Lead Opinion
delivered the opinion
These cases present the question whether the Clean Water Act and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters
I—I
A
Congress passed the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. § 1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§ 1311(a), 1362(12); EPA v. California ex rel. State Water Resources Control Bd.,
“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” § 1362(14).
When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The Agency issued regulations exempting certain types of point-source discharges from the NPDES permitting scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA “authority to exempt categories of point sources from the permit requirements” of the Act. Natural Resources Defense Council, Inc. v. Costle,
“Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control,' harvesting operations, surface drainage, or road construction and maintenance from which there is natural, runoff.” 40 CFR § 122.27(b)(1) (2006).
Under the quoted rule, any discharge from a logging-related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U. S. C. § 1342(p), Congress has exempted certain discharges of stormwater runoff. The statutory exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage
The 1987 amendments exempt from the NPDES permitting scheme most “discharges composed entirely of stormwa-ter.” §1342(p)(l). The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges “associated with industrial activity.” § 1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as
“the discharge 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. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from . . . immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility .. . .” 40 CFR § 122.26(b)(14).
The Industrial Stormwater Rule also specified that, with one exception not relevant here, “[f]acilities classified as Standard Industrial Classificatio[n] 24” are “considered to be engaging in ‘industrial activity’ for purposes of paragraph (b)(14).” Ibid. The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept, of Labor, Standard Industrial Classifications Manual, online at http://Avww.osha.gov/pls/imis/sic_manual.html (as visited Mar. 14, 2013, and available in Clerk of Court’s case file). Standard Industrial Classification 24 identifies industries involved in the field of “Lumber and Wood Products.”
On November 30, 2012—three days before the instant cases were argued in this Court—the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the Agency’s response to the Court of Appeals’ ruling now under review. The amended version seeks to clarify the types of facilities within Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule. The amended Industrial Stormwater Rule does not cover all facilities within Standard Industrial .Classification 24. It limits covered stormwater discharges to
“ [facilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities . . . and Industry Groups 242 through 249.” 77 Fed. Reg. 72974, pt. 122, subpt. B (2012).
It should be noted, by way of explanation, that an Industry Group is a subcategory of businesses within a Standard Industrial Classification. Industry Group 241 is “Logging,” while Industry Groups 242 through 245 are, respectively, “Sawmills and Planing Mills,” “Millwork, Veneer, Plywood, and Structural Wood,” “Wood Containers,” and “Wood Buildings and Mobile
It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule.
Up to this stage in the litigation, of course, the cases have been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be required for the stormwa-ter discharges at issue. The parties disagree about the significance of the amended rule for purposes of these cases. Before reaching this and other preliminary points, however, it is appropriate to set forth the facts and history of the cases leading to the proceedings in this Court.
B
At issue are discharges of channeled stormwater runoff from two logging roads in Oregon’s Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia-Pacific West, along with other logging and paper-products companies, has a contract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 inches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from the roads. There is evidence that this runoff can harm fish and other aquatic organisms.
In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It invoked the Clean Water Act’s citizen-suit provision, 33 U. S. C. § 1365, and named as defendants certain firms involved in logging and paper-products operations (including petitioner Georgia-Pacific West), as well as state and local governments and officials (including the state forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the defendants caused discharges of channeled stormwater runoff into two waterways—the South Fork Trask River and the Little South Fork Rilchis River. The defendants had not obtained NPDES permits, and so, the suit alleged, they had violated the Act.
The District Court dismissed the action for failure to state a claim. It concluded 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 Court of Appeals for the Ninth Circuit reversed. Northwest Environmental Defense Center v. Brown,
This Court granted certiorari.
H-f
Before proceeding to the merits, it is necessary to consider two jurisdictional questions.
