Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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Nos. 11 11-347

IN THE )

Supreme Court of the Hnited States

Douc DECKER, IN HIs OFFICIAL CAPACITY AS

OREGON STATE FORESTER, et al., Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

GEORGIA-PACIFIC WEST, et al., Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR NATIONAL ALLIANCE OF

FOREST OWNERS, FOREST RESOURCES

ASSOCIATION, EMPIRE STATE FOREST

PRODUCTS ASSOCIATION, FLORIDA

FORESTRY ASSOCIATION, GEORGIA

FORESTRY ASSOCIATION, LOUISIANA

FORESTRY ASSOCIATION, MAINE FOREST

PRODUCTS COUNCIL, MICHIGAN FOREST

PRODUCTS COUNCIL, MISSISSIPPI

FORESTRY ASSOCIATION, NEW HAMPSHIRE

TIMBERLAND OWNERS ASSOCIATION,

NORTHEASTERN LOGGERS ASSOCIATION,

PENNSYLVANIA FOREST PRODUCTS

ASSOCIATION, SOUTH CAROLINA FORESTRY

ASSOCIATION, VIRGINIA FORESTRY

ASSOCIATION, AND WASHINGTON FOREST

PROTECTION ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

WILLIAM R. MURRAY CLIFTON S. ELGARTEN

NATIONAL ALLIANCE OF Counsel of Record

FOREST OWNERS KIRSTEN L. NATHANSON

122 C Street, N.W. DAVID Y. CHUNG

Suite 630 CROWELL & MORING LLP

Washington, DC 20001 1001 Pennsylvania Ave., N.W.

(202) 747-0742 Washington, DC 20004-2595

(202) 624-2500

celgarten@crowell.com

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WasnincTon, D.C. 20002

Library ef Coneres

7 aw Library

QUESTION PRESENTED

This brief will focus primarily on the jurisdictional

issue presented by this case and highlighted in the

petition of Doug Decker, in his official capacity as

Oregon State Forester, et al., namely:

Was the Ninth Circuit’s review of the Silvicultural

Rule, 40 C.F.R. § 122.27, and EPA’s Phase I rule-

making, 40 C.F.R. § 122.26, jurisdictionally barred by

the time limits of 33 U.S.C. § 1369({b)(1), and the

further requirement of § 1369(b)\(2) that such review

may be obtained only in a court of appeals review

action to which EPA is a party?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED. ...................cceeeeeeeeeeees

TABLE OF AUTHORITIES ...................ccccceeeeeeees

INTERESTS OF AMICI CURIAE ............0..00000+

A. EPA’s Regulations Have Long Deemed

Runoff From Roads Built And Maintained

To Support Silvicultural Activities As

From A Nonpoint Source, And Thus Not

Subject To CWA Permitting.....................:.

Stormwater Runoff From Forest Roads,

Including Through Culverts And Ditches,

Is From A Nonpoint Source. ..............-..006++

1. The Silvicultural Rule Made Clear

That Runoff Is From A Nonpoint

EES a a ERD ee ae nT ene

2. EPA’s Phase I Stormwater Regula-

tions Likewise Clarified That Storm-

water Runoff Is From A Nonpoint

TU temas

1. The District Court Properly Held

That Plaintiffs Claims Were Barred

By the Silvicultural Rule......................

2. The Ninth Circuit Concluded, In An

Enforcement Proceeding, That Long-

standing EPA Rules Can Be Rein-

terpreted To Conform To The Court’s

Reading Of The CWA .................:0.:00000

(11)

mm » §&.

TABLE OF CONTENTS—Continued

D. The Ninth Circuit’s Jurisdictional Theory...

SUMMARY OF ARGUMENT .................0000cceeeees

I. The Ninth Circuit Exceeded Its Juris-

diction In Overriding The Contempor-

aneously Announced Meaning Of The

Silvicultural Rule Under The Guise Of

Interpreting The Rule. .........................:0008

A. If Review Of An EPA Rule “Could

Have Been Obtained” In A Circuit

Court of Appeals Under Section

509(b), Such Review May Not Be

Obtained Through A Citizen Suit

Enforcement Action. ...............:.0:0.s0e00

B. The Ninth Circuit’s Transformative

Construction Of The Silvicultural

Rule Effectively Invalidated That

Rule, A Remedy That Could Only

Have Been Obtained Through A

Rulemaking Challenge Under Section

SII sshnchincinacishisentinniediintadaiebidedindinniaiene

1. The Ninth Circuit’s Analysis

Could Have Occurred When The

Rule Was Promulgated, As Part

Of A Rulemaking Challenge, And

Be IT siclictsiinininennesteneseniininntons

Page

TABLE OF CONTENTS—Continued

Page

2. The Ninth Circuit Rested Its

Decision Solely On Its View Of

The Meaning Of The CWA.............. 25

3. The Ninth Circuit’s “Interpreta-

tion” Is Inconsistent With Basic

EEE eons rrr Lan Dee rE 27

C. The Ninth Circuit’s Theory That Its

Jurisdiction Was Proper, And The

Appeal Timely, Because Of New

Grounds Fits Neither The Facts Nor

SE I: asccientereciepenininiuntaniinmninecians 30

Il. The Ninth Circuit Compounded Its

Error By Rejecting EPA’s Construction

Of Its Phase I Stormwater Regulations

And Again Allowing A Citizen Suit

Enforcement Action To Displace EPA’s

Rulemaking Authority. ...................:.0:0000+- 32

CPR IET cid nsctnennccinssnsinbiccennsesnatnceioeeminntiitnen 36

TABLE OF AUTHORITIES

CASES Page(s)

Am. Mining Cong. v. EPA, 965 F.2d 759 (9th

SI SII inintessesdistinsseactstsinticccitenninciaiaiamiiaianen 11, 17, 19, 32

Auer v. Robbins, 519 U.S. 452 (1997)...13, 23, 27, 34

Boumediene v. Bush, 553 U.S. 723 (2008) ...... 26

Chevron U.SA., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ............... 13

Christopher v. Smithkline Beecham Corp.,

Bee Ge GR, TR GE cccenccencsncccscrroncnvescecenens 27

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

Se TE sicisisstchdsadidnibeteaeeaiiaengeanaiatinaaiinaibdidbees 19

Envtl. Def. v. Duke Energy Corp., 549 U.S.

ee ITED innicsicenctensideecientninesinsniianeneumnaninnees 16, 22, 27

Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832

EIN Tinta cccicaidinitiiumantictianaeeniediené 11, 32

Harrison v. PPG Indus., Inc., 446 U.S. 578

SII ‘cusanceisthieasbiepdalidatedinpiatiieaniieaiaiiiinidinndaniniesieietinnies 20

Long Island Care at Home, Ltd. v. Coke, 551

SR TT wcincsiioncinadéisiniatenimnatnintereiiinians 27

Nat'l Cotton Council of Am. v. EPA, 553 F.3d

I CI iicicuesencicapeatindinitnedneiveninsin 19

Nat'l Fed’n of Indep. Bus. v. Sebelius, 132 S.

TIT snicecsaininptibansiniinsitbataiiinameiinendieieiaiie 25-26

Natl Mining Ass’n v. Dep’t of Interior, 70

F.3d 1346 (D.C. Cir. 19786) .............cccssseccoeees 20

Natural Res. Def. Council v. Abraham, 355

Fe Pe ee i ivccccstcosicsccstssnssssneminine 19

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Natural Res. Def. Council v. Costle, 568 F.2d

8, ee OTE 6

Natural Res. Def. Council v. EPA, 489 F.3d

ee es Ch a iicecceviaccninensncinencentccsovens 26

Natural Res. Def. Council v. EPA, 526 F.3d

I: CID retinennccnniecnsudtensesnionnioncinsions 19

Natural Res. Def. Council v. EPA, 673 F.2d

Ss GE ite ccnnitccnsssnenssceneninteianeees 19, 20

Natural Res. Def. Council v. EPA, 966 F.2d

SED GEE Ge Bee Piccrecccsccnssscscsssesense 11, 17, 19, 32

Natural Res. Def: Council v. Train, 396 F.

Supp. 1393 (D.D.C. 1975).................ccccsseseees 5

Newton Cnty. Wildlife Ass’n v. Rogers, No.

