Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11-338 and 11-347 io

———————— July

Bn The EES FI ie

Supreme Court of the Anited States

°

DOUG DECKER, in his official

capacity as Oregon State Forester, et al.,

Petitioners,

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

°

GEORGIA-PACIFIC WEST, INC., et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

4

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

—?*

BRIEF FOR LAW PROFESSORS AS AMICI CURIAE

ON THE PROPRIETY OF ADMINISTRATIVE

DEFERENCE IN SUPPORT OF RESPONDENT

4

Amy J. WILDERMUTH SANNE H. KNUDSEN

UNIVERSITY OF UTAH Counsel of Record

S.J. QUINNEY COLLEGE OF LAW UNIVERSITY OF WASHINGTON

332 S. 1400 East, Room 101 SCHOOL OF LAW

Salt Lake City, UT 84112 William H. Gates Hall

(801) 585-6833 Box 353020

amy.wildermuth@utah.edu Seattle, WA 98195

(206) 221-7443

sknudsen@uw.edu

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2431

i

TABLE OF CONTENTS

Page

INTRODUCTION AND INTEREST OF THE

EE dice tiscintinnianeissdeniatdinenteniameiiiinina 1

TTT ns ncssieetsaiceteeedinaeiepaiadchciiiuiieticeiedlniimpaieipindiadesende 4

SUMMARY OF ARGUMENT .......................2. 220008 5

ET iincstiiiciiintnneinenctinisdiinenbiaintaiadameddeeiannmniie 8

I. AUER DEFERENCE IS INAPPROPRIATE

WHERE AN AGENCY INTERPRETATION

CONTRAVENES CLEAR STATUTORY

i ncisninsinssensensnnitensnceameesiebanetie 12

II. AUER DEFERENCE IS INAPPROPRIATE

WHEN AN AGENCY’S INTERPRETATION

OF A REGULATION IS MARKED BY A

HISTORY OF REBUKES BY COURTS

Sittrticinnciniianpieceminnneinnnece 15

Ill. AUER DEFERENCE RAISES THE RISK

OF ARBITRARINESS WHEN AN AGENCY

INTERPRETATION FAILS TO AFFORD

THE REQUISITE FAIR NOTICE............... 29

IV. SKIDMORE DEFERENCE IS ALSO NOT

SE insnscsnscnidnscntnisastensateseninaninvens 35

a3

TABLE OF AUTHORITIES

Page

CASES

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

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

SE ctntitannenionnnsienndntonmmnndincinimadmanaennniintd 9,10

Chevron USA, Inc. v. Natural Resources Def.

CINE, Ge We a GED CD deccccccccccccescccecccssesss 9,13

Christopher v. SmithKline Beecham Corp., 132

Se See, SEE tincceccensednonncenenaqenses 11, 12, 29, 35, 36

Coeur Alaska, Inc. v. Southeast Alaska Conser-

vation Council, 557 U.S. 261 (2009).................... eee 9

Gonzales v. Oregon, 546 U.S. 243 (2006)................... 10

League of Wilderness Defenders v. Forsgren, 309

2 Bl) fh | nee 20, 21, 27

Natural Res. Def. Council, Inc. v. United States

Envtl. Protection Agency, 25 F.3d 1063 (D.C.

STEEL TEIIIITED cuiisisinbinindinniaddabinetinininasniendniennemaiinieammuntenes 14

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

TT ciccinsilaenieaertindacinineniiitiiaeeldcubddicatededuemniniaile 18, 19, 20, 27

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

ED cscconshinnienataninniccsammnmntedimmanrtiinntinintudininetn passim

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...8, 9, 35, 36

Stinson v. United States, 508 U.S. 36 (1993)............. 14

Talk America v. Michigan Bell Telephone, 131

5 | REESE rEoe ee nnreneEne 11, 12, 15

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

il

TABLE OF AUTHORITIES — Continued

Page

United States v. Earth Sciences Inc., 599 F.2d

EY IEE cnriinnsaninnisipensntninpisasintinnmmuasiinaial 21

United States v. Mead Corp., 533 U.S. 21 (2001)..... 8, 36

United States v. Pennsylvania Indus. Chem.

SN , Se Se Ce OD crccnccdlsonsonssccersencsasiescosoness 21

Whitman v. American Trucking Ass’ns, Inc.,

ee re er eieniteisinccniinmannnninciiiasinamenienies 13

STATUTES

ee Oe Se I oo cecsrirecinsingamennsinenentiinanietiinianeniietiied 4

Se SPAS. ] BG GSD vc cccccneccccscsecesocesecsoonnscesees passim

ee ae Se EE sainsicronetniccensinitintinnaioninmuinaniiiadatanengia 5

ee ee Se IE tanncenstnssciccenincnipontonennceimasies 5, 15

LEGISLATIVE MATERIALS

Pub. L. No. 100-4, 101 Stat. (1987)...................cceeeeeee 23

ee I, Bs Se GE Oe ciccnncesecnnnensconsesccissescvenion 17

118 Cong. Rec. 10,765 (Mar. 29, 1972)...................006 22

131 Cong. Rec. 15,616 (June 13, 1985).............0........ 23

131 Cong. Rec. 19,846 (July 22, 1985)...........0...0..0.... 23

132 Cong. Rec. 32,380 (Oct. 16, 1986)...............0...2.... 24

H.R. Rep. No. 93-1012, 93 Cong., 2d. Sess. 55-60

See aieisisesinsisisinsibiiinssiicanacisansltiiaeiinaaiineeiinipautbaiatiidinisintatinidnia 18

iv

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS AND REGULATORY MATERIALS

a se I ilcicicinistccecccccscccceccnsecencuscneseessi 32

ee OF Ie Ci rccciicscccccscssccnescensscsecesoscovesenia 28

ee ee ee i iiicciiiiiiitenicdnnincccninenscnimeniissananeis 34

38 Fed. Reg. 18,000 (July 5, 1973)............c cece eee eee 16

41 Fed. Reg. 6,281, 6,281 (Feb. 12, 1976)...... 16, 17, 19

41 Fed. Reg. 24,709 (June 18, 1976)................ ce eee eee 19

43 Fed. Reg. 37,078 (Aug. 21, 1978)................ccceeeeees 20

55 Fed. Reg. 20,521 (May 17, 1990)................. eee enone 26

55 Fed. Reg. 47,990 (Nov. 16, 1990)................. eee 32

64 Fed. Reg. 46,057, 46,077 (Aug. 23, 1999).............. 20

65 Fed. Reg. 43,586 (July 13, 2000)..................00.02.04 21

OTHER AUTHORITIES

Robert A. Anthony, The Supreme Court and the

APA: Sometimes They Just Don’t Get It, 10

ADMIN L.J. AM. U. 1 (1996) ...............ccceccscscscecsees 8, 10

Jack M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed

and Why It Can and Should Be Overruled,

42 Conn. L. REV. 779 (2010) ..............cccscccssccccsessoecees 8

Lisa Schultz Bressman, Chevron’s Mistake, 58

Is ale nentimhbtsitiinnnenennid 8

Vv

TABLE OF AUTHORITIES ~— Continued

Page

John F. Manning, Constitutional Structure and

Judicial Deference to Agency Interpretations

of Agency Rules, 96 CoLum. L. REv. 612

(ERE cccocaciseccsuaconienntasennmdssacesnisasmenmaaasin 8,9

1

INTRODUCTION AND

INTEREST OF THE AMICI CURIAE

The parties’ consent to the filing of this brief was

filed with the Clerk of this Court in accordance with

Supreme Court Rule 37.’

