments, EPA defined

“discharge associated with industrial activity” to “not

include discharges from facilities or activities ex-

cluded from the NPDES program under this part

122.” 40 C.F.R. § 122.26(b)(14). The Silvicultural

Rule, at 40 C.F.R. § 122.27, fell within the scope of

this reference. And EPA explained that it did “not in-

tend to change the scope of 40 CFR 122.27 in this

rulemaking.” 55 Fed. Reg. 47990, 48011 (Nov. 16,

1990).

The Phase I regulation otherwise defined “dis-

charge associated with industrial activity” to mean

discharges “directly related to manufacturing,

processing or raw materials storage areas at an in-

dustrial plant,” including “immediate access roads.”

40 C.F.R. § 122.26(b)(14). “[I]mmediate access roads”

are roads “exclusively or primarily dedicated for use

by the industrial facility,” not “public access roads

such as state, county, or federal roads” that “happen

to be used by the facility.” 55 Fed. Reg. 48009.

EPA’s rule also listed “categories of facilities” en-

gaged in industrial activity, using as shorthand the

federal government’s Standard Industrial Classifica-

tions, and including facilities “classified as Standard

Industrial Classification 24.” 40 C.F.R. § 122.26(b)-

(14)@i). SIC 2411 is titled “logging” and refers to

“fe]stablishments primarily engaged in cutting tim-

ber” and producing “primary forest or wood raw ma-

terials” “in the field.” Pet. App. 39a-40a; see 2JA 64.

But as EPA contemporaneously explained, the regu-

lation “does not include sources that may be included

under SIC 24, but which are excluded under [the Sil-

vicultural Rule]” (55 Fed. Reg. 48011)—and therefore

does not include “harvesting operations.”

Environmental groups challenged aspects of

EPA’s Phase I regulations, but not those concerning

forest roads or silviculture. See NRDC v. EPA, 966

F.2d 1292 (9th Cir. 1992); id. at 1312-1314

(O’Scannlain, J., dissenting in part).

2. In developing Phase II regulations, EPA reit-

erated that its Phase I regulation excluded “runoff

from agricultural and silvicultural activities.” EPA,

Storm Water Discharges Potentially Addressed by

Phase II of the NPDES Storm Water Program 2-23

n.8 (Mar. 1995), 2JA 47. And in listing “Timber

Products Facilities” that are “associated with indus-

trial activity,” EPA specifically identified cutting,

planing, loading, sorting and storing logs, and manu-

facturing, assembling, and preserving wood products,

but not logging. Jd., Appendix E, at E-2-3, 2JA 50-51.

EPA’s Phase II rules designated two additional

categories of stormwater discharge for NPDES per-

mitting: small municipal storm sewer systems and

some construction sites. 64 Fed. Reg. 68722, 68734

(Dec. 8, 1999). This approach reflected studies that

showed urban storm sewers and construction were a

much more serious source of pollution than silvicul-

ture. Id. at 68726-68727. See EPA, Stormwater

Phase Il Final Rule, Construction Site Runoff Con-

trol, Minimum Control Measures 1 (revised Dec.

2005) (“Sediment runoff rates from construction

sites” are “1,000 to 2,000 times greater than those of

forest lands”).

An environmental group challenged EPA’s deci-

sion not to require Phase II permitting for runoff

from forest roads. The Ninth Circuit remanded the

rule to EPA to explain its decision, but did not strike

down the rule. Envtl. Def. Ctr. v. EPA, 344 F.3d 832,

861 (9th Cir. 2003). EPA took no public action on

that remand until its recent Notice of Intent. 77 Fed.

Reg. 30473, 30474 (May 23, 2012).

3. In 1999, EPA proposed modifying the Silvicul-

tural Rule. EPA explained that “runoff’ from “sur-

face drainage [and] road construction and mainten-

ance” is “[cjurrently” “categorically excluded from the

NPDES program.” 64 Fed. Reg. 46058, 46077 (Aug.

23, 1999). EPA proposed that this stormwater still

“would not be considered ‘stormwater discharges as-

sociated with industrial activity under 40 CFR

122.26(b)(14).” But it suggested replacing categorical

treatment with case-by-case consideration of permit-

ting. 64 Fed. Reg. 46077-46078, 46088. Following

public comment, EPA decided not to pursue this pro-

posal. 65 Fed. Reg. 43586, 43652 (July 13, 2000).

4. In a 2003 brief urging dismissal of a suit alleg-

ing that discharges from forest roads collected in

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

permitted, EPA told the court that the phrase “dis-

charge associated with industrial activity” “does not

include discharges from facilities or activities ex-

cluded from the NPDES program under” Part 122.27,

and that “[cjonsequently, EPA did not incorporate

silvicultural storm water discharges into the defini-

tion of ‘stormwater discharges associated with indus-

trial activity.” Pet. App. 86a-87a. And in its amicus

brief to the district court supporting dismissal of this

suit, the United States called for “[eJlevated defer-

ence” because EPA “has ‘consistently followed’ the

same interpretation of its regulations.” Pet. App.

115a.

E. Oregon’s Regulation Of Forest Roads.

Under this statutory and regulatory scheme,

States regulate forest roads using BMPs adapted to

their own “climate, soils, topography, and aquatic bi-

ota.” Erik Schilling, Compendium of Forestry Best

Management Practices for Controlling Nonpoint

Source Pollution in North America 194 (Tech. Bull.

966, Sept. 2009). As Congress required, EPA assists

States in developing “land use requirements” to ad-

dress “silviculturally related nonpoint sources of pol-

lution,” including BMPs for road construction, main-

tenance, and management. 33 U.S.C. § 1288(b)(2)(F);

see, e.g., EPA, National Management Measures io

Control Nonpoint Source Pollution from Forestry Ch.

3(c), (d) (May 2005), http://tiny.cc/EPA1; Karen Sola-

ri, Forestry Best Management Practices in Water-

sheds (2008), http://tiny.cc/Solari. As 26 States ex-

plained in their brief in support of the petitions (at

14), “BMPs have become an accepted, well-under-

stood, documented, approved and successful method

of protecting water quality.”

Thus, under Oregon law, the Board of Forestry

“insure[s] that to the maximum extent practicable

nonpoint source discharges of pollutants resulting

from forest operations on forestlands do not impair”

achievement of water quality standards. Or. Rev.

Stat. § 527.765(1), (2), 1JA 107-109. The Board has

promulgated “standards for locating, designing, con-

structing and maintaining efficient and beneficial

forest roads” in a manner that provides “maximum

practical protection” for “water quality.” Or. Admin.

R. § 629-625-0000(3). Roads must be located, con-

structed, and operated to minimize “risk of sediment

delivery to waters of the state.” Id. § 629-625-0330;

see id. § 629-625-0200(2) & -0300(2). And to meet

that goal, road operators must “provide a drainage

system” that satisfies numerous criteria. Id. § 629-

625-0330(1); see 1JA 109-125.

F. Proceedings Below.

The district court dismissed plaintiffs suit, de-

ferring to EPA’s position that, under the Silvicultur-

al Rule, “building and maintenance of the forest

roads” and “hauling of timber on the roads” are “not

point sources when the natural runoff flows into the

waters of the United States.” Pet. App. 62a. The

“road/ditch/culvert system and timber hauling on it

is a traditional dispersed activity from which pollu-

tion flowing into the water cannot be traced to single

discrete sources.” Ibid. Given this holding, the court

declined to address the Phase I scheme for point

source stormwater discharges.

The Ninth Circuit reversed, rejecting EPA's

views set forth as amicus. It first ruled that the CWA

unambiguously defines “point source” to cover chan-

neled silvicultural runoff. Pet. App. 32a. Alternative-

ly, it held the phrase “natural runoff’ in the Silvicul-

tural Rule to be ambiguous. When read to “reflect the

intent of EPA,” “natural runoff’ is nonpoint source

even when “collected, channeled, and discharged.” Jb-

id. But the court ruled that position “invalid” under

the CWA’s definition of point source. Jbid. The court

imposed its own reading on the Silvicultural Rule—

one that admittedly “does not reflect the intent of

EPA”—that “channeled and controlled” runoff is

point source activity. Pet. App. 32a-33a

The court next held that channeled forest road

runoff is “associated with industrial activity.” It ac-

knowledged that EPA’s Phase I regulation “purports

to exempt” any “activity that is defined as a nonpoint

source in the Silvicultural Rule.” Pet. App. 38a. But

it held that “EPA is not free” to do so if “silvicultural

activity is industrial in nature.” Pet. App. 39a. Ignor-

ing the United States’ argument that “EPA has not

defined logging as an industrial activity” (1JA 43-44),

the Ninth Circuit found it “undisputed” that logging

“is an industrial activity.” Pet. App. 39a, 42a. And it

ruled that forest roads are “immediate access roads”

“primarily dedicated for use by the logging compa-

nies,” even though they “are often used for rec-

reation.” Pet. App. 40a.

On petitions for rehearing, the Ninth Circuit ad-

dressed subject matter jurisdiction. Pet. App. 5a-7a.

According to the court, jurisdiction turned on wheth-

er the Silvicultural Rule is ambiguous. If the rule

were unambiguous, NEDC would have had to chal-

lenge it within 120 days of issuanee, a window that

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

court held that the Silvicultural Rule is ambiguous,

and that NEDC’s challenge to it rests on “grounds

which arose after such 120th day” because EPA set

forth its interpretation of the rule for the first time in

this litigation. Pet. App. 7a.

SUMMARY OF ARGUMENT

I. In requiring NPDES permits for channeled

forest road runoff for the first time since passage of

the CWA in 1972, the Ninth Circuit erred by failing

to give deference to EPA’s determinations that such

permits are neither required nor appropriate.

A. The court of appeals held, first, that such run-

off is a “point source” discharge under Section

502(14) of the CWA. But EPA concluded precisely the

opposite when it promulgated the Silvicultural Rule,

which for the last 36 years has provided that storm-

water runoff, even if channeled through culverts and

ditches, is not a point source discharge. That rule re-

solves an ambiguity in the statute’s definition of

“point source” and—as the product of EPA’s consid-

ered, expert judgment—is entitled to substantial def-

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

sources Defense Council, Inc., 467 U.S. 837 (1984).

