Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338 and 11-347

Jn the Supreme Court of the United States

DouG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET. AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

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

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ETHAN G. SHENKMAN

Deputy Assistant Attorney

General

PRATIK A. SHAH

Assistant to the Solicitor

General

AARON P. AVILA

ScoTT C. FULTON “aa

General Counsel

U.S. Envi l Department of Justice

aceon ieee Washington, D.C. 20530-0001

Washington, D.C. 20460 SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that

a suit in which liability depends on the interpretation of

Clean Water Act (CWA) regulations, and in which the

court rejected the construction of the regulations prof-

fered by the Environmental Protection Agency (EPA),

may be adjudicated under the CWA’s citizen suit provi-

sion, 33 U.S.C. 1365(a), rather than under the CWA’s ju-

dicial review provision, 33 U.S.C. 1369(b).

2. Whether the court of appeals erred in not defer-

ring to EPA’s interpretation of the Phase I industrial

stormwater regulation, 40 C.F.R. 122.26(b)(14), that run-

off from logging roads does not constitute a stormwater

discharge “associated with industrial activity.”

3. Whether the court of appeals erred in not defer-

ring to EPA’s interpretation of the Silvicultural Rule, 40

C.F.R. 122.27(b)(1), that runoff from logging roads con-

stitutes silvicultural nonpoint-source pollution.

(I)

TABLE OF CONTENTS

Page

Beater, 6S Glu Ce CID cccncccncsnssnenensccensctncnsventeiansiaainiaiamaaels 1

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ROR sennscstnacrssnrtnnenssnnpinunansnnemnninnnmniaeiianiaiiainnanill 13

I. The CWA confers jurisdiction over this citizen

WER conseccccanasccnanenseseocnnsiiienneiidgieionmaiiontill 15

II. The court of appeais erred in failing to defer

to EPA’s interpretation of its regulations.................. 20

A. An agency’s interpretation of its regulation is

controlling unless it conflicts with the text or

structure of the regulation...................ccceeeeeeeeee 20

B. The court of appeals erred in not deferring to

EPA’s view that channeled runoff from logging

roads does not give rise to a stormwater

discharge “associated with industrial activity” ...... 23

C. The court of appeals erred in not deferring

to the EPA’s interpretation of the silvicultural

rule that runoff from logging roads constitutes

ROMPOMNE-SSUTSO POMMIAG ... ..0.cccccccccccccccecssesesess 28

CUTIE II... cccsucsintninntmadnesnsisiinnasditeantddeaiinaieiaslenddismemeeaneaee 33

TABLE OF AUTHORITIES

Cases:

Auer v. Robbins, 519 U.S. 452 (1997) .......0.... eee 10, 11, 20, 24

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

ETITIITTT inscotscsentiiteniasstiienhisieiinidenadeastitaiaaniaeatandaaasiaiataiacaiaaall 11, 20, 22, 29

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ............. 31

Coeur Alaska, Inc. v. Southeast Alaska Conservation

CE, GE Ce Ce Ci tccccnnntncnssccctinensianiiintaniitaiiaiieiiail 21

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980)....... 16

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112

CUTITUN ODD scccontsiunidissinasinninitacniatiialatsdesihdibaisteciamecia ieee saiiaaea ne 10, 16

Cases—Continued: Page

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) ...... 31

Environmental Def. v. Duke Energy Corp.,

I TTT ncn cisecennsianeesinesianbasessntennttusennsccetee 17, 19, 22

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

(9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004)........ 7, 25

League of Wilderness Defenders v. Forsgren,

309 F.3d 1181 (Sth Cir. 2002)..............escscssessseesereseesens 31

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

Tt aietiieicdieiatiasinididaninetiatiaidiatamaninemsnenannetessesemasetesancnente 3, 13, 31

NRDC v. EPA, 673 F.2d 400 (D.C. Cir.),

cert. denied, 459 U.S. 879 (1982) ...........cccscecsseeseeeserees 10, 16

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992).................. 10, 17

NRDC v. Train, 396 F. Supp. 1393 (D.D.C. 1975),

aff'd 568 F.2d 1369 (D.C. Cir. 1977)...........cccccceeseeeeeeeeeeees 31

National Cotton Council of Am. v. EPA, 553 F.3d

927 (6th Cir 2009), cert. denied, 130 S. Ct. 1505

STi lei tnpaeinnacenadncensnnsennansneseennnns 10, 16

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

i rican ce cretemnnceterinenetnmansenannctoseanees 31

Robertson v. Methow Valley Citizens Council,

ee 20

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) ...... 26

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

I ie ceca eneeremnnsenti 20

United States v. Larionoff, 431 U.S. 864 (1977) ........ccccceuees 21

Statutes and regulations:

Federal Water Pollution Contro] Act Amendments,

33 U.S.C. 1251 et seq.:

SN TIT icenisitsesscsnsncnenesnnsonaneowesnesontacannenesneenesnescetacens 2

Ss SIE Dcrressccesnenncensuesevescenscaseesesecestencesens 31

Statutes—Continued: Page

See IIE: TTI cicsinisiasaninensidansiehensinentcetaidmnipidedeiideniniaiill 2

tts SIT criiicusianciindstapantasemeunieiiaicinniiaiineiitieiipiiacuedianalll 3

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Se Se nitrite ietiiearaintepattiniasididininaniid passim

Water Quality Water Act of 1987, Pub. L. No. 100-4,

101 Stat. 69 (83 U.S.C. 1342(p)) .......escscssessssesesesssssnsseseseseeees 4

ee I ciaiectitestusciiipeniesptanicionencninpiiiiinladainidadia passim

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33 U.S.C. 1342(p)(2)(B)...........ccccs0000- 5, 11, 18, 14, 23, 25

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40 C.F.R.:

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VI

Regulations—Continued: Page

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Miscellaneous:

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Scientia cetacean daaetasianelltaiatanibiel 7

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In the Supreme Court of the Anited States

No. 11-338

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET. AL., PETITIONERS

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

No. 11-347

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

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The questions presented involve both jurisdictional

and substantive issues pertaining to the application of

the National Pollutant Discharge Elimination System

(NPDES) permitting program to stormwater discharges

from logging roads. The United States has a substantial

interest in the proper resolution of those questions.

Congress has entrusted the Environmental Protection

(1)

2

Agency (EF PA) with enforcement of the Clean Water Act

(CWA), including administration of the NPDES pro-

gram, and the proper interpretation of two of EPA’s

NPDES regulations (40 C.FR. 122.26(b)(14),

122.27(b)(1)) is at issue in this case. The threshold issue

involving 33 U.S.C. 1365(a) and 1369(b) potentially af-

fects the availability of avenues for enforcing the CWA

and challenging EPA action. At the Court’s invitation,

the United States filed a brief amicus curiae at the peti-

tion stage of this case.

STATEMENT

1. a. In 1972, Congress passed the Federal Water

Pollution Control Act Amendments (often referred to as

the CWA). 33 U.S.C. 1251 et seg. The CWA establishes

a comprehensive program designed “to restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. 125l(a). Section

301(a) of the CWA prohibits the “discharge of any pollu-

tant”—defined as “any addition of any pollutant to navi-

gable waters from any point source”’—except “as in

compliance with” specified provisions of the Act. 33

U.S.C. 1811(a), 1862(12)(A).

