SIMMA KUPCHAN Caution As of: June 1, 2016 11:18 AM EDT



## Decker v. Northwest Envtl. Def. Ctr.

Supreme Court of the United States

December 3, 2012, Argued; March 20, 2013, Decided *

No. 11

- 338 and No. 11

- 347

Reporter 133 S. Ct. 1326; 185 L. Ed. 2d 447; 2013 U.S. LEXIS 2373; 81 U.S.L.W. 4190; 43 ELR 20062; 76 ERC (BNA) 1001; 24 Fla. L. Weekly Fed. S 110; 2013 WL 1131708

DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., Petitioners (No. 11

- 338) v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER;
GEORGIA

- PACIFIC WEST, INC., et al., Petitioners (No.

11

- 347) v. NORTHWEST ENVIRONMENTAL DEFENSE
CENTER

Notice: The LEXIS pagination of this docum ent is subject to change pending release of the final published version.

Prior History: [***1] ON WRITS OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT Northwest Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 2011 U.S. App. LEXIS 1005 2 (9th Cir. Or., 2011)

Disposition: Reversed and remanded.



## Core Terms

discharges, regulation, Industrial, stormwater, logging, cases, runoff, deference, channeled, industrial activity, Classification, raw material, manufacturing, permits, operations, so urces, Silvicultural, facilities, processing, exempt, point source, agencies, industrial plant, court of appeals, district court, logging road, categories, conveyance, pollution, sites


## Case Summary

Respondent organization sued petitioners, a logging and paper products company and a state official, along with other companies, government entities, and officials, in
district court under the Clean Water Act's citizen

- suit

* Together with No. 11

- 347, Georgia

- Pacific West, Inc., et al. v. Northwest Environmental Defense Center, also on certiorari to the

same court. provision, 33 U.S.C.S. § 1365 , alleging failure to obtain permits. The district court dismissed the action. The United States Court of App eals for the Ninth Circuit reversed. The Supreme Court granted certiorari. The organization claimed that discharges of channeled stormwater runoff from logging roads violated the Act because the companies had not obtained National Pollutant Discharge Elimi nation System (NPDES) permits. The Court held that the action was within the scope of § 1365 and did not f all under the exclusive jurisdiction provisions of 33 U.S.C.S. § 1369(b) , as the
suit was a claim to enfor ce what was at least a permissible reading of the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1) . The case w as not mooted by the Environmental Protection Agency's (EPA's) 2012 amendment to the Industrial Stormwater Rule, 40 C.F.R. § 122.26 , because a live controversy existed as to whether petitioners could be held liable for unlawful discharges under the prior rule. It was reasonable to interpret the preamendment version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) , to require discharges to be directly related to operations at an industrial plant in order to be subject to NPDES permitting. The rule, as permissibly construed by the EPA, exempted discharges of channeled stormwater runoff from logging roads from the NPDES permitting
scheme under 33 U.S.C.S. § 1342(p)

. The Ninth Circuit's judgment was reversed, and the
matter was remanded. 8

- 1 Decision; 1 Concurrence; 1 Concurrence in part and Disse nt in part.



## LexisNexis® HeadnotesPage 3 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN1** Under the Clean Water Act and its implementing regulations, a permit is required if discharges are deemed to be associated with industrial activity. 33 U.S.C.S. § 1342(p)(2)(B) . The Environmental Protection Agency, with the responsibility to enforce the Act , has issued a regulation defining the term “associated with industrial activity” to cover only discharges 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. Former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012).

Environmenta l Law > Water Quality > Clean Water
Act > General Overview

Environmental Law >

... > Enforcement > Discharge
Permits > General Permits

Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN2** Congress passed the Clean Water A ct in 1972 to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. 33 U.S.C.S. § 1251(a) . A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System permits before discharging pollution from any point source into the navigable waters of the United States. 33 U.S.C.S. §§ 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, c onduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flo ws from irrigated agriculture. § 1362(14)

.

Environmental Law >

... > Clean Water Act > Coverage &
Definiti ons > Point Sources

**HN3** See 40 C.F.R. § 122.27(b)(1)

.

Environmental Law >

... > Clean Water Act > Coverag e &
Definitions > Point Sources

Environmental Law >

... > Enforcement > Discharge
Permits > General Permits

Environmental Law >

... > Enforcement > Discharge Permits > Storm Water Discharges

**HN4** Under 40 C.F.R. § 122.27(b)(1) , any discharge from a logging

- related source that qualifies as a point source requires a National Pollutant Discharge Elimination Syste m permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U.S.C.S. § 1342(p) , Congress has exempted certain discharges of stormwater runoff.

Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN5** The 1987 amendments to the Clean Water Act exempt from the National Pollutant Discharge Elimination System (NPDES) permitting scheme most discharges composed entirely of stormwater. 33 U.S.C.S. § 1342(p)(1) . The general exemption, however, does not extend to all stormwater discharges. Congress directed the Environmental Protection Agency (EPA) to continue

to r equire permits for stormwater discharges “associated with industrial activity.” § 1342(p)(2)(B) . The statu te does not define that term, but the EPA adopted a regulation (the Industrial Stormwater Rule) in which it defined it 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 40 C.F.R. pt. 122 . For the categories of industries identified in the section, the term includes, but is not limited to, storm water discharges from immediate access roads and rail lines

use d or traveled by carriers of raw materials, manufactured products, waste material, or by

- products used or created by the facility. Former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012).

Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN6** The former version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), specified that, with one exception, facilities
classified as Standard Industrial Cl assification 24 are considered to be engaging in "industrial activity" for purposes of § 122.26(b)(14) . Th e Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. Standard Industrial Classification 24 identifies
industries involved in the field of “Lumber and WoodPage 4 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN Products. ” This includes the “Logging” industry, defined as establishments primarily engaged in cutting timber and in producing primary forest or wood raw materials.

Environmental Law >

... > Enforcement > Citizen
Suits > General Overview

**HN7** 33 U.S.C.S. § 1365(a) authorizes private enforcement of the provisions of the Clean Water Act and its implementing regulations.

Environmental Law > Administrative Proceedings & Litigation > Judicial Review

Environmental Law >

... > Clean Water
Act > Enforcement > General Overview

Environmental Law >

... > Enforcement > Citizen
Suits > Grounds for Citizen Suits

**HN8** 33 U.S.C.S. § 1369(b) provides for judicial review in the United States courts of appeals of various particu lar actions by the Environmental Protection Agency Administrator, including establishment of effluent standards and issuance of permits for discharge of pollutants. Where that review is available, it is the exclusive means of challenging actions covered by the statute, § 1369(b)(2) , and an application for review must be lodged in the court of appeals within 120 days of the Administrator’s action, § 1369(b)(1)

. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a
citizen suit under 33 U.S.C.S. § 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Clean Water Act or its regulations.

Administrative Law > Agency Rulemaking > Rule Application & Interpretation > Validity

**HN9** It is a basic tenet that regulations, in order to be valid, must be consistent with the statute under which they are promulgated

.

Constitutional Law > The Judiciary > Case or Controversy > General Overview

**HN10** It is a basic principle of U.S. Const. art. III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is
f iled. Civil Procedure >

... > Justiciability > Mootness > General
Overview

Constitutional Law >

... > Case or Controversy > Mootness > General Overview

**HN11** A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

Civil Procedure > US Supreme Court Review > General
Overview

**HN12** The United States Supreme Court is a court of review, not of first view.

Civil Procedure >

... > Attorney Fees & Expenses > Basis of Recovery > Statutory Awards

Env ironmental Law > Administrative Proceedings & Litigation > General Overview

Business & Corporate Compliance >

... > Clean Water
Act > Enforcement > Civil Penalties

**HN13** The Clean Water Act contemplates civil penalties of up to $25,000 per day, 33 U.S.C.S. § 1319(d) , as well as attorney’s fees for prevailing parties, 33 U.S.C.S. § 1365(d)

.

