Respondents Brief — Nat'l Ass'n of Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017) (No. 16-299)

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JUL 28 2017

‘ No. 16-299

In the Supreme Court of the United States

NATIONAL ASSOCIATION OF MANUFACTURERS,

PETITIONER

DEPARTMENT OF DEFENSE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

KEVIN S. MINOLI

Acting General Counsel

KARYN |. WENDELUWSKI

Attorney

l/nited States Environmental

Protection Agency

Washington, D.C. 20460

EARL G. MATTHEWS

Acting General Counsel

CRAIG R. SCHMAIDER

Deputy General Connsel

Department uf the Arury

Washington, D.C. 20.210

DAVID Couper

Chief Connael

DANTE INKELAS

Attorn

United Slater Army Corps

of Eugineera

Washington, D.C. 20314

JEFFREY B. WALL

Acting Solicitor General

Counsxel of Record

JEFFREY H. Woop

Acting Aasistanutl Attorney

renereal

MALCOLM L. STEWART

Deprty Solicitor General

RACHEL P. KOVNER

Axsstatant to the Solicitor

General

DANIEI, R, DERTKF.

Amy J, DONA

ANDREW J. DOYLE

J. DAVID GUNTER II

ROBERT J. LUNDMAN

MARTHA C. MANN

Jessi’ A O'DONNELL

Attorneys

Department of Justice

Washington, D.C. 20540-0001

SupremeCtBriefaie usdoj.gov

202) 515-2217

FICE OF THE (LEAK

SUPREME COURT, US. _

QUESTION PRESENTED

Whether the court of appeals has original jurisdic-

tion under 33 U.S.C. 1369(b)(1) over petitions for review

challenging a regulation that defines the scope of the

term “waters of the United States” in the Clean Water

Act, 33 U.S.C. 1251 et seq.

(I)

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TABLE OF CONTENTS

Page

III siiisicsinceniersecinnnpssiatemennatenienpetaninmuengnsmmnscaninaneniansietitt 1

et eect enc serncintitiiniaeatliniiiat 1

Statutory and regulatory provisions involved ........................-+ 2

ES ao 2

I etal taenaininiltitai 10

Argument:

The court of appeals has jurisdiction to review the

SER ES IE ie 16

A. The Clean Water Rule is subject to direct

appellate review under the text of both

Section 1369(b)(1)(E) and 1369(b)(1)(F) ...............0.----. 17

1. The Clean Water Rule is reviewable under

Section 1BG9(b)(1)(E)...........ccccessesrecscesrsesesssenssseessenees 17

2. The Clean Water Rule is also reviewable

under Section 1369(b)(1)(F*)...........0:0scseseseserseeeneneees 30

B. Petitioner’s reading of Section 1369(b)(1)

cannot be reconciled with the provision’s

C. The CWA’s legislative history supports the

court of appeals’ assertion of jurisdiction to

review the Clean Wat. ir Rule ...............ecccecceseeeseeeseeeeeee 40

D. When Congress has authorized direct court

of appeals review of federal agency action,

ambiguities as to the scope of that authorization

should be resolved in favor of broader coverage ......... 48

GIT cteicnecsicsichreatiininicinsiecpdestaeiattschmsicatiuabettinaaintchpatntcrtamanmmmnmasite 50

Appendix — Statutory and regulatory provisions................ la

(111)

TABLE OF AUTHORITIES

Cases: Page

Ali v. Federal Bureau of Prisons,

| 18, 25, 26, 34

American Mining Cong. v. United States EPA,

965 F.2d 759 (Sth Cir. 1992) ...............-.scceccceeseeeeeeeceeensneeens 32

American Petroleum Inst. v. EPA,

661 F.2d 340 (Sth Cir. 1981) 2.00... ceecseeeneeeeeeceeneeeeeeenees 23

Beecham v. United States, 511 U.S. 368 (1994).................. 26

Bethlehem Steel Corp. v. EPA,

538 F’.2d 513 Cod Cir. 1976) ..................-c--cce-reccesccccssecesescees 29

Buck v. Davis, 137 S. Ct. 759 (2017)... .ecccseceeceneseeneserereee 27

CSX Transp., Inc. v. Alabama Dep't of Revenue,

EE 27

Circuit City Stores, Inc. v. Adams,

A 25

Clean Water Rule: Definition of “Waters of the

United States,” In re, 140 F. Supp. 3d 1340

RIB RE THIN CIE SE Se 9

Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council, 557 U.S. 261 (2009).................... 2,3

Collector v. Hubbard, 79 U.S. (12 Wall.) 1 (1871)............... 18

Connecticut Natl Bank v. Germain,

SL 34

Crown Simpson Pulp Co. v. Costle,

i passim

Decker v. Northwest Envtl. Def. Ctr.,

TS 4

Department of Hous. & Urban Dev. v. Rucker,

TE 18

EI. du Pont de Nemours & Co. v. Train,

ee eT aietichnicnidbdnennteniotntirenneginenadeands passim

Cases—-Continued: Page

Florida Power & Light Co. v. Lorion,

8 16, 37, 39, 48

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009).......... 44

Foti v. Immigration & Naturalization Serv.,

ET 38

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000) .0.......ceeeccceccesseneeeesenneeneeens 3

Friends of the Everglades v. United States EPA,

699 F.3d 1280 (11th Cir. 2012), cert. denied,

134 S. Ct. 421 and 134 S. Ct. 422 (20138)........... ce cccccceceeceee 32

General Elec. Uranium Mgmt. Corp. v. United

States Dep't of Energy, 764 F.2d 896

SE 48

Georgia v. McCarthy, No. CV 215-79,

2015 WL 5092568 (S.D. Ga. Aug. 27, 2015) .................. 9,19

Harrison v. PPG Indus., Inc.,

446 U.S. B78 (1GBD).......0...0ccccccereesserssesccccerseecsereeceees 27, 35, 49

James v. United States, 550 U.S. 192 (2007) .........0..00--00e 24

Johnson v. United States, 135 S. Ct. 2551 (2015)............... 24

Lake Cumberland Trust, Inc. v. United States EPA,

954 F.2d 1218 (Gth Cir. 1992) ..............ccccseseseesecereeseeeneeees 29

Lindahl v. Office of Pers. Mgmt.,

a 37

Marz v. General Revenue Corp., 568 U.S. 371 (2013)....... 34

Middlesex Cnty. Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981).......0ccccccccccceceveeeeees 2, 43

Murray Energy Corp. v. United States EPA,

No. 15-cv-110, 2015 WL 5062506

(N.D. W. Va. Aug. 26, 2015) ............ccccccersceereeessseccencenees 9, 19

NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004)................ 48

NRDC, Inc. v. U.S. EPA,

SD Fe CO ae Cs BEI onccccccvccccceccncecrececesnccenstecseveess 32

Cases—Continued: Page

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

cert. denied, 459 U.S. 879 (1982) .......... 29, 30, 35, 38, 39, 44

NRDC, Inc. v. U.S. EPA,

822 F.2d 104 (D.C. Cir. 1987)...........cccecccseseeseeeneeneneeres 2, 43

NRDC, Inc. v. United States EPA,

966 F.2d 1292 (Sth Cir. 1992) ..0........cccccceeeccceceeeeseeeereneennses 32

National Cotton Council v. United States EPA,

553 F.3d 927 (6th Cir. 2009), cert. denied,

559 U.S. 936 and 130 S. Ct. 1505 (2010)..............:.ccceeeeeee 32

National Pork Producers Council v. United States

EPA, 635 F.3d 738 (5th Cir. 2011) ..............cccccceeeeeeeeeeeeeee 32

National Wildlife Fed'’n v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988) ...............cccccceeeeseeeeeseceeeeneeeeeeeees 2

North Dakota v. U.S. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015) .0........cccccesceeseeeeeseeneees )

Oklahoma ex rel. Pruitt v. United States EPA,

No. 15-cv-381, 2016 WL 3189807

(N.D. Okla. Feb. 24, 2016)..........ccccccccccecesseceseseeerneeseeneneesenees 9

Patterson v. McLean Credit Union,

Ln 33

Rapanos v. United States, 547 U.S. 715 (2006).......... 5, 6, 20

Russell Motor Car Co. v. United States,

EES AE eR 26

S.D. Warren Co. v. Maine Bd. of Envti. Prot.,

I ssc ennrennneniii 26

Sackett v. EPA, 566 U.S. 120 (2012) ..............0....22--2--0- 5, 29

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)....... 32

Solid Waste Agency v. United States Army Corps

of Exng’rs, 531 U.S. 159 (2001) ..........cccccecceserssecnesseneeseneeesenen 5

Texas Oil & Gas Ass’n v. United States EPA,

161 F.3d 9283 (5th Cit. 1998)...........c0cccececcceceeesecceseeeseeeeeeees 23

United States v. Gonzales, 520 U.S. 1 (1997).............ccccceee 18

Vil

Cases—Continued: Page

Virginia Elec. & Power Co. v. Costle,

ee IS IY U Pccicccccnscccceccceccenvecccssccoscessces 35, 44

Washington Cattlemen’s Ass'n v. United States

EPA, No. 15-3058, 2016 WL 6645765

a II iricnicccschiemmatencvensctncesennenesncnenmensesccetns 9

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seg.............. 5

Pe i sinnecntinciineenienenscinenanetameininniianieneseinimmimmenpnenes 5

Atomic Energy Act of 1954, 42 U.S.C. 2011 et seg. ............ 37

Clean Air Act, 42 U.S.C. 7401 e€ 8€@. ..........c0.:cessesceererseeesees 49

Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816

LEE On aoe 2

§ 50O(b)(1), 86 Stat. SOZ.............ccccrccscsccsessesserssseseos 40, 41

33 U.S.C. 1251-1276 (2012 & Supp. ITI 2015)........... 3, 43

ee Eo incasictdeteriiseiniccninmenpeicinaniininananscoumnseradesites 2

33 U.S.C. 1281-1301 (2012 & Supp. II 2014)....... 3, 29, 43

Be el Fe cts nsccrccecereescocenvencepesenssnewsevensenaniny passim, 2a

Cr 2, 7, 11, 12, 19, 21, 2a

I acrcrccmnsiccinenisatinatendscccenstncimant 22, 2a

I iitctcnincainnnssocmeadamesioniccesinics 23, 3a

I ns ss ilmernicpnaenasnniencinniitncetdiqemnestiniantiins 26

8 eer 23

Sa case nine icnatmeanciislinaailal 29

RE a a EE 26

rai cinieciesrniatneuimapdaemnsnnannntnne 34

ai aicintitinsinitinninpetiatnnsenseuimenmneciitiy 29

33 U.S.C. 1321 (2012 & Supp. IT 2014) ......... eee eeees 29

is ccttpicessiscicaseanntoneiccnssttcenencesciannniannenvine 29

ee A atecsccnetovsaterueneticsenetsinacspuetnenssannies passim

Vill

Statutes and regulations—Continued: Page

incttnrnteniensctnnpscininicanmntateinmniatonnie 3, 3la

TT nesiinsiniinepsciantgnactnebergeiocnneinnananititin 11,19

TE He NE 3

case serene emda encsabinninulatienianaiisitintitl 3

FE TET one eee anL ENT Mn 3

si sererneeininsrmnicennnbinannestinminianinimnail 26

iis acocnnsopssnocscntceneemnnedinnnpiannenniaineaibiitn 17

ES Se 2, 11, 12, 19, 28, 31, 33a

i ID cenesensesnccscecuecennsenssneneinennsaniensaniiin 18, 33a

$38 U.S.C. 19GB(12) ...............00002000. 2, 11, 12, 19, 28, 31, 33a

a cicepeinieniananl 4l1,la

nr passim, la

ic cecaraniniceprncncniancminbacsitll passim, la

33 U.S.C. 18GB(D)(1 MA)AD).........000:.scescccssrrsersessecssscsnsens 4

| 33, la

Ls 33, la

Be es BED cree cecccsncesesscnsescesocesssessenstnniien 34, la

33 U.S.C. L3GO(DMI)(B)...........00c0-scesessscceeeecenseee passim, la

Lk Te | _» SERRE SSSI ETE passim, la

Be le SED cccccccevececcscsesscnsscesennnecqenenene 4, 33, la

Se I iinrincrnrscesassnsetmnmnemmnnneneneens 4,49, la

33 U.S.C. 1381-13887 (2012 & Supp. IT 2014)............. 3, 43

Immigration and Nationality Act,

Be idcctincncntnndinccenescemnssumerassemsccceqsseseseses 37

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

101 Stat. 7:

Se a ciccesstesrnenennnsvensabenetin 44

eI EEE Is SD eitcscccnecesesccococsnecsctnccnnnese 44

Tit. V:

SET aac 44

FD Be CIRUIEs CIPOW cncseccessecesnenenecteccnencencnnsscsecesees 44

Statutes and regulations—Continued:

SR Se Dae RD

a ecdienuniadiiid

a shhiicindeneaiiieasunail

ES ae eee

Exec. Order No. 13,778, 82 Fed. Reg. 12,497

RTE TE AT a eile ea

23 C.F.R.:

Pt. 328:

ES SR RTE

TS Sree

40 C.F.R.:

Miscellaneous:

Administrative Authority to Construe § 404

of the Federal Water Pollution Control Act,

43 Op. Att’y Gen. 197 (1979) .ccceccesscsssssesssesesssssvvee

123 Cong. Rec. (1977):

Miscellaneous—Continued: Page

42 Fed. Reg. (July 19, 1977):

hice iinet niialetinsetaiiaintinsirinesctinicustiindainnietniabinnennen 5, 24

ERSTE A eT 5

51 Fed. Reg. (Nov. 13, 1986):

tei eriscnenanicancantenmntsncioneunemninncnmnninene G

80 Fed. Reg. (June 29, 2015):

SE ieticsschsisesritiilitiesiatiatadhapnainahinabinbeptiatniiinccanducsmnnienaiiians 5, 24

SST lnsiitciscisdionieispidinniabipiicnesievetsdiadennennenanidiinammuattginaiaill 6

TIT chtiniscitinginicitinnsinapiendmaptatguienitihigntinentnnainpninaminimaneiaeia 6

ir tiarieidiousidiniea iii ialieeniinanninennannpneenstintinmininntianiinte 6

82 Fed. Reg. 34,899 (July 27, 201'7)...............:cescseceeeeseeeeesees 10

H.R. 11896, 92d Cong., Ist Sess. (1971)...............:0c0-00 40, 41

H.R. Conf. Rep. No. 1465, 92d Cong.,

Ee 15, 41, 42, 43

H.R. Rep. No. 911, 92d Cong., 2d Sess. (1971)......... 3, 41, 43

S. 2770, 92d Cong., Ist Sess. (1971) ..............cccccceseseeeeee 40, 41

S. Rep. No. 414, 92d Cong., Ist Sess. (1971)....... 3, 15, 41, 43

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012)...............-+. 25, 34

2A Norman J. Singer & Shambie Singer, Sutherland

Statutes and Statutory Construction

ES A 25

33 Charles Alan Wright & Charles H. Koch, Jr.,

Federal Practice and Procedure (2006) ...................esec00- 48

In the Supreme Court of the Gnited States

No. 16-299

NATIONAL ASSOCIATION OF MANUFACTURERS,

PETITIONER

DEPARTMENT OF DEFENSE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-47a)

is reported at 817 F.3d 261.

JURISDICTION

The judgment of the court of appeals (Pet. App. 48a-

50a) was entered on February 22, 2016. Petitions for

rehearing were denied on April 21, 2016 (Pet. App. 51la-

52a). On July 1, 2016, Justice Kagan extended the time

within which to file a petition for a writ of certiorari to

and including September 2, 2016, and the petition was

filed on that date. The petition was granted on January

13, 2017. This Court’s jurisdiction rests on 28 U.S.C.

1254(1).

(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are

set forth at App. la-43a, infra.

STATEMENT

1. a. Congress enacted the Clean Water Act (CWA

or Act), 33 U.S.C. 1251 et seq., “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. 1251(a). Central to the Act

is Section 1311, which generally bars “the discharge of

any pollutant by any person,” 33 U.S.C. 1311(a), unless

the person who discharges the pollutant “obtain[s] a

permit and compl[ies] with its terms.” Middlesex Cnty.

Sewerage Auth. v. National Sea Clammers Ass’n,

453 U.S. 1, 11 (1981) (citation omitted); see, e.g., NRDC,

Inc. v. U.S. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987) (de-

scribing the prohibition on unlicensed discharges as the

statute’s “first principle”); see also Coeur Alaska, Inc.

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

261, 298 (2009) (Ginsburg, J., dissenting) (describing

this provision as the statute’s “core command”).

A “discharge of a pollutant” occurs when a person

adds “any pollutant to navigable waters from any point

source.” 33 U.S.C. 1362(12). “[NJavigable waters,” in

turn, are “the waters of the United States.” 33 U.S.C.

1362(7). Accordingly, whether a person’s conduct is

subject to the prohibition set forth in Section 1311(a)

generally depends on whether (1) a pollutant (2) was

added (3) to waters of the United States (4) from a point

source. See, e.g., National Wildlife Fed’n v. Consumers

Power Co., 862 F.2d 580, 583 (6th Cir. 1988).

If Section 1311 applies, a discharge of pollutants

must generally be authorized by a permit under the Na-

tional Pollutant Discharge Elimination System (NPDES)

program. 33 U.S.C. 1311, 1342. NPDES permits may

be issued by the EPA Administrator or by a State that

is authorized to operate an NPDES program. They

generally control discharges from point sources to wa-

ters of the United States by establishing permissible

rates, concentrations, quantities of specified constitu-

ents, or other limitations and conditions as appropriate.

See 33 U.S.C. 1342(a)(1) and (2); 40 C.F.R. Pts. 122, 125;

see also, e.g., Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 176 (2000).