The Act defines “point source” as

any discernible, confined and discrete conveyance, in-

cluding but not limited to any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, roll-

ing stock, concentrated animal feeding operation, or

vessel or other floating craft, from which pollutants

are or may be discharged. This term does not include

agricultural stormwater discharges and return flows

from irrigated agriculture.

33 U.S.C. 1362(14). For most point-source discharges,

regulated entities achieve compliance by following the

3

terms of an NPDES permit issued by EPA or an author-

ized State pursuant to CWA Section 402, 33 U.SC. 1342,

or a permit issued by the Army Corps of Engineers un-

der CWA Section 404, 33 U.S.C. 1344. Other CWA pro-

visions establish mechanisms other than permits to ad-

dress discharges from “nonpoint sources.” E.g., 33

U.S.C. 1314(f), 1329.

b. After the CWA was enacted in 1972, EPA strug-

gled with the task of regulating stormwater discharges

from the hundreds of thousands of potential point sourc-

es. In 1973, to conserve the agency’s enforcement re-

sources for more significant sources of pollution, the

EPA promulgated a rule that exempted certain dis-

charges—e.g., discharges from stormwater runoff and

from silvicultural activities, including forest-land run-

off—from the NPDES permitting requirements. See

NRDC vy. Costle, 568 F.2d 1369, 1872-1373 & n.5 (D.C.

Cir. 1977) (citing 40 C.F.R. 125.4(f) and (j) (1975)). In

NRDC vy. Costle, the district court invalidated that ex-

emption as conflicting with CWA Section 402, and the

D.C. Circuit affirmed. The D.C. Circuit concluded that,

under the statutory scheme as it existed at that time,

EPA did “not have authority to exempt categories of

point sources from the permit requirements of § 402.”

Id. at 1377; see id. at 1383 (“We find a plain Congres-

sional intent to require permits in any situation of pollu-

tion from point sources.”). The court acknowledged,

however, that “[t]here is an initial question, to what ex-

tent point sources are involved in agricultural, silvicul-

tural, and storm sewer runoff.” Jd. at 1377. The court

stated that the statutory definition of “point source”

“suggests that there is room here for some exclusion by

interpretation.” Jbid.

4

In that vein, EPA also promulgated regulations that

further define the term “point source” as it applies to

various activities and facilities, including silvicultural

sources. In 1976, the agency adopted the Silvicultural

Rule, which defined four categories of silvicultural facili-

ties as point sources but excluded from that definition

(inter alia) “road construction and maintenance from

which runoff results from precipitation events.” 40

C.FE.R. 125.54(a)(1), emt. (1976). The current version of

the Silvicultural Rule, as amended in 1980, maintains the

same definition of “silvicultural point source” but now

excludes (in pertinent part) “road construction and

maintenance from which there is natural runoff.” 40

C.F.R. 122.27(b)(1).' EPA has construed that rule to

mean that logging roads are not silvicultural point

sources, even if the runoff from logging roads flows

through a ditch, channel, or culvert before being re-

leased into waters of the United States. See J.A. 27, 39.

c. In 1987, Congress amended the CWA to take ac-

count of the unique challenges that EPA faces in manag-

ing the water quality impacts of stormwater discharges.

Pub. L. No. 100-4, 101 Stat. 69 (83 U.S.C. 1342(p)).

‘ The Silvicultura] Rule reads as follows:

Silvicultural point source means any discernible, confined and

discrete conveyance related to rock crushing, gravel washing, log

sorting, or log storage facilities which are operated in connection

with silvicultural activities and from which pollutants are dis-

charged into waters of the United States. The term does not in-

clude non-point source silvicultural activities such as nursery op-

erations, site preparation, reforestation and subsequent cultural

treatment, thinning, prescribed burning, pest and fire control,

harvesting operations, surface drainage, or road construction and

maintenance from which there is natural runoff.

40 C.F.R. 122.27(b)(1).

5

CWA Section 402(p), which addresses “discharges com-

posed entirely of stormwater,” established a temporary

moratorium on NPDES permit requirements for such

discharges, with the exception of five categories of dis-

charges listed in 33 U.S.C. 1342(p)(2). Section 402(p)

also required EPA to establish regulations setting forth

permit-application requirements for specified categories

of stormwater point-source discharges and to conduct

studies to determine what other discharges should be

regulated to protect water quality. The statute contem-

plated that those regulations would be promulgated

through a phased approach, the first commonly referred

to as Phase I and the second as Phase II. 33 U.S.C.

1342(p)(4)(A) and (B).

Phase I covers the five enumerated categories of

stormwater discharges, including stormwater discharg-

es “associated with industrial activity.” 33 U.S.C.

1342(p)(2)(B). The 1987 amendment requires NPDES

permits for those discharges and directs EPA to regu-

late them accordingly. 33 U.S.C. 1342(p)(8) and (4)(A).

The CWA does not define the term stormwater dis-

charge “associated with industrial activity.” In 1990,

EPA promulgated Phase I regulations that define that

term as

the discharge from any conveyance that is used for

collecting and conveying storm water and that is di-

rectly related to manufacturing, processing or raw

materials storage areas at an industrial plant. The

term does not include discharges from facilities or ac-

tivities excluded from the NPDES program under

this part 122. For the categories of industries identi-

fied in this section, the term includes, but is not lim-

ited to, storm water discharges from * * * immedi-

ate access roads * * * used or traveled by carriers

6

of raw materials, manufactured products, waste ma-

terial, or by-products used or created by the facili-

ty[.] * * * The following categories of facilities are

considered to be engaging in “industrial activity” for

purposes of paragraph (b)(14):

* * *

(ii) Facilities classified as Standard Industrial Classi-

fications 24 (except 2434), 26 (except 265 and 267), 28

(except 283), 29, 311, 32 (except 323), 33, 3441, 373.

40 C.F-R. 122.26(b)(14).?

Phase II covers stormwater discharges other than

those enumerated in 33 U.S.C. 1342(p)(2). The 1987

amendment authorizes EPA to designate, as part of

Phase II, any additional stormwater discharges “to be

regulated to protect water quality.” 33 U.S.C. 1342(p)(5)

and (6). Under Section 402(p)(6), EPA must “establish a

comprehensive program” that “shall, at a minimum, (A)

establish priorities, (B) establish requirements for State

stormwater management programs, and (C) establish

expeditious deadlines.” 33 U.S.C. 1342(p)(6). The pro-

gram “may include performance standards, guidelines,

guidance, and management practices and treatment re-

quirements, as appropriate.” Jbid. EPA is authorized to

require NPDES permits for Phase II discharges, but it

is not required to do so. /bid.

In 1999, EPA promulgated regulations that designat-

ed two categories of stormwater point-source discharges

(neither of which is relevant to this case) for Phase II

* The regulation incorporates by reference the enumerated

Standard Industrial Classification (SIC) codes. “Logging” is a sub-

category (2411) of SIC code 24. Standard Industrial Classifications

Manual, Div. D, Major Group 24, Industry Group 241, 2411 Logging,

available at http://www.osha.gov/pls/imis/sic_manual.html.

7

regulation under Section 402(p)(6). 64 Fed. Reg. 68,722,

68,734 (Dec. 8, 1999) (codified in pertinent part at 40

C.F.R. 122.26(a)(9)(i)). EPA also reserved the authority

to designate additional discharges for Phase II regula-

tion at a later date. /bid.*

2. Respondent commenced this action under the

CWA’s citizen-suit provision, 33 U.S.C. 1365. Respond-

ent alleged that stormwater discharges associated with

two logging roads in Oregon violate the Act because the

roads at issue collect, channel, and discharge sterm-

water runoff to waters of the United States—without

NPDES permits—via ditches, pipes, and culverts.

