Decker v. Northwest Environmental Defense Center, No. 11-338; U.S. Supreme Court; opinion by Kennedy, J.; concurrence by Roberts, C.J.; partial dissent by Scalia, J.; decided March 20, 2013, together with No. 11-347, Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, both on certiorari to the U.S. Court of Appeals for the Ninth Circuit.

The Clean Water Act requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into the navigable waters of the United States. See 33 U.S.C. §§ 1311(a), 1362(12). One of the Environmental Protection Agency’s implementing regulations, the Silvicultural Rule, specifies which types of logging-related discharges are point sources. See 40 CFR § 122.27(b)(1). These discharges require NPDES permits unless some other federal statutory provision exempts them from coverage. One such statutory provision exempts "discharges composed entirely of stormwater," 33 U.S.C. § 1342(p)(1), unless the discharge is "associated with industrial activity," § 1342(p)(2)(B). Under the EPA’s Industrial Stormwater Rule, the term "associated with industrial activity" covers only discharges "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." See 40 CFR § 122.26(b)(14). Shortly before oral argument in these cases, the EPA issued a final version of an amendment to the Industrial Stormwater Rule, clarifying that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule.

Petitioner Georgia-Pacific West has a contract with Oregon to harvest timber from a state forest. When it rains, water runs off two logging roads used by petitioner into ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, which evidence shows may be harmful to fish and other aquatic organisms. Respondent Northwest Environmental Defense Center (NEDC) filed suit against petitioner and state and local governments and officials, including petitioner Decker, invoking the act’s citizen-suit provision, 33 U.S.C. § 1365, and alleging that the defendants had not obtained NPDES permits before discharging stormwater runoff into two Oregon rivers. The district court dismissed the action for failure to state a claim, concluding that NPDES permits were not required because the ditches, culverts and channels were not point sources of pollution under the act and the Silvicultural Rule. The Ninth Circuit reversed. It held that the conveyances were point sources under the Silvicultural Rule. It also concluded that the discharges were "associated with industrial activity" under the Industrial Stormwater Rule, despite the EPA’s contrary conclusion that the regulation excludes the type of stormwater discharges from logging roads at issue. Thus, the court held, the discharges were not exempt from the NPDES permitting scheme.

Held: 1. A provision of the act governing challenges to agency actions, § 1369(b), is not a jurisdictional bar to this suit. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit under § 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the act or its regulations. The present action falls within the scope of § 1365. Pp. 8-9.

2. The EPA’s recent amendment to the Industrial Stormwater Rule does not make the cases moot. A live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule. That version governed petitioners’ past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit. These cases thus remain live and justiciable. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation Inc., 484 U.S. 49, 64-65. The fact that the district court might rule that NEDC’s arguments lack merit, or that relief is not warranted on the facts of these cases, does not make the cases moot. Pp. 9-11.

3. The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. The regulation is a reasonable interpretation of the statutory term "associated with industrial activity," § 1342(p)(2)(B), and the agency has construed the regulation to exempt the discharges at issue here. When an agency interprets its own regulation, the court, as a general rule, defers to it "unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’" Chase Bank USA, N.A. v. McCoy, 562 U.S. — (quoting Auer v. Robbins, 519 U.S. 452, 461). Here, it was reasonable for the EPA to conclude that the conveyances at issue are "directly related" only to the harvesting of raw materials, rather than to "manufacturing, processing, or raw materials storage areas at an industrial plant." See 40 CFR § 122.26(b)(14). The regulatory scheme, taken as a whole, leaves open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites and other relatively fixed facilities.

Another reason to accord Auer deference to the EPA’s interpretation is that there is no indication that the agency’s current view is a change from prior practice or is a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U.S. —. Rather, the EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits. Its decision also exists against a background of state regulation with respect to stormwater runoff from logging roads. In exercising the broad discretion the act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation would be duplicative or counterproductive in light of Oregon’s extensive rules on the subject. Pp. 11-15.

640 F.3d 1063, reversed and remanded.

Breyer, J., took no part in the consideration or decision of the cases.