Northwest Env v. Epa ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST ENVIRONMENTAL 
ADVOCATES; THE OCEAN
CONSERVANCY, INC.; WATERKEEPERS
NORTHERN CALIFORNIA,
Petitioners,
and
No. 03-74795
THE STATES OF NEW YORK, ILLINOIS,
MICHIGAN, MINNESOTA, WISCONSIN,  EPA No.
03-5760
AND THE COMMONWEALTH OF
PENNSYLVANIA,
Petitioners-Intervenors,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.

On Petition for Review of an Order of the
Environmental Protection Agency
9021
9022 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
NORTHWEST ENVIRONMENTAL 
ADVOCATES; THE OCEAN
CONSERVANCY; SANTA MONICA
BAYKEEPER, dba San Francisco
Baykeeper; dba DeltaBaykeeper,
Plaintiffs-Appellees,
and
THE STATES OF NEW YORK, ILLINOIS,
MICHIGAN, MINNESOTA, WISCONSIN,
No. 06-17187
AND THE COMMONWEALTH OF
PENNSYLVANIA,
Plaintiff-Intervenors-Appellees,
 D.C. No.
CV-03-05760-SI
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant-Appellant,
and
THE SHIPPING INDUSTRY BALLAST
WATER COALITION,
Defendant-Intervenor-
Appellant.

NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9023
NORTHWEST ENVIRONMENTAL 
ADVOCATES; THE OCEAN
CONSERVANCY; SANTA MONICA
BAYKEEPER, dba San Francisco
Baykeeper; dba DeltaBaykeeper,
Plaintiffs-Appellees,
and
THE STATES OF NEW YORK, ILLINOIS,
MICHIGAN, MINNESOTA, WISCONSIN,
No. 06-17188
AND THE COMMONWEALTH OF
PENNSYLVANIA,
Plaintiff-Intervenors-Appellees,
 D.C. No.
CV-03-05760-SI
v. OPINION
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant-Appellant,
and
THE SHIPPING INDUSTRY BALLAST
WATER COALITION,
Defendant-Intervenor-
Appellant.

Appeals from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Argued and Submitted
August 14, 2007—San Francisco, California
Filed July 23, 2008
Before: Michael Daly Hawkins, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
9024 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
Opinion by Judge William A. Fletcher
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9027
COUNSEL
Deborah A. Sivas, STANFORD LAW SCHOOL LEGAL
CLINICS, Stanford, California, Melissa Powers, PACIFIC
ENVIRONMENTAL ADVOCACY CENTER, Portland, Ore-
gon, Michael R. Lozeau, Alameda, California, for the
petitioners-appellants/plaintiffs-appellees.
Jennifer L. Scheller, Thomas Sansoneti, Martin F. McDer-
mott, US DEPARTMENT OF JUSTICE, Washington, D.C.,
Nancy J. Marvel, US ENVIRONMENTAL PROTECTION
AGENCY, San Francisco, California, for the respondent-
appellee/defendant-appellant.
Michael W. Evans; Brian K. McCalmon; James R. Weiss,
KIRKPATRICK & LOCKHART PRESTON GATES ELLIS,
Washington, D.C., Tim Walker; Rachel R. Davidson, KIRK-
PATRICK & LOCKHART PRESTON GATES ELLIS, San
Francisco, California, for the defendant-intervenor-appellant.
Timothy Hoffman, OFFICE OF THE ATTORNEY GEN-
ERAL, Buffalo, New York, Michael A. Cox, MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, Peggy Lauten-
schlager, WISCONSIN ATTORNEY GENERAL, Madison,
Wisconsin, Mike Hatch, ATTORNEY GENERAL OF MIN-
NESOTA, St. Paul, Minnesota, Lisa Madigan, OFFICE OF
THE ATTORNEY GENERAL, Chicago, Illinois, Richard P.
Mather, DEPARTMENT OF ENVIRONMENTAL PROTEC-
9028 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
TION, Harrisburg, Pennsylvania, Michael W. Evans, KIRK-
PATRICK & LOCKHART PRESTON GATES ELLIS, for
the plaintiffs-intervenors-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs in this case are Northwest Environmental Advo-
cates, San Francisco Baykeeper, and The Ocean Conservancy.
Plaintiffs-intervenors are the States of Illinois, Michigan,
Minnesota, New York, Pennsylvania, and Wisconsin. Plain-
tiffs and plaintiffs-intervenors challenge a regulation origi-
nally promulgated by the Environmental Protection Agency
(“EPA”) in 1973 exempting certain marine discharges from
the permitting scheme of sections 301(a) and 402 of the Clean
Water Act (“CWA”). That regulation, 40 C.F.R. § 122.3(a),
provides that the following vessel discharges into the naviga-
ble waters of the United States do not require permits: dis-
charge of effluent from properly functioning marine engines;
discharge of laundry, shower, and galley sink wastes from
vessels; and any other discharge incidental to the normal
operation of a vessel, including the discharge of ballast water.
The district court concluded that the EPA had exceeded its
authority under the CWA in exempting these discharges from
permitting requirements. The district court vacated § 122.3(a),
effective September 30, 2008. We affirm the decision of the
district court.
I. Background
A. The CWA and 40 C.F.R. § 122.3(a)
In 1972, Congress enacted sweeping amendments to the
Federal Water Pollution Control Act of 1948. After another
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9029
round of substantial amendments in 1977, the statute became
known as the Clean Water Act. The CWA declares a “na-
tional goal that the discharge of pollutants into the navigable
waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1).
Section 301(a) of the CWA provides that, subject to certain
exceptions, “the discharge of any pollutant by any person
shall be unlawful.” Id. § 1311(a). One of these exceptions is
for discharges authorized by a permit granted pursuant to the
National Pollutant Discharge Elimination System (“NPDES”),
a system set forth in section 402 of the Act. Id. §§ 1311(a),
1342. The combined effect of sections 301(a) and 402 is that
“[t]he CWA prohibits the discharge of any pollutant from a
point source into navigable waters of the United States with-
out an NPDES permit.” N. Plains Res. Council v. Fid. Explo-
ration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir. 2003). The
EPA administers the NPDES. 33 U.S.C. § 1251(d).
Obtaining a permit under the CWA need not be an onerous
process. For example, in appropriate circumstances a dis-
charge may be allowed under a “general permit” requiring
only that the discharger submit a “notice of intent” to make
the discharge. As we explained in Natural Resources Defense
Council v. EPA, 279 F.3d 1180, 1183 (9th Cir. 2002):
NPDES permits come in two varieties: individual
and general. An individual permit authorizes a spe-
cific entity to discharge a pollutant in a specific
place and is issued after an informal agency adjudi-
cation process. See 40 C.F.R. §§ 122.21, 124.1-
124.21, 124.51-124.66. General permits, on the other
hand, are issued for an entire class of hypothetical
dischargers in a given geographical region and are
issued pursuant to administrative rulemaking proce-
dures. See id. §§ 122.28, 124.19(a). General permits
may appropriately be issued when the dischargers in
the geographical area to be covered by the permit are
relatively homogenous. See id. § 122.28(a)(2). After
9030 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
a general permit has been issued, an entity that
believes it is covered by the general permit submits
a “notice of intent” to discharge pursuant to the gen-
eral permit. Id. § 122.28(b)(2). A general permit can
allow discharging to commence upon receipt of the
notice of intent, after a waiting period, or after the
permit issuer sends out a response agreeing that the
discharger is covered by the general permit. Id.
§ 122.28(b)(2)(iv).
In 1973, the EPA exempted by regulation several catego-
ries of vessel discharges from NPDES permitting require-
ments under the CWA. See NPDES, 38 Fed. Reg. 13,528,
13,530, § 125.4 (May 22, 1973). The regulation provides that
“[t]he following discharges do not require NPDES permits”:
Any discharge of sewage from vessels, effluent from
properly functioning marine engines, laundry,
shower, and galley sink wastes, or any other dis-
charge incidental to the normal operation of a vessel.
