Nos. 11-338 and 11-347 

# In the Supreme Court of the United States

**D OUG**  **D ECKER**  **, IN HIS OFFICIAL CAPACITY AS**  **O REGON**  **S TATE**  **F ORESTER**  **, ET AL**  **., PETITIONERS** 

v.
**N ORTHWEST**  **E NVIRONMENTAL**  **D EFENSE**  **C ENTER**  **, ET AL** 

**. G**  **EORGIA -P**  **ACIFIC W**  **EST ,**  **I NC**  **., ET AL**  **., PETITIONERS** 

v.
**N ORTHWEST**  **E NVIRONMENTAL**  **D EFENSE**  **C ENTER**  **, 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

**D ONALD**  **B. V**  **ERRILLI ,**  **J R** 

**.**

Solicitor General Counsel of Record **I GNACIA**  **S. M**  **ORENO**

Assistant Attorney General
**M ALCOLM**  **L. S**  **TEWART**

Deputy Solicitor General
**E THAN**  **G. S**  **HENKMAN**

Deputy Assistant Attorney General **P RATIK**  **A. S**  **HAH**

Assistant to the Solicitor General **J UDY**  **B. H**  **ARVEY**

Attorney Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217QUESTIONS PRESENTED **1. Whether the court of appeals erred in holding that a suit in which liability depends on the interpreta**  **tion of Clean Water Act (CWA) regulations, and in which the court rejected the**  **construction of the regula tions 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 prov ision, 33 U.S.C. 1369(b).** **2. Whether the court of appeals erred in not defer ring 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 defer ring 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 activ**  **ity.”**

**(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 ad**  **vanced 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 ap peals 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 Ad ministrator, 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**

**D OUG**  **D ECKER**  **, IN HIS OFFICIAL CAPACITY AS**  **O REGON**  **S TATE**  **F ORESTER**  **, ET AL**  **., PETITIONERS** 

v. **N ORTHWEST**  **E NVIRONMENTAL**  **D EFENSE**  **C ENTER**  **, ET AL** 

**.**

**No. 11-347**
**G EORGIA** **-P ACIFIC**  **W EST**  **, I**  **NC .,**  **ET AL .,**  **PETITIONERS**

v. **N ORTHWEST**  **E NVIRONMENTAL**  **D EFENSE**  **C ENTER**  **, 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 peti tions 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 co mpliance 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, in cluding but not limited to any pipe, ditch, channel, tun**  **nel, 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, reg ulated 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 CW A provisions address “non**  **point 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 facili**  **ties. EPA’s Silvicultural Rule defines “silvicultural point source” as “any discernible, confined and discrete convey**  **ance 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 “non** **point source silvicultural activities such as * * * road con****struction and maintenance from which there is natural run off.”**  Ibid. **EPA has construed that rule to exclude from NPDES permitting requirements all precipitation-driven** **runoff from the specified nonpoint sources, including log ging roads, even if the runoff flows through a ditch, chan**  **nel, 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 amend**  **ments). CWA Section 402(p) establishes a phased process, commonly referred to as Phase I and Phase II, for the reg**  **ulation of stormwater point-source discharges. 33 U.S.C. 1342(p).** **Phase I covers various enumerated sources of storm water pollution, see 33 U.S.C. 1342(p)(2), including dis**  **charges of stormwater “associated with industrial activity,”** **33 U.S.C. 1342(p)(2)(B). The 1987 CWA amendments re quired NPDES permits for those discharges and directed**  **EPA to regulate them accord ingly. 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 convey**  **ance that is used for col lecting 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 facili ties 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 dis** **charges from * * * immediate access roads * * *****used or traveled by carriers of raw materials, manufac tured products, waste material, or by-products used or** **created by the facility[.] * * * The following catego****ries of facilities are considered to be engaging in “in dustrial 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 enumer**  **ated 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 ap propriate.” 33 U.S.C. 1342(p)(6). EPA is authorized to re**  **quire NPDES permits for Phase II discharges, but it is not required to do so.**  Ibid. **In 1999, EPA promulgated regula tions that designated two categories of stormwater point**  **source 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 pert**  **inent part at 40 C.F.R. 122.26(a)(9)(i)). EPA also rese**  **rved the authority to desig nate 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 ex isting 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 agen**  **cy’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 viol ate 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 compa**  **nies who control the releva nt 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 ami cus brief arguing that, under EPA’s Silvicultural Rule, all**  **precipitation-driven runoff fr om 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 reg**  **ulation. Pet. App. 34-37. Th e court stated that “there are** **two possible readings of the Silvicultural Rule,” and it ac knowledged that the interpretation advanced in the govern**  **ment’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 cite s 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 cons**  **true the Rule to be consis tent with the statute,” in particular, the CWA’s definition of**  **“point source.”** Id. **at 37. The court held that the Silvi cultural Rule does not enco**  **mpass stormwater runoff from logging roads that is systemically collected and channeled** **through man-made ditches and culverts before being dis charged into waters of the United States.**  Ibid