Amici Curiae are law professors who research,

teach, and write on federal environmental law as well

as administrative law. They are concerned in this

case by the Government’s claim — in the face of clear

statutory language and announced for the first time

in this litigation — that the Environmental Protection

Agency (EPA) regulations are unclear and that,

because those regulations are now supposedly ambig-

uous, this Court should defer to the agency’s new

interpretation of those regulations. More information

about the specific interest of each professor is provid-

ed below.

Lincoln L. Davies is a Professor of Law at the

University of Utah S.J. Quinney College of Law.

Professor Davies’ research and teaching interests

center on energy and environmental law and policy,

administrative law, and water law.

Eric T. Freyfogle is the Guy Raymond Jones

Chair in Law at the University of Illinois College of

‘In accordance with Supreme Court Rule 37.6, Amici

Curiae certify that no counsel for any party in this case authored

this brief in whole or in part, and furthermore, that no person or

entity, other than Amici Curiae, has made a monetary contribu-

tion specifically for the preparation or submission of this brief.

2

Law. He is the author or editor of a dozen books

dealing with issues of humans and nature, and is the

co-author of two casebooks, Property Law: Power,

Governance, and the Common Good (Thomson/West

2012) and Wildlife Law: Cases and Materials (Foun-

dation Press, 2002; 2d ed. 2010). Seven of his law

review articles have been reprinted, as among the

best articles of the year, in the annual volume Land

Use & Environment Law Review.

Noah Hall is an Associate Professor of Law at

Wayne State University Law School and is a frequent

Visiting Professor at the University of Michigan Law

School. His teaching and expertise is in environmen-

tal and water law, and his research focuses on public

and private water rights, transboundary water man-

agement and pollution, climate change adaptation,

U.S.-Canadian environmental law, and citizen enforce-

ment. He is a co-author of two casebooks, Environ-

mental Law and Policy: Nature, Law, and. Society

(Aspen Publishers) and Modern Water Law: Private

Property, Public Rights, and Environmental Protec-

tion (Foundation Press).

Amanda Cohen Leiter is an Associate Profes-

sor of Law at the American University Washington

College of Law. Her teaching and research interests

include torts, administrative law and process, and

environmental law and policy.

Dave Owen is an Associate Professor of Law at

the University of Maine School of Law. He teaches

courses on environmental, natural resources, water,

3

and administrative law, and his research focuses

largely on water resource management. Several of his

articles have focused on the Clean Water Act’s cover-

age of stormwater.

Jessica Owley is an Associate Professor at

SUNY Buffalo Law School where she teaches envi-

ronmental law, property, and land conservation. Her

research covers those areas as well as administrative

law and statutory interpretation.

Zygmunt J. B. Plater is Professor of Law at

Boston College Law School, teaching and researching

in the areas of environmental, property, land use, and

administrative agency law. Over the past 30 years he

has been involved with a number of issues of envi-

ronmental protection and land use regulation. He is

lead author of Environmental Law and Policy: Nature,

Law, and Society, now in its fourth edition, Aspen

Publishers, 2010.

William H. Rodgers, Jr. is the Stimson Bullitt

Endowed Professor of Environmental Law at the

University of Washington School] of Law. He special-

izes in natural resource law and is recognized as a

founder of environmental law. He is the author or

co-author of dozens of books, casebooks, and articles,

including his four-volume treatise, Environmental

Law (Thomson/West).

Colette Routel is an Assistant Professor of Law

at the William Mitchell College of Law. Her teaching

and research interests include administrative law,

4

federal Indian law, and environmental and natural

resources law.

Ryan Stoa is Program Executive Officer of the

Global Water for Sustainability Program at Florida

International University, where he teaches Water

Resources Law, the Environmental Law and Policy

Clinic, and Integrated Solutions for Water in Envi-

ronment and Development.

e

STATEMENT

In order to control water pollution in the nation’s

waters, the Clean Water Act requires a permit for any

discharge into navigable waters from a “point source.”

See 33 U.S.C. §§ 1311l(a), 1342(a) (2012). Permits do

not eliminate discharges. They instead set limits

based on national standards that determine the

appropriate treatment of polluted water before it is

added to a larger body of water such as a river or a

lake. See id.

Respondent filed this suit six years ago alleging

that private logging corporations harvesting timber in

the Tillamook State Forest were violating the Clean

Water Act by discharging stormwater into navigable

waters without a permit. 2JA 2; Pet. App. 55a. Re-

spondent’s concern stemmed from a man-made water

collection and drainage network created along logging

roads and used by logging corporations to collect

polluted stormwater generated by logging operations.

2JA 2, 15, 17-18. The water in the culverts, ditches,

5

and pipes of the system eventually flows into rivers

and their tributary streams. Id.

Because the Clean Water Act defines the terms

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

crete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, [or] conduit ... from

which pollutants are or may be discharged,” 33 U.S.C.

§ 1362(14), and because the Act requires permits for

all stormwater discharges “associated with industrial

activity,” id. § 1369(pX3)(A), Respondent contends

that, based on the plain language of the statute, these

are discharges from point sources that require a per-

mit. The EPA, however, argues that this Court should

exempt these discharges from permits based on its

interpretation of several regulations that it now

claims are ambiguous. See U.S. Br. at 19-32.

e

SUMMARY OF ARGUMENT

The Government’s brief in this case is striking.

After being on notice for decades that the EPA has a

duty to regulate point source discharges of storm-

water from logging operations, the Government now

says that the EPA’s regulations related to those

discharges are ambiguous. The Government then

asks this Court to defer to the EPA’s interpretations

of those regulations announced “for the first time” in

this case.

6

This Court should give effect to the clear terms of

the Clean Water Act. It should not be persuaded to do

otherwise by the EPA’s late claim that the regulations

are ambiguous and that it must now interpret those

regulations. Even assuming that those regulations

are ambiguous, (and it is not clear that they are), the

Court should not afford deference (1) when the agen-

cy has not been suitably mindful of congressional

intentions and (2) when deferring to an agency inter-

pretation would increase the risk of arbitrariness. In

those cases, deferring to an agency raises separation

of powers concerns and would therefore be inappro-

priate.