97-1852 (8th Cir. filed Sept. 8, 1997)........... 9

Newton Cnty. Wildlife Ass’n v. Rogers, 141

Fe Be Gee CR. FED cc cccesccnccccccccescosecescese 12

Rowan Cos. v. United States, 452 U.S. 247

eee nnssiesinnnscsipsiasbenininniinniciibinegiiiiiaienddinbintniniiitaniningiides 26

Sierra Club v. Martin, 71 F. Supp. 2d 1268

I Sly CUI itcciderniiernnaciccdmacsinniniepesinuheniinhents 12

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 30

Tex. Mun. Power Agency v. EPA, 836 F.2d

De ey GY Bh ccctenccescnssetncnesesconsinnasennes 20

STATUTES AND REGULATORY MATERIALS

Ie Cs OF bi ccewenseyensnsesnsicsnncsnsncesintsnmananenn 28

ee ls Op GEE crccsnncnresensmnsnecncevsenionaneneninnts 4

TABLE OF AUTHORITIES—Continued

Page(s)

Be I Se i ipcctnincnnininescennennccenesscntenensnnnnil passim

a te I ctiiceninceniiicannnsnintnsmpeineininis 10, 32, 33

33 U.S.C. § 1342(pX1)-(B) «0.0.0... ee eeceece cece eeeenees 10

33 U.S.C. § 1342(p)(2)(B) .........eeeeeeeeeseeeeeeeeeees 14

33 U.S.C. § LEED DNGE)AG) ...............0cceccccccccceees 10

Be ey Oe I innrrnscncsseninnnessinesniinnssmmene 33

i I cis anis neh dinemnidncnmnebiaioniiioniae 8

SN I ai erncaiicienecebaninandereaasaanginidantia 12

Be Es Oe ED dnacetensanensnansneonsnnscciuntinneinnasa 31

Se Sinai ctenesipansinsncnpeneniennmaninanntie 17, 22, 23

NE passim

I eee passim

ee SEs © RIED dcccrccecccsssesssvcosscessssoses 16, 20, 31

ee te I icctnncncensstncnnncdenininniasensesnns 20

Clean Water Act, Pub. L. No. 95-217, 91

Se IT ii ctrscnadicinaticiamigaaaomnannnionien 5

I niscrctnnensentunnpiennainnncsnenunins 19

40 C.F.R. § 122.26( bX 14) ..................02000 4, 10, 33, 34

40 C.F.R. § 122.26(b)(14)(ii)........ cee eeee eee e eee 10

I Oe I niitiicnicssseninnnetnsdiincincsddenbeninmnan 2,4, 29

ee Oe Be icicititiicnrnsiitnsentntanctesiineinniamandinn 5

38 Fed. Reg. 10,960 (May 3, 1973).................. 5

38 Fed. Reg. 18,000 (July 5, 1973) «2.0.0.0... 5

TABLE OF AUTHORITIES—Continued

Page(s)

40 Fed. Reg. 56,932 (Dec. 5, 1975) .................. 6, 33

41 Fed. Reg. 6,281 (Feb. 12, 1976) ...7, 23, 24, 30, 33

41 Fed. Reg. 7,693 (Feb. 23, 1976) .................. 8

41 Fed. Reg. 11,303 (Mar. 18, 1976)................ 6

41 Fed. Reg. 24,709 (June 18, 1976) ........7, 8, 23, 24

41 Fed. Reg. 28,493 (July 12, 1976) ................ 8

45 Fed. Reg. 33,290 (May 19, 1980)................ 7

55 Fed. Reg. 20,521 (May 17, 1990) ................ 9, 33

55 Fed. Reg. 47,990 (Nov. 16, 1990)................ 10, 11

64 Fed. Reg. 46,058 (Aug. 23, 1999)................ 9

65 Fed. Reg. 43,586 (July 13, 2000) ................ 9

OTHER AUTHORITIES

Forest Econ Inc., Economic Effects of Point

Source Runoff Regulations Estimated for

Private Forests of the Pacific Northwest

(Dec. 9, 2011), available at http://nafo

alliance.org/wp-content/uploads/Road-

Permit-Costs-in-Northwest.pdf.................-+- 3

James W. Sewall Co., Estimated Cost Im-

pacts of Ruling Change for Forest Roads in

the State of Maine (Dec. 7, 2011), avail-

able at http-//nafoalliance.org/wp-content/

uploads/Road-Permit-Costs-in-Maine-North

oo —e 3

TABLE OF AUTHORITIES—Continued

Page(s)

Profs. Frederick Cubbage and Robert Abt,

Potential Administrative and Economic

Impacts of NPDES Permit Requirements

for Forest Roads in the South (Dec. 7,

2011), available at http://nafoalliance.org/

wp-content/uploads/Road-Permit-Costs-in-

Ee een ae 3

S. Conf. Rep. 92-1236 (Sept. 28, 1972)............ 21

INTERESTS OF AMICI CURIAE'

The National Alliance of Forest Owners is a trade

association representing owners and managers of

over 79 million acres of private forests in 47 states.

Its mission is to protect and enhance the economic

and environmental values of privately-owned forests

through targeted national policy advocacy.

The Forest Resources Association is a _ trade

association concerned with the safe, efficient, and

sustainable harvest of forest products and their

transport from woods to mill. It represents wood

consumers, independent logging contractors, wood

dealers, forest landowners, and others with an

interest in wood supply chain management.

In addition to the these national organizations,

amici include the following associations from various

forested regions across the country: Empire State

Forest Products Association (New York), Florida

Forestry Association, Georgia Forestry Association,

Louisiana Forestry Association, Maine Forest

Products Council, Michigan Forest Products Council,

Mississippi Forestry Association, New Hampshire

Timberland Owners Association, Northeastern

Loggers Association, Pennsylvania Forest Products

Association, South Carolina Forestry Association,

Virginia Forestry Association, and Washington

Forest Protection Association. Each of these

‘ Pursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part and no

persons other than amici and their counsel made a monetary

contribution to its preparation or submission. Counsel for amici

appeared on behalf of intervenors below but did pot participate

in drafting their briefs in this Court. Letters of consent for this

brief are on file with the Clerk.

organizations has members, including companies,

individuals, and families, that work on, own, or

manage forest lands in their respective states. These

organizations promote stewardship and wise use

of forest resources and are dedicated to forest

conservation and the sustainable use of natural

resources.

Amici have a substantial interest in this case.

Their ongoing forestry activities are largely depend-

ent on maintaining forest roads. Ditches and cul-

verts protect forest roads from the destructive effects

of precipitation and are, therefore, integral to build-

ing and maintaining those roads. Without them,

most forest roads would not last long enough to be

useful. For more than three decades runoff from

those roads has been defined by the Silvicultural

Rule, 40 C.F.R. § 122.27, as coming from nonpoint

sources, not subject to permitting under Clean Water

Act (*CWA”) section 402, 33 U.S.C. § 1342. The

decision of the Ninth Circuit would for the first time

subject forest road maintenance and construction to

the permitting process.

Given the need for well-maintained forest roads in

aid of silvicultural activities, and the number of

forest roads, the Ninth Circuit’s decision would

require private, state, county, and federal actors

that build and maintain roads for timber harvesting

to obtain potentially hundreds of thousands (or

millions) of section 402 permits. See Ex. 1. to Am.

Forest Res. Council C.A. Amicus Br.; Am. Loggers

Council C.A. Amicus Br. 13. The expansion of the

section 402 permitting program resulting from the

Ninth Circuit’s decision is well-illustrated by com-

paring the number of permits this decision will

require with the 2009 estimate from the U.S.

Environmental Protection Agency (“EPA”) that the

total universe of discharges then requiring permits

(individual or general) was only 400,000. See Hanlon

Decl. in Supp. of Am. Loggers Council C.A. Amicus

Br. 4 11. This dramatic expansion will impose

significant new costs. See, e.g., Forest Econ Inc.,

Economic Effects of Point Source Runoff Regulations

Estimated for Private Forests of the Pacific North-

west (Dec. 9, 2011), available at http://nafoalliance.

org/wp-content/uploads/Road-Permit-Costs-in-North

west.pdf; Profs. Frederick Cubbage and Robert Abt,

Potential Administrative and Economic Impacts of

NPDES Permit Requirements for Forest Roads in

the South (Dec. 7, 2011), available at http://nafo

alliance.org/wp-content/uploads/Road-Permit-Costs-in-

Southl.pdf; James W. Sewall Co., Estimated Cost

Impacts of Ruling Change for Forest Roads in the

State of Maine (Dec. 7, 2011), available at http://

nafoalliance.org/wp-content/uploads/Road-Permit-Cos

ts-in-Maine-Northeast-Lake-States. pdf.