Civil Procedure > Preliminary
Considerations > Jurisdiction > General Overview

**HN14** There may be jurisdiction and yet an abse nce of
merits.

Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN15** 33 U.S.C.S. § 1342 does not foreclose more specific definition of the term "associated with industrial activity" by the Environmental Protection Agency, since it provides no further detail as to its intended scope.

Environmental Law >

... > Enforcement > D ischarge
Permits > Storm Water Discharges

**HN16** The former version of the Industrial Stormwater Rule defined discharges associated with industrial activity as discharges from any conveyance that is used for collecting and conveying storm water and that isPage 5 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012). This language lends support to the Environmental Protection Agency's claim that the regulation does not cover temporary, outdoor logging installations. Manufacturing is making something on a large scale us ing machinery; processing is performing a series of mechanical or chemical operations on something in order to change or preserve it. In addition, even if logging as a general matter is a type of economic activity within the regulation’s scope, a reasonabl e interpretation of the regulation could still require the discharges to be related in a direct way to operations at an industrial plant in order to be subject to National Pollutant Discharge Elimination System permitting.

Environmental Law >

... > Enforce ment > Discharge
Permits > Storm Water Discharges

**HN17** In the former version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), the Environmental Protection Agency (EPA) has required National Pollutant Discharge Elimination System permits for stormwater discharges associated with types of outdoor economic activity. § 122.26(b)(14)(iii) (mining); § 122.26(b)(14)(v) (landfills receiving industrial waste); § 122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than
timber

- harvesting operations are and have a closer
connection to trad itional industrial sites. In light of the language of the regulation, moreover, the inclusion of these types of economic activity in the Industrial
Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation’s reach may be limited by the requirement that the discharges be directly related to manufacturing, processing or raw material s storage areas at an industrial plant. § 122.26(b)(14)

.

Administrative Law > Judicial Review > Standards of
Review > Rule Interpretation

**HN18** An agency’s interpretation need not be the only possible reading of a regulation

— or even the best one

— to prevail. When an agency interprets its own regulation, a court, as a general rule, defers to it unless that
inter pretation is plainly erroneous or inconsistent with the regulation. Environmental Law >

... > Enforcement > Discharge
Permits > Storm Water Discharges

**HN19** The references by the former version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), to “facilities,” “establishments,” “manufacturing,” “processing,” and an
“ind ustrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.

Environmental Law >

... > Enforcement > Dischar ge Permits > Storm Water Discharges

**HN20** The preamendment version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), as permissibly construed by the Environmental Protection Ag ency, exempts discharges of channeled stormwater runoff from logging roads from the National Pollutant Discharge Elimination System permitting scheme.



## Lawyers' Edition Display

Decision

[**447] Discharges of channeled stormwater runoff from logging roa ds held to be exempted, by former version of regulation as permissibly construed by Environmental Protection Agency, from permitting scheme of Clean Water Act ( 33 U.S.C.S. § 1251 et seq. ).

Summary

Procedural posture: Respondent organization sued petitioners, a logging and paper products company and a

stat e official, along with other companies, government entities, and officials, in district court under the Clean
Water Act's citizen

- suit provision, 33 U.S.C.S. § 1365

, alleging failure to obtain permits. The district court dismissed the action. The United States Court of Appeals for the Ninth Circuit reversed. The Supreme Court granted certiorari.

Overview: The organization claimed that discharges of channeled stormwater runoff from logging roads violated the Act because the companies had not obtained National Pollutant Discharge Elimination System (NPDES) permits. The Court held that the action was
within the s cope of § 1365 and did not fall under thePage 6 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN exclusive jurisdiction provisions of 33 U.S.C.S. § 1369(b)

, as the suit was a claim to enforce what was at least a permissible reading of the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1) . The case was not mooted by the Environmental Protection Agency's (EPA's) 2012

amen dment to the Industrial Stormwater Rule, 40 C.F.R. § 122.26 , because a live controversy existed as to
whet her petitioners could be held liable for unlawful discharges under the prior rule. It was reasonable to interpret the preamendment version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) , to require discharges to be directly related to operations at an industrial plant in order to be subject to NPDES permitting. The rule, as permissi bly construed by the EPA, exempted discharges of channeled stormwater runoff from logging roads from the NPDES permitting
scheme under 33 U.S.C.S. § 1342(p)

.

Outcome: The Ninth Circuit's judgment was reversed,
and the matter was remanded. 8

- 1 Decision; 1 Concurrence; 1 Concurrence in part and Dissent in part.



## Headnotes

ENVIRONMENTAL LAW §30 > CLEAN WATER AC T

-- PERMITS FOR DISCHARGES > Headnote:

**LEdHN[1]** [1]

Under the Clean Water Act and its implementing regulations, a permit is required if discharges are deemed to be associated with industrial activity. 33 U.S.C.S. § 1342(p)(2)(B) . The Environmental Protection Agency, with the responsibility to enforce the Act, has issued a regulation defining the term “associ ated with industrial activity” to cover only discharges 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. Former 40 C.F.R. § 122.26(b)(4) (amended 2012). (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito,
S otomayor, and Kagan, JJ.)

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- PURPOSE

-- PERMITS > Headnote:

**LEdHN[2]** [2]

Congress passed the Clean Water Act in 1972 to restore and maintain the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C.S. § 1251(a) . A central provision of the Act is its requirement that individuals, corporations, an d governments secure National Pollutant Discharge Elimination System permits before discharging pollution from any point source into the navigable waters of the United States. 33 U.S.C.S. §§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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. § 1362(14)

.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- SILVICULTURAL POINT SOURCE > Headnote:

**LEdHN[3]** [3]

See 40 C.F.R. § 122.27(b)(1) , which provided in part that:

“ Silvicultural point source means 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. The term
does not include non

- point source silvicultural activities
such as n ursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and
maintenance from which there is natural runoff.”

EN VIRONMENTAL LAW §30 > CLEAN WATER ACT

-- PERMITS > Headnote:

**LEdHN[4]** [4]

Under 40 C.F.R. § 122.27(b)(1)

, any discharge from a logging

- related source that qualifies as a point source requires a National Pollutant Discharge Elimination System permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U.S.C.S. § 1342(p) , Congress has exempted certain discharges of stormwater runoff.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER DISCHARGES > Headnote:

**LEdHN[5]** [5]

The 1987 amendments to the Clean Water Act exempt from the National Pollutant Discharge Elimination System (NPDES) permitting scheme most discharges composed entirely of storm water. 33 U.S.C.S. § 1342(p)(1) . ThePage 7 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN general exemption, however, does not extend to all stormwater discharges. Congress dire cted the Environmental Protection Agency (EPA) to continue to require permits for stormwater discharges “associated with industrial activity.” § 1342(p)(2)(B) . The statute does not define that term, but the EPA adopted a regulation (the Industrial Stormwater Rule) in which it defined it as the discharge from any conveyance that is used for collecting and conve ying 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 40 C.F.R. pt. 122 . For the categories of industries identified in the section, the term includes, but is not limited to, stormw ater discharges
from immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or byproducts used or created by the facility. Former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012).