II J.A. 2-8, 7-9 (First Amended Complaint).

Petitioners are state officials and private timber

companies who control the relevant logging roads and

were named as defendants in this suit. Supported by

the United States as amicus curiae, petitioners moved to

dismiss the complaint for failure to state a claim. The

district court granted the motion. The court held that,

under EPA’s Silvicultural Rule, 40 C.F.R. 122.27(b)(1),

discharges from logging roads were not required to have

> In 2003, the Ninth Circuit remanded to EPA the question wheth-

er to regulate stormwater discharges from forest roads under Phase

Il. See Environmental Def. Ctr. v. EPA, 344 F.3d 832, 863, cert. de-

nied, 541 U.S. 1085 (2004). EPA continues to review available infor-

mation on the water-quality impacts of stormwater discharges from

forest roads, including logging roads, as well as existing practices to

contro] these discharges. On May 23, 2012, EPA announced that it

“is considering designating a subset of stormwater discharges from

forest roads for appropriate action” under the agency’s Phase II

rulemaking authority. Notice of Intent to Revise Stormwater Regit-

lations to Specify that an NPDES Permit is not Required for

Stormwater Discharges from Logging Roads and to Seek Comment

on Approaches for Addressing Water Quality Impacts from Forest

Road Discharges, 77 Fed. Reg. 30,473, 30,479.

8

NPDES permits because EPA had categorized natural

runoff from those roads and other sources as “non-point

source” pollution. Pet. App. 53-77.‘

3. The court of appeals reversed. Pet. App. 1-52.°

a. As in the district court, the government filed an

amicus brief arguing that, under EPA’s Silvicultural

Rule, all precipitation-driven runoff from logging roads

is not currently regulated under the NPDES permitting

program, even if it flows through a ditch, channel, or

culvert before being discharged into waters of the Unit-

ed States. See I J.A. 27, 39. The court of appeals re-

jected that interpretation of the regulation. Pet. App.

34-37. The court stated that “there are two possible

readings of the Silvicultural Rule,” and it acknowledged

that the interpretation advanced in the government’s

amicus brief “reflects the intent of EPA in adopting the

Rule.” Jd. at 36. The court concluded, however, that an

alternative reading of the rule was preferable because it

would “allow [the court] to construe the Rule to be con-

sistent with the statute,” in particular, the CWA’s defini-

tion of “point source.” Jd. at 37. The court held that the

Silvicultural Rule does not exempt from NPDES re-

quirements stormwater runoff from logging roads that

is systemically collected and channeled through man-

made ditches and culverts before being discharged into

waters of the United States. /bid.

b. Petitioners and the government further argued

that, even if such channeled runoff from logging roads

* References to “Pet. App.” are to the appendix to the petition for a

writ of certiorari in No. 11-338.

> The initial court of appeals opinion was published at 617 F.3d

1176, but the discussion in this brief cites the superseding opinion,

which was published at 640 F.3d 1063 and is reprinted in the appen-

dix to the certiorari petition.

9

constitutes a “point source” discharge, such discharges

are not subject to NPDES permitting requirements un-

der EPA's stormwater regulations promulgated pursu-

ant to 33 U.S.C. 1342(p). Pet. App. 37-48. Petitioners

and the government contended, in particular, that the

discharges at issue here are not “associated with indus-

trial activity” as EPA has defined that term. See zd. at

44-47; 40 C.F.R. 122.26(b)(14). The court of appeals re-

jected that understanding of EPA’s regulatory defini-

tion. The court found it “undisputed that ‘logging,’

which is covered by SIC (Standard Industrial Classifica-

tion] 2411 (part of SIC 24), is an ‘industrial activity.’”

Pet. App. 44-45. The court construed the regulation’s

reference to “immediate access roads”—defined in

EPA’s Phase I stormwater rule preamble to mean

“roads which are exclusively or primarily dedicated for

use by the industrial facility”—as covering the roads at

issue here. /d. at 45-47.

4. a. Petitioners filed petitions for rehearing in the

court of appeals. The court of appeals thereafter or-

dered a response and posed two threshold questions: (1)

“Cana suit challenging EPA’s interpretation of its regu-

lations implementing the Clean Water Act’s permitting

requirements be brought under the Act’s citizen suit

provision, 33 U.S.C. § 1365(a)?” (2) “Must a suit chal-

lenging EPA’s decision to exempt the discharge of a pol-

lutant from the Clean Water Act’s permitting require-

ments be brought under the Act’s agency review provi-

sion, 33 U.S.C. § 1369(b)?” I J.A. 7 (Docket entry No.

106).

Section 1369(b) authorizes private parties to obtain

direct court of appeals review of certain EPA actions,

including actions taken in “promulgating any effluent

limitation or other limitation under section 1311” or “in

10

issuing or denying any permit under section 1342.” 33

U.S.C. 1369(b)(1)(E) and (F). EPA’s NPDES regula-

tions are generally subject to immediate appellate re-

view under that provision. See, e.g., National Cotton

Council of Am. v. EPA, 553 F.3d 927, 932-933 (6th Cir.

2009), cert. denied, 1380 S. Ct. 1505 (2010); NRDC v.

EPA, 966 F.2d 1292, 1296-1297 (9th Cir. 1992); NRDC v.

EPA, 673 F.2d 400, 404-406 (D.C. Cir.), cert. denied, 459

U.S. 879 (1982) (citing E.J. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 1386 (1977)). Such review must be

sought within 120 days after the relevant EPA action,

unless a challenge is “based solely on grounds which

arose after such 120th day.” 33 U.S.C. 1869(b)(1). Any

action “with respect to which review could have been ob-

tained under [Section 1369(b)(1)] shall not be subject to

judicial review in any civil or criminal proceeding for en-

forcement.” 33 U.S.C. 1369(b)(2).

In response to the court of appeals’ questions,

the United States filed another amicus brief. The gov-

ernment expressed the view that, although Section

1369(b)(2) would preclude the court in a Section 1365(a)

citizen suit from invalidating the EPA regulations impli-

cated by this case, Section 1369(b)(2) did not necessarily

preclude the court from interpreting those regulations

differently than EPA had interpreted them. I J.A. 55-

57. The government further argued, however, that the

court was required to defer to the agency’s interpreta-

tion so long as that interpretation was not “plainly erro-

neous or inconsistent with the regulation.” I J.A. 58

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

The court of appeals denied rehearing and issued a

superseding panel opinion. Pet. App. 1-52. In a new

section entitled “Subject Matter Jurisdiction,” the court

held that Section 1369(b) “does not bar a citizen suit

1]

challenging EPA’s Silvicultural Rule interpretation first

adopted in its initial amicus brief inthis case.” Pet. App.

8-10. The court adhered to the remainder of its opinion.

SUMMARY OF ARGUMENT

I. The courts below properly exercised jurisdiction

over this action pursuant to the CWA’s citizen-suit pro-

vision. Because the EPA regulations relevant to this

case (the Silvicultural Rule and the Phase I industrial

stormwater regulation) could have been challenged ina

court of appeals under 33 U.S.C. 1369(b) at the time

they were promulgated, they are not subject to judicial!

review in this citizen suit brought under 33 U.S.C.

1365(a). The court of appeals did not declare either of

those rules invalid, however, but rather rejected the in-

terpretations of those rules set forth in the govern-

ment’s amicus brief. Although the court should have de-

ferred to EPA’s reasonable construction of its own rules,

it did not err in entertaining this citizen enforcement

suit.