In this case, although Congress has neither

exempted silvicultural activities nor all stormwater

discharges from the National Pollutant Discharge

Elimination System (NPDES) permit requirement,

the EPA’s interpretation of its regulations would do

just that. This Court owes no deference to an inter-

pretation that is contrary to the legislative structure

and control that Congress has otherwise seen fit to

exercise in this area.

Even if the Act itself did not resolve this case,

deferring to the EPA’s interpretation would still be

inappropriate because it would raise insurmountable

separation of power concerns. The EPA's approach

to regulating silvicultural point sources has been

plagued with a history of rebukes by courts and

Congress that, not coincidentally, illustrate the resis-

tance of the agency to follow clear statutory man-

dates. In particular, since 1975, courts relying on the

7

plain language of the Act have repeatedly told the EPA

that it cannot exempt these point sources. Rebukes

have also come in the form of Congressional amend-

ments to force regulatory action where the EPA had

been reluctant to regulate stormwater discharges.

The final indicia that deference in this case is

inappropriate stems from the fact that both the

Silvicultural Rule and the Phase I rule, if interpreted

in the way urged by the EPA, would implicate the

Court’s concerns regarding open-ended and imprecise

regulations. In particular, the EPA seeks to refine the

Phase I rule for the first time through this litigation.

Whereas the Phase I rule is clear in its inclusion of

logging as an industrial activity, the EPA now argues

that timber hauling and access for big machines

necessary to log, both of which are essential to log-

ging, are not industrial activities. To accomplish this

spontaneous carve-out, the Court would have to read

imprecision into the rule. Doing so would create

significant latitude for the agency to decide on an ad

hoc basis that which it is otherwise required to do

through notice and comment rulemaking ~ namely

identify industrial activities whose stormwater dis-

charges are subject to the NPDES permit program. In

other words, accepting the EPA’s interpretation would

allow the EPA to create de facto new regulations

through the interpretive process. Auer deference is

therefore inappropriate.

Finally, because the EPA’s interpretation is in-

consistent with the underlying statutory mandates of

the Clean Water Act, because it lacks thoroughness in

8

that it was announced for the first time in an amicus

brief in this litigation, and because courts have found

that the EPA’s reasoning in prior efforts to exempt

silvicultural sources from the NPDES program suspect

for nearly four decades, the EPA’s reasoning is “whol-

ly unpersuasive” and should be afforded no deference

under Skidmore v. Swift & Co., 323 U.S. 134 (1944).

°

ARGUMENT

One of the most debated questions in administra-

tive law is the proper deference to afford agency

interpretations of both statutes that they administer

and regulations that they promulgate. Commentators

have long debated when and why deference to agency

interpretations is afforded, with many questioning

whether deference is appropriate at all. See, e.g., Jack

M. Beerman, End the Failed Chevron Experiment

Now: How Chevron Has Failed and Why It Can and

Should Be Overruled, 42 CONN. L. REv. 779, 782

(2010); Lisa Schultz Bressman, Chevron’s Mistake, 58

DUKE L.J. 549, 562 (2009); Robert A. Anthony, The

Supreme Court and the APA: Sometimes They Just

Don’t Get It, 10 Apmin L.J. Am. U. 1, 11-12 (1996);

John F. Manning, Constitutional Structure and

Judicial Deference to Agency Interpretations of Agency

Rules, 96 CoLum. L. REV. 612, 613-14 & nn.9 & 10

(1996). Similarly, Justices on this Court have ques-

tioned the application of deference in various con-

texts. See, e.g., United States v. Mead Corp., 533 U.S.

218, 239 (2001) (Scalia, J., dissenting) (questioning

9

the Court’s re-adoption of Skidmore deference in lieu

of applying Chevron deference); Coeur Alaska, Inc. v.

Southeast Alaska Conservation Council, 557 U.S. 261,

295-96 (2009) (Scalia, J., concurring in part and con-

curring in the judgment) (criticizing the articulation of

deference in that case for being too complicated).

Central to this case is the question of what

deference, if any, is owed to an agency interpreta-

tion of its own supposediy ambiguous regulations.

Although the Court embraced a general principle of

deference in this context in Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410 (1945), Professor John

Manning has warned that deference in this situation

raises a separation of powers problem: “Seminole

Rock leaves an agency free both to write a law and

then to ‘say what the law is’ through its authoritative

interpretation of its own regulations.” 96 COLUM. L

REV. at 618. Because “administrative agencies exer-

cise[] delegated lawmaking authority, as well as

perform[] executive and adjudicative functions,” Pro-

fessor Manning has argued that “it is crucial to have

some meaningful external check upon the power of

the agency to determine the meaning of the laws that

it writes.” Jd. at 682. He has therefore urged the

Court to “replace Seminole Rock with a standard that

imposes an independent judicial check on the agen-

cy’s determination of regulatory meaning.” Jd. at 617.

Similarly, Professor Robert Anthony has argued

that Seminole Rock deference should be abandoned

in favor of respectful consideration to the agency

position:

10

Agencies will realize that they can issue such

documents — creating tangible meaning where

the regulations did not — with a high degree

of confidence that their interpretations, issued

without notice and comment, will be upheld

because they are not inconsistent with the

regulation. This prospect generates incentives

to be vague in framing regulations, with the

plan of issuing “interpretations” to create

the intended new law without observance of

notice and comment procedures.

Robert A. Anthony, The Supreme Court and the APA:

Sometimes They Just Don’t Get It, 10 ADMIN L.J. AM.

U. 1, 11-12 (1996).

Skepticism of Seminole Rock or Auer (based on Auer

v. Robbins, 519 U.S. 452, 461 (1997)) deference, which

inspired Professor Manning’s and Professor Anthony’s

articles, can be found in several of this Court’s cases.

See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 525 (1994) (Thomas, J., dissenting) (“It is per-

fectly understandable, of course, for an agency to issue

vague regulations, because to do so maximizes agency

power and allows the agency greater latitude to make

law through adjudication rather than through the

more cumbersome rulemaking process.”); cf. Gonzales

v. Oregon, 546 U.S. 243, 257 (2006) (finding Auer

deference inappropriate because “[a}n agency does not

acquire special authority to interpret its own words

when, instead of using its expertise and experience to

formulate a regulation, it has elected merely to para-

phrase the statutory language.”). The concern has

been particularly pointed in the last two Terms.

11

In Christopher v. SmithKline Beecham Corp., 132 .

S. Ct. 2156, 2168 (2012), the Court declined to afford

the agency interpretation Auer deference after noting —

that Auer deference “creates a risk that agencies will

promulgate vague and open-ended regulations that

they can later interpret as they see fit....” In that

case, the Court determined that the requisite fair

notice was lacking: “to require regulated parties to

divine the agency’s interpretations in advance or else

be held liable when the agency announces its inter-

pretations for the first time in an enforcement pro-

ceeding and demands deference” would be unfair. /d.