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER RULE > Headnote:

**LEdHN[6]** [6]

The former version of the Industrial Stormwater Rule,
former 40 C.F.R. § 122.26(b)(14) (2006) (amended

201 2), specified that, with one exception, facilities
classified as Standard Industrial Classification 24 are considered to be engaging in “industrial activity” for purposes of § 122.26(b)(14) . The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. Standard Industrial Clas sification 24 identifies
industries involved in the field of “Lumber and Wood Products.” This includes the “Logging” industry, defined as establishments primarily engaged in cutting timber and in producing primary forest or wood raw materials.

ENVIRONMENTA L LAW §30 > CLEAN WATER ACT

-- ENFORCEMENT > Headnote:

**LEdHN[7]** [7]

33 U.S.C.S. § 1365(a) authorizes priv ate enforcement of the provisions of the Clean Water Act and its implementing regulations.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- JUDICIAL REVIEW

-- CITIZEN SUIT > Headnote:

**LEdHN[8]** [8] 33 U.S.C.S. § 1369(b) provides for judicial review in the United States courts of appeals of various particular actions by the Environmental Protection Agency
Administrat or, including establishment of effluent standards and issuance of permits for discharge of pollutants. Where that review is available, it is the exclusive means of challenging actions covered by the statute, § 1369(b)(2) , and an application for review must be lodged in the court of appeals within 120 days of the
Ad ministrator's action, § 1369(b)(1)

. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a
citizen suit under 33 U.S.C.S. § 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Clean Water Act o r its regulations.

ADMINISTRATIVE LAW §80 > REGULATIONS

-- CONSISTENCY WITH STATUTE > Headnote:

**LEdHN[9]** [9]

It is a basic tenet that regulations, in order to be valid, must be consistent with the statute under which they are promulgated.

APPEAL §1656 > CONTROVERSY

-- ALL STAGES OF

REVIEW > Headnote:

**LEdHN[10]** [10]

It is a basic principle of U.S. Const. art. III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.

COURTS §762 > MOOTNESS

-- RELIEF > Headnote:

**LEdHN[11]** [11]

A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

APPEAL §1338 > SUPREME COURT

-- REVIEW > Headnote:

**LEdHN[12]** [12]

The United States S upreme Court is a court of review,
not of first view.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- PENALTIES

-- FEES > Headnote:

**LEdHN[13]** [13]Page 8 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN The Clean Water Act contemplates civil penalties of up to $ 25,000 per day, 33 U.S.C.S. § 1319(d) , as well as attorney's fees for prevailing parties, 33 U.S.C.S. § 1365(d)

.

COURTS §7 > JURISDICTION

-- ABSENCE OF
MERITS > Headnote:

**LEdHN[14]** [14]

There may be jurisdiction and yet an absence of merits.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- DEFINITION OF TERM > Headnote:

**LEdHN[15]** [15]

33 U.S.C.S. § 1342 does not foreclose more specific definition of the term “associated with industrial activity” by the Environmental Protection Agency, since it provides no further detail as to its intended scope. (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, Sotomayor , and Kagan, JJ.)

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER RULE > Headnote:

**LEdHN[16]** [16]

The former version of the Industrial Stormwater Rule defined discharges associated with industrial activity as discharges from any conveyance that is u sed for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012). This language lends support to the Environmental Protection Agency's claim that the regulation does not cover temporary, outdoor logging installatio ns. Manufacturing is making something on a large scale using machinery; processing is performing a series of mechanical or chemical operations on something in order to change or preserve it. In addition, even if logging as a general matter is a type
of eco nomic activity within the regulation's scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations at an industrial plant in order to be subject to National Pollutant Discharge Elimina tion System permitting. (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ.)

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER RULE > Headnote:

**LEdHN[17]** [17] In the former version of the Industrial Stormwat er Rule,
former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), the Environmental Protection Agency (EPA) has required National Pollutant Discharge Elimination System permits for stormwater discharges associated with types of outdoor economic activity. § 122.26(b)(14)(iii) (mining); § 122.26(b)(14)(v) (landfills rec eiving industrial waste); § 122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude , however, that these types of activities tend to be more fixed and permanent than
timber

- harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation, moreover, the inclusion of
these t ypes of economic activity in the Industrial
Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logg ing sites. The regulation's reach may be limited by the requirement that the discharges be directly related to manufacturing, processing or raw materials storage areas at an industrial plant. § 122.26(b)(14) . (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ.)

ADMINISTRATIVE LAW §275 > AGENCY
INTERPRETATION

-- JUDIC IAL
DEFERENCE > Headnote:

**LEdHN[18]** [18]

An agency's interpretation need not be the only possible reading of a regulation

-- or even the best one

-- to prevail. When an agency interprets its own regulation, a court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation. (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ.)

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER RULE > Headnote:

**LEdHN[19]** [19 ]

The references by the former version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amended 2012), to “facilities,” “establishments,” “manufacturing,” “processing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as
factories and associated sites, as well as other relatively fixed facilities. (Kennedy, J., joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ.)Page 9 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN ENVIRONMENTAL LAW §30 > CLEAN WATER ACT

-- STORMWATER RUNOFF

-- LOGGING
ROADS > Headnote:

**LEdHN[20]** [20]

The preamendment version of the Industrial Stormwater Rule, former 40 C.F.R. § 122.26(b)(14) (2006) (amen ded 2012), as permissibly construed by the Environmental Protection Agency, exempts discharges of channeled stormwater runoff from logging roads from the National Pollutant Discharge Elimination System permitting scheme. (Kennedy, J., joined by Roberts, Ch . J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ.)


## Syllabus

[**452] [*1328] The Clean Water Act (Act) requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into the navigable
waters of the United States. See 33 U.S.C. §§1311(a)

, 1362(12) . One of the Environmental Protection Agency's (EPA) implementing regulations, the Silvicultural Rule, specifies which types of logging

- related discharges are point sources. 40 C.F.R. §122.27(b)(1) . These discharges require NPDES permits unless some other federal statutory provision exempts them from coverage. One such statutory provision exempts “discharges composed entirely of stormwater,” 33 U.S.C. §1342(p)(1) , unless the discharge is “associated with industrial activity,” §1342(p)(2)(B) . Under the EPA's Industrial Stormwater Rule, the term “associated with industrial activity” covers only discharges “from any conveyance that is used for collecting and c onveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14) . Shortly [***2] before oral argument in the instant cases, the EPA issued a final
version of an amendment to the Industrial Stormwater Rule, clarifying that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log [**453] sorting, and log storage facilities, which are all listed in the Silvicultural
Rule.

Petitioner Georgia

- Pacific West has a contract with Oregon to harvest timber from a state forest . When it rains, water runs off two logging roads used by petitioner into ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, which evidence shows may be harmful t o fish and other aquatic organisms. Respondent Northwest Environmental Defense Center (NEDC) filed suit against petitioner and state and local governments and officials, [*1329] including petitioner Decker, invoking the
Act's citizen

- suit provision, 33 U.S.C. §1365 , and alleging that the defendants had not obtained NPDES permits before discharging stormwater runoff into two Oregon
rivers. The District Court dismissed the action for failure to state a claim, concluding that NPDES permits were not required because the [***3] ditches, culverts, and channels were not point sources of pollution under the
Act and t he Silvicultural Rule. The Ninth Circuit reversed. It held that the conveyances were point sources under
the Silvicultural Rule. It also concluded that the discharges were “associated with industrial activity” under the Industrial Stormwater Rule, despite the EPA's contrary conclusion that the regulation excludes the type of stormwater discharges from logging roads at issue. Thus, the court held, the discharges were not exempt from the NPDES permitting scheme.