The Ninth Circuit alternatively interpreted the

words “natural runoff’ in the Silvicultural Rule not

to include channeled forest road runoff. But that

holding runs squarely counter to EPA’s long-

standing interpretation of its own regulation, which

is entitled to deference under Auer v. Robbins, 519

U.S. 452, 461 (1997). EPA’s rational and expert in-

terpretation of the Silvicultural Rule has been en-

forced consistently for decades. It represents EPA’s

fair and considered judgment and is in no way a post

hoc rationalization advanced to defend past agency

action against attack.

Giving EPA’s interpretations of either the CWA

or Silvicultural Rule proper deference requires re-

versing the judgment below.

B. The Ninth Circuit next held that channeled

forest road runoff is a point source discharge “asso-

ciated with industrial activity” within the meaning of

the 1987 stormwater amendments to the CWA and

EPA’s implementing regulations, and that it there-

fore requires a permit. That also is incorrect.

The plain language of EPA’s Phase I regulation

makes clear that runoff from roads that are not “at”

or “within” an industrial “facility,” like those at issue

here, is not a discharge “associated with industrial

activity.” In addition, EPA’s regulation of stormwater

associated with industrial activities explicitly ex-

cludes from its coverage activities deemed nonpoint

source by the Silvicultural Rule—including “harvest-

ing operations,” i.e., logging, as well as forest road

construction and maintenance. Accordingly, EPA

consistently has rejected the Ninth Circuit’s con-

torted reading of the regulation, both in practice and

in regulatory pronouncements and briefs submitted

at all levels of this and other litigation. The Ninth

Circuit misread the plain language of the regulation,

and in any event should have deferred to EPA’s

longstanding interpretation under Auer. On this in-

dependent ground too, its judgment must be re-

versed.

C. The deference due to EPA’s views concerning

the CWA and its implementing regulations is a mat-

ter of more than mere legal formality. Disregarding

those views and requiring permits for channeled for-

est road runoff would impose astronomical costs on

both regulators and the regulated, inject pervasive

confusion into forest road management, and under-

cut EPA’s environmental protection mandate. Inter-

pretations of statutes and regulations that under-

mine the achievement of an agency’s ultimate mis-

sion in this way are strongly disfavored.

II. This Court should alternatively vacate and

remand with instructions to dismiss the suit for lack

of subject matter jurisdiction. The CWA provides li-

mited subject matter jurisdiction (1) in the courts of

appeals over suits against EPA challenging the val-

idity of EPA regulations, and (2) in the district courts

over suits seeking to enforce EPA regulations. Con-

gress has barred district courts from entertaining at-

tacks on the validity of EPA regulations in enforce-

ment proceedings like this one.

Yet that is precisely what respondent has accom-

plished here: it sought and obtained invalidation of

key aspects of the Silvicultural Rule and Phase I

stormwater rule in an enforcement proceeding in-

itiated in district court. And it did so decades out of

time. Section 509(b)(1) provides in plain terms that

challenges to the validity of a regulation must be

brought “within 120 days” of the regulation’s prom-

ulgation. This is not a case in which “grounds arising

after the 120-day filing window” restarted the clock.

That exception applies only when an event ripens a

previously unripe claim (a rule with no application

here) and has no bearing, in any case, on the status

of this suit as an enforcement action brought in dis-

trict court. In short, the lower courts were without

power to entertain respondent’s challenge to the Sil-

vicultural Rule and stormwater rule and lacked ju-

risdiction to invalidate those rules.

Allowing the Ninth Circuit’s invalidation of

EPA’s rules to stand would flout the CWA’s judicial

review provisions, undercutting Congress's express

purpose of ensuring consistent and reliable enforce-

ment of EPA’s regulations. This Court should reverse

the Ninth Circuit’s jurisdictional ruling to restore

Congress’s orderly allocation of judicial review and

citizen suit proceedings.

ARGUMENT

I. THE NINTH CIRCUIT ERRED IN SECOND-

GUESSING EPA’S LONG-SETTLED _IN-

TERPRETATIONS OF THE CWA AND ITS

IMPLEMENTING REGULATIONS.

The Ninth Circuit made two errors in holding

that channeled forest road runoff is subject to

NPDES permitting, each of which independently re-

quires reversal.

First, the court mistakenly held that such runoff

is a point source discharge as defined in the Clean

Water Act and EPA’s Silvicultural Rule. Appropriate

deference to EPA’s interpretation of the CWA in its

Silvicultural Rule compels the opposite result: col-

lected forest road runoff is not a point source, and

nonpoint sources never require NPDES permits.

Second, not every point source discharge is sub-

ject to NPDES permitting—only certain categories,

including those “associated with industrial activi-

ties,” require a permit. The Ninth Circuit misinter-

preted EPA regulations defining point source dis-

charges “associated with industrial activity” when it

brought channeled forest road runoff within their

reach. EPA has expressly rejected that view. Had the

court properly construed the regulations, and proper-

ly deferred to EPA, it could not have held forest road

runoff to be associated with industrial activity.

A. EPA’s Determination That Channeled

Forest Road Runoff Is Nonpoint Source

Is Entitled To Deference.

It has been settled for more than 35 years that

“{sjilvicultural point source[s]” do not include “silvi-

cultural activities” such as “surface drainage, or road

construction and maintenance from which there is

natural runoff.” 40 C.F.R. § 122.27(b)(1). Stormwater

runoff from forest roads, “whether or not the rainfall

happens to collect before flowing into navigable wa-

ters,” falls within this nonpoint source category and

therefore is not subject to NPDES permitting. 40

Fed. Reg. 56932 (Dec. 5, 1975); see 41 Fed. Reg.

24711 (June 18, 1976) (“runoff from road construc-

tion and maintenance for the purposes of forest

management” is properly included on “the list of

nonpoint sources’).

This is a paradigm case warranting Chevron de-

ference. The CWA’s definition of “point source” is

ambiguous and EPA’s interpretation is reasonable.

The Silvicultural Rule is the product of careful agen-

cy consideration, reflects EPA’s expert judgment

with respect to a complex statute, and has been ap-

plied consistently for decades. And Congress implicit-

ly approved the Rule in its 1987 Amendments to the

CWA. Proper deference to EPA requires reversal.

1. Congress left a gap for EPA to fill con-

cerning the definition of silvicultural

point source discharges.

When Congress leaves “a gap for an agency to

fill,” the agency has authority “to elucidate a specific

provision of the statute by regulation,” and “any en-

suing regulation is binding in the courts” unless

“manifestly contrary to the statute.” United States v.

Mead Corp., 533 U.S. 218, 227 (2001). Such gaps

may result from statutory ambiguities, which exist

“when a statute is capable of being understood by

reasonably well-informed persons in two or more dif-

ferent senses.” 2A NORMAN J. SINGER & J.D. SHAMBIE

SINGER, STATUTES AND STATUTORY CONSTRUCTION

§ 45:2, at 13 (7th ed. 2007); see also Chickasaw Na-

tion v. United States, 534 U.S. 84, 90 (2001). To as-

certain whether a statute is “ambiguous with respect

to [a] specific issue addressed by [a] regulation,”

courts “must look” to “the particular statutory lan-

guage at issue,” as well as “the language and design

of the statute as a whole.” K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). Courts must defer to

an agency determination unless the language, “pur-

pose and structure of the statute clearly reveal a con-

trary intent on the part of Congress.” Chem. Mfrs.

Ass'n v. NRDC, Inc., 470 U.S. 116, 125 (1985) (defer-

ring to EPA’s interpretation of the CWA).

Here, the language and design of the CWA leave

room for EPA to determine, in its expert discretion,

which categories of silvicultural discharges consti-

tute point source discharges and which do not. The

Act reasonably can be read (as EPA did read it) to

exclude stormwater runoff from forest roads from the

definition of “point source,” regardless of whether

that runoff is channeled.

a. Interpretation begins with “the language of

the statute itself.” United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 241 (1989). The CWA provides

that point source discharges “of any pollutant by any

person shall be unlawful.” 33 U.S.C. § 1311(a). It

then subjects that general rule to exception, autho-

rizing EPA to “issue a permit for the discharge of any

pollutant” (§ 1342(a)(1)) from “point sources,” subject

to “[e]ffluent limitations” (§ 1311(e)) set by EPA. The

statute defines a “point source” as “any discernible,

confined and discrete conveyance,” including “any

pipe, ditch, channel, [for] conduit.” 33 U.S.C.

§ 1362(14).

Every court to have considered the issue has rec-

ognized that Congress expected EPA to exercise

judgment in defining point source and nonpoint

source pollution. See, e.g., League of Wilderness De-

fenders v. Forsgren, 309 F.3d 1181, 1184, 1190 (9th

Cir. 2002) (recognizing that EPA “has some power to

define point source and nonpoint source pollution,”

and identifying rain-driven “residue left on road-

ways” as “[t]he most common example of nonpoint

source pollution”); NRDC v. Costle, 568 F.2d 1369,

1377, 1382 (D.C. Cir. 1977) (“power to define point

and nonpoint sources is vested in EPA”); Natl Wild-

life Fed’n v. Gorsuch, 693 F.2d 156, 167 (D.C. Cir.

1982) (“Congress expressly meant EPA to have * * *

at least some power to define the specific ter[m]

‘point source”); NRDC, Inc. v. Train, 396 F. Supp.

1393, 1395, 1401-1402 (D.D.C. 1975) (“Congress in-

tended for [EPA] to determine, at least in the agri-

cultural and silvicultural areas, which activities con-

stitute point and nonpoint sources”). The require-

ment that point sources are “discernible, confined

and discrete” conveyances is particularly difficult to

apply to stormwater runoff in a rural setting. As the

D.C. Circuit observed in Costle, in considering “to

what extent point sources are involved in agricultur-

al [and] silvicultural” runoff, “[t]he definition of point

source,” including “the concept of a ‘discrete con-

veyance, suggests that there is room” for “exclusion

by interpretation.” 568 F.2d at 1377.