Discharges of “dredged or fill material” can be au-

thorized under a separate permitting program operated

by the Secretary of the Army, acting through the

United States Army Corps of Engineers (the Corps), or

by an authorized State. 33 U.S.C. 1344(a), (d), and (g);

see generally 33 C.F.R. Pts. 320-332; 40 C.F.R. Pts. 230-

232; see, e.g., Coeur Alaska, Inc., 557 U.S. at 266, 268-

269. In addition to limiting discharges of pollutants

through Section 1311 and related provisions, the CWA

contains a variety of other: provisions that assist in

achieving the Act’s basic purposes. Inter alia, the Act

creates research and related programs, 33 U.S.C. 1251-

1275 (2012 & Supp. III 2015); provides for grants for

construction of treatment works, 33 U.S.C. 1281-1301

(2012 & Supp. II 2014); snd authorizes grants to the

States, 33 U.S.C. 1381-1387 (2012 & Supp. II 2014).

b. To “establish a clear and orderly process for judi-

cial review,” the CWA vests federal courts of appeals

with exclusive original jurisdiction to review certain cat-

egories of EPA decisions implementing the Act. H.R.

Rep. No. 911, 92d Cong., 2d Sess. 136 (1972) (House Re-

port); see S. Rep. No. 414, 92d Cong., Ist Sess. 85 (1971)

(Senate Report) (noting the need for “even and con-

sistent” application of nationwide administrative ac-

tions). Actions reviewable directly in the courts of ap-

peals include actions of the EPA Administrator:

(E) in approving or promulgating any effluent lim-

itation or other limitation under section 1311, 1312,

1316, or 1345 of this title, [and]

(F) in issuing or denying any permit under section

1342 of this title [the section authorizing NPDES

permits].

33 U.S.C. 13869(b)(1).’

A petition for review generally must be filed within

120 days after the challenged agency action. 32 U.S.C.

1369(b)(1). When multiple petitions challenge a single

action, the petitions are consolidated in one court of ap-

peals, which is chosen randomly from among the cir-

cuits in which petitions were filed in the ten days after

the challenged action occurred. 28 U.S.C. 2112(a)(3).

Any agency action “with respect to which review could

have been obtained under [Section 1369(b)(1)] shall not

be subject to judicial review in any civil or criminal pro-

ceeding for enforcement.” 33 U.S.C. 1369(b)(2); see

Decker v. Northwest Envil. Def. Ctr., 568 U.S. 597, 607

(2013). Section 1369(b) thus promotes the ability of the

regulated community, regulators, and the public to rely

on the validity of agency actions that are not promptly

challenged or that are upheld by a court of appeals.

Final EPA actions that are reviewable under princi-

ples of administrative law, but for which direct review

in the courts of appeals is not authorized by Section

1369(b)(1), may be challenged in federal district court

' Five additional categories of EPA actions are subject to court of

appeals review, 33 U.S.C. 1369(b)(1)(A)-(D) and (G), but those cate-

gories are not at issue in this case.

under the Administrative Procedure Act (APA),

5 U.S.C. 701 et seg. See 5 U.S.C. 704; 28 U.S.C. 1331.

An APA action may be brought at any time within six

years after the date of the challenged action. 28 U.S.C.

2401(a).

c. In 2015, EPA and the Corps jointly promulgated

the Clean Water Rule (the Rule). 80 Fed. Reg. at

37,054. The Rule amended the regulatory definition of

the CWA term “waters of the United States,” which

governs the geographic scope of effluent limitations un-

der Section 1311 and the coverage of other provisions of

the Act.

EPA and the Corps had previously issued regula-

tions that defined the term “waters of the United

States,” see 42 Fed. Reg. 37,124, 37,127 (July 19, 1977);

51 Fed. Reg. 41,216-41,217 (Nov. 13, 1986), but this

Court had held that the agencies’ application of that def-

inition was overbroad in some respects, Solid Waste

Agency v. United States Army Corps of Eng’rs, 531 U.S.

159 (2001). In addition, the prior regulations did not

provide detailed guidance for determining whether par-

ticular wetlands were CWA-protected “waters of the

United States.” See Rapanos v. United States, 547 U.S.

715, 782 (2006) (Kennedy, J., concurring in the judg-

ment). Several Members of this Court accordingly sug-

gested that the agencies “clarif[y] * * * the reach” of

the statute by further developing a definition of the

term “waters of the United States.” Sackett v. EPA,

566 U.S. 120, 133 (2012) (Alito, J., concurring); see

Rapanos, 547 U.S. at 757-758 (Roberts, C.J., concur-

ring); 547 U.S. at 811-812 (Breyer, J., dissenting). The

Chief Justice, for example, noted that while EPA and

the Corps have “generous leeway” in interpreting the

CWA, their jurisdictional] determinations would neces-

sarily proceed “on a case-by-case basis” unless and until

those agencies finalized a clarifying rule on the scope of

their authority. Rapanos, 547 U.S. at 757-758 (Roberts,

C.J., concurring). Between the Rapanos decision and

the promulgation of the Clean Water Rule, the Corps

and EPA “made more than 400,000 CWA jurisdictional

determinations,” including more than 120,000 site-

specific determinations that particular waters bore a

sufficient nexus to navigable waters to qualify them as

waters of the United States. 80 Fed. Reg. 37,065 (June

29, 2015).

The Clean Water Rule was intended to “provid[e]

simpler, clearer, and more consistent approaches for

identifying the geographic scope” of the Act. 80 Fed.

Reg. at 37,057. The Rule identifies “three basic catego-

ries” of waters: “Waters that are jurisdictional in all

instances, waters that are excluded from jurisdiction,

and a narrow category of waters subject to case-specific

analysis to determine whether they are jurisdictional.”

Ibid. The agencies specified that the Rule was issued

under the legal authority provided by the CWA, includ-

ing Section 1311, which governs effluent limitations,

and Section 1342, which governs NPDES permitting.

Id. at 37,055.

2. a. Soon after the promulgation of the Clean Wa-

ter Rule, numerous parties challenged the Rule in the

courts of appeals, invoking the authorization for direct

court of appeals review in Section 1369(b)(1). The chal-

lengers included respondents Agrowstar, et al.; re-

spondents Amicus Farm Bureau Federation, et al.; the

respondent States; and respondents Waterkeeper Alli-

ance, et al.

The challenges were consolidated in the Sixth Cir-

euit, which issued a nationwide stay of the Clean Water

Rule pending further proceedings. See Pet. App. 3a, 5a.

Petitioner intervened in the consolidated suits and

moved to dismiss them, contending that the court of ap-

peals lacked jurisdiction to consider the Clean Water

Rule and that litigation over the Rule’s validity should

instead occur in district court.

b. The court of appeals denied petitioner’s motion,

concluding that the challenges had been properly

brought under Section 1369(b)(1). Pet. App. 3a-45a.

i. Judge McKeague, who announced the judgment

of the court, concluded that two provisions of Section

1369(b)(1) authorized immediate court of appeals re-

view of the Clean Water Rule. Pet. App. 3a-26a. He

found the Rule to be reviewable under 33 U.S.C.

1369(b)(1)(E), which covers “any effluent limitation or

other limitation” under provisions including Section

1311. He concluded that the Rule establishes a limita-

tion because the Rule’s definition of “waters of the

United States” expanded “regulatory authority in some

instances,” thereby “impos{ing] *** additional re-

strictions on the activities of some property owners”

and “altering permit issuers’ authority to restrict point-

source operators’ discharges into covered waters.” Pet.

App. 15a. Judge McKeague further observed that EPA

had relied in part on Section 1311(a) as a source of its

authority to promulgate the Rule. /d. at 15a-16a n.4.

Judge McKeague concluded that the court of appeals

also had jurisdiction to review the Clean Water Rule un-

der 33 U.S.C. 1369(b)(1)(F), which authorizes review of

EPA action “in issuing or denying any permit” under

the NPDES program. Pet. App. 17a-24a. He observed

that this Court in Crown Simpson Pulp Co. v. Costle,

445 U.S. 193, 196-197 (1980) (per curiam), had rejected

a “strict literal application” of Section 1369(b)(1)(F),

and had construed the provision to encompass agency

action that is “functionally similar” to the issuance or

denial of a permit. Pet. App. 17a. Relying on Crown

Simpson and on a subsequent Sixth Circuit decision,

Judge McKeague concluded that, because the Clean

Water Rule “indisputably expands regulatory authority

and impacts the granting and denying of permits in fun-

damental ways,” the rule is reviewable under Section

1369(b)(1)(F). Jd. at 21a.

ii. Judge Griffin concurred in the judgment. Pet.

App. 27a-45a. He agreed that Section 1369(b)(1)(F)

vested the court of appeals with jurisdiction under Sixth

Circuit precedent, which he saw as consistent with “the

predominant view of the other circuits.” /d. at 44a &

n.2. He explained, however, that if that binding circuit

authority were absent, he would have concluded that

the rule was not subject to review under Section

1369(b)(1)(F). Jd. at 45a. Judge Griffin also concluded

that the Clean Water Rule was not reviewable under

Section 1369(b)(1)(E). Jd. at 29a-38a. In his view, the

Rule does not establish an “other limitation” within the

meaning of that provision because the Rule interprets a

term in the Act’s definitional section and “sets the juris-

dictional reach for whether the discharge limitations

even apply in the first place.” Jd. at 32a.

iii. Judge Keith dissented. He would have held that

neither Section 1369(b)(1)(E) nor Section 1369(b)(1)(F)

conferred jurisdiction to review the Clean Water Rule.

Pet. App. 45a-47a.

ce. After this Court granted certiorari, the Sixth Cir-

cuit issued an order holding all further proceedings in

abeyance. 15-3751 C.A. Doe. 171-2 (Jan. 25, 2017).

3. Meanwhile, petitioner and other parties filed at

least 16 parallel APA challenges to the Clean Water

Rule in district courts throughout the country. See Pet.

Br. vi. The Judicial Panel on Multidistrict Litigation

(MDL) denied the federal government’s motion to con-

solidate the pending district court challenges, conclud-

ing that the MDL statute (28 U.S.C. 1407) did not sup-

port consolidation of litigation centered on questions of

law, and that the varying procedural postures of the

challenges counseled against consolidation. Jn re:

Clean Water Rule: Definition of “Waters of the United

States,” 140 F. Supp. 3d 1340 (J.P.M.L. 2015).

Six of the district courts in which challenges to the

Clean Water Rule were filed have ruled on their juris-

diction. Five of the six have concluded that they lack

jurisdiction because Section 1369(b)(1) vests the courts

of appeals with original and exclusive jurisdiction. See

Washington Cattlemen’s Ass’n v. United States EPA,

No. 15-3058, 2016 WL 6645765, at *3 (D. Minn. Nov. 8,

2016); Ohio v. United States EPA, 15-cv-2467 Docket

entry No. 54, at 1 (S.D. Ohio Apr. 25, 2016); Oklahoma

ex rel. Pruitt v. United States EPA, No. 15-ev-381, 2016

WL 3189807, at *2 (N.D. Okla. Feb. 24, 2016); Georgia

v. McCarthy, No. CV 215-79, 2015 WL 5092568, at *1

(S.D. Ga. Aug. 27, 2015); Murray Energy Corp. v.

United States EPA, No. 15-cv-110, 2015 WL 5062506, at

*1 (N.D. W. Va. Aug. 26, 2015). One district court has

held that it has jurisdiction to review the Rule. See

North Dakota v. U.S. EPA, 127 F. Supp. 3d 1047, 1052-

1053 (D.N.D. 2015).

4. On February 28, 2017, the President issued an

Executive Order directing EPA and the Corps to recon-

sider the Clean Water Rule. Exec. Order No. 13,778, 82

Fed. Reg. 12,497 (Mar. 3, 2017). The order declared it

to be “in the national interest to ensure that the Na-

tion’s navigable waters are kept free from pollution,

while at the same time promoting economic growth,

minimizing regulatory uncertainty, and showing due re-

gard for the roles of the Congress and the States under

the Constitution.” Jd. § l(a). It directed the issuing

agencies to review the Rule for consistency with those

objectives, and it instructed the agencies to “publish for

notice and comment a proposed rule rescinding or re-

vising the rule, as appropriate and consistent with law.”

Id. § 2(a).

The agencies subsequently issued a notice of pro-

posed rulemaking entitled “Definition of ‘Waters of the

United States’—Recodification of Pre-Existing Rules.”

82 Fed. Reg. 34,899 (July 27, 2017). That notice pro-

poses to rescind the Clean Water Rule and to recodify

the prior regulatory definition of “waters of the United

States” before beginning a new rulemaking process

concerning the term.” bid.

SUMMARY OF ARGUMENT

The court co? appeals has jurisdiction to review the

Clean Water Rule under the CWA provision authorizing

direct appellate review. Jurisdiction is authorized un-

der Section 1369(b)(1)(E), because a rule establishing

the geographic scope of Section 1311’s ban on unpermit-

ted pollutant discharges imposes a “limitation under

Section 1311,” 33 U.S.C. 1369(b)(1)(E). And jurisdiction

is also authorized under Section 1369(b)(1)(F), as con-

strued in Crown Simpson Pulp Co. v. Costle, 445 U.S.

? On March 6, 2017, the United States moved to hold the briefing

schedule in this case in abeyance in light of the Executive Order and

the attendant prospect that the Clean Water Rule will be rescinded

or revised. On April 3, 2017, this Court denied that motion.

193, 196 (1980) (per curiam), because the Clean Water

Rule establishes the boundaries of EPA’s permitting

authority. That reading of Section 1369(b)(1) is con-

sistent with its text and history, and avoids the “truly

perverse,” E.J. du Pont de Nemours & Co. v. Train,

430 U.S. 112, 136 (1977), and “seemingly irrational” bi-

fureation of closely related determinations between the

district courts and courts of appeals, Crown Simpson,

445 U.S. at 197.

A. 1. Direct appellate review of the Clean Water

Rule is authorized under Section 1369(b)(1)(E). Sub-

paragraph (E) authorizes courts of appeals to review

any EPA action “in approving or promulgating any

effluent limitation or other limitation under” Section

131i—the provision that generally bars the discharge

of pollutants except in compliance with requirements

set out under the Act. 33 U.S.C. 1369(b)(1)(E). The ex-

pansive word “any” in Subparagraph (E) indicates that

the subparagraph authorizes review of every sort of

limitation under Section 1311.

The Clean Water Rule fits within that category.

Effluent and other limitations under Section 1311 apply

only to discharges of pollutants to “navigable waters,”

33 U.S.C. 1311(a), 13862(12), which the Act defines as

“the waters of the United States,” 33 U.S.C. 1362(7). As

a result, a rule defining certain waters as “waters of the

United States” controls the geographic scope of all lim-

itations imposed under Section 1311. Such a rule im-

poses restrictions on the activities of property owners

and others, by generally prohibiting discharges of pol-

lutants to the waters that the rule covers unless the dis-

charges are authorized by permits. See 33 U.S.C. 1311,

1342, 1344. Indeed, the challengers object to the Clean

Water Rule precisely on the ground that it will con-

strain conduct on the covered waters. The Clean Water

Rule also imposes limitations on permitting authorities.

EPA and the States that issue NPDES permits are re-

quired to process applications for discharges of pollu-

tants to waters that meet the Clean Water Rule’s defi-

nition of “waters of the United States,” and to incorpo-

rate into permits for discharges to those waters the ef-

fluent limitations promulgated under Section 1311.

33 U.S.C. 1311(a), 1342.

2. The Clean Water Rule is also reviewable under

Section 1369(b)(1)(F). Subparagraph (F) authorizes di-

rect appellate review of EPA action “in issuing or deny-

ing any permit under section 1342.” 33 U.S.C.

1369(b)(1)(F). In Crown Simpson, this Court agreed

that Subparagraph (F) is properly understood to reach

EPA actions that are “functionally similar” to the denial

of a permit, because that interpretation “best com-

port[s] with the congressional goal of ensuring prompt

resolution of challenges to EPA’s actions.” 445 U.S. at

196. This Court also stated that Subparagraph (F) should

be construed to avoid a “seemingly irrational bifurcated

system” in which closely related EPA actions are routed

to different levels of the courts. /d. at 196-197.

Under the functional approach of Crown Simpson,

the Clean Water Rule is reviewable under Subpara-

graph (F). The CWA requires permits only for dis-

charges to “waters of the United States.” 33 U.S.C.

1342, 1362(7) and (12). As a result, the Clean Water

Rule controls whether permits may or may not be is-

sued for the bodies of water that it describes. More-

over, a narrow construction of Subparagraph (F) would

result in a “seemingly irrational bifurcated system” of

review. 445 U.S. at 197. A challenge to an EPA deter-

mination that a particular site contains “waters of the

United States” in an individual NPDES permitting de-

cision would be reviewable directly in the court of

appeals, but EPA’s resolution of the same question on a

more categorical basis through the Clean Water Rule

would instead be reviewed in district courts across the

country. Because that approach is not consistent with

Crown Simpson, courts of appeals have generally con-

strued Subparagraph (F) to cover rules that delineate

EPA’s jurisdiction to issue permits.

B. Petitioner’s reading of Section 1369(b)(1) cannot

be reconciled with the provision’s structure and pur-

pose. By routing cases directly to the courts of appeals,

and requiring challenges to be brought within 120 days,

Section 1369(b)(1) facilitates quick and orderly resolu-

tion of disputes concerning important rules that govern

the scope of the CWA.

This Court has construed Section 1369(b)(1) to afford

this expedited review to a coherent class of EPA ac-

tions, so that intertwined agency actions are routed

through the same channels. In E./. du Pont, this Court

considered whether Section 1369(b)(1)(E) should be

construed to provide direct appellate review for grants

and denials of individual variance permits under Section

1311, but not “effluent limitations for classes and cate-

gories of existing point sources.” 430 U.S. at 136. This

Court rejected that interpretation, explaining that it

“would produce the truly perverse situation in which

the court of appeals would review numerous individual

actions issuing or denying permits pursuant to [Section]

402 but would have no power of direct review of the

basic regulations governing those individual actions.”