A
Respondent NEDC invoked the jurisdiction of the District Court under 33 U. S. C. § 1365(a), which “authorize^] private enforcement of the provisions of [the Clean Water Act]” and its implementing regulations. Department of Energy v. Ohio,
The Court of Appeals was correct to rule that the exclusive jurisdiction mandate is not applicable in this suit. Section 1369(b) extends only to certain suits challenging some Agency actions. 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 is within the scope of § 1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule. The rule is ambiguous: Its characterization of silvicultural harvesting operations “from which there is natural runoff,” 40 CFR § 122.27(b)(1), as a nonpoint source might be read, as petitioners contend, to apply to the channeled stormwater runoff at issue; or it might be read, as respondent NEDC urges, to apply only to runoff not collected in channels or other engineered improvements. See New Oxford American Dictionary 1167 (3d ed. 2010) (Oxford Diet.) (“natural” means “existing in or caused by nature; not made or caused by humankind”). NEDC’s reading would make the channeled discharges here point-source pollution under the Act. In its view only this interpretation can be squared with the Act’s broad definition of “point source.” 33 U. S. C. § 1362(14). On this premise, the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation. It is a basic tenet that “regulations, in order to be valid, must be consistent with the statute under which they are promulgated.” United States v. Larionoff,
B
“It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male,
That conclusion is incorrect. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees,
Respondent NEDC continues to press its claim that petitioners’ discharges are unlawful under both the amended regulation and the earlier version. See Supp. Brief for Respondent 3-13. The instant cases provide no occasion to interpret the amended regulation. “ ‘[W]e are a court of review, not of first view.’ ” Arkansas Game and Fish Comm’n v. United States, ante, at 37 (quoting Cutter v. Wilkinson,
If the Court of Appeals is correct that petitioners were obligated to secure NPDES permits before discharging channeled stormwater runoff, the District Court might order some remedy for their past violations. The Act contemplates civil penalties of up to $25,000 per day, 33 U. S. C. § 1319(d), as well as attorney’s fees for prevailing parties, § 1365(d). NEDC, in addition, requests injunctive relief for both past and ongoing violations, in part in the form of an order that petitioners incur certain environmental-remediation costs to alleviate harms attributable to their past discharges. Under these circumstances, the cases remain live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
1—1 )—H HH
The substantive question of the necessity for an NPDES permit under the earlier rule now must be addressed. Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were “associated with industrial activity,” 33 U. S. C. § 1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 CFR § 122.26(b)(14). Otherwise, the discharges fall within the Act’s general exemption of “discharges composed entirely of stormwater” from the NPDES permitting scheme. 33 U. S. C. § 1342(p)(l).
NEDC first contends that the statutory term “associated with industrial activity” unambiguously covers discharges of channeled stormwater runoff from logging roads. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
Somewhat more plausible is NEDC’s claim that the pre-amendment version of the Industrial Stormwater Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, “[f]or the categories of industries identified in this section,” NPDES permits are required for, among other things, “storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials.” 40 CFR § 122.26(b)(14). Yet this raises the question whether logging is a “categor[y] of industr[y]” identified by the section. The regulation goes on to identify a list of “categories of facilities” that “are considered to be engaging in ‘industrial activity’ for purposes” of the Industrial Stormwater Rule. Ibid. In the earlier version of the regulation, this list included “[facilities classified as Standard Industrial Classification] 24,” which encompasses “Logging.” Ibid. See also supra, at 604. Hence, NEDC asserts, logging is among the categories of industries for which “storm water discharges from... immediate access roads . . . used or traveled by carriers of raw materials” required NPDES permits under the earlier version of the Industrial Stormwater Rule. § 122.26(b)(14). NEDC further notes, in support of its reading of the regulation, that modern logging is a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons. See Brief for Respondent 4-5.
The EPA takes a different view. It concludes that the earlier regulation invoked Standard Industrial Classification 24 “ ‘to regulate traditional industrial sources such as sawmills.’” Brief for United States as Amicus Curiae 24-25. It points to the regulation’s reference to “facilities” and the classification’s reference to “establishments,”
NEDC resists this conclusion, noting that elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See § 122.26(b)(14)(iii) (mining); § 122.26(b)(14)(v) (landfills receiving industrial waste); § 122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation’s reach may be limited by the requirement that the discharges be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” § 122.26(b)(14).
It is well established that an agency’s interpretation need not be the only possible reading of a regulation—or even the best one—to prevail. 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,
There is another reason to accord Auer deference to the EPA’s interpretation: There is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp.,
The EPA’s decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629-625-0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629-625-0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629-625-0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads—and in particular of state forest roads—are areas in which Oregon has considerable expertise. 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 in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work “in consultation with State and local officials” to alie-viate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. § 1342(p)(6).
[[Image here]]
The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the Agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners’ alternative argument that the conveyances in question are not “pipe[s], ditch[es], channels], tunnel[s], conduit[s],” or any other type of point source within the Act’s definition of the term. § 1362(14).
For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.
It is so ordered.
Justice Breyer took no part in the consideration or decision of these cases.
Concurrence Opinion
with whom Justice Alito joins, concurring.
The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co.,
Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11-338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC,
The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue.
I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.
Concurrence Opinion
concurring in part and dissenting in part.
I join Parts I and II of the Court’s opinion; I agree that these eases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of the Environmental Protection Agency’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the Agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.
Enough is enough.
I
For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co.,
Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the Agency makes the difference (note the Court’s defensive insistence that the Agency’s interpretation need not be “the best one,” ante, at 613). And respondent has asked us, if necessary, to “ ‘reconsider Auer.’ ” I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer’s, flaws in a particularly vivid way.