Thus, EPA early on determined that it could

properly distinguish between, on the one hand, the

four point source activities identified in the Silvicul-

tural Rule that involve “controlled water use by a

person” (41 Fed. Reg. 6282), and, on the other, allow-

ing rainwater flowing through the forest to be chan-

neled along the road in a customary way s0 as not to

destroy forest roads. That is sensible in light of the

statutory text. Whether a conveyance is discrete—

that is, whether it is “separate,” “distinct,” “uncon-

nected” (WEBSTER’S THIRD NEW INT'L DICTIONARY 647

(1971)}—reasonably depends on whether its input is

essentially singular, as from a confined construction

site or use of the water by a person, or diffuse, as

from forest runoff. Here, as EPA observed, the input

is natural rainfall exposed to a forest over massive

acreage or miles of road. It would be channeled natu-

rally, and is simply being diverted from the path it

otherwise would travel. See 41 Fed. Reg. 24710 (sil-

vicultural nonpoint source discharges are “induced

by natural processes” and “not traceable to any dis-

crete or identifiable facility’).

Other provisions of the CWA enacted in 1972

likewise show that regulators must draw the line be-

tween point and nonpoint sources, and that “silvicul-

tural activities” can reasonably be understood to fall

on the nonpoint source side of that line. Thus 33

U.S.C. § 1314(f) requires EPA to publish “guidelines

for identifying and evaluating the nature and extent

of nonpoint sources of pollutants,” along with infor-

mation on “methods to control pollution resulting

from *** agricultural and silvicultural activities”

such as “runoff” from “forest lands.”! Similarly, 33

U.S.C. § 1288(b)(2)(F) provides that state planning

processes include “identify[ing] * * * agriculturally

and silviculturally related nonpoint sources of pollu-

tion.”

Indeed, the CWA can be read in such a way that

forest road runoff is not a kind of pollution even po-

tentially subject to permitting. The Act prohibits “the

discharge of any pollutant by any person.” 33 U.S.C.

§ 1311(a). Yet forest road runoff is “induced by natu-

ral processes” and is “not traceable to any discrete or

identifiable facility,” even if ultimately gathered and

channeled by a drainage system (41 Fed. Reg. 24709,

24710)—it is, in short, not the result of an “applica-

tion or utilization of water by any person.” 41 Fed.

Reg. 6282 (emphasis added). The CWA also applies

by its terms to “owner[s] or operator[s] of * * * point

source[s].”" 33 U.S.C. §1311(c), (g)(3). But forest

roads routine., “pass through multiple owners and

multiple properties,” and “ownership of the road does

not necessarily correspond to the ownership of the

forest land,” creating “a highly complex mosaic of

overlapping responsibilities.” 77 Fed. Reg. 30473,

30475 (May 23, 2012). This makes it often impossible

to attribute responsibility for the runoff to any par-

ticular “owner or operator.”

Congress’s 1987 Amendments to the CWA con-

firm the reasonableness of EPA’s approach. Congress

! EPA has pointed out that “section 304(f) is focused primarily

on addressing pollution sources outside the scope of the NPDES

program.” 73 Fed. Reg. 33697, 33702 (June 13, 2008) (quoting

H.R. Rep. No. 92-911, at 109 (1972) (“[t]his section” on “non-

point sources is among the most important in the 1972 Amend-

ments”) (emphasis added by EPA)).

in 1987 expressly provided that point source dis-

charges “d[o] not include agricultural stormwater

discharges.” 33 U.S.C. § 1362(14). As reflected in the

U.S. Forest Service’s placement within the Depart-

ment of Agriculture, silviculture is a kind of agricul-

ture. See Kevin Belt, Silvics & Silviculture—The

Agriculture of Trees, http://tinyurl.com/silvics (“Silvi-

culture is the agriculture of trees”); JOHN GIFFORD,

PRACTICAL FORESTRY 12 (1902) (agreeing with the

“claim that silviculture is a branch of agriculture”).

By specifying that “agricultural” stormwater dis-

charges are not point source discharges, Congress

confirmed EPA’s authority to determine that chan-

neled silvicultural stormwater runoff is not a point

source discharge. At a minimum, Congress's “ex-

pres[s] exclu[sion]}” of agricultural stormwater runoff

that “otherwise” might constitute a point source dis-

charge “casts doubt on any claim that Congress spec-

ifically intended” runoff from the silvicultural branch

of agriculture to be treated as point source. Mayo

Found. for Med. Educ. & Research v. United States,

131 S. Ct. 704, 711 (2011).

Furthermore, Congress’s exclusion of all agricul-

tural stormwater discharges from the definition of

point source—as well as its additional exclusion of

“return flows from irrigated agriculture”—is on its

face flatly inconsistent with the Ninth Circuit’s rea-

soning that any ditch is a point source under Section

502(14). Pet. App. 30a-3la. Congress contemplated

that some ditches are not.

In short, the CWA cannot be said to “speak with

the precision necessary to say definitively whether”

channeled forest road runoff is a point source dis-

charge requiring a permit. Mayo Found., 131 S. Ct.

at 711. Because it does not “clearly reveal a contrary

intent on the part of Congress,” the statutory lan-

guage gave EPA room to promulgate the Silvicultur-

al Rule. Chem. Mfrs., 470 U.S. at 126.2

b. The propriety of EPA’s interpretation is con-

firmed by the design and purpose of the statute. “The

meaning—or ambiguity—of certain words or phras-

es” may “become evident when placed in context” and

“with a view to their place in the overall statutory

scheme.” FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132-133 (2000). Just so here.

NPDES permits are authorized only “upon condi-

tion that [a] discharge” meets “all applicable req-

uirements” of the statute (§ 1342(a)(1)), including “ef-

fluent limitations” established by EPA (§ 1311(e)).

Effluent limitations are performance standards that

reflect specified levels of pollutants for particular

categories of discharges. EPA has established stan-

dards for more than 50 different industrial catego-

ries, including metal finishing facilities, steam elec-

2 The Ninth Circuit emphasized legislative history in conclud-

ing that the CWA unambiguously defines point source dis-

charges to include channeled forest road runoff. Pet. App. 12a-

16a. But reliance on “murky, ambiguous, and contradictory”

legislative history is a risky undertaking that invites judges to

“look[] over [the] crowd and pick[] out [their] friends.” Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).

Other parts of the same legislative history suggest that mem-

bers of Congress well understood that EPA would have diacre-

tion to define point source discharges (e.g., 117 Cong. Rec.

38816 (1971) (Sen. Muskie) (“Guidance with respect to the iden-

tification of ‘point sources’ and ‘nonpoint sources” will “be pro-

vided in regulations and guidelines of the Administrator”)), and

that silvicultural runoff was nonpoint in nature (e.g., 133 Cong.

Rec. 1591 (1987) (Sen. Simpson) (“non-point source pollution”

includes “timber operations” and “other sources of run-off which

are not considered point sources”)).

tric power plants, and iron and steel manufacturing

facilities. 40 C.F.R. Parts 405-471. Establishing and

enforcing effluent limitations are the principal objec-

tives of NPDES permitting.

EPA concluded, however, that effluent limita-

tions cannot sensibly be used to manage runoff from

forest roads, whether or not channeled through

ditches. That is because agriculture and silviculture

“present runoff-related problems not susceptible to

the conventional NPDES permit program including

effluent limitations” (40 Fed. Reg. 56932 (Dec. 5,

1975)), and it is questionable whether it “is practica-

ble, or even feasible, to address stormwater dis-

charges from [forest] roads” under a permitting sys-

tem at all (77 Fed. Reg. 30474-30475). The reason

why is clear: runoff is “caused solely by natural

processes,” primarily “precipitation events,” and is

neither “traceable to any discrete or identifiable facil-

ity” of the sort Congress had in mind when it adopted

the NPDES scheme, nor the result of an “application

or utilization of water by any person.” 41 Fed. Reg.

6282; see also 41 Fed. Reg. 24710. These features,

EPA concluded, mean that runoff “is more effectively

controlled by the use of planning and management

techniques” than by “numerical effluent limitations

in individual permits.” 41 Fed. Reg. 6282.

This conclusion is reflected in “the structure of

the [CWA].” 41 Fed. Reg. 6282. “On the basis of th[e]

conceptual differentiation” the Act makes between

“the pollution control mechanisms available for point

and nonpoint sources,” EPA in the Silvicultural Rule

rejected a reading of the point source definition that

would include every conveyance. [bid. It instead con-

sidered, among other things, whether effluent limita-

tions were a sensible means to address a particular

type of runoff. EPA thought it “evident” that

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

direct, and convey nonpoint runoff from precipitation

are not meant to be subject to the § 402 permit pro-

gram.” Ibid. See 40 Fed. Reg. 56932 (“most rainfall

runoff is more properly regulated under section 208

of the [CWA], whether or not the rainfall happens to

collect before flowing into navigable waters”); 41 Fed.

Reg. 24711 (“Insofar as [surface] drainage serves on-

ly to channel] diffuse runoff from precipitation events,

it should be considered nonpoint in nature”).

c. Another important feature of the CWA is Con-

gress’s intent to “preserve” and “protect the primary

responsibilities and rights of States” to address wa-

ter pollution and “plan the development and use” of

“land and water resources.” 33 U.S.C. § 1251(b). Des-

ignation of a type of discharge as a point source di-

rectly impacts this legislative goal: point source dis-

charges fall under federal permitting programs,

while nonpoint sources are addressed primarily by

the States. It is accordingly appropriate that EPA be

wary of attaching the point source label and thereby

moving “primary responsibilit[y]” for controlling a

source to the federal government.

The Ninth Circuit's designation of forest road

runoff as a point source is particularly perverse in its

federalism implications, for two reasons.

First, forest roads are often state- or county-

owned, and their regulation “is a quintessential state

and local power.” Rapanos v. United States, 547 U.S.

715, 737-738 (2006) (plurality). As the certiorari-

stage brief of 26 States attests, EPA correctly dis-

cerned that control of runoff from these roads proper-

ly belongs to the States. Cf. id. at 777 (Kennedy, J.,

concurring).

Second, the basis for the Ninth Circuit's designa-

tion of forest road runoff as a point source—and thus

the basis for taking it away from the States—is the

ditch-and-culvert system. But that system is man-

dated or recommended by States as a “best manage-

ment practice” to address otherwise non-channeled

runoff and prevent roads from washing out (which

would cause more sediment). These state BMPs ac-

cord with EPA and Forest Service recommendations

to “instal[l] drainage features as part of the construc-

tion process.” Solari, supra, at 17, 23. It would be bi-

zarre if—as the Ninth Circuit effectively held—

States must regulate non-channeled runoff as non-

point source, but when they do so according to stan-

dard-practice BMPs, the runoff is thereby trans-

formed into a point source subject to federal permit-

ting. As the State defendants explained below, this

circular reasoning cannot be correct. “Congress did

not intend to require NPDES permits for silvicultur-

al runoff simply because” state BMPs “happen to in-

volve ditches and culverts.” Br. of State Defs., No. 07-

35266, at 19 (9th Cir. filed Nov. 5, 2007).