This exclusion does not apply to rubbish, trash, gar-
bage, or other such materials discharged overboard;
nor to other discharges when the vessel is operating
in a capacity other than as a means of transporta-
tion[.]
40 C.F.R. § 122.3(a). The CWA expressly exempts sewage
discharges from vessels from the permitting process and regu-
lates these discharges by other means. See 33 U.S.C.
§§ 1362(6)(A), 1322. Because § 122.3(a) does not itself
exempt sewage discharges but instead merely recognizes the
statute’s exemption of sewage discharges, the sewage clause
in § 122.3(a) is not subject to the ultra vires claim made here.
See also Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483,
493 n.13 (9th Cir. 1984) (contrasting the express statutory
exemption of sewage with regulation relating to “deballast-
ing” by ships). Therefore, three categories of discharges
exempted by 40 C.F.R. § 122.3(a) are at issue in this case: (1)
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9031
marine engine discharges; (2) graywater discharges (“laundry,
shower, and galley sink wastes”); and (3) “any other dis-
charge incidental to the normal operation of a vessel.”
The first proposed draft of the regulation would have
excluded only marine engine discharges. See NPDES, 38 Fed.
Reg. 1362, 1363-64, § 125.4(c) (proposed Jan. 11, 1973). The
EPA subsequently added the exclusions for graywater and
other discharges incidental to normal vessel operations. When
promulgating the final regulation in May 1973, the EPA
explained its anticipated effect: “Most discharges from ves-
sels to inland waters are now clearly excluded from the permit
requirements.” 38 Fed. Reg. at 13,528, (b)(13)(ii). The EPA
stated that “[t]his type of discharge generally causes little pol-
lution.” Id. The EPA stated, further, that the “exclusion of
vessel wastes from the permit requirements will reduce
administrative costs drastically.” Id. Decades later, an EPA
administrator declared that in 1973:
[W]e were faced with many, many other much
higher priority situations such as raw sewage being
discharged, municipal plants having to be built, very
large paper mills or steel mills and the like discharg-
ing. At the time we thought that was not an impor-
tant area to deal with. . . . Vessels were not important
to the overall scheme of things at that time.
Craig Vogt, EPA, EPA Pub. Meeting #12227, Ocean Dis-
charge Criteria (Sept. 12, 2000, 1 p.m.). The EPA amended
the regulation in 1979 in minor respects that do not affect our
analysis. See NPDES, Revision of Regulations, 44 Fed. Reg.
32,854, 32,902, § 122.4 (June 7, 1979); see also NPDES,
Revision of Existing Regulations, 43 Fed. Reg. 37,078,
37,079, I(c)(2) (Aug. 21, 1978) (describing the proposed
changes).
The text of the CWA does not exempt from NPDES
requirements marine engine discharges, graywater discharges,
9032 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
or other discharges incidental to the normal operation of ves-
sels. However, the EPA contended in 1973, and continues to
contend, that it has the power to provide these exemptions by
regulation. The Administrator of the EPA prefaced the draft
January 1973 regulation with a statement that a discharger
could discharge lawfully only if the discharger “possesses a
valid permit or is excluded from coverage by law or regula-
tion.” NPDES, 38 Fed. Reg. at 1362 (emphasis added). The
final rules similarly stated that “[a]ll discharges of pollutants
. . . are unlawful . . . , unless the discharger has a permit or
is specifically relieved by law or regulation from the obliga-
tion of obtaining a permit.” NPDES, 38 Fed. Reg. at 13,531,
§ 125.11(a) (emphasis added).
The first category exempted by § 122.3(a), marine engine
discharges, includes unburned fuel and various kinds of oil.
The second category, graywater discharges, can include
pathogens such as fecal coliform, enterococci, and E. coli and
pollutants such as ammonia, arsenic, copper, lead, nickel, and
zinc. See, e.g., EPA Draft Cruise Ship Discharge Assessment
Report (Dec. 2007), available at http://www.epa.gov/owow/
oceans/cruise_ships/pdf_disch_assess/cruiseship_discharge_
assessment_report.pdf. The third category, “any other dis-
charge,” includes, among other discharges, ballast water from
ships. Cf. 33 U.S.C. § 1322(a)(12)(A)(i) (defining this broad
“other discharge” category for purposes of a different CWA
section).
Plaintiffs have made clear, both here and in the district
court, that their primary environmental concern stems from
the discharge of ballast water. We quote a passage from the
district court’s order granting plaintiffs’ motion for permanent
injunctive relief that describes the purpose of ballast water
and the effects of its discharge:
Ballast water is water that is taken on by cargo
ships to compensate for changes in the ship’s weight
as cargo is loaded or unloaded, and as fuel and sup-
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9033
plies are consumed. Ballast water may be used for a
number of different purposes, such as maintaining
stability, maintaining proper propeller and bow
immersion, and to compensate for off-center
weights. Thus, ballast water is essential to the proper
functioning of cargo ships, as well as to the safety of
its crew.
Because ballast water is primarily used to com-
pensate for changes in cargo, it is generally taken in
or pumped out at the ports along a ship’s route.
When a ship takes on ballast water, whether fresh-
water or saltwater, organisms found in that water are
typically taken in as well. These organisms are car-
ried in the ballast tanks of the ship until the ship
arrives at its next port, where, due to changes in the
distribution of the ship’s cargo, they may be released
into a new ecosystem. Due to the size of ballast
tanks on modern cargo ships, and the speed with
which these ships can reach their destinations, organ-
isms are increasingly able to survive the journey to
a new ecosystem. All told, “more than 10,000
marine species each day hitch rides around the globe
in the ballast water of cargo ships.” A number of
these species are released into U.S. waters in the
more than 21 billion gallons of ballast water released
in the United States each year.
If these foreign organisms manage to survive and
reproduce in the new ecosystem, they can cause
severe problems in the natural and human environ-
ment. For example, zebra mussels, native to the Cas-
pian Sea region of Asia, were brought into the Great
Lakes in the ballast water of cargo ships. “Zebra
mussels have clogged the water pipes of electric
companies and other industries; infestations in the
Midwest and Northeast have cost power plants and
industrial facilities almost $70 million between 1989
9034 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
and 1995.” As another example, according to a 2001
EPA report,
[a]n introduced strain of cholera bacteria,
possibly released in the bilge water of a
Chinese freighter, caused the deaths of
10,000 people in Latin America in 1991.
This cholera strain was then imported into
the United States from Latin America in the
ballast tanks of ships that anchored in the
port of Mobile, Alabama. Fortunately, chol-
era bacteria were detected in oyster and fin-
fish samples in Mobile Bay . . . and no
additional deaths occurred from exposure to
this pathogen.
With a lack of natural predators, invasive species
can multiply rapidly and quickly take over an
ecosystem, threatening native species. Indeed, inva-
sive species “are a major or contributing cause of
declines for almost half the endangered species in
the United States.” Once established, invasive spe-
cies become almost impossible to remove, leading
“[s]cientists, industry officials, and land managers
[to] recogniz[e] that invasive species are one of the
most serious, yet least appreciated, environmental
threats of the 21st century.”
In economic terms, invasive species can also have
a devastating effect. The Department of Agriculture
spends millions of dollars per year to detect and pre-
vent invasive species. One study cited by the [Gen-
eral Accounting Office] concluded that “total annual
economic losses and associated control costs [are]
about $137 billion a year — more than double the
annual economic damage caused by all natural disas-
ters in the United States.”
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9035
Nw. Envtl. Advocates v. EPA (“Northwest Environmental
Advocates II”), No. 03-05760, 2006 U.S. Dist. LEXIS 69476,
at *10-12 (N.D. Cal. Sept. 18, 2006) (citations omitted; sixth
alteration added).