II. The court of appeals misinterpreted both of the

EPA regulations at issue in this case. Properly con-

strued, each of those rules independently dictates the

conclusion that NPDES permits are not required for the

discharges at issue.

A. EPA’s construction of its own rule is “controlling”

unless that construction is “plainly erroneous or incon-

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

452, 461 (1997). That principle applies even where, as

here, the court is precluded from determining whether

the regulation so construed is consistent with the gov-

erning statute. See Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410, 414, 418-419 (1945).

B. The CWA requires NPDES permits for storm-

water discharges “associated with industrial activity,” 33

12

U.S.C. 1342(p)(2)(B), but the Act does not define that

term. EPA has construed its Phase I industrial storm-

water regulation not to require such permits for storm-

water discharges from logging roads. That position re-

flects a reasonable construction of the regulation’s text.

The Phase I regulation refers to discharges from “[f]a-

cilities classified as Standard Industrial Classification{]

24,” which include logging establishments. 40 C.F.R.

122.26(b)(14)Gi). EPA has construed that reference,

however, as encompassing only discharges from the four

subcategories of silvicultural facilities it had already

identified as point sources in the Silvicultural Rule,

which do not include runoff from logging roads. Be-

cause the stormwater discharges at issue in this case are

not covered by EPA’s Phase I regulations, the judgment

of the court of appeals should be reversed, without re-

gard to whether those discharges are “point source” dis-

charges under the Act and the Silvicultural Rule.

C. Because the Phase I regulation (properly con-

strued) provides a sound basis for concluding that peti-

tioners were not required to obtain NPDES permits, the

Court reed not determine whether the Silvicultural Rule

also compels the same result. If the Court reaches the

issue, however, it should sustain E PA’s interpretation of

the Silvicultural Rule, under which no permit is required

for “natural runoff” from logging roads. The storm-

water discharges at issue here do not implicate any of

the four types of silvicultural facilities (“rock crushing,

gravel washing, log sorting, [and] log storage facilities”)

that the rule specifically identifies as “[(s]ilvicultural

point source[s].” 40 C.F.R. 122.27(b)(1). And while the

Silvicultural Rule does not state explicitly whether its

reference to “natural runoff” includes systematically

13

channeled runoff, EPA's resolution of that ambiguity is

entitled to judicial deference under Auer.

The court of appeals rejected EPA’s reading on the

ground that it would render the Silvicultural Rule incon-

sistent with the CWA’s definition of “point source.”

Seminole Rock, however, precludes that sort of inquiry

under the circumstances presented here because EPA’s

interpretation of its Rule is controlling. In any event,

the CWA’s definition of “point source,” 33 U.S.C.

1362(14), affords EPA “room here for some exclusion by

interpretation,” particularly with respect to silvicultural

sources. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir.

1977).

ARGUMENT

The 1987 CWA amendments reflect Congress’s de-

termination that, although point-source stormwater dis-

charges can significantly affect the quality of navigable

waters, a blanket requirement of NPDES permits for all

such discharges was an unwieldy regulatory tool. Con-

gress accordingly enacted a more nuanced scheme that

was specifically designed for stormwater. The essence

of that scheme was to identify limited categories of

stormwater discharges for which NPDES permits would

still be required by statute, while giving EPA broad dis-

cretion to devise appropriate measures for addressing

stormwater discharges outside the defined categories.

The court of appeals’ decision in this case depends on

the proposition that the discharges at issue here were

“associated with industrial activity” within the meaning

of an EPA regulation that implements the 1987 CWA

amendment, specifically 33 U.S.C. 13842(p)(2)(B). The

court did not hold that the statutory language compels

that conclusion, but instead interpreted the terms of the

EPA rule itself. The court reached that conclusion de-

14

spite the government’s unequivocal explanation, in its

amicus brief in the Ninth Circuit, that EPA holds a con-

trary view about the meaning of the regulation. If this

Court rejects that aspect of the court of appeals’ analy-

sis, and holds that the pertinent discharges are not “as-

sociated with industrial activity” for purposes of Section

1342(p)(2)(B) and EPA’s Phase I regulations, the case

will be at an end. It will then be unnecessary for the

Court to decide whether, under the Act and the Silvicul-

tural Rule, EPA has discretion to determine which dis-

charges of stormwater from logging roads are point-

source discharges.

For two basic reasons, a determination that petition-

ers’ discharges are not “associated with industrial activi-

ty” would be the soundest and most straightforward

way of deciding this case. First, Section 1342(p) reflects

Congress’s more recent, and more specific, direction to

EPA regarding control of stormwater discharges. The

Silvicultural Rule, by contrast, was promulgated prior to

the 1987 CWA amendments under a statutory regime

that required NPDES permits for all point-source dis-

charges of pollutants, including discharges of storm-

water. That regime, which fueled multiple agency ef-

forts (including the Silvicultural Rule) to accommodate

the CWA’s broad application in light of the practical dif-

ficulties of including all potentially covered sources, has

effectively been superseded with respect to discharges

composed entirely of stormwater. See pp. 3-7, supra.*®

° In implementing its responsibility to protect the Nation’s inter-

est in maintaining and improving the quality of its waters, EPA in its

May 23, 2012, Federal Register notice stated that it is considering the

possibility of regulating a subset of stormwater discharges from for-

est roads, through means other than NPDES permits, pursuant to its

15

Second, determining that NPDES permits are not

required pursuant to the industrial stormwater regula-

tion would obviate the need for the Court to resolve the

difficult question, which arises only with respect to the

Silvicultural Rule, of whether a court may reject EPA’s

interpretation of its rule on the ground that the inter-

pretation would be inconsistent with the Act. Petition-

ers contend that the court of appeals exceeded the limits

imposed by 33 U.S.C. 1369(b)(2) because its decision im-

plicitly invalidated the pertinent EPA rules. With re-

spect to EPA’s regulatory definition of “discharge asso-

ciated with industrial activity,” that argument clearly

lacks merit. Although the court of appeals erred in fail-

ing to defer to the agency’s construction of that rule, the

court’s contrary interpretation cannot be viewed as any-

thing other than an interpretation of the rule. With re-

spect to the Silvicultural Rule, however, the line between

interpretation and invalidation is less clear, since the

court of appeals’ stated reason for rejecting EPA's con-

struction of that rule was that the rule, as EPA con-

strued it, would be inconsistent with the CWA. By re-

solving this case on the basis of the Phase I stormwater

regulation, the Court can avoid the issue of “statutory

avoidance” raised by the interplay between Section

1369(b)(2) and various principles of regulatory interpre-

tation.

I. THE CWA CONFERS JURISDICTION OVER THIS CITI-

ZEN SUIT

The CWA'’s citizen-suit provision authorizes private

citizens to bring enforcement actions against any person

“who is alleged to be in violation of (A) an effluent

Section 402(p)(6) stormwater rulemaking authority. 77 Fed. Reg. at

30,479.

16

standard or limitation under this chapter or (B) an order

issued by the Administrator or a State with respect to

such a standard or limitation.” 33 U.S.C. 1365(a)(1).