At a minimum, the Act’s goal to preserve States’

authority, which is undermined by an expansive in-

terpretation of the point source definition in which

federal regulation is triggered by commonplace state

BMPs, confirms the ambiguity that gives EPA lee-

way in drawing the point-nonpoint source distinc-

tion.

Against this textual and structural backdrop, the

term “point source” is at least ambiguous in the silvi-

cultural context—the language, “purpose and struc-

ture of the statute” do not “clearly reveal” that Con-

gress's “intent” is “contrary” to the Silvicultural Rule.

Chem. Mfrs., 470 U.S. at 126. The CWA thus “neces-

sarily requires the formulation of policy and the

making of rules to fill [the] gap” with respect to silvi-

cultural discharges—a task Congress left to EPA.

Mayo Found., 131 S. Ct. at 713.

2. The Silvicultural Rule is a reasonable in-

terpretation of the CWA to which def-

erence ts warranted.

To sustain EPA’s interpretation of the CWA, this

Court “need not find that it is the only permissible

construction,” but “only that EPA’s understanding of

this very ‘complex statute’ is a sufficiently rational

one to preclude a court from substituting its judg-

ment for that of EPA.” Chem. Mfrs., 470 U.S. at 125.

The Silvicultural Rule easily meets this standard.

a. As we have explained, the CWA expressly de-

fines “point source” discharges to exclude “agricul-

tural stormwater discharges.” 33 U.S.C. § 1362(14).

Congress further recognized that “agricultural and

silvicultural activities, including runoff from fields

and crop and forest lands,” are generally “nonpoint

sources of pollutants.” Jd. § 1314(f)(1) & (2)(A). EPA’s

interpretation of this language as permitting the des-

ignation of channeled stormwater runoff from forest

roads as nonpoint source is, at minimum, “rational.”

Chem. Mfrs., 470 U.S. at 125. Indeed, it is the most

sensible understanding of the statute.

EPA concluded that “most silvicultural activities”

are not “amenable to effective regulatory control” by

“numerical effluent limitations” because stormwater

runoff—channeled or not—is “initiated or caused

solely by natural processes, including precipitation,”

and is “not traceable to any discrete or identifiable

facility” likely to introduce specific contaminants. 41

Fed. Reg. 6282. Such diffuse, natural, and irrepress-

ible sources of discharge are “better controlled

through the utilization of best management practic-

es,” and not effluent limitations unsuitable to the

task. 41 Fed. Reg. 24710; see also 55 Fed. Reg.

20521, 20522. That expert determination “is reason-

able in light of the statute’s text and the overall stat-

utory scheme” and therefore is “entitled to deference

under Chevron.” Natl Ass’n of Homebuilders v. De-

fenders of Wildlife, 551 U.S. 644, 666 (2007).

b. Chevron provides a particularly “appropriate

legal lens through which to view the legality of the

Agency interpretation” where that “interpretation is

one of long standing,” the regulation implicates the

“expertise of the Agency,” there is particular “com-

plexity [to the Agency’s] administration” of the stat-

ute, and the regulation is the result of “careful con-

sideration” over “a long period of time.” Barnhart v.

Walton, 535 U.S. 212, 221-222 (2002). That describes

this case exactly.

The Silvicultural Rule reflects EPA’s considered,

long-held view. It has been in place since 1976, ap-

plied consistently ever since, and reaffirmed on nu-

merous occasions. See, e.g., 60 Fed. Reg. 50835 (Sept.

29, 1995) (reaffirming the Silvicultural Rule); 55 Fed.

Reg. 20522 (same). And it was the result of notice-

and-comment rulemaking during which EPA “care-

fully examined the relationship between the NPDES

permit program” and “water pollution from silvicul-

tural activities” and “carefully considered” “more

than ninety written statements” responding to its

proposal. 41 Fed. Reg. 6282; 41 Fed. Reg. 24709-

24710. Based on this careful analysis, EPA “deter-

mined that most water pollution related to silvicul-

tural activities is nonpoint in nature,” whether or not

channeled in “ditches, pipes, and drains.” 41 Fed.

Reg. 6282.

The rule also falls squarely within EPA’s exper-

tise. EPA has been assigned the daunting task of

administering highly complex environmental laws.

In doing so, EPA has developed expert knowledge

about pollution, the environment, and the interaction

between the two, as well as unique experience with

the benefits and disadvantages of specific kinds of

legal rules to address particular kinds of environ-

mental issues. E.g., Shanty Town Assocs. Ltd. P’ship

v. EPA, 843 F.2d 782, 790 (4th Cir. 1988) (“Congress

charged EPA” with “developing special expertise in

the control of water pollution, and with using that

expertise to carry out the [CWA]’s goal of improving

water quality”). The Silvicultural Rule implicates

both forms of expertise, which are not shared by gen-

eralist federal judges.

The treatment of forest road runoff is precisely

the kind of technical issue that demands deference to

expert agency judgment. As this Court has said be-

fore, the CWA is a “very complex statute,” and “the

agency charged with administering” it is “entitled to

considerable deference.” Chem. Mfrs., 470 U.S. at

125; see Shanty Town, 843 F.2d at 790 (‘EPA is en-

titled to special deference when it applies the general

provisions of the [CWA] to the complexities of partic-

ular water pollution control problems”). There is no

reason to decline deference here.

c. This Court has observed that deference “to the

longstanding interpretation placed on a statute by an

agency charged with its administration” is even more

appropriate “where Congress has re-enacted the stat-

ute without pertinent change.” NLRB v. Bell Aero-

space Co., 416 U.S. 267, 274-275 (1974). “[C]ongres-

sional failure to revise or repeal the agency’s inter-

pretation is persuasive evidence that the interpreta-

tion is the one intended by Congress.” Jd. at 275.

In 1987 Congress substantially modified the

CWA’s treatment of stormwater. Supra, pp. 5-6. Yet

in the course of this far-reaching revision Congress

did not disapprove EPA’s prior treatment of silvicul-

tural stormwater. Indeed, it added a provision to

Section 502(14) expressly excluding agricultural run-

off from point source regulation—an addition that is

consistent with and arguably authorizes the Silvicul-

tural Rule. Congress’s actions in 1987 are “per-

suasive evidence” that EPA’s long-standing exclusion

of channeled forest road runoff “is the [interpreta-

tion] intended by Congress” all along. Bell Aerospace,

416 U.S. at 275.

That is especially so because the 1987 Amend-

ments left EPA with wide latitude to determine

when and under what circumstances point source

stormwater runoff must be permitted. As explained

more fully below, the regulations EPA promulgated

pursuant to the 1987 Amendments independently

require reversal here because they exclude chan-

neled forest road runoff from permitting, even if it

were a point source. But they also suggest that law-

makers—in comprehensively revisiting the regula-

tion of stormwater and leaving EPA with considera-

ble discretion in that area—were well aware of the

Silvicultural Rule and intended to approve it as a le-

gitimate interpretation of the CWA.3

3 The Ninth Circuit’s suggestion that “there is no indication

that Congress was aware of the Silvicultural Rule when it

adopted the 1987 amendments” is bewildering. Pet. App. 34a. It

blinks reality to think that lawmakers, in enacting a law “to

3. EPA's interpretation of the Silvicultural

Rule also is entitled to deference.

In addition to ruling that the Silvicultural Rule

as understood by EPA is “invalid” under the CWA,

the Ninth Circuit offered another basis for holding

the rule inapplicable: that the words “natural runoff’

in the rule mean runoff that is not “channeled and

controlled.” Pet. App. 32a. But EPA has consistently

interpreted the rule to mean the opposite, and its in-

terpretation is entitled to deference.

a. The Silvicultural Rule provides that “natural

runoff’ from “surface drainage, or road construction

and maintenance” related to “silvicultural activities”

is “non-point source.” 40 C.F.R. § 122.27(b). As EPA

explained to the district court, “[t]hroughout the his-

tory of its silvicultural point source rule,” EPA has

used “natural runoff,” runoff “from precipitation

events,” and runoff “induced by natural processes”

“as interchangeable terms” that apply without re-

gard for whether the runoff is channeled. Pet. App.

113a-114a.

That reading is rational. The words “natural run-

off’ readily can be understood to encompass all pre-

deal specifically with stormwater discharges” (id. 35a), were not

aware of EPA’s approach to silvicultural stormwater dis-

charges. In fact, there is evidence that Congress considered the

Silvicultural Rule. In an obvious reference to the Rule, Senator

Durenberger observed that EPA, rather than requiring permits

for stormwater runoff from forest roads, had identified “[bjest

management practices” for “reducing runoff’ from “silviculture

areas including careful road placement, culverting, [and] grass-

ing of abandoned roads.” 132 Cong. Rec. 32380, 32381, 32397

(Oct. 16, 1986). The same observation is reflected in the Senate

Report accompanying S. 1128, an early version of the 1987

Amendments. S. Rep. 99-50, at 35-36 (May 14, 1985).

cipitation runoff, regardless whether it is collected in

ditches. The phrase stands in obvious contrast to the

non-natural activities that EPA designated as silvi-

cultural point sources: “rock crushing, gravel wash-

ing,” holding wood in water bodies, or applying water

intentionally to stored logs. 40 C.F.R. § 122.27(b).4

By contrast, the Ninth Circuit’s reading is irra-

tional. It renders meaningless the rule’s reference to

runoff from “road construction and maintenance.” As

a practical matter, forest roads cannot be built or

maintained without stormwater drainage systems:

without them, the roads would wash out. Indeed,

state BMPs typically require them. Because storm-

water drainage systems are an integral element of

forest roads themselves, the rule’s reference to “nat-

ural runoff’ must be read to include channeled run-

off, or else the words “road construction and main-

4 EPA has long made this distinction. For example, in Newton

County Wildlife Association v. Rogers, 141 F.3d 803 (8th Cir.

