Nos. 11-338 and 11-347 

In the Supreme Court of the United States

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON 

STATE FORESTER, ET. AL., PETITIONERS

v. 

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, 

ET AL. 

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

v. 

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, 

ET AL. 

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

SUPPORTING PETITIONERS 

SCOTT C. FULTON

General Counsel 

U.S. Environmental 

 Protection Agency 

Washington, D.C. 20460 

DONALD B. VERRILLI, JR. Solicitor General 

Counsel of Record 

IGNACIA S. MORENO

 Assistant Attorney General 

MALCOLM L. STEWART

 Deputy Solicitor General 

ETHAN G. SHENKMAN

Deputy Assistant Attorney 

General 

PRATIK A. SHAH

Assistant to the Solicitor 

General 

AARON P. AVILA

JUDY B. HARVEY

Attorneys 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217
(I) 

QUESTIONS PRESENTED 

1. Whether the court of appeals erred in holding that 

a suit in which liability depends on the interpretation of 

Clean Water Act (CWA) regulations, and in which the 

court rejected the construction of the regulations proffered by the Environmental Protection Agency (EPA), 

may be adjudicated under the CWA’s citizen suit provision, 33 U.S.C. 1365(a), rather than under the CWA’s judicial review provision, 33 U.S.C. 1369(b). 

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

stormwater regulation, 40 C.F.R. 122.26(b)(14), that runoff from logging roads does not constitute a stormwater 

discharge “associated with industrial activity.” 

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

C.F.R. 122.27(b)(1), that runoff from logging roads constitutes silvicultural nonpoint-source pollution. 
(III) 

TABLE OF CONTENTS

Page

Interest of the United States ............................................................1

Statement ............................................................................................2

Summary of argument .................................................................... 11

Argument .......................................................................................... 13

I. The CWA confers jurisdiction over this citizen 

suit...................................................................15

 II. The court of appeals erred in failing to defer 

 to EPA’s interpretation of its regulations..................20 

A. An agency’s interpretation of its regulation is 

 controlling unless it conflicts with the text or 

 structure of the regulation................................20

B. The court of appeals erred in not deferring to 

 EPA’s view that channeled runoff from logging 

 roads does not give rise to a stormwater 

 discharge “associated with industrial activity” ......23

C. The court of appeals erred in not deferring 

 to the EPA’s interpretation of the silvicultural 

 rule that runoff from logging roads constitutes 

 nonpoint-source pollution ... ..............................28

Conclusion ........................................................................................ 33

TABLE OF AUTHORITIES 

Cases: 

Auer v. Robbins, 519 U.S. 452 (1997) .................... 10, 11, 20, 24

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 

(1945) .................................................................... 11, 20, 22, 29

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ............. 31

Coeur Alaska, Inc. v. Southeast Alaska Conservation 

Council, 557 U.S. 261 (2009) ................................................ 21

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980) ...... 16

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

(1977) ................................................................................ 10, 16
IV 

Cases—Continued: Page

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) ...... 31

Environmental Def. v. Duke Energy Corp., 

549 U.S. 561 (2007) .................................................... 17, 19, 22

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

(9th Cir. 2003), cert. denied, 541 U.S. 1085 (2004) ........ 7, 25

League of Wilderness Defenders v. Forsgren, 

309 F.3d 1181 (9th Cir. 2002) ............................................... 31

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

1977) .............................................................................. 3, 13, 31

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

cert. denied, 459 U.S. 879 (1982) ................................... 10, 16

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992) .................. 10, 17

NRDC v. Train, 396 F. Supp. 1393 (D.D.C. 1975), 

aff’d 568 F.2d 1369 (D.C. Cir. 1977) .................................... 31

National Cotton Council of Am. v. EPA, 553 F.3d 

927 (6th Cir. 2009), cert. denied, 130 S. Ct. 1505 

(2010) ................................................................................ 10, 16

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 

(D.C. Cir. 1982) ...................................................................... 31

Robertson v. Methow Valley Citizens Council, 

490 U.S. 332 (1989) ................................................................ 20

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) ...... 26

Talk Am., Inc. v. Michigan Bell Tel. Co., 

131 S. Ct. 2254 (2011) ............................................................ 20

United States v. Larionoff, 431 U.S. 864 (1977) .................... 21

Statutes and regulations:

Federal Water Pollution Control Act Amendments, 

33 U.S.C. 1251 et seq.: 

33 U.S.C. 1251(a) .................................................................2

33 U.S.C. 1288(b)(2)(F) .................................................... 31
V 

Statutes—Continued: Page

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

33 U.S.C. 1314(f) ..................................................................3

33 U.S.C. 1314(f)(A) ......................................................... 31

33 U.S.C. 1329 ......................................................................3

33 U.S.C. 1342 ......................................................................3

33 U.S.C. 1344 ......................................................................3

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

33 U.S.C. 1362(14) ........................................................ 2, 13

33 U.S.C. 1365 ......................................................................7

33 U.S.C. 1365(a) .............................................. 2, 10, 11, 17

33 U.S.C. 1365(a)(1) .......................................................... 16

33 U.S.C. 1365(f) ............................................................... 16

33 U.S.C. 1369(b) .............................................. 2, 10, 11, 16

33 U.S.C. 1369(b)(1) ....................................... 10, 16, 17, 23

33 U.S.C. 1369(b)(1)(E) .............................................. 10, 16 

33 U.S.C. 1369(b)(1)(F) .............................................. 10, 16

33 U.S.C. 1369(b)(2) ................................................. passim

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

101 Stat. 69 (33 U.S.C. 1342(p)) .............................................4

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

33 U.S.C. 1342(p)(2) ........................................... 5, 6, 23, 32

33 U.S.C. 1342(p)(2)(B) ........................ 5, 11, 13, 14, 23, 25

33 U.S.C. 1342(p)(3) ............................................................5 

33 U.S.C. 1342(p)(4)(A) .......................................... 5, 24, 26

33 U.S.C. 1342(p)(4)(B) ................................................ 5, 25

33 U.S.C. 1342(p)(5) ..................................................... 6, 25

33 U.S.C. 1342(p)(6) ......................................... 7, 15, 23, 25

40 C.F.R.: 

Section 125.4(f) (1975) ..............................................................3
VI 

Regulations—Continued: Page

Section 125.4(j) (1975) .............................................................3

Section 122.26(a)(9)(i) ...............................................................6

Section 122.26(b) .................................................................... 27

Section 122.26(b)(14) ................................................. 2, 6, 9, 25

Section 122.26(b)(14)(ii) .................................................. 12, 24

Section 122.27 ......................................................................... 25

Section 122.27(b)(1) ............................................. 2, 4, 7, 12, 28

Section 125.54(a)(1) (1976) .......................................................4

Miscellaneous: 

45 Fed. Reg. (May 19, 1980) ......................................................30

p. 33,290 ................................................................................... 30

p. 33,447 ....................................................................................30

55 Fed. Reg. (Nov. 16, 1990) ..................................................... 25

p. 47,990 ................................................................................... 25

p. 48,008 ....................................................................................25

p. 48,011 ................................................................................... 25

64 Fed. Reg. (Dec. 8, 1999) ..........................................................7

p. 68,722 ......................................................................................7

p. 68,734 ......................................................................................7

77 Fed. Reg. (May 23, 2012) ........................................... 7, 15, 27 

p. 30,473 ......................................................................................7

p. 30,474 ................................................................................... 27

p. 30,479 ............................................................................... 7, 15

 
(1) 

In the Supreme Court of the United States

No. 11-338 

DOUG DECKER, IN HIS OFFICIAL CAPACITY AS OREGON 

STATE FORESTER, ET. AL., PETITIONERS

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, 

ET AL. 