**. b. Petitioners and the United States further argued** **that, even if such channeled runoff from logging roads con stitutes 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 indu**  **strial 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] subc ategory 2411 (part of SIC 24), is an ‘in**  **dustrial activity.’” Pet. A pp. 44-45. The court construed**  **the regulation’s reference to “immediate access roads”— defined in EPA’s preamble to mean “roads which are exclu**  **sively or primarily dedicated fo r use by the industrial facil**  **ity”—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 require**  **ments be brought under the Act’s citizen suit provision, 33 U.S.C. 1365(a)?” (2) “Must a su**  **it 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 provisio n, 33 U.S.C. 1369(b)?” 10/21/10**  **Order. Section 1369(b) authorizes priv**  **ate parties to obtain di rect court of appeals review of certain EPA actions, includ**  **ing 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 gen**  **erally 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 sub**  **ject 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 am** **icus brief. The government expressed the view that, although Section 1369(b)(2) would**  **preclude the court in a Sect ion 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 previ ous opinion.** 

DISCUSSION**The court of appeals correctly rejected petitioners’ ju risdictional 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 ap** **propriate deference to EPA’s interpretation of its own reg ulations. That error, however, does not warrant this**  **Court’s review. No square circuit conflict exists on the questions pre**  **sented in the certiorari petitions. And while the court of appeals construed EPA’s current Phase I industrial storm**  **water regulation to require NPDES permits for channeled stormwater discharges associated with logging roads, the** **court did not hold that the CWA compels that result. Con gress has temporarily barred EPA from implementing the** **court of appeals’ decision, and EPA has announced its in tent 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, pro** **vides for immediate review of various EPA actions, includ ing the promulgation of NPDES regulations. 33 U.S.C.**  **1369(b)(1); see p. 7,** supra **. A review proceeding under Sec tion 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 Sectio**  **n 1369(b)(1) “shall not be sub ject 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 exercis ing 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 deci sion 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’ co**  **ntention, 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 construc**  **tions 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 in validate 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 determina tion that the regulation as written is invalid”). And be**  **cause 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 chal lenges 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 CW A 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 im**  **plicitly 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 “natur**  **al runoff” in the Silvicultural Rule as including runoff that is systemat** **ically channeled well before the gov ernment 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 Regulati ons 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 determinati**  **on, the court must defer to EPA’s regulatory construction of an ambiguous CWA pro**  **vision 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 in**  **consistent with the regulation.”** Auer **v.** Robbins **, 519 U.S. 452, 461-462 (1997) (citat** **ion omitted). An agency’s reason able interpretation of its regulation, as presented in an ami**  **cus 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 consti**  **tutes 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 an d nonpoint sources. In par**  **ticular, “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 ex amination.”) (citation and internal quotation marks omit**  **ted). Although the Silvicultural Rule does not specifically** **confirm that the reference to “natural runoff” includes sys tematically**  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 Sil**  **vicultural Rule ambiguous, the court of appeals should have deferred under**  Auer **to EPA’s interpretation of its own Rule provided in the govern**  **ment’s amicus brief. That brief unequivocally expressed EPA’s view that “the term ‘natural runoff’ in the silvi**  **cultural 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 consi**  **dering 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 en**  **gaged in “industrial activity,” EPA’s Phase I regulation incorporates by reference Standard Industrial Classifica**  **tions (SIC) codes, including SIC code 24, of which “logging” is a subcategory. 40 C.F.R. 12**  **2.26(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 poin** **t 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 pur poses rather than as “immediate access roads” to those**  **facilities. See** id **. at 31. EPA’s interpretation is also consis tent with the terms of SIC code 2411, which defines “log**  **ging” facilities as “** [e]stablishments **primarily engaged in cutting timber and in producing**  **. . . primary forest or wood raw materials . . . in the field.” Pet. App. 45 (em**  **phasis added). In concluding that the discharges at issue here are “as**  **sociated 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 wi** **th the text of the regulation. Nor did the court of appeals**  **hold that its expansive con struction of the term “associated with industrial activity”** **was necessary to bring EPA’s Phase I regulation into con formity 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’ storm**  **water discharges could entail significant practical burdens if the current regulatory scheme remained unchanged,**  **those concerns are being addr essed 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) pro**  **vides 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. Rath er, 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’ interpr**  **etations 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 princi pally on the rationale that the private operator, not the For** **est Service, would be responsible for obtaining any re quired 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 silvicultu**  **ral activities that are point sources requiring NPDES permits.”**  Ibid. **(citing,** inter alia **, 40 C.F.R. 122.27(b)(1)). But that single, passing state**  **ment 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 ad dress whether EPA’s Phase I industrial stormwater regula**  **tion, 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 lia**  **ble 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 ques tion here.**  Id. **at 330 (“[Plaintiff] does not contend that the [plaza] falls into the categor** **ies of stormwater discharges required to obtain a permit under the Phase I and Phase II**  **rules. Therefore, the questi on 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 compli**  **ance burdens on both regulato rs 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 con**