Beyond the practical effect on silvicultural activi-

ties, amici also emphasize the broader disruption

flowing from the Ninth Circuit’s jurisdictional rul-

ings, which are the focus of this brief. Those rulings

allow citizen enforcement actions to provide a vehicle

for subjecting companies and States to the belated

reevaluation of long-established EPA rules on which

they and EPA have long and justifiably relied. In

this case, judicial review of EPA’s rules, through the

device of an enforcement action, violated both

the statutory time limits, and the mechanism for

obtaining review, established by CWA section 509(b),

33 U.S.C. § 1369(b).

STATEMENT

A. EPA’s Regulations Have Long Deemed

Runoff From Roads Built And Maintained

To Support Silvicultural Activities As

Fyrom A Nonpoint Source, And Thus Not

Subject To CWA Permitting.

A foundational requirement of the CWA is that

pollutant discharges from “point sources” are pro-

hibited unless granted a permit under section 402, 33

U.S.C. § 1342. See 33 U.S.C. § 1311(a). For nearly

40 years, however, EPA has specified that section 402

permits are not required for silvicultural rainwater

runoff, including from the hundreds of thousands of

miles of forest roads that channel runoff from the

road through ditches and culverts, because such

runoff is “nonpoint source” in nature. EPA’s deter-

mination is embodied in the two regulations at

issue in this case—the 1976 Silvicultural Rule

(currently 40 C.F.R. § 122.27) and the 1990 Phase I

industrial stormwater regulation (currently 40 C.F.R.

§ 122.26(b)(14)). Because of these rules, private

actors, states, counties, and federal agencies have not

been required to obtain section 402 permits when

they built a road with ditches alongside, installed a

culvert, deepened ditches, or extended or moved a

forest road used for timber harvesting and related

silvicultural activities.

B. Stormwater Runoff From Forest Roads,

Including Through Culverts And Ditches,

Is From A Nonpoint Source.

The history of the Silvicultura]l Rule and associated

rulemaking, as detailed below, answers the juris-

dictional question before the Court.

1. The Silvicultural Rule Made Clear That

Runoff Is From A Nonpoint Source.

Shortly after Congress enacted the Federal Water

Pollution Control] Act (““FWPCA”)’ in 1972, EPA,

interpreting its mandate from Congress and citing a

range of policy considerations, promulgated regula-

tions excluding from section 402 permitting most

“smaller, insignificant agricultural and stormwater

discharges (including minor irrigation return flow

discharges and runoff from fields, orchards, and crop

and forest lands).” See 38 Fed. Reg. 18,000 (July 5,

1973) (codified at 40 C.F.R. § 125.4(j)). In doing so,

EPA explained that “the Act and legislative history

indicate clearly that Congress regarded discharges

from agricultural and silvicultural activities as prob-

lems to be dealt with primarily through the exercise

of authorities concerning nonpoint sources[.]” 38 Fed.

Reg. 10,960, 10,961 (May 3, 1973).

This rule was held invalid by the United States

District Court for the District of Columbia on the

ground that EPA did not have any general authority

to exempt entire classes of point sources from the

scope of the permitting requirements under section

402. See Natural Res. Def. Council, Inc. v. Train, 396

F. Supp. 1393 (D.D.C. 1975). The court suggested as

an alternative approach that EPA should exercise its

authority under the CWA to define sources that are

best regulated as nonpoint sources, as Congress

contemplated for silvicultural activities. Id. at 1401-

02.

In reviewing the District Court’s decision in Train,

the United States Court of Appeals for the District of

* This Act was renamed the CWA in 1977. See Pub. L. No. 95-

217, 91 Stat. 1566 (1977).

Columbia Circuit concluded that “[t]he definition of

point source in § 502(14), including the concept of a

‘discrete conveyance’, suggests that there is room

here for some exclusion by interpretation” and thus

acknowledged that EPA did, indeed, possess the

“power to define point and nonpoint sources.” See

Natural Res. Def. Council, Inc. v. Costle, 568 F.2d

1369, 1377, 1382 (D.C. Cir. 1977).

In 1975, EPA exercised that authority and deemed

agricultural and silvicultural stormwater runoff—

which EPA at times collectively called “rural runoff’—

as nonpoint sources, regardless of whether such

runoff was channeled through ditches, culverts or

otherwise.

Specifically, EPA’s 1975 proposal to regulate

separate storm sewers announced that “rural storm

water runoff,” which includes both agricultural- and

silviculture-related runoff, should not be subject to

section 402 permitting. See 40 Fed. Reg. 56,932 (Dec.

5, 1975). EPA explained that “[its] position was and

continues to be that most rainfall runoff is more

properly regulated under section 208 of the FWPCA,

whether or not the rainfall happens to collect before

flowing into navigable waters.” Id. (emphasis added).

In particular, EPA observed that “[a]gricultural and

silvicultural runoff . . . frequently flows into ditches

or is collected in pipes before discharging into

streams,” but it concluded that “most of these sources

are nonpoint in nature and should not be covered by

the NPDES program.” lId.; see also 41 Fed. Reg.

11,303, 11,305 (Mar. 18, 1976).

Against this backdrop, EPA in 1976 proposed and

promulgated the Silvicultural Rule, expressly defin-

ing “silvicultural point source” to mean discharges

“related to rock crushing, gravel washing, log sorting,

or log storage facilities which are operated in connec-

tion with silvicultural activities[.]” 41 Fed. Reg. 24,

709, 24,712 (June 18, 1976).° The final 1976 defini-

tion of “silvicultural point source” expressly did not

include various “nonpoint source activities inherent to

silviculture” such as, among others, “road construc-

tion and maintenance from which there is natural

runoff.” Id. The proposed Rule, however, did not

include “road construction and maintenance” among

the “nonpoint source activities.” See 41 Fed. Reg.

6,281, 6,283 (Feb. 12, 1976).

The preamble to the proposed Rule announced that

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

direct, and convey non-point runoff from precipitation

are not meant to be subject to the § 402 permit

program.” Jd. at 6,282. It emphasized that “[o]nly

those silvicultural activities that, as a result of con-

trolled water use by a person, discharge pollutants

through a discernible, confined and discrete con-

veyance into navigable waters are required to obtain

a § 402 pollution discharge permit.” Id.

/ When_EPA promulgated the final Silvicultural

‘Rule later that year, it again addressed whether

stormwater

,709. Responding to comments on

PA explained that “{iJnsofar as

ture[.!” 41 Fed. Reg. at

24,711. M eover, C nsistent with this explanation

that the cha of stormwater runoff does not

* EPA codified the current version of the Rule in 1980,

but that version differs from the 1976 version only in minor

. See 45 Fed. Reg. 33,290, 33,446-47 (May 19, 1980).

make it from a “point source,” EPA revised the Rule

as proposed. The Silvicultural Rule now included

“road construction and maintenance” in the listing

of “nonpoint source activities.” EPA explained that

although such runoff “falls more generally under the

characteristics of nonpoint source pollution, no

such reference was made in the proposed regula-

tions.” Id. Therefore, the Silvicultural Rule made

the point explicit.

EPA also promulgated in 1976 a separate rule

regarding agricultural activities and defining irriga-

tion return flow ditches used for agricultural or

silvicultural activities as “agricultural point sources”

subject to section 402 permitting. See 41 Fed. Reg.

7,693 (Feb. 23, 1976) (Proposed Rule, Agricultural

Activities); see also 41 Fed. Reg. 28,493, 28,495 (July

12, 1976) (Final Rule, Application of Permit Program

to Agricultural Activities).

Congress enacted CWA amendments in 1977.

Significantly, it rejected EPA’s decision to include

agricultural return flows in “point source” as too

broad. Congress amended “point source” to exclude

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

§ 1362(14). In overriding EPA’s definition of agricul-

tural point source as too broad, Congress did not

disturb any of the instances in which EPA had

already found silvicultural and agricultural activities

to be nonpoint source in nature, such as in the

Silvicultural Rule.