No. 11-347 

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

v.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, 

ET AL. 

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 

SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

The questions presented involve both jurisdictional 

and substantive issues pertaining to the application of 

the National Pollutant Discharge Elimination System 

(NPDES) permitting program to stormwater discharges 

from logging roads. The United States has a substantial 

interest in the proper resolution of those questions. 

Congress has entrusted the Environmental Protection 
2 

Agency (EPA) with enforcement of the Clean Water Act 

(CWA), including administration of the NPDES program, and the proper interpretation of two of EPA’s 

NPDES regulations (40 C.F.R. 122.26(b)(14), 

122.27(b)(1)) is at issue in this case. The threshold issue 

involving 33 U.S.C. 1365(a) and 1369(b) potentially affects the availability of avenues for enforcing the CWA 

and challenging EPA action. At the Court’s invitation, 

the United States filed a brief amicus curiae at the petition stage of this case. 

STATEMENT 

1. a. In 1972, Congress passed the Federal Water 

Pollution Control Act Amendments (often referred to as 

the CWA). 33 U.S.C. 1251 et seq. The CWA establishes 

a comprehensive program designed “to restore and 

maintain the chemical, physical, and biological integrity 

of the Nation’s waters.” 33 U.S.C. 1251(a). Section 

301(a) of the CWA prohibits the “discharge of any pollutant”—defined as “any addition of any pollutant to navigable waters from any point source”—except “as in 

compliance with” specified provisions of the Act. 33 

U.S.C. 1311(a), 1362(12)(A). 

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. 

33 U.S.C. 1362(14). For most point-source discharges, 

regulated entities achieve compliance by following the 
3 

terms of an NPDES permit issued by EPA or an authorized State pursuant to CWA Section 402, 33 U.SC. 1342, 

or a permit issued by the Army Corps of Engineers under CWA Section 404, 33 U.S.C. 1344. Other CWA provisions establish mechanisms other than permits to address discharges from “nonpoint sources.” E.g., 33 

U.S.C. 1314(f), 1329. 

b. After the CWA was enacted in 1972, EPA struggled with the task of regulating stormwater discharges 

from the hundreds of thousands of potential point sources. In 1973, to conserve the agency’s enforcement resources for more significant sources of pollution, the 

EPA promulgated a rule that exempted certain discharges—e.g., discharges from stormwater runoff and 

from silvicultural activities, including forest-land runoff—from the NPDES permitting requirements. See 

NRDC v. Costle, 568 F.2d 1369, 1372-1373 & n.5 (D.C. 

Cir. 1977) (citing 40 C.F.R. 125.4(f) and (j) (1975)). In 

NRDC v. Costle, the district court invalidated that exemption as conflicting with CWA Section 402, and the 

D.C. Circuit affirmed. The D.C. Circuit concluded that, 

under the statutory scheme as it existed at that time, 

EPA did “not have authority to exempt categories of 

point sources from the permit requirements of § 402.” 

Id. at 1377; see id. at 1383 (“We find a plain Congressional intent to require permits in any situation of pollution from point sources.”). The court acknowledged, 

however, that “[t]here is an initial question, to what extent point sources are involved in agricultural, silvicultural, and storm sewer runoff.” Id. at 1377. The court 

stated that the statutory definition of “point source” 

“suggests that there is room here for some exclusion by 

interpretation.” Ibid.
4 

In that vein, EPA also promulgated regulations that 

further define the term “point source” as it applies to 

various activities and facilities, including silvicultural 

sources. In 1976, the agency adopted the Silvicultural 

Rule, which defined four categories of silvicultural facilities as point sources but excluded from that definition 

(inter alia) “road construction and maintenance from 

which runoff results from precipitation events.” 40 

C.F.R. 125.54(a)(1), cmt. (1976). The current version of 

the Silvicultural Rule, as amended in 1980, maintains the 

same definition of “silvicultural point source” but now 

excludes (in pertinent part) “road construction and 

maintenance from which there is natural runoff.” 40 

C.F.R. 122.27(b)(1).1 EPA has construed that rule to 

mean that logging roads are not silvicultural point 

sources, even if the runoff from logging roads flows 

through a ditch, channel, or culvert before being released into waters of the United States. See J.A. 27, 39. 

c. In 1987, Congress amended the CWA to take account of the unique challenges that EPA faces in managing the water quality impacts of stormwater discharges. 

Pub. L. No. 100-4, 101 Stat. 69 (33 U.S.C. 1342(p)). 

 

1

 The Silvicultural Rule reads as follows: 

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). 
5 

CWA Section 402(p), which addresses “discharges composed entirely of stormwater,” established a temporary 

moratorium on NPDES permit requirements for such 

discharges, with the exception of five categories of discharges listed in 33 U.S.C. 1342(p)(2). Section 402(p) 

also required EPA to establish regulations setting forth 

permit-application requirements for specified categories 

of stormwater point-source discharges and to conduct 

studies to determine what other discharges should be 

regulated to protect water quality. The statute contemplated that those regulations would be promulgated 

through a phased approach, the first commonly referred 

to as Phase I and the second as Phase II. 33 U.S.C. 

1342(p)(4)(A) and (B). 

Phase I covers the five enumerated categories of 

stormwater discharges, including stormwater discharges “associated with industrial activity.” 33 U.S.C. 

1342(p)(2)(B). The 1987 amendment requires NPDES 

permits for those discharges and directs EPA to regulate them accordingly. 33 U.S.C. 1342(p)(3) and (4)(A). 

The CWA does not define the term stormwater discharge “associated with industrial activity.” In 1990, 

EPA promulgated Phase I regulations that define that 

term as 

the discharge from any conveyance that is used for 

collecting and conveying storm water and that is directly related to manufacturing, processing or raw 

materials storage areas at an industrial plant. The 

term does not include discharges from facilities or activities excluded from the NPDES program under 

this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from * * * immediate access roads * * * used or traveled by carriers 
6 

of raw materials, manufactured products, waste material, or by-products used or created by the facility[.] * * * The following categories of facilities are 

considered to be engaging in “industrial activity” for 

purposes of paragraph (b)(14): 

* * * 

(ii) Facilities classified as Standard Industrial Classifications 24 (except 2434), 26 (except 265 and 267), 28 

(except 283), 29, 311, 32 (except 323), 33, 3441, 373. 

40 C.F.R. 122.26(b)(14).2

Phase II covers stormwater discharges other than 

those enumerated in 33 U.S.C. 1342(p)(2). The 1987 

amendment authorizes EPA to designate, as part of 

Phase II, any additional stormwater discharges “to be 

regulated to protect water quality.” 33 U.S.C. 1342(p)(5) 

and (6). Under Section 402(p)(6), EPA must “establish a 

comprehensive program” that “shall, at a minimum, (A) 

establish priorities, (B) establish requirements for State 

stormwater management programs, and (C) establish 

expeditious deadlines.” 33 U.S.C. 1342(p)(6). The program “may include performance standards, guidelines, 

guidance, and management practices and treatment requirements, as appropriate.” Ibid. EPA is authorized to 

require NPDES permits for Phase II discharges, but it 

is not required to do so. Ibid.