Held:

1. A provision of the Act governing cha llenges to agency actions, §1369(b) , is not a jurisdictional bar to this suit. That provision is the exclu sive vehicle for suits seeking to invalidate certain agency decisions, such as the
establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining
a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. The present actio n falls within the scope of §1365

. Pp. ___

- ___, 185 L. Ed. 2d, at 458

- 459

.

2. The EPA's recent amendment to the Industrial
Stormwater Rule does not make the cases moot. [***4] A live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges
under the earlier version of the Industrial Stormwater Rule. That version governed petitioners' past discharges, which might be the basis for the imposition of penalties even if, in the future , those types of discharges will not require a permit. These cases thus remain live and justiciable. See Gwaltney of Smit hfield, Ltd. v. Chesapeake Bay Foundation, Inc. , 484 U.S. 49, 64

- 65, 108 S. Ct. 376, 98 L. Ed. 2d 306 . The fact that the District Court might rule that NEDC's arguments lack merit, orPage 10 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN that relief is not warranted on the facts of these cases,
does not make the cases moot. Pp. ___

- ___, 185 L. Ed. 2d, at 459

- 460

.

3. The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. The regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B)

, and the agency has construed the regulation to exempt [**454] the discharges at issue here. When an

a gency interprets its own regulation, the Court, as a general rule, defers to it “unless that interpretation
is [***5] 'plainly erroneous or inconsistent with the regulation.' ” Chase Bank USA, N. A. v. McCoy , 562 U.S.

___, ___, 131 S. Ct. 871, 178 L. Ed. 2d 716 (quoting Auer

v. Robbins , 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79) . Here, it was reasonable for the EPA to conclude that the conveyances at issue are “directly related” only
to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14)

. The regulatory scheme, taken as a whole, leaves open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and
associated sites and other relativel y fixed facilities.

Another reason to accord Auer deference to the EPA's interpretation is that there is no indication that the agency's [*1330] current view is a change from prior practice or is a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp. , 567 U.S. ___, ___, 132 S. Ct. 2156, 183 L. Ed. 2d
153 . Rather, the EPA has been consistent in its view that the types of discharges a t issue do not require NPDES permits. Its decision also exists against a background of state regulation with respect to stormwater runoff from logging roads. In exercising the broad [***6] discretion the Act gives the EPA in the realm of stormwater runoff

, the agency could reasonably have concluded that further federal regulation would be duplicative or counterproductive in light of Oregon's extensive rules on the subject. Pp. ___

- ___, 185 L. Ed. 2d, at 460

- 462

.

640 F. 3d 1063 , reversed and remanded.

Counsel: Timothy S. Bishop argued the cause for petitioners. Malcolm L. Stewart argued the cause for the United States, as amicus curiae, by special leave of court.

Jeffrey L. Fisher argued the cause for respondents.

Judges: Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Sca lia, J., joined as to Parts I and II. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of
the cases.

Op inion by: KENNEDY



## Opinion

Justice Kennedy delivered the opinion of the Court.

These cases present the quest ion whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the
United States. **HN1 LEdHN[1]** [1] Under the statute and its implem enting regulations, a permit is required if the discharges are deemed to be “associated with industrial activity.” 33 U.S.C. §1342(p)(2)(B) . The Environmental Protection Agency (EPA), [***7] with the responsibility to enforce the Act, has issued a regulation defining the term “associated with industrial activity” to cover only discharges “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.” [*1331] 40 C.F.R. 122.26(b)(14) (2006) . The EPA interprets its regulation to exclude the type of stormwater discharges from logging
roads at issue here. See [**455] Brief for United States

as Amicus Curiae 24

- 27. For reasons now to be explained, the Court concludes the EPA's determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins , 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)

.

I

APage 11 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN **HN2 LEdHN[2]** [2] Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 86 Sta t. 816, 33 U.S.C. §1251(a) . A central provision of the Act is its requirement that individuals, corporatio ns, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable

waters [***8] of the United States. See §§1311(a)

, 1362(12) ; EPA v. California ex rel. State Water
Resources Control Bd. , 426 U.S. 200, 205, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976) . 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. This term does not in clude agricultural stormwater discharges and return flows from irrigated agriculture.” §1362(14)

.

When t he Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The agency issued regulations exempting certain types of point

- source discharges from the NPDES permi tting scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA “authority to exempt categories of point sources from the permit requirements” of the Act. Natural Resources Defense Council, Inc. v. Costle , 568 F. 2d 1369, 1377, 186 U.S. App. D.C. 147 In response the EPA issued [***9] new regulations to define with more precis ion which categories of discharges qualified as point sources in the first place. Among these regulations was the so

- called Silvicultural Rule. This rule is at issue here. It provides:

**HN3 LEdHN[3]** [3] “ Silvicultural point source means any discernible, co nfined 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. The te rm does not include non

- point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or ro ad construction and maintenance from which there
is natural runoff.” 40 C.F.R. §122.27(b)(1)

.

**HN4 LEdHN[ 4]**  [4] Under the quoted rule, any discharge from a logging

- related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U.S.C. §1342(p) , Congress has exempted certain [**456] discharges of stormwater runoff. The statutory [***10] exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage [*1332] discharges of this kind. See, e.g., Natural Resources Defense Council, Inc. v. EPA , 966 F. 2d 1292, 1295

- 1296 (CA9 1992) . In 1987, Congress responded to these problems and adopted various

stormwater

- related amendments to the Act. § 405, 101 Stat. 69, 33 U.S.C. §1342(p)

.

**HN5 LEdHN[5]** [5] The 1987 amendments exempt from the NPDES permitting scheme most “discharges composed entirely of stormwater.” §1342(p)(1) . The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges “associated with industrial activity.” §1342(p)(2)(B) . The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it 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 [***11] 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 and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by

- products used or created by the facility . . . .” 40 C.F.R. §122.26(b)(14) (2006)

.

**HN6 LEdHN[6]** [6] T he Industrial Stormwater Rule also specified that, with one exception not relevant here, “[f]acilities classified as Standard IndustrialPage 12 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN Classificatio[n] 24” are “considered to be engaging in 'industrial activity' for purposes of paragraph (b)(14) .”
Ibid . The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept. of Labor, Standard Industrial Classifications Manual, online at http://www.osha.gov/pls/imis/sic_manual.html (as visited Mar. 14, 2013, and available in Clerk of Court's case file).
Standard Industrial Cla ssification 24 identifies industries
involved in the field of “Lumber and Wood Products.” 2 App. 64. This includes the “Logging” industry, defined as “[e]stablishments primarily engaged in cutting timber
and [***12] in producing . . . primary forest or wo od raw
materials.” Ibid

.

On November 30, 2012

-- three days before the instant cases were argued in this Court

-- the EPA issued its final
version of an amendment to the Industrial Stormwater Rule. The amendment was the agency's response to the Court of Appea ls' ruling now under review. The amended version seeks to clarify the types of facilities within
Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule.
The amended Industrial Stormwater Rule doe s not cover all facilities within Standard Industrial Classification 24. It limits covered stormwater discharges to

“[f]acilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorti ng, or log storage facilities operated in connection with silvicultural activities . . . and Industry [**457] Groups 242 through 249.” 77 Fed. Reg. 72974 , pt. 122, subpt. B (2012).

It should be noted, by way of explanation, that an Industry Group is a subcategory of businesses within a Standard Industrial Classification. Industry Group 241 is “Logging,” while Industry Groups 242 through 245 are, respectively, [***13] “Sawmills and Planing Mills,” “Millwork, Veneer, Plywood, and Structural Wood,” “Wood Containers,” and “Wood Buildings and
Mobile [*1333] Homes.” Industry Group 249 is
“Miscellaneous Wood P roducts.” Industry Groups 246 through 248 are blank categories. Standard Industrial Classifications Manual, supra , Major Group 24.