As described above, in promulgating the Silvi-

cultural Rule, EPA stated that stormwater runoff

from forest roads, whether channeled or not, is not

subject to CWA permitting. Nonetheless, no inter-

ested parties challenged the Silvicultural Rule in a

court of appeals within the filing period under 33

U.S.C. § 1369(b). The Rule became law and remained

law.

In the many years after promulgation, EPA had

occasion to restate its view that channeled runoff

from forest roads is not subject to permitting. EPA

published a “Notice of Regulatory Interpretation” in

the Federal Register in 1990 confirming that when it

promulgated the Silvicultural Rule, “EPA concluded

that discharges such as these (e.g., runoff from

orchards and forest lands), although sometimes

channeled, were non-point source in nature. They

were caused solely by natural processes, including

precipitation and drainage, were not otherwise

traceable to any single identifiable source, and were

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

Reg. 20,521, 20,522 (May 17, 1990) (emphasis added).

Similarly, in considering whether to revise the

Silvicultural Rule in 1999, EPA again declared that

runoff from forest road construction or maintenance,

among other silvicultural activities “is categorically

excluded from the NPDES program,” 64 Fed. Reg.

46,058, 46,077 (Aug. 23, 1999), and EPA ultimately

declined to revise the Rule. See 65 Fed. Reg. 43,586,

43,652 (July 13, 2000). EPA expressed the same

position in various litigation-related briefs including

those filed in this case. See, e.g., Br. of Fed.

Appellees, Newton Cnty. Wildlife Ass’n v. Rogers, No.

97-1852, at 40-42 (8th Cir. filed Sept. 8, 1997); Pet.

App. 86a-87a, 91a; Pet. App. 113a-116a; 1JA 22, 39.

2. EPA’s Phase I Stormwater Regulations

Likewise Clarified That Stormwater Runoff

Is From A Nonpoint Source.

In 1987, Congress amended the CWA to address

stormwater more effectively, employing what has

come to be called a Phase I and Phase II regulatory

structure. For Phase I, section 402(p) was amended

to state that permits “shall not [be] require[d] . . . for

discharges composed entirely of stormwater” prior to

October 1, 1994, with the exception of five categories

of stormwater discharges, notably including those

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

§ 1342(pX(1)-(3).

In addition, Congress directed EPA to consider in

Phase II whether other types of stormwater dis-

charges should also be subject to regulation, given

“the nature and extent of pollutants in such

discharges.” See id. § 1342(p)(5)-(6).

EPA promulgated its Phase I stormwater regula-

tions in 1990. See 55 Fed. Reg. 47,990 (Nov. 16,

1990). In those regulations, EPA defined discharges

“associated with industrial activity” to refer only to

discharges “directly related to manufacturing, pro-

cessing or raw materials storage areas at an

industrial plant” and “immediate access roads” at

such facilities. 40 C.F.R. § 122.26(b)14). Nothing in

the regulations provides that runoff from “harvesting

operations” in the forest, i.e., logging, fits within this

definition. Moreover, EPA stated that its Phase I

permit requirement would “not include discharges

from facilities or activities excluded from _ the

[permitting] program under this Part 122 [which

includes the Silvicultural Rule].” See 40 C.F.R.

§ 122.26(b)(14); see also 55 Fed. Reg. at 48,011. EPA

thus specified that, under the stormwater rules,

previously excluded silvicultural activities, in the

event a discharge occurred, were again excluded.

The regulatory definition of “associated with indus-

trial activity” contains a reference to Standard

Industrial Classification (“SIC”) 24. See 40 C.F.R.

§ 122.26(b)(14)(ii); see also 2JA 65-71. EPA’s reason

for including that reference was to require permits

for “sawmills . . . and other mills engaged in produc-

ing lumber and wood basic materials” because such

facilities could be expected to contain potential pollu-

tion sources such as “storing raw materials . . . [or]

waste products .. . or chemicals outside.” 55 Fed.

Reg. at 48,008. It did not intend, with that reference,

to encompass silvicultural activities in the forest

itself, such as stormwater runoff from logging. See 55

Fed. Reg. at 48,011. It agreed with comments urging

exclusion of such runoff from Phase I permitting,

emphasizing that runoff is better controlled through

best management practices. Thus, the “definition of

discharge associated with industrial activity does not

include activities or facilities that are currently

exempt from permitting under [sJection 402,” such as

stormwater runoff from forest roads. See id.

EPA’s decision that such activities are outside of

Phase I could have been subject to judicial review at

the time of promulgation. Notwithstanding timely

petitions to review the Phase I regulations, EPA’s

decision on forest roads emerged unchallenged and

unscathed. See Am. Mining Cong. v. EPA, 965 F.2d

759 (9th Cir. 1992); Natural Res. Def. Council v. EPA,

966 F.2d 1292 (9th Cir. 1992).

In 1999 EPA declined to subject forest road runoff

even to Phase II regulation, a conclusion that the

Ninth Circuit ultimately directed EPA to explain and

which remains under consideration. See Envtl. Def.

Ctr. v. EPA, 344 F.3d 832, 843 (9th Cir. 2003).

C. The Decisions Below.

1. The District Court Properly Held That

Plaintiff’s Claims Were Barred By the

Silvicultural Rule.

In 2006, Northwest Environmental Defense Center

initiated in district court this citizen suit enforcement

action under 33 U.S.C. § 1365 against the Oregon

State Forester, a number of other State officials, and

various timber companies. The suit alleged that

defendants violated the CWA by not obtaining

Section 402 permits for stormwater runoff from log-

ging roads. The district court had little difficulty

concluding that the challenged failure to obtain

Section 402 permits for sediment runoff from forest

roads did not violate the CWA. In its view, the

Silvicultural Rule made it clear that such runoff did

not involve point source discharges and thus was

beyond the reach of Section 402 permitting require-

ments. See Pet. App. 48a-68a.*

2. The Ninth Circuit Concluded, In An Enforce-

ment Proceeding, That Longstanding EPA

Rules Can Be Reinterpreted To Conform To

The Court’s Reading Of The CWA.

The Ninth Circuit took a very different tack. It

declined to accept EPA’s view of what the Silvi-

cultural Rule meant. After a lengthy recitation of

* In so holding, the district court followed a conventional

approach, consistent with other courts, concluding that under

the Silvicultural Rule, forest road rainwater runoff is from a

“non-point” source, and thus no permits were required. See

Newton Cnty. Wildlife Ass’n v. Rogers, 141 F.3d 803 (8th Cir.

1998); Sierra Club v. Martin, 71 F. Supp. 2d 1268 (N.D. Ga.

1996).

the Rule’s history, in which the court repeatedly

acknowledged that EPA defined stormwater runoff

from forest roads to be nonpoint source, even when

the runoff is channeled and collected (Pet. App. 16a-

28a), the Ninth Circuit abruptly concluded that the

Rule was actually ambiguous on whether “collected,

channeled, and discharged” runoff is a point source

discharge. See Pet. App. 32a-33a.

The Ninth Circuit took the view that if runoff

channeled through culverts and ditches was deemed

to be from a nonpoint source, that would be incon-

sistent with the court’s understanding of the CWA

and could not be the right reading of the Rule. But

because the Rule was capable of an alternate reading,

albeit one that “does not reflect the intent of EPA,”

the court adopted that alternate reading in order to

“construe the Rule to be consistent with the statute.”

Pet. App. 32a The court thus held that “the

Silvicultural Rule does not exempt from the defini-

tion of point source discharge . . . stormwater runoff

from logging roads that is collected and channeled in

a system of ditches, culverts, and conduits before

being discharged into streams and rivers.” Id. The

Ninth Circuit did not explain how its freshly-minted

interpretation of the Rule could be reconciled with

the principles of Auer v. Robbins, 519 U.S. 452

(1997), which require deference to an agency in

interpreting agency regulations.” It purported to

“save” EPA’s Rule for EPA by giving it a meaning

that EPA neither intended nor requested.

* Nor did the Ninth Circuit articulate why EPA’s interpret-

ation of ambiguous terms such as “nonpoint source” did not

warrant deference under Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984).

The Ninth Circuit then turned to whether runoff

from forest roads is subject to CWA permitting under

the Phase I regulations, concluding that such runoff

involves “discharges associated with industrial activity”

under 33 U.S.C. § 1342(pX2)B), as defined by EPA

itself. The Ninth Circuit seized on the regulation’s

reference to SIC 24, declaring that “[i]t is undisputed

that ‘logging,’ which is covered under SIC 2411 (a

subset of SIC 24), is an ‘industrial activity.” Pet.

