Nos. 11-338 and 11-347

In the Supreme Court of the United States

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General 

ETHAN G. SHENKMAN

Deputy Assistant Attorney

General

PRATIK A. SHAH

Assistant to the Solicitor

General 

JUDY B. HARVEY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding

that a suit in which liability depends on the interpretation of Clean Water Act (CWA) regulations, and in

which the court rejected the construction of the regulations proffered by the Environmental Protection Agency

(EPA), may be adjudicated under the CWA’s citizen-suit

provision, 33 U.S.C. 1365(a), rather than under the

CWA’s judicial-review provision, 33 U.S.C. 1369(b).

2. Whether the court of appeals erred in not deferring to EPA’s interpretation of the Silvicultural Rule, 40

C.F.R. 122.27(b)(1), that channeled runoff from logging

roads does not constitute a point-source discharge.

3. Whether the court of appeals erred in not deferring to EPA’s interpretation of the Phase I industrial

stormwater regulation, 40 C.F.R. 122.26(b)(14), that

channeled runoff from logging roads does not constitute

a stormwater discharge “associated with industrial activity.” 

(I)
TABLE OF CONTENTS

 Page

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The CWA confers jurisdiction over this citizen

suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. The court of appeals erred in failing to defer to

EPA’s interpretations of its regulations advanced in the government’s amicus brief . . . . . . . . . . . 11

C. This case does not warrant further review . . . . . . . . . 14

1. There is no conflict among the courts of appeals warranting further review . . . . . . . . . . . . . . . 14

2. Both Congress and EPA have taken steps to

mitigate petitioners’ practical concerns about

the effects of the decision below . . . . . . . . . . . . . . . . 16

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TABLE OF AUTHORITIES

Cases:

Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . 11

Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871

(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) . . . . . 11

Conservation Law Found. v. Hannaford Bros. Co.,

327 F. Supp. 2d 325 (D. Vt. 2004), aff’d, 139 Fed.

Appx. (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112

(1977) ........................................... 7

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

561 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

(III)
IV

Cases—Continued: Page

Environmental Def. Ctr. v. EPA, 344 F.3d 832

(9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004) ..... 4

Newton County Wildlife Ass’n v. Rogers, 141 F.3d

803 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) . . . . . . . . 12

NRDC v. EPA, 673 F.2d 400 (D.C. Cir.), cert. denied,

459 U.S. 879 (1982) ............................... 7

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) ........... 7

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 551 et seq. . . . . . 15

Clean Water Act, 33 U.S.C. 1251 et seq.:

33 U.S.C. 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

33 U.S.C. 1314(f) ................................. 2

33 U.S.C. 1329 ................................... 2

33 U.S.C. 1342 (§ 402) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

33 U.S.C. 1342(p) (§ 402(p)) ........................ 3

33 U.S.C. 1342(p)(2) .............................. 4

33 U.S.C. 1342(p)(2)(B) ............................ 3

33 U.S.C. 1342(p)(3) .............................. 3

33 U.S.C. 1342(p)(4) .............................. 3

33 U.S.C. 1342(p)(5) .............................. 4

33 U.S.C. 1342(p)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19

33 U.S.C. 1362(12) ................................ 2

33 U.S.C. 1362(14) ................................ 2

33 U.S.C. 1365 ................................... 4

33 U.S.C. 1365(a) . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 10, 11
V

Statutes and regulations—Continued: Page

33 U.S.C. 1365(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

33 U.S.C. 1365(f)(1) ............................... 9

33 U.S.C. 1369(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 18

33 U.S.C. 1369(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 10

33 U.S.C. 1369(b)(1)(E) ........................... 7

33 U.S.C. 1369(b)(1)(F) ........................... 7

33 U.S.C. 1369(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

Water Quality Act of 1987, Pub. L. No. 100-4, 101

Stat. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17, 19

Consolidated Appropriations Act, 2012, Pub. L.