The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever—just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”
The other rationale our cases provide is that the agency possesses special expertise in administering its “‘complex and highly technical regulatory program.’” See, e. g., Thomas Jefferson Univ. v. Shalala,
Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to
But when an agency interprets its own rules—that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive effect. “It is perfectly understandable” for an agency to “issue vague regulations” if doing so will “maximiz[e] agency power.” Thomas Jefferson Univ., supra, at 525 (Thomas, J., dissenting). Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543-544 (J. Cooke ed. 1961). Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1,11-12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. See Talk America,
It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency’s view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need , not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the
In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.
p-H hH
I would therefore resolve these cases by using the familiar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel stormwater runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and possibly two, questions: First, was the stormwater discharged from a “point source”? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit requirement because they were not “associated with industrial activity”? The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity.
A
The Clean Water Act generally prohibits discharging pollution without a permit from what it calls a “point source.” 33 U. S. C. § 1311(a). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,” and several other things. § 1362(14). The stormwater here was discharged from logging roads through a series of pipes, ditches, and channels—all items expressly named in the definition.
EPA argues that the Silvicultural Rule, 40 CFR § 122.27(b)(1) (2006), excludes from the definition of “[silvi-cultural point source” “harvesting operations ... from which there is natural runoff.” This is relevant, says the Agency, because that rule specifies that only “[sjilvicultural point sources, as defined in this section,” are “point sources subject to the . . . permit program.” § 122.27(a). In EPA’s view, the stormwater here is “natural runoff.”
But are stormwater discharges “natural runoff” when they are channeled through manmade pipes and ditches, and carry with them manmade pollutants from manmade forest roads? It is not obvious that this is so—as the Agency agrees. See Brief for United States as Amicus Curiae 19 (the rule’s “reference to ‘natural runoff’ associated with logging roads neither clearly encompasses nor clearly excludes the sort of channeled runoff that is at issue in this case”). In my view, giving the term
B
Many point-source stormwater discharges are nonetheless exempt from the usual permitting requirement. See 33 U. S. C. § 1342(p). This exemption, however, does not reach discharges “associated with industrial activity.” Ibid. EPA has enacted a rule defining what it means for storm-water discharges to be “associated with” industrial activity, and what activities count as “industrial.” 40 CFR § 122.26(b)(14).
The regulation sets out 11 “categories of industries”; as to those industries, discharges are “associated with industrial activity” if they come from sites used for “transportation” of “any raw material.” Ibid. The forest roads at issue here are used to transport raw material (logs); the only question is whether logging is a “categor[y] of industr[y]” enumerated in the definition. It is: The second of the listed “categories of facilities” is “[facilities classified as Standard Industrial Classifications 24 (except 2434).” § 122.26(b)(14)(ii). Opening one’s hymnal to Standard Industrial Classification 24 (“Lumber and Wood Products, Except Furniture”), one finds that the first industry group listed, No. 2411, is “Logging”— defined as “[establishments primarily engaged in cutting timber.”
EPA disagrees, and the Court gives the Agency’s position Auer deference, but that reading is certainly not the most natural one. The Court relies heavily on the fact that the definition of “[s]torm water discharge associated with industrial activity” requires that the discharge be “directly related to manufacturing, processing or raw materials storage areas at an industrial plant,” § 122.26(b)(14). The crucial question this definition presents is whether the concluding phrase “at an industrial plant” limits only the last noun phrase (“raw materials storage areas”) or also the two preceding nouns (“manufacturing” and “processing”). The canon of interpretation known as the rule of the last antecedent states that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas,
Like all canons of interpretation, the rule of the last antecedent can be overcome
EPA also insists, Brief for United States as Amicus Curiae 24, that the regulation reaches only “ ‘traditional’ ” sources of industrial stormwater, such as sawmills. But Standard Industrial Classification 24. has a specific subcategory (No. 242) that is “Sawmills and Planing Mills.”
Finally, the Court believes that Standard Industrial Classification 24⅛ reference to “establishments” “suggest[s] industrial sites more fixed and permanent than outdoor timber-harvesting operations.” Ante, at 612. Not so. The Standard Industrial Classification uses “establishments” throughout to refer to business entities in general; for example, Classification 2411 refers to “[establishments primarily engaged in cutting timber,” which includes “producing wood chips in the field.”
The Agency also assures us that its intent (Brief for United States as Amicus Curiae 25) was to reach a more limited subset of logging activities, an intent that it believes can essentially float free from the text of the relevant rule. In the end, this is the real meat of the matter: EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been amply demonstrated to be a contrary text.
* * *
Because the fairest reading of the Agency’s rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.