APPENDIX

39a
dustrial activity” does not include sources ...
which are excluded under 40 CFR 122.27.
55 Fed. Reg. 47990, 48011 (Nov. 16, 1990).
In the 1987 amendments, Congress exempted
many stormwater discharges from the NPDES permitting
process. However, Congress made clear in
§ 402(p) that it did not exempt “discharges associated
with industrial activity.” 33 U.S.C. § 1342(p)(2)(B).
Indeed, Congress specifically mandated that EPA establish
a permitting process for such discharges. See
33 U.S.C. § 1342(p)(4)(A) ( “[T]he Administrator shall
establish regulations setting forth the permit application
requirements for stormwater discharges described
in paragraphs (2)(B) [“discharge[s] associated
with industrial activity”] and (2)(C).” (emphasis added)).
In NRDC v. EPA, 966 F.2d 1292 (9th Cir.1992),
we struck down a part of EPA’s Phase I regulations
exempting point source discharges from construction
sites of less than five acres. We wrote, “[I]f construction
activity is industrial in nature, and EPA concedes
that it is, EPA is not free to create exemptions
from permitting requirements for such activity.” Id.
at 1306. Similarly, if silvicultural activity is “industrial
in nature,” § 402(p) requires that discharges
from such activity obtain NPDES permits.
Industries covered by the Phase I “associated
with industrial activity” regulation are defined in accordance
with Standard Industrial Classifications
(“SIC”). The applicable (and unchallenged) regulation
provides that facilities classified as SIC 24 are
among “those considered to be engaging in ‘industrial
activity.’ “ 40 C.F.R. § 122.26(b)(14)(ii). It is undisputed
that “logging,” which is covered under SIC
2411 (part of SIC 24), is an “industrial activity.” SIC
2411 defines “logging” as “[e]stablishments primarily