Ibid. The Court in E./. du Pont relied on the same func-

tional considerations in construing the scope of EPA’s

authority “to issue regulations establishing effluent lim-

itations for classes of plants” under Section 1311, id. at

124, explaining that it would be “highly anomalous” if

the agency’s new-source regulations “were directly re-

viewable in the Court of Appeals,” id. at 127-128, while

existing-source standards “based on the same adminis-

trative record were reviewable only in the District

Court,” id. at 128. The Court in Crown Simpson simi-

larly emphasized that Section 1369(b)(1) should be con-

strued to avoid seemingly irrational bifurcation of re-

lated determinations. 445 U.S. at 196-197.

Petitioner’s interpretation would create the irra-

tional bifurcation that the Court in E£./. du Pont and

Crown Simpson sought to avoid. Petitioner would con-

strue Section 1369(b)(1)(E) as creating appellate juris-

diction to review EPA regulations setting numerical or

qualitative effluent limitations, while authorizing dis-

trict courts throughout the country to review regula-

tions governing the same limits’ geographic scope. That

bifurcation would hinder regulated parties’ efforts to

obtain prompt clarification of their responsibilities un-

der the CWA. Petitioner’s narrow construction of Sec-

tion 1369(b)(1)(F) would similarly generate “the truly

perverse situation in which the court of appeals would

review numerous individual actions issuing or denying

permits * * * but would have no power of direct review

of the basic regulations” establishing jurisdiction over

those individual actions. EJ. du Pont, 430 U.S. at 136.

C. The CWA’s legislative history confirms that Sec-

tion 1369(b)(1) creates direct appellate jurisdiction over

the Clean Water Rule. The House and Senate debates

reflect an understanding that Section 1369(b)(1) would

generally provide jurisdiction over challenges to nation-

wide rules that EPA promulgated to implement the Act.

For instance, the Senate Report stated that Section

1369(b)(1) would authorize expedited, centralized re-

view of the “requirements, standards and regulations”

that EPA established under the Act. Senate Report 84-

85. And the Conference Report indicated that Section

1369(b)(1) would govern “any suit against a federal

standard.” H.R. Conf. Rep. No. 1465, 92d Cong., 2d

Sess. 147 (1972). (Conference Report) Those descrip-

tions counsel strongly against petitioner’s interpreta-

tion of the statute. A judicial-review provision that did

not reach a rule defining the geographic scope of the

CWA’s central provisions could not even loosely be de-

scribed as covering EPA’s “requirements, standards

and regulations” under the Act or as conferring appel-

late jurisdiction over “any suit against a Federal stand-

ard” under the statute.

Congress’s subsequent treatment of Section

1369(b)(1) is also inconsistent with petitioner’s interpre-

tation of the statute. After a functional approach to Sec-

tion 1369(b)(1) was well-established in the decisions of

this Court and the courts of appeals, Congress amended

Section 1369(b)(1) to provide direct appellate review of

certain additional decisions—but did not narrow the

judicial-review provision’s scope. That choice provides

additional reason to adhere to the functional framework

that Congress left in place.

A 1977 debate over a failed proposal to centralize re-

view of nationwide regulations under the CWA in the

D.C. Cireuit provides further evidence of the broad

scope of Section 1369(b)(1). Both supporters and oppo-

nents of the 1977 centralization proposal made clear

their understanding that if Section 1369(b)(1) were left

untouched, the validity of major nationwide standards

under the CWA would be litigated in the regional

circuits—not in the district courts.

D. Any remaining ambiguity should be resolved in

favor of appellate jurisdiction. The Court in Florida

Power & Light Co. v. Lorion, 470 U.S. 729 (1985), held

that if a statute contains a provision for direct appellate

review, a court should “not presume that Congress in-

tended to depart from the sound policy of placing initial

APA review in the courts of appeals” without “a firm

indication” that Congress intended the claim at issue to

be pursued in the district court. /d. at 745. That prin-

ciple applies here, and confirms that the court of ap-

peals has jurisdiction to consider challenges to the

Clean Water Rule.

ARGUMENT

THE COURT OF APPEALS HAS JURISDICTION TO

REVIEW THE CLEAN WATER RULE

The CWA’s judicial-review provision, 33 U.S.C.

1369(b)(1), vests the court of appeals with jurisdiction

to consider the validity of the Clean Water Rule. First,

the court of appeals has jurisdiction under Section

1369(b)(1)(E), because a rule establishing the geo-

graphic scope of Section 1311’s ban on unpermitted pol-

lutant discharges imposes a “limitation under Section

1311.” 33 U.S.C. 1369(b)(1)(E). Second, the court of ap-

} 2als has jurisdiction under Section 1369(b)(1)(F), be-

cause the Clean Water Rule establishes the boundaries

of EPA’s permitting authority. That reading of the per-

tinent jurisdictional provisions is consistent with their

text and history, as well as with this Court’s guidance

that Section 1369(b)(1) should be construed to avoid the

irrational bifurcation of closely related determinations.

See Crown Simpson Pulp Co. v. Costle, 445 U.S. 193,

197 (1980) (per curiam); E./. du Pont de Nemours & Co.

v. Train, 430 U.S. 112, 136 (1977).’

A. The Clean Water Rule Is Subject To Direct Appellate

Review Under The Text Of Both Section 1369(b)(1)(E)

And 1369(b)(1)(F)

Both Section 1369(b)(1)(E) and Section 1369(b)(1)(F)

authorize direct court of appeals review of the Clean

Water Rule.

1. The Clean Water Rule is reviewable under Section

1369(b) (1) (E)

a. Section 1369(b)(1)(E) encompasses all EPA ac-

tions that impose limitations of any sort under Section

1311—the provision that forbids the discharge of pollu-

tants except in compliance with specified provisions of

the Act. The term “effluent limitation” is defined

broadly, as “any restriction established by a State or

the Administrator on quantities, rates, and concentra-

tions of chemical, physical, biological, and other constit-

* One of the respondents contends (Waterkeeper Resps. Br. 16-

17, 24-26) that Section 1369(b)(1) does not allow review of the Clean

Water Rule because the Assistant Secretary of the Army partici-

pated in the rulemaking. That argument lacks merit. The CWA

authorized the Administrator to issue the Clean Water Rule. See

33 U.S.C. 1361(a) (specifying that the Administrator may “prescribe

such regulations as are necessary to carry out [her] functions un-

der” the Act); see Administrative Authority to Construe § 404 of

the Federal Water Pollution Control Act, 43 Op. Att’y Gen. 197

(1979) (explaining that EPA has overall responsibility for admin-

istration of the Act, including the authority to interpret the term

“navigable waters”). Section 1369(b)(1) authorizes “[rjeview of the

[EPA] Administrator’s action” in promulgating or approving efflu-

ent limitations under Section 1311 and in issuing or denying

NPDES permits, whether or not an additional federal agency par-

ticipates in the rulemaking. 33 U.S.C. 1369(b)(1).

uents which are discharged from point sources into” wa-

ters of the United States. 33 U.S.C. 1362(11). In addi-

tion to “effluent limitation[s],” Section 1369(b)(1)(E) en-

compasses the Administrator’s promulgation of any

“other limitation” under Section 1311. 33 U.S.C.

1369(b)(1)(E).

Section 1369(b)(1)(E)’s broad coverage is reinforced

by Congress’s repeated use of the word “any” across the

relevant provisions. This Court has emphasized that

“the word ‘any’ has an expansive meaning”—‘“one or

some indiscriminately of whatever kind.” Department

of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131

(2002) (citation omitted). Here, Congress used “any”

both in the CWA’s definition of “effluent limitation,”

33 U.S.C. 1362(11), and in Section 1369(b)(1)(E)’s iden-

tification of the “effluent limitation[{s] or other limita-

tion{s]” that would be reviewable in the court of appeals,

33 U.S.C. 1369(b)(1)(E). That wording confirms that

the statute should be read to reach all limitations of

whatever kind that are imposed under Section 1311. Cf.

Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219-220

(2008) (“Congress’ use of ‘any’ to modify ‘other law en-

forcement officer’ is most naturally read to mean law

enforcement officers of whatever kind.”); United States

v. Gonzales, 520 U.S. 1, 5 (1997) (stating that, when

“Congress did not add any language limiting the

breadth” of “the phrase ‘any other term of imprison-

ment,’” the Court should “read [it] as referring to all

‘term(|s] of imprisonment’”) (citation omitted; brackets

in original); see Collector v. Hubbard, 79 U.S. (12 Wall.)

1 (1871).

EPA’s action in issuing the Clean Water Rule readily

qualifies as action promulgating or approving an “other

limitation” under Section 1311. Limitations imposed

under Section 1311 apply only to discharges of pollu-

tants to “navigable waters,” 33 U.S.C. 1311(a), 1362(12),

which the CWA defines as “the waters of the United

States,” 33 U.S.C. 1362(7). A rule that specifies which

sites are “waters of the United States” imposes on per-

sons who discharge pollutants to those waters the full

panoply of effluent and other limitations under Section

1311. As a consequence of that directive, pollutant dis-

charges to the covered waters are generally prohibited

unless authorized by a permit. See 33 U.S.C. 1311, 1342,

1344. A rule that delineates the geographic scope of lim-

itations promulgated under Section 1311 is thus every

bit as integral to the CWA’s practical effect on regu-

lated parties as are the quantitative or qualitative re-

quirements. In order for a regulated party to know

what it is prohibited from doing, the party must know

both those quantitative and qualitative requirements

and the requirements’ geographic scope.

Moreover, as Judge McKeague explained below, the

rule “expan|ds} * * * regulatory authority in some in-

stances” and thereby “impos[es] *** additional re-

strictions on the activities of some property owners.”

Pet. App. 15a; see Georgia v. McCarthy, No. CV 215-79,

2015 WL 5092568, at *2 (S.D. Ga. Aug. 27, 2015) (ex-

plaining that the Clean Water Rule falls within Section

1369(b)(1)(E) because its “undeniable and inescapable

effect is to restrict pollutants and subject entities to

the requirements of the [CWA’s] permit program”);

Murray Energy Corp. v. United States EPA, No. 15-cv-

110, 2015 WL 5062506, at *5(N.D. W. Va. Aug. 26, 2015)

(“Here, there is no dispute that the Clean Water Rule

will have an impact on Murray’s permitting require-

ments.”).

Indeed, the challengers here object to the Clean

Water Rule on the ground that it subjects them and oth-

ers to restrictions under Section 1311 and related pro-

visions. For example, petitioner’s complaint alleges

that the Rule “imposes impossible burdens” with which

its members must “comply,” and that it requires those

members “either to alter their activities * * * or to ob-

tain permits when previously they would not have had

to.” American Farm Bureau Fed’n v. EPA, 15-cv-165

Docket entry No. 1, at 3, 12, 14 (S.D. Tex. July 2, 2015).

The Business and Municipal challengers assert that the

rule subjects to CWA requirements waters that were

not previously covered. Business and Municipal Chal-

lengers Br., 15-3751 C.A. Doc. 129-1, at 40-41, 58 (Nov.

1, 2016). And the state challengers assert that the rule

would substantially burden state activities by subject-

ing additional waters to the Act’s limitations. State

Pets. Br., 15-3751 C.A. Doe. 128, at 63-64 (Nov. 1, 2016).

While the federal respondents have disputed whether

the Rule results in a net expansion of CWA jurisdiction,

there is no dispute that the Rule categorically classifies

as “waters of the United States” certain waters that

previously would have been classified as such only

based on a case-by-case analysis under Rapanos v.

United States, 547 U.S. 715 (2006). See, e.g., 33 C.F.R.

328.3(a)(6) and (c)(1) (categorical rule for adjacent wet-

lands).

The understanding that Section 1369(b)(1)(E)

reaches regulations like the Clean Water Rule comports

with common usage. To determine the extent of the

“limitations” that a particular law imposes, one must

identify the geographic coverage of the law as well as

the range of conduct it forbids. Thus, a Sunday “blue

law” that covered an entire State would impose greater

limitations on alcohol sales than a law that prohibited

the same conduct but applied only within a single

county. The Clean Water Rule’s definition of the term

“waters of the United States” is similarly integral to any

effort to identify the “limitations” that Section 1311 im-

The Clean Water Rule imposes corresponding limi-

tations on permitting authorities as well. EPA and the

States that issue NPDES permits are required to pro-

cess permit applications for discharges of pollutants to

waters that meet the Rule’s definition of “waters of the

United States,” and to incorporate into permits they is-

sue for discharges to those waters the effluent limita-

tions promulgated under Section 1311. 33 U.S.C.

1311(a), 1342. Thus, by providing that particular wa-

ters are “waters of the United States,” the Rule re-

quires permitting authorities to subject discharges to

those waters to the limitations of Section 1311. The

* Many of the challengers argue that the Clean Water Rule is ob-

jectionable because it reflects an impermissible broadening of the

prior regulatory definition of the term “waters of the United

States.” See p. 20, supra. The applicability of Section 1369(b)(1)(E),

however, does not depend on that circumstance, since the availabil-

ity of immediate court of appeals review turns on the nature of the

challenged EPA action, not on the gravamen of the plaintiff’s legal

challenge. Thus, if EPA amended a numerical effluent limitation to

make it less stringent than it previously had been, the amended lim-

itation would be an “effluent limitation” subject to court of appeals

review under Section 1369(b)\(1)(E), even if the plaintiff asserted

that EPA should have adhered to the prior more stringent version.

Similarly here, the agencies’ regulatory definition of “waters of the

United States” is part and parcel of the overall “limitation{s}” that

the CWA places on potential dischargers and on permit issuers.

33 U.S.C. 1369(b)(1)(E). As such, the reviewability of the Clean Wa-

ter Rule does not depend on whether a challenger asserts that the

Rule is too broad or too narrow.

plaintiffs who challenge the Clean Water Rule have

acknowledged that effect, with the state respondents in

support of petitioner seeking a stay of the Rule in part

on the ground that it requires them to “create, process,

and issue additional NPDES permits.” 15-3799 C.A.

Doc. 24, at 19 (Sept. 9, 2015) (citation omitted). The

Clean Water Rule thus imposes “limitations on point-

source operators and permit issuing authorities” alike.

Pet. App. 17a.

Section 1311, moreover, is clearly designed so that

critical aspects of its limitations are imposed through

EPA regulations that define statutory terms. Section

1311 requires the achievement of “effluent limitations

for point sources * * * which shall require the applica-

tion of the best practicable control technology currently

available as defined by the Administrator pursuant to

section 1314(b) of this title,” 33 U.S.C. 1311(b)(1)(A),

and of effluent limitations for certain publicly owned

treatment works “based upon secondary treatment as

defined by the Administrator pursuant to section

1314(d)(1) of this title,” 33 U.S.C. 1811(b)(1)(B). Those

provisions reflect Congress’s intent that regulations de-

fining the terms “best practicable control technology

currently available” and “secondary treatment” would

be among the mechanisms through which the Adminis-

trator imposed limitations under Section 1311. 33 U.S.C.

1311(b)(1)(A) and (B).

b. Petitioner does not dispute that the Clean Water

Rule has the practical effect of subjecting property

owners and other pollutant dischargers to effluent and

other limitations promulgated under Section 1311. Pe-

titioner suggests, however, that the Clean Water Rule

does not impose “limitation[s]” within the meaning of

Section 1369(b)(1)(E) because the Rule is not “self-

executing,” but instead “operates in conjunction with

other sections scattered throughout the Act.” Pet. Br.

29 (quoting Pet. App. 31a (Griffin, J., concurring in the

judgment)). Judicial review under Section 1369(b)(1)(E),

however, is not confined to direct or freestanding limi-

tations, but instead extends broadly to “any effluent

limitation or other limitation.” 33 U.S.C. 1369(b)(1)(E)

(emphasis added).

Other aspects of the statutory scheme further belie

petitioner’s view that Section 1369(b)(1)(E) reaches

only self-executing or direct limitations. Many of the

numerical and qualitative limitations that petitioner

acknowledges are reviewable under Section 1369(b)(1)(E)

are “not self-executing,” but instead “achieve their bite

only after they have been incorporated into NPDES

permits.” Texas Oil & Gas Ass’n v. United States EPA,

161 F.3d 923, 928 (5th Cir. 1998). For example, the

CWA directs EPA to issue regulations that “identify, in

terms of amounts of constituents and chemical, physi-

cal, and biological characteristics of pollutants, the de-

gree of effluent reduction attainable through the appli-

cation of the best practicable control technology cur-

rently available” for classes of point sources. 33 U.S.C.

1314(b)(1)(A). EPA rules identifying “the degree of ef-

fluent reduction attainable” through best practices,

ibid., are not self-executing, however; they are instead

“made binding on individual dischargers” only through

NPDES permits. Texas Oil, 161 F.3d at 928; see Amer-

ican Petroleum Inst. v. EPA, 661 F.2d 340, 344 (5th Cir.

1981) (explaining that NPDES permits “transform |

generally applicable effluent limitations ... into obli-

gations (including a timetable for compliance) of the in-

dividual discharger”) (citation and internal quotation

marks omitted).

If Congress had authorized court of appeals review

only of “direct” or “self-executing” limitations, more-

over, a rule’s reviewability could turn not on the rule’s

substantive effect, but on how the rule was phrased.

