# Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 568 U.S. 1118

## Text

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
IIE ccocecesecsnsstisenscennsennnisenessstnniiintninmmnnesieaiiitiammenenliaaal 2
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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
EN a eT nT NTE Nema, 31
a ey avr a a 3
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IIE Stich tsrsiinciricsinteciapeneniatiandananbiatiiiuaidagiintinimaadaaaisil 3
EI ODER 2
| TE NEE Na a a 2,13
Ee a TE ROE” 7
I SD ior iceiscdenstaiiataiasigmeneandineineatin 2,10, 11,17
| _ TN MnES NITES I ee 16
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ee I SID oncicicnnsssnsieiisticennsinsdenantansnnes 10, 16, 17, 23
| ERLE 10, 16
| SERN EE NEI 10, 16
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
ETE Naan MEINE 5, 6, 23, 32
33 U.S.C. 1342(p)(2)(B)...........ccccs0000- 5, 11, 18, 14, 23, 25
__, EE RNa Tae nae RI Fat 5
OT | 5, 24, 26
I aa 5, 25
ee, ST ili ciccceresainsneisibiisiiatianitiiaiiiiaecabiaadaille 6, 25
Se I i ciciicintiicsieansienniiticiatanetniie 7, 15, 23, 25

40 C.F.R.:

Sn Sen RIE TI TUEI xipttsiersinienicinensccsavusnnieinamsinesnaieiseseiiuiitiel 3

VI

Regulations—Continued: Page
I ceili batalla 3
I ital 6
Ea Tem E NN Mee 27
TLE RET OO 2,6, 9, 25
I LTR ene eee ITE 12, 24
ETT ee EEE Te EET 25
LETT Taree 2, 4, 7, 12, 28
| ,____— T aTTT TT 4

Miscellaneous:

a NN SN CID icssasenessttiniceniuoictensncineniennnitneniiieneneal 30
in icieinciencininsciptuiemincanninnainnsadnnicendapedtnnednemmnnimeninmnmneitenente 30
TT libiseniaeniiniiinncieanensstasinttenndinnensinpiaiantmaieneimennesitetneninimemastineniinl 30

I iii iain 25
i Sr iniashnerictnchisininanainiatdiiedainibcabetnbbeteedtitidinmenniabmniieetaiens 25
iTable alti ehaesianaaanipdiaaimidall 25
Tat iddcintciniasnecnsdaipaneaieaietiinttininpintinnnnneiienninasdinibannimeiets 25

ee IIL TE ST incssesipsncnettimeceninstiineiionteasssdieinaneasaiiiannsin 7
Scientia cetacean daaetasianelltaiatanibiel 7
a eee 7

Fe Ge te ED cestscirecnensensssesnensnennntotanmennaan 7, 15, 27
SITE inasinnienerindcintrpeninchnntnsensenntiinnendsenmniatninntaidnindiemmeeinntéd 7
EEE een eNee enn NTS en ON Nar Te on OnE E® 27

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A23. Public record. Not legal advice.