It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule.

Up to this stage in the litigation, of course, t he cases have
been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be required for the stormwater discharges at issue. The parties disagree about the significance of the amended rule for purposes of these cases. Before reaching this and other preliminary points, however, it is appropriate to set forth the facts and history of the cases leading to the proceedings in this C ourt.

B

At [***14] issue are discharges of channeled stormwater runoff from two logging roads in Oregon's Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia

- Pacific West, along with other loggin g and paper

- products companies, has a contract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 in ches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from th e roads. There is evidence that this runoff can harm fish and other aquatic organisms.

In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It
invoked the Cl ean Water Act's citizen

- suit provision, 33 U.S.C. §1365 , and named as defendants certain firms
involved in logging and paper

- products operations (including petitioner Georgia

- Pacific West), as
well [***15] as state and local governments and officials (including the State Forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the
defenda nts caused discharges of channeled stormwater runoff into two waterways

-- the South Fork Trask River
and the Little South Fork Kilchis River. The defendantsPage 13 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN had not obtained NPDES permits, and so, the suit alleged, they had violated the Act.

The District C ourt dismissed the action for failure to state a claim. It concluded that NPDES permits

were [**458] not required because the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvicultural Rule. The Court of Appeal s for the Ninth Circuit reversed. Northwest Environmental Defense Center v. Brown, 640 F. 3d 1063 (2011) . It relied upon three principal propositions. First, it held that the District Court had subject

- matter jurisdiction under §1365 notwithstanding a different provision of the Act, 33 U.S.C. §1369(b)(1) , limiting judicial review of EPA regulations. Second, the Court of Appeals held that while the EPA's Silvicultural Rule is ambiguous on the question whether
the c onveyances at issue are point sources, those conveyances must be deemed point [***16] sources under the rule in order to give effect to the Act's expansive definition of the term. Third, the Court of [*1334] Appeals
held that because the Industrial Storm water Rule makes

cross

- reference to Standard Industrial Classification 24, the discharges at issue are “associated with industrial activity” within the meaning of the regulation, despite the EPA's conclusion to the contrary. The regulation was held
to be u nambiguous on this point. The Court of Appeals thus ruled that the discharges were from point sources and not exempt from the NPDES permitting scheme by the Industrial Stormwater Rule. It followed that petitioners
had been in violation of the Act.

This Co urt granted certiorari. 567 U.S. ___, 133 S. Ct. 22, 183 L. Ed. 2d 673 (2012)

.

II

Before proceeding to the merits, it is necessary to consider two jurisdictional questions.

A

Respondent NEDC invoked the jurisdiction of the District
Court under **HN7 LE dHN[7]**  [7] 33 U.S.C. §1365(a)

, which “authorize[s] private enforcement of the provisions of [the Clean Water Act]” and its implementing regulations. D epartment of Energy v. Ohio , 503 U.S. 607, 613, n. 5, 112 S. Ct. 1627, 118 L. Ed. 2d 255 (1992)

. Petitioner s, however, maintain that this suit is barred by a separate provision of the Act, **HN8 LEdHN[8]** [8] §1369(b ) . That statute provides [***17] for “judicial review in the United States courts of appeals of various particular actions by the [EPA] Administrator, including
establishment of effluent standards and issuance of permits for discharge of pollutants.” Middlesex County Sewerage Authority v. National Sea Clammers Assn.

, 453 U.S. 1, 13

- 14, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) . Where that review is available, it is the exclusive means of challenging actions covered by the statute

, §1369(b)(2) , and an application for review must be lodged in the court of appeals within 120 days of the Administrator's action, §1369(b)(1)

.

The Court of Appeals was correct to rule that the exclusive jurisdi ction mandate is not applicable in this
suit. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations.

The present action is within the scope of §1365 . It is a claim to enforce what is at least a permissible reading of
the Silvicultural Rule. The rule i s ambiguous: Its characterization of silvicultural harvesting operations
“from [***18] which there is natural runoff,” [**459] 40 C.F.R. §122.27(b)(1) , as a nonpoint source might be read, as petitioners contend, to apply to the channeled stormwater runoff at issue; or it might be read, as respondent NEDC urges, to apply only to runoff not
collected in channe ls or other engineered improvements. See New Oxford American Dictionary 1167 (3d ed. 2010) (Oxford Dict.) (“natural” means “existing in or caused by nature; not made or caused by humankind”). NEDC's reading would make the channeled discharges here point

- so urce pollution under the Act. In its view only this interpretation can be squared with the Act's broad definition of “point source.” 33 U.S.C. §1362(14) . On this premise, the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation. **HN9 LEdHN[9]** [9] It is a basic tenet that “regulations, in order to be v alid, must be consistent with the statute under which they are promulgated.” United
States v. Larionoff , 431 U.S. 864, 873, 97 S. Ct. 2150, 53 L. Ed. 2d 48 (1977)

.

[*1335] For jurisdictional purposes, it is unnecessary to
dete rmine whether NEDC is correct in arguing that onlyPage 14 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN its reading of the Silvicultural Rule is permitted under the Act. It suffices to note that NEDC urges [***19] the Court to adopt a “purposeful but permissible reading of the regulation . . . to bring it i nto harmony with . . . the statute.”
Environmental Defense v. Duke Energy Corp. , 549 U.S. 561, 573, 127 S. Ct. 1423, 167 L. Ed. 2d 295 (2007)

. NEDC does not seek “an implicit declaration that the . . . regulations were invalid as written.” Ibid . And, as a result, §1369(b) is not a jurisdictional bar to this suit.

B

**HN10 LEdHN[10]** [10] “It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male , 564 U.S. ___, ___, 131 S. Ct. 2860, 180 L. Ed. 2d 811, 815 (2011) ( per curiam ) (internal quotation marks omitted). This principle requires us to determine whether the EPA's
recent amendmen t to the Industrial Stormwater Rule makes the cases moot. In a supplemental brief filed after oral argument, petitioner Decker, joined by the United
States as amicus curiae , takes the position that the recent amendment makes these cases moot in relevant pa rt. See Supp. Brief for Petitioners in No. 11

- 338, pp. 4

- 6; Supp. Brief for United States as Amicus Curiae 4

- 8.

That conclusion is incorrect. **HN11 LEdHN[11]** [11] “A case becomes moot only when it is impossible for a court

to [***20] grant any effectual r elief whatever to the prevailing party.” Knox v. Service Employees Int’l, 567 U.S. ___, ___, 132 S. Ct. 2277, 183 L. Ed. 2d 281, 295 (2012) (internal quotation marks omitted). Here, despite the recent amendment, a live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the
Industrial Stormwater Rule.

Respondent NEDC continues to press its claim that petitioners' discharges are unlawful under both the amended regulation and the earlier version. See Supp. Brief for Respondent 3

- 13. The instant cases provide no occasion to interpret the amended regulation. **HN12**
**LEd HN[12]**  [12] “ '[W]e are a court of review, not of first
view.' ” Ark. Game & Fish Comm'n v. United States

, ante

, at ___, 133 S. Ct. 511, 184 L. Ed. 2d 417 (quoting Cutter

v. Wilkinson , 5 44 U.S. 709, 718, n. 7, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005)) . The parties, however,
have [**460] litigated the suit extensively based on the earlier version of the Industrial Stormwater Rule; and that version governed petitioners' past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit.