For example, the agencies could have issued a rule stat-

ing that, except as provided in other regulatory provi-

sions governing the issuance of permits, “no person may

add any pollutant from a point source to any of the fol-

lowing waters.” That wording would have conveyed

even more starkly the centrality of the covered-waters

definition to an understanding of the “limitations” that

the rule placed on regulated parties’ conduct. Taken to-

gether, however, the Clean Water Rule and the regula-

tory provisions that set out effluent limitations consti-

tute the substantive equivalent of that “self-executing”

or “direct” limitation. See 80 Fed. Reg. at 37,054 (“Pro-

grams established by the CWA ** * such as the section

[1342] National Pollutant Discharge Elimination Sys-

tem *** permit program * ** all rely on the defini-

tion of ‘waters of the United States.’”).

Petitioner also argues (Pet. Br. 29-30; see Water-

keeper Resps. Br. 13, 14 n.2) that, under the interpre-

tive canons of eyusdem generis and noscitur a sociis and

the rule against superfluities, the phrase “other limita-

tion,” 33 U.S.C. 1369(b)(1)(E), should be understood to

reach only “effluent-like” limitations. Pet. Br. 39. Pe-

titioner’s reliance on those canons is misplaced.

The ejusdem generis canon addresses the interpre-

tation of a general phrase that “follows a list of specif-

ics” from which it is possible to infer some shared prop-

erty. James v. United States, 550 U.S. 192, 199 (2007),

overruled on unrelated grounds by Johnson v. United

States, 135 8S. Ct. 2551 (2015). In contrast, a phrase that

is “disjunctive, with one specific and one general cate-

gory,” “does not lend itself to application of the canon.”

Ali, 552 U.S. at 225; see Antonin Scalia & Bryan A. Gar-

ner, Reading Law: The Interpretation of Legal Texts

206 (2012) (Scalia & Garner) (stating that “eyusdem gen-

eris generally requires at least two words to establish a

genus—before the other-phrase”—and that “‘[t]heaters

and other places of public entertainment’ does not in-

voke the canon”). Petitioner cites (Br. 30) Circuit City

Stores, Inc. v. Adams, 532 U.S. 105 (2001), for its

articulation of the ejusdem generis canon. The statu-

tory provision in that case, however, contained a gen-

eral term following a list of specific terms from which it

was possible to infer a shared property, and the Court

described the canon as coming into play “where general

words follow specific words in a statutory enumera-

tion.” Jd. at 114-115 (brackets and citation omitted; em-

phasis added). Petitioner identifies no decision of this

Court suggesting, contrary to Ali, that ejusdem generis

applies when a catch-all follows a single specific exam-

ple.

Petitioner’s reliance on the related canon of noscitur

a sociis is similarly misplaced. Under the principle that

a word’s meaning is “known from its associates,”

“{cjourts may clarify the meaning of doubtful words in

an ambiguous statute by reference to other associated

words and phrases.” 2A Norman J. Singer & Shambie

Singer, Sutherland Statutes and Statutory Construc-

tion § 47:16, at 353 (rev. 7th ed. 2014). Thus, if a statute

refers to “‘tacks, staples, nails, brads, screws, and fas-

teners,’ it is clear from the words with which they are

associated that the word nails does not denote finger-

nails and that staples does not mean reliable and

customary food items.” Scalia & Garner 196. But the

canon is used only to construe terms that are ambigu-

ous, not to alter the meaning of words that are simply

broad. See, e.g., Russell Motor Car Co. v. United States,

261 U.S. 514, 520 (1923) (noting that “[njoscitur a sociis

is a well established and useful rule of construction where

words are of obscure or doubtful meaning and then, but

only then, its aid may be sought to remove the obscurity

or doubt by reference to the associated words”).

Even if “other limitation” were an ambiguous term,

noscitur a sociis would not aid petitioner. That canon

sheds light on the meaning of a statute that contains a

“string of statutory term:,” S.D. Warren Co. v. Maine

Bd. of Envtl. Prot., 547 U.S. 370, 378-380 (2006), be-

cause when “several items in a list share an attribute,”

that fact “counsels in favor of interpreting the other

items as possessing that attribute as well,” Beecham v.

United States, 511 U.S. 368, 371 (1994). But when a pro-

vision lists just two items, this Court has declined to

hold that “pairing a broad statutory term with a narrow

one shrinks the broad one,” explaining that “noscitur a

sociis is no help absent some sort of gathering with

a common feature to extrapolate.” S.D. Warren Co.,

547 U.S. at 379-380; see id. at 379 (explaining that it is

not possible “to extrapolate a common feature from

what amounts to a single item”). Within Section

1369(b)(1)(E), moreover, the terms “effluent limitation”

and “other limitation” both refer to limitations that

arise under the enumerated statutory sections. There

is no logical reason to view the intended common attrib-

ute of the two terms as the “effluent-like” character of

the limitations they reference, rather than simply the

connection to Section 1311, 1312, 1316, or 1345 that Sec-

tion 1369(b)(1)(E) explicitly requires. See Ali, 552 U.S. at

225, 226 (concluding that noscitur a sociis did not sup-

port limiting the catch-all portion of “any officer of cus-

toms or excise or any other law enforcernent officer” be-

cause the statutory language was not “inconsistent with

the conclusion that ‘any other law enforcement officer’

sweeps as broadly as its language suggests”).

Petitioner further argues that “other limitation”

should be construed narrowly because “[a] contrary

reading would render superfluous the specific words

effluent limitation.” Pet. Br. 30 (brackets, citation, and

internal quotation marks omitted). Congress could

have replaced those two phrases with a single broad

term such as “any limitation.” But Congress routinely

pairs a specific example with an expansive phrase, for

emphasis or clarity. This Court has often addressed

such provisions and has given them their natural read-

ing. See, e.g., Buck v. Davis, 137 S. Ct. 759, 777-778

(2017); CSX Transp., Inc. v. Alabama Dep't of Revenue,

562 U.S. 277, 280-281 (2011); Ali, 552 U.S. at 224, 226;

Harrison v. PPG Indus., Inc., 446 U.S. 578, 587-589

(1980). Petitioner identifies no decision suggesting that

the possibility of more concise phrasing amounts to sur-

plusage.

In any event, even if some interpretive canon coun-

seled in favor of reading Section 1369(b)(1)(E) as reach-

ing only effluent limitations and “limitations directly re-

lated to effluent limitations” (Pet. Br. 30), a rule setting

the geographic scope of effluent limitations falls

squarely within the latter category. Indeed, such a rule

bears a closer connection to effluent limitations than

many of the limitations that petitioner concedes are re-

viewable under Section 1369(b)(1)(E). See id. at 31 (of-

fering as examples of purportedly effluent-like rules

those regulations “that direct the point source to en-

gage in specific types of activity” or that “promulgate a

design, equipment, management practice, or opera-

tional standard”) (brackets and citations omitted).

Petitioner is also wrong in contending (Br. 32-33)

that the Clean Water Rule does not impose effluent or

other limitations “under Section 1311.” Petitioner ob-

serves that the term “waters of the United States” does

not appear in Section 1311. Pet. Br. 32; see State Resps.

Br. 23-24; Waterkeeper Resps. Br. 14-15. But “waters

of the United States” is part of the definition of a term

that does appear in Section 1311. See 33 U.S.C. 1311

(forbidding “discharge of any pollutant” except under

specified conditions); 33 U.S.C. 1362(12) (defining “dis-

charge of a pollutant” as adding “any pollutant to navi-

gable waters from any point source”); 33 U.S.C. 1362(7)

(defining “navigable waters” to include “waters of the

United States”). By establishing the scope of the Sec-

tion 1311 term “discharge of any pollutant,” the Clean

Water Rule’s legal and practical effect is to make efflu-

ent and other limitations under Section 1311 applicable

to the waters that the Rule covers. Nothing in Section

1369(b)(1)(E) suggests that the proper forum for judi-

cial review depends on whether the agency achieves this

result by issuing a regulatory definition of the term

“waters of the United States,” or by promulgating a

parallel rule that achieves the same result by defining

the geographic scope of the Section 1311 phrase “dis-

charge of any pollutant.”

Petitioner also contends (Br. 34) that the Clean Wa-

ter Rule does not impose effluent or other limitations

“‘under section 1311, 1812, 1316, or 1345’ because it is a

definitional rule that ‘applies across the entire Act’” (ci-

tations omitted). Section 1369(b)(1)(E) is not rendered

inapplicable, however, simply because the Clean Water

Rule affects the implementation of CWA provisions in

addition to those enumerated in Section 1369(b)(1)(E)

itself. The Clean Water Rule imposes limitations under

Section 1311, even if it imposes limitations under other

CWA provisions as well.

Petitioner and respondents in support of petitioner

suggest (Pet. Br. 32-33, 37-38; State Resps. Br. 38-39,

44-45; Waterkeeper Resps. Br. 40-41; Utility Resp. Br.

20-21) that, if the limitations they would read into Sub-

paragraph (E) are not imposed, “[nJearly any EPA ac-

tion” would be reviewable under Section 1369(b)(1)(E).

Pet. Br. 37. That is incorrect. Many EPA actions are

not reviewable under Section 1369(b)(1)(E) because

they do not impose effluent or other limitations under

Section 1311 or under any of the three other enumer-

ated CWA provisions. For example, Subparagraph (E)

does not authorize court of appeals review of EPA rules

governing hazardous substances, 33 U.S.C. 1321 (2012

& Supp. II 2014); vessel wastes, 33 U.S.C. 1322(b); or

construction grants, 33 U.S.C. 1281-1301 (2012 & Supp.

II 2014). See NRDC, Inc. v. U.S. EPA, 673 F.2d 400,

404 n.14 (D.C. Cir.) (noting government’s submission

that these classes of action were not reviewable under

Subparagraph (E)), cert. denied, 459 U.S. 879 (1982). It

does not reach EPA decisions approving States’ individ-

ual control strategies. See Lake Cumberland Trust,

Inc. v. United States EPA, 954 F.2d 1218, 1221, 1223

(6th Cir. 1992) (collecting cases); see also 33 U.S.C.

1314(/). it does not reach EPA’s decisions approving

state water-quality standards. See, e.g., Bethlehem

Steel Corp. v. EPA, 538 F.2d 513, 517-518 (2d Cir. 1976).

And, contrary to petitioner’s suggestion (Br. 37-38), it

does not reach EPA administrative enforcement orders

under Section 1319(a)(1), such as the order at issue in

Sackett v. EPA, 566 U.S. 120 (2012). While EPA might

issue an enforcement order if it concluded that a land-

owner was violating Section 1311 (or another provision

of the CWA), an enforcement order does not itself ap-

prove or promulgate effluent or other limitations under

Section 1311 or any of the other provisions listed in Sub-

paragraph (E). Giving Subparagraph (E) the scope that

its text commands thus does not render the provision

limitless. See NRDC, 673 F.2d at 404 n.14 (rejecting the

same argument).

2. The Clean Water Rule is also reviewable under

Section 1369(6)(1)(F)

Section 1369(b)(1)(F) authorizes court of appeals re-

view of EPA action “in issuing or denying any permit

under section 1342.” 33 U.S.C. 1369(b)(1)(F). In Crown

Simpson, supra, this Court considered whether Section

1369(b)(1)(F) authorized direct court of appeals review

of EPA’s veto of an NPDES permit issued by a state

authority. See 445 U.S. at 196. The court of appeals

had concluded that it lacked jurisdiction because

“EPA’s veto of a state-issued permit did not constitute

‘issuing or denying’ a permit.” /bid. The concurring

judge on that court, by contrast, expressed the view

that reading Section 1369(b)(1)(F) to encompass actions

that are “functionally similar” to denial of a permit

“best comport{s] with the congressional goal of ensur-

ing prompt resolution of challenges to EPA’s actions.”

Tbid.

This Court summarily reversed, “agree[ing] with the

concurring opinion” in the court of appeals. Crown Simp-

son, 445 U.S. at 196. It held that Section 1369(b)(1)(F)

conferred jurisdiction over the veto, which had “the pre-

cise effect” of a permit denial. /bid. The Court rea-

soned that a contrary approach “would likely cause de-

lays in resolving disputes under the Act” and would cre-

ate “a seemingly irrational bifurcated system” in which

“denials of NPDES permits would be reviewable at dif-

ferent levels of the federal-court system depending on

the fortuitous circumstance of whether the State in

which the case arose was or was not authorized to issue

permits.” Jd. at 196-197.

Under the functional interpretive approach utilized

by this Court in Crown Simpson, the Clean Water Rule

is reviewable under Section 1369(b)(1)(F). An NPDES

permit may be issued only for activity that involves a

discharge of pollutants to “waters of the United States,”

33 U.S.C. 1342, 1362(7) and (12). A rule governing

whether particular bodies of water constitute “waters of

the United States” therefore controls whether permits

may or may not be issued for discharges to those bodies

of water. And because permits are required only for

discharges to waters of the United States, petitioner’s

narrow construction of Section 1369(b)(1)(F) would re-

sult in the “seemingly irrational bifurcated system” of

review that the Crown Simpson Court construed the

statute to avoid. 445 U.S. at 197. A challenge to an EPA

determination that a particular site contains “waters of

the United States” would be reviewable directly in a

court of appeals under Section 1369(b)(1)(F) if that de-

termination was made in an individual NPDES permit-

ting decision. But EPA’s resolution of the same ques-

tion on a more categorical basis through the Clean Wa-

ter Rule would instead be reviewed through suits

brought under the APA and filed in district courts

across the country.

Because that approach is contrary to the principles

in Crown Simpson, courts of appeals have generally

construed Section 1369(b)(1)(F) to cover rules that

delineate EPA’s jurisdiction to issue permits. See

National Cotton Council v. United States EPA, 553 F.3d

927, 933 (6th Cir. 2009) (rule providing that pesticides

applied in accordance with a federal statute are exempt

from permitting requirements), cert. denied, 559 U.S.

936 and 130 S. Ct. 1505 (2010); NRDC, Inc. v. United

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

(rule specifying what types of stormwater discharges

require permits); American Mining Cong. v. United

States EPA, 965 F.2d 759, 763 (9th Cir. 1992) (rule re-

quiring permits for certain stormwater discharges);

NRDC, Inc. v. U.S. EPA, 656 F.2d 768, 775-776 (D.C.

Cir. 1981) (rule governing whether the agency may

grant permits with certain types of variances); see also,

e.g., National Pork Producers Council v. United States

EPA, 635 F.3d 738, 749-751 (5th Cir. 2011); but see

Friends of the Everglades v. United States EPA,

699 F.3d 1280, 1287-1288 (11th Cir. 2012) (holding that

court of appeals lacked jurisdiction under Subpara-

graph (F) to consider a rule providing that no NPDES

permit was required for certain transfers of water from

one body to another), cert. denied, 134 S. Ct. 421 and

134 S. Ct. 422 (2013).

Petitioner’s contrary arguments lack merit. Peti-

tioner seeks (Br. 24) to confine Crown Simpson to its

facts, asserting that the Court “merely held that EPA’s

veto of a state-issued permit is the denial of a Section

1342 permit covered by Subsection (F).” But Crown

Simpson’s holding consists not only of its “result,” but

also of its “rationale.” Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 66-67 (1996) (compiling authority).

Petitioner’s argument disregards Crown Simpson's

reasoning, including the Court’s conclusion that Sub-

paragraph (F’) reaches decisions that are “functionally

similar” to permit issuance or denial and its rejection of

“a seemingly irrational bifurcated system” under which

decisions that are functional equivalents would be

routed to different courts. 445 U.S. at 196, 197. Partic-

ularly in light of the “special force” of stare decisis “in

the area of statutory interpretation,” Patterson v.

McLean Credit Union, 491 U.S. 164, 172 (1989), and the

“influential decisions” of the courts of appeals (Pet. Br.

39) that have long relied on this Court’s guidance con-

cerning Subparagraph (F), there is no sound reason to

abrogate the Crown Simpson framework.

Petitioner also argues that the canon against super-

fluity provides a ground to overturn the Crown Simp-

son approach. See Pet. Br. 25-27; see also State Resps.

Br. 36-38. That argument rests on petitioner’s view

that, if Subparagraph (F) of Section 1369(b)(1) encom-

passes the Clean Water Rule, it must likewise encom-

pass the categories of EPA action that are enumerated

in Section 1369(b)(1)’s other subparagraphs. See Pet.

Br. 25-26 (stating that, “[uJnder [Judge McKeague’s]

approach, most of the other designations Congress

made in Section 1369(b) would be unnecessary because

they would be covered by Subsection (F)”). That argu-

ment lacks merit.

A construction of Section 1369(b)(1)(F) that reaches

decisions functionally similar to permit grants or deni-

als naturally reaches rules that govern whether EPA

has jurisdiction to issue or deny a permit. But it does

not clearly reach “standard[s| of performance,” “pre-

treatment standard|[s],” “effluent limitation[s],” and

“individual control strateg{ies]” for toxic pollutants—

the types of EPA action that Congress made reviewable

in 33 U.S.C. 1369(b)(1)(A), (C), (E), and (G). Those rules

set standards that EPA and state authorities must also

incorporate in their permits, see 33 U.S.C. 1317(d), but

they do not dictate whether a permit may be issued at

all. EPA’s decision whether to authorize a State’s per-

mitting program under 33 U.S.C. 1369(b)(1)(D) is like-

wise entirely distinct from a decision whether to issue

or deny a permit for a particular discharge of pollutants.

Thus, even if Subparagraph (F) arguably encompasses

some of the EPA actions enumerated in Section

1369(b)(1)’s other subparagraphs, those provisions

serve a useful purpose by “remov(ing] any doubt” that

courts of appeals have jurisdiction to review those ac-

tions. Marx v. General Revenue Corp., 568 U.S. 371,

383-384 (2013) (explaining that provisions are not su-

perfluous when they remove doubt about an issue); A/?,

552 U.S. at 226 (same).

In any event, “[t/he canon against surplusage is not

an absolute rule,” Marz, 568 U.S. at 385, because “[rje-

dundancies across statutes are not unusual events in

drafting,” Connecticut Nat'l Bank v. Germain, 503 U.S.