No. 112-74, Div. E, § 429, 125 Stat. 1046-1047 . . . . . . . . 17

40 C.F.R.:

Section 122.21(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Section 122.26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 122.26(a)(9)(I) ............................. 4

Section 122.26(b)(14) . . . . . . . . . . . . . . . . . . . . . . 4, 6, 13, 15

Section 122.26(b)(14)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 122.27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 122.27(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 12, 15

Section 122.28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Miscellaneous:

64 Fed. Reg. (Dec. 8, 1999):

p. 68,722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

p. 68,734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

73 Fed. Reg. (Sept. 29, 2008):

p. 56,572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

pp. 56,574-56,576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
VI

Miscellaneous—Continued: Page

77 Fed. Reg. (May 23, 2012):

p. 30,473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

p. 30,474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

P. 30,479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 18

H.R. 2541, 112th Cong., 1st Sess. (2011) . . . . . . . . . . . . . . . 17

Letter from Nancy K. Stoner, Acting Assistant Administrator, EPA, to Congressman Kurt Schrader

(July 1, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

S. 1369, 112th Cong., 1st Sess. (2011) . . . . . . . . . . . . . . . . . 17
In the Supreme Court of the United States

No. 11-338

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON

STATE FORESTER, ET AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

No. 11-347

GEORGIA-PACIFIC WEST, INC., ET AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States. In the view of the United States, the petitions for writs of certiorari should be denied.

STATEMENT

1. a. Section 301(a) of the Clean Water Act (CWA or

Act) prohibits the “discharge of any pollutant”—defined as

the addition of any pollutant to navigable waters from any

point source—except “as in compliance with” specified pro-

(1)
2

visions of the Act. 33 U.S.C. 1311(a), 1362(12). The Act

defines “point source” as

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling

stock, concentrated animal feeding operation, or vessel

or other floating craft, from which pollutants are or may

be discharged. 

33 U.S.C. 1362(14). For most point-source discharges, regulated entities achieve compliance by obeying the terms of

a permit issued under the National Pollution Discharge

Elimination System (NPDES) pursuant to CWA Section

402, 33 U.S.C. 1342. Other CWA provisions address “nonpoint sources” through methods other than the NPDES

program. See, e.g., 33 U.S.C. 1314(f), 1329. 

b. The Environmental Protection Agency (EPA) has

promulgated regulations that further define the term

“point source” as it applies to various activities and facilities. EPA’s Silvicultural Rule defines “silvicultural point

source” as “any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting,

or log storage facilities which are operated in connection

with silvicultural activities and from which pollutants are

discharged into waters of the United States.” 40 C.F.R.

122.27(b)(1). The Rule excludes from the definition “nonpoint source silvicultural activities such as * * * road construction and maintenance from which there is natural runoff.” Ibid. EPA has construed that rule to exclude from

NPDES permitting requirements all precipitation-driven

runoff from the specified nonpoint sources, including logging roads, even if the runoff flows through a ditch, channel, or culvert before being released into navigable waters.

See 2007 Gov’t C.A. Amicus Br. 10.
3

c. In 1987, recognizing the special regulatory problems

posed by stormwater discharges, Congress amended the

CWA. Pub. L. No. 100-4, 101 Stat. 52 (1987 CWA amendments). CWA Section 402(p) establishes a phased process,

commonly referred to as Phase I and Phase II, for the regulation of stormwater point-source discharges. 33 U.S.C.

1342(p). 

Phase I covers various enumerated sources of stormwater pollution, see 33 U.S.C. 1342(p)(2), including discharges of stormwater “associated with industrial activity,”

33 U.S.C. 1342(p)(2)(B). The 1987 CWA amendments required NPDES permits for those discharges and directed

EPA to regulate them accordingly. 33 U.S.C. 1342(p)(3)

and (4). The CWA does not define the term “storm water

discharge associated with industrial activity.” In 1990,

EPA promulgated Phase I regulations that define the term

as 

the discharge from any conveyance that is used for collecting and conveying storm water and that is directly

related to manufacturing, processing or raw materials

storage areas at an industrial plant. The term does not

include discharges from facilities or activities excluded

from the NPDES program under this part 122. For the

categories of industries identified in this section, the

term includes, but is not limited to, storm water discharges from * * * immediate access roads * * *

used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or

created by the facility[.] * * * The following categories of facilities are considered to be engaging in “industrial activity” for purposes of paragraph (b)(14):

* * * (ii) Facilities classified as Standard Industrial

Classifications 24 (except 2434).
4

40 C.F.R. 122.26(b)(14).

For stormwater discharges other than those enumerated in 33 U.S.C. 1342(p)(2), the CWA authorizes EPA to

designate, as part of Phase II, any additional stormwater

discharges “to be regulated to protect water quality.” 33

U.S.C. 1342(p)(5) and (6). For Phase II discharges, EPA

must “establish a comprehensive program,” which “may

include performance standards, guidelines, guidance, and

management practices and treatment requirements, as appropriate.” 33 U.S.C. 1342(p)(6). EPA is authorized to require NPDES permits for Phase II discharges, but it is not

required to do so. Ibid. In 1999, EPA promulgated regulations that designated two categories of stormwater pointsource discharges (neither of which is relevant to this case)

for Phase II regulation. 64 Fed. Reg. 68,722, 68,734 (Dec.

