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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A35

## Record

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

## Text

ReCOR
AND
BRIEFS

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

C.

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 » §&.

12

12

12

lv

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
14
15
18

18

18

22

23

Vv

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

vi

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

ix
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.

2

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.

3

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).

4
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.

5

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).

6

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,

7

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).

8

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

i)
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

10

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

11

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).

12
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).

13

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).

14

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

15

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

16

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).

17

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.

18
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

19

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

20

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

21

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

22

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-

23

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.

24

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

25

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,

26

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.

27

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

28

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.

29

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

30

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).

31

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.

32

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

33

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).

34

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

35

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.

36
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A35. Public record. Not legal advice.