249, 253 (1992); see Scalia & Garner 176-177. Given the

complexity of the CWA, the interconnectedness of its

provisions, and the many classes of decisions that Con-

gress routed to the court of appeals under Section

1369(b)(1), significant overlap among the categories of

actions covered by Section 1369(b)(1) would hardly be

surprising. Petitioner identifies no persuasive reason

to depart from the pragmatic approach to Subpara-

graph (F) that this Court adopted decades ago in Crown

Simpson and that has shaped lower-court case law since

that time.

B. Petitioner’s Reading Of Section 1369(b)(1) Cannot Be

Reconciled With The Provision’s Structure And

Purpose

By routing cases directly to the courts of appeals,

and by requiring that any challenge to the enumerated

EPA actions must be brought within 120 days, Section

1369(b)(1) facilitates quick and orderly resolution of dis-

putes concerning the legality of important rules govern-

ing the scope of a regulatory scheme. See Harrison,

446 U.S. at 593 (“The most obvious advantage of direct

review by a court of appeals is the time saved compared

to review by a district court, followed by a second re-

view on appeal.”); Crown Simpson, 445 U.S. at 196, 197

(agreeing that Section 1369(b) serves “the congres-

sional goal of ensuring prompt resolution of challenges

to EPA’s actions,” and rejecting an interpretation that

“would likely cause delays in resolving disputes under

the Act”). In addition, as then-Judge Ginsburg ex-

plained, “initial review in a court of appeals” helps to

produce “[(njational uniformity, an important goal in

dealing with broad regulations.” NRDC, 673 F.2d at

405 n.15; see Virginia Elec. & Power Co. v. Costle,

566 F.2d 446, 451 (4th Cir. 1977) (VE PCO) (observing

that “the jurisdictional scheme of the Act * ** in gen-

eral leaves review of standards of nationwide applicabil-

ity to the courts of appeals, thus furthering the aim of

Congress to achieve nationally uniform standards”).

In each of its decisions interpreting Section

1369(b)(1), this Court has construed the provision to

afford this form of expedited review to a coherent class

of EPA actions, so that intertwined agency actions are

routed through the same channels. The petitioners in

EI. du Pont argued that Section 1369(b)(1) should be

interpreted to permit direct court of appeals review of

grants and denials of individual variance permits under

Section 1311, but not of “effluent limitations for classes

and categories of existing point sources.” 430 U.S. at

136. In rejecting that approach, the Court explained

that the petitioners’ reading of the jurisdictional provi-

sion “would produce the truly perverse situation in

which the court of appeals would review numerous indi-

vidual actions issuing or denying permits pursuant to

[Section] 402 but would have no power of direct review

of the basic regulations governing those individual ac-

tions.” Jbid. And in resolving a different question con-

cerning EPA’s statutory authority “to issue regulations

establishing effluent limitations for classes of plants,”

id. at 124, the Court explained that it would be “highly

anomalous” if the agency’s new-source regulations

“were directly reviewable in the Court of Appeals,” id.

at 127-128, while its existing-source standards “based

on the same administrative record were reviewable only

in the District Court,” id. at 128. The Court stated that

“(t]he magnitude and highly technical character of the

administrative record involved with these regulations

makes it almost inconceivable that Congress would have

required duplicate review in the first instance by differ-

ent courts.” Ibid.

Two years later, the Court in Crown Simpson again

construed Section 1369(b)(1) to avoid irrational dispari-

ties in the review of similar agency actions. The Court’s

holding that Section 1369(b)(1)(F) should be inter-

preted to reach not only EPA’s own issuance or denial

of a permit, but also the “functionally similar” step of

vetoing a state permit, rested on that point. 445 U.S. at

196. The Court explained that the court of appeals’ con-

trary approach was flawed because it would mean that

“fortuitous circumstance[s]”—there, whether a State

had been authorized to issue NPDES permits—would

control the “level[] of the federal-court system” at

which comparable actions were reviewed. /d. at 196-

197. The Court also noted that “the additional level of

judicial review” that would occur in the district courts

“would likely cause delays in resolving disputes under

the Act.” Jd. at 197. The Court concluded that,

“(albsent a far clearer expression of congressional in-

tent, we are unwilling to read the Act as creating such a

seemingly irrational bifurcated system.” Ibid.°

® In other statutory contexts as well, this Court has read compa-

rable jurisdictional provisions to avoid bifurcated review of related

agency actions. In Lindahl v. Office of Personnel Management,

470 U.S. 768 (1985), the Court held that a provision channeling cer-

tain Merit Systems Protection Board decisions to the Federal Cir-

cuit should be interpreted to encompass claims of retirees as well as

those of active employees because the interests favoring direct court

of appeals review were equally present for both classes of cases. See

id. at 796. The Court concluded that the jurisdictional provision re-

flected the intent “to abolish the needless practice of reviewing civil

service actions on the same criteria at two judicial levels.” /d. at

798. In light of that congressional policy choice, the Court saw no

reason why Congress would have intended one class of claims—

those of retirees—to “be reviewed for legal and procedural error

first by the Claims Court or a distriet court, and then all over again

by the Federal Circuit.” J/bid. Citing Crown Simpson, the Court

stated that it “cannot assume that Congress intended to create such

a bizarre jurisdictional patchwork.” Jd. at 799; see id. at 799 n.37.

The Court has relied on the same principle in construing the Atomic

Energy Act of 1954, 42 U.S.C. 2011 et seq., Florida Power & Light

Co. v. Lorion, 470 U.S. 729, 742 (1985) (avoiding “a seemingly irra-

tional bifurcated system” in which “some final orders in licensing

proceedings [would] receiv[e] two layers of judicial review and some

receive] only one”) (citation omitted), and the Immigration and Na-

tionality Act, 8 U.S.C. 1101 et seg., Foti v. Immigration & Natural-

ization Serv., 375 U.S. 217, 232 (1963) (construing statute to avoid

“(bjifurcation of judicial review of deportation proceedings”).

Petitioner’s reading of Section 1369(b)(1)(E) and (F)

would create the type of irrational bifurcation that the

Court in E.J. du Pont and Crown Simpson sought to

avoid. Petitioner would construe Section 1369(b)(1) as

vesting the courts of appeals with jurisdiction to review

EPA regulations setting numerical or qualitative efflu-

ent limitations, while authorizing district courts

throughout the country to review regulations governing

the same effluent limits’ geographic scope. That bifur-

cation would hinder regulated parties’ efforts to obtain

prompt clarification of their responsibilities under the

CWA. See Crown Simpson, 445 U.S. at 196 (noting that

Section 1369(b){1) is designed to facilitate speedy reso-

lution of the meaning of covered provisions); NRDC,

673 F.2d at 405 n.15 (Ginsburg, J.) (“National uni-

formity is an important goal in dealing with broad reg-

ulations.”).

A similar irrational bifurcation would result from

routing to the courts of appeals any “waters of the

United States” determinations that could be made in

the context of individual permitting decisions, see

33 U.S.C. 1369(b)(1)(F), while sending to the district

courts the rules that govern those permitting determi-

nations. See pp. 31-33, supra. That division would

produce “the truly perverse situation in which the court

of appeals would review numerous individual actions is-

suing or denying permits *** but would have no

power of direct review of the basic regulations govern-

ing those individual actions.” E#./. du Pont, 430 U.S. at

136. “Absent a far clearer expression of congressional

intent,” Section 1369(b) should not be read “as creating

such a seemingly irrational bifurcated system.” Crown

Simpson, 445 U.S. at 197.°

Petitioner makes no meaningful attempt to reconcile

its position with the interpretive principles set out in

EI. du Pont and Crown Simpson. Petitioner offers (Br.

50-55) several policy arguments regarding the value of

decentralized litigation, principally emphasizing the

“doctrinal diclogue that occurs when a court * * * ad-

dresses the legal reasoning of another and reaches a

contrary conclusion.” Pet. Br. 51 (citation omitted).

Those arguments do not explain the bifurcation that pe-

titioner’s approach would create. A Congress that

placed great weight on doctrinal dialogue might have

routed to district courts ali litigation concerning EPA’s

administration of the CWA. But petitioner offers no

reason why Congress would have distinguished for this

purpose between the numerical aspect of effluent limi-

tations and the geographic aspect of those limits.

® The different institutional competencies of trial and appellate

courts do not support that bifurcation. The Clean Water Rule—like

an effluent limitation—is “[a} broad, policy-oriented rule[],” NRDC,

673 F.2d at 405, that is reviewed without reliance on “(t|he factfind-

ing capacity of the district court,” Florida Power & Light Co., 470

U.S. at 744. Under petitioner’s approach, each district court where

suit has been filed—more than ten courts so far (Pet. Br. vi)—would

review an administrative record of more than 350,000 pages, 15-3751

C.A. Doe. 122 (Oct. 11, 2016), only to have that inquiry repeated by

any court of appeals to which an appeal was taken. See E./. du Pont,

430 U.S. at 128 (considering it “almost inconceivable” that Congress

in enacting Section 1369(b)(1) would have intended multiple courts

to engage in “duplicate review” of an extensive “and highly tech-

nical” administrative record); Florida Power & Light Co., 470 U.S.

at 744 (explaining that, when agency action is reviewed on an admin-

istrative record, “[pjlacing initial review in the district court * * *

ha[s] the negative effect ** * of requiring duplication of the iden-

tical task in the district court and in the court of appeals”).

Petitioner also suggests that this Court should es-

chew “functional” considerations altogether (Br. 45),

and simply treat Section 1369(b) as sweeping in an “odd

or arbitrary” collection of agency actions whose bound-

aries are “hard to fathom” (Br. 45-46). That proposal is

inconsistent with this Court’s decisions in Crown Simp-

son and E.J. du Pont, which treated functional consid-

erations as an important guide to interpreting Section

1369(b), and which have undergirded decades of deci-

sions in the lower courts. By treating as irrelevant the

structural and purposive considerations that courts

have heretofore used to resolve ambiguities in Section

1369(b)(1), petitioner’s approach would essentially ren-

der nugatory that substantial body of case law, and it

would hinder judicial efforts to resolve future jurisdic-

tional disputes in a consistent and principled fashion.

C. The CWA’s Legislative History Supports The Court Of

Appeals’ Assertion Of Jurisdiction To Review The

Clean Water Rule

1. The House and Senate debates that preceded Sec-

tion 1369(b)(1)’s enactment reflected an understanding

that the provision would generally govern the nation-

wide rules that EPA promulgated to implement the CWA.

Both the House and Senate versions of the bill appiied

to substantially the same basic list of agency actions—

a list that was virtually identical to the list that ap-

peared in Section 1369(b)(1) as enacted in 1972. Compare

CWA, Pub. L. No. 92-500, § 509(b)(1), 86 Stat. 892, with

H.R. 11896, 92d Cong., Ist Sess. § 509(b) (1971), and

S. 2770, 92d Cong., Ist Sess. § 509(b) (1971). The House

version would have routed review of the enumerated

agency actions to the district courts, while the Senate

version would have authorized review of some listed ac-

tions by the D.C. Circuit and others by regional courts of

peals. See ibid. In the reconciliation process, Con-

gress settled on an intermediate approach, under which

all enumerated EPA actions were made reviewable by

the regional circuits. Conference Report 147-148.

The Senate Report stated that Section 1369(b)(1)

would authorize expedited, centralized review of the

“requirements, standards and regulations” that EPA

established under the Act. Senate Report 84-85. It

explained that there were “uncertainties” under exist-

ing law about the availability of review for “administra-

tively developed and promulgated requirements, stand-

ards and regulations,” and that Section 1369 would

“specifically provide for such review within controlled

time periods” in particular appellate courts. bid. Sum-

marizing the provision, the Senate Report stated that

“(alny suit against a Federal standard” under the Act

would be routed to the D.C. Circuit, while “[s]uits for

review of a Section 402 permit” would be filed in “the

Court of Appeals for the appropriate circuit.” Jd. at 84.

Although the House version provided for review in

district courts, the House Report likewise described

proposed Section 1369(b)(1) as establishing a broadly

applicable framework for resolution of disputes con-

cerning EPA’s implementation of the Act. It stated

that, “with the number and complexity of administra-

tive determinations that [the Act] requires|,] there is a

need to establish a clear and orderly process for judicial

review.” House Report 136. It also spoke broadly of

Section 1369’s relationship to that goal, stating that

“Section [1369] will ensure that administrative actions

are reviewable, but that the review will not unduly im-

pede enforcement.” /bid.

The Conference Report confirmed that Congress un-

derstood Section 1369(b)(1) as broadly encompassing

rulemakings that would implement the Act’s limita-

tions. It described the Senate version as “requir[ing|

that any suit against a Federal standard” would be filed

in the D.C. Circuit, subject to the proviso that “[s]uits

for review of the Administrator’s action in approving or

promulgating any effluent limitation under section 301

or 302 or issuing or denying a permit under section 402

of this Act would have to be filed in the Court of Appeals

for the appropriate circuit.” Conference Report 147.

And it described the House version of the provision as

“basically the same * * * except that review of any of

the Administrator’s actions” would be conducted by dis-

trict courts. /bid. The Conference Report explained

that the conference version was “the same as the Senate

bill and the House amendment” except that, as relevant

here, “(judicial review is to be had in the circuit court

of appeals for the judicial district in which the inter-

ested person resides or transacts business, and the time

for application for judicial review is extended from 30 to

90 days.” Jd. at 147-148. The pertinent legislative Re-

ports all reflect an understanding of the judicial-review

provision that is not compatible with petitioner’s view,

under which the statute would provide for appellate re-

view of an “odd or arbitrary” (Pet. Br. 46) selection of

agency determinations, but not of closely related deter-

minations that play an equally integral role in imple-

menting the CWA.

To be sure, insofar as the Senate and Conference

Reports suggested that Section 1369(b)(1) encompasses

every nationwide regulation that the Administrator

issues under the CWA, their language was imprecise.

Subparagraphs (E) and (F) of Section 1369(b)(1) are

naturally read to cover regulations that construe and

implement the Act’s prohibition on unauthorized

pollutant discharges and its attendant NPDES permit-

ting program—vhe centerpieces of the Act. See, e.g.,

Middlesex Cnty. Sewerage Auth. v. National Sea

Clammers Ass’n, 453 U.S. 1, 11 (1981); NRDC, Inc. v.

U.S. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987). But Sec-

tion 1369(b)(1) does not authorize court of appeals re-

view of EPA regulations that implement some more pe-

ripheral CWA provisions, such as research programs,

33 U.S.C. 1251-1275 (2012 & Supp. III 2015); the fund-

ing of treatment facilities, 33 U.S.C. 1281-1301 (2012 &

Supp. II 2014); and grants to the States, 33 U.S.C. 1381-

1387 (2012 & Supp. II 2014).

The fact that the legislative Reports used imprecise

language, however, does not render them irrelevant to

the interpretive question presented here. A judicial-

review provision that excluded the Clean Water Rule,

which defines the geographic reach of the CWA’s core

provisions and thus of the NPDES permitting scheme,

could not even loosely be described as covering the “re-

quirements, standards and regulations” that EPA es-

tablishes under the Act, Senate Report 84-85, or as con-

ferring appellate jurisdiction over “any suit against a

Federal standard,” Conference Report 147. Nor can pe-

titioner’s view of the statute as dividing review of inter-

twined regulatory provisions between different levels of

the judicial system be reconciled with Congress’s stated

objective of establishing “a clear and orderly process

for judicial review” that was necessary in light of “the

number and complexity of administrative determina-

tions that [the Act] requires.” House Report 136.

2. The courts of appeals have understood this

Court’s decisions in Crown Simpson and E.J. du Pont

as giving “a practical rather than a cramped construc-

tion” to Section 1369(b)(1), and they have largely

applied the same functional analysis in resolving ambi-

guities in that judicial-review provision. NRDC,

673 F.2d at 405; see VE PCO, 566 F.2d at 450; Pet.

Br. 39; pp. 31-32, supra. In 1987, Congress amended

Section 1369(b)(1) without narrowing its scope. See Wa-

ter Quality Act of 1987, Pub. L. No. 100-4, Tits. ITI-V,

§§ 308(b), 406(d)(3), 505(a) and (b), 101 Stat. 39, 73, 75-

76.’ The fact that Congress amended Section 1369(b)(1)

after the framework of Crown Simpson and E./. du

Pont was in place, while giving no indication that it dis-

approved either the functional approach generally or its

specific application to rules that govern the CWA per-

mitting process, provides an additional justification for

adhering to that framework. See, e.g., Forest Grove

Sch. Dist. v. T.A., 557 U.S. 230, 239-240 (2009).

3. Petitioner relies in part (Br. 42-43) on Congress’s

decision not to enact a 1977 proposal to centralize re-

view under Section 1369(b)(1) in the D.C. Cireuit. In

fact, the debates over that proposal confirm Congress’s

understanding that Section 1369(b)(1) authorizes court

of appeals review of nationwide regulations, like the

Clean Water Rule, that govern the scope of effluent and

other limitations under the Act.

Petitioner relies (Br. 42) on the Senate’s rejection of

a floor amendment introduced by Senator Kennedy,

‘ The 1987 amendments to Section 1369(b)(1) made additional

EPA actions reviewable in the courts of appeals. Congress also add-

ed a new venue-selection procedure to Section 136%b) to address

situations in which challenges to an agency action were brought in

multiple courts of appeals. Water Quality Act of 1987, Pub. L. No.

100-4, Tits. ITI-V, §§ 308(b), 406(d)(3), 505(a) and (b), 101 Stat. 39,

73, 75-76.

which sought to implement a proposal of the Adminis-

trative Conference of the United States to centralize re-

view of nationwide CWA regulations in the D.C. Circuit.