8, 1999) (codified in pertinent part at 40 C.F.R.

122.26(a)(9)(i)). EPA also reserved the authority to designate additional discharges for Phase II regulation at a later

date. Ibid.1

2. Respondent commenced this action under the

CWA’s citizen-suit provision, 33 U.S.C. 1365. Respondent

alleged that stormwater discharges associated with two

1 In 2003, the Ninth Circuit remanded to EPA the question whether

to regulate stormwater discharges from forest roads under Phase II. 

See Environmental Def. Ctr. v. EPA, 344 F.3d 832, 863, cert. denied,

541 U.S. 1085 (2004). EPA continues to review available information on

the water-quality impacts of stormwater discharges from forest roads,

including logging roads, as well as existing practices to control those

discharges. On May 23, 2012, EPA announced that it “is considering

designating a subset of stormwater discharges from forest roads for

appropriate action” under the agency’s Phase II rulemaking authority.

Notice of Intent To Revise Stormwater Regulations To Specify That an

NPDES Permit Is Not Required for Stormwater Discharges From

Logging Roads and To Seek Comment on Approaches for Addressing

Water Quality Impacts From Forest Road Discharges, 77 Fed. Reg.

30,479; see pp. 17-18, infra.
5

logging roads in Oregon violate the Act because the roads

at issue collect, channel, and discharge stormwater runoff

to navigable waters—without NPDES permits—via

ditches, pipes, and culverts. First Am. Compl. 2-4, 17-18,

21-24.

Petitioners are state officials and private timber companies who control the relevant logging roads and were

named as defendants in this suit. Supported by the United

States as amicus curiae, petitioners moved to dismiss the

complaint for failure to state a claim. The district court

granted the motion. The court held that, under EPA’s

Silvicultural Rule, 40 C.F.R. 122.27(b)(1), the logging roads

had been categorized as nonpoint sources of natural runoff,

and that stormwater discharges from those roads therefore

were not subject to NPDES permitting requirements. Pet.

App. 53-77.2

3. The court of appeals reversed. Pet. App. 1-52.3

a. As in the district court, the government filed an amicus brief arguing that, under EPA’s Silvicultural Rule, all

precipitation-driven runoff from logging roads is excluded

from NPDES permitting requirements, even if it flows

through a ditch, channel, or culvert before being discharged

into navigable waters. See 2007 Gov’t C.A. Amicus Br. 10.

The court of appeals rejected that interpretation of the regulation. Pet. App. 34-37. The court stated that “there are

two possible readings of the Silvicultural Rule,” and it acknowledged that the interpretation advanced in the government’s amicus brief “reflects the intent of EPA in adopting

the Rule.” Id. at 36. The court concluded, however, that an

2 References to “Pet. App.” are to the appendix to the petition for a

writ of certiorari in No. 11-338.

3 The initial court of appeals opinion was published at 617 F.3d 1176,

but the discussion in this brief cites the superseding opinion, which was

published at 640 F.3d 1063 and is reprinted in the petition appendix. 
6

alternative reading of the rule was preferable because it

would “allow [the court] to construe the Rule to be consistent with the statute,” in particular, the CWA’s definition of

“point source.” Id. at 37. The court held that the Silvicultural Rule does not encompass stormwater runoff from

logging roads that is systemically collected and channeled

through man-made ditches and culverts before being discharged into waters of the United States. Ibid. 

b. Petitioners and the United States further argued

that, even if such channeled runoff from logging roads constitutes a “point source” discharge, such discharges are not

subject to NPDES permitting requirements under EPA’s

stormwater regulations promulgated pursuant to 33 U.S.C.

1342(p). Pet. App. 37-48. Petitioners and the government

contended, in particular, that the discharges at issue here

are not “associated with industrial activity” as EPA has

defined that term. See id. at 44-47; 40 C.F.R. 122.26(b)(14).

The court of appeals rejected that understanding of EPA’s

regulatory definition. The court found it “undisputed that

‘logging,’ which is covered under SIC [Standard Industrial

Classification] subcategory 2411 (part of SIC 24), is an ‘industrial activity.’” Pet. App. 44-45. The court construed

the regulation’s reference to “immediate access roads”—

defined in EPA’s preamble to mean “roads which are exclusively or primarily dedicated for use by the industrial facility”—as covering the logging roads at issue here. Id. at 45-

47.