B. Procedural History
In January 1999, plaintiffs petitioned the EPA, asking that
the agency repeal 40 C.F.R. § 122.3(a). See Petition for
Repeal of 40 CFR § 122.3(a) (Jan. 1999) (“Petition for Rule-
making”). Plaintiffs contended that the regulation was not
authorized by the CWA and was thus ultra vires. Plaintiffs
sued the EPA a year and a half later, alleging unreasonable
delay in responding to their petition. The district court ordered
the EPA to respond to the petition, but the EPA obtained a
stay from this circuit. Under a subsequent consent decree, the
EPA agreed to “grant, deny, or grant in part and deny any
remaining part of NWEA’s petition” by September 2, 2003.
Nw. Envtl. Advocates v. EPA, 340 F.3d 853, 857 (9th Cir.
2003). On the day of the deadline, the EPA denied plaintiffs’
petition in its entirety. See EPA, Decision on Petition for
Rulemaking To Repeal 40 C.F.R. 122.3(a) (Sept. 2, 2003)
(“EPA Decision on Petition”); see also Availability of Deci-
sion on Petition for Rulemaking To Repeal Regulation
Related to Ballast Water, 68 Fed. Reg. 53,165 (Sept. 9, 2003)
(giving notice of the denial).
Plaintiffs brought suit against the EPA three months later,
in December 2003. Their first cause of action alleged that 40
C.F.R. § 122.3(a) is not authorized by the CWA and is thus
ultra vires. See 5 U.S.C. § 706(2)(C). Their second cause of
action alleged, based on their ultra vires argument, that the
2003 EPA Decision on Petition was “not in accordance with
law.” See 5 U.S.C. § 706(2)(A). At the same time, as a protec-
tive measure in the event that the district court lacked jurisdic-
tion, the plaintiffs filed directly with this court a petition for
review of the EPA Decision on Petition, pursuant to jurisdic-
tional provisions contained in 33 U.S.C. § 1369(b)(1).
9036 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
In March 2005, the district court granted summary judg-
ment to plaintiffs on their first cause of action and ordered the
EPA to repeal § 122.3(a). Nw. Envtl. Advocates v. EPA
(“Northwest Environmental Advocates I”), No. 03-05760,
2005 U.S. Dist. LEXIS 5373, at *40 (N.D. Cal. Mar. 30,
2005). It is unclear whether the district court reached plain-
tiffs’ second cause of action. Given the court’s holding on the
plaintiffs’ first cause of action, however, it did not need to do
so. The district court ordered further proceedings to determine
the appropriate remedy. Id. The six states intervened as plain-
tiffs at the remedy stage “to protect their sovereign, propri-
etary, regulatory, and economic interest in the States’ waters.”
The Shipping Industry Ballast Water Coalition (“Shipping
Coalition”) intervened as a defendant. In September 2006, the
district court vacated the challenged portions of 40 C.F.R.
§ 122.3(a) as of September 30, 2008. Nw. Envtl. Advocates II,
2006 U.S. Dist. LEXIS 69476, at *2.
The EPA and the Shipping Coalition (collectively, “the
EPA”) appealed the district court’s decision to this court. We
consolidated their appeal with the petition filed directly in this
court.
II. Standard of Review
We review de novo questions of subject matter jurisdiction,
Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 924 (9th
Cir. 1999); the legal question of whether a statute of limita-
tions applies, Sierra Club v. Penfold, 857 F.2d 1307, 1315
(9th Cir. 1988) (as amended); a district court’s grant of sum-
mary judgment, Envtl. Prot. Info. Ctr. v. U.S. Forest Serv.,
451 F.3d 1005, 1008 (9th Cir. 2006); and the legal question
of whether a plaintiff has exhausted the necessary administra-
tive remedies, Great Basin Mine Watch v. Hankins, 456 F.3d
955, 961 (9th Cir. 2006).
Under 5 U.S.C. § 706(2)(C), the provision we apply to the
plaintiffs’ first cause of action, we must “set aside agency
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9037
action” that is “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.” This standard
requires the application of Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984). See, e.g.,
Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 758 (D.C. Cir.
2003); Anna Jacques Hosp. v. Leavitt, 537 F. Supp. 2d 24, 29-
30 (D.D.C. 2008) (“To determine if the Secretary exceeded
his statutory authority in violation of 5 U.S.C. § 706(2)(C),
the Court must engage in the two-step inquiry required by
Chevron.”).
When “reviewing an agency’s statutory interpretation under
the APA’s ‘not in accordance with law’ standard,” see 5
U.S.C. § 706(2)(A), the standard applied to the plaintiffs’ sec-
ond cause of action, we also “adhere to the familiar two-step
test of Chevron.” Holland v. Nat’l Mining Ass’n, 309 F.3d
808, 815 (D.C. Cir. 2002); cf. Cleveland v. Ohio, 508 F.3d
827, 838 (6th Cir. 2007) (“Agency action is ‘not in accor-
dance with the law’ when it is in conflict with the language
of the statute . . . .”).
We review the district court’s remedial order for abuse of
discretion. Biological Legal Found. v. Badgley, 309 F.3d
1166, 1176 (9th Cir. 2002).
III. Discussion
The EPA argues that the district court lacked subject matter
jurisdiction over plaintiffs’ suit, and that we therefore have
subject matter jurisdiction over the appeal only insofar as nec-
essary to order the district court to dismiss the suit for want
of jurisdiction. On the alternative assumption that the district
court had subject matter jurisdiction, the EPA argues that the
statute of limitations bars the ultra vires claim contained in
the plaintiffs’ first cause of action; that the district court erred
on the merits in finding that the CWA did not authorize the
exemptions contained in 40 C.F.R. § 122.3(a); and that the
district court abused its discretion in choosing its remedy.
9038 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
A. Subject Matter Jurisdiction
The district court had subject matter jurisdiction over plain-
tiffs’ suit under the general federal question statute, 28 U.S.C.
§ 1331, unless some other statute divested the district court of
jurisdiction. The only statute that could have had that effect
is section 509(b)(1) of the CWA. See 33 U.S.C. § 1369(b)(1).
Section 509(b)(1) specifies seven categories of agency action
for which a challenge must be brought as an original proceed-
ing in a court of appeals rather than in a district court. The
EPA contends that plaintiffs’ ultra vires challenge to
§ 122.3(a) falls within two of these seven categories. If the
EPA is right as to either category, the district court did not
have subject matter jurisdiction, and we must review the
EPA’s action by means of plaintiffs’ petition for review filed
directly in this court.
We do not lightly hold that we have jurisdiction under sec-
tion 509(b)(1). We have “counseled against [its] expansive
application.” League of Wilderness Defenders/Blue Mountain
Biodiversity Project v. Forsgren, 309 F.3d 1181, 1190 n.8
(9th Cir. 2002). “The specificity and precision of section
[509], and the sense of it, persuade us that it is designed to
exclude” EPA actions that Congress did not specify. Long-
view Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.
1992). Indeed, “[n]o sensible person . . . would speak” with
such detail otherwise. Id.We address the two potentially relevant categories of sec-
tion 509(b)(1) in turn, concluding that the agency action falls
in neither category. The district court therefore had subject
matter jurisdiction over plaintiffs’ suit.
1. Section 509(b)(1)(E)
[1] Subsection 509(b)(1)(E) provides for review by a court
of appeals of EPA actions “in approving or promulgating any
effluent limitation or other limitation under section 1311,
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9039
1312, 1316, or 1345 of this title.” See 33 U.S.C.
§ 1369(b)(1)(E) (referring to sections 301, 302, 306, and 405
of the CWA). The CWA defines an “effluent limitation” as
“any restriction . . . on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents which
are discharged from point sources . . . .” 33 U.S.C.
§ 1362(11); see also 40 C.F.R. § 122.2 (same); cf. 33 U.S.C.
§§ 1311, 1314(b) (establishing a procedure for adopting efflu-
ent limitations guidelines).
Section 509(b)(1)(E) authorizes original court of appeals
jurisdiction for challenges to regulations that establish numer-
ical limitations and similar limits. For example, in Natural
Resources Defense Council v. EPA, 673 F.2d 400, 402 (D.C.