41 Fed. Reg. 56,767 (Dec. 30, 1976); see 123 Cong. Rec.

26,756 (1977) (statement of Sen. Kennedy); id. at 26,760-

26,761 (same). The Administrative Conference ex-

plained that its proposal would move review of nation-

wide standards to the D.C. Circuit from the regional

circuits—not from the district courts. 41 Fed. Reg. at

56,767. Thus, the Administrative Conference described

Section 1369(b) as “provid[ing] that all standards prom-

ulgated under [the CWA] by the Environmental Protec-

tion Agency, including national standards, are to be re-

viewed in the United States Court of Appeals for a cir-

cuit in which the petitioner resides or transacts busi-

ness.” Jbid. The Administrative Conference recom-

mended that “{ajll national standards under the

[CWA]” should instead be reviewed in the D.C. Circuit,

while “all other regulations, standards, and determina-

tions that are reviewable in the court of appeals under

the [CWA] should be in the circuit containing the af-

fected state or facility.” Jbid.*

®* The Administrative Conference also described the statute as

containing provisions that were “ambiguous,” and recommended

that Section 1369(b) be amended to specifically mention several ad-

ditional types of EPA actions in order to “make clear that [they] are

reviewable in the courts of appeals.” 41 Fed. Reg. at 56,767-56,768

(addressing “[p]romulgation or approval of water-quality standards

under Section 303,” “[plromulgation of effluent guidelines under

section 304,” “[pjromulgation of regulations governing the dis-

charge of oil or hazardous substances under section 311(b),” and

“[pjromulgation of standards for marine sanitation devices under

Section 312 or determinations that a state may completely prohibit

the discharge from all vessels of any sewage under Section 312(f)”).

With respect to the proper forum for reviewing na-

tionwide EPA regulations governing the scope of the

CWA’s coverage, the debate concerning the proposed

amendment reflected the participating Senators’ un-

derstanding that the choice before them was not be-

tween circuit and district courts, but between the D.C.

Cireuit and the regional courts of appeals. Senator

Kennedy described his proposal as one that would “cen-

tralize judicial review of national regulations” in the

D.C. Circuit, because in the absence of such centraliza-

tion, “[t]he EPA has been forced to repeatedly litigate

the same issues in different circuits.” 123 Cong. Rec. at

26,754-26,755; see id. at 26,757 (“[W]hat we are having

is a proliferation of different cases in different circuits

around the country.”). Opponents of the amendment ar-

gued that EPA’s nationwide regulations should be re-

viewed in the regional courts of appeals. /d. at 26,758

(statement of Sen. Scott) (“[Slomeone who is affected

by a rule that has been made by the administrator

should not have to come to Washington to be heard on

the matter. We have our various judicial circuits, and I

think that is one of the reasons for having our circuits.

* * * [Y]ou should be able to go to the circuit court

within your own circuit in all instances.”); id. at 26,760

(statement of Sen. Stafford) (“I agree with the argu-

ment that this is not the time to take another step in

dismembering the U.S. circuit courts of appeal[s] in this

country by bringing another matter to Washington for

exclusive determination.”); see also ibid. (statement of

Sen. Randolph); id. at 26,759 (statement of Sen. Thur-

mond).

Indeed, even the lone floor statement that petitioner

invokes (see Br. 42-43) reflects the understanding that

nationwide regulations like the Clean Water Rule would

generally be reviewed in the circuit courts. Senator Do-

menici began with a general statement—quoted in part

by petitioner (ibid.)—that Congress should not “in bits

and picces, decide that the circuit court system in this

country has no validity,” including through such steps

as abolishing the circuit courts entirely, or “nickel and

dim[ing] the district courts of the United States out of

business.” 123 Cong. Rec. at 26,759. But when he

turned to the bill at hand, Senator Domenici made plain

that he also regarded the question before the Senate to

be whether nationwide CWA regulations like the Clean

Water Rule should be reviewed in regional circuits or in

the D.C. Circuit. Thus, Senator Domenici stated that

EPA’s support for the proposed legislation reflected

that the federal government did “not like how the circuit

courts have ruled on matters of national interest.” /bid.

He expressed the view that “[t]hese cases should be

heard in the circuit courts,” and that “there is just as

much justification to let it be the circuit court that has

California or look at the cases that have been filed and

see where most of the constituents come from and

choose the one that has had the most cases, and say that

circuit will have it.” /bid. No Senator argued, as a

ground for opposing Senator Kennedy’s amendment,

that review of such nationwide regulations should occur

in the district courts.

In sum, from Section 1369(b)(1)’s enactment onward,

Congress has understood that the provision would

sweep broadly. That history provides additional reason

that Subparagraph (E) should be given its full textual

sweep, applying to any rule that promulgates any limi-

tation under Section 1311. And it provides additional

reason that Subparagraph (F) should be construed

pragmatically, in accord with this Court’s approach in

Crown Simpson, to reach rules that control whether

EPA may issue an NPDES permit at all.

D. When Congress Has Authorized Direct Court Of

Appeals Review Of Federal Agency Action, Ambigui-

ties As To The Scope Of That Authorization Should Be

Resolved In Favor Of Broader Coverage

In Florida Power & Light Co., this Court addressed

the question whether statutory provisions authorizing

direct court of appeals review of certain Nuclear Regu-

latory Commission (NRC) decisions encompassed a

particular type of order. See 470 U.S. 729, 731, 734-735

(1985). The Court explained that, when such a direct-

review provision exists, “[aJbsent a firm indication that

Congress intended to locate initial APA review of

agency action in the district courts,” this Court “will not

presume that Congress intended to depart from the

sound policy of placing initial APA review in the courts

of appeals.” /d. at 745. Courts of appeals have accord-

ingly held that, “when there is a specific statutory grant

of jurisdiction to the courts of appeals, it should be con-

strued in favor of review by the court of appeals.”

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

see, e.g., General Elec. Uranium Mgmt. Corp. v. United

States Dep’t of Energy, 764 F.2d 896, 903 (D.C. Cir.

1985) (“[1}t frequently has been noted that, in adminis-

trative appeals, ‘where it is unclear whether review ju-

risdiction is in the district court or the court of appeals

*he ambiguity is resolved in favor of the latter.’”) (cita-

tion omitted); 33 Charles Alan Wright & Charles H.

Koch, Jr., Federal Practice and Procedure: Judicial

Review of Administrative Action § 8292 (2006).

Petitioner and respondents in support of petitioner

(Pet. Br. 48-50; State Resps. Br. 43-44, 47; Agrowstar

Resps. Br. 6; Waterkeeper Resps. Br. 18, 27, 36) argue

that Section 1369(b)(1) should instead be construed nar-

rowly to avoid due-process or rule-of-lenity concerns.

They emphasize the CWA’s directive that “[alction of

the Administrator with respect to which review could

have been obtained under [Section 1369(b)(1)] shall not

be subject to judicial review in any civil or criminal pro-

ceeding for enforcement.” 33 U.S.C. 1369(b)(2). They

argue that Section 1369(b)(1) should be construed nar-

rowly so as to reduce the range of challenges that de-

fendants in enforcement proceedings will be barred

from asserting.

This potential effect on future (hypothetical) en-

forcement proceedings does not justify narrowing Sec-

tion 1369(b)(1). See Harrison, 446 U.S. at 592 n.9 (re-

jecting parallel argument for narrow construction of the

provision for review of agency action in the courts of ap-

peals in the Clean Air Act, 42 U.S.C. 7401 et seg.). In

and of itself, direct court of appeals review of the Clean

Water Rule raises no conceivable due-process or rule-

of-lenity concern. Any such concern will arise, if at all,

only if and when the defendant in a future enforcement

proceeding argues that he cannot properly be denied

the opportunity to challenge an EPA rule on which the

enforcement action is based. As in Harrison, this Court

should give Section 1369(b)(1) the meaning that follows

from the statute’s text, structure, and purposes, and

leave the preclusion challenge of a possible future de-

fendant to “await another day.” 446 U.S. at 593 n.9.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

JEFFREY B. WALL

KEVIN S. MINOLI Acting Solicitor General

Acting General Counsel JEFFREY H. Woop

KARYN I. WENDELOWSKI Acting Assistant Attorney

Attorney General

United States Environmental MALCOLM L. STEWART

Protection Agency Deputy Solicitor General

EARL G. MATTHEWS RACHEL P. KOVNER

Acting General Counsel Assistant to the Solicitor

CRAIG R. SCHMAUDER General

General Counsel DAN >. DERTKE

Amy J. NA

eparnas q's Army ANDREW J. DOYLE

DAVID COOPER J. DAVID GUNTER II

Chief Counsel ROBERT J. LUNDMAN

DANIEL INKELAS MARTHA C. MANN

A JESSICA O’DONNELL

United States Army Corps Attorneys

of Engineers

JULY 2017

APPENDIX

1. 33 U.S.C. 1369(b) provides in pertinent part:

Administrative procedure and judicial review

(b) Review of Administrator’s actions; selection of

court; fees

(1) Review of the Administrator’s action (A) in

promulgating any standard of performance under sec-

tion 1316 of this title, (B) in making any determination

pursuant to section 1316(b)(1)(C) of this title, (C) in

promulgating any effluent standard, prohibition, or

pretreatment standard under section 1317 of this title,

(D) in making any determination as to a State permit

program submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent limitation

or other limitation under section 1311, 1812, 1316, or

1345 of this title, (F) in issuing or denying any permit

under section 1342 of this title, and (G) in promulgating

any individual control strategy under section 1314(/) of

this title, may be had by any interested person in the

Circuit Court of Appeals of the United States for the

Federal judicial district in which such person resides or

transacts business which is directly affected by such

action upon application by such person. Any 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.

(2) Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) of this subsection shall not be subject to

(la)

judicial review in any civil or criminal proceeding for

enforcement.

2. 383 U.S.C. 1311 provides:

Effluent limitations

(a) Ilegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 1828, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be

unlawful.

(b) Timetable for achievement of objectives

In order to carry out the objective of this chapter

there shall be achieved—

(1)(A) not later than July 1, 1977, effluent limi-

tations for point sources, other than publicly owned

treatment works, (i) which shall require the appli-

cation of the best practicable control technology

currently available as defined by the Administrator

pursuant to section 1314(b) of this title, or (ii) in the

case of a discharge into a publicly owned treatment

works which meets the requirements of subpara-

graph (B) of this paragraph, which shall require

compliance with any applicable pretreatment require-

ments and any requirements under section 1317 of

this title; and

(B) for publicly owned treatment works in exist-

ence on July 1, 1977, or approved pursuant to sec-

tion 1283 of this title prior to June 30, 1974 (for

which construction must be completed within four

years of approval), effluent limitations based upon

secondary treatment as defined by the Administra-

tor pursuant to section 1314(d)(1) of this title; or,

gent limitation, including those necessary to meet

water quality standards, treatment standards, or

schedules of compliance, established pursuant to

any State law or regulations (under authority pre-

served by section 1370 of this title) or any other

Federal law or regulation, or required to implement

any applicable water quality standard established

pursuant to this chapter.

(2)(A) for pollutants identified in subparagraphs

(C), (D), and (F) of this paragraph, effluent limita-

tions for categories and classes of point sources,

other than publicly owned treatment works, which

(i) shail require application of the best available

technology economically achievable for such cate-

gory or class, which will result in reasonable further

progress toward the national goal of eliminating the

discharge of all pollutants, as determined in accord-

ance with regulations issued by the Administrator

pursuant to section 1314(b)(2) of this title, which

such effluent limitations shall require the elimina-

tion of discharges of all pollutants if the Adminis-

trator finds, on the basis of information available to

him (including information developed pursuant to

section 1325 of this title), that such elimination is

technologically and economically achievable for a

category or class of point sources as determined in

accordance with regulations issued by the Adminis-

trator pursuant to section 1314(b)(2) of this title, or

(ii) in the case of the introduction of a pollutant into

a publicly owned treatment works which meets the

requirements of subparagraph (B) of this paragraph,

shall require compliance with any applicable pre-

treatment requirements and any other requirement

under section 1317 of this title;

(B) Repealed. Pub. L. 97-117, §21(b), Dec. 29,

1981, 95 Stat. 1632.

to in table 1 of Committee Print Numbered 95-30 of

the Committee on Public Works and Transportation

of the House of Representatives compliance with

effluent limitations in accordance with subpara-

graph (A) of this paragraph as expeditiously as

practicable but in no case later than three years af-

ter the date such limitations are promulgated under

section 1314(b) of this title, and in no case later than

March 31, 1989;

(D) for all toxic pollutants listed under para-

graph (1) of subsection (a) of section 1317 of this

title which are not referred to in subparagraph (C)

of this paragraph compliance with effluent limita-

tions in accordance with subparagraph (A) of this

paragraph as expeditiously as practicable, but in no

case later than three years after the date such limi-

tations are promulgated under section 1314(b) of

this title, and in no case later than March 31, 1989;

(E) . as expeditiously as practicable but in no

case later than three years after the date such limi-

tations are promulgated under section 1314(b) of

this title, and in no case later than March 31, 1989,

compliance with effluent limitations for categories

and classes of point sources, other than publicly

owned treatment works, which in the case of pollu-

tants identified pursuant to section 1314(a)(4) of

this title shall require application of the best con-

ventional pollutant control technology as deter-

mined in accordance with regulations issued by the

Administrator pursuant to section 1314(b)(4) of this

title; and

(F) for all pollutants (other than those subject

to subparagraphs (C), (D), or (E) of this paragraph)

compliance with effluent limitations in accordance

with subparagraph (A) of this paragraph as expedi-

tiously as practicable but in no case later than

3 years after the date such limitations are estab-

lished, and in no case later than March 31, 1989.

(3)(A) for effluent limitations under paragraph

(1)(A)() of this subsection promulgated after Janu-

ary 1, 1982, and requiring a level of control sub-

stantially greater or based on fundamentally dif-

ferent control technology than under permits for an

industrial category issued before such date, com-

pliance as expeditiously as practicable but in no

case later than three years after the date such limi-

tations are promulgated under section 1314(b) of

this title, and in no case later than March 31, 1989;

and

(B) for any effluent limitation in accordance with

paragraph (1)(A)(i), (2)(A)G), or (2)(E) of this sub-

section established only on the basis of section

1342(a)(1) of this title in a permit issued after Feb-

ruary 4, 1987, compliance as expeditiously as prac-

ticable but in no case later than three years after

the date such limitations are established, and in no

case later than March 31, 1989.

The Administrator may modify the requirements of

subsection (b)(2)(A) of this section with respect to any

point source for which a permit application is filed after

July 1, 1977, upon a showing by the owner or operator

of such point source satisfactory to the Administrator

that such modified requirements (1) will represent the

maximum use of technology within the economic capa-

bility of the owner or operator; and (2) will result in

reasonable further progress toward the elimination of

the discharge of pollutants.

(d) Review and revision of effluent limitations

Any effluent limitation required by paragraph (2) of

subsection (b) of this section shall be reviewed at least

every five years and, if appropriate, revised pursuant

to the procedure established under such paragraph.

(e) All point discharge source application of effluent

limitations

Effluent limitations established pursuant to this sec-

tion or section 1312 of this title shall be applied to all

point sources of discharge of pollutants in accordance

with the provisions of this chapter.

(f) Illegality of discharge of radiological, chemical, or

biological warfare agents, high-level radioactive

waste, or medical waste

Notwithstanding any other provisions of this chap-

ter it shall be unlawful to discharge any radiological,

chemical, or biological warfare agent, any high-level

radioactive waste, or any medical waste, into the navi-

gable waters.

(g) Modifications for certain nonconventional pollutants

(1) General authority

The Administrator, with the concurrence of the

State, may modify the requirements of subsection

(b)(2)(A) of this section with respect to the discharge

from any point source of ammonia, chlorine, color,

iron, and total phenols (4AAP) (when determined by

the Administrator to be a pollutant covered by sub-

section (b)(2)(F) of this section) and any other pollu-

tant which the Administrator lists under paragraph

(4) of this subsection.

(2) Requirements for granting modifications

A modification under this subsection shall be

granted only upon a showing by the owner or opera-

tor of a point source satisfactory to the Administra-

tor that—

(A) such modified requirements will result at

a minimum in compliance with the requirements

of subsection (b)(1)(A) or (C) of this section, which-

ever is applicable;

(B) such modified requirements will not re-

sult in any additional requirements on any other

point or nonpoint source; and

the attainment or maintenance of that water qual-

ity which shall assure protection of public water

supplies, and the protection and propagation of a

balanced population of shellfish, fish, and wildlife,

and allow recreational activities, in and on the

water and such modification will not result in the

discharge of pollutants in quantities which may

reasonably be anticipated to pose an unacceptable

risk to human health or the environment because

of bioaccumulation, persistency in the environ-

ment, acute toxicity, chronic toxicity (including

carcinogenicity, mutagenicity or teratogenicity),

or synergistic propensities.

(3) Limitation on authority to apply for subsection

If an owner or operator of a point source applies

for a modification under this subsection with respect

to the discharge of any pollutant, such owner or op-

erator shall be eligible to apply for modification un-

der subsection (c) of this section with respect to such

pollutant only during the same time period as he is

eligible to apply for a modification under this sub-

section.

(4) Procedures for listing additional pollutants

(A) General authority

Upon petition of any person, the Administrator

may add any pollutant to the list of pollutants for

which modification under this section is authorized

(except for pollutants identified pursuant to section

1314(a)(4) of this title, toxic pollutants subject to

section 1317(a) of this title, and the thermal compo-

nent of discharges) in accordance with the provisions

of this paragraph.

(B) Requirements for listing

(i) Sufficient information

The person petitioning for listing of an addi-

tional pollutant under this subsection shall

submit to the Administrator sufficient infor-

mation to make the determinations required by

this subparagraph.

(ii) Toxic criteria determination

The Administrator shall determine whether

or not the pollutant meets the criteria for list-

ing as a toxic pollutant under section 1317(a) of

this title.