The violations that are redressable through a citizen suit

include, inter alia, discharges of pollutants into waters

of the United States without an NPDES permit. See 33

U.S.C. 1365(f) (defining the term “effluent standard or

limitation under this chapter”). Section 1369(b), by con-

trast, provides for immediate review by a court of ap-

peals of various EPA actions, including the promulgation

of NPDES regulations. 33 U.S.C. 1369(b)(1); see pp. 9-

10, supra.. A review proceeding under Section

” Section 1369(b)(1) authorizes direct court of appeals review of

“the Administrator’s action * * * (E) in approving or promulgating

any effluent limitation or other limitation under section 1311, 1312,

1316 or 1345 of [the Act], [or] (F) in issuing or denying any permit

under section 1342 of [the Act].” 33 U.S.C. 1369(b)(1)(E) and (F). In

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977), the

Court construed that provision to authorize review of EPA’s indus-

try-wide regulations establishing uniform effluent limitations for par-

ticular categories of plants. See id. at 115, 136. The Court explained

that a contrary result “would produce the truly perverse situation in

which the court of appeals would review numerous individual actions

issuing or denying permits pursuant to [CWA Section 402] but would

have no power of direct review of the basic regulations governing

those individual actions.” /d. at 136. Based on T'rain, courts of ap-

peals have understood Section 1369(b)(1)(E) to authorize direct re-

view of NPDES permitting regulations, including EPA’s consolidated

permitting regulations, which set forth “a complex set of procedures

for issuing or denying NPDES permits.” NRDC v. EPA, 673 F.2d

400, 402 (D.C. Cir.), cert. denied, 459 U.S. 879 (1982). This Court also

has interpreted Section 1369(b)(1)(F) to encompass actions that are

“functionally similar” to the issuance or denial of an NPDES permit.

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196 (1980). Courts

of appeals have since relied on that provision to review NPDES per-

mitting regulations. See National Cotton Council of Am. v. EPA,

17

1369(b)(1) must be commenced within 120 days of the

challenged action, unless the basis for the suit arises af-

ter that period. /bid.

Section 1365(a) clearly confers jurisdiction over this

citizen suit, in which respondent alleges CWA violations

arising from petitioners’ discharges into waters of the

United States. See 33 U.S.C. 1365(a) (“The district

courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties,

to enforce * * * an effluent standard or limitation.”).

Although petitioners purport to challenge the court of

appeals’ “jurisdiction,” their challenge, properly con-

ceived, does not go to that court’s jurisdiction. Rather,

the disputed issue here concerns the range of arguments

the courts below could properly consider in determining

whether petitioners were liable under the Act for dis-

charges of pollutants without an NPDES permit.

Any EPA action that could have been challenged un-

der Section 1369(b)(1) “shall not be subject to judicial

review in any civil or criminal proceeding for enforce-

ment.” 33 U.S.C. 1369(b)(2). Because a citizen suit is a

“civil * * * proceeding for enforcement” within the

meaning of that provision, the court in such a suit may

not disregard pertinent E PA regulations on the ground

that they are inconsistent with the statute, since that

would constitute the “judicial review” of EPA action that

Section 1369(b)(2) forbids. Cf. Environmental Def. v.

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

that a lower court’s “implicit invalidation” of a pertinent

EPA rule was “a form of judicial review implicating” an

analogous limitation of review under the Clean Air Act).

By contrast, courts in CWA citizen suits often must in-

553 F.3d 927, 932-933 (6th Cir. 2009), cert. denied, 130 S. Ct. 1505

(2010); NRDC v. EPA, 966 F.2d 1292, 1296-1297 (9th Cir. 1992).

18

terpret applicable EPA regulations in order to determine

whether the defendant has violated any “effluent stand-

ard or limitation.”

Under that rubric, the court of appeals’ interpreta-

tion of EPA’s “associated with industrial activity” regu-

lation raises no jurisdictional concern under Section

1369(b)(2). As we explain below (pp. 23-27, infra), the

court’s interpretation of that rule is erroneous, both be-

cause it is contrary to the most natural reading of the

regulatory text, and because the court failed to give ap-

propriate deference to EPA's interpretation of its own

rule. Nothing in the court’s analysis suggests, however,

that the decision was anything other than an interpreta-

tion (as opposed to invalidation) of the “associated with

industrial activity” rule.

The court of appeals’ treatment of the Silvicultural

Rule presents a closer question. The court adopted an

interpretation of that rule that “does not reflect the in-

tent of EPA,” based on a determination that the court’s

own construction “would allow [the court] to construe

the Rule to be consistent with the statute.” Pet. App. 37.

Petitioners contend that the court of appeals’ ruling

amounts to an implicit invalidation of the rule, which

Section 1369(b)(2) bars. See 11-338 Pet. Br. 38-39; 11-

347 Pet. Br. 52-54. This Court’s decision in Duke Energy

indicates, however, that Section 1369(b)(2) generally

does not preclude the court in a CWA citizen suit from

invoking what might be termed “statutory avoidance”

principles in resolving a regulatory ambiguity.

The Court in Duke Energy distinguished, for purpos-

es of an analogous Clean Air Act judicial-review provi-

sion, “between a purposeful but permissible reading of

the regulation adopted to bring it into harmony with the

Court of Appeals’s view of the statute, and a determina-

19

tion that the regulation as written is invalid.” 549 U.S.

at 573. The present case falls into the former category.

The Silvicultural Rule’s reference to “natural runoff”

associated with logging roads neither clearly encom-

passes nor clearly excludes the sort of channeled runoff

that is at issue in this case. The court of appeals’ con-

struction therefore qualifies as a “purposeful but per-

missible reading of the” Silvicultural Rule, rather than a

de facto invalidation. Compare Duke Energy, 549 U.S.

at 581 (where court of appeals’ interpretation was

“doomed” by the “text of the [pertinent] regulations,”

court’s decision constituted “an implicit invalidation of

those regulations”).

The question of the court of appeals’ treatment of the

Silvicultural Rule is further complicated by the fact that,

in choosing an interpretation the court believed neces-

sary to render the rule consistent with the statute, the

court of appeals rejected EPA’s own construction of that

rule as set forth in the government’s amicus brief. As

we explain below, the court of appeals erred in rejecting

EPA's construction of the Silvicultural Rule. That error,

however, is properly viewed as a misapplication of gen-

eral administrative-law principles rather than as a viola-

tion of Section 1369(b)(2). Duke Energy suggests that

the court of appeals did not violate Section 1369(b)(2) by

engaging in statutory avoidance, but Seminole Rock

precluded the court from rejecting E PA’s interpretation

of the Silvicultural Rule on the ground that it would con-

flict with the Act. See pp. 21-22, 28-30, infra.

Ii. THE COURT OF APPEALS ERRED IN FAILING TO DE-

FER TO EPA’S INTERPRETATION OF ITS REGULA-

TIONS

Two independent rationales support the district

court’s conclusion that NPDES permits are not required

20

for discharges of systematically collected and channeled

runoff from logging roads. First, under EPA's interpre-

tation of its Phase I stormwater regulations, the dis-

charges at issue here are not “associated with industrial

activity.” Second, under EPA’s interpretation of its Sil-

vicultural Rule, such discharges do not constitute “point

source” discharges. The court of appeals identified no

sound basis for rejecting the agency’s definitive inter-

pretations of its own rules.

A. An Agency’s Interpretation Of Its Regulation Is Control-

ling Unless It Conflicts With The Text Or Structure Of

The Regulation

Where (as here) resolution of a citizen suit turns on

the interpretation of ambiguous regulatory terms, a

court must defer to the agency’s interpretation of its

own rule, as presented in an amicus brief, unless that

interpretation is “plainly erroneous or inconsistent with

the regulation.” Auer, 519 U.S. at 461 (quoting Hobert-

son v. Methow Valley Citizens Council, 490 U.S. 332, 359

(1989) (quoting Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945))); see, e.g., Talk Am., Ine. v.