4. a. Petitioners filed petitions for rehearing in the

court of appeals. The court of appeals thereafter ordered

a response and posed two threshold questions: (1) “Can a

suit challenging EPA’s interpretation of its regulations

implementing the Clean Water Act’s permitting requirements be brought under the Act’s citizen suit provision, 33

U.S.C. 1365(a)?” (2) “Must a suit challenging EPA’s deci-
7

sion to exempt the discharge of a pollutant from the Clean

Water Act’s permitting requirements be brought under the

Act’s agency review provision, 33 U.S.C. 1369(b)?” 10/21/10

Order. 

Section 1369(b) authorizes private parties to obtain direct court of appeals review of certain EPA actions, including actions taken in “promulgating any effluent limitation

or other limitation under section 1311” or “in issuing or

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

1369(b)(1)(E) and (F). EPA’s NPDES regulations are generally subject to immediate appellate review under that

provision. See, e.g., NRDC v. EPA, 673 F.2d 400, 404-406

(D.C. Cir.), cert. denied, 459 U.S. 879 (1982) (citing E.I. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 136 (1977));

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

Such review must be sought within 120 days of the relevant

EPA action, unless a challenge is “based solely on grounds

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

Any EPA 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 proceeding for

enforcement.” 33 U.S.C. 1369(b)(2).

In response to the court of appeals’ questions, the

United States filed another amicus brief. The government

expressed the view that, although Section 1369(b)(2) would

preclude the court in a Section 1365(a) citizen suit from

invalidating the EPA regulations implicated by this case,

Section 1369(b)(2) did not preclude the court from interpreting those regulations in a manner different from the

interpretations advanced in the government’s prior amicus

brief on the merits. See 2011 Gov’t C.A. Amicus Br. 7-11.

b. The court of appeals denied rehearing and issued a

superseding panel opinion. Pet. App. 1-52; see n.3, supra.

In a new section entitled “Subject Matter Jurisdiction,” the
8

court agreed with the position set forth in the government’s

rehearing brief that Section 1369(b) “does not bar a citizen

suit challenging EPA’s Silvicultural Rule interpretation

first adopted in its initial amicus brief in this case.” Pet.

App. 8-10. The court adhered to the remainder of its previous opinion. 

DISCUSSION

The court of appeals correctly rejected petitioners’ jurisdictional challenge to this citizen suit, since the dispute

between the parties concerns the proper interpretation,

rather than the validity, of the EPA regulations at issue

here. On the merits, the court erred in failing to give appropriate deference to EPA’s interpretation of its own regulations. That error, however, does not warrant this

Court’s review.

No square circuit conflict exists on the questions presented in the certiorari petitions. And while the court of

appeals construed EPA’s current Phase I industrial stormwater regulation to require NPDES permits for channeled

stormwater discharges associated with logging roads, the

court did not hold that the CWA compels that result. Congress has temporarily barred EPA from implementing the

court of appeals’ decision, and EPA has announced its intent to amend expeditiously its Phase I regulation to make

clear that discharges of the sort at issue here do not require

NPDES permits. Those developments address petitioners’

concerns about the practical burdens that the court’s ruling

could entail. The petitions for writs of certiorari therefore

should be denied.

A. The CWA Confers Jurisdiction Over This Citizen Suit

A citizen suit under Section 1365(a) may be brought

against a person or entity alleged to be violating the CWA

by, inter alia, discharging pollutants into navigable waters
9

without an NPDES permit. 33 U.S.C. 1365(a) and (f)(1);

see 33 U.S.C. 1311(a). Section 1369(b), by contrast, provides for immediate review of various EPA actions, including the promulgation of NPDES regulations. 33 U.S.C.

1369(b)(1); see p. 7, supra. A review proceeding under Section 1369(b)(1) must be commenced within 120 days of the

challenged EPA action, unless the basis for the suit arises

after that period. Ibid. Any EPA action that could have

been challenged under Section 1369(b)(1) “shall not be subject to judicial review in any civil or criminal proceeding for

enforcement.” 33 U.S.C. 1369(b)(2).

The court of appeals correctly held that Section

1369(b)(2) did not preclude the courts below from exercising jurisdiction over this citizen suit. See Pet. App. 8-10.

Petitioners premise their jurisdictional challenge on the

assertion that the court of appeals invalidated an EPA rule. 

11-338 Pet. 19-24. If the court had taken that step, its decision would have run afoul of Section 1369(b)(2), since the

pertinent EPA regulations could have been challenged at

the time those rules were promulgated. See 2011 Gov’t

Amicus Br. 6-7; Br. in Opp. 19-24.