1998), the court of appeals rejected an environmental group's

claim that the U.S. Forest Service was required to obtain Sec-

tion 402 permits for “discharges of pollutants that will accom-

pany logging and road construction” (id. at 810) because “cul-

verts” and “road-side drainage ditches” were “point sources sub-

ject to NPDES.” Reply Br. of Appellants, No. 97-1852 (8th Cir.

filed Oct. 14, 1997); see Pet. 25-26. The United States told the

Eighth Circuit that it is “crystal clear” from the “plain lan-

guage” of the regulation and “the preamble to the final rule”

that “only discharges from the four activities related to silvicul-

tural enterprises” identified in the rule—an “exclusive list”—

“are considered point sources”; that “EPA considers all other

silvicultural activities to be nonpoint sources”; and that “EPA

has consistently adhered to that interpretation.” Br. of the Fed-

eral Appellees, No. 97-1852 (8th Cir. filed Sept. 8, 1997) (em-

phasis in original).

tenance” would be rendered totally ineffective, as the

United States has explained. See Pet. App. 114a.

b. EPA’s interpretation accordingly is entitled to

deference under Auer v. Robbins, 519 U.S. 452, 461

(1997). An agency’s interpretation of its own regula-

tion is “controlling” unless it is “plainly erroneous or

inconsistent with the regulation.” [bid.; see Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

This Court has applied this settled doctrine in sever-

al recent, unanimous opinions. See Talk Am., Inc. v.

Mich. Bell Tel. Co., 131 S. Ct. 2254 (2011); Chase

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

Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan,

555 U.S. 285 (2009); Long Island Care at Home, Ltd.

v. Coke, 551 U.S. 158 (2007).

EPA’s interpretation of the Silvicultural Rule is

not “plainly erroneous or inconsistent with the regu-

lation.” Even assuming there were “other ways to in-

terpret the regulatio[n],” EPA’s reading is a permis-

sible one, representing its “fair and considered judg-

ment” on the meaning of “natural runoff.” Pliva, Inc.

v. Mensing, 131 S. Ct. 2567, 2575 (2011).

Although Auer deference “does not apply in all

cases” (Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156, 2166 (2012)), it does apply here.

“[Bjroad deference” is warranted because “the regu-

lation concerns ‘a complex and highly technical regu-

latory program,’ in which the identification and clas-

sification of relevant ‘criteria necessarily require sig-

nificant expertise and entail the exercise of judgment

grounded in policy concerns.” Thomas Jefferson Un-

iv. v. Shalala, 512 U.S. 504, 512 (1994). And there is

no cause to question whether EPA’s views reflect its

“fair and considered judgment.” Long Island Care,

551 U.S. at 171. EPA’s views have been repeatedly

and consistently expressed over several decades. Cf.

Kennedy, 129 S. Ct. at 872 n.7 (deferring to agency

interpretation of its regulation even when “the Gov-

ernment’s position” had “fluctuated”).

That EPA most recently presented its views in a

legal brief does not affect the deference due. In Auer,

this Court deferred to agency views presented in a

brief after observing that those views were “in no

sense a ‘post hoc rationalizatio[n]’ advanced by an

agency seeking to defend past agency action against

attack,” 519 U.S. at 462. It did so for the same rea-

sons in Chase Bank and Talk America and should do

the same here.

None of the other factors that might weigh

against Auer deference is present here. EPA has not

“promulgate[d] vague and open-ended regulations”

that fail to give fair warning to regulated entities or

invite “later interpret[ations] as [EPA] see[s] fit.”

Christopher, 132 S. Ct. at 2168; see also John F.

Manning, Constitutional Structure & Judicial Def-

erence to Agency Interpretations of Agency Rules, 96

COLUM. L. REV. 612, 655-668 (1996). On the contrary,

EPA has explained and applied the Silvicultural

Rule consistently since adopting it. Thus what

threatens to upset settled expectations in this case is

not an agency’s shifting interpretation of ambiguous

regulations, but the Ninth Circuit’s upending of

EPA’s long-standing approach.

In sum, the Court should defer to the Silvicul-

tural Rule as a rational interpretation of the CWA,

and to EPA’s reading of the rule as a rational inter-

pretation of the regulation. When such deference is

afforded, the Silvicultural Rule marks the beginning

and the end of this case. Because stormwater runoff

from forest roads is not “related to rock crushing,

gravel washing, log sorting, or log storage facilities”

but instead to the “non-point source silvicultural ac-

tivities” of “surface drainage” and “road construction

and maintenance from which there is natural runoff’

(40 C.F.R. § 122.27(b)(1)), petitioners here need not

obtain NPDES permits. And because EPA’s storm-

water regulations do not apply to nonpoint-source

discharges, the Court need proceed no further in its

analysis; the judgment below should be reversed on

this basis alone.

B. The Ninth Circuit Erred In Holding

That Channeled Silvicultural Runoff Is

“Associated With Industrial Activities”

Within The Meaning Of EPA’s Stormwa-

ter Regulation.

The Ninth Circuit independently erred by mis-

reading EPA’s regulations implementing the 1987

Amendments to the CWA and failing to defer to

EPA’s interpretation of those regulations.

1 Discharges “associated with industrial

activities” do not include runoff from for-

est roads.

a. In 1987, Congress established a two-phase ap-

proach to “discharges composed entirely of stormwa-

ter.” CWA § 402(p)(1), 33 U.S.C. § 1342(p)(1). In

Phase I, Congress required EPA to issue NPDES

permits for five categories of stormwater point source

discharges, including (as relevant here) those “asso-

ciated with industrial activity’—a phrase that Con-

gress did not define. Jd. § 1342(p)(3)({A).

In Phase II, Congress tasked EPA with studying

stormwater discharges not covered by Phase I and,

“based on the results of the studies,” with regulating

such discharges “as appropriate,” including by set-

ting “performance standards, guidelines, guidance,

and management practices and treatment require-

ments.” 33 U.S.C. § 1342(p)(5)-(6); see Pet. App. 37a.

Discharges not designated in Phases I or II “shall not

require a permit.” Id. § 1342(p)(1); see id. § 1342-

(p)(2), (5)-(6).

EPA undertook its Phase I mandate to regulate

stormwater “associated with industrial activity” in

1990. 55 Fed. Reg. 47990 (Nov. 16, 1990); 40 C.F_R.

§ 122.26. Two elements of EPA’s Phase I regulation

are determinative here. First, the regulation pro-

vides that a “discharge associated with industrial ac-

tivity means the discharge from any conveyance that

is used for collecting and conveying storm water and

that is directly related to manufacturing, processing

or raw materials storage areas at an industrial

plant.” 40 C.F.R. § 122.26(b)(14) (emphasis added).

Second, the regulation expressly provides that storm-

water associated with industrial activity “does not

include discharges from facilities or activities ex-

cluded from the NPDES program under [the Silvicul-

tural Rule].” Jd. § 122.26(b)(14). The Silvicultural

Rule in turn defines “harvesting operations” —1.e.,

logging—as “non-point source silvicultural activities”

outside the NPDES program. Id. § 122.27(b) (empha-

sis added); see also 55 Fed. Reg. 48011 (“the defini-

tion of ‘storm water discharge associated with indus-

trial activity’ does not include sources” which “are

excluded under [the Silvicultural Rule]”).

The meaning of this language is clear. Stormwa-

ter runoff from forest roads is not directly related to

manufacturing, processing, or raw materials storage

at an industrial plant. And logging is explicitly

deemed not to be “industrial activity.” Accordingly,

EPA’s stormwater regulation cannot plausibly be

read to define stormwater runoff from forest roads as

associated with an “industrial activity” subject to

Phase I permitting.

b. The Ninth Circuit nevertheless concluded that

forest road runoff is a stormwater discharge “asso-

ciated with industrial activity.” Pet. App. 39a-42a.

The court thought logging “industrial” because

“[flacilities classified as Standard Industrial Classifi-

cations 24” (which includes logging) are among facili-

ties “considered to be engaging in ‘industrial activi-

ty.” 40 C.F.R. § 122.26(6)(14) & (b)(14)(ii); see SIC

24, 2JA 65-71. The court believed forest roads to be

“associated” with this industrial activity because

they are “immediate access roads,” the “primary use”

of which, the court speculated, is logging. Jd.

§ 122.26(b)(14); Pet. App. 40a.

This convoluted reasoning—the product of a

myopic focus on isolated snippets of regulatory lan-

guage—is wrong in every respect. First, the regula-

tion does not encompass all “industrial activity” (Pet.

App. 39a), but only activities of “facilities” that are

“considered to be engaging in ‘industrial activity,”

including “facilities” classified as SIC 24. 40 C.F-.R.

§ 122.26(b)(14), (b)(14)(ii) (emphasis added); see 2JA

98-103. Logging itself is not the activity of a facility,

which is something “that is built, constructed, in-

stalled, or established to perform some particular

function.” WEBSTER’S THIRD NEW INT'L DICTIONARY

812-813 (1971). According to EPA, logging-related fa-

cilities covered by the regulation include only those

“[e]stablishments” engaged in “operating sawmills,

planing mills and other mills engaged in producing

lumber and wood basic materials.” 55 Fed. Reg.

48008. They do not include timber harvesting sites,

which are not “built,” “constructed,” or “installed.”

Second, the Ninth Circuit’s reading cannot be

squared with the regulation’s clear provision that

stormwater associated with industrial activity “does

not include discharges from facilities or activities

[covered by the Silvicultural Rule]” (40 C.F-.R.

§ 122.26(b)(14))}—including “harvesting operations”

and “surface drainage, or road construction and

maintenance from which there is natural runoff.” Jd.,

§ 122.27(b)(1). This carve out is particularly striking

because it was included in paragraph (b)(14) in direct

response to commentary that the Phase I regulations

should not apply to “transitory [logging harvest] op-

eration[s].” 55 Fed. Reg. 48011. EPA “agree[d]” with

this commentary and, to “clarifly]” that agreement,

explained that “[t]he definition of discharge asso-

ciated with industrial activity does not include activ-

ities” covered by the Silvicultural Rule. [bid. Because

“harvesting operations” are not an industrial activi-

ty, forest roads cannot be “immediate access roads”

for an industrial activity. And the rule’s explicit ex-

clusion of drainage from roads confirms that Phase I

permitting is inapplicable.5

Finally, forest roads are not associated with in-

dustrial activity because they are not “immediate

access roads” within the meaning of the regulation.