Similarly, in Talk America v. Michigan Bell”

Telephone, 131 S.Ct. 2254 (2011), Justice Scalia

announced that “while I have in the past uncritically

accepted [the Auer] rule, I have become increasingly

doubtful of its validity.” Jd. at 2266 (Scalia, J., concur-

ring). Justice Scalia then echoed the concern raised

by Professor Manning:

It seems contrary to fundamental principles

of separation of powers to permit the person

who promulgates a law to interpret it as

well. ... {DJeferring to an agency’s interpre-

tation of its own rule encourages the agency

to enact vague rules which give it the power,

in future adjudications, to do what it pleases.

Id. The problem with applying Auer deference in

Talk America, Justice Scalia explained, was that it

involved “an agency that has repeatedly been re-

buked in its attempts to expand the statute beyond

its text, and has repeatedly sought new means to the

same ends.” Jd. In other words, Auer deference is

12

inappropriate in situations in which an agency has

repeatedly ignored statutory language in seeking the

same end.

In order to ensure an external check on the

consolidation of power in the administrative state

that troubled Justice Scalia in Talk America and led

to concerns in SmithKline Beecham, the Court should

be cautious in affording Auer deference when there

are indicia of separation of powers concerns. Such

indicia arise when the agency has not been suitably

mindful of congressional intentions — whether those

intentions appear in the form of limits on delegated

authority or legislative mandates — and when defer-

ring to an agency interpretation would increase the

risk of arbitrariness. In this case, several indicia

implicate separation of powers concerns. First, as in

Talk America, the agency interpretation in this case

is inconsistent with the statutory language. Second,

also as in Talk America, the agency interpretation

has a history of repeated rebukes by courts and Con-

gress. Finally, like SmithKline Beecham, the agency’s

interpretation has the potential to generate such

great imprecision that it fails to afford the requisite

fair notice.

I. AUER DEFERENCE IS INAPPROPRIATE

WHERE AN AGENCY INTERPRETATION

CONTRAVENES CLEAR STATUTORY MAN-

DATES.

Agencies are empowered to act only when they

have been delegated authority by Congress to do so.

13

See, e.g., Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457, 472 (2001) (“[W]hen Congress confers

decisionmaking authority upon agencies Congress

must ‘lay down by legislative act an intelligible

principle to which the person or body authorized to

[act] is directed to conform.’” (quoting J.W. Hampton,

Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

As such, the Court has long held that, in order for an

agency’s interpretation of a statute to be given any

weight, it must be consistent with the statute:

When a court reviews an agency’s construc-

tion of the statute which it administers, it is

confronted with two questions. First, always,

is the question whether Congress has directly

spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of

the matter; for the court, as well as the agen-

cy, must give effect to the unambiguously

expressed intent of Congress. If, however, the

court determines Congress has not directly

addressed the precise question at issue, the

court does not simply impose its own con-

struction on the statute, as would be neces-

sary in the absence of an administrative

interpretation. Rather, if the statute is silent

or ambiguous with respect to the specific

issue, the question for the court is whether

the agency’s answer is based on a permissi-

ble construction of the statute.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467

U.S. 837, 842-43 (1983).

14

Likewise, this Court has also explained that inter-

pretations of agency regulations must be consistent

with the statute. See, e.g., Stinson v. United States,

508 U.S. 36, 47 (1993) (requiring that an interpreta-

tion of a regulation, among other things, “does not

run afoul of the Constitution or a federal statute”); see

also Natural Res. Def. Council, Inc. v. United States

Envtl. Protection Agency, 25 F.3d 1063, 1070 (D.C.

Cir. 1994) (Sentelle, J.) (“Of course, however reasona-

ble the agency’s interpretation of its regulations, we

must not give those regulations effect if they conflict

with the governing statute.”). As such, in order to

avoid both separation of powers concerns and delega-

tion questions, this Court will not give effect to an

interpretation of regulations that is inconsistent

with the statute under which the relevant regula-

tions were passed. In other words, regulatory inter-

pretations that contravene clear statutory mandates

warrant no deference.

The Government, however, contends that this

Court may not look to the underlying statute because

that effort would bring into question the validity of

the regulations at issue. See U.S. Br. at 20-21. Im-

plicit in this argument is the suggestion that the

Government can offer an interpretation that contra-

dicts the clear language of the statute and this Court

should nevertheless defer to it. That simply makes no

sense. This Court should not give effect to any prof-

fered interpretations of regulations that contravene

15

the plain text of the Clean Water Act’s definition of

“point source” or its Stormwater Amendments.”

Il. AUER DEFERENCE IS INAPPROPRIATE

WHEN AN AGENCY’S INTERPRETATION

OF A REGULATION IS MARKED BY A

HISTORY OF REBUKES Bx COURTS AND

CONGRESS.

As Justice Scalia explained in Talk America, the

“inappropriateness of Auer deference is especially

evident in cases ... involving an agency that has

repeatedly been rebuked in its attempts to expand

the statute beyond its text, and has repeatedly sought

new means to the same ends.” 131 S. Ct. 2254, 2266

(2011) (Scalia, J., concurring). The EPA’s approach to

regulating silvicultural point sources has been plagued

with a history of rebukes by courts and Congress

that, rot coincidentally, illustrate the resistance of

the agency to follow clear statutory mandates. Those

rebukes have come in the form of direct invalidations

by courts in the face of the EPA’s attempt to exclude

point sources from regulation. They have also come

in the form of Congressional amendments to force

regulatory action where the EPA has otherwise been

* To the extent Petitioners and the Government argue that

this Court should disregard the statute because of the pres-

ence of 33 U.S.C. § 1369(b), Respondent has explained why that

statute does not alter ordinary rules of interpretation. Resp. Br.

20-22.

16

reluctant to regulate stormwater discharges. A short

review of the regulatory history in this case high-

lights not only the rebukes but also the EPA’s mini-

mal efforts to meet statutory mandates even in the

face of rebukes. Together, the rebukes and the EPA’s

actions in response suggest that this Court cannot

defer to the EPA’s regulatory interpretation regarding

silvicultural point sources.

A. Past and Present Forms of the Silvi-

cultural Rule Have Been Rejected By

Courts to the Extent that the Rule

Excludes Statutory Point Sources From

Regulation.

1. In 1973, the EPA adopted regulations to

establish the scope of the NPDES permitting pro-

gram. See 38 Fed. Reg. 18,000 (July 5, 1973). Though

the Clean Water Act requires NPDES permits for all

point source discharges, the EPA attempted to limit

the scope of the permitting program only to certain

types of point sources. See id.; see also 41 Fed. Reg.