In 1999, EPA promulgated regulations that designated two categories of stormwater point-source discharges 

(neither of which is relevant to this case) for Phase II 

 

2

 The regulation incorporates by reference the enumerated 

Standard Industrial Classification (SIC) codes. “Logging” is a subcategory (2411) of SIC code 24. Standard Industrial Classifications 

Manual, Div. D, Major Group 24, Industry Group 241, 2411 Logging, 

available at http://www.osha.gov/pls/imis/sic_manual.html. 
7 

regulation under Section 402(p)(6). 64 Fed. Reg. 68,722, 

68,734 (Dec. 8, 1999) (codified in pertinent part at 40 

C.F.R. 122.26(a)(9)(i)). EPA also reserved the authority 

to designate additional discharges for Phase II regulation at a later date. Ibid.

3

 

2. Respondent commenced this action under the 

CWA’s citizen-suit provision, 33 U.S.C. 1365. Respondent alleged that stormwater discharges associated with 

two logging roads in Oregon violate the Act because the 

roads at issue collect, channel, and discharge stormwater runoff to waters of the United States—without 

NPDES permits—via ditches, pipes, and culverts. 

II J.A. 2-3, 7-9 (First Amended Complaint). 

Petitioners are state officials and private timber 

companies who control the relevant logging roads and 

were named as defendants in this suit. Supported by 

the United States as amicus curiae, petitioners moved to 

dismiss the complaint for failure to state a claim. The 

district court granted the motion. The court held that, 

under EPA’s Silvicultural Rule, 40 C.F.R. 122.27(b)(1), 

discharges from logging roads were not required to have 

 

3 In 2003, the Ninth Circuit remanded to EPA the question whether to regulate stormwater discharges from forest roads under Phase 

II. See Environmental Def. Ctr. v. EPA, 344 F.3d 832, 863, cert. denied, 541 U.S. 1085 (2004). EPA continues to review available information on the water-quality impacts of stormwater discharges from 

forest roads, including logging roads, as well as existing practices to 

control these discharges. On May 23, 2012, EPA announced that it 

“is considering designating a subset of stormwater discharges from 

forest roads for appropriate action” under the agency’s Phase II 

rulemaking authority. Notice of Intent to Revise Stormwater Regulations to Specify that an NPDES Permit is not Required for 

Stormwater Discharges from Logging Roads and to Seek Comment 

on Approaches for Addressing Water Quality Impacts from Forest 

Road Discharges, 77 Fed. Reg. 30,473, 30,479. 
8 

NPDES permits because EPA had categorized natural 

runoff from those roads and other sources as “non-point 

source” pollution. Pet. App. 53-77.4

3. The court of appeals reversed. Pet. App. 1-52.5

a. As in the district court, the government filed an 

amicus brief arguing that, under EPA’s Silvicultural 

Rule, all precipitation-driven runoff from logging roads 

is not currently regulated under the NPDES permitting 

program, even if it flows through a ditch, channel, or 

culvert before being discharged into waters of the United States. See I J.A. 27, 39. The court of appeals rejected that interpretation of the regulation. Pet. App. 

34-37. The court stated that “there are two possible 

readings of the Silvicultural Rule,” and it acknowledged 

that the interpretation advanced in the government’s 

amicus brief “reflects the intent of EPA in adopting the 

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

alternative reading of the rule was preferable because it 

would “allow [the court] to construe the Rule to be consistent with the statute,” in particular, the CWA’s definition of “point source.” Id. at 37. The court held that the 

Silvicultural Rule does not exempt from NPDES requirements stormwater runoff from logging roads that 

is systemically collected and channeled through manmade ditches and culverts before being discharged into 

waters of the United States. Ibid. 

b. Petitioners and the government further argued 

that, even if such channeled runoff from logging roads 

 

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

writ of certiorari in No. 11-338. 

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

1176, but the discussion in this brief cites the superseding opinion, 

which was published at 640 F.3d 1063 and is reprinted in the appendix to the certiorari petition. 
9 

constitutes a “point source” discharge, such discharges 

are not subject to NPDES permitting requirements under EPA’s stormwater regulations promulgated pursuant to 33 U.S.C. 1342(p). Pet. App. 37-48. Petitioners 

and the government contended, in particular, that the 

discharges at issue here are not “associated with industrial activity” as EPA has defined that term. See id. at 

44-47; 40 C.F.R. 122.26(b)(14). The court of appeals rejected that understanding of EPA’s regulatory definition. The court found it “undisputed that ‘logging,’ 

which is covered by SIC [Standard Industrial Classification] 2411 (part of SIC 24), is an ‘industrial activity.’” 

Pet. App. 44-45. The court construed the regulation’s 

reference to “immediate access roads”—defined in 

EPA’s Phase I stormwater rule preamble to mean 

“roads which are exclusively or primarily dedicated for 

use by the industrial facility”—as covering the roads at 

issue here. Id. at 45-47. 

4. a. Petitioners filed petitions for rehearing in the 

court of appeals. The court of appeals thereafter ordered a response and posed two threshold questions: (1) 

“Can a suit challenging EPA’s interpretation of its regulations implementing the Clean Water Act’s permitting 

requirements be brought under the Act’s citizen suit 

provision, 33 U.S.C. § 1365(a)?” (2) “Must a suit challenging EPA’s decision to exempt the discharge of a pollutant from the Clean Water Act’s permitting requirements be brought under the Act’s agency review provision, 33 U.S.C. § 1369(b)?” I J.A. 7 (Docket entry No. 

106). 

Section 1369(b) authorizes private parties to obtain 

direct court of appeals review of certain EPA actions, 

including actions taken in “promulgating any effluent 

limitation or other limitation under section 1311” or “in 
10 

issuing or denying any permit under section 1342.” 33 

U.S.C. 1369(b)(1)(E) and (F). EPA’s NPDES regulations are generally subject to immediate appellate review under that provision. See, e.g., National Cotton 

Council of Am. v. EPA, 553 F.3d 927, 932-933 (6th Cir. 

2009), cert. denied, 130 S. Ct. 1505 (2010); NRDC v. 

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

EPA, 673 F.2d 400, 404-406 (D.C. Cir.), cert. denied, 459 

U.S. 879 (1982) (citing E.I. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 136 (1977)). Such review must be 

sought within 120 days after the relevant EPA action, 

unless a challenge is “based solely on grounds which 

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

action “with respect to which review could have been obtained under [Section 1369(b)(1)] shall not be subject to 

judicial review in any civil or criminal proceeding for enforcement.” 33 U.S.C. 1369(b)(2). 

In response to the court of appeals’ questions, 

the United States filed another amicus brief. The government expressed the view that, although Section 

1369(b)(2) would preclude the court in a Section 1365(a) 

citizen suit from invalidating the EPA regulations implicated by this case, Section 1369(b)(2) did not necessarily 

preclude the court from interpreting those regulations 

differently than EPA had interpreted them. I J.A. 55-

57. The government further argued, however, that the 

court was required to defer to the agency’s interpretation so long as that interpretation was not “plainly erroneous or inconsistent with the regulation.” I J.A. 58 

(quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). 

The court of appeals denied rehearing and issued a 

superseding panel opinion. Pet. App. 1-52. In a new 

section entitled “Subject Matter Jurisdiction,” the court 

held that Section 1369(b) “does not bar a citizen suit 
11 

challenging EPA’s Silvicultural Rule interpretation first 

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

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

SUMMARY OF ARGUMENT 

I. The courts below properly exercised jurisdiction 

over this action pursuant to the CWA’s citizen-suit provision. Because the EPA regulations relevant to this 

case (the Silvicultural Rule and the Phase I industrial 

stormwater regulation) could have been challenged in a 

court of appeals under 33 U.S.C. 1369(b) at the time 

they were promulgated, they are not subject to judicial 

review in this citizen suit brought under 33 U.S.C. 