Cir. 1982) (“NRDC D.C. Cir.”), the D.C. Circuit exercised
jurisdiction under section 509(b)(1)(E) over a challenge to
regulations setting forth “a complex set of procedures for
issuing or denying NPDES permits.” In upholding its jurisdic-
tion, the D.C. Circuit characterized the regulations as “restric-
t[ing] who may take advantage of certain provisions or
otherwise guid[ing] the setting of numerical limitations in per-
mits,” and as constituting “ ‘a limitation on point sources and
permit issuers’ and ‘a restriction on the untrammeled discre-
tion of the industry’ that existed before passage of the CWA.”
Id. at 404-05 (quoting Va. Elec. & Power Co. v. Costle, 566
F.2d 446, 450 (4th Cir. 1977)).
[2] The regulation in this case can be characterized as “ap-
proving or promulgating any effluent limitation or other limi-
tation” only if those words are understood in a Pickwickian
sense. The regulations in NRDC D.C. Cir. established proce-
dures under which limitations on discharges of effluent would
be implemented. Unlike the regulations in that case, 40 C.F.R.
§ 122.3(a) provides no limitation whatsoever.
[3] We conclude that section 509(b)(1)(E) does not autho-
rize original jurisdiction in the court of appeals in this case.
Section 122.3(a) does not involve the approval or promulga-
9040 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
tion of “any effluent limitation or other limitation,” but rather
creates the categorical and permanent exemptions of three
types of discharges from any limit imposed by a permitting
requirement.
2. Section 509(b)(1)(F)
[4] Section 509(b)(1)(F) provides for review by a court of
appeals of EPA actions “in issuing or denying any permit
under section 1342 of this title.” See 33 U.S.C.
§ 1369(b)(1)(F) (referring to section 402 of the CWA).
[5] In Crown Simpson Pulp Co. v. Costle, 445 U.S. 193,
196 (1980), the Supreme Court held that section 509(b)(1)(F)
also covers EPA actions “functionally similar” to the denial
of permits. The facts of the case make clear that the Court
understood functional similarity in a narrow sense. The State
of California, which had been delegated permit granting
authority under the CWA, proposed granting point source per-
mits to pulp mills discharging pollutants into the ocean. See
id. at 194-95. If California had not been delegated permit-
granting authority, the EPA would have granted or denied the
permits directly. See id. at 196-97. The EPA vetoed the pro-
posed permits. See id. at 194. Because the EPA was not the
permit-granting entity, the plaintiff contended that the EPA’s
action was not the issuance or denial of a permit within the
meaning of section 509(b)(1)(F). See id. at 195. The Court
concluded instead that the fortuitous circumstance that this
case arose in a state with permit-granting authority should not
produce a different jurisdictional result from a case involving
a state without such authority. Id. at 196-97; see also Ga.-Pac.
Corp. v. EPA, 671 F.2d 1235, 1238-40 (9th Cir. 1992) (exer-
cising original jurisdiction over denial of a variance); Pac.
Legal Found. v. Costle, 586 F.2d 650, 655 (9th Cir. 1978)
(exercising original jurisdiction over extension of a permit),
rev’d on other grounds, 445 U.S. 198 (1980).
In American Mining Congress v. EPA, 965 F.2d 759, 763
(9th Cir. 1992), we exercised jurisdiction under section
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9041
509(b)(1)(F) over a challenge to an EPA regulation of storm-
water discharges from inactive mining operations. The EPA
concluded that these discharges required permits because they
were “associated with industrial activity” under section
402(p)(2)(B) of the CWA. The challenged regulation there-
fore required permits for most inactive mines, but, based on
temporary permitting delays provided by section 402(p), the
regulation exempted “reclaimed” inactive coal mines from the
permit requirement until the expiration of a moratorium. Id.The Mining Congress, representing inactive mines required to
obtain permits, challenged the portion of the regulation
requiring permits. Id. at 764. The Mining Congress used the
exemption of reclaimed mines to argue that other inactive
mines should receive the same favorable treatment. Id. at 764-
65. American Mining Congress is inapplicable to our case
because the Mining Congress challenged the requirement that
certain mines obtain a permit, not an exemption.
We have applied section 509(b)(1)(F) in two cases involv-
ing challenges to stormwater regulations where those regula-
tions were based in part on exemptions specified in the text
of the CWA. In Natural Resources Defense Council v. EPA
(“NRDC 9th Cir. 1992”), 966 F.2d 1292 (9th Cir. 1992), we
exercised jurisdiction under section 509(b)(1)(F) over a chal-
lenge to a complex set of regulations governing discharges
from stormwater runoff. See id. at 1296-97. Two statutory
provisions formed the basis for the regulations. First, as men-
tioned above, section 402(p) of the CWA, 33 U.S.C.
§ 1342(p), “established deadlines by which certain storm
water dischargers must apply for permits, the EPA or states
must act on permits and dischargers must implement their
permits.” NRDC 9th Cir. 1992, 966 F.2d at 1296. This section
required that particularly important categories of discharges
be regulated quickly, and exempted less important categories
of discharges from regulation until 1992. Id. at 1295-96; see
also Envtl. Def. Ctr., Inc. v. EPA, Inc., 344 F.3d 832, 840, 843
(9th Cir. 2003) (exercising jurisdiction over challenge to
stormwater discharge regulations promulgated under section
9042 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
402(p)). Second, CWA section 402(l)(2), 33 U.S.C.
§ 1342(l)(2), exempted certain stormwater discharges by min-
ing, oil, and gas facilities from CWA permitting requirements.
See NRDC 9th Cir. 1992, 966 F.2d at 1306-07. The Natural
Resources Defense Council argued that the EPA had extended
the deadline for storm sewer discharges beyond the dates
authorized by CWA section 402(p); that the EPA had defined
improperly what constituted certain kinds of storm sewer dis-
charges, so that some discharges were exempted from permit-
ting requirements for a longer period than section 402(p)
allowed; and that the EPA had erred in defining what consti-
tuted stormwater discharges from mining, oil, and gas facili-
ties, improperly expanding the exemption from the permitting
requirement contained in section 402(l)(2). NRDC 9th Cir.
1992, 966 F.2d at 1299-1309.
In Natural Resources Defense Council v. EPA (“NRDC 9th
Cir. 2008”), 526 F.3d 591 (9th Cir. 2008), we exercised juris-
diction under section 509(b)(1)(F) over a challenge to a regu-
lation exempting certain stormwater discharges from mining,
oil, and gas facilities. Id. at 601. Two CWA provisions lay
behind the regulation. First, section 402(l)(2), mentioned
above, exempted discharges from mining, oil, and gas facili-
ties. Second, an amendment to the CWA specified that the
exemption contained in section 402(l)(2) included discharges
from construction activities at mining, oil, and gas facilities.
See Energy Policy Act of 2005, Pub. L. No. 109-58, § 323,
119 Stat. 594, 694; 33 U.S.C. § 1362(24) (codifying the
amendment to section 402). The Natural Resources Defense
Council challenged the regulation as exempting a broader cat-
egory of discharges than permitted under CWA sections
402(l)(2) and 502. NRDC 9th Cir. 2008, 526 F.3d at 600-01.
[6] In both of these cases in which we exercised jurisdiction
under section 509(b)(1)(F), statutory provisions explicitly
provided the underlying exemptions. The challenged regula-
tions sought to define more precisely those discharges that
came within statutory exemptions (and thus did not need per-
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9043
mits) and those that did not come within statutory exemptions
(and thus needed permits). In contrast, the case now before us
challenges a regulation providing exemptions not contained in
section 402 or in any other section of the CWA. This case
thus does not involve the “issuing or denying [of] any permit
under Section 402.” See Natural Res. Def. Council v. Train,
396 F. Supp. 1393, 1402 (D.D.C. 1975), aff’d sub nom. Natu-
ral Res. Def. Council v. Costle, 568 F.2d 1369 (D.C. Cir.
1977).