Michigan Bell Tel. Co., 131 S. Ct. 2254, 2265 (2011)

(“The FCC as amicus curiae has advanced a reasonable

interpretation of its regulations, and we defer to its

views.”). The Auer inquiry focuses solely on the regula-

tory text and structure. If an agency’s interpretation is

not “plainly erroneous or inconsistent with the regula-

tion,” the agency’s interpretation of its regulation be-

comes “controlling.” Awer, 519 U.S. at 461; see, e.g.,

Coeur Alaska, Inc. v. Southeast Alaska Conservation

Council, 557 U.S. 261, 278 (2009) (finding that EPA’s in-

terpretation of its regulations was “not plainly errone-

ous or inconsistent with the regulations, and so we ac-

21

cept it as correct”) (internal quotation marks and brack-

ets omitted).

After a court defers to the agency’s linguistically

plausible construction of its own regulation, it typically

may then consider any contention that the regulation, so

construed, is inconsistent with the governing statute.

See United States v. Larionoff, 431 U.S. 864, 872-873

(1977) (“Since [the agency’s] interpretation is not plainly

inconsistent with the wording of the regulations, we ac-

cept the Government’s reading of those regulations as

correct. This, however, does not end our inquiry. For

regulations, in order to be valid, must be consistent with

the statute under which they are promulgated.”). Under

some judicial-review provisions, however, a court that is

authorized to interpret an agency regulation is barred

from passing on the regulation’s validity. In that cir-

cumstance, the court must assess the propriety of the

agency’s interpretation based on the Auer standard

alone, 2.e., by determining whether the agency’s con-

struction conflicts with the text and structure of the

regulation. The court may not reject an agency inter-

pretation that would otherwise be entitled to deference

based on the court’s view that a different construction is

necessary to prevent a conflict with the governing stat-

ute.

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

(1945), the seminal precursor to Auer, the Court applied

that framework in interpreting regulations promulgated

by the Office of Price Administration under the Emer-

gency Price Control Act of 1942, Pub. L. No. 77-421, 56

Stat. 23. 325 U.S. at 411. The Court announced the

standard, later reiterated in Auer, that an agency’s in-

terpretation is controlling “unless it is plainly erroneous

or inconsistent with the regulation.” Jd. at 414. The

22

Court explained that, in construing the pertinent regula-

tion, its “only tools, therefore, are the plain words of the

regulation and any relevant interpretations of the Ad-

ministrator.” Jbid. (emphasis added). After affording

the administrative interpretation controlling weight un-

der that standard, the Court did not address the statu-

tory or constitutional validity of the regulation so con-

strued. See ibid. (stating that the “only problem” before

the Court was “to discover the meaning of” particular

regulatory provisions, while noting that “[t]he legality of

the result reached by this process * * * is quite a differ-

ent matter”). Rather, the Court held that it lacked au-

thority to decide that separate question because, under

the applicable statutory regime, questions of regulatory

validity were required to be presented in the first in-

stance to the Emergency Court of Appeals. /d. at 418-

419.

The same principle applies here. In order to adjudi-

cate respondent’s citizen suit against petitioners, the

court of appeals was required “to discover the meaning,”

Seminole Rock, 325 U.S. at 414, of the pertinent EPA

regulations. If EPA had not proffered an interpretation

of those regulations that was entitled to Auer deference,

the court would have been required to construe the rules

de novo, and it might have adopted “a purposeful but

permissible reading of the regulation adopted to bring it

into harmony with the [court’s] view of the statute.”

Duke Energy, 549 U.S. at 573. The court could not,

however, permissibly invoke “statutory avoidance” prin-

ciples as a ground for rejecting an agency interpretation

of the regulation that satisfied the criteria for Auer def-

erence.®

* In its brief in opposition to the petitions for certiorari, respondent

disavowed any argument that either the Silvicultural Rule or the

23

B. The Court Of Appeals Erred In Not Deferring To EPA’s

View That Channeled Runoff From Logging Roads

Does Not Give Rise To A Stormwater Discharge “Asso-

ciated With Industrial Activity”

The 1987 CWA amendment established an exception,

with respect to stormwater discharges, to the Act’s gen-

eral requirement that point-source discharges of pollu-

tants to waters of the United States require NPDES

permits. See 33 U.S.C. 1342(p). The Act continues to

require NPDES permits for stormwater discharges in

five enumerated categories, 33 U.S.C. 1342(p)(2), ineclud-

ing those “associated with industrial activity,” 33 U.S.C.

1342(p)(2)(B). Pursuant to Section 402(p)(6), EPA is au-

thorized, but not required, to designate additional

sources of stormwater for regulation, either through

NPDES permits or through other regulatory mecha-

nisms.

The Act does not define the term “associated with in-

dustrial activity,” but the 1987 amendment required

EPA to promulgate regulations relating to industrial

and other Phase I stormwater discharges. 33 U.S.C.

1342(p)(4)(A). In 1990, EPA issued Phase I regulations

that, inter alia, define “storm water discharge associat-

ed with industrial activity” to mean

Phase I regulation violates the CWA, and reaffirmed that it is not

seeking to invalidate either regulation in this litigation. Br. in Opp.

20-21. This case therefore does not present the question whether,

under the CWA’s judicial-review provisions, clarification of EPA’s

interpretation of its preexisting rule can provide a new opportunity

for review of the rule itself. See 33 U.S.C. 1369(b)(1) (requiring ap-

plication for review within 120 days of the regulation’s promulgation,

unless “such application is based solely on grounds which arose after

such 120th day”); 33 U.S.C. 1369(b)(2) (precluding review in enforce-

ment proceedings of EPA actions “with respect to which review could

have been obtained” under Section 1369(b)(1)).

24

the discharge from any conveyance that is used for

collecting and conveying storm water and that is di-

rectly related to manufacturing, processing or raw

materials storage areas at an industrial plant. The

term does not include discharges from facilities or ac-

tivities excluded from the NPDES program under

this part 122. For the categories of industries identi-

fied in this section, the term includes, but is not lim-

ited to, storm water discharges from * * * immedi-

ate access roads * * * used or traveled by carriers

of raw materials, manufactured products, waste ma-

terial, or by-products used or created by the facility.

40 C.F.R. 122.26(b)(14). To identify the categories of

“facilities” engaged in “industrial activity,” E PA’s regu-

lation further incorporates by reference Standard In-

dustrial Classification (SIC) codes, including SIC code

24, of which “logging” is subcategory 2411. 40 C.ER.

122.26(b)(14)(ii).

As explained above (pp. 20-22, supra), EPA's inter-

pretation of its regulation defining “associated with in-

dustrial activity” is controlling unless that interpreta-

tion is “plainly erroneous or inconsistent with the regu-

lation.” Auer, 519 U.S. at 461. Relying primarily on the

regulation’s reference to SIC code 2411, the court of ap-

peals construed EPA's rule to treat the discharges at is-

sue here as discharges “associated with industrial activi-

ty.” Pet. App. 44-47. The government’s amicus brief ex-

plained, however, that “EPA primarily referenced this

SIC code to regulate traditional industrial sources such

as sawmills.” I J.A. 42. That understanding is con-

sistent with EPA’s explanation, at the time the rule was

promulgated, that “[e]stablishments identified under

SIC 24 (except 2434) are engaged in operating sawmills,

planing mills and other mills engaged in producing lum-

25

ber and wood basic materials.” 55 Fed. Reg. 47,990,

48,008 (Nov. 16, 1990).