**cerns. a. Congress has suspended th**  **e 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 Pro**  **tection 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 dis**  **charges 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 re sponse to the court of appeals’ decision. Permanent legisla**  **tion is also pending in both the Senate and the House of Representative that would am**  **end Section 402 so as to not require NPDES permits for stormwater discharges result**  **ing from silvicultural activi ties. H.R. 2541, S. 1369, 112th**  **Cong., 1st Sess. (2011). b. The court of appeals held that, if the Silvicultural**  **Rule were construed to de signate 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 th**  **e 1987 CWA amendments, how ever, 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 regu lations define that term, see P**  **et. App. 44-47, the court did not suggest that the CWA requires EPA to take that ap**  **proach. See,** e.g. **,** id. **at 46 (“The [Phase I regulation’s] defi nition 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 activ**  **ity” and therefore is not subj ect to NPDES permitting re**  **quirements. 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 acti vity.’” 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 permit**  **ting 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 subs**  **et 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 “asso**  **ciated with industrial activ ity,” EPA’s proposed regulatory approach would render** **moot petitioners’ objections to the court of appeals’ conclu sion 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 miti gate 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 regula** **tion, Congress sought to obviate the need for that all-or nothing choice, and to expand the range of regulatory op**  **tions 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 Co urt reversed the court of ap**  **peals 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 in**  **dustrial stormwater regulation, EPA could still revise that regulation (in accordance with its recent Federal Register**  **notice) to exclude those disc harges from the NPDES re** **quirement. For these reasons, review by this Court to con sider the proper interpretation of EPA’s current regulatory**  **scheme would neither represen t a sound use of the Court’s** **resources nor definitively resolve the legal status of chan neled stormwater discharges from logging roads.** **Even before Congress suspended the permitting re quirement imposed by the court of appeals’ decision, EPA**  **had taken steps to alleviate petitioners’ immediate practical concerns by making available, as appropriate, the Multi**  **Sector General Permit (MSGP) for discharges associated with industrial activities,**  **73 Fed. Reg. 56,572 (Sept. 29, 20** 

**2008), to persons responsibl e 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 per mit holders to select their**  **own methods for reducing dis charges 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 individ ual road or discharge. See 40 C.F.R. 122.28. Although the** **MSGP is available only in States where EPA is the permit ting authority, other States**  **authorized to issue NPDES permits may choose to make available a similar general**  **permit.** *** * * * *** **In light of the significant a ttention 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 cur** **rently being addressed in the first instance, and can be ad dressed 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.** 

**D ONALD**  **B. V** **ERRILLI ,**  **J R** 

**.** Solicitor General
**I GNACIA**  **S. M**  **ORENO**

Assistant Attorney General
**M ALCOLM**  **L. S**  **TEWART**

Deputy Solicitor General
**E THAN**  **G. S**  **HENKMAN**

Deputy Assistant Attorney General **P RATIK**  **A. S**  **HAH**

Assistant to the Solicitor General **J UDY**  **B. H**  **ARVEY**

Attorney

**M AY**  **2012**