Contrary to petitioners’ contention, however, the court

of appeals did not expressly or implicitly invalidate either

the Silvicultural Rule or the EPA regulation that defines

the term “stormwater discharge associated with industrial

activity.” Rather, the court of appeals simply interpreted

those regulations in a manner different from the constructions advanced in the government’s amicus brief. See Pet.

App. 36-37, 44-47. To be sure, in choosing between two

competing interpretations of the Silvicultural Rule, the

court was significantly influenced by its view that the Rule

would be contrary to the CWA if EPA’s interpretation were

adopted. See id. at 36-37. But just as a court does not invalidate a statute by construing it to avoid perceived consti-
10

tutional difficulties, the court of appeals did not invalidate

the Silvicultural Rule by adopting the interpretation that

the court viewed as necessary to achieve compliance with

the governing statute. Cf. Environmental Def. v. Duke

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

for purposes of an analogous Clean Air Act judicial-review

provision, “between a purposeful but permissible reading of

the regulation adopted to bring it into harmony with the

Court of Appeals’s view of the statute, and a determination that the regulation as written is invalid”). And because EPA did not announce its official reading of the

Silvicultural Rule at the time of the rule’s promulgation,

respondent could not reasonably have been expected to

challenge that potential reading under Section 1369(b)(1) at

that time. Pet. App. 9-10; see 2011 Gov’t Amicus Br. 7-11 &

n.5.4

The decisions cited by the state petitioners (11-338 Pet.

20) simply reiterate the undisputed propositions that challenges to the validity of an EPA rule promulgated under

the CWA must be brought pursuant to Section 1369(b)(1),

and that a court may not invalidate an EPA rule in a citizen

suit brought under Section 1365(a). None of those decisions

suggests that the court in a CWA citizen suit is foreclosed

from either (a) rejecting EPA’s construction of its own rule,

or (b) adopting a competing construction that the court

views as necessary to render the rule consistent with the

statute. Because the court below did not explicitly or implicitly invalidate any EPA rule, the precedents on which

4 The industry petitioners argue (11-347 Pet. 23 n.2) that EPA had

officially interpreted the term “natural runoff” in the Silvicultural Rule

as including runoff that is systematically channeled well before the government filed its amicus brief in this case. The court of appeals rejected

that contention (Pet. App. 9), and that aspect of the court’s analysis

raises no legal issue of recurring importance.
11

the state petitioners rely are inapposite. Further review of

this issue is not warranted.

B. The Court Of Appeals Erred In Failing To Defer To EPA’s

Interpretations Of Its Regulations Advanced In The Government’s Amicus Brief

In a CWA citizen suit, a court determines whether the

defendant’s discharges violate the requirements of the

CWA and applicable regulations. 33 U.S.C. 1365(a) and (f).

In making that determination, the court must defer to

EPA’s regulatory construction of an ambiguous CWA provision unless that interpretation conflicts with the statute. 

See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 841-844

(1984); cf. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208,

218 (2009). When the legality of a citizen-suit defendant’s

conduct turns on the interpretation of EPA regulations, the

court similarly must defer to EPA’s construction of its own

rule unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S.

452, 461-462 (1997) (citation omitted). An agency’s reasonable interpretation of its regulation, as presented in an amicus brief, is entitled to Auer deference. See, e.g., Chase

Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011).

1. The legality of petitioners’ conduct depends in part

on whether stormwater runoff from a logging road constitutes a “point source” discharge within the meaning of the

CWA if the runoff is collected and channeled through pipes,

ditches, or culverts before entering waters of the United

States. In resolving that question, the court of appeals

should have given Chevron deference to EPA’s Silvicultural

Rule, which provides that “non-point source silvicultural

activities such as * * * road construction and maintenance

from which there is natural runoff” are excluded from the

definition of “silvicultural point source.” 40 C.F.R.
12

122.27(b)(1). The CWA’s broad definition of “point source”

under Section 502(14) gives EPA at least some discretion in

distinguishing between point and nonpoint sources. In particular, “the concept of a ‘discrete conveyance’” contained

in the statutory definition “suggests that there is room here

for some exclusion by interpretation” by the agency.

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

id. at 1382 (“[T]he power to define point and nonpoint

sources is vested in EPA and should be reviewed by the

court only after opportunity for full agency review and examination.”) (citation and internal quotation marks omitted).

Although the Silvicultural Rule does not specifically

confirm that the reference to “natural runoff” includes systematically channeled runoff, neither does it suggest that

such runoff should be treated as a “point source” discharge.