We conclude by agreeing with the district court’s analysis
in a suit very similar to the one before us. In Environmental
Protection Information Center v. Pacific Lumber Co., 266 F.
Supp. 2d 1101, 1108-09 (N.D. Cal. 2003), the court addressed
an EPA regulation that permanently exempted an entire class
of silvicultural discharges from any NPDES permitting
requirement. The district court noted that the court of appeals
in NRDC D.C. Cir. had upheld original jurisdiction under sec-
tion 509(b)(1) on the ground that if there were no such juris-
diction, there would be a “ ‘perverse situation’ in which the
court ‘will be able to review the grant or denial of the permit,
but will be without authority to review directly the regulations
on which the permit is based.’ ” Id. at 1114 (quoting NRDC
D.C. Cir., 656 F.2d at 775). The district court wrote:
Because [plaintiff] challenges a decision that in
effect excludes sources from the NPDES program,
the circuit courts will never have to confront the
issuance or denial of a permit for these sources. The
Ninth Circuit, by virtue [of the regulation], will
never have to consider on direct review an action
involving the denial of an NPDES permit for pollu-
tant discharges [within the exemption provided by
the regulation]. Thus, a district court taking jurisdic-
tion over a challenge to the silvicultural regulation
does not create the same awkwardness for a circuit
court as that described in [NRDC D.C. Cir.].
9044 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
Id. at 1115-16 (footnote omitted) (upholding its own jurisdic-
tion under 28 U.S.C. § 1331).
[7] We conclude that § 509(b)(1)(F) does not authorize
original jurisdiction in the court of appeals in this case. Sec-
tion 122.3(a) does not involve the issuance or the denial of a
permit or a functionally similar action, but rather the perma-
nent exemptions of three types of discharges from any permit-
ting requirement.
B. Statute of Limitations
[8] The applicable statute of limitations provides that
“every civil action commenced against the United States shall
be barred unless the complaint is filed within six years after
the right of action first accrues.” See 28 U.S.C. § 2401(a). The
EPA promulgated the final version of 40 C.F.R. § 122.3(a) in
1979. The EPA denied plaintiffs’ Petition for Rulemaking in
September 2003. Plaintiffs filed suit in December 2003.
Whether their first cause of action is barred by the statute of
limitations depends on whether their right of action first
accrued in the 1970s when the EPA promulgated the regula-
tion or in 2003 when the EPA denied plaintiffs’ petition. The
EPA conceded in the district court and in its brief to this court
that the statute of limitations does not bar plaintiffs’ second
cause of action. See Nw. Envtl. Advocates I, 2005 U.S. Dist.
LEXIS 5373, at *22.
[9] Our decision in Wind River Mining Corp. v. United
States, 946 F.2d 710 (9th Cir. 1991), controls our analysis. In
Wind River, the Bureau of Land Management (“BLM”) had
classified certain federal lands as Wilderness Study Areas
(“WSAs”) in 1979. Mining was forbidden in a WSA. Id. at
711. In 1986 and 1987, the Wind River Mining Corporation
asked the BLM to declare that its decision to create a WSA
was invalid. Id. The BLM denied the request, and the Interior
Board of Land Appeals denied Wind River’s administrative
appeal in 1987. Wind River filed suit in 1989 alleging that the
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9045
BLM’s action in creating the WSA was ultra vires. Id. at 712.
We held that the six-year statute of limitations began to run
with the final administrative action denying Wind River’s
request:
[A] substantive challenge to an agency decision
alleging lack of agency authority may be brought
within six years of the agency’s application to the
specific challenger. . . . The right to bring a civil suit
challenging an agency action accrues “upon the
completion of the administrative proceedings.” The
BLM finally rejected Wind River’s attempts to have
WSA 243 declared invalid in 1987. . . . Wind River’s
complaint for review was filed less than twenty-nine
months later, and therefore was timely.
Id. at 716 (citations omitted); see also Legal Envtl. Assistance
Found., Inc. v. EPA, 118 F.3d 1467, 1473 (11th Cir. 1997);
Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147,
150-53 (D.C. Cir. 1990); NLRB Union v. Fed. Labor Rela-
tions Auth., 834 F.2d 191, 194-97 (D.C. Cir. 1987); Natural
Res. Def. Council v. Nuclear Regulatory Comm’n, 666 F.2d
595, 601-03 (D.C. Cir. 1982); Oppenheim v. Campbell, 571
F.2d 660, 663 (D.C. Cir. 1978); cf. Bennett v. Spear, 520 U.S.
154, 177-78 (1997) (defining what constitutes a “final”
agency action).
[10] Our case is indistinguishable from Wind River. Plain-
tiffs asked the EPA to repeal § 122.3(a) in their 1999 Petition
for Rulemaking, and the EPA denied that request in 2003.
Plaintiffs filed suit a few months after that denial, alleging
that EPA had acted ultra vires in promulgating § 122.3(a).
The EPA’s denial of the Petition for Rulemaking in 2003 was
thus an “adverse application” of § 122.3(a) within the mean-
ing of Wind River. See 946 F.2d at 714-16. The date of that
decision is the date of first accrual for purposes of the statute
of limitations under § 2401(a). We therefore conclude that
plaintiffs’ suit was timely filed in the district court.
9046 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
C. Ultra Vires Challenge
In their first cause of action, plaintiffs allege that the CWA
does not authorize the exemptions of vessel discharges pro-
vided in 40 C.F.R. § 122.3(a). According to plaintiffs, the
EPA acted ultra vires in promulgating § 122.3(a). See 5
U.S.C. § 706(2)(C) (covering agency actions “in excess of
statutory jurisdiction, authority, or limitations, or short of stat-
utory right”). If plaintiffs are right, the regulation is invalid.
In their second cause of action, plaintiffs allege that the EPA
did not act “in accordance with law” when the agency denied
the 1999 Petition for Rulemaking asking the EPA to repeal
§ 122.3(a). See 5 U.S.C. § 706(2)(A). As in their first cause
of action, the premise of the second cause of action is that the
EPA acted ultra vires in promulgating § 122.3(a). Because
both causes of action present a question of law, we start at
step one of Chevron and apply the same standard of review.
See, e.g., Defenders of Wildlife v. Browner, 191 F.3d 1159,
1162 (9th Cir. 1999) (“On questions of statutory interpreta-
tion, we follow the approach from Chevron.”).
The EPA makes three arguments. The first is procedural;
the second and third are substantive. First, the EPA argues
that the 1999 Petition for Rulemaking challenged only the
exclusion for ballast water provided by 40 C.F.R. § 122.3(a).
Therefore, the EPA argues, plaintiffs are now limited to chal-
lenging only this exclusion. Second, the EPA argues that the
CWA authorized the EPA to promulgate § 122.3(a), or that at
least the statute is ambiguous and therefore this court should
defer to the agency’s interpretation of the statute. Third, the
EPA argues that even if the CWA did not authorize the pro-
mulgation of § 122.3(a) when the CWA was enacted, Con-
gress has now acquiesced in its promulgation. We consider
these arguments in turn.
1. Scope of Plaintiffs’ 1999 Petition for Rulemaking
The EPA argues that at most we should vacate § 122.3(a)
as it applies to ballast water discharges. The agency argues
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9047
that we should not address the exemptions for marine engine
and graywater discharges or discharges incidental to the nor-
mal operation of a vessel other than ballast water because
plaintiffs did not object to those exemptions in their 1999
Petition for Rulemaking to the EPA. The district court consid-
ered and rejected this argument. See, e.g., Nw. Envtl. Advo-
cates II, 2006 U.S. Dist. LEXIS 69476, at *24 (“Plaintiffs
have consistently made clear that their overall aim is the
repeal of the exemptions contained in 40 C.F.R. § 122.3(a).”).