6281, 6281 (Feb. 12, 1976). In particular, the EPA

attempted to exempt categorically all silvicultural

activities from the NPDES program. See 41 Fed. Reg.

at 6281.

Shortly after the EPA purported to exempt certain

point sources from coverage under the Clean Water

Act, the U.S. District Court for the District of Colum-

bia rejected the EPA’s approach. NRDC uv. Train, 396

F. Supp. 1393 (D.D.C. 1975). The court explained that

17

“there is no evidence from the language of the statute

to support the categorical exemptions of point sources

granted by the Administrator.” Jd. at 1398. In ad-

dressing the EPA’s concerns regarding administrative

feasibility, the court concluded that “the statutory

framework now at issue appears too tightly drawn to

allow the interpretation made by the EPA.” Id. at

1400. The court’s conclusion was consistent with con-

gressional pronouncements at the time of enactment:

“In the past, too many of our environmental laws have

contained vague generalities. What we are attempt-

ing to do now is provide laws that can be adminis-

tered with certainty and precision. I think that is

what the American people expect that we do.” 117

Cong. Rec. 38,805 (1971) (Statement of Senator

Jennings Randolph of West Virginia, Chairman of the

Senate Committee responsible for the Clean Water

Act).

As a result, the district court in Train vacated

the 1973 Rule, including the silvicultural exclusions,

and remanded the issue to the EPA to propose

and promulgate regulations “extending the NPDES

permit system to include all point sources.” See 41

Fed. Reg. 6281, 6281 (Feb. 12, 1976) (quoting district

court’s remand order). The district court’s conclusions

were consistent with the House Committee on Gov-

ernment Operations, which had been monitoring the

EPA's administration of the 1972 Clean Water Act. In

the context of discussing the EPA’s exclusions for

confined feedlots of a certain size, the subcommittee

remarked that “there is no legal basis for EPA’s

18

administrative exclusion of any point source from the

NPDES permit program under the Federal Water

Pollution Control Act. The law requires that all point

sources be subject to the permit program.” See Sub-

committee Staff Memorandum of March 11, 1974,

printed in House Comm. on Government Operations,

Control of Pollution From Animal Feedlots and Reuse

of Animal Wastes, H.R. Rep. No. 93-1012, 93 Cong.,

2d. Sess. 55-60 (1974), cited by Train, 396 F. Supp. at

n.6.

On appeal, the D.C. Circuit affirmed the Train

decision, explaining that the EPA could not exempt

point sources from the NPDES program:

The wording of the statute, legislative histo-

ry, and precedents are clear: the EPA Admin-

istrator does not have authority to exempt

categories of point sources from permit require-

ments of § 402. Courts may not manufacture

for an agency a revisory power inconsistent

with the clear intent of the relevant statute.

NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

In reaching this conclusion, the court gave detailed

consideration to the EPA’s arguments that technologi-

cal and feasibility limitations justified a categorical

exclusion for agricultural, silvicultural, and storm

sewer runoff. See Costle, 568 F.2d at 1377-83. While

the court discussed various tools that the Clean Water

Act provided the EPA to alleviate technological limi-

tations and administrative burdens, the court con-

cluded that Congress did not intend regulatory

19

exclusions to be included in those tools: “We find a

plain Congressional intent to require permits in any

situation of pollution from point sources. We also

discern an intent to give EPA flexibility in the struc-

ture of the permits, in the form of general or area

permits.” Jd. at 1383.

2. In the wake of Train and Costle,’ the EPA

adopted new reguiations. See 41 Fed. Reg. 6281, 6281

(Feb. 12, 1976) (Proposed Rule); 41 Fed. Reg. 24,709

(June 18, 1976) (Final Rule). In those regulations,

the EPA identified silvicultural point sources that

would be subject to regulation under the NPDES

program:

The term “silvicultural point source” means

any discernible, confined, and discrete con-

veyance related to rock crushing, gravel

washing, log sorting, or log storage facilities

which are operated in connection with silvi-

cultural activities and from which pollutants

are discharged into navigable waters.

41 Fed. Reg. at 24,710 (1976 Final Rule).

* As required by the district court in Train, the EPA pro-

posed and promulgated new regulations while the appeal was

pending. See 41 Fed. Reg. at 6281 (explaining that the EPA is

proceeding with the appeal but promulgating rule to remain in

compliance with district court order).

20

The EPA has admitted at various times that the

Silvicultural Rule identifies only a subset of silvicul-

tural activities that constitute point sources under

the statute. Indeed, at various points in the regulatory

history of the Silvicultural Rule, the EPA proposed to

regulate a broader range of silvicultural point sources.

See, e.g., 64 Fed. Reg. 46,057, 46,077 (Aug. 23, 1999)

(proposing to expand category of silvicultural point

sources that would be regulated); 43 Fed. Reg. 37,078

(Aug. 21, 1978) (proposing to regulate additional

silvicultural point sources on a case-by-case basis).

Nevertheless, the Forest Service relied on the

Silvicultural Rule in a case a decade ago to argue that

the four listed activities in the Silvicultural Rule are

the only types of silvicultural activities that require

a permit. In League of Wilderness Defenders uv.

Forsgren, 309 F.3d 1181 (9th Cir. 2002), the question

before the court was whether the Forest Service was

required to obtain an NPDES permit for its annual

aerial insecticide spraying over 628,000 acres of

national forest land in Washington and Oregon. The

Ninth Circuit rejected the argument that such activity

was excluded, reiterating that “the EPA may not

exempt from NPDES permit requirements that which

clearly meets the statutory definition of point source

by ‘defining’ it as a non-point source.” Jd. at 1190.

Consistent with Train and Costle, and in order to

ensure that the Silvicultural Rule comports with

statutory requirements, the court in Forsgren read

the four point source activities listed in the Silvi-

cultural Rule as nonexclusive. The Forsgren decision

a

21

is consistent with the EPA’s own recognition that

the Silvicultural Rule does not actually identify all

silvicultural point sources.‘ Recognizing the statutory

mandates to regulate all point sources, however,

Forsgren makes clear that the point sources left un-

identified by the Silvicultural Rule must still obtain a

permit. See also United States v. Earth Sciences Inc.,

599 F.2d 368, 373 (10th Cir. 1979) (holding that

agricultural and silvicultural activities, construction

activity, and mining activities are not exempt from

the Clean Water Act; such activities “may involve

discharges from both point and nonpoint sources, and

those from point sources are subject to regulation”);

cf. United States v. Pennsylvania Indus. Chem. Corp.,

411 U.S. 655 (1973) (concluding that the Rivers and

Harbors Act of 1899 requires a permit to discharge

and explaining that the agency’s failure to set up a

permitting program did not alleviate the discharger

from the Act’s prohibitions).