1365(a). The court of appeals did not declare either of 

those rules invalid, however, but rather rejected the interpretations of those rules set forth in the government’s amicus brief. Although the court should have deferred to EPA’s reasonable construction of its own rules, 

it did not err in entertaining this citizen enforcement 

suit. 

II. The court of appeals misinterpreted both of the 

EPA regulations at issue in this case. Properly construed, each of those rules independently dictates the 

conclusion that NPDES permits are not required for the 

discharges at issue. 

A. EPA’s construction of its own rule is “controlling” 

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

452, 461 (1997). That principle applies even where, as 

here, the court is precluded from determining whether 

the regulation so construed is consistent with the governing statute. See Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414, 418-419 (1945). 

B. The CWA requires NPDES permits for stormwater discharges “associated with industrial activity,” 33 
12 

U.S.C. 1342(p)(2)(B), but the Act does not define that 

term. EPA has construed its Phase I industrial stormwater regulation not to require such permits for stormwater discharges from logging roads. That position reflects a reasonable construction of the regulation’s text. 

The Phase I regulation refers to discharges from “[f]acilities classified as Standard Industrial Classification[] 

24,” which include logging establishments. 40 C.F.R. 

122.26(b)(14)(ii). EPA has construed that reference, 

however, as encompassing only discharges from the four 

subcategories of silvicultural facilities it had already 

identified as point sources in the Silvicultural Rule, 

which do not include runoff from logging roads. Because the stormwater discharges at issue in this case are 

not covered by EPA’s Phase I regulations, the judgment 

of the court of appeals should be reversed, without regard to whether those discharges are “point source” discharges under the Act and the Silvicultural Rule. 

C. Because the Phase I regulation (properly construed) provides a sound basis for concluding that petitioners were not required to obtain NPDES permits, the 

Court need not determine whether the Silvicultural Rule 

also compels the same result. If the Court reaches the 

issue, however, it should sustain EPA’s interpretation of 

the Silvicultural Rule, under which no permit is required 

for “natural runoff ” from logging roads. The stormwater discharges at issue here do not implicate any of 

the four types of silvicultural facilities (“rock crushing, 

gravel washing, log sorting, [and] log storage facilities”) 

that the rule specifically identifies as “[s]ilvicultural 

point source[s].” 40 C.F.R. 122.27(b)(1). And while the 

Silvicultural Rule does not state explicitly whether its 

reference to “natural runoff ” includes systematically 
13 

channeled runoff, EPA’s resolution of that ambiguity is 

entitled to judicial deference under Auer. 

The court of appeals rejected EPA’s reading on the 

ground that it would render the Silvicultural Rule inconsistent with the CWA’s definition of “point source.” 

Seminole Rock, however, precludes that sort of inquiry 

under the circumstances presented here because EPA’s 

interpretation of its Rule is controlling. In any event, 

the CWA’s definition of “point source,” 33 U.S.C. 

1362(14), affords EPA “room here for some exclusion by 

interpretation,” particularly with respect to silvicultural 

sources. NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 

1977). 

ARGUMENT 

The 1987 CWA amendments reflect Congress’s determination that, although point-source stormwater discharges can significantly affect the quality of navigable 

waters, a blanket requirement of NPDES permits for all 

such discharges was an unwieldy regulatory tool. Congress accordingly enacted a more nuanced scheme that 

was specifically designed for stormwater. The essence 

of that scheme was to identify limited categories of 

stormwater discharges for which NPDES permits would 

still be required by statute, while giving EPA broad discretion to devise appropriate measures for addressing 

stormwater discharges outside the defined categories. 

The court of appeals’ decision in this case depends on 

the proposition that the discharges at issue here were 

“associated with industrial activity” within the meaning 

of an EPA regulation that implements the 1987 CWA 

amendment, specifically 33 U.S.C. 1342(p)(2)(B). The 

court did not hold that the statutory language compels 

that conclusion, but instead interpreted the terms of the 

EPA rule itself. The court reached that conclusion de-
14 

spite the government’s unequivocal explanation, in its 

amicus brief in the Ninth Circuit, that EPA holds a contrary view about the meaning of the regulation. If this 

Court rejects that aspect of the court of appeals’ analysis, and holds that the pertinent discharges are not “associated with industrial activity” for purposes of Section 

1342(p)(2)(B) and EPA’s Phase I regulations, the case 

will be at an end. It will then be unnecessary for the 

Court to decide whether, under the Act and the Silvicultural Rule, EPA has discretion to determine which discharges of stormwater from logging roads are pointsource discharges. 

For two basic reasons, a determination that petitioners’ discharges are not “associated with industrial activity” would be the soundest and most straightforward 

way of deciding this case. First, Section 1342(p) reflects 

Congress’s more recent, and more specific, direction to 

EPA regarding control of stormwater discharges. The 

Silvicultural Rule, by contrast, was promulgated prior to 

the 1987 CWA amendments under a statutory regime 

that required NPDES permits for all point-source discharges of pollutants, including discharges of stormwater. That regime, which fueled multiple agency efforts (including the Silvicultural Rule) to accommodate 

the CWA’s broad application in light of the practical difficulties of including all potentially covered sources, has 

effectively been superseded with respect to discharges 

composed entirely of stormwater. See pp. 3-7, supra.

6

 

6

 In implementing its responsibility to protect the Nation’s interest in maintaining and improving the quality of its waters, EPA in its 

May 23, 2012, Federal Register notice stated that it is considering the 

possibility of regulating a subset of stormwater discharges from forest roads, through means other than NPDES permits, pursuant to its 
15 

Second, determining that NPDES permits are not 

required pursuant to the industrial stormwater regulation would obviate the need for the Court to resolve the 

difficult question, which arises only with respect to the 

Silvicultural Rule, of whether a court may reject EPA’s 

interpretation of its rule on the ground that the interpretation would be inconsistent with the Act. Petitioners contend that the court of appeals exceeded the limits 

imposed by 33 U.S.C. 1369(b)(2) because its decision implicitly invalidated the pertinent EPA rules. With respect to EPA’s regulatory definition of “discharge associated with industrial activity,” that argument clearly 

lacks merit. Although the court of appeals erred in failing to defer to the agency’s construction of that rule, the 

court’s contrary interpretation cannot be viewed as anything other than an interpretation of the rule. With respect to the Silvicultural Rule, however, the line between 

interpretation and invalidation is less clear, since the 

court of appeals’ stated reason for rejecting EPA’s construction of that rule was that the rule, as EPA construed it, would be inconsistent with the CWA. By resolving this case on the basis of the Phase I stormwater 

regulation, the Court can avoid the issue of “statutory 

avoidance” raised by the interplay between Section 

1369(b)(2) and various principles of regulatory interpretation. 

I. THE CWA CONFERS JURISDICTION OVER THIS CITIZEN SUIT 

The CWA’s citizen-suit provision authorizes private 

citizens to bring enforcement actions against any person 

“who is alleged to be in violation of (A) an effluent 

 

Section 402(p)(6) stormwater rulemaking authority. 77 Fed. Reg. at 

30,479. 
16 

standard or limitation under this chapter or (B) an order 

issued by the Administrator or a State with respect to 

such a standard or limitation.” 33 U.S.C. 1365(a)(1). 