App. 39a. In so doing, it overrode EPA’s contem-

poraneous explanation that the SIC 24 reference did

not encompass activities in the forest. It also over-

rode EPA’s explanation in this case that it had

excluded and intended to exclude silvicultural activi-

ties, such as logging and associated road main-

tenance and construction, from its definition of

industrial activity.

D. The Ninth Circuit’s Jurisdictional Theory.

Petitioners sought rehearing and rehearing en

banc. The court, at that point, ordered the parties to

address its jurisdiction in light of 33 U.S.C. § 1369(b),

which provides that: (i) judicial review of certain EPA

actions must be sought in an appropriate court of

appeals within 120 days from the date of deter-

mination, approval, promulgation, issuance, or denial,

unless based on grounds arising more than 120 days

after the action; and (ii) any such challenge that

could have been brought under § 1369(b) “shall not be

subject to judicial review in any civil or criminal

proceeding for enforcement.” On May 17, 2011, the

court denied rehearing and issued a replacement

opinion, adding a brief discussion of subject matter

jurisdiction. See Pet. App. 5a-7a.

The court rested its jurisdictional analysis on two

points. First, it stated that it had not invalidated the

Silvicultural Rule, but merely interpreted it, thus

removing it from § 1369(b)’s province. On the one

hand, the Rule could be read in a manner consistent

with EPA’s contemporaneous statements concerning

its scope and with EPA’s statements in its initial

amicus brief, to provide that stormwater runoff from

forest roads is categorically deemed nonpoint source.

On the other hand, the Rule might be read not

to reach stormwater runoff through culverts and

ditches. In adopting the second view, the court

claimed it was simply interpreting, not invalidating

the Rule.

Second, the Ninth Circuit stated that “the govern-

ment first adopted its interpretation of the Rule in its

initial amicus brief in this case.” This allowed the

court to declare that “this case comes within the

exception in § 1369(b)(1) for suits based on grounds

arising after the 120-day filing window.” Pet. App.

7a. The court did not discuss whether this case was

filed in the appropriate court.

The Ninth Circuit did not consider whether

§ 1369(b) posed any bar to its review of the Phase I

stormwater regulations.

SUMMARY OF ARGUMENT

1. CWA section 50%b) requires that judicial

review of certain EPA actions, such as the rules at

issue in this case, proceed against EPA in a court of

appeals within 120 days after promulgation, unless

the grounds for the challenge arise later. See

33 U.S.C. § 1369(b\1). A determination that a rule’s

intended scope as described by EPA at the time of

promulgation is inconsistent with the CWA is one

that could have been obtained under §1369(b)1).

Such a ruling therefore cannot be obtained later in

enforcement proceedings, as 33 U.S.C. §1369(bX2)

makes clear. The Ninth Circuit exceeded its juris-

diction by reinterpreting the Silvicultural Rule 35

years later to conform it to its view of what the CWA

required, namely, CWA permits for channeled storm-

water runoff from forest roads. That ostensible

“interpretation,” contrary to EPA’s stated explanation

of the Rule at the time of promulgation, effectively

invalidated the Rule as written, see Envtl. Def. v.

Duke Energy Corp., 549 U.S. 561, 573, 581 (2007).

This was impermissible for the following reasons:

First, at the time of promulgation, EPA explained

that forest road construction and maintenance giving

rise to stormwater runoff, whether channeled or not,

does not require CWA section 402 permits. This

explanation, and EPA’s position on subjecting silvi-

cultural activity to permitting, was not ambiguous.

Any affected party who believed that the Rule was

inconsistent with the CWA could have sought judicial

review at that time, but no petition was filed within

the statutory window. Decades later, in an enforce-

ment proceeding to which EPA was not a party, the

Ninth Circuit forced a new interpretation upon the

Rule to conform it to the court’s current view of the

CWA. The court’s “interpretation” therefore amounts

to an invalidation of the Rule as written, an outcome

that § 1369(b)(2) forbids in a citizen suit enforcement

action because review “could have been” obtained at

the time of promulgation.

Second, the Ninth Circuit based its “interpretation”

solely on the theory that its intended meaning was

irreconcilable with the court’s understanding of the

CWA. That is exactly the kind of issue that could be

presented under § 1369(b).

Third, in purporting to save the Rule by emas-

culating it, the Ninth Circuit did not “interpret” it in

any ordinary sense. It ignored all of the ordinary

rules of interpretation and showed no observable

deference to EPA’s express and consistently held

views about the meaning of its own authority and

regulation.

2. The Ninth Circuit further erred by allowing

this citizen suit enforcement action to become the

vehicle for reviewing EPA’s determination that chan-

neled stormwater runoff from forest road construc-

tion and maintenance is not subject to permitting

under EPA’s Phase I regulation. Such judicial review

could have been, but was not, timely obtained in a

§ 1369(b) suit in court of appeals. See Am. Mining

Cong., 965 F.2d 759; Natural Res. Def. Council, 966

F.2d 1292. EPA made clear as amicus that irrespec-

tive of the independent effect of the Silvicultural Rule

in defining certain activities as “nonpoint source,”

EPA did not regard forest road maintenance or

construction to be “industrial activity” under its Phase

I rules. Even if the Ninth Circuit could properly

conclude that its “interpretation” of the Silvicultural

Rule undermined the premise of EPA’s exclusion of

forest road construction and maintenance from the

Phase I rules, this is assuredly a matter for EPA to

consider in the first instance. Moreover, as a matter

of Phase I rulemaking, it is a matter that should be

reviewed in a section 509 proceeding, not in a citizen

suit.

ARGUMENT

I. The Ninth Circuit Exceeded Its Juris-

diction In Overriding The Contempor-

aneously Announced Meaning Of The

Silvicultural Rule Under The Guise Of

Interpreting The Rule.

EPA rules are subject to judicial review through

timely proceedings against the Agency in the courts

of appeals under 33 U.S.C. § 1369(b). Judicial review

of EPA rules, or EPA’s announced interpretations of

its rules, is not well-suited to citizen suit enforcement

actions in which the Agency is not even a party. If

the scope of a rule was announced at the time of

promulgation, and left unchallenged, affected parties

can then rely on that rule, as it has become law, and

remains immune frum judicial review in enforcement

actions. Because the rules at issue here—including

EPA’s contemporaneously announced interpretation

of its rules—could have been reviewed at the time of

promulgation under section 509(b), that is when and

how they should have been considered by the courts,

if at all.

A. If Review Of An EPA Rule “Could Have

Been Obtained” In A Circuit Court of

Appeals Under Section 509(b), Such

Review May Not Be Obtained Through

A Citizen Suit Enforcement Action.

Section 509(b)(1) of the CWA sets forth the means,

and the time within which, a wide range of EPA

actions and rules are subject to judicial review. It

provides that review of specified EPA determinations,

approvals, promulgations, issuances, or denials “may

be had by any interested person in [a] Circuit Court

of Appeals of the United States” and that “[a]Jny such

application shall be made within 120 days from the

date of such determination, approval, promulgation,

issuance or denial, or after such date only if such

application is based solely on grounds which arose

after such 120th day.” 33 U.S.C. § 1369(b)(1).

It is well-established that review provisions, such

as section 509(b), that establish jurisdiction in the

courts of appeals “should be construed in favor of

review by the court of appeals.” Natural Res. Def.

Council v. Abraham, 355 F.3d 179, 193 (2d Cir. 2004)

(citing cases from four circuits). Consequently, sec-

tion 509(b) has been construed broadly to encompass

a wide range of EPA rulemakings, including the

Phase I regulations—which were, in fact, challenged

under section 509(b)—and regulations providing

for exclusions from section 402 permitting like the

Silvicultural Rule. See, e.g., Natural Res. Def.

Council v. EPA, 526 F.3d 591, 601 (9th Cir. 2008)

(challenge to rule exempting discharges of oil and gas

construction activities); Nat'l Cotton Council of Am. v.

EPA, 553 F.3d 927, 933 (6th Cir. 2009) (challenge to

rule exempting direct pesticide application from

permitting); Natural Res. Def. Council v. EPA, 966

F.2d 1292 (9th Cir. 1992) (challenge to EPA’s Phase I

regulations); Am. Mining Cong. v. EPA, 965 F.2d

759, 763 (9th Cir. 1992) (same); Natural Res. Def.