If the Court of Appeals is correct that petitioners were obligated to secure [***21] NPDES permits before discharging ch anneled stormwater runoff, the District Court might order some remedy for their past violations. **HN13 LEdHN[13]** [13] The Act contemplates civil penalties of up to $25,000 per day, 33 U.S.C. §1319(d)

, as well as attorney's fees for prevailing parties, §1365(d)

. NEDC, in addition, requests injunctive relief for both past and ongoing violations, in part in the form of an order that petitioners incur certain environmental

- remediation costs to alleviate harms attributable to their past discharges.
Under these circu mstances, the cases remain live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. , 484 U.S. 49, 64

- 65, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987)

. The District Court, it is true, might rule that NEDC's arguments lack [*1336] merit, or that the relief it seeks is
not warranted on the facts of these cases. That possibility, however, does not make the cases moot.
**H**

**N14 LEdHN[14]** [14] “There may be jurisdiction and yet
an absence of merits.” General Investment Co. v. New
York Central R. Co. , 271 U.S. 228, 230, 46 S. Ct. 496, 70 L. Ed. 920 (1926)

.

III

The substantive question of the neces sity for an NPDES permit under the earlier rule now [***22] must be addressed. Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were “associated
with industrial activ ity,” 33 U.S.C. §1342(p)(2)(B) , as that statutory term is defined in the preamendment version of
the Indus trial Stormwater Rule, 40 C.F.R. §122.26(b)(14) (2006) . Otherwise, the discharges fall within the Act's

ge neral exemption of “discharges composed entirely of stormwater” from the NPDES permitting scheme. 33
U.S.C . §1342(p)(1)

.

NEDC first contends that the statutory term “associated with industrial activity” unambiguously covers discharges of channeled stormwater runoff from logging roads. SeePage 15 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842

- 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) . That view, however, overlooks the multiple definitions of the terms “industrial” and “industry.”
These words can refer to business activit y in general, yet so too can they be limited to “economic activity concerned with the processing of raw materials and manufacture of goods in factories.” Oxford Dict. 887. The latter definition does not necessarily encompass outdoor timber harvesting. **HN15 LEdHN[15]**  [15] The statute
does [***23] not foreclose more specific definition by the agency, since it provides no further detail as to its intended scope.

Somewhat more plausible is NEDC's claim that the preamendment version of the Industrial Stormwate r Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, “[f]or the categories of industries identified in this section,” NPDES permits are required for, among other things, “storm water discharges from [**461] . . . immediate access roads . . . used or traveled by carriers of raw materials.” 40 C.F.R. §122.26(b)(1 4) (2006) . Yet this raises the question whether logging is a “categor[y] of industr[y]” identified by the section. The regulation goes on to identify a list of “categories of facilities” that “are considered to be engaging in 'industrial activity' for

purp oses” of the Industrial Stormwater Rule. Ibid . In the earlier version of the regulation, this list included “[f]acilities classified as Standard Industrial Classificatio[n] 24,” which encompasses “Logging.” Ibid

. See also supra, at ___

- ___, 185 L. Ed. 2d, at 456

. Hence, NEDC asserts, logging is among the categories of industries for which “storm water discharges from . . .
immediate access roads . . . used [***24] or traveled by carriers of raw materials” required NPDES permits under
the ea rlier version of the Industrial Stormwater Rule. §122.26(b)(14) . NEDC further notes, in support of its

rea ding of the regulation, that modern logging is a large

scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons. See Brief for Respondent 4

- 5.

The EPA takes a different view. It concludes that the earlier regulat ion invoked Standard Industrial Classification 24 “ 'to regulate traditional industrial
sources such as sawmills.' ” Brief for United States as
Amicus Curiae 24

- 25. It points to the regulation's
reference to “facilities” and the classification's reference to “establishments,” [*1337] which suggest industrial sites more fixed and permanent than outdoor timber

harvesting operations. Ibid . See also 55 Fed. Reg. 47990, 48008 (1990) . This reading is reinforced by **HN16 LEdHN[16]**  [16] the Industrial Stormwater Rule's definition of discharges associated with industrial activity as discharges “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 indu strial plant

. ” 40 C.F.R. §122.26(b)(14) (2006)

. [***25] This language lends support to the EPA's claim th at the regulation does not cover temporary, outdoor logging installations. It was reasonable for the agency to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing,” “processin g,” or “raw materials storage areas.” See Oxford Dict. 1066 (manufacturing is “mak[ing] (something) on a large scale using machinery”); id., at 1392 (processing is “perform[ing] a series of mechanical or chemical operations on (something) in order to chang e or preserve it”). In addition, even if logging as a general matter is a type of economic activity within the regulation's scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations “at an industrial plant” in order to be subject to NPDES permitting.

NEDC resists this conclusion, noting that elsewhere in **HN17 LEdHN[17]** [17] the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with oth er types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) [***26] (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent
than timber

- harvestin g operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, [**462] moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule
need not be rea d to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation's reach may be limited by the requirement that th e discharges be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” §122.26(b)(14)

.

It is well established that **HN18 LEdHN[18]** [18] anPage 16 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN agency's interpretation need not be the only possible reading of a regulation

-- or even the best one

-- to prevail. When an agency interprets its own regulation, the Court,

as a general rule, defers to it “unless that interpretation is 'plainly erroneous or inconsistent with the regulation.' Chase Bank USA, N. A. v. McCoy , 562 U.S. ___, ___, 131 S. Ct. 871, 178 L. Ed. 2d 716, 719, 727 (2011) ) (quo ting [***27] Auer , 519 U.S., at 461, 117 S. Ct. 905,
137 L. Ed. 2d 79 ). The EPA's interpretation is a permissible one. Taken together, **HN19 LEdHN[19]** [19] the regulation's references to “facilities,” “establishments,” “manufacturing,” “proce ssing,” and an “industrial plant” leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities.

There is another reason to accord Auer deference to the EPA's interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp. , 567 U.S. ___, ___, 132 S. Ct. 2156, 183 L. Ed. 2d 153 (2012) . The opposite is the case. The [*1338] agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits.

The EPA's decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These

pr actices include rules mandating filtration of stormwater
runoff before it [***28] enters rivers and streams, Ore.
Admin. Rule 629

- 625

- 0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rul e 629

- 625

- 0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity,
Rule 629

- 625

- 0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the deve lopment, siting, maintenance, and regulation of roads

-- and in particular of state forest roads

-

- are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, th e agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express
instructions to the EPA to work “in consultation with State
and local officials” to alleviat e stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U.S.C. §1342(p)(6)

.

* * *

**HN20 LEdHN[20]** [20] The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, [**463] exempts discharges
of [***29] channeled stormwater runoff from logging
roads from the N PDES permitting scheme. As a result, there is no need to reach petitioners' alternative argument that the conveyances in question are not “pipe[s], ditch[es], channel[s], tunnel[s], conduit[s],” or any other type of point source within the Act's definition of the term. §1362(14)

.

For the reasons stated, the judgment of the Court of Appeals is reversed, and th e cases are remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Breyer took no part in the consideration or
decision of these cases.

