APPENDIX

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7a adopted the first reading of the Silvicultural Rule for the first time in its initial amicus brief in this case. Until the United States filed that brief, there was no way for the public to know which reading of the Silvicultural Rule it would adopt. As the government states in its second amicus brief to us, At the time an ambiguous regulation is promulgated ... the public cannot reasonably be expected to challenge potential regulatory interpretations that are textually plausible but that the agency has not contemporaneously offered and may never adopt. Indeed, a rule encouraging such challenges to hypothetical interpretations would likely only foster unnecessary litigation. Because the Silvicultural Rule was subject to two readings, only one of which renders the Rule invalid, and because the government first adopted its interpretation of the Rule in its initial amicus brief in this case, this case comes within the exception in § 1369(b)(1) for suits based on grounds arising after the 120–day filing window. Section 1369(b) therefore does not bar a citizen suit challenging EPA’s Silvicultural Rule interpretation first adopted in its initial amicus brief in this case. We thus have subject matter jurisdiction under 33 U.S.C. § 1365(a). III. Standard of Review We review de novo a district court’s dismissal under Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We accept as true all of NEDC’s allegations of material facts and we construe them in the light most favorable to NEDC. Id. We review de novo the district court’s interpretation of the CWA and its implementing regulations.
8a League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). We defer to an agency’s interpretation of its own regulations unless that interpretation is plainly erroneous, inconsistent with the regulation, or based on an impermissible construction of the governing statute. Auer v. Robbins, 519 U.S. 452, 457, 461–62 (1997). We review EPA’s interpretations of the CWA under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984). At Chevron step one, if, employing the “traditional tools of statutory construction,” we determine that Congress has directly and unambiguously spoken to the precise question at issue, then the “unambiguously expressed intent of Congress” controls. Id. at 843. At Chevron step two, if we determine that the statute is “silent or ambiguous with respect to the specific issue,” we must determine whether the agency’s interpretation is based on a permissible construction of the statute. Id. at 843. An agency interpretation based on a permissible construction of the statute controls. Id. at 844. IV. Discussion NEDC contends that stormwater runoff from logging roads that is collected in a system of ditches, culverts, and channels, and is then delivered into streams and rivers, is a point source discharge subject to NPDES permitting under the CWA. Defendants, however, contend that the Silvicultural Rule exempts such runoff from the definition of point source discharge, and thus exempts it from the NPDES permitting process. Alternatively, Defendants contend that the 1987 amendments to the CWA and regulations implementing those amendments exempt such runoff from the definition of
Page 1 and 2: APPENDIX
Page 3 and 4: 2a ORDER This court’s opinion fil
Page 5 and 6: 4a Both of the logging roads were d
Page 7: 6a light of our holding that the Ru
Page 11 and 12: 10a “It is well settled that the
Page 13 and 14: 12a tually passes through storm sew
Page 15 and 16: 14a ing of the distinction as it re
Page 17 and 18: 16a ture, nor shall the Administrat
Page 19 and 20: 18a gram.” Id. at 1395. The distr
Page 21 and 22: 20a those silvicultural activities
Page 23 and 24: 22a (a) Definitions. For the purpos
Page 25 and 26: 24a court’s mouth. The district c
Page 27 and 28: 26a The wording of the statute, leg
Page 29 and 30: 28a The original Silvicultural Rule
Page 31 and 32: 30a pollution in a way that contrav
Page 33 and 34: 32a another, because section 122.27
Page 35 and 36: 34a longstanding administrative reg
Page 37 and 38: 36a The [FWPCA] of 1972 required al
Page 39 and 40: 38a 3. Phase I Stormwater Regulatio
Page 41 and 42: 40a engaged in cutting timber and i
Page 43 and 44: Id. 42a trial plant yards, immediat
Page 45 and 46: 44a discharges. For example, in 197
Page 47 and 48: 46a tant in a specific place and is
Page 49 and 50: 48a UNITED STATES DISTRICT COURT FO
Page 51 and 52: 50a court is not required to accept
Page 53 and 54: 52a by defendants that an individua
Page 55 and 56: 54a dischargers and the EPA has det
Page 57 and 58: 56a clude agricultural stormwater d
Page 59 and 60:
58a the so-called Phase I discharge
Page 61 and 62:
60a dicta found in Forsgren, a case
Page 63 and 64:
62a socs., 278 F. Supp. 2d 654, 681
Page 65 and 66:
64a Id. at *14 (internal citations
Page 67 and 68:
66a are adequately set forth to per
Page 69 and 70:
68a none that will change this anal
Page 71 and 72:
70a 33 U.S.C. § 1288. Areawide was
Page 73 and 74:
72a 33 U.S.C. § 1342. National pol
Page 75 and 76:
74a Not later than October 1, 1993,
Page 77 and 78:
76a 33 U.S.C. § 1365. Citizen suit
Page 79 and 80:
78a 40 C.F.R. § 122.26 Storm water
Page 81 and 82:
80a stone, gravel, and riprap (See
Page 83 and 84:
82a Pursuant to Local Rule 7-3(b),
Page 85 and 86:
84a with industrial activity;” (3
Page 87 and 88:
86a standard or is a significant co
Page 89 and 90:
88a Finally, PALCO’s operations a
Page 91 and 92:
90a In its Phase II regulations, EP
Page 93 and 94:
92a CONCLUSION For the reasons set
Page 95 and 96:
94a TABLE OF CONTENTS Page TABLE OF
Page 97 and 98:
96a I. INTRODUCTION The Northwest E
Page 99 and 100:
98a relevant Clean Water Act implem
Page 101 and 102:
100a (NPS). 4 Several sections of t
Page 103 and 104:
102a 40 C.F.R. § 122.27(b) (emphas
Page 105 and 106:
104a discharges or classes of storm
Page 107 and 108:
106a mand. In fact, the Ninth Circu
Page 109 and 110:
108a storm water permitting program
Page 111 and 112:
110a The Court in NRDC v. Costle fo
Page 113 and 114:
112a ral runoff’ to modify all of
Page 115 and 116:
114a 1976 regulation into the body
Page 117 and 118:
116a administer the CWA. See Ford M
Page 119 and 120:
118a tional one to preclude a court
Page 121 and 122:
120a of its section 122.27 rule, an
Page 123 and 124:
122a EPA was free to adopt any regu
Page 125 and 126:
124a C.F.R. § 122.26(b)(14) (empha
Page 127 and 128:
126a roads as excluded under 40 C.F
Page 129 and 130:
128a Second, the court found that i
Page 131 and 132:
130a amendments. Thus, EPIC’s int
Page 133 and 134:
132a tion compels EPA to use the NP
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