The government’s amicus brief further explained that

“(bly not excluding SIC code 2411 (the logging subcate-

gory), EPA intended to reference only the four subcate-

gories of silvicultural facilities it had already defined as

point sources in” the Silvicultural Rule—~.e., rock crush-

ing, gravel washing, log sorting, and log storage.

I J.A. 43.° Those facilities are more closely associated

with traditional industrial activities than are logging

roads, which are often used for recreational purposes

rather than as “immediate access roads” to those facili-

ties. I J.A. 44. EPA’s interpretation is also consistent

with the terms of SIC code 2411, which defines “log-

ging” facilities as “establishments primarily engaged in

cutting timber and in producing . . . primary forest or

” That understanding is buttressed by the fact that EPA’s defini-

tion of “storm water discharge associated with industrial activity”

expressly exempts activities that are “excluded from the NPDES

program under this part 122,” 40 C.F.R. 122.26(b)(14), including un-

der the Silvicultural Rule, 40 C.F.R. 122.27. See also 55 Fed. Reg. at

48,011 (preamble stating that EPA did not intend “to change the

scope of 40 CFR 122.27 in this rulemaking,” and that “‘storm water

discharge associated with industrial activity’ does not include sources

* * * which are excluded under 40 CFR 122.27”). In the preamble

to the 1990 Phase I regulations, EPA stated its intent to examine the

scope of the Silvicultural Rule as it related to stormwater discharges

in the course of two studies required under CWA Section 402(p)(5).

Ibid. Based on those studies, EPA promulgated the Phase II rule in

1999. That rule was challenged in Environmental Defense Center v.

EPA, 344 F.3d 832, 860-863 (9th Cir. 2003), cert. denied, 541 U.S.

1085 (2004), and the court of appeals remanded to EPA the question

whether stormwater discharges from forest roads should have been

regulated pursuant to Section 402(p)(6). That remand would have

been pointless if such runoff was already regulated under Phase I

pursuant to Section 402(p)(2)(B).

26

wood raw materials . . . in the field.” Pet. App. 45

(emphasis added). Thus, while the text of the regulation

might not foreclose respondent’s alternative reading of

the term “associated with industrial activity,” EPA’s in-

terpretation of its own rule is reasonable and therefore

should have been afforded Auer deference. See Pauley

v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991)

(“While it is possible that the claimants’ parsing of these

impenetrable regulations would be consistent with ac-

cepted canons of construction, it is axiomatic that the

Secretary’s interpretation [of the regulations] need not

be the best or most natural one by grammatical or other

standards. Rather, the Secretary’s view need be only

reasonable to warrant deference.”) (citations omitted).

With respect to the Silvicultural Rule, the court of

appeals identified the need for consistency with the gov-

erning statute as its rationale for rejecting EPA’s under-

standing of its own regulation. See Pet. App. 36-37.

With respect to the regulatory definition of “discharge

associated with industrial activity,” by contrast, the

court did not hold that the CWA compelled its expansive

construction of the rule.'’® Any such contention would be

'° Although the State petitioners contend otherwise (11-338 Pet. Br.

40-42), this aspect of the court of appeals’ opinion is best read as rest-

ing on the text of the industrial stormwater rule, not on any view that

CWA Section 402(p) compelled EPA to treat forest-road discharges

as “associated with industrial activity.” See, e.g., Pet. App. 46 (“The

[Phase I regulation’s] definition of a ‘facility’ engaging in industrial

activity’ is very broad.”); id. at 47 (reasoning that because EPA con-

sidered logging activities to be “industrial in nature” by virtue of the

regulation's reference to the logging SIC code, EPA could not ex-

empt such activities from NPDES permits); see also 11-347 Pet. Br.

39, 43 (describing court of appeals’ rejection of EPA’s interpretation

of industrial stormwater rule as “the product of a myopic focus on

isolated snippets of regulatory language” and as “second-guessing

27

implausible. As noted above, the 1987 amendment did

not define the term “associated with industrial activity,”

but rather directed EPA to promulgate regulations im-

plementing that provision. See 33 U.S.C. 1342(p)(4)(A).

That language gives EPA significant discretion to define

both what will count as “industrial activity,” and what

stormwater discharges bear a sufficiently close nexus to

such activity as to be “associated with” it.

Whatever the precise limits of that discretion, the

statutory term “discharge associated with industrial ac-

tivity” does not ineluctably cover channeled runoff from

all logging roads. Thus, even if the desire to avoid a

conflict with the governing statute could provide a sound

basis for rejecting an agency interpretation that would

otherwise be entitled to deference under Seminole Rock

and Auer (but see pp. 20-22, supra), any such justifica-

tion would be absent here. Under these circumstances,

the Ninth Circuit’s refusal to defer to EPA’s interpreta-

tion of its own regulatory definition is contrary to basic

administrative-law principles."

EPA’s expert judgment concerning its own regulation”). That dis-

cussion stands in sharp contrast to the court of appeals’ discussion of

the Silvicultural Rule, in which it explicitly characterized EPA’s in-

terpretation as “inconsistent with [CWA] § 502(14).” Pet. App. 37.

'' In response to the Ninth Circuit’s decision, EPA issued a notice

in the Federal Register indicating its intent “to propose revisions to

its Phase I stormwater regulations (40 C.F.R. 122.26) to specify that

stormwater discharges from logging roads are not included in the

definition of ‘storm water discharge associated with industrial activi-

ty.” 77 Fed. Reg. at 30,474. EPA thus has expressed its intent to

amend Section 122.26(b) to respond to the Ninth Circuit's contrary

reading of the regulation by making explicit the interpretation ad-

vanced in the government’s 2007 amicus brief. On September 4, 2012,

EPA published a notice of proposed rulemaking to that effect. Notice

of Proposed Revisions to Stormwater Regulations to Clarify that an

NPDES Permit is not Required for Stormwater Discharges from

28

C. The Court Of Appeals Erred In Not Deferring To The

EPA’s Interpretation Of The Silvicultural Rule That

Runoff From Logging Roads Constitutes Nonpoint-

Source Pollution

Properly construed, the Phase I regulation provides

an adequate and independent basis to conclude that pe-

titioners were not required to obtain an NPDES permit

for the alleged discharges at issue here. Accordingly,

the Court need not decide whether the Silvicultural

Rule—promulgated under a regulatory framework pre-

dating the 1987 stormwater amendment—also excludes

such discharges from the NPDES permitting scheme.

If the Court reaches the question, however, it should re-

verse the court of appeals’ conclusion that stormwater

runoff from logging roads that is collected and chan-

neled by a system of ditches and culverts requires a

permit under the Silvicultural Rule.

The Silvicultural Rule specifically identifies four cat-

egories of silvicultural facilities (“rock crushing, gravel

washing, log sorting, [and] log storage facilities”) as

“(s]ilvicultural point source[s].” 40 C.F.R. 122.27(b)(1).

Discharges of pollutants from those enumerated indus-

trial activities are different in kind from stormwater

discharges associated with precipitation-driven runoff

from logging roads. The Silvicultural Rule further pro-

vides that the term “{s]ilvicultural point source” does

not include “harvesting operations * * * or road con-

struction and maintenance from which there is natural

Logging Roads, 77 Fed. Reg. __ (forthcoming), available at

http://www.ofr.gov/OF R Upload/OFR Data/2012-21432 _PI.pdf. EPA’s

proposed regulatory approach, if and when finalized, effectively

would render moot the court of appeals’ conclusion that such dis-

charges are subject to NPDES permitting requirements under the

current regulatory scheme.