We agree with the district court. It is clear that the plaintiffs
always have been most concerned with the environmental
effects of ballast water discharges, but it is equally clear that
they challenged all three exemptions contained in § 122.3(a)
when they petitioned the EPA in 1999. For example, Plain-
tiffs’ Petition for Rulemaking was titled “Petition for Repeal
of 40 C.F.R. § 122.3(a).” In that petition, they challenged the
exemption in § 122.3(a) of “ballast water discharges and other
discharges.” In responding to plaintiffs’ petition, the EPA
stated that its decision addressed a “Petition for Rulemaking
to Repeal 40 C.F.R. 122.3(a).” The EPA’s denial of plaintiffs’
petition quoted the full text of § 122.3(a) and explicitly noted
that plaintiffs sought a repeal of the entire regulation. “The
record in this case is replete with evidence” that the plaintiffs’
position was clear to the EPA. ‘Ilio‘Ulaokalani Coal. v.
Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006) (as amended).
2. Text of the CWA
Our first substantive inquiry is whether § 122.3(a) is invalid
under the plain meaning of the CWA. Our inquiry is guided
by Chevron. The Court wrote:
When a court reviews an agency’s construction of
the statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the
9048 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
end of the matter; for the court, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress.
467 U.S. at 842-43.
[11] Section 301(a) of the CWA mandates that “the dis-
charge of any pollutant by any person shall be unlawful.” 33
U.S.C. § 1311(a). This prohibition is “[t]he ‘cornerstone’ and
‘fundamental premise’ of the Clean Water Act.” Se. Alaska
Conservation Council v. U.S. Army Corps of Eng’rs, 486 F.3d
638, 644 (9th Cir. 2007) (citations omitted). Section 402 of
the CWA provides that a “point source” can obtain a “permit
for the discharge of any pollutant or combination of pollu-
tants.” 33 U.S.C. § 1342(a)(1). “[T]he Act categorically pro-
hibits any discharge of a pollutant from a point source without
a permit.” Comm. to Save Mokelumne River v. E. Bay Mun.
Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993).
The text of the statute clearly covers the discharges at issue
here. A “discharge of any pollutant” is “any addition of any
pollutant to navigable waters from any point source.” 33
U.S.C. § 1362(12)(A). A “point source” is “any discernable,
confined and discrete conveyance, including . . . [a] vessel or
other floating craft, from which pollutants are or may be dis-
charged.” Id. § 1362(14). “[N]avigable waters” are “the
waters of the United States, including the territorial seas,”
which begin near the coast and “extend[ ] seaward a distance
of three miles.” Id. §§ 1362(7), (8). “Pollutant” is defined as
“dredged spoil, solid waste, incinerator residue, sewage, gar-
bage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water.” 33 U.S.C.
§ 1362(6). The term “biological materials” includes invasive
species. See, e.g., Nat’l Wildlife Fed’n v. Consumers Power
Co., 862 F.2d 580, 583 (6th Cir. 1988).
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9049
The question before us of whether the CWA authorizes the
EPA’s regulatory exemptions was answered by the D.C. Cir-
cuit more than thirty years ago. See Natural Res. Def. Council
v. Costle (“Costle”), 568 F.2d 1369 (D.C. Cir. 1977). The
same year that the EPA issued the regulation in our case, the
agency promulgated a different but conceptually identical reg-
ulation. Costle addressed an ultra vires challenge to that regu-
lation.
The regulation entirely exempted several categories of
point sources from NPDES requirements:
all silviculture point sources; all confined animal
feeding operations below a certain size; all irrigation
return flows from areas less than 3,000 contiguous
acres or 3,000 noncontiguous acres that use the same
drainage system; all nonfeedlot, nonirrigation agri-
cultural point sources; and separate storm sewers
containing only storm runoff uncontaminated by any
industrial or commercial activity.
Id. at 1372. In a unanimous opinion by Judge Leventhal, the
D.C. Circuit held that the EPA acted ultra vires in promulgat-
ing this regulation. Id. at 1377, 1382-83.
[12] The analysis of the D.C. Circuit in Costle, with which
we agree, is dispositive of our case. The only possible textual
source of authority for the exemptions at issue in Costle (and
in our case) is section 402 of the CWA. In relevant part, that
section provides that the EPA Administrator
may, after opportunity for public hearing, issue a
permit for the discharge of any pollutant, . . . not-
withstanding section 301(a), upon condition that
such discharge will meet either (A) all applicable
requirements under sections 301, 302, 306, 307, 308,
and 403 of this Act, or (B) prior to the taking of nec-
essary implementing actions relating to all such
9050 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
requirements, such conditions as the Administrator
determines are necessary to carry out the provisions
of this Act.
33 U.S.C. § 1342(a)(1).
[13] Section 402 uses the word “may,” but only in the con-
text of “issu[ing] a permit for the discharge of any pollutant.”
The Administrator “may” issue a permit under two circum-
stances: either on the condition that the discharge meets all of
the requirements specified in the section; or, prior to imple-
mentation of those statutory requirements, on such conditions
“as the Administrator determines are necessary to carry out
the provisions of [the] Act.” That is, section 402 allows the
Administrator to issue a permit, but it does not provide that
the Administrator may entirely exempt certain categories of
discharges from the permitting requirement. As the D.C. Cir-
cuit concluded, “The use of the word ‘may’ in § 402 means
only that the Administrator has discretion either to issue a per-
mit or to leave the discharger subject to the total proscription
of § 301. This is the natural reading, and the one that retains
the fundamental logic of the statute.” Costle, 568 F.2d at
1375.
The D.C. Circuit confirmed the correctness of its reading of
the CWA by consulting the legislative history of the Act. It
wrote, “[T]he legislative history makes clear that Congress
intended the NPDES permit to be the only means by which
a discharger from a point source may escape the total prohibi-
tion of § 301(a).” Id. at 1374. Because the statutory language
is unambiguous, we do not need to revisit the legislative his-
tory. Congress’s intent was clear: “[T]he EPA Administrator
does not have authority to exempt categories of point sources
from the permit requirements of § 402.” Id. at 1377.
[14] We therefore conclude that Congress expressed “a
plain . . . intent to require permits in any situation of pollution
from point sources.” Id. at 1383; see also N. Plains Res.
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9051
Council, 325 F.3d at 1164; Sierra Club v. EPA, 118 F.3d
1324, 1327 (9th Cir. 1997); NRDC 9th Cir. 1992, 966 F.2d at
1305, 1310; Forsgren, 309 F.3d at 1190. In its argument to us,
the EPA does not seriously contest this conclusion. Rather,
the EPA’s central argument is that Congress has acquiesced
in the EPA’s ultra vires action in promulgating § 122.3(a).
We now turn to that argument.
3. Acquiescence by Congress
The EPA argues that even if the CWA as originally enacted
did not authorize the EPA to promulgate § 122.3(a), Congress
subsequently acquiesced in the agency’s interpretation of the
CWA. This is a heroic argument, for the standard for a judi-
cial finding of congressional acquiescence is extremely high.
In Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers (“SWANCC”), 531 U.S. 159, 162
(2001), the Court considered a challenge to an expansive defi-
nition of “navigable waters” under the CWA. The Army
Corps of Engineers had promulgated a regulation containing
that definition in 1977. The Corps argued that Congress had
acquiesced in the regulation’s definition. Id. at 168-69. The
Court responded, “Although we have recognized congressio-
nal acquiescence to administrative interpretations of a statute
in some situations, we have done so with extreme care.” Id.
at 169. The Court continued in a footnote:
In Bob Jones Univ. v. United States, 461 U.S. 574,
595, 600-01 (1983), for example, we upheld an
Internal Revenue Service (IRS) Revenue Ruling that
revoked the tax-exempt status of private schools
practicing racial discrimination because the IRS’
interpretation of the relevant statutes was “correct”;
because Congress had held “hearings on this precise
issue,” making it “hardly conceivable that Congress
— and in this setting, any Member of Congress —
was not abundantly aware of what was going on”;
9052 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
and because “no fewer than 13 bills introduced to
overturn the IRS interpretation” had failed. Absent
such overwhelming evidence of acquiescence, we are
loath to replace the plain text and original under-
standing of a statute with an amended agency inter-
pretation.