EPA explained that this provision covers only

5 It would make no difference to this analysis if the Silvicul-

tural Rule were invalid with respect to forest roads. What

counts for purposes of interpreting EPA’s Phase I regulations is

what EPA understood the Silvicultural Rule to mean in 1990,

when it specified that stormwater associated with industrial ac-

tivity “does not include discharges” covered by that Rule. And in

1990 EPA reiterated its “longstanding view” that runoff from

forest roads, “although sometimes channeled,” is “non-point

source in nature.” 55 Fed. Reg. 20521, 20522 (May 17, 1990).

“[ajccess roads” that are “within” or “at facilities.” 55

Fed. Reg. 48009. General forest roads are not “with-

in” or “at” a logging facility. They are used for “a

wide range of activities, including timber operations,

recreation, fire protection, [and] transportation,” “of-

ten serv[ing] multiple purposes by multiple users at

the same time.” 77 Fed. Reg. 30475. And many are

“public access roads such as state, county, or federal

roads * * * which happen to be used by the facility.”

55 Fed. Reg. 48009. That logging may have been the

impetus for the initial construction of some roads

(Pet. App. 40a) is irrelevant.

The Ninth Circuit did not try to harmonize its

reading of the regulation with any of the language

discussed above. A plain reading of the words of the

Phase I regulation, including its reference to the Sil-

vicultural Rule, shows that discharges “associated

with industrial activity” do not include channeled

forest road runoff. EPA “sa[id] * * * what it mean|t]

and mean|t] * * * what it sa[id].” Conn. Nat? Bank v.

Germain, 503 U.S. 249, 253-254 (1992).

2. EPA’s interpretation of its own regulation

is entitled to substantial deference.

a. The Court need not take our word for it. EPA

itself has repeatedly affirmed that, in its view, chan-

neled stormwater runoff from forest roads is not a

discharge “associated with industrial activity” sub-

ject to the CWA’s Phase I permit requirement.

In 1995, for example, when it promulgated the

first “multi-sector general permit” for certain Phase I

discharges of stormwater runoff, EPA detailed which

“storm water discharges associated with industrial

activity from timber products facilities” it believed to

be covered by the regulation. 60 Fed. Reg. 50834,

50835 (Sept. 29, 1995). It concluded that “[d]is-

charges from nonpoint source silvicultural activities,

including harvesting operations” are “not required to

be covered” by a Phase I permit and that “harvesting

activities include *** initial transport of forest

products from an active harvest site.” [bid.

EPA has consistently expressed the same view in

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

leging that runoff from forest roads collected in

“ditches, channels, pipes, [and] culverts” requires a

permit, EPA told the court that “discharge associated

with an industrial activity” “does not include dis-

charges from facilities or activities excluded from the

NPDES program under this part 122”; that Part

122.27 “excluded runoff from certain silvicultural ac-

tivities from the NPDES program”; and that,

“[clonsequently, EPA did not incorporate silvicultur-

al storm water discharges into the definition of

‘storm water discharges associated with industrial

activities.” Pet. App. 86a-87a. Accordingly, “storm

water discharges from forest roads are not currently

subject to NPDES permit requirements.” Pet. App.

9la.

In its brief before the Ninth Circuit here, EPA

reaffirmed its interpretation of the “plain language of

the rule” as expressing a “clear intent” to “exclud[e}

runoff from forest roads from” Phase I permitting.

1JA 42. The Solicitor General’s invitation brief re-

flects the same view, explaining that timber harvest-

ing does not fall within the category of “traditional

industrial activities” covered by the regulation, and

that forest roads are not “immediate access roads” to

industrial facilities in any event. U.S. Cert. Br. 13.

b. We believe the language of EPA’s stormwater

regulation is clear, but even if it were not, this Court

should defer under Auer to EPA’s reasonable inter-

pretation of its regulation. The Phase I regulation

concerns a complex, highly technical regulatory pro-

gram requiring “significant expertise” and “the exer-

cise of judgment grounded in policy concerns.” Tho-

mas Jefferson Univ., 512 U.S. at 512. The views set

forth in EPA’s and the Solicitor General’s briefs fol-

low from, and are consistent with, those that EPA

had repeatedly expressed over the course of decades

in rulemaking proceedings.

The Ninth Circuit failed to give EPA’s interpre-

tation of its regulation proper deference. Although

recognizing early in its opinion that courts must “de-

fer to an agency’s interpretation of its own regula-

tions” (Pet. App. 8a (quoting Auer)), the court made

no effort to evaluate EPA’s interpretation within the

Auer framework. Instead, it proceeded straight to

second-guessing EPA’s expert judgment concerning

its own regulation. That is not the law: Congress del-

egated rulemaking authority under Phase I of the

CWA’s stormwater permitting program to EPA, not

the Ninth Circuit. The Court should defer to EPA’s

interpretation of Section 122.26(b)(14) and, on this

independent basis, should reverse.

C. As EPA Determined, Forest Road Runoff

Is Better Addressed With Best Manage-

ment Practices Than NPDES Permits.

The reasonableness of EPA’s interpretation of

the CWA and its own regulations is apparent when

viewed in light of the practical consequences of the

Ninth Circuit’s ruling. Requiring permits for chan-

neled forest road runoff would impose staggering

costs on regulators and regulated alike, and inject

massive confusion into forest road management,

without achieving gains in environmental protection.

An interpretation that “undermine[s]” the “regulato-

ry scheme of [an] Act” and frustrates “administrative

action imperative for the achievement of an agency’s

ultimate purposes” is strongly disfavored. Weinberger

v. Bentex Pharm., Inc., 412 U.S. 645, 653 (1973).

1. Requiring permits for every discharge of chan-

neled forest road runoff into “the waters of the Unit-

ed States”—a concept of “notoriously unclear” scope,

Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito,

J., concurring)—would be immensely costly and bur-

densome. Over 750 million acres of forests cover one-

third of the continental United States. 77 Fed. Reg.

30475-30476. The U.S. Forest Service estimated that

the Ninth Circuit’s ruling would require it alone to

obtain up to 400,000 permits for its 378,000 miles of

forest roads—a process that it estimates would take

more than 10 years. U.S. Forest Service, Jmplica-

tions of Decision in NEDC v. Brown to Silvicultural

Activities on National Forest System Land, Doc.

1570-1, at 3 (Sept. 17, 2010). For their part, Oregon

counties estimated that it would cost them $56 mil-

lion to obtain permits for the 20,000 cross culverts

along their 4800 miles of forest roads. Am. Br. Nat’l

Ass'n of Counties 15-18. Extrapolating those figures

across all forests leaves no doubt of the enormity of

the burden that permitting would impose on regula-

tors who must process and enforce permits and forest

road owners and operators who must obtain, main-

tain, and comply with them.

An individual NPDES permit involves a labyrin-

thine application process with public hearings and

comments, and imposes requirements of water sam-

pling, effluent limitations, technological standards,

monitoring, and treatment of pollutants. EPA,

NPDES Permit Writers’ Manual, www.epa.gov/npdes

/pubs/pwm_2010.pdf. This Court has observed that

the “average applicant” for individual dredged-and-

fill permits spends “788 days and $271,596 in com-

pleting the process.” Rapanos, 547 U.S. at 721. There

is no reason to believe that the costs of obtaining in-

dividual Section 402 permits are lower. And oppor-

tunities abound for litigation over the propriety of a

permit and whether the permittee is in compliance.

See 40 C.F.R. § 124.19 (administrative appeal of de-

cision to issue NPDES permit); 33 U.S.C.

§ 1369(b)(1)(F) Gudicial review of same); id. § 1365

(citizen suits to enforce permits).

EPA already faces a backlog of permits, which

must be renewed every five years. 33 U.S.C.

§ 1342(b)(1)(B). Recently, only 80% of major and 84%

of minor facilities held current permits, because of

delays in processing. See http://tiny.cc/EPA2. Adding

a new permit requirement for millions of ditches and

culverts on forest roads would overwhelm the

NPDES program at a time of tight constraints on

agency spending. As EPA stated in 1975, and is no

less true now, “it would be administratively difficult

if not impossible, given Federal and State resource

levels, to issue individual permits” for every ditch

and culvert. 40 Fed. Reg. 56932.

Heavy penalties for failing to obtain or comply

with NPDES permits exacerbate the burden of the

Ninth Circuit’s decision. Violations of the CWA carry

fines of up to $100,000 per day and six years’ impris-

onment. 33 U.S.C. § 1319(c)(2). Even a negligent vi-

olation can bring heavy fines and two years in pris-

on. Id. § 1319(c)(1). And the citizen suit mechanism

ensures endless lawsuits seeking penalties of up to

$37,500 per violation per day. Id. §§ 1319(d), 1365(a).

Environmental groups have used citizen suits to ex-

tract significant penalties. For example, New York

City was penalized $5.7 million for bringing drinking

water to its residents through a creek without a Sec-

tion 402 permit. Catskill Mountains Chapter of Trout

Unlimited, Inc. v. City of New York, 244 F. Supp. 2d

41 (N.D.N.Y. 2003), affd in relevant part, 451 F.3d

77 (2d Cir. 2006).

2. The Ninth Circuit conjectured that “general

permits” may be available. Pet. App. 43a. But gener-

al permits have their own problems. EPA’s Multi-

Sector General Permit (MSGP) for discharges asso-

ciated with industrial activity (http://tiny.cc/EPA3)

was not designed to address millions of discharges of

channeled forest road runoff—for the obvious reason

that EPA considers that such runoff is not associated

with industrial activity. The MSGP requires, for ex-

ample, that permittees map all “impervious surfac-

es,” “ditches, pipes, and swales,” and “inlets and out-

falls.” MSGP § 5.1.2. That would be a daunting task

—far more so for a remote ribbon of forest road than

a confined industrial site. And even if owners and

operators of forest roads could comply, the costs of

doing so would be astronomical and out of all propor-

tion to any benefit given the effectiveness of BMPs.

The MSGP also requires frequent inspections of

every discharge and annual inspection “when a

stormwater discharge is occurring.” MSGP § 4.1.1.

Permittees must “collect a stormwater sample from

each outfall” “within the first 30 minutes” of a dis-

charge or “as soon as practicable” thereafter. Jd.

§§ 4.2.1, 4.2.3. These requirements, tailored for in-

dustrial sites, are unworkable for forest roads. Non-

compliance violates the CWA. Id. §§ 1.2, 3.1.