29

runoff.” Jbid. Although the rule does not specifically

confirm that the reference to “natural runoff” encom-

passes systematically channeled runoff, neither does it

suggest that such runoff should be treated as a “point

source” discharge.

The government unequivocally expressed in its ami-

cus brief EPA’s view that, under the Silvicultural Rule,

channeled “natural runoff” from logging roads does not

require a permit. That brief explained that “the term

‘natural runoff’ in the silvicultural rule categorically ex-

cludes [from the definition of silvicultural point source]

all stormwater runoff from forest roads, even where the

roads include channels, ditches, or culverts.” I J.A. 39.

EPA’s interpretation of its Silvicultural Rule was not

“plainly erroneous or inconsistent with the regulation”;

indeed, it was the more linguistically plausible reading

of the rule. The court of appeals therefore should have

deferred under Auer to that interpretation.

The court of appeals did not disagree that EPA’s

reading was consistent with the terms of the Silvicultur-

al Rule. Rather, it rejected EPA’s reading on the ground

that the agency interpretation would bring the rule into

conflict with the CWA’s definition of “point source.” Pet.

App. 36-37. That mode of analysis was erroneous. As

discussed above (pp. 20-22, supra), if an agency has of-

fered a definitive interpretation of its own regulation

that is otherwise entitled to deference under Seminole

Rock and Auer, a court may not adopt a different inter-

pretation based on principles of “statutory avoidance.”

That principle applies even when the pertinent judicial-

review scheme prevents the court from taking what

would ordinarily be the logical next step of determining

whether the regulation, as construed by the agency, is

30

consistent with the governing statute. See Seminole

Rock, 325 U.S. at 414, 418-419.”

In any event, the CWA does not compel the court of

appeals’ conclusion that the discharges at issue required

a permit. Just as a court must defer under Seminole

Rock and Auer to an agency’s reasonable construction of

its own regulation, a court must defer to EPA's regulato-

ry interpretation of an ambiguous CWA provision unless

'? The court of appeals’ opinion, as well as the government’s

amicus brief at the rehearing stage, relied in part on when EPA first

announced its official interpretation of the Silvicultural Rule as ex-

cluding systematically channeled runoff from logging roads from

NPDES permit requirements. See Pet. App. 9-10; I J.A. 59-60 & n.5.

The timing is not clear: although the government had previously con-

tended that EPA’s interpretation dated back to 1976, it argued on

rehearing that EPA’s interpretation was first articulated during this

litigation. Compare I J.A. 33-34 with I J.A. 59-60 & n.5. That diver-

gence arises from respondent’s emphasis, as the litigation developed,

on the ambiguous term “natural runoff,” which was added to the Sil-

vicultural Rule in 1980. 45 Fed. Reg. 33,290, 33,447 (May 19, 1980).

The rule itself does not specify whether runoff that is systemically

conveyed by channels, ditches, or culverts is “natural” (thereby con-

stituting nonpoint-source pollution), and the EPA’s pre-2007 written

statements did not definitively resolve that specific issue.

On further reflection, however, the timing question is irrelevant to

the resolution of this case. Even assuming that EPA’s interpretation

was first announced during this litigation, the court of appeals could

not properly invoke principles of “statutory avoidance” to reject an

agency interpretation of the Silvicultural Rule because that would be

a misapplication of Awer principles. Quite apart from the restrictions

imposed by Section 1369(b)(2) on “judicial review” of EPA regula-

tions, the background rule of administrative law set forth in Seminole

Rock foreclosed the court’s approach. See pp. 20-23, supra. That is,

a court can never reject an agency’s interpretation of a regulation

that is consistent with the regulation’s text and structure, and then

substitute the court’s own interpretation of the regulation that it

views as more consistent with the statute.

31

the statute dictates a different interpretation. See En-

tergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009)

(citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-

844 (1984)). The CWA’s definition of “point source,” 33

U.S.C. 13862(14), gives EPA meaningful discretion in dis-

tinguishing between point and non-point sources. “(T]he

concept of a ‘discrete conveyance’” in the statutory defi-

nition, for example, “suggests that there is room here

for some exclusion by interpretation.” NRDC v. Costle,

568 F.2d 1369, 1877 (D.C. Cir. 1977); see id. at 1382

(“(T]he power to define point and nonpoint sources is

vested in EPA and should be reviewed by the court only

after opportunity for full agency review and examina-

tion.”) (citation omitted); see also League of Wilderness

Defenders v. Forsgren, 309 F.3d 1181, 1190 (9th Cir.

2002); National Wildlife Fed’n v. Gorsuch, 693 F.2d 156,

167 (D.C. Cir. 1982). That is particularly true with re-

spect to silvicultural sources of pollution. See Costle,

568 F.2d at 1377 (noting “question, to what extent point

sources are involved in* * * silvicultural * * * run-

off”); NRDC v. Train, 396 F. Supp. 1393, 1401 (D.D.C.

1975) (“Congress intended for the agency to determine,

at least in the agricultural and silvicultural areas, which

activities constitute point and nonpoint sources.”), aff’d,

568 F.2d 1369 (D.C. Cir. 1977)."* Thus, read in light of

the Act as a whole, the CWA’s definition of “point

source” does not foreclose EPA from determining that

'’ The CWA elsewhere refers to silvicultural activities as gener-

ating pollution from nonpoint sources. See 33 U.S.C. 1288(b)(2)(F)

(referring to “agriculturally and silviculturally related nonpoint

sources of pollution”); 33 U.S.C. 1314(f)(A) (addressing identification

and control of “nonpoint sources of pollution” from “agricultural and

silvicultural activities, including runoff from fields and crop and for-

est lands”).

32

channeled stormwater runoff from logging roads should

be treated as nonpoint-source discharges.

It should be acknowledged, however, that EF PA’s lati-

tude to distinguish between point-source and nonpoint-

source stormwater discharges served a significantly

greater practical need when the Silvicultural Rule was

adopted in 1976, and amended to its present form in

1980, than it does under the current statutory scheme.

Until 1987, designating particular categories of storm-

water discharges as nonpoint-source discharges was

EPA’s only statutory mechanism for insulating them

from NPDES permitting requirements. Congress rec-

ognized the shortcomings of that rigid approach, and it

enacted the 1987 amendment to provide EPA a greater

range of regulatory options to address the distinct is-

sues that stormwater discharges pose. That amendment

gives EPA substantial discretion to designate which

stormwater discharges, other than the five categories

listed in Section 402(p)(2), are subject to the Act, and to

determine whether to address those discharges through

means other than permits. Because EPA’s regulatory

definition of “discharge associated with industrial activi-

ty” is part of the agency’s effort to implement that cur-

rent, more nuanced statutory scheme, it represents the

most appropriate ground on which to decide this case.

See pp. 13-15, supra.

33

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

IGNACIA S. MORENO

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ETHAN G. SHENKMAN

ne be Assistant Attorney

eneral

PRATIK A. SHAH

Assistant to the Solicitor

Scott C. FULTON General

General Counsel AARON P. AVILA

U.S. Environmental JUDY B. HARVEY

Protection Agency Attorneys

SEPTEMBER 2012