APPENDIX

35a
lation. The Supreme Court has cautioned strongly
against finding congressional acquiescence. In Solid
Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers, 531 U.S. 159, 162 (2001), it
wrote, “Although we have recognized congressional
acquiescence to administrative interpretations of a
statute in some circumstances, we have done so with
extreme care.” After discussing a case in which there
had been congressional hearings on the precise issue,
and in which thirteen bills had been introduced in
unsuccessful attempts to overturn the regulation, the
Court wrote, “Absent such overwhelming evidence of
acquiescence, we are loath to replace the plain text
and original understanding of a statute with an
amended agency interpretation.” Id. at 169–70, n.5.
Here, there is no evidence whatsoever of congressional
acquiescence in the Silvicultural Rule, let
alone “overwhelming evidence.”
2. The 1987 Stormwater Amendments
Congress amended the CWA in 1987 to deal specifically
with stormwater discharges. Pub. L. No.
100–4, 101 Stat. 7 (1987). Congress added § 402(p) to
the CWA, establishing a “phased and tiered approach”
to NPDES permitting of stormwater discharges.
See 55 Fed. Reg. 47994 (Nov. 16, 1990) (describing
33 U.S.C. § 1342(p)). Section 402(p) fundamentally
redesigned the CWA’s approach to stormwater
discharges.
Under the framework created by the FWPCA in
1972, EPA was required to establish a permitting
system for all point source discharges of stormwater.
Senator Durenberger explained that the Conference
Bill that would become the 1987 amendment focused
on stormwater point sources.