Id. at 169-70 n.5 (emphasis added); see also Rapanos v.
United States, 547 U.S. 715, 749 (2006) (plurality op.) (noting
the Court’s “oft-expressed skepticism towards reading the tea
leaves of congressional inaction”); Morales-Izquierdo v. Gon-
zales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc) (finding no
acquiescence under SWANCC’s “overwhelming evidence”
standard).
The EPA points to a number of post-1973 statutes in which
Congress has addressed the forms of pollution exempted by
§ 122.3(a), particularly ballast water. According to the EPA,
those statutes satisfy the high standard for acquiescence set
forth in SWANCC. For the reasons that follow, we disagree
and hold that Congress has not acquiesced in § 122.3(a).
a. NDAA and DSHMRA
The EPA relies most heavily on two statutes. The first is
the National Defense Authorization Act of 1996 (“NDAA”),
Pub. L. No. 104-106, § 325, 110 Stat. 186, 254, codified at 33
U.S.C. §§ 1322(a), (j), (n), 1362(6). The second is the Deep
Seabed Hard Mineral Resources Act of 1979 (“DSHMRA”),
Pub. L. No. 96-283, 94 Stat. 554, codified at 30 U.S.C.
§§ 1419 et seq.
[15] In the NDAA, Congress statutorily exempted dis-
charges incidental to the normal operation of United States
military vessels from CWA permitting requirements and
established discharge controls specifically tailored to those
vessels. Congress was well aware of 40 C.F.R. § 122.3(a)
when it enacted the NDAA. Indeed, the statute cited the regu-
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9053
lation as a partial aid in defining what the category “discharge
incidental to the normal operation of a vessel” did not include.
See 33 U.S.C. § 1322(a)(12)(B)(iii).
A Senate Report accompanying the Senate Bill explained
that discharges from military vessels, like those from other
vessels, already were exempted from NPDES permitting
requirements by EPA regulation. But the report went on to
explain why, nonetheless, a broader exemption was desirable:
The Navy wishes to clarify the regulatory status of
certain non-sewage discharges from Navy vessels.
Vessels are point sources of pollution under the
Clean Water Act. Any discharge of pollutants from
a point source, including a vessel, into the waters of
the United States is prohibited unless specifically
permitted under section 402 or 404 of the Act. . . .
Although EPA regulations generally exempt non-
sewage discharges from vessels from the permit
requirements of the Act, some coastal states have
imposed regulations or inspection programs that may
have application to these types of discharges. A
series of events in the waters of several coastal states
prompted concern at the Navy as to state authorities
to regulate these discharges.
S. Rep. No. 104-113, at 1-2 (1995). The Senate Report
explained that § 122.3(a) was the regulatory basis for the
exemption of most “non-sewage discharges from vessels.” Id.
at 7. The report did not, however, endorse or otherwise indi-
cate approval of regulatory exemptions for entire categories of
marine discharges. If anything, the report may be read to sug-
gest the contrary. The report indicated that, but for the statu-
tory exemption contained in the NDAA, the CWA permitting
process would have applied to marine discharges from mili-
tary vessels: “The effect of [the NDAA] is to remove the stat-
9054 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
utory requirement for a permit for these point source
discharges[.]” Id. at 3.
[16] The most that can be said, based on the NDAA, is that
Congress was well aware of § 122.3(a) and the exemptions it
provided. Congress concluded that the existing statutory pro-
visions and exemptions, including the exemptions provided in
§ 122.3(a), did not fully address the needs of military vessels.
It therefore passed a new statute with provisions specifically
tailored to military vessels. In so doing, the NDAA did noth-
ing to endorse § 122.3(a). The NDAA only made § 122.3(a)
irrelevant to military vessels except as a definitional tool.
In the DSHMRA, Congress required vessels engaged in
deep sea mining and drilling operations to comply with the
provisions of the CWA. Congress did so by explicitly extend-
ing the CWA’s geographical reach over such vessels beyond
the otherwise applicable three-mile limit. See 33 U.S.C.
§ 1362(9), (10), (12)(B). In pertinent part, the DSHMRA pro-
vided that:
For purposes of this chapter, any vessel or other
floating craft engaged in commercial recovery or
exploration shall not be deemed to be “a vessel or
other floating craft” under section 502(12)(B) of the
Clean Water Act [33 U.S.C. § 1362(12)(B)] and any
discharge of a pollutant from such vessel or other
floating craft shall be subject to the Clean Water Act.
30 U.S.C. § 1419(e) (alterations in original).
[17] When it enacted the DSHMRA, Congress noted with
approval the final sentence of 40 C.F.R. § 122.3(a). This sen-
tence provides that, despite the regulatory exemptions for
three categories of marine discharges, CWA permitting
requirements would apply to a range of vessels not being used
for transportation:
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9055
This exclusion does not apply to . . . discharges
when the vessel is operating in a capacity other than
as a means of transportation such as when used as an
energy or mining facility, a storage facility or a sea-
food processing facility, or when secured to a stor-
age facility or a seafood processing facility, or when
secured to the bed of the ocean, contiguous zone or
waters of the United States for the purpose of min-
eral or oil exploration or development.
40 C.F.R. § 122.3(a). Plaintiffs do not challenge this part of
the regulation because it exempts nothing, but instead recog-
nizes ongoing NPDES requirements. See Nw. Envtl. Advo-
cates II, 2006 U.S. Dist. LEXIS 69476, at *2-3 nn.1-2.
[18] The Senate Report accompanying the DSHMRA noted
with approval the refusal of § 122.3(a) to exempt non-
transportation vessels from NPDES:
[T]he Environmental Protection Agency has con-
cluded that the Congress did not intend to exempt
pollutant discharges into ocean waters by vessels
when engaged in such activities as mining or drilling
for oil, etc. Relying on this interpretation [of the
CWA], the Environmental Protection Agency
amended [its regulations] to indicate that vessels
engaged in ocean mineral exploration, extraction and
processing activities are not exempt from permit
requirements under section 402. The Committee
concurs in this interpretation.
S. Rep. No. 96-360 at 2-3 (1979); see also id. at 3 (noting that
the DSHMRA merely “clarif[ied] the application of section
402” to these vessels). Thus, the most that can be said of the
DSHMRA is that Congress was aware of § 122.3(a) and
explicitly approved of the EPA’s decision not to exempt from
the permitting process marine discharges from non-
transportation vessels.
9056 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
[19] We conclude that neither the NDAA nor the DSH-
MRA comes close to satisfying the SWANCC standard of pro-
viding “overwhelming evidence of acquiescence” by
Congress in § 122.3(a)’s exemption of three categories of
marine discharges.
b. NANPCA, NISA, APPS, and Alaska Cruise Ship
Legislation
The EPA also relies on four additional statutes. They are
the Nonindigenous Aquatic Nuisance Prevention and Control
Act of 1990 (“NANPCA”), Pub. L. No. 101-646, 104 Stat.
4761, codified at 16 U.S.C. §§ 4701 et seq.; the National
Invasive Species Act of 1996 (“NISA”), Pub. L. No. 104-332,
110 Stat. 4073 (amending NANPCA); the Act to Prevent Pol-
lution from Ships (“APPS”), Pub. L. No. 96-478, 94 Stat.
2297 (1980), codified at 33 U.S.C. §§ 1901 et seq.; and a stat-
ute regulating discharges by Alaska cruise ships, enacted as
part of the Consolidated Appropriations Act of 2001, Pub. L.
No. 106-554, § 1(a)(4), 114 Stat. 2763, 2763A-209 (enacting
Title XIV of Division B of H.R. 5666, §§ 1401-1414, as intro-
duced Dec. 15, 2000) (see 33 U.S.C. § 1901 Note for the text
of the statute).