To the extent that the absence of any specific reference to

channeled runoff renders the Silvicultural Rule ambiguous,

the court of appeals should have deferred under Auer to

EPA’s interpretation of its own Rule provided in the government’s amicus brief. That brief unequivocally expressed

EPA’s view that “the term ‘natural runoff’ in the silvicultural rule categorically excludes all stormwater runoff

from forest roads, even where the roads include channels,

ditches, or culverts.” 2007 Gov’t Amicus Br. 25.5

2. The court of appeals should also have deferred to

EPA’s interpretation of its Phase I industrial stormwater

regulation. Properly construed, that regulation provides an

independent basis for concluding that, under the current

5 In its recent Federal Register notice, EPA stated that it is considering the possibility of regulating a subset of stormwater discharges

from forest roads under its Phase II stormwater rulemaking authority.

77 Fed. Reg. at 30,479; see pp. 17-18, infra.
13

regulatory scheme, petitioners were not required to obtain

an NPDES permit for any of the activities at issue here. 

To identify the categories of “facilities” that are engaged in “industrial activity,” EPA’s Phase I regulation

incorporates by reference Standard Industrial Classifications (SIC) codes, including SIC code 24, of which “logging”

is a subcategory. 40 C.F.R. 122.26(b)(14)(ii). In its amicus

brief below, the government explained that “EPA primarily

referenced this SIC code to regulate traditional industrial

sources such as sawmills.” 2007 Gov’t C.A. Amicus Br. 29.

The government further explained that, “[b]y not excluding

SIC code 2411 (the logging subcategory), EPA intended to

reference only the four categories of silvicultural facilities

it had already defined as point sources in” the Silvicultural

Rule—i.e., rock crushing, gravel washing, log sorting, and

log storage. Id. at 29-30.6 Those facilities are more closely

associated with traditional industrial activities than are

logging roads, which are often used for recreational purposes rather than as “immediate access roads” to those

facilities. See id. at 31. EPA’s interpretation is also consistent with the terms of SIC code 2411, which defines “logging” facilities as “[e]stablishments primarily engaged in

cutting timber and in producing . . . primary forest or

wood raw materials . . . in the field.” Pet. App. 45 (emphasis added).

In concluding that the discharges at issue here are “associated with industrial activity” within the meaning of

EPA’s current Phase I rule (Pet. App. 42-47), the court of

appeals ignored EPA’s construction of its own regulation.

6 That understanding is buttressed by the fact that EPA’s definition

of “storm water discharge associated with industrial activity” expressly

exempts activities that are “excluded from the NPDES program under

this part 122,” 40 C.F.R. 122.26(b)(14), including under the Silvicultural

Rule, 40 C.F.R. 122.27. 
14

The interpretation set forth in the government’s amicus

brief did not clearly conflict with the text of the regulation.

Nor did the court of appeals hold that its expansive construction of the term “associated with industrial activity”

was necessary to bring EPA’s Phase I regulation into conformity with the statute. In adopting a construction of the

regulation that was inconsistent with EPA’s own stated

understanding of the rule, the court of appeals misapplied

established Auer deference principles. 

C. This Case Does Not Warrant Further Review 

Notwithstanding the court of appeals’ errors on the

merits, the decision below does not warrant this Court’s

review. The decision does not create a square conflict

among the courts of appeals. And while application of

NPDES permitting requirements to petitioners’ stormwater discharges could entail significant practical burdens

if the current regulatory scheme remained unchanged,

those concerns are being addressed by both Congress and

EPA—entities with greater institutional capacity to resolve

the complex regulatory issues involved.

1. There is no conflict among the courts of appeals warranting further review 

a. As discussed above (see pp. 10-11, supra), the Ninth

Circuit’s jurisdictional analysis does not conflict with other

court of appeals decisions holding that Section 1369(b) provides the exclusive CWA avenue to review the validity of an

EPA rule implementing the NPDES permitting system.

The court of appeals did not invalidate an EPA regulation

explicitly or implicitly. Rather, it interpreted the pertinent

EPA rules as requiring NPDES permits for the type of

discharges at issue, as urged by respondent in this Section

1365(a) citizen suit. Ibid.; see Br. in Opp. 19-26. Although

the court of appeals’ interpretations of those rules were
15

flawed on the merits, the court did not err in entertaining

the suit. 

b. The industry petitioners allege (11-347 Pet. 25-26) a

conflict between the court of appeals’ interpretation of the

Silvicultural Rule and that of the Eighth Circuit in Newton

County Wildlife Ass’n v. Rogers, 141 F.3d 803 (1998). The

court in Rogers held that the Forest Service’s failure to

obtain an NPDES permit before contracting with others to

harvest timber and build roads did not constitute an abuse

of discretion under the Administrative Procedure Act, 5

U.S.C. 551 et seq. 141 F.3d at 810. The court relied principally on the rationale that the private operator, not the Forest Service, would be responsible for obtaining any required permit. Ibid. (citing 40 C.F.R. 122.21(b)). The