Concur by: ROBERTS; SCALIA(In Part)



## Concur

Chief Justice Roberts , with whom Justice Alito joins, concurring.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in
Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945) , and Auer v. Robbins

, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) . It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Respondent suggested reconsidering Auer , in one

sentenc e in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don't do it, again in a footnote. See Reply Brief for Petitioners in No. 11

- 338, [***30] p. 4, n. 1; see also Turner BroadcastingPage 17 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN System, Inc. v. FCC , 520 U.S. 180, 223

- 224, 117 S. Ct. 1174, 137 L. Ed. 2d 369 (1997) (declining to decide question that received only “scant argumentation”). Out
of 22 amicus briefs, only two

-- filed by dueling groups of law professors

-- addressed the issue on the merits. See
Brief for Law Professors as Amici Curiae on the Propriety of Administrative Deference in Support of Respondent;
Brief for Law Professors as Amici Curiae in Support of Petitioners; see also FTC v. Phoebe Putney Health System, **[*1339]** Inc. , 568 U.S. ___, ___, n. 4, 133 S. Ct. 1003, 185 L. Ed. 2d 43, 54, n. 4 (2013) ) (declining to

cons ider argument raised only by amicus ).

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis.
The bar is now aware that there is some interest in

reco nsidering those cases, and has available to it a concise statement of the arguments on one side of the
issue.

I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.

Dissent by: SCALIA(In Part)



## Dissent

Justice Scalia , concurring in part and dissenting in part.

I join Parts [***31] I and II of the Court's opinion; I agree
that these cases are not moot and that the District Court
had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA's regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency h as vividly illustrated that it can write a rule saying precisely what it means

-- by doing just that while these cases were being briefed.

Enough is enough.

[**464] I

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless

- sounding banner of “defer[ring] to an agency's interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co. , 564 U.S. ___, ___, 131 S. Ct. 2254, 180
L. Ed. 2d 96, 112 (2011) (Scalia, J., concurring). This is generally called Seminole Rock or Auer deference. See
Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945) ; Auer v. Robbins , 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)

.

Two Terms ago, in my separate concurrence in Talk
America , I expressed doubts about the validity of this practice. In that case, however, the agency's interpretation of the rule was also the fairest [***32] one, and no party had asked us to reconsider Auer . Today, however, the Court's deference to the agency makes the difference (note the Court's defensive insistence that the agency's interpretation need not be “the best one,” ante

, at ___, 185 L. Ed. 2d, at 462 ). And respondent has asked us, if necessary, to “ 'reconsider Auer. ' ” I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of
Administrative Deference as Amici Curiae . This is especially true because the circumstances of these
cases illustrate Auer 's flaws in a particularly vivid way.

The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rul es unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock

, supra
, at 414, 65 S. Ct. 1215, 89 L. Ed. 1700 . But of course whenever the agency's interpretation of the regulation is
di fferent from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U.S. A. Inc.

v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)

. [***33] The agency's interpretation will be accepted if, though not the fairest reading of the regula tion, it is a plausible reading

-

- within the [*1340] scope of the ambiguity that the regulation contains.

Our cases have not put forward a persuasive justification
for Auer deference. The first case to apply it, Seminole
Rock , offered no justification wha tever

-- just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous orPage 18 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN inconsistent with the regulation.” 325 U.S., at 414, 65 S. Ct. 1215, 89 L. Ed. 1700 . Our later cases provide two principal explanations, neither of which has much to be said for it. See generally Stephenson & Pogoriler,
Seminole Rock' s Doma in, 79 Geo. Wash. L. Rev. 1449,
1454

- 1458 (2011) . First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. E.g., Martin v. Occupational Safety and Healt h Review Comm’n , 499 U.S. 144, 150

- 153, 111 S. Ct. 1171, 113 L. Ed. 2d 117 (1991) . The implied premise of this argument

-- that what we are looking for is the agency's intent in adopting the
rule

-- is false. There is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature [***34] meant; we ask only what the
statute means.” [**465] The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they

say , not by the u nexpressed intention of those who made
them.

The other rationale our cases provide is that the agency possesses special expertise in administering its “ 'complex and highly technical regulatory program.' ” See,

e.g., Thomas Jefferson Univ. v

. Shalala , 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994) . That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations

- - unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking , in which the agency us es its “special expertise” to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule

-

- to “say what the law is,” Marbury v. Madison , 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (180 3) . Not to make policy, but to determine what policy [***35] has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his “special expertise” to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the “special expertise” of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best. Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per
Chevron , it is a fortiori reasonable to defer to them regarding the meaning of regulations that they
themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.

But it is not odd at all. The theory of Chevron (take it or leave it) [***36] is that when Congress gives an agency authority to administer a statute, including authority

to [*1341] issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the

stat ute. See Smiley v. Citibank (South Dakota), N. A. , 517 U.S. 735, 740

- 741, 116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996) . While the implication of an agency power to clarify the statute is reasonable enough, there is surely no

congres sional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers

-- that the power to write a law and the power to interpret it cannot
rest in the same hands. “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151

- 152 (O. Piest ed., T. Nugent [**466] transl. 1949). Congress cannot enlarge its own power through Chevron

-- whatever it leaves vague in the statute will be worked out by someone else

. Chevron represents a presumption about who, [***37] as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way

-- the competing political branch

-- is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.

But when an agency interprets its own rules

-- that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility”
that will enable “clarification” with retroactive effect. “It is perfectly understandable” for an agency to “issue vague regulations” if doing so will “maximiz[e] agency power.”Page 19 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN Thomas Jefferson Univ.

, supra , at 525, 114 S. Ct. 2381,
129 L. Ed. 2d 405 (Thomas, J., dissenting). Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving
doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords
as a court of last res ort, [***38] due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543

- 544 (J. Cooke ed. 1961). Auer deference encourages agencies to be “vague in framin g regulations, with the plan of issuing 'interpretations' to create the
intended new law without observance of notice and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Admin. L. J. Am. U. 1, 11

- 12 (1996)

. Auer is not a logical corollary

to Chevron but a dangerous permission slip for the arrogation of power. See Talk America , 564 U.S., at ___, 131 S. Ct. 2254, 180 L. Ed. 2d 96 Scalia, J., concurring); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996)

.

It is true enough that Auer deference has the same beneficial pragmatic ef fect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years l ater, by this Court. The agency's view can be relied

upon, [***39] unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as so on as an interpretation uncongenial to the [*1342] agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed. Reg. 72974 (2012) (to be codified in 40 C.F.R. pt. 122, sub pt. B ). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an [**467] amended rule setting forth in unmistakable terms the position it argues here. And there
is another r espect in which a lack of Chevron

- type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, [***40] as here, a party harmed by the violation has standing to compel enforcement.

In any case, however great may be the efficiency gains
derived from Auer deference, beneficial effect cannot jus tify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its
violation.

II

I would therefore resolve these cases by using the familiar tools of textual interpr etation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel stormwater runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and pos sibly two, questions: First, was the stormwater discharged from a “point source”? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit requirement because they were not
“associated wi th industrial activity”? The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity.

A

The Clean Water Act generally prohibits discharging pollution without a permit [***41] from what it calls a “point
source.” 33 U.S.C. §1311(a) . A “point source” is defined as “any disc ernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,” and several other things. §1362(14) . The stormwater here was discharged from logging roads through a series of pipes, ditches, and channels

-- all items expressly named in the definition.

EPA argues that the Silvicultural Rule, 40 C.F.R. §122.27(b)(1) (2006)

, excludes from the definition of “[s]ilvicultural point source” “harvesting operations . . . from which there is natural runoff.” This is relevant, saysPage 20 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN the agency, because that rule specifies that only “[s]ilvicultural point sources, as defined in this section,”

a re “point sources subject to the . . . permit program.” §122.27(a) . In EPA's view, the stormwater here is
“natural runoff.”

