Recall that the U.S. Solicitor General previously recommended that the U.S. Supreme Court not hear the case, mostly arguing that there was no reason for the Court to act because both EPA and Congress were moving expeditiously toward a solution. Now the Court has accepted the case, however, the United States is arguing in support of forest landowners.
Here's the U.S. Solicitor General's summary of its brief:
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 overnment’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 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 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).