In this case, the EPA insists again that the

Silvicultural Rule allows it to exempt point source

silvicultural activities from regulation under the Clean

* As recently as 2000, the EPA acknowledged that the

Silvicultura]l Rule does not regulate all point sources within the

meaning of the Clean Water Act. See 65 Fed. Reg. 43,586, 43,650

(July 13, 2000) (Final Rule) (explaining that the 1999 proposal

would have “provided all NPDES permitting authorities with

sufficient authority to regulate ‘physical’ point source discharges

from silvicultural sources not already subject to NPDES permit

requirements.”). The EPA ultimately decided against expanding

the scope of the Silvicultural Rule. 65 Fed. Reg. at 43,650.

22

Water Act. Since 1975, however, courts have repeat-

edly told the EPA that the plain language of the Act

dictates otherwise.

B. The EPA’s Interpretation of the Silvi-

cultural Rule Would Contradict Leg-

islative Control that Congress Has

Exercised in the Area of Point Source

Exemptions to Regulation.

Against the backdrop of the EPA’s attempt in

1973 to create regulatory exclusions for silvicultural

point sources it is helpful to recall that where Con-

gress has intended exclusions, it has provided them.

Irrigated agriculture provides a good example of

Congress’s stingy attitude toward point source ex-

emptions. At the time that Congress enacted the

Clean Water Act in 1972, Congress was well aware

that discharges from irrigated agriculture would fall

within the broad definition of point source. See 118

Cong. Rec. 10,765 (Mar. 29, 1972). Though some

members of Congress supported an amendment that

would exempt irrigated agriculture from the NPDES

program, Congress rejected that amendment in

keeping with its intent to read point source broadly.

See 118 Cong. Rec. 10,765 (Mar. 29, 1972).

In 1977, however, Congress alleviated the EPA’s

burden of issuing permits for every agricultural

point source by adopting a statutory exemption for

return flows from irrigated agriculture. 33 U.S.C.

§ 1342(1)(1). Congress’s actions in 1977 are notable for

23

three reasons. First, Congress amended the statute

where it intended a narrower application of “point

source.” Second, Congress continued to be stingy with

exemptions from the NPDES program. To that end, it

did not exempt all agricultural point sources — it

limited the exemption to return flows from irrigated

agriculture. Third, Congress did not grant a similar

statutory exemption to silvicultural activities.

Like irrigated agriculture, stormwater discharge

is another area in which Congress originally antici-

pated regulation under the NPDES program but

eventually made revisions to accommodate tougher

realities. In 1987, Congress enacted amendments to

the Clean Water Act specifically to address storm-

water regulation. Pub. L. No. 100-4, 101 Stat. (1987).

The 1987 Amendments were a mixed bag in terms

of Congress’s traditionally hard line on regulating

point sources. On the one hand, Congress alleviated

administrative burdens for some categories of storm-

water dischargers that fell outside primary areas of

concern. See 131 Cong. Rec. 19,846, 19,850 (July 22,

1985) (statement of Rep. Rowland); 131 Cong. Rec.

15,616, 15,657 (June 13, 1985) (statement of Sen.

Wallop). For these categories, Congress would give

the EPA greater time and latitude for addressing

stormwater discharge. See 33 U.S.C. § 1342(p)(1)

(putting moratorium on permit program for Phase II

discharges). At the same time, however, even for these

categories of lesser concern, Congress set firm dead-

lines so that the ultimate job would get done. See 33

U.S.C. § 1342(p\5) (requiring the EPA to study the

24

nature and extent of Phase II discharges and submit

a report to Congress); § 1342(pX6) (setting deadline

for the EPA to publish regulations on how to address

Phase II stormwater discharges).

On the other hand, for categories of concern, the

1987 amendments signaled a wake-up call to the EPA.

Congressional reports leading up to the 1987 amend-

ments underscore Congress’s disappointment with

the EPA for failing to regulate stormwater discharges

under the 1972 Act. See, e.g., 132 Cong. Rec. 32,380,

32,400 (Oct. 16, 1986) (Sen. Stafford, Chairman of

Committee on Environment and Public Works) (“EPA

should have developed this stormwater program long

ago. Unfortunately, it did not.”).

One of the key areas of concern for Congress

was stormwater discharge associated with industrial

activities.° See 33 U.S.C. § 1342(p)(2)(B) (stating that

the moratorium on permitting shall not apply to a

“discharge associated with an industrial activity”).

For industrial dischargers and other Phase I catego-

ries, Congress left the EPA no discretion over whether

to require permits and placed the EPA on a strict

compliance schedule to issue regulations and permits

* Other categories of concern, collectively referred to as

Phase I categories, included stormwater discharges that were

already subject to NPDES permitting, municipal discharges of

stormwater, and stormwater discharges that the EPA deter-

mines on a case-by-case basis to be a significant contributor of

pollutants. See 33 U.S.C. § 1342(p).

25

covering these categories of discharges. See 33 U.S.C.

§ 1342(p)(4)(A) (setting forth detailed deadlines).

As with the broader program for regulating point

source discharges, in the area of stormwater regu-

lation, when Congress meant to give wholesale ex-

emptions to particular industries, Congress did so

explicitly. To that eud, the 1987 amendments specifi-

cally exempt from regulation “stormwater runoff

from oil, gas, and mining operations.” 33 U.S.C.

§ 1342(1)(2).

Even though the EPA has attempted to narrow

its regulation of silvicultural activities, neither the.

1977 nor the 1987 amendments to the Clean Water

Act provided any ratification of the agency’s silvicul-

tural exclusions. Congress has never seen fit to

exempt silvicultural point source from the NPDES

program. To the extent that the EPA’s interpretations

of the Silvicultural Rule and Phase I rule would

render a different outcome, the Court should reject

those interpretations as contrary to the legislative

structure and control that Congress has exercised in

this area.

C. The EPA’s Proffered Interpretations

of the Silvicultural Rule Have Been

Rejected Throughout the Rule’s Regu-

latory History.

Despite years of rebukes and rejections of its

interpretation, and despite prior statements that are

26

inconsistent with its interpretation,© the EPA once

again advances an interpretation of the Silvicultural

Rule that would create regulatory exclusions for point

source discharges. Here, the EPA insists that the

Silvicultural Rule means that “logging roads are not

silvicultural point sources, even if the runoff from

logging roads flows through a ditch, channel, or cul-

vert before being released into waters of the United

States.” See U.S. Br. at 4.