Eighth Circuit added that “EPA regulations do not include

the logging and road building activities cited by [plaintiff]

in the narrow list of silvicultural activities that are point

sources requiring NPDES permits.” Ibid. (citing, inter

alia, 40 C.F.R. 122.27(b)(1)). But that single, passing statement was simply dictum, and it did not specifically refer to

the sort of channeled runoff at issue in this case. See ibid.;

see also Br. in Opp. 16-17.

c. The court below is the first court of appeals to address whether EPA’s Phase I industrial stormwater regulation, 40 C.F.R. 122.26(b)(14), requires permits for the type

of discharges at issue. See Br. in Opp. 15-16. Contrary to

the industry petitioners’ suggestion (11-347 Pet. 26-27), the

decision below does not conflict with the Second Circuit’s

unpublished summary affirmance of the district court’s

decision in Conservation Law Foundation v. Hannaford

Bros. Co., 327 F. Supp. 2d 325 (D. Vt. 2004), aff’d, 139 Fed.

Appx. 3381 (2005). In Conservation Law Foundation, the

district court held that a shopping plaza owner was not liable under the CWA for stormwater discharges from the
16

plaza’s parking lot. Id. at 330-335. Because the parties

agreed that the parking-lot discharges were not covered by

either Phase I or Phase II rules, however, the court had no

occasion to consider whether the discharges were in fact

regulated by EPA’s stormwater rules—the relevant question here. Id. at 330 (“[Plaintiff] does not contend that the

[plaza] falls into the categories of stormwater discharges

required to obtain a permit under the Phase I and Phase II

rules. Therefore, the question before the Court is whether

§ 301(a) of the CWA prohibits the [plaza] from discharging

stormwater without an NPDES permit even though neither

EPA nor [the responsible state agency] require the [plaza]

to obtain a NPDES permit.”).

2. Both Congress and EPA have taken steps to mitigate

petitioners’ practical concerns about the effects of the

decision below 

Petitioners contend that, by requiring NPDES permits

for a potentially vast number of logging-road discharges,

the decision below threatens to impose significant compliance burdens on both regulators and the timber industry.

11-338 Pet. 24-28; 11-347 Pet. 30-35. Congress and EPA

have already taken steps, however, to address those concerns.

a. Congress has suspended the permitting requirement

imposed by the court of appeals’ decision:

From the date of enactment of this Act until September

30, 2012, the Administrator of the Environmental Protection Agency shall not require a permit under section

402 of the Federal Water Pollution Control Act (33

U.S.C. 1342), nor shall the Administrator directly or

indirectly require any State to require a permit, for discharges of stormwater runoff from roads, the construc-
17

tion, use, or maintenance of which are associated with

silvicultural activities.

Consolidated Appropriations Act, 2012, Pub. L. No. 112-74,

Div. E, § 429, 125 Stat. 1046-1047. That legislation provides

breathing space for EPA to fashion an administrative response to the court of appeals’ decision. Permanent legislation is also pending in both the Senate and the House of

Representative that would amend Section 402 so as to not

require NPDES permits for stormwater discharges resulting from silvicultural activities. H.R. 2541, S. 1369, 112th

Cong., 1st Sess. (2011). 

b. The court of appeals held that, if the Silvicultural

Rule were construed to designate channeled runoff from

logging roads as a “nonpoint source,” the Rule would be

inconsistent with the CWA’s definition of “point source.”

Pet. App. 36-37. Under the 1987 CWA amendments, however, not all point-source discharges of stormwater runoff

require NPDES permits. See pp. 3-4, supra. And while

the court below held that the discharges at issue here are

“associated with industrial activity” as EPA’s current regulations define that term, see Pet. App. 44-47, the court did

not suggest that the CWA requires EPA to take that approach. See, e.g., id. at 46 (“The [Phase I regulation’s] definition of a ‘facility’ engaging in ‘industrial activity’ is very

broad.”). The court’s decision thus leaves EPA free to

amend its Phase I regulations to make clear that runoff

from logging roads is not “associated with industrial activity” and therefore is not subject to NPDES permitting requirements.

On May 23, 2012, EPA issued a formal notice in the

Federal Register indicating its intent “to propose revisions

to its Phase I stormwater regulations (40 CFR 122.26) to

specify that stormwater discharges from logging roads are

not included in the definition of ‘storm water discharge as-
18

sociated with industrial activity.’” 77 Fed. Reg. at 30,474.