(iii) Listing as toxic pollutant

If the Administrator determines that the

pollutant meets the criteria for listing as a toxic

pollutant under section 1317(a) of this title, the

Administrator shall list the pollutant as a toxic

pollutant under section 1317(a) of this title.

10a

(iv) Nonconventional criteria determination

If the Administrator determines that the

pollutant does not meet the criteria for listing

as a toxic pollutant under such section and de-

termines that adequate test methods and suffi-

cient data are available to make the determina-

tions required by paragraph (2) of this subsec-

tion with respect to the pollutant, the Adminis-

trator shall add the pollutant to the list of pol-

lutants specified in paragraph (1) of this sub-

section for which modifications are authorized

under this subsection.

A petition for listing of a pollutant under this

paragraph—

(i) must be filed not later than 270 days af-

ter the date of promulgation of an applicable ef-

fluent guideline under section 1314 of this title;

(ii) may be filed before promulgation of such

guideline; and

(iii) may be filed with an application for a

modification under paragraph (1) with respect

to the discharge of such pollutant.

(D) Deadline for approval of petition

A decision to add a pollutant to the list of pol-

lutants for which modifications under this subsec-

tion are authorized must be made within 270 days

after the date of promulgation of an applicable ef-

fluent guideline under section 1314 of this title.

lla

(E) Burden of proof

The burden of proof for making the determina-

tions under subparagraph (B) shall be on the peti-

tioner.

(5) Removal of pollutants

The Administrator may remove any pollutant

from the list of pollutants for which modifications

are authorized under this subsection if the Adminis-

trator determines that adequate test methods and

sufficient data are no longer available for determin-

ing whether or not modifications may be granted

with respect to such pollutant under paragraph (2) of

this subsection.

(h) Modification of secondary treatment requirements

The Administrator, with the concurrence of the

State, may issue a permit under section 1342 of this

title which modifies the requirements of subsection

(b)(1)(B) of this section with respect to the discharge of

any pollutant from a publicly owned treatment works

into marine waters, if the applicant demonstrates to the

satisfaction of the Administrator that—

(1) there is an applicable water quality standard

specific to the pollutant for which the modification is

requested, which has been identified under section

1314(a)(6) of this title;

(2) the discharge of pollutants in accordance with

such modified requirements will not interfere, alone

or in combination with pollutants from other sources,

with the attainment or maintenance of that water

quality which assures protection of public water

12a

supplies and the protection and propagation of a

balanced, indigenous population of shellfish, fish,

and wildlife, and allows recreational activities, in and

on the water;

(3) the applicant has established a system for

monitoring the impact of such discharge on a repre-

sentative sample of aquatic biota, to the extent prac-

ticable, and the scope of such monitoring is limited to

include only those scientific investigations which are

necessary to study the effects of the proposed dis-

charge;

(4) such modified requirements will not result in

any additional requirements on any other point or

nonpoint source;

(5) all applicable pretreatment requirements for

sources introducing waste into such treatment works

will be enforced;

(6) in the case of any treatment works serving a

population of 50,000 or more, with respect to any

toxic pollutant introduced into such works by an in-

dustrial discharger for which pollutant there is no

applicable pretreatment requirement in effect, sources

introducing waste into such works are in compliance

with all applicable pretreatment requirements, the

applicant will enforce such requirements, and the

applicant has in effect a pretreatment program

which, in combination with the treatment of dis-

charges from such works, removes the same amount

of such pollutant as would be removed if such works

were to apply secondary treatment to discharges and

13a

if such works had no pretreatment program with

respect to such pollutant;

(7) to the extent practicable, the applicant has

established a schedule of activities designed to elim-

inate the entrance of toxic pollutants from nonin-

dustrial sources into such treatment works;

(8) there will be no new or substantially increased

discharges from the point source of the pollutant to

which the modification applies above that volume of

discharge specified in the permit;

(9) the applicant at the time such modification

becomes effective will be discharging effluent which

has received at least primary or equivalent treat-

ment and which meets the criteria established under

section 1314(a)(1) of this title after initial mixing in

the waters surrounding or adjacent to the point at

which such effluent is discharged.

For the purposes of this subsection the phrase “the

discharge of any pollutant into marine waters” refers

to a discharge into deep waters of the territorial sea or

the waters of the contiguous zone, or into saline estua-

rine waters where there is strong tidal movement and

other hydrological and geological characteristics which

the Administrator determines necessary to allow com-

pliance with paragraph (2) of this subsection, and sec-

tion 1251(a)(2) of this title. For the purposes of para-

graph (9), “primary or equivalent treatment” means

treatment by screening, sedimentation, and skimming

adequate to remove at least 30 percent of the biological

oxygen demanding material and of the suspended sol-

ids in the treatment works influent, and disinfection,

l4a

where appropriate. A municipality which applies sec-

ondary treatment shall be eligible to receive a permit

pursuant to this subsection which modifies the require-

ments of subsection (b)(1)(B) of this section with re-

spect to the discharge of any pollutant from any treat-

ment works owned by such municipality into marine

waters. No permit issued under this subsection shall

authorize the discharge of sewage sludge into marine

waters. In order for a permit to be issued under this

subsection for the discharge of a pollutant into marine

waters, such marine waters must exhibit characteris-

tics assuring that water providing dilution does not

contain significant amounts of previously discharged

effluent from such treatment works. No permit issued

under this subsection shall authorize the discharge of

any pollutant into saline estuarine waters which at the

time of application do not support a balanced indige-

nous population of shellfish, fish and wildlife, or allow

recreation in and on the waters or which exhibit ambi-

ent water quality below applicable water quality stand-

ards adopted for the protection of public water sup-

plies, shellfish, fish and wildlife or recreational activi-

ties or such other standards necessary to assure sup-

port and protection of such uses. The prohibition

contained in the preceding sentence shall apply without

regard to the presence or absence of a causal relation-

ship between such characteristics and the applicant’s

current or proposed discharge. Notwithstanding any

other provisions of this subsection, no permit may be

issued under this subsection for discharge of a pollu-

tant into the New York Bight Apex consisting of

the ocean waters of the Atlantic Ocean westward of

l5a

73 degrees 30 minutes west longitude and northward of

40 degrees 10 minutes north latitude.

(i) Municipal time extensions

(1) Where construction is required in order for

a planned or existing publicly owned treatment works

to achieve limitations under subsection (b)(1)(B) or

(b)(1)(C) of this section, but (A) construction cannot be

completed within the time required in such subsection,

or (B) the United States has failed to make financial

assistance under this chapter available in time to

achieve such limitations by the time specified in such

subsection, the owner or operator of such treatment

works may request the Administrator (or if appropri-

ate the State) to issue a permit pursuant to section

1342 of this title or to modify a permit issued pursuant

to that section to extend such time for compliance.

Any such request shall be filed with the Administrator

(or if appropriate the State) within 180 days after

February 4, 1987. The Administrator (or if appropri-

ate the State) may grant such request and issue or

modify such a permit, which shall contain a schedule of

compliance for the publicly owned treatment works

based on the earliest date by which such financial as-

sistance will be available from the United States and

construction can be completed, but in no event later

than July 1, 1988, and shall contain such other terms

and conditions, including those necessary to carry out

subsections (b) through (g) of section 1281 of this title,

section 1317 of this title, and such interim effluent

limitations applicable to that treatment works as the

Administrator determines are necessary to carry out

the provisions of this chapter.

16a

(2)(A) Where a point source (other than a publicly

owned treatment works) will not achieve the require-

ments of subsections (b)(1)(A) and (b)(1)(C) of this

section and—

(i) if a permit issued prior to July 1, 1977, to

such point source is based upon a discharge into a

publicly owned treatment works; or

(ii) if such point source (other than a publicly

owned treatment works) had before July 1, 1977, a

contract (enforceable against such point source) to

discharge into a publicly owned treatment works; or

(iii) if either an application made before July 1,

1977, for a construction grant under this chapter for

a publicly owned treatment works, or engineering or

architectural plans or working drawings made be-

fore July 1, 1977, for a publicly owned treatment

works, show that such point source was to discharge

into such publicly owned treatment works,

and such publicly owned treatment works is presently

unable to accept such discharge without construction,

and in the case of a discharge to an existing publicly

owned treatment works, such treatment works has an

extension pursuant to paragraph (1) of this subsection,

the owner or operator of such point source may request

the Administrator (or if appropriate the State) to issue

or modify such a permit pursuant to such section 1342

of this title to extend such time for compliance. Any

such request shall be filed with the Administrator (or if

appropriate the State) within 180 days after December

27, 1977, or the filing of a request by the appropriate

publicly owned treatment works under paragraph (1) of

17a

this subsection, whichever is later. If the Administra-

tor (or if appropriate the State) finds that the owner or

operator of such point source has acted in good faith,

he may grant such request and issue or modify such a

permit, which shall contain a schedule of compliance for

the point source to achieve the requirements of subsec-

tions (b)(1)(A) and (C) of this section and shall contain

such other terms and conditions, including pretreat-

ment and interim effluent limitations and water con-

servation requirements applicable to that point source,

as the Administrator determines are necessary to carry

out the provisions of this chapter.

(B) No time modification granted by the Adminis-

trator (or if appropriate the State) pursuant to para-

graph (2)(A) of this subsection shall extend beyond the

earliest date practicable for compliance or beyond the

date of any extension granted to the appropriate pub-

licly owned treatment works pursuant to paragraph (1)

of this subsection, but in no event shall it extend be-

yond July 1, 1988; and no such time modification shall

be granted unless (i) the publicly owned treatment

works will be in operation and available to the point

source before July 1, 1988, and will meet the require-

ments of subsections (b)(1)(B) and (C) of this section

after receiving the discharge from that point source;

and (ii) the point source and the publicly owned treat-

ment works have entered into an enforceable contract

requiring the point source to discharge into the public-

ly owned treatment works, the owner or operator of

such point source to pay the costs required under sec-

tion 1284 of this title, and the publicly owned treatment

works to accept the discharge from the point source;

18a

and (iii) the permit for such point source requires that

point source to meet all requirements under section

1317(a) and (b) of this title during the period of such

time modification.

(j) Modification procedures

(1) Any application filed under this section for a

modification of the provisions of—

(A) subsection (b)(1)(B) of this section under

subsection (h) of this section shall be filed not later

that’ the 365th day which begins after December 29,

1981, except that a publicly owned treatment works

which prior to December 31, 1982, had a contractual

arrangement to use a portion of the capacity of an

ocean outfall operated by another publicly owned

treatment works which has applied for or received

modification under subsection (h) of this section,

may apply for a modification of subsection (h) of this

section in its own right not later than 30 days after

February 4, 1987, and except as provided in para-

graph (5);

(B) subsection (b)(2)(A) of this section as it ap-

plies to pollutants identified in subsection (b)(2)(F)

of this section shall be filed not later than 270 days

after the date of promulgation of an applicable efflu-

ent guideline under section 1314 of this title or not

later than 270 days after December 27, 1977, which-

ever is later.

(2) Subject to paragraph (3) of this section, any

application for a modification filed under subsection (g)

' So in original. Probably should be “than”.

19a

of this section shall not operate to stay any require-

ment under this chapter, unless in the judgment of the

Administrator such a stay or the modification sought

will not result in the discharge of pollutants in quanti-

ties which may reasonably be anticipated to pose an

unacceptable risk to human health or the environment

because of bioaccumulation, persistency in the environ-

ment, acute toxicity, chronic toxicity (including car-

cinogenicity, mutagenicity, or teratogenicity), or syn-

ergistic propensities, and that there is a substantial

likelihood that the applicant will succeed on the merits

of such application. In the case of an application filed

under subsection (g) of this section, the Administrator

may condition any stay granted under this paragraph

on requiring the filing of a bond or other appropriate

security to assure timely compliance with the require-

ments from which a modification is sought.

(3) COMPLIANCE REQUIREMENTS UNDER SUBSEC-

TION (g).—

(A) EFFECT OF FILING.—An application for a

modification under subsection (g) of this section and

a petition for listing of a pollutant as a pollutant for

which modifications are authorized under such sub-

section shall not stay the requirement that the per-

son seeking such modification or listing comply with

effluent limitations under this chapter for all pollu-

tants not the subject of such application or petition.

(B) EFFECT OF DISAPPROVAL.—Disapproval of an

application for a modification under subsection (g) of

this section shall not stay the requirement that the

person seeking such modification comply with all

applicable effluent limitations under this chapter.

20a

(4) DEADLINE FOR SUBSECTION (g) DECISION.—An

application for a modification with respect to a pollu-

tant filed under subsection (g) of this section must hc

approved or disapproved not later than 365 days after

the date of such filing; except that in any case in which

a petition for listing such pollutant as a pollutant for

which modifications are authorized under such subsec-

tion is approved, such application must be approved or

disapproved not later than 365 days after the date of

approval! of such petition.

(5) EXTENSION OF APPLICATION DEADLINE.—

(A) IN GENERAL.—In the 180-day period begin-

ning on October 31, 1994, the city of San Diego, Cal-

ifornia, may apply for a modification pursuant to

subsection (h) of this section of the requirements of

subsection (b)(1)(B) of this section with respect to

biological oxygen demand and total suspended solids

in the effluent discharged into marine waters.

(B) APPLICATION.—An application under this

paragraph shall include a commitment by the appli-

cant to implement a waste water reclamation pro-

gram that, at a minimum, will—

(i) achieve a system capacity of 45,000,000

gallons of reclaimed waste water per day by Jan-

uary 1, 2010; and

(ii) result in a reduction in the quantity of

suspended solids discharged by the applicant into

the marine environment during the period of the

modification.

Zla

tor may not grant a modification pursuant to an ap-

plication submitted under this paragraph unless the

Administrator determines that such modification will

result in removal of not less than 58 percent of the

biological oxygen demand (on an annual average)

and not less than 80 percent of total suspended sol-

ids (on a monthly average) in the discharge to which

the application applies.

(D) PRELIMINARY DECISION DEADLINE.—The

Administrator shall announce a preliminary decision

on an application submitted under this paragraph

not later than 1 year after the date the application is

submitted.

(k) Innovative technology

In the case of any facility subject to a permit under

section 1342 of this title which proposes to comply with

the requirements of subsection (b)(2)(A) or (b)(2)(E) of

this section by replacing existing production capacity

with an innovative production process which will result

in an effluent reduction significantly greater than that

required by the limitation otherwise applicable to such

facility and moves toward the national goal of elimi-

nating the discharge of all pollutants, or with the in-

stallation of an innovative control technique that has a

substantial likelihood for enabling the facility to comply

with the applicable effluent limitation by achieving a

significantly greater effluent reduction than that re-

quired by the applicable effluent limitation and moves

toward the national! goal of eliminating the discharge of

all pollutants, or by achieving the required reduction

with an innovative system that has the potential for

22a

significantly lower costs than the systems which have

been determined by the Administrator to be economi-

cally achievable, the Administrator (or the State with

an approved program under section 1342 of this title, in

consultation with the Administrator) may establish a

date for compliance under subsection (b)(2)(A) or

(b)(2)(E) of this section no later than two years after

the date for compliance with such effluent limitation

which would otherwise be applicable under such sub-

section, if it is also determined that such innovative

system has the potential for industrywide application.

(1) Toxic pollutants

Other than as provided in subsection (n) of this sec-

tion, the Administrator may not modify any require-

ment of this section as it applies to any specific pollu-

tant which is on the toxic pollutant list under section

1317(a)(1) of this title.

(m) Modification of effluent limitation requirements

for point sources

(1) The Administrator, with the concurrence of

the State, may issue a permit under section 1342 of this

title which modifies the requirements of subsections

(b)(1)(A) and (b)(2)(E) of this section, and of section

1348 of this title, with respect to effluent limitations to

the extent such limitations relate to biochemical oxygen

demand and pH from discharges by an industrial dis-

charger in such State into deep waters of the territorial

seas, if the applicant demonstrates and ‘he Adminis-

trator finds that—

(A) the facility for which modification is sought

is covered at the time of the enactment of this sub-

23a

section by National Pollutant Discharge Elimination

System permit number CA0005894 or CA0005282;

(B) the energy and environmental costs of meet-

ing such requirements of subsections (b)(1)(A) and

(b)(2)(E) of this section and section 1343 of this title

exceed by an unreasonable amount the benefits to be

obtained, including the objectives of this chapter;

monitoring the impact of such discharges on a rep-

resentative sample of aquatic biota;

(D) such modified requirements will not result

in any additional requirements on any other point or

nonpoint source;

(E) there will be no new or substantially in-

creased discharges from the point source of the pol-

lutant to which the modification applies above that

volume of discharge specified in the permit;

(F) the discharge is into waters where there is

strong tidal movement and other hydrological and

geological characteristics which are necessary to al-

low compliance with this subsection and section

1251(a)(2) of this title;

(G) the applicant accepts as a condition to the

permit a contractural’ obligation to use funds in the

amount required (but not less than $250,000 per year

for ten years) for research and development of water

pollution control technology, including but not lim-

ited to closed cycle technology;

2 So in original. Probably should be “contractual”.

24a

(H) the facts and circumstances present a

unique situation which, if relief is granted, will not

establish a precedent or the relaxation of the re-

quirements of this chapter applicable to similarly

situated discharges; and

(1) no owner or operator of a facility compara-

ble to that of the applicant situated in the United

States has demonstrated that it would be put at a

competitive disadvantage to the applicant (or the

parent company or any subsidiary thereof) as a re-

sult of the issuance of a permit under this subsec-

tion.

(2) The effluent limitations established under a

permit issued under paragraph (1) shall be sufficient to

implement the applicable State water quality stand-

ards, to assure the protection of public water supplies

and protection and propagation of a balanced, indige-

nous population of shellfish, fish, fauna, wildlife, and

other aquatic organisms, and to allow recreational acti-

vities in and on the water. In setting such limitations,

the Administrator shall take into account any seasonal

variations and the need for an adequate margin of

safety, considering the lack of essential knowledge

concerning the relationship between effluent limita-

‘tons and water quality and the lack of essential know-

ledge of the effects of discharges on beneficial uses of

the receiving waters.