Council v. EPA, 673 F.2d 400, 403-06 (D.C. Cir. 1982)

(challenge to EPA’s “consolidated permit regula-

tions,” 40 C.F.R. parts 122-25). Moreover, this Court

has observed the “truly perverse” situation that

would arise if “courts of appeals would review

numerous individual actions issuing or denying

permits pursuant to § 402 but would have no power

of direct review of the basic regulations governing

those individual actions.” E. I. du Pont de Nemours

v. Train, 430 U.S. 112, 136 (1977). Consequently, the

agency rules at issue in this case fall squarely within

the class of agency actions subject to the requirement

of timely challenge in a court of appeals under section

509(b). No party argued in the Ninth Circuit that the

Silvicultural Rule (or the Phase I rule) was a form of

agency action outside the scope of section 509(b).

Section 509(b)’s prohibition on collateral challenges

to EPA rules is emphatic: “Action of the Adminis-

trator with respect to which review could have been

obtained under [§ 1369(b)(1)] shall not be subject to

judicial review in any civil or criminal proceeding for

enforcement.” 33 U.S.C. § 1369{b\2). This Court has

interpreted an identically worded prohibition within

the Clean Air Act to mean that “any agency action

that was reviewable in the courts of appeals cannot

be challenged in an enforcement proceeding, whether

or not review was actually sought.” Harrison v. PPG

Indus., Inc., 446 U.S. 578, 605 (1980) (interpreting 42

U.S.C. § 7607(b)(2)); accord Natural Res. Def. Council,

673 F.2d at 406 (under 33 U.S.C. §§ 1369(b)(1) and

1369(b)(2), “one who wishes to challenge an action of

the Administrator must, if the action is held to be

within the categories of section 509(b)(1), do so within

[120] days or lose forever the right to do so, even

though that action might eventually result in the

imposition of severe civil or criminal penalties”).

With section 509(b), just as with similar exclusive

review provisions in other environmental statutes,

Congress “struck a careful balance between the need

for administrative finality and the need to provide

for subsequent review in the event of unexpected

difficulties.” Nat'l Mining Ass’n v. Dep't of Interior,

70 F.3d 1345, 1350 (D.C. Cir. 1975); see also Tex.

Mun. Power Agency v. EPA, 836 F.2d 1482, 1484 (5th

Cir. 1988). Ultimately, Congress chose to “limit the

availability of judicial review of a standard or

requirement where judicial review was available

at the time the standard or requirement was

established.” S. Conf. Rep. 92-1236 at 148 (Sept. 28,

1972).

Statutes such as section 509%(b) serve interests

arguably even more important than finality, though

finality is important enough. They ensure that

review takes place in a court of appeals, in a chal-

lenge against the agency, which has a fair chance to

defend its rule. Such challenges allow for binding

nationwide determination about the validity of

agency rules. Moreover, in a court of appeals review

proceeding, other interested parties have the oppor-

tunity to contribute to the defense of (or assault on)

the rule. By contrast, collateral citizen suit attacks

on agency regulations risk inconsistent results and

uncertainty as to the effect of judicial decisions on the

agency and non-parties.

Considerations of fairness, estoppel, or even due

process might temper the application of the juris-

dictional bar of section 509(b) when the bar is raised

by the enforcing agency against, for example, a

company or State that claims no knowledge of

the rule or chance to contest it. Those tempering

considerations have no application where, as here, it

is the enforcing party that seeks to circumvent the

jurisdictional bar.

The basic intent underlying section 509(b) is

unmistakable: Congress wanted to ensure that

challenges to the actions of EPA be timely presented

in a court of appeals review action directed against

EPA, allowing EPA to defend its actions. Challenges

to EPA regulations that could have been brought

earlier in a section 509 proceeding are not properly

Maintained in enforcement actions initiated long

after a rule’s promulgation, and to which EPA may

not even be a party.

B. The Ninth Circuit’s Transformative

Construction Of The Silvicultural Rule

Effectively Invalidated That Rule, A

Remedy That Could Only Have Been

Obtained Through A Rulemaking

Challenge Under Section 509(b).

It is, of course, correct that section 509(b) poses no

bar to the interpretation of an ambiguous rule.

Respondents will apparently seek to defend the

Ninth Circuit’s jurisdiction on that basis, i.e., this

was simply a matter of interpreting an ambiguous

regulation. See Br. in Opp. 21-26 (cert stage).

But it is equally clear that there are limits to what

may properly be deemed interpretation, rather than

implicit invalidation, of a rule. See Duke Energy

Corp., 549 U.S. at 581 (“[Wle have to see the Court of

Appeals’ construction of the 1980 PSD regulations

as an implicit invalidation of those regulations, a

form of judicial review implicating the provisions of

§ 307(b) of the Act, which limit challenges to the

validity of a regulation during enforcement pro-

ceedings when such review ‘could have been obtained’

in the Court of Appeals for the District of Columbia

within 60 days of EPA rulemaking.”). The “inter-

pretation” by the Ninth Circuit is every bit as much

an implicit invalidation of the Silvicultural Rule as

was the interpretation in Duke Energy. Three points

make this clear:

First, the “interpretation” that the Ninth Circuit

adopted was flatly inconsistent with EPA’s explan-

ation of the rule, and its intended scope and applica-

tion, at the time of promulgation. Thus, review “could

have been obtained” then.

Second, the sole support for the Ninth Circuit’s

“interpretation” was its view that EPA’s longstanding

statement of the scope of the Rule was irreconcilable

with the true meaning of the CWA. Such judicial

analysis is properly performed in a section 509 action

in which EPA is a party.

Third, the Ninth Circuit's method of “inter-

pretation” wreaks havoc with ordinary principles of

interpreting administrative regulations. The Ninth

Circuit failed to afford the agency’s views any

deference under Aver.

We address these three points in turn.

1. The Ninth Circuit’s Analysis Could

Have Occurred When The Rule Was

Promulgated, As Part Of A Rulemaking

Challenge, And Is Barred Now.

As demonstrated above, and as acknowledged by

the Ninth Circuit throughout most of its opinion, Pet.

App. 16a-28a, its “interpretation” of the Silvicultural

Rule was a concise rejection of the understanding of

that Rule that EPA announced at the’ time of

promulgation and maintained continuously for 35

years. See, e.g., 41 Fed. Reg. at 6,282; id. at 24,711;

Pet. App. 32a-33a.

Indeed, most of the Ninth Circuit’s opinion

correctly described the Silvicultural Rule as defining

stormwater runoff from forest roads as “nonpoint

source,” whether channeled through ditches and

culverts or not. See Pet. App. 16a-28a. Citing

the text and EPA’s explanatory statements in the

preambles to the proposed Rule, see 41 Fed. Reg.

6,281, and to the final Rule, see 41 Fed. Reg. 24,709,

the Ninth Circuit repeatedly stated that the Rule

treated stormwater runoff from forest roads as

nonpoint source, even if channeled. See, e.g., Pet.

App. 20a, 22a, 27a.

In acknowledging this history, the Ninth Circuit

conceded what was irrefutable. The preamble to the

proposed Rule declared that “ditches, pipes and

drains that serve only to channel, direct, and convey

non-point runoff from precipitation are not meant to

be subject to the § 402 permit program.” 41 Fed. Reg.

at 6,282. Responding to comments on the proposed

rule, EPA ultimately emphasized that “[i]nsofar as

[surface] drainage serves only to channel diffuse

runoff from precipitation events, it should also be

considered nonpoint in nature.” 41 Fed. Reg. at

24,711. As detailed above, there was nothing obscure

about the point at all. It was specified in the rule-

making and, for good measure, described as a reflec-

tion of EPA’s expressed approach to silvicultural (and

agricultural) activities. See pp. 6-8 supra.

Given the clear contemporaneous statements of

what the Rule means, anyone who believed that

channeled runoff from forest roads involve point

sources that must be permitted under Section 402,

“could have” sought review under Section 509(b)(1)

within 120 days of the Rule’s promulgation, and

therefore was required to seek such review.

The point was succinctly stated in the second

amicus brief that the United States filed in the Ninth

Circuit in this case:

If EPA states its interpretation at the time it

promulgates the regulation (e.g., in an accom-

panying Federal Register preamble), a potential

plaintiff must accept EPA’s interpretation as au-

thoritative and challenge the regulation directly

and in a timely fashion. ... Otherwise, Section

1369(b)’s purposes would be completely sub-

verted by allowing a court to reject EPA’s inter-

pretation in a later citizen suit.