[20] NANPCA and NISA address the problem of invasive
species released in ballast-water-related discharges. For
example, these statutes authorize the Coast Guard to develop
voluntary guidelines and regulations for a Great Lakes ballast
water program. See 16 U.S.C. § 4711(a)-(b). The statutes also
require national guidelines for ballast-water-related dis-
charges of nonindigenous species, id. § 4711(c), (f)(2)(A)(ii),
and establish an Aquatic Nuisance Species Task Force, of
which the EPA is a member, id. § 4721. Savings clauses pro-
vide that the Great Lakes regulations “shall . . . . not affect or
supersede any requirements or prohibitions pertaining to the
discharge of ballast water” under the CWA, and that the
national guidelines “shall . . . . not affect or supercede any
requirements or prohibitions pertaining to the discharge of
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9057
ballast water” under the CWA. Id. §§ 4711(b)(2)(C) and
(c)(2)(J). These statutes do not demonstrate SWANCC’s
“overwhelming evidence of [congressional] acquiescence” in
the exemptions contained in § 122.3(a). They merely demon-
strate a congressional intent to address the serious national
problem of ballast water discharges of invasive species, and
to do so on multiple, nonexclusive fronts. The Supreme Court
recently came to similar conclusions regarding Congress’s
overlapping mandates to combat greenhouse gas emissions.
See Massachusetts v. EPA, 127 S. Ct. 1438, 1448-49, 1460-
62, 1461 n.27 (2007).
The APPS implemented the International Convention for
the Prevention of Pollution from Ships of 1973 and the Proto-
col of 1978 (known collectively as “MARPOL 73/78”). The
APPS applies to all U.S.-flagged ships worldwide and
foreign-flagged ships in the navigable waters of the United
States. 33 U.S.C. § 1902(a). The six annexes to MARPOL 73/
78 address vessel discharges of oil, noxious bulk liquid sub-
stances, harmful packaged substances, sewage, garbage, and
air pollution. The APPS’s savings clause provides that “re-
quirements of this [Act] supplement and neither amend nor
repeal any other provisions of law, except as expressly pro-
vided in this [Act].” 33 U.S.C. § 1907(f). The APPS contains
no indication of congressional intent to acquiesce in
§ 122.3(a).
Finally, the Alaska cruise ship legislation authorizes the
EPA to regulate sewage and graywater discharges from cruise
ships in specified Alaskan waters. A savings clause provides
that “[n]othing in this title shall be construed as restricting,
affecting, or amending any other law or the authority of any
department, instrumentality, or agency of the Unites States.”
33 U.S.C. § 1901 Note § 1411(a); see H.R. 5666, § 1411(a).
This legislation, too, contains no indication of congressional
intent to acquiesce in § 122.3(a).
9058 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
D. Remedy
After finding that the EPA had acted ultra vires in promul-
gating § 122.3(a), the district court concluded that the best
course was to vacate that regulation, effective September 30,
2008. This date gave the EPA a two-year period during which
it could work to promulgate a new regulation. The district
court also concluded that it would be best to leave the EPA
free during this period to do its work in the manner the agency
thought best. In so concluding, the district court did not pro-
vide to plaintiffs everything they had sought. Plaintiffs had
asked the district court to provide only an eighteen-month
period, and to engage in close supervision of the EPA’s prog-
ress during that period.
The district court explained its reasons in a careful twenty-
one page order. It wrote, inter alia:
[T]he Court is influenced by the fact that the regula-
tion at issue has stood for the past 30 years, and by
the fact that the effects of an immediate vacatur
would be so dramatic as to make such an option a
practical impossibility. Indeed, not even plaintiffs
request an immediate vacatur of the challenged regu-
lation. While the practical implications of the
Court’s order make the Court wary of imposing a
deadline on EPA that is too ambitious, the potential
harm that ballast waters represent to our nation’s
ecosystems leads the Court to conclude that there is
an urgency to promulgating new regulations that
EPA has not, to this point in the litigation, acknowl-
edged. Thus, the Court must decide upon a time
frame for vacating the regulation that balances the
need for prompt action against the need to allow
EPA adequate freedom to address a complicated
issue.
The most substantial question confronting the
Court is whether to issue injunctive relief ordering
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9059
EPA to act in accordance with the Court’s order by
a certain date. In light of the arguments the parties
have presented, the Court finds that the preferable
route is to give the agency a certain date on which
the regulation will be vacated, and to allow the
agency freedom to work around that date to find an
appropriate solution to the problem of vessel dis-
charges. Indeed, in considering the variety of techni-
cal arguments the parties have presented about the
appropriate remedy, the Court has been reminded
that EPA holds an expertise in this area that the
Court cannot approach. Thus, the Court believes that
EPA should be given wide latitude, within broad
constraints, to address the problem of discharges
from vessels. Accordingly, the Court rules as fol-
lows: the Court will GRANT plaintiffs’ motion for
a permanent injunction, and will set aside the chal-
lenged regulation as of September 30, 2008. Absent
a compelling justification, the Court will not act fur-
ther to supervise how EPA responds to this order.
Nw. Envtl. Advocates II, 2006 U.S. Dist. LEXIS 69476, at
*31-33 (footnotes omitted).
We affirm the district court’s decision to vacate the regula-
tion and to remand for further proceedings as a valid exercise
of its remedial powers. See, e.g., NRDC 9th. Cir. 1992, 966
F.2d at 1305. The district court’s order requires the EPA to
perform a substantial task — to bring the discharges previ-
ously exempted by § 122.3(a) within the permitting process of
the CWA. Neither the district court nor this court underesti-
mates the magnitude of the task. But “this ambitious statute
is not hospitable to the concept that the appropriate response
to a difficult pollution problem is not to try at all.” Costle, 568
F.2d at 1380; see also Union Elec. Co. v. EPA, 427 U.S. 246,
268 69 (1976) (“Allowing such [feasibility] claims to be
raised . . . would frustrate congressional intent.”).
9060 NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA
The EPA informed this court at oral argument that it has
been proceeding in accordance with the district court’s order.
We anticipate that in formulating a new regulation to replace
§ 122.3(a) the EPA will take advantage of the flexibility of
the NPDES permitting process. For example, we take judicial
notice of the fact that, in its request for comments, the EPA
has indicated that “use of general permit(s) would appear to
be an attractive possibility.” Development of [NPDES] Per-
mits for Discharges Incidental to the Normal Operation of
Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).
On July 11, 2008, the Department of Justice informed us by
letter that on June 17, 2008, the EPA published in the Federal
Register draft “General Permits for Discharges Incidental to
the Normal Operation of a Vessel,” and that the public com-
ment period on the draft is scheduled to close on August 1.
See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that
a final version may not be ready by the September 30, 2008,
deadline established by the district court, but the letter stops
short of a request to extend the deadline. If the government
chooses to request an extension of the deadline, that request
should be addressed to the district court.
IV. Petition for Review
Because we hold that the district court had jurisdiction over
plaintiffs’ suit filed in that court, we hold that we do not have
jurisdiction over plaintiffs’ petition for review filed directly in
this court. We therefore dismiss that petition for lack of sub-
ject matter jurisdiction. See, e.g., Appalachian Energy Group
v. EPA, 33 F.3d 319, 322-23 (4th Cir. 1994) (dismissing the
petition for review for lack of subject matter jurisdiction
under 33 U.S.C. § 1369(b)(1)); Am. Paper Inst., Inc. v. EPA,
890 F.2d 869, 878 (7th Cir. 1989) (same).
V. Conclusion
We hold that the district court had subject matter jurisdic-
tion over plaintiffs’ suit alleging that the EPA acted ultra
NORTHWEST ENVIRONMENTAL ADVOCATES v. EPA 9061
vires in promulgating § 122.3(a). We affirm the district court,
holding that the EPA acted ultra vires in promulgating
§ 122.3(a) and that EPA’s denial of plaintiffs’ 1999 petition
requesting the repeal of § 122.3(a) was not in accordance with
law. We affirm the district court’s remedial order as a proper
exercise of its discretion. Finally, we dismiss for lack of sub-
ject matter jurisdiction plaintiffs’ petition for review filed
directly with this court.
AFFIRMED and DISMISSED.