The violations that are redressable through a citizen suit 

include, inter alia, discharges of pollutants into waters 

of the United States without an NPDES permit. See 33 

U.S.C. 1365(f) (defining the term “effluent standard or 

limitation under this chapter”). Section 1369(b), by contrast, provides for immediate review by a court of appeals of various EPA actions, including the promulgation 

of NPDES regulations. 33 U.S.C. 1369(b)(1); see pp. 9-

10, supra.

7

 A review proceeding under Section 

 

7 Section 1369(b)(1) authorizes direct court of appeals review of 

“the Administrator’s action * * * (E) in approving or promulgating 

any effluent limitation or other limitation under section 1311, 1312, 

1316 or 1345 of [the Act], [or] (F) in issuing or denying any permit 

under section 1342 of [the Act].” 33 U.S.C. 1369(b)(1)(E) and (F). In 

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977), the 

Court construed that provision to authorize review of EPA’s industry-wide regulations establishing uniform effluent limitations for particular categories of plants. See id. at 115, 136. The Court explained 

that a contrary result “would produce the truly perverse situation in 

which the court of appeals would review numerous individual actions 

issuing or denying permits pursuant to [CWA Section 402] but would 

have no power of direct review of the basic regulations governing 

those individual actions.” Id. at 136. Based on Train, courts of appeals have understood Section 1369(b)(1)(E) to authorize direct review of NPDES permitting regulations, including EPA’s consolidated 

permitting regulations, which set forth “a complex set of procedures 

for issuing or denying NPDES permits.” NRDC v. EPA, 673 F.2d 

400, 402 (D.C. Cir.), cert. denied, 459 U.S. 879 (1982). This Court also 

has interpreted Section 1369(b)(1)(F) to encompass actions that are 

“functionally similar” to the issuance or denial of an NPDES permit. 

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196 (1980). Courts 

of appeals have since relied on that provision to review NPDES permitting regulations. See National Cotton Council of Am. v. EPA, 
17 

1369(b)(1) must be commenced within 120 days of the 

challenged action, unless the basis for the suit arises after that period. Ibid. 

Section 1365(a) clearly confers jurisdiction over this 

citizen suit, in which respondent alleges CWA violations 

arising from petitioners’ discharges into waters of the 

United States. See 33 U.S.C. 1365(a) (“The district 

courts shall have jurisdiction, without regard to the 

amount in controversy or the citizenship of the parties, 

to enforce * * * an effluent standard or limitation.”). 

Although petitioners purport to challenge the court of 

appeals’ “jurisdiction,” their challenge, properly conceived, does not go to that court’s jurisdiction. Rather, 

the disputed issue here concerns the range of arguments 

the courts below could properly consider in determining 

whether petitioners were liable under the Act for discharges of pollutants without an NPDES permit. 

Any EPA action that could have been challenged under Section 1369(b)(1) “shall not be subject to judicial 

review in any civil or criminal proceeding for enforcement.” 33 U.S.C. 1369(b)(2). Because a citizen suit is a 

“civil * * * proceeding for enforcement” within the 

meaning of that provision, the court in such a suit may 

not disregard pertinent EPA regulations on the ground 

that they are inconsistent with the statute, since that 

would constitute the “judicial review” of EPA action that 

Section 1369(b)(2) forbids. Cf. Environmental Def. v. 

Duke Energy Corp., 549 U.S. 561, 581 (2007) (explaining 

that a lower court’s “implicit invalidation” of a pertinent 

EPA rule was “a form of judicial review implicating” an 

analogous limitation of review under the Clean Air Act). 

By contrast, courts in CWA citizen suits often must in-

 

553 F.3d 927, 932-933 (6th Cir. 2009), cert. denied, 130 S. Ct. 1505 

(2010); NRDC v. EPA, 966 F.2d 1292, 1296-1297 (9th Cir. 1992). 
18 

terpret applicable EPA regulations in order to determine 

whether the defendant has violated any “effluent standard or limitation.” 

Under that rubric, the court of appeals’ interpretation of EPA’s “associated with industrial activity” regulation raises no jurisdictional concern under Section 

1369(b)(2). As we explain below (pp. 23-27, infra), the 

court’s interpretation of that rule is erroneous, both because it is contrary to the most natural reading of the 

regulatory text, and because the court failed to give appropriate deference to EPA’s interpretation of its own 

rule. Nothing in the court’s analysis suggests, however, 

that the decision was anything other than an interpretation (as opposed to invalidation) of the “associated with 

industrial activity” rule. 

The court of appeals’ treatment of the Silvicultural 

Rule presents a closer question. The court adopted an 

interpretation of that rule that “does not reflect the intent of EPA,” based on a determination that the court’s 

own construction “would allow [the court] to construe 

the Rule to be consistent with the statute.” Pet. App. 37. 

Petitioners contend that the court of appeals’ ruling 

amounts to an implicit invalidation of the rule, which 

Section 1369(b)(2) bars. See 11-338 Pet. Br. 38-39; 11-

347 Pet. Br. 52-54. This Court’s decision in Duke Energy

indicates, however, that Section 1369(b)(2) generally 

does not preclude the court in a CWA citizen suit from 

invoking what might be termed “statutory avoidance” 

principles in resolving a regulatory ambiguity. 

The Court in Duke Energy distinguished, for purposes of an analogous Clean Air Act judicial-review provision, “between a purposeful but permissible reading of 

the regulation adopted to bring it into harmony with the 

Court of Appeals’s view of the statute, and a determina-
19 

tion that the regulation as written is invalid.” 549 U.S. 

at 573. The present case falls into the former category. 

The Silvicultural Rule’s reference to “natural runoff ” 

associated with logging roads neither clearly encompasses nor clearly excludes the sort of channeled runoff 

that is at issue in this case. The court of appeals’ construction therefore qualifies as a “purposeful but permissible reading of the” Silvicultural Rule, rather than a 

de facto invalidation. Compare Duke Energy, 549 U.S. 

at 581 (where court of appeals’ interpretation was 

“doomed” by the “text of the [pertinent] regulations,” 

court’s decision constituted “an implicit invalidation of 

those regulations”). 

The question of the court of appeals’ treatment of the 

Silvicultural Rule is further complicated by the fact that, 

in choosing an interpretation the court believed necessary to render the rule consistent with the statute, the 

court of appeals rejected EPA’s own construction of that 

rule as set forth in the government’s amicus brief. As 

we explain below, the court of appeals erred in rejecting 

EPA’s construction of the Silvicultural Rule. That error, 

however, is properly viewed as a misapplication of general administrative-law principles rather than as a violation of Section 1369(b)(2). Duke Energy suggests that 

the court of appeals did not violate Section 1369(b)(2) by 

engaging in statutory avoidance, but Seminole Rock 

precluded the court from rejecting EPA’s interpretation 

of the Silvicultural Rule on the ground that it would conflict with the Act. See pp. 21-22, 28-30, infra. 

II. THE COURT OF APPEALS ERRED IN FAILING TO DEFER TO EPA’S INTERPRETATION OF ITS REGULATIONS 

Two independent rationales support the district 

court’s conclusion that NPDES permits are not required 
20 

for discharges of systematically collected and channeled 

runoff from logging roads. First, under EPA’s interpretation of its Phase I stormwater regulations, the discharges at issue here are not “associated with industrial 

activity.” Second, under EPA’s interpretation of its Silvicultural Rule, such discharges do not constitute “point 

source” discharges. The court of appeals identified no 

sound basis for rejecting the agency’s definitive interpretations of its own rules. 