1JA 58-59. That point is determinative here.

Because the issues analyzed by the Ninth Circuit

could have been presented in a section 509(b) action

when EPA promulgated the Rule, this citizen suit

cannot be the vehicle for affording the Rule a

contrary interpretation decades later.

2. The Ninth Circuit Rested Its Decision

Solely On Its View Of The Meaning Of

The CWA.

The Ninth Circuit concluded that a Rule deeming

runoff channeled through ditches or culverts to be

nonpoint source would be inconsistent with the CWA.

See Pet. App. 32a. Having so concluded, the Ninth

Circuit forced an interpretation on the Rule—

contrary to its contemporaneously described scope—

to conform it to the court’s current view of the CWA.

Yet a finding of inconsistency between the governing

statute and a regulation promulgated under its

authority is precisely the kind of issue that can and

should timely be determined as part of a rulemaking

challenge in a court of apneals, to which the agency is

a party present to defend its views.

By its own terms, the Ninth Circuit’s rationale for

affording the Rule this miraculous saving interpret-

ation rests on a shaky foundation. It is true enough

that statutes are interpreted to render them con-

sistent with the Constitution, when possible. See

Nat'l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

2594 (2012). But even that venerated canon of

construction has its limits and “does not supplant

traditional modes of statutory interpretation[;]” thus,

courts “cannot ignore the text and purpose of a

statute in order to save it.” Boumediene v. Bush, 553

U.S. 723, 787 (2008).

Moreover, the rationale that supports an inter-

pretive canon that seeks to conform statutes to

the Constitution does not necessarily extend to the

relationship between regulations and statutes. To

the contrary, regulations are routinely reviewed and

invalidated, as appropriate, if inconsistent with the

statute. See, e.g., Rowan Cos. v. United States, 452

U.S. 247, 263 (1981); Natural Res. Def: Council v.

EPA, 489 F.3d 1364, 1373, 1375 (D.C. Cir. 2007). In

the context of a rulemaking challenge, they are not

automatically given a “saving interpretation” unless,

perhaps, if the agency asks for it during the review

process. Instead, they are invalidated, and the issue

is remanded to the agency for further consideration.

While it is, of course, appropriate, and perhaps

inevitable, that one would consider the meaning of a

statute in interpreting a regulation under that

statute, that approach has its limits. The regulation

should not be given a saving interpretation that

supplies a meaning to the regulation that is flatly

inconsistent with what the agency intended or seeks.

If section 509(b) is to have any meaning, any prefer-

ence for “saving” a regulation through interpretation

rather than invalidating it cannot provide a path

around section 509(b) if—as is the case here—the

point at issue “could have been” timely raised in a

proper proceeding commenced at the time of

promulgation.

The Ninth Circuit’s interpretation of the Rule

rested entirely on an asserted inconsistency with the

CWA. That inconsistency could have been timely

raised when the Rule was promulgated. It is too late

35 years later.

3. The Ninth Circuit’s “Interpretation” Is

Inconsistent With Basic Methods Of

Interpreting A Regulation.

The Ninth Circuit’s view that it merely interpreted

the Silvicultural Rule is also irreconcilable with its

disregard of the usual methods for interpreting

agency regulations. It is true that the Ninth Circuit’s

refusal to defer to EPA’s interpretation, and to

provide a proper basis for overriding that interpret-

ation, is itself impermissible and could independently

require reversal—a point that other parties, briefing

the merits of this case, have made. Here, however, as

in Duke Energy, the Ninth Circuit’s disregard for

ordinary principles of interpretation is emblematic of

the similar disregard for the jurisdictional limitations

of section 509(b).

To begin with, under Auer, 519 U.S. at 461, an

agency’s interpretation of its own rule is to be given

“controlling weight” unless that interpretation is

“plainly erroneous or inconsistent with that regula-

tion.” Accord Long Island Care at Home, Ltd. v.

Coke, 551 U.S. 158, 170-71 (2007). Yet here the

Ninth Circuit failed to afford Auer deference to EPA’s

longstanding construction of its Rule. Such deference

is to be denied in certain circumstances, see Chris-

topher v. Smithkline Beecham Corp., 132 S. Ct. 2156,

2166 (2012), but there was no reason to deny it here.

As explained above, EPA had from the outset

believed that Congress had not wanted it to subject

forest road runoff to CWA permitting, viewing such

runoff as best addressed by state and local] author-

ities under 33 U.S.C. § 1288. In promulgating the

Silvicultural Rule, EPA was explicit that ditches,

pipes, and drains that merely collect stormwater

runoff from logging roads are nonpoint in nature and

are thus not subject to permitting. See p. 7-8 supra

(quoting preambles to the proposed and final rules).

EPA defined nonpoint source (undefined in the CWA)

to include “natural runoff’, and “natural runoff’ to

include channeled rainwater.

This view was consistently held. As the United

States explained in the amicus brief filed early in this

case, “EPA has consistently interpreted the term

‘natural runoff as synonymous with all ‘runoff from

precipitation events,” and “EPA has made it clear

that the term ‘natural runoff in the silvicultural rule

categorically excludes all stormwater runoff from

forest roads, even where the roads include channels,

ditches, or culverts.”” 1JA 37, 39; see also Pet. App.

ll4a (“[Slystems for the control of precipitation

through ditches, culverts and the like .. . are an

integral part of forest roads and reading them as

outside the scope of the regulation does not make

sense because it defeats the plain language of the

regulation.”). The correctness of these statements

is evident from numerous regulatory actions and

litigation briefs filed by EPA over the course of

decades. See pp. 9-10 supra.

* The consistency of EPA’s interpretation renders inexplicable

the Ninth Circuit’s conclusion and the Solicitor General’s

assertion that EPA did not articulate the scope of the

Silvicultural Rule until an amicus brief in this litigation.

At bottom, there is nothing unusual about EPA’s

view that building a ditch or using a culvert to

channel stormwater and maintain a forest road—

rather than let the rainwater create its own ruts,

ditches and washes, effectively taking the road with

it—does not convert what is, at bottom, simply

stormwater runoff, into a point source subject to

CWA permitting.

Even looking only at face the Silvicultural Rule,

with the barest of context for orientation, the Ninth

Circuit’s conclusion that the Rule is capable of two

different readings is a stretch. The Rule states that

road construction and maintenance from which there

is natural runoff is a nonpoint source silvicultural

activity. Under the Ninth Circuit’s saving “interpret-

ation,” the Rule applies to forest road maintenance

and construction only where there is no channeling

of the runoff through ditches, culverts, or other

conveyances—a rare circumstance, if roads are to

exist after a rainstorm. The notion that the Rule was

necessary to clarify that rainwater diffusely coming

off a road does not give rise to the need for a permit

hardly seems necessary. The Ninth Circuit’s reading

thus trivializes the Rule and renders it largely

irrelevant.

As a matter of plain language, the Rule as written

defined most silvicultural activities as nonpoint

source. It defined “silvicultural point source” to mean

“discernible, confined and discrete conveyances]

related to rock crushing, gravel washing, log sorting,

or log storage facilities which are operated in con-

nection with silvicultural activities and from which

pollutants are discharged into navigable waters.” 40

C.F.R. § 122.27. To all appearances, this definition

was exclusive, and it did not include building

forest roads with ditches and culverts. While this

specification might be treated as non-exclusive, the

nature of the defined point sources—discernible,

confined and discrete conveyances “as a result of

controlled water use by a person,” 41 Fed. Reg. at

6,282—bear no resemblance to ditching and culvert-

ing a road that is subject to rainfall and runoff.

In sum, under ordinary principles of interpretation—

without resort to the claimed supervening in-

consistency with the CWA—the Ninth Circuit’s

“interpretation” of the Silvicultural Rule did not

stand a chance.’ This was no ordinary interpretation,

but rather an implicit invalidation of the Rule.

SFEEAESFEEE EEE

The Ninth Circuit's effort to impose its

interpretation of the Rule, based solely on its view of

the CWA, in the face of EPA’s stated understanding

of the Rule’s scope, implicitly invalidated that Rule.

Because judicial review on that theory could have

been obtained at the time of promulgation, it is

barred by 33 U.S.C. § 1369(b).