(3) A permit under this subsection may be issued

for a period not to exceed five years, and such a permit

may be renewed for one additional period not to exceed

five years upon a demonstration by the applicant and a

finding by the Administrator at the time of application

25a

for any such renewal that the provisions of this subsec-

tion are met.

(4) The Administrator may terminate a permit is-

sued under this subsection if the Administrator deter-

mines that there has been a decline in ambient water

quality of the receiving waters during the period of the

permit even if a direct cause and effect relationship

cannot be shown: Provided, That if the effluent from

a source with a permit issued under this subsection is

contributing to a decline in ambient water quality of

the receiving waters, the Administrator shall terminate

such permit.

(n) Fundamentally different factors

(1) General rule

The Administrator, with the concurrence of the

State, may establish an alternative requirement under

subsection (b)(2) of this section or section 1317(b) of

this title for a facility that modifies the requirements

of national effluent limitation guidelines or categor-

ical pretreatment standards that would otherwise be

applicable to such facility, if the owner or operator of

such facility demonstrates to the satisfaction of the

Administrator that—

(A) _ the facility is fundamentally different with

respect to the factors (other than cost) specified

in section 1314(b) or 1314(g) of this title and con-

sidered by the Administrator in establishing such

national] effluent limitation guidelines or categor-

ical pretreatment standards;

26a

(B) the application—

(i) is based solely on information and sup-

porting data submitted to the Administrator

during the rulemaking for establishment of the

applicable national effluent limitation guide-

lines or categorical pretreatment standard spe-

cifically raising the factors that are fundamen-

tally different for such facility; or

(ii) is based on information and support-

ing data referred to in clause (i) and infor-

mation and supporting data the applicant did

not have a reasonable opportunity to submit

during such rulemaking;

stringent than justified by the fundamental dif-

ference; and

(D) the alternative requirement will not re-

sult in a non-water quality environmental impact

which is markedly more adverse than the impact

considered by the Administrator in establishing

such national effluent limitation guideline or cat-

egorical pretreatment standard.

(2) Time limit for applications

An application for an alternative requirement

which modifies the requirements of an effluent limi-

tation or pretreatment standard under this subsec-

tion must be submitted to the Administrator within

180 days after the date on which such limitation or

standard is established or revised, as the case may

be.

27a

(3) Time limit for decision

The Auministrator shall approve or deny by final

agency action an application submitted under this

subsection within 180 days after the date such appli-

cation is filed with the Administrator.

(4) Submission of information

The Administrator may allow an applicant under

this subsection to submit information and supporting

data until the earlier of the date the application is

approved or denied or the last day that the Admin-

istrator has to approve or deny such application.

(5) Treatment of pending applications

For the purposes of this subsection, an application

for an alternative requirement based on fundamen-

tally different factors which is pending on February

4, 1987, shall be treated as having been submitted to

the Administrator on the 180th day following Feb-

ruary 4, 1987. The applicant may amend the appli-

cation to take into account the provisions of this

subsection.

(6) Effect of submission of application

An application for an alternative requirement un-

der this subsection shall not stay the applicant’s obli-

gation to comply with the effluent limitation guide-

line or categorical pretreatment standard which is

the subject of the application.

(7) Effect of denial

If an application for an alternative requirement

which modifies the requirements of an effluent limi-

28a

tation or pretreatment standard under this subsec-

tion is denied by the Administrator, the applicant

must comply with such limitation or standard as es-

tablished or revised, as the case may be.

(8) Reports

By January 1, 1997, and January 1 of every odd-

numbered year thereafter, the Administrator shall

submit to the Committee on Environment and Public

Works of the Senate and the Committee on Trans-

portation and Infrastructure of the House of Repre-

sentatives a report on the status of applications for

alternative requirements which modify the require-

ments of effluent limitations under section 1311 or

1314 of this title or any national categorical pre-

treatment standard under section 1317(b) of this title

filed before, on, or after February 4, 1987.

(0) Application fees

The Administrator shall prescribe and collect from

each applicant fees reflecting the reasonable adminis-

trative costs incurred in reviewing and processing

applications for modifications submitted to the Admin-

istrator pursuant to subsections (c), (g), (i), (k), (m),

and (n) of this section, section 1314(d)(4) of this title,

and section 1326(a) of this title. All amounts collected

by the Administrator under this subsection shall be

deposited into a special fund of the Treasury entitled

“Water Permits and Related Services” which shall

thereafter be available for appropriation to carry out

activities of the Environmental Protection Agency for

which such fees were collected.

29a

(p) Modified permit for coal remining operations

(1) In general

Subject to paragraphs (2) through (4) of this sub-

section, the Administrator, or the State in any case

which the State has an approved permit program

under section 1342(b) of this title, may issue a permit

under section 1342 of this title which modifies the

requirements of subsection (b)(2)(A) of this section

with respect to the pH level of any pre-existing dis-

charge, and with respect to pre-existing discharges

of iron and manganese from the remined area of any

coal remining operation or with respect to the pH

level or level of iron or manganese in any

pre-existing discharge affected by the remining op-

eration. Such modified requirements shall apply

the best available technology economically achieva-

ble on a case-by-case basis, using best professional

judgment, to set specific numerical effluent limita-

tions in each permit.

(2) Limitations

The Administrator or the State may only issue a

permit pursuant to paragraph (1) if the applicant

demonstrates to the satisfaction of the Administra-

tor or the State, as the case may be, that the coal

remining operation will result in the potential for

improved water quality from the remining operation

but in no event shall such a permit allow the pH level

of any discharge, and in no event shall such a permit

allow the discharges of iron and manganese, to ex-

ceed the levels being discharged from the remined

area before the coal remining operation begins. No

30a

discharge from, or affected by, the remining opera-

tion shall exceed State water quality standards esta-

blished under section 1313 of this title.

(3) Definitions

For purposes of this subsection—

(A) Coal remining operation

The term “coal remining operation” means a

coal mining operation which begins after Febru-

ary 4, 1987 at a site on which coal mining was

conducted before August 3, 1977.

(B) Remined area

The term “remined area” means only that area

of any coal remining operation on which coal min-

ing was conducted before August 3, 1977.

The term “pre-existing discharge” means any

discharge at the time of permit application under

this subsection.

(4) Applicability of strip mining laws

Nothing in this subsection shall affect the applica-

tion of the Surface Mining Control and Reclamation

Act of 1977 [80 U.S.C. 1201 et seq.] to any coal

remining operation, including the application of such

Act to suspended solids.

dla

3. 33 U.S.C. 1342(a) provides:

National pollutant discharge elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity for

public hearing issue a permit for the discharge of any

pollutant, or combination of pollutants, notwithstanding

section 1311(a) of this title, upon condition that such

discharge will meet either (A) all applicable require-

ments under sections 1311, 1312, 1316, 1317, 1318, and

1343 of this title, or (B) prior to the taking of necessary

implementing actions relating to all such requirements,

such conditions as the Administrator determines are

necessary to carry out the provisions of this chapter.

(2) The Administrator shall prescribe conditions for

such permits to assure compliance with the require-

ments of paragraph (1) of this subsection, including

conditions on data and information collection, reporting,

and such other requirements as he deems appropriate.

(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued

thereunder, shall be subject to the same terms, condi-

tions, and requirements as apply to a State permit

program and permits issued thereunder under subsec-

tion (b) of this section.

(4) All permits for discharges into the navigable

waters issued pursuant to section 407 of this title shall

be deemed to be permits issued under this subchapter,

and permits issued under this subchapter shall be

deemed to be permits issued under section 407 of this

32a

title, and shall continue in force and effect for their term

unless revoked, modified, or suspended in accordance

with the provisions of this chapter.

(5) No permit for a discharge into the navigable

waters shall be issued under section 407 of this title

after October 18, 1972. Each application for a permit

under section 407 of this title, pending on October 18,

1972, shall be deemed to be an application for a permit

under this section. The Administrator shall authorize

a State, which he determines has the capability of ad-

ministering a permit program which will carry out the

objectives of this chapter to issue permits for dis-

charges into the navigable waters within the jurisdic-

tion of such State. The Administrator may exercise the

authority granted him by the preceding sentence only

during the period which begins on October 18, 1972, and

ends either on the ninetieth day after the date of the

first promulgation of guidelines required by section

1314(i)(2) of this title, or the date of approval by the

Administrator of a permit program for such State under

subsection (b) of this section, whichever date first oc-

curs, and no such authorization to a State shall extend

beyond the last day of such period. Each such permit

shall be subject to such conditions as the Administrator

determines are necessary to carry out the provisions of

this chapter. No such permit shall issue if the Admin-

istrator objects to such issuance.

33a

4. 33 U.S.C. 1362 provides in pertinent part:

Definitions

Except as otherwise specifically provided, when used

in this chapter:

+> *+ &*+ * *

(7) The term “navigable waters” means the waters

of the United States, including the territorial seas.

x «=~ & & *

(11) The term “effluent limitation” means any re-

striction established by a State or the Administrator on

quantities, rates, and concentrations of chemical, phys-

ical, biological, and other constituents which are dis-

charged from point sources into navigable waters, the

waters of the contiguous zone, or the ocean, including

schedules of compliance.

(12) The term “discharge of a pollutant” and the

term “discharge of pollutants” each means (A) any

addition of any pollutant to navigable waters from any

point source, (B) any addition of any pollutant to the

waters of the contiguous zone or the ocean from any

point source other than a vessel or other floating craft.

34a

5. 33 C.F.R. 328.3, as amended by the Clean Water

Rule, provides:

Definitions.

For the purpose of this regulation these terms are

defined as follows:

(a) For purposes of the Clean Water Act, 33 U.S.C.

1251 et seg. and its implementing regulations, subject to

the exclusions in paragraph (b) of this section, the term

“waters of the United States” means:

(1) All waters which are currently used, were used

in the past, or may be susceptible to use in interstate or

foreign commerce, including all waters which are sub-

ject to the ebb and flow of the tide;

(2) All interstate waters, including interstate

wetlands;

(3) The territorial seas;

(4) All impoundments of waters otherwise identi-

fied as waters of the United States under this section;

(5) All tributaries, as defined in paragraph (c)(3) of

this section, of waters identified in paragraphs (a)(1)

through (3) of this section;

(6) All waters adjacent to a water identified in

paragraphs (a)(1) through (5) of this section, including

wetlands, ponds, lakes, oxbows, impoundments, and

similar waters;

(7) All waters in paragraphs (a)(7)(i) through (v) of

this section where they are determined, on a case-

specific basis, to have a significant nexus to a water

identified in paragraphs (a)(1) through (3) of this sec-

35a

tion. The waters identified in each of paragraphs

(a)(7)(i) through (v) of this section are similarly situated

and shall be combined, for purposes of a significant

nexus analysis, in the watershed that drains to the

nearest water identified in paragraphs (a)(1) through

(3) of this section. Waters identified in this paragraph

shall not be combined with waters identified in para-

graph (a)(6) of this section when performing a signifi-

cant nexus analysis. If waters identified in this para-

graph are also an adjacent water under paragraph

(a)(6), they are an adjacent water and no case-specific

significant nexus analysis is required.

(i) Prairie potholes. Prairie potholes are a com-

plex of glacially formed wetlands, usually occurring in

depressions that lack permanent natural outlets, loca-

ted in the upper Midwest.

(ii) Carolina bays and Delmarva bays. Carolina

bays and Delmarva bays are ponded, depressional wet-

lands that occur along the Atlantic coastal plain.

(iii) Pocosins. Pocosins are evergreen shrub and

tree dominated wetlands found predominantly along the

Central Atlantic coastal plain.

(iv) Western vernal pools. Western vernal pools

are seasonal wetlands located in parts of California and

associated with topographic depression, soils with poor

drainage, mild, wet winters and hot, dry summers.

(v) Texas coastal prairie wetlands. Texas coastal

prairie wetlands are freshwater wetlands that occur as

a mosaic of depressions, ridges, intermound flats, and

mima mound wetlands located along the Texas Gulf

Coast.

36a

(8) All waters located within the 100-year flood-

plain of a water identified in paragraphs (a)(1) through

(3) of this section and all waters located within 4,000 feet

of the high tide line or ordinary high water mark of a

water identified in paragraphs (a)(1) through (5) of this

section where they are determined on a case-specific

basis to have a significant nexus to a water identified in

paragraphs (a1) through (3) of this section. For wa-

ters determined to have a significant nexus, the entire

water is a water of the United States if a portion is

located within the 100-year floodplain of a water identi-

fied in paragraphs (a)(1) through (3) of this section or

within 4,000 feet of the high tide line or ordinary high

water mark. Waters identified in this paragraph shall

not be combined with waters identified in paragraph

(aXG) of this section when performing a significant

nexus analysis. If waters identified in this paragraph

are also an adjacent water under paragraph (a)(6), they

are an adjacent water and no case-specific significant

nexus analysis is required.

(b) The following are not “waters of the United

States” even where they otherwise meet the terms of

paragraphs (a)(4) through (8) of this section.

(1) Waste treatment systems, including treatment

ponds or lagoons designed to meet the requirements of

the Clean Water Act.

(2) Prior converted cropland. Notwithstanding the

determination of an area’s status as prior converted

cropland by any other Federal agency, for the purposes

of the Clean Water Act, the final authority regarding

Clean Water Act jurisdiction remains with EPA.

37a

(3) The following ditches:

(i) Ditches with ephemeral flow that are not a re-

located tributary or excavated in a tributary.

(ii) Ditches with intermittent flow that are not a

relocated tributary, excavated in a tributary, or drain

wetlands.

(iii) Ditches that do not flow, either directly or

through another water, into a water identified in para-

graphs (a)(1) through (3) of this section.

(4) The following features:

(i) Artificially irrigated areas that would revert to

dry land should application of water to that area cease;

(ii) Artificial, constructed lakes and ponds created

in dry land such as farm and stock watering ponds,

irrigation ponds, settling basins, fields flooded for rice

growing, log cleaning ponds, or cooling ponds;

(iii) Artificial reflecting pools or swimming pools

created in dry land;

(iv) Small ornamental waters created in dry land;

(v) Water-filled depressions created in dry land

incidental to mining or construction activity, including

pits excavated for obtaining fill, sand, or gravel that fill

with water;

(vi) Erosional features, including gullies, rills, and

ot: er ephemeral features that do not meet the defini-

tion of tributary, non-wetland swales, and lawfully

constructed grassed waterways; and

(vii) Puddles.

38a

(5) Groundwater, including groundwater drained

through subsurface drainage systems.

(6) Stormwater control features constructed to

convey, treat, or store stormwater that are created in

dry land.

(7) Wastewater recycling structures constructed

in dry land; detention and retention basins built for

wastewater recycling; groundwater recharge basins;

percolation ponds built for wastewater recycling; and

water distributary structures built for wastewater

recycling.

definitions apply:

(1) Adjacent. The term adjacent means border-

ing, contiguous, or neighboring a water identified in

paragraphs (a)(1) through (5) of this section, including

waters separated by constructed dikes or barriers,

natural river berms, beach dunes, and the like. For

purposes of adjacency, an open water such as a pond or

lake includes any wetlands within or abutting its ordi-

nary high water mark. Adjacency is not limited to

waters located laterally to a water identified in para-

graphs (a)(1) through (5) of this section. Adjacent

waters also include all waters that connect segments of

a water identified in paragraphs (a)(1) through (5) or

are located at the head of a water identified in para-

graphs (a)(1) through (5) of this section and are bor-

dering, contiguous, or neighboring such water. Waters

being used for established normal farming, ranching,

and silviculture activities (83 U.S.C. 1344(f)) are not

adjacent.

39a

(2) Neighboring. The term neighboring means:

(i) All waters located within 100 feet of the ordi-

nary high water mark of a water identified in para-

graphs (a)(1) through (5) of this section. The entire

water is neighboring if a portion is located within 100

feet of the ordinary high water mark;

(ii) All waters located within the 100-year flood-

plain of a water identified in paragraphs (a)(1) through

(5) of this section and not more than 1,500 feet from the

ordinary high water mark of such water. The entire

water is neighboring if a portion is located within 1,500

feet of the ordinary high water mark and within the

100-year floodplain;

(iii) All waters located within 1,500 feet of the high

tide line of a water identified in paragraphs (a)(1) or

(a)(3) of this section, and all waters within 1,500 feet of

the ordinary high water mark of the Great Lakes. The

entire water is neighboring if a portion is located within

1,500 feet of the high tide line or within 1,500 feet of the

ordinary high water mark of the Great Lakes.

(3) Tributary and tributaries. The terms tribu-

tary and tributaries each mean a water that contributes

flow, either directly or through another water (includ-

ing an impoundment identified in paragraph (a)(4) of

this section), to a water identified in paragraphs (a)(1)

through (3) of this section that is characterized hy the

presence of the physical indicators of a bed and banks

and an ordinary high water mark. These physical in-

dicators demonstrate there is volume, frequency, and

duration of flow sufficient to create a bed and banks and

an ordinary high water mark, and thus to qualify as a

40a

tributary. A tributary can be a natural, man-altered,

or man-made water and includes waters such as rivers,

streams, canals, and ditches not excluded under para-

graph (b) of this section. A water that otherwise qual-

ifies as a tributary under this definition does not lose its

status as a tributary if, for any length, there are one or

more constructed breaks (such as bridges, culverts,

pipes, or dams), or one or more natural breaks (such as

wetlands along the run of a stream, debris piles, boulder

fields, or a stream that flows underground) so long as a

bed and banks and an ordinary high water mark can be

identified upstream of the break. A water tha

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