A. An Agency’s Interpretation Of Its Regulation Is Controlling Unless It Conflicts With The Text Or Structure Of 

The Regulation 

Where (as here) resolution of a citizen suit turns on 

the interpretation of ambiguous regulatory terms, a 

court must defer to the agency’s interpretation of its 

own rule, as presented in an amicus brief, unless that 

interpretation is “plainly erroneous or inconsistent with 

the regulation.” Auer, 519 U.S. at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 

(1989) (quoting Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410, 414 (1945))); see, e.g., Talk Am., Inc. v. 

Michigan Bell Tel. Co., 131 S. Ct. 2254, 2265 (2011) 

(“The FCC as amicus curiae has advanced a reasonable 

interpretation of its regulations, and we defer to its 

views.”). The Auer inquiry focuses solely on the regulatory text and structure. If an agency’s interpretation is 

not “plainly erroneous or inconsistent with the regulation,” the agency’s interpretation of its regulation becomes “controlling.” Auer, 519 U.S. at 461; see, e.g., 

Coeur Alaska, Inc. v. Southeast Alaska Conservation 

Council, 557 U.S. 261, 278 (2009) (finding that EPA’s interpretation of its regulations was “not plainly erroneous or inconsistent with the regulations, and so we ac-
21 

cept it as correct”) (internal quotation marks and brackets omitted). 

After a court defers to the agency’s linguistically 

plausible construction of its own regulation, it typically 

may then consider any contention that the regulation, so 

construed, is inconsistent with the governing statute. 

See United States v. Larionoff, 431 U.S. 864, 872-873 

(1977) (“Since [the agency’s] interpretation is not plainly 

inconsistent with the wording of the regulations, we accept the Government’s reading of those regulations as 

correct. This, however, does not end our inquiry. For 

regulations, in order to be valid, must be consistent with 

the statute under which they are promulgated.”). Under 

some judicial-review provisions, however, a court that is 

authorized to interpret an agency regulation is barred 

from passing on the regulation’s validity. In that circumstance, the court must assess the propriety of the 

agency’s interpretation based on the Auer standard 

alone, i.e., by determining whether the agency’s construction conflicts with the text and structure of the 

regulation. The court may not reject an agency interpretation that would otherwise be entitled to deference 

based on the court’s view that a different construction is 

necessary to prevent a conflict with the governing statute. 

In Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 

(1945), the seminal precursor to Auer, the Court applied 

that framework in interpreting regulations promulgated 

by the Office of Price Administration under the Emergency Price Control Act of 1942, Pub. L. No. 77-421, 56 

Stat. 23. 325 U.S. at 411. The Court announced the 

standard, later reiterated in Auer, that an agency’s interpretation is controlling “unless it is plainly erroneous 

or inconsistent with the regulation.” Id. at 414. The 
22 

Court explained that, in construing the pertinent regulation, its “only tools, therefore, are the plain words of the 

regulation and any relevant interpretations of the Administrator.” Ibid. (emphasis added). After affording 

the administrative interpretation controlling weight under that standard, the Court did not address the statutory or constitutional validity of the regulation so construed. See ibid. (stating that the “only problem” before 

the Court was “to discover the meaning of ” particular 

regulatory provisions, while noting that “[t]he legality of 

the result reached by this process * * * is quite a different matter”). Rather, the Court held that it lacked authority to decide that separate question because, under 

the applicable statutory regime, questions of regulatory 

validity were required to be presented in the first instance to the Emergency Court of Appeals. Id. at 418-

419. 

The same principle applies here. In order to adjudicate respondent’s citizen suit against petitioners, the 

court of appeals was required “to discover the meaning,” 

Seminole Rock, 325 U.S. at 414, of the pertinent EPA 

regulations. If EPA had not proffered an interpretation 

of those regulations that was entitled to Auer deference, 

the court would have been required to construe the rules 

de novo, and it might have adopted “a purposeful but 

permissible reading of the regulation adopted to bring it 

into harmony with the [court’s] view of the statute.” 

Duke Energy, 549 U.S. at 573. The court could not, 

however, permissibly invoke “statutory avoidance” principles as a ground for rejecting an agency interpretation 

of the regulation that satisfied the criteria for Auer deference.8

 

8

 In its brief in opposition to the petitions for certiorari, respondent 

disavowed any argument that either the Silvicultural Rule or the 
23 

B. The Court Of Appeals Erred In Not Deferring To EPA’s 

View That Channeled Runoff From Logging Roads 

Does Not Give Rise To A Stormwater Discharge “Associated With Industrial Activity” 

The 1987 CWA amendment established an exception, 

with respect to stormwater discharges, to the Act’s general requirement that point-source discharges of pollutants to waters of the United States require NPDES 

permits. See 33 U.S.C. 1342(p). The Act continues to 

require NPDES permits for stormwater discharges in 

five enumerated categories, 33 U.S.C. 1342(p)(2), including those “associated with industrial activity,” 33 U.S.C. 

1342(p)(2)(B). Pursuant to Section 402(p)(6), EPA is authorized, but not required, to designate additional 

sources of stormwater for regulation, either through 

NPDES permits or through other regulatory mechanisms. 

The Act does not define the term “associated with industrial activity,” but the 1987 amendment required 

EPA to promulgate regulations relating to industrial 

and other Phase I stormwater discharges. 33 U.S.C. 

1342(p)(4)(A). In 1990, EPA issued Phase I regulations 

that, inter alia, define “storm water discharge associated with industrial activity” to mean 

 

Phase I regulation violates the CWA, and reaffirmed that it is not 

seeking to invalidate either regulation in this litigation. Br. in Opp. 

20-21. This case therefore does not present the question whether, 

under the CWA’s judicial-review provisions, clarification of EPA’s 

interpretation of its preexisting rule can provide a new opportunity 

for review of the rule itself. See 33 U.S.C. 1369(b)(1) (requiring application for review within 120 days of the regulation’s promulgation, 

unless “such application is based solely on grounds which arose after 

such 120th day”); 33 U.S.C. 1369(b)(2) (precluding review in enforcement proceedings of EPA actions “with respect to which review could 

have been obtained” under Section 1369(b)(1)). 
24 

the discharge from any conveyance that is used for 

collecting and conveying storm water and that is directly related to manufacturing, processing or raw 

materials storage areas at an industrial plant. The 

term does not include discharges from facilities or activities excluded from the NPDES program under 

this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from * * * immediate access roads * * * used or traveled by carriers 

of raw materials, manufactured products, waste material, or by-products used or created by the facility. 

40 C.F.R. 122.26(b)(14). To identify the categories of 

“facilities” engaged in “industrial activity,” EPA’s regulation further incorporates by reference Standard Industrial Classification (SIC) codes, including SIC code 

24, of which “logging” is subcategory 2411. 40 C.F.R. 

122.26(b)(14)(ii). 

As explained above (pp. 20-22, supra), EPA’s interpretation of its regulation defining “associated with industrial activity” is controlling unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461. Relying primarily on the 

regulation’s reference to SIC code 2411, the court of appeals construed EPA’s rule to treat the discharges at issue here as discharges “associated with industrial activity.” Pet. App. 44-47. The government’s amicus brief explained, however, that “EPA primarily referenced this 

SIC code to regulate traditional industrial sources such 

as sawmills.” I J.A. 42. That understanding is consistent with EPA’s explanation, at the time the rule was 

promulgated, that “[e]stablishments identified under 

SIC 24 (except 2434) are engaged in operating sawmills, 

planing mills and other mills engaged in producing lum-
25 

ber and wood basic materials.” 55 Fed. Reg. 47,990, 

48,008 (Nov. 16, 1990). 