The EPA makes two principal arguments in

support of its position. First, the EPA argues that

logging road runoff is not a point source because it

falls outside of the four point sources enumerated in

the Silvicultural Rule’s definition of “silvicultural

point sources.” See U.S. Br. at 12. More specifically,

the EPA’s interpretation of the Phase I rule relies on

the EPA’s narrow construction of the Silvicultural

Rule. Jd. at 12 (noting that, with regard to the Phase I

regulation’s reference to the Silvicultural Rule, “EPA

has construed that reference, however, as encompass-

ing only discharges from the four subcategories of

silvicultural facilities it had already identified as

point sources in the Silvicultural Rule, which do not

* In 1990, the EPA published a notice regulatory interpreta-

tion explaining that “{djischarges which involved the intentional

collection of contaminated runoff and its subsequent release

from a discrete and identified point, on the other hand, were to

be classified as a point source discharge subject to the NPDES

program.” 55 Fed. Reg. 20,521 (May 17, 1990). The EPA’s posi-

tion here — that collection of runoff is immaterial to the ultimate

characterization of runoff as a point source — is directly contrary.

27

include runoff from logging roads”). Whether through

its direct interpretation of the Silvicultural Rule or by

virtue of its importation of the Silvicultural Rule into

the Phase I rule, the EPA’s attempt to limit the scope

of regulation to four silvicultural point sources is of

little consequence. The EPA’s argument is one that

has been squarely rejected.

Consistent with Costle and Train, Forsgren held

that the EPA must regulate all point sources; it

cannot create exemptions through regulation. As a

result, the only basis upon which the EPA can argue

that logging road runoff is not a point source is by

applying the statutory definition supplied by Con-

gress. Contrary approaches — namely attempts to

exclude logging road runoff without considering the

statutory definition of point source — have been rou-

tinely rejected and therefore are not entitled to defer-

ence on that basis.

The EPA’s second argument focuses not on the

Silvicultural Rule’s identification of point sources, but

on its inclusion of nonpoint source counterexamples.

In particular, the current version of the Silvicultural

Rule states:

The term [silvicultural point source”] does

not include non-point source silvicultural

activities such as nursery operations, site

preparation, reforestation and subsequent

cultural treatment, thinning, prescribed burn-

ing, pest and fire control, harvesting opera-

tions, surface drainage, or road construction

28

and maintenance from which there is natu-

ral runoff.

40 C.F-R. § 122.27 (2012). In this litigation, the EPA

argues for the first time that all stormwater runoff

from logging roads is “natural runoff,” regardless of

whether it is collected and discharged through dis-

crete channels. See U.S. Br. at 12-13.

There are at least two problems with the EPA’s

interpretation of “natural runoff” in this case. Each of

the problems undermines the legitimacy of deferring

to the EPA.

First, the EPA’s interpretation of “natural runoff”

would exclude point sources from the NPDES program

by lumping all types of runoff under the heading of

nonpoint source pollution. To the extent that the EPA

seeks to avoid regulating certain categories of silvi-

cultural activities simply by excluding them or rede-

fining them as nonpoint sources, that effort has been

rejected by courts for nearly four decades.

Second, the EPA has argued that natural runoff

includes “all precipitation-driven runoff from logging

roads.” See U.S. Br. at 4, 8. This claim cannot be

squared with the 1987 Clean Water Act Amendments.

In particular, if precipitation were the touchstone for

determining whether runoff is a nonpoint source,

then all stormwater would be nonpoint sources. After

all, stormwater discharges are by definition triggered

by precipitation events. The very fact that Congress

requires stormwater regulation under the NPDES

29

program — a program aimed at point source regula-

tion — means that not all stormwater discharges are

nonpoint in nature. Indeed, Congress enacted the

1987 Amendments precisely because the EPA had not

been regulating stormwater discharges as point

sources as Congress had originally intended.

In sum, the EPA’s interpretation of the Silvi-

cultural Rule manifests a categorical reluctance to

regulate stormwater runoff that is collected in ditches

along logging roads. That interpretation is not only

contrary to the statutory language but it is squarely

at odds with the several rebukes of its cramped

reading of the Clean Water Act. It is also at odds with

the clear purpose of the 1987 Amendments. As such,

the EPA’s interpretation is not entitled to deference

from this court.

lil. AUER DEFERENCE RAISES THE RISK

OF ARBITRARINESS WHEN AN AGENCY

INTERPRETATION FAILS TO AFFORD

THE REQUISITE FAIR NOTICE.

In Christopher v. SmithKline Beecham Corp., 132

S. Ct. 2156, 2167 (2012), this Court warned of the risk

that “agencies will promulgate vague and open-ended

regulations that they can later interpret as they see

fit.” The Government’s arguments in this case impli-

cate the Court’s concerns regarding open-ended and

imprecise regulations. The EPA’s core contention is

that the Silvicultural Rule is imprecise in its current

form, U.S. Br. at 28-29, allowing the EPA to make ad

30

hoc determinations regarding what constitutes a

silvicultural point source. The EPA implicitly argues

the same thing with respect to its Phase I regula-

tions, asserting that the text of its regulations “might

not” foreclose respondent’s claim. U.S. Br. at 26.

Respondent argues that the EPA's positions are

plainly inconsistent with its regulations. But even if

the EPA were correct that the regulations are ambig-

uous, deferring to the EPA’s interpretations increases

the risk of arbitrariness.

Put slightly different, the problem here is that

the EPA is attempting to inject ambiguity into regula-

tions that are clear. As a result, the EPA’s efforts now

implicate underlying notions of notice and fairness.

This Court should be dubious about the EPA’s con-

tentions particularly when it is asked (1) to defer

to interpretations of imprecise regulations when the

agency has had an opportunity to clarify the impreci-

sion but has chosen not to do so and (2) to accept

agency interpretations that unnecessarily inject am-

biguity into the regulations and make them impre-

cise.

A. Deferring to the EPA’s Interpretation

of the Silvicultural Rule Would Allow

the Agency To Create De Facto New

Regulations Through Litigation.

The regulatory history of the Silvicultural Rule

makes clear that the EPA is not simply advancing an

31

argument in this case that has been rejected since the

passage of the Clean Water Act. The regulatory his-

tory also highlights that the EPA created a gap where

Congress did not sanction it to do so. The EPA then

did nothing to fill the gap even when Forsgren and

others told the agency that the Silvicultural Rule was

incomplete and would not shield additional point

sources from being required to obtain permits under

the statute. In other words, a long history of rebukes

by the court made the EPA well aware that it could

not rewrite statutory mandates. And yet, the EPA

chose to instead claim that its regulation was ambig-

uous and that it should now get deference for its

interpretation in the litigation process.

Under those circumstances, where an agency has

been told by several courts that its regulations do not

cover all that the statute covers, but the agency

nonetheless chooses to leave gap-filling to the inter-

pretive process, deferring to agency interpretations

under Auer would be inappropriate because it creates

perverse incentives to leave inadequate regulations

unaltered.

B. The Phase I Rule Would be Rendered

Imprecise If the Court Were to Accept

the EPA’s Interpretation.