But are stormwater discharges “natural runoff” when they are channeled through manmade pipes and ditches, and carry with them manmade pollutants from manmade
forest roads? It is not obvious that this is so

-- as the agency agrees. See Brie f for United States as Amicus
Curiae 19 (the rule's “reference to 'natural runoff' associated with logging roads [***42] neither clearly encompasses nor clearly excludes the sort of channeled runoff that is at issue in this case”). In my view, giving the

term [*1343] the agency's interpretation would contradict the statute's definition of “point source,” which explicitly includes any “pipe, ditch, channel, tunnel, [and] conduit.” Applying the interpretive presumption of validity

-- the
canon that we are to “prefe[r] the meaning that preserves to the meaning that destroys,” [**468] Panama Refining
Co. v. Ryan , 293 U.S. 388, 439, 55 S. Ct. 241, 79 L. Ed. 446 (1935) (Cardozo, J., dissenting)

-- I would hold that the regulation's exclu sion of “natural runoff” does not reach the situation here. The stormwater discharges came from point sources, because they flowed out of artificial “pipe[s],” “ditch[es],” and “channel[s],” 33 U.S.C. §1362(14) , and were thus not “ natural runoff” from a logging operation, 40 C.F.R. §122.27(b)(1) (emphasis added).

B

Many point

- source stormwater discharges are nonetheless exempt from the usual permitting requirement. See 33 U.S.C. §1342(p) . This exemption, however, does not reach discharges “associated with industrial activity.” Ibid . EPA has enacted a rule defining what it means for stormwater discharges to be
“associated with” [***43] industrial activity, and what
activities count as “industrial.” 40 C.F.R. §122.26(b)(14)

.

The regulation sets out eleven “categories of industries”; as to those industries, discharges are “associated with industrial activity” if they come from sites used for “transportation” of “any raw material.” Ibid. The forest roads at issue here are used to transport raw material (logs); the only question is whether logging is a “categor[y] of industr[y]” enumerated in the definition. It is: The second of the listed “categories of facilities” is “[f] acilities classified as Standard Industrial Classifications 24 (except 2434).” §122.26(b)(14)(ii)

. Opening one's hymnal to Standard Industrial Classification 24 (“Lumber and Wood Products, Except Furniture”), one finds that the first industry group listed, No. 2411, is “Logging”

-- defined as “[e]stablishments primarily engaged in cutting timber.” 2 App. 64. (As if that were not clear enough, an illustrative product of this industry is helpfully listed: “Logs.”) That, I would think, is
that.

EPA disagrees, and the Court gives the agency's position
Auer deference, but that reading is certainly not the most

natura l one. The Court relies heavily on the fact
that [***44] the definition of “[s]torm water discharge associated with industrial activity” requires that the discharge be “directly related to manufacturing, processing or raw materials storage areas at an ind ustrial plant,” §122.26(b)(14) . The crucial question this definition presents is whether the concluding ph rase “at an industrial plant” limits only the last noun phrase (“raw materials storage areas”) or also the two preceding nouns (“manufacturing” and “processing”). The canon of interpretation known as the rule of the last antecedent states that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnh art v. Thomas , 540 U.S. 20, 26, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) . If a statute provides that “it sh all be unlawful to possess a grenade launcher, a fully

- automatic weapon, or a shotgun with a barrel shorter than 12 inches,” that does not mean that a grenade launcher with a barrel longer than 12 inches is legal. Application of the canon would
mean that “ at an industrial plant” modifies only “raw materials storage areas,” and therefore that “manufacturing” and “processing” anywhere , including in the forest, would be “associated with
industrial [***45] activity.” (Standard Industrial
Classification 24 cate gorizes logging as a manufacturing business, and these discharges are therefore “directly related to manufacturing.”)

[**469] Like all canons of interpretation, the rule of the
last antecedent can be overcome [*1344] by textual indication of contrary meaning. But that does not exist here. To the contrary, the enumerated categories of industries to which the term “industrial activity” applies reinforce the proposition that “at an industrial plant” does not modify “manufacturing” or “processing.” The ter m includes (in addition to logging) “active or inactive miningPage 21 of 21

Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN operations,” §122.26(b)(14)(iii) ; “[l]andfi lls” and “open dumps,” §122.26(b)(14)(v) ; “automobile junkyards,” §122.26(b)(14)(vi) ; and “[c]onstruction activity including clearing, grading and excavation,” §122.26(b)(14)(x)

. Those industries and activities (while related to manufacturing and processing) virtually never take place at anything like what one might describe as a “plant.” The
rule of the last antecedent is therefore confirmed as the correct guide to meaning here: “at an industrial plant” limits only “raw materials storage areas.”

EPA also insists, Brief for United States as
Amicus **[***46]** Curiae 24, that the regulation reaches only “ 'traditional' ” sources of industrial stormwater, such
as sawmills. But Standard Industrial Classification 24 has a specific subcategory (No. 242) that is “Sawmills and Planing Mills.” 2 App. 64. The rule is not so l imited, reaching by its terms “Standard Industrial Classificatio[n] 24 (except 2434).” §122.26(b)(14)(ii)

. The explicit carving

- out of No. 2434 is telling: Why EPA chose to exclude “establishments primarily engaged in manufacturing wood kitchen cabinet and wood bathroom vanities” from the definition of industrial stormwater, I do
not know

-- but the picayune nat ure of the exclusion gives lie to the idea that the rule's scope ought to be decided by a rough sense of its gestalt. If EPA had meant to reach only sawmills, it quite obviously knew how to do so.

Finally, the Court believes that Standard Industrial
Class ification 24's reference to “establishments” “suggest[s] industrial sites more fixed and permanent
than outdoor timber

- harvesting operations.” Ante , at ___, 185 L. Ed. 2d, at 461 . Not so. The Standard Industrial
Classification uses “establish ments” throughout to refer to business entities in general; for example, Classification 2411 refers to “[e]stablishments [***47] primarily engaged in cutting timber,” which includes “producing wood chips in the field.” 2 App. 64. I cannot imagine what
kin d of “fixed and permanent” industrial site the Court and EPA imagine will be “producing wood chips in the field.” And the Court's final point, ante, at ___, 185 L. Ed. 2d, at
461

-- that the regulatory definition of “industrial activity”

uses t he word “facilities”

-- cuts the other way: EPA regulations define “facility” to include “any . . . 'point
source.' ” 40 C.F.R. §122.2 ; see, e.g., §122.26(b)(14)(iii) (referring to mines as “facilities”). The agen cy also assures us that its intent (Brief for United
States as Amicus Curiae 25) was to reach a more limited subset of logging activities, an intent that it believes can essentially float free from the text of the relevant rule. In the end, this is the rea l meat of the matter: EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been amply demonstrated to be a contrary text.

* * *

Because t he fairest reading of the agency's rules proscribes the conduct [**470] at issue in these cases, I would affirm the judgment below. It is time for us to

presume [***48] (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says
there.



## References

33 U.S.C.S. § 1251 et seq.

2 Treatise on Environmental Law § 3.03 (Matthew Bender)

L Ed Digest, Environmental Law § 30

L Ed Index, Water Pollution

Validity, construction, and application of Clean Water Act (CWA) (Federal Water Pollution Control Act) ( 33 U.S.C.S. § 1251 et seq. )

-- Supreme Court cases. 168 L.
Ed. 2d 813

.

Supreme Court's views as to requisites for award of attorneys' fees. 77 L. Ed. 2d 1540

.

What circumstances render civil c ase, or issues arising therein, moot so as to preclude Supreme Court's
consideration of their merits. 44 L . Ed. 2d 745

.

Supreme Court's view as to weight and effect to be given, on subsequent judicial construction, to prior
administrative construction of statute. 39 L. Ed. 2d 942

.

End of Document