SIMMA KUPCHAN

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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 document 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 10052 (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, sources, 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 Appeals 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 Elimination System (NPDES) 

permits. The Court held that the action was within the 

scope of § 1365 and did not fall under the 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 

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 Dissent in part.

LexisNexis® Headnotes
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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).

Environmental 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 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, 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, 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 > ... > Clean Water Act > Coverage & 

Definitions > Point Sources

HN3 See 40 C.F.R. § 122.27(b)(1).

Environmental Law > ... > Clean Water Act > Coverage & 

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 

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 > ... > 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 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 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 

used 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 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 Classification 24 identifies 

industries involved in the field of “Lumber and Wood 
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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 particular 

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 

filed.

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

Environmental 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 absence 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 > Discharge 

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 is 
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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 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 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 National Pollutant Discharge Elimination 

System permitting.

Environmental Law > ... > Enforcement > 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 traditional 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 materials 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 

interpretation 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 

“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.

Environmental Law > ... > Enforcement > Discharge 

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 Agency, 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 roads 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 

state 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 scope of § 1365 and did not fall under the 
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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 

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).

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 ACT --

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 “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)(4) (amended 2012). (Kennedy, J., 

joined by Roberts, Ch. J., and Thomas, Ginsburg, Alito, 

Sotomayor, 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, 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, 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 nursery 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.”

ENVIRONMENTAL 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). The 
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Decker v. Northwest Envtl. Def. Ctr.

SIMMA KUPCHAN

general exemption, however, does not extend to all 

stormwater discharges. Congress directed 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 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, stormwater 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 

2012), 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 Classification 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.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT --

ENFORCEMENT > Headnote:

LEdHN[7] [7]

33 U.S.C.S. § 1365(a) authorizes private 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 

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 §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 Supreme Court is a court of review, 

not of first view.

ENVIRONMENTAL LAW §30 > CLEAN WATER ACT --

PENALTIES -- FEES > Headnote:

LEdHN[13] [13]
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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 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). 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 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 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 

National Pollutant Discharge Elimination 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 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 traditional 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 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 -- JUDICIAL 

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.)
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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) (amended 

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 conveying 

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 to 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 the 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 challenges to agency 

actions, §1369(b), is not a jurisdictional bar to this suit. 

That provision is the exclusive 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 action 

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 Smithfield, 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, or 
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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 

agency 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 relatively 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 at 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 Scalia, 

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.

Opinion by: KENNEDY

Opinion

Justice Kennedy delivered the opinion of the Court.

These cases present the question 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 implementing 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 

A 
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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 Stat. 

816, 33 U.S.C. §1251(a). A central provision of the Act is 

its requirement that individuals, corporations, 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 include 

agricultural stormwater discharges and return flows 

from irrigated agriculture.” §1362(14).

When the 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 permitting 

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. 147In response the EPA issued [***9] new 

regulations to define with more precision 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, 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 nursery 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.” 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] The Industrial Stormwater Rule also 

specified that, with one exception not relevant here, 

“[f]acilities classified as Standard Industrial 
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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 Classification 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 wood 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 Appeals' 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 does 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 sorting, 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 Products.” 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, the 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 Court.

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 logging 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 inches 

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 the 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 Clean 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 

defendants caused discharges of channeled stormwater 

runoff into two waterways--the South Fork Trask River 

and the Little South Fork Kilchis River. The defendants 
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had not obtained NPDES permits, and so, the suit 

alleged, they had violated the Act.

The District Court 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 Appeals 

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 conveyances 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 Stormwater 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 unambiguous 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 Court 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 LEdHN[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. Department of Energy v. Ohio, 503 U.S. 607, 

613, n. 5, 112 S. Ct. 1627, 118 L. Ed. 2d 255 (1992). 

Petitioners, 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 jurisdiction 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 is 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 channels 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-source 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 valid, 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 

determine whether NEDC is correct in arguing that only 
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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 into 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 amendment 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 part. 

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 relief 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 

LEdHN[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, 544 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 channeled 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 circumstances, 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. 

HN14 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 necessity 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 activity,” 33 U.S.C. §1342(p)(2)(B), as that 

statutory term is defined in the preamendment version of 

the Industrial Stormwater Rule, 40 C.F.R. §122.26(b)(14) 

(2006). Otherwise, the discharges fall within the Act's 

general 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. See 
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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 activity 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 Stormwater 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)(14) (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 

purposes” 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 earlier version of the Industrial Stormwater Rule. 

§122.26(b)(14). NEDC further notes, in support of its 

reading of the regulation, that modern logging is a largescale, 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 regulation 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 timberharvesting 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 industrial plant.” 40 C.F.R. 

§122.26(b)(14) (2006). [***25] This language lends 

support to the EPA's claim that 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,” “processing,” 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 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 

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 other 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-harvesting 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 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 materials storage areas at an industrial 

plant.” §122.26(b)(14).

It is well established that HN18 LEdHN[18] [18] an 
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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)) 

(quoting [***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,” “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.

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 

practices 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, Rule 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 development, 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, the 

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 alleviate 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 NPDES 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 the 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 

sentence 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 Broadcasting 
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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 

consider 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 

reconsidering 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 has 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 rules 

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 

different 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 regulation, 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 whatever--just the ipse dixit

that “the administrative interpretation . . . becomes of 

controlling weight unless it is plainly erroneous or 
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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 Domain, 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 Health 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 unexpressed 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 uses 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 (1803). 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 

statute. 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 

congressional 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.” 
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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 resort, [***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 framing 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 effect 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 later, 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 soon 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 respect 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 

justify 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 interpretation 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 possibly 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 with 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 discernible, 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, says 
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the agency, because that rule specifies that only 

“[s]ilvicultural point sources, as defined in this section,” 

are “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 Brief 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 exclusion 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 

natural 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 industrial 

plant,” §122.26(b)(14). The crucial question this definition 

presents is whether the concluding phrase “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.” Barnhart v. Thomas, 540 U.S. 

20, 26, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). If a 

statute provides that “it shall 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 categorizes 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 term 

includes (in addition to logging) “active or inactive mining 
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operations,” §122.26(b)(14)(iii); “[l]andfills” 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 limited, 

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 nature 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 

Classification 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 “establishments” 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 

kind 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 the 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 agency 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 real 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 the 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 case, 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