Enormous costs and uncertainties would remain

even if general permits were revamped to cover for-

est road runoff. General permits impose effluent lim-

itations, technological standards, costly treatment,

monitoring, and sampling. See EPA Office of Water,

General Permit Program Guidance 4 (1988). Yet the

basis of EPA’s Silvicultural Rule is that such re-

quirements are inappropriate for forest road runoff,

channeled or not. The sheer number and variety of

discharges over a linear road that may stretch many

miles, over varied topography, with a multiplicity of

ownership and use, and only intermittent logging

use, make the most basic requirements of any

NPDES general permit inapt.

General permits also are frequent targets of chal-

lenge: the propriety of virtually every new general

permit is litigated. See, e.g., Waterkeeper Alliance,

Inc. v. EPA, 399 F.3d 486, 498-506 (2d Cir. 2005)

(sustaining challenges to general permit for concen-

trated animal feeding operations); Jeffrey M. Gaba,

Generally Illegal: NPDES General Permits Under the

Clean Water Act, 31 HARV. ENVTL. L. REV. 409, 461 &

n.254 (2007). Environmental groups appear skeptical

of the legality of the general permit program in gen-

eral, making challenge likely. See id. at 412 (“The

EPA general permit program is now essentially inco-

herent, and existing federal and state issued general

permits violate many fundamental requirements” of

the CWA; “In a series of recent cases, fundamental

aspects of the general permit program have been

called into question”).

Litigation over compliance with any general

permit that survives challenge is also common. See,

e.g., WaterKeepers N. Cal. v. AG Indus. Mfg., Inc.,

375 F.3d 913 (9th Cir. 2004); S.F. BayKeeper, Inc. v.

Tosco Corp., 309 F.3d 1153 (9th Cir. 2002); NRDC v.

Sw. Marine, Inc., 236 F.3d 985 (9th Cir. 2000); Eco-

logical Rights Found. v. Pac. Lumber Co., 230 F.3d

1141 (9th Cir. 2000). The damages sought in these

citizen suits have been astronomical. See, e.g., Hu-

mane Soc. of United States v. HVFG, LLC, 2010 WL

3322512, at *2 (S.D.N.Y. Aug. 19, 2010) (seeking “be-

tween $550,000 to over $600 million in civil penal-

ties, depending on how they were calculated”); Wa-

terKeepers N. Cal. v. AG Indus. Mfg., Inc., 2005 WL

2001037, at *6 (E.D. Cal. Aug. 19, 2005) (seeking $5

million penalty against company worth $907,000).

3. The Ninth Circuit’s decision overturns decades

of practice in which state BMPs have governed forest

roads—allowing the States to address “the numerous

geographical, meteorological and topographical vari-

ations incidental to forest management.” 41 Fed.

Reg. 24710. Amici States explained in their brief urg-

ing review (at 1, 12, 15) that they have established

“the most comprehensive program of BMPs of any

land use activity in the nation”; have “expended

thousands of hours and millions of dollars developing

and implementing their respective BMP programs”

created by “certified silviculturalists”; have “followed

Congressional and EPA’s directives”; and have

“worked to ensure” that owners and operators of for-

est roads implement BMPs “to protect water quality

and wildlife.” Florida, for example, has published a

116-page manual of forestry BMPs. See http://tiny.-

cc/Flaman. Minnesota offers hundreds of pages of

BMPs, including 49 pages devoted specifically to for-

est roads. See http://tinyurl.com/Minnman1.

The Ninth Circuit’s ruling would “jettiso[n}”

these established programs. Am. Br. of Arkansas 15.

In their place would be “yet another unfunded man-

date” and a “blizzard” of permit applications that

would create a “tumult” “far outstripping” States’ re-

sources. Jd. at 15-16. Yet, as EPA concluded 36 years

ago, stormwater runoff from forest roads is best ad-

dressed through BMPs, not permits. E.g., 41 Fed.

Reg. 24710 (“numerous forest practices acts, State

environmental programs, and local ordinances are

excellent sources of effective regulation,” which EPA

“does not intend to disrupt or supplant”).

“Forestry BMPs have been highly successful in

controlling non-point pollution from forest operations

and roads for decades.” Am. Br. of Arkansas 16.

BMPs can reduce around 90% of water quality im-

pacts. George Ice, History of Innovative Best Man-

agement Practice Development and Its Role in Ad-

dressing Water Quality Limited Waterbodies, 130 J.

ENVTL. ENG’G 684, 688 (2004); 77 Fed. Reg. 30474

(with “appropriate” BMPs, “receiving waters can be

protected and impacts can be minimized”). BMP im-

plementation rates are “generally high and increas-

ing.” George Ice, et al., Trends for Forestry Best

Management Practices Implementation, J. FORESTRY,

Sept. 2010, at 267, 267-271. And BMPs can quickly

reflect scientific advances, with “[nJew BMPs [being]

considered as new issues arise.” Jd. at 268-269.

In response to the Ninth Circuit’s decision, EPA

reiterated that “one-size-fits-all approaches may not

be appropriate for addressing the multiplicity of is-

sues and situations within and across states.” 77

Fed. Reg. 30477. It was not the Ninth Circuit’s place

to jettison State programs in disregard of EPA’s long-

standing view that BMPs more effectively address

forest road runoff than would NPDES permits.

4. The “highly complex mosaic of overlapping re-

sponsibilities” for forest roads, EPA has explained,

would make application of the NPDES program

cumbersome and confusing. 77 Fed. Reg. 30475.: For-

est roads support multiple “recreational, administra-

tive, fire protection, and mineral and silvicultural ac-

tivities” and “often serve multiple purposes by mul-

tiple users at the same time.” [bid. A single forest

road “may pass through multiple owners and mul-

tiple properties,” and “ownership of the road does not

necessarily correspond to the ownership of the forest

land.” Ibid. A road may be used for timber “harvest-

ing once every 20 years or so.” Ibid. Ranching fami-

lies and businesses use the same roads to access

their grazing leases. See Am. Br. American Forest

Res. Council 14. See also, e.g., 43 C.F.R. § 2812.0-6

(BLM land’s “intermingled character” presents “prob-

lems of management,” particularly “with respect to

timber roads”); Am. Br. Nat'l Ass’n of Counties 19

(NPDES permitting does not fit the “checkerboard of

intermingled private and public” forestland).

The Ninth Circuit’s decision, in short, would

wreak havoc with all who rely on forest roads. And

much of that unjustifiable burden would fall on the

forestry industry, which employs more than 1 million

people, indirectly supports 2.9 million jobs, creates

$87 billion in wages, and sustains industries with

annual sales of nearly $263 billion. See For-

EST2MARKET, INC., THE ECONOMIC IMPACT OF PRI-

VATELY-OWNED FORESTS 7-9 (2009).

Il. THE COURTS LACK SUBJECT MATTER

JURISDICTION OVER THIS SUIT.

A. Courts Have No Authority To Invalidate

The Silvicultural Rule Unless CWA Ju-

risdictional Requirements Are Satisfied.

The Court alternatively should vacate and re-

mand because the courts lack jurisdiction over this

long-belated challenge to the Silvicultural Rule. The

Administrative Procedure Act provides that “[t]he

form of proceeding for judicial review is the special

statutory review proceeding relevant to the subject

matter in a court specified by statute.” 5 U.S.C.

§ 703. The CWA requires challenges to specified EPA

actions—including promulgating any “effluent” or

“other limitation under section 1311,” “issuing or de-

nying any permit under section 1342,” or promulgat-

ing regulations governing permit issuance—to be

filed in a court of appeals “within 120 days” unless

the grounds for the challenge arose later. CWA

§ 509(b)(1), 33 U.S.C. § 1369(b)(1).6 The CWA else-

where provides that “district courts shall have juris-

diction” to “enforce” EPA’s regulations. CWA § 505,

33 U.S.C. § 1365.

Thus, the CWA provides for (1) judicial review

actions in courts of appeals under Section 509(b)(1),

brought against EPA as defendant, in which parties

may seek to invalidate EPA regulations, and

(2) citizen suits in the district courts under Sec-

tion 505, in which parties may seek to enforce EPA

regulations. And regulations “with respect to which

review could have been obtained under [Section

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).

6 EI. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 136

(1977), rejected the contention that the courts of appeals’ exclu-

sive jurisdiction applies only to individual permit decisions, ex-

plaining that it would be “truly perverse” if “courts of appeals

would review numerous individual actions issuing or denying

permits pursuant to § 402 but would have no power of direct re-

view of the basic regulations governing those individual ac-

tions.”

These are jurisdictional requirements, not

“claim-processing rulef[s]." Henderson v. Shinseki,

131 S. Ct. 1197, 1203 (2011). Congress barred dis-

trict courts from invalidating EPA regulations, speci-

fying that they may not be collaterally attacked in

enforcement proceedings. And it barred rule chal-

lenges brought more than 120 days after a rule’s

promulgation. As the D.C. Circuit held with regard

to the 60-day time limit in the Clean Air Act, 42

U.S.C. § 7607(b), it “is jurisdictional in nature.” Med.

Waste Inst. v. EPA, 645 F.3d 420, 427 (D.C. Cir.

2011). Thus when “petitioners have failed to comply”

with the deadline, courts “are powerless to address

their claim.” Ibid.

B. The Ninth Circuit Erred In Undertaking

Judicial Review Of EPA’s Rules.

NEDC’s citizen “enforcement” suit, filed in dis-

trict court in 2006, sought to invalidate EPA’s Silvi-

cultural Rule, last modified in 1980, and EPA’s 1990

stormwater regulation that incorporated the Silvicul-

tural Rule. The Silvicultural Rule deems collected

runoff from forest roads to be nonpoint source and

thus outside NPDES requirements; but respondent

contended “that the discharges at issue [are] point

source stormwater discharges” that require a permit.

Pet. App. 57a; see Complaint J{ 4, 67, 76, 2JA 3, 18,

20; NEDC Reply Br. 2-3, 15-21 (9th Cir. filed Dec. 17,

2007)); NEDC Opening Br. 52-53 (9th Cir. filed Sept.

17, 2007); NEDC Br. in Opp. 5-7. This suit therefore

presents a challenge to the validity of EPA regula-

tions. Under the plain terms of Section 509, it was

filed too late, in the wrong court, and against the

wrong defendants.