As that notice explains, “[t]he effect of this revision would

be to remove any obligation for an owner or operator of a

logging road that has discharges of stormwater to waters

of the United States to seek” an NPDES permit for such a

discharge. Ibid. The notice further explains that “EPA is

aware that a Congressional moratorium on NPDES permitting of some logging roads is set to expire on September 30,

2012, and intends to move expeditiously to complete this

revision.” Ibid. 

The notice also states that EPA intends further study

and seeks public comment on “alternative approaches for

addressing stormwater discharges from forest roads.” 77

Fed. Reg. at 30,479. Among those alternatives, “EPA is

considering designating a subset of stormwater discharges

from forest roads for appropriate action under section

402(p)(6) of the Act,” i.e., its Phase II regulatory authority,

which “allows the EPA flexibility in issuing regulations to

address designated stormwater discharges and does not

require the use of NPDES permits.” Ibid.

By clarifying that channeled stormwater discharges

from logging roads are not “associated with industrial activity,” EPA’s proposed regulatory approach would render

moot petitioners’ objections to the court of appeals’ conclusion that such discharges are subject to NPDES permitting

requirements under the current regulatory scheme. EPA’s

proposed approach would also facilitate further inquiry

concerning possible alternative measures that would mitigate the environmental impacts giving rise to respondent’s

suit. If an interested party is unhappy with the ultimate

outcome of EPA’s rulemaking process, any new rule will be

subject to direct judicial review pursuant to 33 U.S.C.

1369(b) on the agency’s developed administrative record.
19

If the Court grants certiorari in this case, however, it

will be faced with a binary choice: either hold that the

stormwater discharges at issue here are not subject to

CWA regulation at all (as petitioners contend), or hold that

the discharges require NPDES permits (as respondent

argues). In authorizing EPA to engage in Phase II regulation, Congress sought to obviate the need for that all-ornothing choice, and to expand the range of regulatory options available to the agency. And because any decision this

Court might issue would focus on EPA’s current regulatory

framework, that decision could be superseded by further

regulatory action. If the Court reversed the court of appeals and held that the discharges at issue do not require

NPDES permits under the Phase I regulations because

they are not “associated with industrial activity,” EPA

could impose alternative regulatory requirements under

the more flexible Phase II provisions of the 1987 CWA

amendments, see 33 U.S.C. 1342(p)(6). Alternatively, if the

Court upheld the court of appeals’ determination that the

discharges at issue are covered by the current Phase I industrial stormwater regulation, EPA could still revise that

regulation (in accordance with its recent Federal Register

notice) to exclude those discharges from the NPDES requirement. For these reasons, review by this Court to consider the proper interpretation of EPA’s current regulatory

scheme would neither represent a sound use of the Court’s

resources nor definitively resolve the legal status of channeled stormwater discharges from logging roads.

Even before Congress suspended the permitting requirement imposed by the court of appeals’ decision, EPA

had taken steps to alleviate petitioners’ immediate practical

concerns by making available, as appropriate, the MultiSector General Permit (MSGP) for discharges associated

with industrial activities, 73 Fed. Reg. 56,572 (Sept. 29,
20

2008), to persons responsible for channeled runoff from

logging roads. See Letter from Nancy K. Stoner, Acting

Assistant Administrator, EPA, to Congressman Kurt

Schrader (July 1, 2011). Inter alia, the MSGP allows permit holders to select their own methods for reducing discharges to meet narrative effluent limitations. 73 Fed. Reg.

at 56,574-56,576. The MSGP could apply to groups of roads

and could considerably lessen the administrative burdens

associated with obtaining separate permits for each individual road or discharge. See 40 C.F.R. 122.28. Although the

MSGP is available only in States where EPA is the permitting authority, other States authorized to issue NPDES

permits may choose to make available a similar general

permit.

* * * * *

In light of the significant attention directed by Congress

and EPA to the regulation of stormwater discharges from

logging roads in response to the court of appeals’ decision,

this Court’s intervention is not warranted. The complex

regulatory issues implicated by the decision below are currently being addressed in the first instance, and can be addressed more definitively and in a more nuanced fashion, by

Congress and the expert agency.
21

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

IGNACIA S. MORENO

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General 

ETHAN G. SHENKMAN

Deputy Assistant Attorney

General

PRATIK A. SHAH

Assistant to the Solicitor

General 

JUDY B. HARVEY

Attorney

MAY 2012