# Petitioners Brief — Decker v. Northwest Environmental Defense Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2013 - **Citation:** 568 U.S. 1118 ## Text 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. 1V 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 Vv 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 vi TABLE OF CONTENTS—continued Page D. The Ruling Below Undermines The Purposes Of The CWA’s Jurisdictional BE ITIIN sinipsacensnmninnsenedurebsnemsonidwonsensonnnene 57 IT cececesenecessesnssssseniwessecesenseeneneenenvnenesssvans 58 vl 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 ix 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 x 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 xl 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 XV 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. 2 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 3 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 4 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 5 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- 6 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 7 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 8 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. 9 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, 10 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- 11 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 12 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- 13 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. 14 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 15 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 16 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- 17 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. 18 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- 19 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- 20 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- 21 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. 22 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” 23 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)). 24 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 25 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”)). 26 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 27 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). 28 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- 29 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- 30 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 31 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- 32 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 33 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). 34 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). 35 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 36 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, 37 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- 38 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 39 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.” 40 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). 41 “[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, 42 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 43 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. 44 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 45 /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- 46 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- 47 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- 48 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- 49 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- 50 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 51 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.” 52 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- 53 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. 54 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 55 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. 56 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. 57 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- 58 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A17. Public record. Not legal advice.