C. The Ninth Circuit’s Theory That Its

Jurisdiction Was Proper, And The

Appeal Timely, Because Of New

Grounds Fits Neither The Facts Nor

The Law.

The Ninth Circuit concluded that “this case comes

within the exception in § 1369(b)1) for suits based on

’ For all of these same reasons, EPA’s interpretation of the

Silvicultural Rule is entitled to deference under Skidmore v.

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

grounds arising after the 120-day filing window.” See

Pet. App. 6a-7a. It drew its support for that theory

from a footnote in an amicus brief of the United

States suggesting that the first time EPA had

interpreted the Silvicultural Rule to define forest

road runoff through ditches and culverts as nonpoint

source was in a brief filed earlier in this very case.

See id. With that reasoning, the Ninth Circuit erred

twice.

First, it accepted the United States’ demonstrably

wrong suggestion that the interpretation of the

Silvicultural Rule at issue had appeared for the first

time in this litigation—a suggestion belied by EPA’s

contemporaneous statements at the time of

promulgation, and a long history subsequent. See pp.

6-9 supra.

Second, the Ninth Circuit ignored that even suits

based on grounds arising after the 120-day filing

window cannot be brought as citizen suit enforcement

actions under 33 U.S.C. § 1365(a). The grounds

arising after exception in § 1369(b)\(1) only overcomes

the time bar in the statute. It does not open the door

to challenging rules through a district court citizen

suit, or other enforcement action, rather than in a

challenge in an appropriate court of appeals. See 33

U.S.C. § 1369(b)(2).°

* Nor did the Ninth Circuit explain how purported new

grounds that arose during the pendency of a citizen suit

enforcement action provided jurisdiction at the time the citizen

suit was filed.

Il. The Ninth Circuit Compounded Its Error

By Rejecting EPA’s Construction Of

Its Phase I Stormwater Regulations

And Again Allowing A Citizen Suit

Enforcement Action To Displace EPA’s

Rulemaking Authority.

The Ninth Circuit compounded its error by failing

to hold that section 509(b) likewise barred this citizen

suit as a vehicle for reviewing EPA’s determination

that forest road maintenance and construction in-

volving runoff through culverts and ditches ought not

be subject to Phase I regulation under 33 U.S.C.

§ 1342(p).

The Ninth Circuit’s failure to recognize that judi-

cial review should have been obtained under section

509(b) is easily illustrated. In the cases challenging

EPA’s Phase I rulemaking, no one challenged the

decision to exclude forest road construction and

maintenance from the Phase I regulations. See Am.

Mining Cong., 965 F.2d 759; Natural Res. Def.

Council, 966 F.2d 1292.

In contrast, reflecting the way that section 509(b)

Judicial review is supposed to occur, various groups

did assert that EPA’s failure to include forest roads

in the Phase II process was inconsistent with the

statute. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d

832, 860-63 (9th Cir. 2003). The Ninth Circuit

reviewed the challenge and ruled that the issue must

be reconsidered by the EPA; a process and remedy in

complete accord with section 509(b).’ See id.

* In conceding that this approach was procedurally and juris-

dictionally proper, amici do not concede that it was substan-

tively correct. Indeed, a decision by this court upholding

the Silvicultural Rule would preclude any effort by EPA to

In promulgating its Phase I regulations, EPA

stated that the term “associated with industrial

activity” “does not include discharges from the facili-

ties or activities excluded from the NPDES program

under this part 122,” e.g., under the Silvicultural

Rule. 40 C.F.R. § 122.26(b\(14). By the time of the

1990 Phase I regulations, EPA’s conclusion that

natural rainwater runoff remains nonpoint source in

nature, even if channeled through culverts and

ditches, was longstanding, well-understood, and oft-

repeated. E.g., 40 Fed. Reg. at 56,932, 56,934; 41

Fed. Reg. at 6,282; id. at 24,711. Indeed, in 1990,

just months before promulgating the final Phase I

regulations, EPA reaffirmed the scope of the Silvi-

cultural Rule. See 55 Fed. Reg. at 20,522. Therefore,

if there was a viable challenge to be made to EPA’s

determination that runoff from forest road main-

tenance and construction was not properly subject to

Phase I regulation, the time to make that assertion

was within 120 days of promulgation as part of the

rulemaking challenge.

Nonetheless, having shot down the Silvicultural

Rule’s definition of forest roads with ditches and

culverts as nonpoint sources—thus pretty much all of

them—the Ninth Circuit went on to consider EPA’s

Phase I rulemaking as part of this citizen suit

enforcement action.

With the 1987 CWA amendments, Congress had

given EPA broad discretion to determine whether

stormwater discharges are industrial and how best to

regulate non-industrial stormwater discharges. See

33 U.S.C. § 1342(p). As described above, EPA made

regulate forest roads under the point source provisions of

section 402(pX6).

clear that it did not regard actions excluded from

permitting under the Silvicultural Rule as properly

subjected to Phase I regulation. As amicus in this

case, EPA had clarified that even apart from the

independent impact of the Silvicultural Rule, and

its definition of point source, it did not believe that

forest road maintenance could properly be considered

industrial activity. 1JA 42-44; Pet. App. 123a-127a.

Timber harvesting activity, including the use of

forest roads, taken at a distance from any industrial

plant is more akin to agriculture than “industrial

activity.” This was, in EPA’s view, reflected in the

regulations. The operative definition of “storm water

discharge associated with industrial activity” applied

by EPA in Phase I—referring to discharges from

“industrial plants,” 40 C.F.R. § 122.26(b)(14)—was

not on its face broad enough to reach forest roads

used for logging.

Nonetheless, the Ninth Circuit leaped into the fray,

again substituting its view for that of EPA, affording

EPA no deference under Auer. It held that not-

withstanding EPA’s contrary view—and notwith-

standing that EPA had explicitly relied on its own

understanding of the scope of Silvicultural Rule itself

to implement that view—forest roads with culverts

are subject to permitting under EPA’s Phase I regula-

tions.

The Ninth Circuit’s rationale was that EPA’s

regulation references SIC 24 in defining industrial

activity, and it is “undisputed that ‘logging,’ which is

covered under SIC 2411 (part of SIC 24), is therefore

an ‘industrial activity.” See Pet. App. 39a-40a. But

this analysis bypassed EPA’s own statements—at the

time of promulgation and in its first amicus brief to

the Ninth Circuit—that the reference to SIC 24 was

not intended to encompass runoff from roads used for

logging and that EPA did not view most silvicultural

activity as industrial. See 1JA 42-43 (explaining that

the reference to SIC 24 was intended to capture

“traditional industrial sources such as sawmills”).

As parties addressing the merits have demon-

strated, the Ninth Circuit had no warrant to displace

EPA’s considered judgment on this issue.

The more important point for purposes of this brief,

which focuses on jurisdiction, is that this was not the

time nor the forum in which to address the issue.

Even if the Ninth Circuit’s unexpected “interpret-

ation” of the scope of the Silvicultural Rule could be

said somehow to nullify the basis for EPA’s decision

to exclude runoff from Phase I regulation, reopening

the issue, the proper course was to allow EPA to

consider whether such runoff was nonetheless non-

industrial. EPA could do so sua sponte or in response

to a rulemaking petition from Respondent. Indeed,

an important judicial interpretation of the Silvi-

cultural Rule’s scope (such as that rendered by the

Ninth Circuit, if it were sustained), in a manner

contradicting the basis of EPA’s decision to exclude

silvicultural runoff from Phase I regulation, would

seem, even without further agency action, to fit

within section 509(b)’s proviso for later review by a

court of appeals based on after-occurring circum-

stances. In any event, the issue could be addressed,

and should be addressed, by EPA, and reviewed in a

section 509(b) action, not an enforcement action to

which EPA is not a party.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

WILLIAM R. MURRAY CLIFTON S. ELGARTEN

NATIONAL ALLIANCE OF Counsel of Record

FOREST OWNERS KIRSTEN L. NATHANSON

122 C Street, N.W. DAVID Y. CHUNG

Suite 630 CROWELL & MORING LLP

Washington, DC 20001 1001 Pennsylvania Ave., N.W.

(202) 747-0742 Washington, DC 20004-2595

(202) 624-2500

celgarten@crowell.com

Counsel for Amici Curiae

September 4, 2012

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.