The government’s amicus brief further explained that 

“[b]y not excluding SIC code 2411 (the logging subcategory), EPA intended to reference only the four subcategories of silvicultural facilities it had already defined as 

point sources in” the Silvicultural Rule—i.e., rock crushing, gravel washing, log sorting, and log storage. 

I J.A. 43.9 Those facilities are more closely associated 

with traditional industrial activities than are logging 

roads, which are often used for recreational purposes 

rather than as “immediate access roads” to those facilities. I J.A. 44. EPA’s interpretation is also consistent 

with the terms of SIC code 2411, which defines “logging” facilities as “establishments primarily engaged in 

cutting timber and in producing . . . primary forest or 

 

9 That understanding is buttressed by the fact that EPA’s definition of “storm water discharge associated with industrial activity” 

expressly exempts activities that are “excluded from the NPDES 

program under this part 122,” 40 C.F.R. 122.26(b)(14), including under the Silvicultural Rule, 40 C.F.R. 122.27. See also 55 Fed. Reg. at 

48,011 (preamble stating that EPA did not intend “to change the 

scope of 40 CFR 122.27 in this rulemaking,” and that “‘storm water 

discharge associated with industrial activity’ does not include sources 

* * * which are excluded under 40 CFR 122.27”). In the preamble 

to the 1990 Phase I regulations, EPA stated its intent to examine the 

scope of the Silvicultural Rule as it related to stormwater discharges 

in the course of two studies required under CWA Section 402(p)(5). 

Ibid. Based on those studies, EPA promulgated the Phase II rule in 

1999. That rule was challenged in Environmental Defense Center v.

EPA, 344 F.3d 832, 860-863 (9th Cir. 2003), cert. denied, 541 U.S. 

1085 (2004), and the court of appeals remanded to EPA the question 

whether stormwater discharges from forest roads should have been 

regulated pursuant to Section 402(p)(6). That remand would have 

been pointless if such runoff was already regulated under Phase I 

pursuant to Section 402(p)(2)(B). 
26 

wood raw materials . . . in the field.” Pet. App. 45 

(emphasis added). Thus, while the text of the regulation 

might not foreclose respondent’s alternative reading of 

the term “associated with industrial activity,” EPA’s interpretation of its own rule is reasonable and therefore 

should have been afforded Auer deference. See Pauley 

v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991) 

(“While it is possible that the claimants’ parsing of these 

impenetrable regulations would be consistent with accepted canons of construction, it is axiomatic that the 

Secretary’s interpretation [of the regulations] need not 

be the best or most natural one by grammatical or other 

standards. Rather, the Secretary’s view need be only 

reasonable to warrant deference.”) (citations omitted). 

With respect to the Silvicultural Rule, the court of 

appeals identified the need for consistency with the governing statute as its rationale for rejecting EPA’s understanding of its own regulation. See Pet. App. 36-37. 

With respect to the regulatory definition of “discharge 

associated with industrial activity,” by contrast, the 

court did not hold that the CWA compelled its expansive 

construction of the rule.10 Any such contention would be 

 

10 Although the State petitioners contend otherwise (11-338 Pet. Br. 

40-42), this aspect of the court of appeals’ opinion is best read as resting on the text of the industrial stormwater rule, not on any view that 

CWA Section 402(p) compelled EPA to treat forest-road discharges 

as “associated with industrial activity.” See, e.g., Pet. App. 46 (“The 

[Phase I regulation’s] definition of a ‘facility’ engaging in industrial 

activity’ is very broad.”); id. at 47 (reasoning that because EPA considered logging activities to be “industrial in nature” by virtue of the 

regulation’s reference to the logging SIC code, EPA could not exempt such activities from NPDES permits); see also 11-347 Pet. Br. 

39, 43 (describing court of appeals’ rejection of EPA’s interpretation 

of industrial stormwater rule as “the product of a myopic focus on 

isolated snippets of regulatory language” and as “second-guessing 
27 

implausible. As noted above, the 1987 amendment did 

not define the term “associated with industrial activity,” 

but rather directed EPA to promulgate regulations implementing that provision. See 33 U.S.C. 1342(p)(4)(A). 

That language gives EPA significant discretion to define 

both what will count as “industrial activity,” and what 

stormwater discharges bear a sufficiently close nexus to 

such activity as to be “associated with” it. 

Whatever the precise limits of that discretion, the 

statutory term “discharge associated with industrial activity” does not ineluctably cover channeled runoff from 

all logging roads. Thus, even if the desire to avoid a 

conflict with the governing statute could provide a sound 

basis for rejecting an agency interpretation that would 

otherwise be entitled to deference under Seminole Rock

and Auer (but see pp. 20-22, supra), any such justification would be absent here. Under these circumstances, 

the Ninth Circuit’s refusal to defer to EPA’s interpretation of its own regulatory definition is contrary to basic 

administrative-law principles.11

 

EPA’s expert judgment concerning its own regulation”). That discussion stands in sharp contrast to the court of appeals’ discussion of 

the Silvicultural Rule, in which it explicitly characterized EPA’s interpretation as “inconsistent with [CWA] § 502(14).” Pet. App. 37. 

11 In response to the Ninth Circuit’s decision, EPA issued a notice 

in the Federal Register indicating its intent “to propose revisions to 

its Phase I stormwater regulations (40 C.F.R. 122.26) to specify that 

stormwater discharges from logging roads are not included in the 

definition of ‘storm water discharge associated with industrial activity.’” 77 Fed. Reg. at 30,474. EPA thus has expressed its intent to 

amend Section 122.26(b) to respond to the Ninth Circuit’s contrary 

reading of the regulation by making explicit the interpretation advanced in the government’s 2007 amicus brief. On September 4, 2012, 

EPA published a notice of proposed rulemaking to that effect. Notice 

of Proposed Revisions to Stormwater Regulations to Clarify that an 

NPDES Permit is not Required for Stormwater Discharges from 
28 

C. The Court Of Appeals Erred In Not Deferring To The 

EPA’s Interpretation Of The Silvicultural Rule That 

Runoff From Logging Roads Constitutes NonpointSource Pollution 

Properly construed, the Phase I regulation provides 

an adequate and independent basis to conclude that petitioners were not required to obtain an NPDES permit 

for the alleged discharges at issue here. Accordingly, 

the Court need not decide whether the Silvicultural 

Rule—promulgated under a regulatory framework predating the 1987 stormwater amendment—also excludes 

such discharges from the NPDES permitting scheme. 

If the Court reaches the question, however, it should reverse the court of appeals’ conclusion that stormwater 

runoff from logging roads that is collected and channeled by a system of ditches and culverts requires a 

permit under the Silvicultural Rule. 

The Silvicultural Rule specifically identifies four categories of silvicultural facilities (“rock crushing, gravel 

washing, log sorting, [and] log storage facilities”) as 

“[s]ilvicultural point source[s].” 40 C.F.R. 122.27(b)(1). 