Respondent nevertheless obtained its desired in-

validation, at least implicitly. In Environmental De-

fense v. Duke Energy Corp., 549 U.S. 561, 581 (2007),

this Court found that the Fourth Circuit’s “construc-

tion” of Clean Air Act regulations amounted to “im-

plicit invalidation,” thereby “implicating” the CAA’s

60-day time limit for seeking judicial review. To no

less extent, the Ninth Circuit “interpreted” an impor-

tant element of the Silvicultural Rule into invalidi-

ty.’

The Ninth Circuit held that the Silvicultural

Rule, if given a meaning consistent with “the intent

of EPA,” would be “inconsistent with” the CWA’s

point source definition “and is, to that extent,

invalid.” Pet. App. 32a; see also id. at 6a (on EPA’s

“reading, the Rule is inconsistent with the CWA and

hence invalid”). On that basis, the court “construe[d]

the Rule to be consistent with the statute” so that

EPA’s designation of silviculture runoff as “nonpoint

source” applies only to non-channeled runoff. Id. at

6a-7a, 32a. This was no more than an “invalidation”

in disguise.

The Ninth Circuit then imported the rewritten

Silvicultural Rule into EPA’s Phase I stormwater

regulation, 40 C.F.R. § 122.26(b)(14). There is no

other way to harmonize the court’s reading of the

Phase I regulation as unambiguously requiring per-

mits for channeled silvicultural runoff with that reg-

ulation’s express exclusion of runoff covered by the

Silvicultural Rule from the scope of discharges “asso-

ciated with industrial activity.” The Phase I regula-

tion’s reference to the Silvicultural Rule, the Ninth

Circuit held, “does not, indeed cannot, exempt such

7 The Court did not rule on the significance of the CAA’s judicial

review provision in Duke Energy because—unlike here—it was

not addressed below. 549 U.S. at 581.

discharges from EPA’s Phase I regulations,” even

though “EPA’s intent to exempt nonpoint sources as

defined in the Silvicultural Rule from the permitting

program mandated by § 402(p)” was “clear.” Pet.

App. 38a, 42a. The effect of that holding was to inva-

lidate an element of EPA’s stormwater regulation.

The United States’ contention that the Ninth

Circuit engaged only in “interpretation” of regula-

tions “in a manner different” from an EPA construc-

tion that was “contrary to the CWA” is mere

wordplay. U.S. Cert. Am. Br. 9. For 35 years, the

meaning of the Silvicultural Rule has been clear:

precipitation runoff from forest roads, whether or not

collected in ditches, is nonpoint source and not sub-

ject to permitting. And since its adoption in 1990,

EPA’s Phase I rule has made clear that collected run-

off is not a point source discharge “associated with

industrial activity.” EPA has reiterated these inter-

pretations time and again, and has enforced each

consistently from the outset.

The Ninth Circuit interpreted the rules to reach

a contrary result only because it thought EPA’s read-

ing inconsistent with the CWA, and thus unenforce-

able. The appropriate way to look at its decision is

that the Ninth Circuit invalidated important aspects

of rules of long standing, substituting alternative

rules of its own creation. A court cannot escape the

strictures of Section 509(b) by first invalidating a

regulation and then promulgating a different one in

its place in the name of “interpretation.” The Ninth

8 The Government analogizes the Ninth Circuit’s approach to

interpreting a statute narrowly to ensure its constitutionality.

U.S. Cert. Am. Br. 9-10. But the CWA’s specification of different

Circuit’s reliance on cases in which “federal courts

have invalidated EPA regulations” shows that it well

understood this to be the effect of its ruling. Pet.

App. 44a-46a.

C. The Statutory Exception For Grounds

Arising After The Filing Deadline Is In-

applicable.

Recognizing that it was engaged in judicial re-

view of EPA rules, the Ninth Circuit relied for its

“subject matter jurisdiction” on the exception in Sec-

tion 509(b)(1) for “grounds arising after the 120-day

filing window.” Pet. App. 7a. But that exception is

inapplicable.

The purported post-promulgation ground giving

rise to jurisdiction was the Government’s adoption

“for the first time in its initial amicus brief in this

case” of a “reading of the Silvicultural Rule” that

“does not require permits for silviculture stormwater

runoff.” Pet. App. 6a-7a. That is incorrect.

First, the exception for new “grounds” simply ex-

tends the 120-day window; it has no bearing on the

statutory requirements that (1) judicial review ac-

tions be filed in a court of appeals against EPA, or

(2) enforcement proceedings not be used for judicial

review—both of which were violated here.

Second, a “provision for judicial review” for “suits

based on newly arising grounds” applies only with

respect to “an event that ripens a claim.” Chamber of

Commerce of United States v. EPA, 642 F.3d 192, 208

n.14 (D.C. Cir. 2011). See also Coal. for Responsible

Regulation, Inc. v. EPA, 684 F.3d 102, 129-130 (D.C.

forums and procedural mechanisms for invalidating and enforc-

ing EPA regulations makes that analogy specious.

Cir. 2012). Such ripeness exceptions are common in

regulatory statutes, allowing courts to dismiss un-

ripe appeals and authorize appeal once outstanding

factual contingencies have been resolved. E.g., Clean

Air Implementation Project v. EPA, 150 F.3d 1200,

1204 (D.C. Cir. 1998); Atl. States Legal Found., Inc.

v. EPA, 325 F.3d 281, 285-286 (D.C. Cir. 2003).

Here, any challenge to the Silvicultural Rule was

manifestly ripe within 120 days after its 1976 prom-

ulgation or 1980 revision. Any challenge to EPA’s

Phase I stormwater regulation was ripe within 120

days of its promulgation in 1990. Claims are unripe

if an interpretation’s inconsistency with the statute

is “only speculative.” Coalition, 684 F.3d at 131.

There has never been anything “speculative” about

EPA’s understanding of these rules, which has been

clear for decades. EPA consistently has expressed

(and acted on) the view that the regulations exclude

collected forest road runoff from the permit require-

ment.

The Government’s initial amicus brief below did

not adopt that view for “the first time,” but reiterated

a long-held position. Reiteration does nothing to re-

open a rule for judicial review. That was the D.C.

Circuit’s conclusion in American Road & Transporta-

tion Builders Association v. EPA, where it rejected

petitioner’s contention that EPA’s description of ex-

isting regulations in a later rulemaking “effectively

reopened” those regulations to judicial review. 588

F.3d 1109, 1114 (D.C. Cir. 2009). The court explained

that “the agency gave no ‘indication that [it] had un-

dertaken a serious, substantive reconsideration’ of

the rules in question.” Jd. at 1115. Here, too, the

United States did not reopen any issue about the

scope of the rules at issue by its amicus filing below.

The basis for NEDC’s challenge to the rules at is-

sue was no different when it filed this suit in 2006

than it would have been in 1976, 1980, or 1990.

NEDC was established in 1969 (http://tiny.cc/NEDC)

and has no excuse for not filing a judicial review ac-

tion in the court of appeals at the proper time. Res-

pondent filed its claim in the wrong court, under the

wrong statutory provision, and much too late.

D. The Ruling Below Undermines The

Purposes Of The CWA’s Jurisdictional

Requirements.

Congress mandated that challenges to EPA ac-

tions identified in Section 509(b)(1) be filed in a court

of appeals within 120 days to avoid piecemeal district

court rulings and ensure early and authoritative res-

olution of any challenge. Preventing a multiplicity of

judicial review proceedings ensures that “the sub-

stantive provisions of the standard would be un-

iformly applied and interpreted.” Adamo Wrecking

Co. v. United States, 434 U.S. 275, 284 (1978). And

the time limit provides EPA, regulated parties, and

the public with certainty. Cf. RSR Corp. v. EPA, 102

F.3d 1266, 1269 (D.C. Cir. 1997) (CERCLA’s time bar

reflects “a deliberate congressional choice to impose

statutory finality”).

Allowing the validity of EPA regulations to be

determined in citizen suits years or decades after a

rule takes effect would inundate district courts with

belated challenges to established regulations. The

result would be inconsistent rulings and confusion

among regulators and the regulated. Furthermore,

because citizen suits often do not name EPA as a

party, EPA’s ability to defend its rules would be

compromised and the impact of any decision on the

agency would be uncertain. Here, EPA was not a de-

fendant and is not bound by the judgment even in

the Ninth Circuit. See 1JA 52 n.1. Judicial review ac-

tions, by contrast, lie against the agency, and when

multiple petitions for review are filed they are con-

solidated in a single case to provide an authoritative

national ruling. 28 U.S.C. § 2112(a)(3).

Complying with EPA rules “can entail enormous

up-front investments of money, effort, and advance

planning. Both the agency and the private sector

have interests in getting the legality of these rules

settled one way or the other relatively quickly.” Ron-

ald M. Levin, Statutory Time Limits on Judicial Re-

view of Rules: Verkuil Revisited, 32 CARDOZO L. REV.

2203, 2204-2205 (2011). To accomplish that goal,

Congress chose an “orderly approach”: allocating

judicial review “to reconcile society's competing goals

of restraining government abuses and expediting the

implementation of pressing regulatory programs.” Id.

at 2238. This Court should reverse the Ninth Cir-

cuit’s jurisdictional ruling to restore Congress's or-

derly allocation of judicial review and citizen suit

proceedings.

CONCLUSION

The judgment of the court of appeals should be

reversed. Alternatively, the judgment should be va-

cated and the case remanded with instructions to

dismiss for want of subject matter jurisdiction.

Respectfully submitted.

PER A. RAMFJORD TIMOTHY S. BISHOP

LEONARD J. FELDMAN Counsel of Record

JASON T. MORGAN JEFFREY W. SARLES

Stoel Rives LLP RICHARD BULGER

900 SW 5th Ave., CHAD CLAMAGE

Ste. 2600 Mayer Brown LLP

Portland, OR 97204 71 South Wacker Dr.

(503) 224-3380 Chicago, IL 60606

(312) 782-0600

WILLIAM K. SARGENT tbishop@mayerbrown.com

Tillamook County

Counsel MICHAEL B. KIMBERLY

1134 Main Ave. Mayer Brown LLP

Tillamook, OR 97141 1999 K St., NW

(503) 842-4921 Washington, DC 20006

(202) 263-3000

Counsel for Petitioners

AUGUST 2012

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