If this Court were to defer to the EPA’s interpre-

tation of the Phase I rule, the regulation would be

rendered imprecise and separation of powers concerns

32

would arise. To be sure, the Phase I rule is not impre-

cise on its face. The Phase I regulations set out to

identify the categories of industry whose stormwater

discharges will be subject to the NPDES program. To

aid in that identification, the EPA uses SIC Codes. 40

C.F.R. § 122.26(b)(14)ii) (2012). The SIC Codes are

meant to lend precision to the regulation. 55 Fed.

Reg. 47,990, 48,010 (Nov. 16, 1990). By reference

to SIC Codes, the EPA has included logging within

the categories of industry whose stormwater dis-

charge will be subject to regulation. 40 C.FR.

§ 122.26(b\14Xii) (including industries falling within

SIC 24, which includes logging).

Notably, the text of the Rule supplements the

SIC Codes to include additional facilities or activities

that the EPA has deemed important sources of storm-

water discharge. To that end, the EPA deems the

scope of industrial activities to include immediate

access roads. 40 C.F.R. § 122.26(b)(14)(ii). In the Fed-

eral Register preamble, the EPA describes immediate

access roads to include “haul roads.” The EPA then

clarified that “haul roads (roads dedicated to the

transportation of industrial products) and similar ex-

tensions are required to be addressed in permit

applications.” 55 Fed. Reg. at 48,009.

In this case, the EPA seeks to refine its otherwise

clear inclusion of logging as an industrial activity. To

that end, the EPA argues that, while logging is an

industrial activity, timber hauling and access for big

33

machines necessary to log (both indispensable parts

of logging) are not industrial activities.’ The Govern-

ment explains this by saying that the EPA “intended”

in the Phase I rule to refer to only certain silvicultur-

al activities, notwithstanding its statement without

qualification in the rule that SIC 24 — which includes

logging — is covered. See U.S. Br. at 25. In other

words, the EPA is asking this Court for deference on

the ground that it “intended” its regulations to say

something that the regulations do not.

In order to accept the EPA’s spontaneous carve-

out of timber access and hauling from the ambit of

“logging,” the Court would have to read imprecision

into the Phase I rule. Namely, the Court would have

to accept the premise that the SIC Codes are only a

first approximation or ballpark estimate of the specif-

ic industrial processes that will actually be regulated.

To that end, the Court would have to accept that the

EPA is entitled to make more nuanced determina-

tions in the course of litigation, rather than in the

form of regulatory text, of which processes associated

with any given industry referenced by the SIC Codes

are meant to be regulated by the Phase I rule. In this

way, the agency’s proffered interpretation would create

significant latitude for the agency to decide on an ad

hoc basis that which the regulation purports to do on

‘ Notably, two of the point source silvicultural activities

identified by the Silvicultural Rule — rock crushing and gravel

washing — are processes directly associated with the construc-

tion of roads to be used for timber hauling.

34

its face — namely to identify industrial activities whose

stormwater discharges are subject to the NPDES

program. That process of identifying industrial activi-

ties is precisely the task Congress required the EPA

to perform through notice and comment rulemaking.

33 U.S.C. § 1342(p).

Here, the regulation of stormwater discharge

from silvicultural activities was not an unfamiliar

topic to the EPA. It had been struggling with statuto-

ry compliance in the area for many years. If, under

those circumstances, the EPA had wanted to exclude

stormwater runoff from timber hauling — despite its

inclusion of logging within the definition of industrial

activity and despite its inclusion of haul roads within

the ambit of industrial facilities — the EPA certainly

bore the responsibility for doing so in the plain lan-

guage of the regulation.

The agency’s duty to provide clarity is in no way

met by its reference to part 122 exclusions in the

Phase I rule. Part 122 generally encompasses the

EPA regulations covering the NPDES program. Regu-

lations in part 122, therefore, include provisions like

40 C.F.R. § 122.3 that reiterate a variety of exemp-

tions otherwise provided by Congress, such as return

flows from irrigated agriculture or nonpoint sources.

Reminding industries that the exclusions set forth in

part 122 would be undisturbed by the Phase I rule

merely confirms that the Phase I program does not

mean to upset otherwise legitimate congressional

exemptions to the NPDES program.

35

To the extent the EPA urges that the Phase I

rule’s reference to part 122 was intended to import

previously rejected attempts by the EPA to regulate

only some silvicultural point sources, that argument

is unavailing. It would allow the EPA to accomplish

through the back door what courts have long held it

cannot do directly.

Deferring to the EPA’s interpretation in this case

would inject otherwise unambiguous regulations with

imprecision. Moreover, deference would encourage the

agency to adopt regulations that amount to little more

than close-enough approximation, knowing that the

details could be sorted out through litigation and that

the court would defer to the agency’s decisions under

the guise of deferring to interpretations. If agencies

are permitted to leave these details to case-by-case

determinations, agencies could create de facto new

regulation through litigation without ever providing

adequate notice of those expectations prior to the liti-

gation. Auer deference is therefore not warranted.

IV. SKIDMORE DEFERENCE IS ALSO NOT

WARRANTED.

As in Christopher v. SmithKline Beecham Corp.,

132 S. Ct. 2156 (2012), if Auer deference is not war-

ranted, this Court must determine whether Skidmore

deference is appropriate. For this, the Court will

accord the “interpretation a measure of deference

proportional to the ‘“‘thoroughness evident in its con-

sideration, the validity of its reasoning, its consistency

36

with earlier and later pronouncements, and all those

factors which give it power to persuade.’”’” Jd. at

2169 (quoting United States v. Mead Corp., 533 U.S.

218, 228 (2001) (quoting Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944))).

It is clear that no deference should be accorded

to the EPA’s interpretation under Skidmore. First,

the EPA’s interpretation is unpersuasive in that, as

Respondent makes clear, it “is flatly inconsistent

with” the Clean Water Act. SmithKline, 132 S. Ct. at

2169. It also “plainly lacks the hallmarks of thor-

ough consideration” because, among other things, the

United States announced its interpretation for the

first time in an amicus brief in this litigation. /d.

Finally, as courts since 1975 have concluded in their

rebukes of the EPA’s prior attempts to exempt silvi-

cultural sources from the NPDES program, the EPA's

reasoning is “wholly unpersuasive.” Jd. at 2170. As

such, the EPA’s interpretation warrants no deference

under Skidmore.

37

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Amy J. WILDERMUTH SANNE H. KNUDSEN

UNIVERSITY OF UTAH Counsel of Record

S.J. QUINNEY COLLEGE OF LAW UNIVERSITY OF WASHINGTON

332 S. 1400 East, Room 101 SCHOOL OF LAW

Salt Lake City, UT 84112 William H. Gates Hall

(801) 585-6833 Box 353020

amy.wildermuth@utah.edu Seattle, WA 98195

(206) 221-7443

sknudsen@uw.edu

Counsel for Amici Curiae