Discharges of pollutants from those enumerated industrial activities are different in kind from stormwater 

discharges associated with precipitation-driven runoff 

from logging roads. The Silvicultural Rule further provides that the term “[s]ilvicultural point source” does 

not include “harvesting operations * * * or road construction and maintenance from which there is natural 

 

Logging Roads, 77 Fed. Reg. __ (forthcoming), available at 

http://www.ofr.gov/OFRUpload/OFRData/2012-21432_PI.pdf. EPA’s 

proposed regulatory approach, if and when finalized, effectively 

would render moot the court of appeals’ conclusion that such discharges are subject to NPDES permitting requirements under the 

current regulatory scheme. 
29 

runoff.” Ibid. Although the rule does not specifically 

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

suggest that such runoff should be treated as a “point 

source” discharge. 

The government unequivocally expressed in its amicus brief EPA’s view that, under the Silvicultural Rule, 

channeled “natural runoff ” from logging roads does not 

require a permit. That brief explained that “the term 

‘natural runoff ’ in the silvicultural rule categorically excludes [from the definition of silvicultural point source] 

all stormwater runoff from forest roads, even where the 

roads include channels, ditches, or culverts.” I J.A. 39. 

EPA’s interpretation of its Silvicultural Rule was not 

“plainly erroneous or inconsistent with the regulation”; 

indeed, it was the more linguistically plausible reading 

of the rule. The court of appeals therefore should have 

deferred under Auer to that interpretation. 

The court of appeals did not disagree that EPA’s 

reading was consistent with the terms of the Silvicultural Rule. Rather, it rejected EPA’s reading on the ground 

that the agency interpretation would bring the rule into 

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

App. 36-37. That mode of analysis was erroneous. As 

discussed above (pp. 20-22, supra), if an agency has offered a definitive interpretation of its own regulation 

that is otherwise entitled to deference under Seminole 

Rock and Auer, a court may not adopt a different interpretation based on principles of “statutory avoidance.” 

That principle applies even when the pertinent judicialreview scheme prevents the court from taking what 

would ordinarily be the logical next step of determining 

whether the regulation, as construed by the agency, is 
30 

consistent with the governing statute. See Seminole 

Rock, 325 U.S. at 414, 418-419.12

In any event, the CWA does not compel the court of 

appeals’ conclusion that the discharges at issue required 

a permit. Just as a court must defer under Seminole 

Rock and Auer to an agency’s reasonable construction of 

its own regulation, a court must defer to EPA’s regulatory interpretation of an ambiguous CWA provision unless 

 

12 The court of appeals’ opinion, as well as the government’s 

amicus brief at the rehearing stage, relied in part on when EPA first 

announced its official interpretation of the Silvicultural Rule as excluding systematically channeled runoff from logging roads from 

NPDES permit requirements. See Pet. App. 9-10; I J.A. 59-60 & n.5. 

The timing is not clear: although the government had previously contended that EPA’s interpretation dated back to 1976, it argued on 

rehearing that EPA’s interpretation was first articulated during this 

litigation. Compare I J.A. 33-34 with I J.A. 59-60 & n.5. That divergence arises from respondent’s emphasis, as the litigation developed, 

on the ambiguous term “natural runoff,” which was added to the Silvicultural Rule in 1980. 45 Fed. Reg. 33,290, 33,447 (May 19, 1980). 

The rule itself does not specify whether runoff that is systemically 

conveyed by channels, ditches, or culverts is “natural” (thereby constituting nonpoint-source pollution), and the EPA’s pre-2007 written 

statements did not definitively resolve that specific issue. 

On further reflection, however, the timing question is irrelevant to 

the resolution of this case. Even assuming that EPA’s interpretation 

was first announced during this litigation, the court of appeals could 

not properly invoke principles of “statutory avoidance” to reject an 

agency interpretation of the Silvicultural Rule because that would be 

a misapplication of Auer principles. Quite apart from the restrictions 

imposed by Section 1369(b)(2) on “judicial review” of EPA regulations, the background rule of administrative law set forth in Seminole 

Rock foreclosed the court’s approach. See pp. 20-23, supra. That is, 

a court can never reject an agency’s interpretation of a regulation 

that is consistent with the regulation’s text and structure, and then 

substitute the court’s own interpretation of the regulation that it 

views as more consistent with the statute. 
31 

the statute dictates a different interpretation. See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009) 

(citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-

844 (1984)). The CWA’s definition of “point source,” 33 

U.S.C. 1362(14), gives EPA meaningful discretion in distinguishing between point and non-point sources. “[T]he 

concept of a ‘discrete conveyance’” in the statutory definition, for example, “suggests that there is room here 

for some exclusion by interpretation.” NRDC v. Costle, 

568 F.2d 1369, 1377 (D.C. Cir. 1977); see id. at 1382 

(“[T]he power to define point and nonpoint sources is 

vested in EPA and should be reviewed by the court only 

after opportunity for full agency review and examination.”) (citation omitted); see also League of Wilderness 

Defenders v. Forsgren, 309 F.3d 1181, 1190 (9th Cir. 

2002); National Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 

167 (D.C. Cir. 1982). That is particularly true with respect to silvicultural sources of pollution. See Costle, 

568 F.2d at 1377 (noting “question, to what extent point 

sources are involved in * * * silvicultural * * * runoff ”); NRDC v. Train, 396 F. Supp. 1393, 1401 (D.D.C. 

1975) (“Congress intended for the agency to determine, 

at least in the agricultural and silvicultural areas, which 

activities constitute point and nonpoint sources.”), aff ’d, 

568 F.2d 1369 (D.C. Cir. 1977).13 Thus, read in light of 

the Act as a whole, the CWA’s definition of “point 

source” does not foreclose EPA from determining that 

 

13 The CWA elsewhere refers to silvicultural activities as generating pollution from nonpoint sources. See 33 U.S.C. 1288(b)(2)(F) 

(referring to “agriculturally and silviculturally related nonpoint 

sources of pollution”); 33 U.S.C. 1314(f)(A) (addressing identification 

and control of “nonpoint sources of pollution” from “agricultural and 

silvicultural activities, including runoff from fields and crop and forest lands”). 
32 

channeled stormwater runoff from logging roads should 

be treated as nonpoint-source discharges. 

It should be acknowledged, however, that EPA’s latitude to distinguish between point-source and nonpointsource stormwater discharges served a significantly 

greater practical need when the Silvicultural Rule was 

adopted in 1976, and amended to its present form in 

1980, than it does under the current statutory scheme. 

Until 1987, designating particular categories of stormwater discharges as nonpoint-source discharges was 

EPA’s only statutory mechanism for insulating them 

from NPDES permitting requirements. Congress recognized the shortcomings of that rigid approach, and it 

enacted the 1987 amendment to provide EPA a greater 

range of regulatory options to address the distinct issues that stormwater discharges pose. That amendment 

gives EPA substantial discretion to designate which 

stormwater discharges, other than the five categories 

listed in Section 402(p)(2), are subject to the Act, and to 

determine whether to address those discharges through 

means other than permits. Because EPA’s regulatory 

definition of “discharge associated with industrial activity” is part of the agency’s effort to implement that current, more nuanced statutory scheme, it represents the 

most appropriate ground on which to decide this case. 

See pp. 13-15, supra. 
33 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

 

SCOTT C. FULTON

General Counsel 

U.S. Environmental 

 Protection Agency 

DONALD B. VERRILLI, JR. Solicitor General 

IGNACIA S. MORENO

 Assistant Attorney General 

MALCOLM L. STEWART

 Deputy Solicitor General 

ETHAN G. SHENKMAN

Deputy Assistant Attorney 

General 

PRATIK A. SHAH

Assistant to the Solicitor 

General 

AARON P. AVILA

JUDY B. HARVEY

Attorneys 

SEPTEMBER 2012