concurring in part and dissenting in part:
I concur in Parts I, II.A, II.C.l, II.C.4, II.E, and much of Part II.B of the majority opinion. I dissent from Part II.B.2.C, directing EPA to issue supplemental regulations. I dissent also from Parts II.C.2 and II.C.3, in which the court invalidates EPA’s exclusion of storm water discharges from certain light industrial and small construction sites from the definition of “discharges associated with industrial activity.” Finally, I concur in the result, but not the reasoning, of Part II.D, holding that EPA has not acted unlawfully by failing to include specific control requirements in the permit application regulations.
*1312I
The majority holds that EPA has violated statutory requirements by failing to set dates for approval of, and compliance with, permits as part of its permit application program. Ante at 1300. Despite the holding in Part II.B.2.b that injunctive relief is inappropriate (with which I agree), the majority in Part II.B.2.C orders EPA to issue supplemental regulations setting such deadlines immediately.
I am not convinced that the statute requires EPA to set these deadlines as part of the permit application process. The provision at issue reads, in relevant part:
(4) Permit application requirements
(A) Industrial and large municipal discharges
Not later than 2 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater, discharges described in paragraphs (2)(B) and (2)(C). Applications for permits for such discharges shall be filed no later than 3 years after February 4, 1987. Not later than 4 years after February 4, 1987, the Administrator or the State, as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit.
(B) Other municipal discharges
Not later than 4 years after February 4, 1987, the Administrator shall establish regulations setting forth the permit application requirements for stormwater discharges described in paragraph (2)(D). Applications for permits for such discharges shall be filed no later than 5 years after February 4, 1987. Not later than 6 years after February 4, 1987, the Administrator or the State,.as the case may be, shall issue or deny each such permit. Any such permit shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the date of issuance of such permit.
CWA § 402(p)(4); 33 U.S.C. § 1342(p)(4) (1988).
While the statute establishes a time line EPA must follow, it does not, in my view, require that EPA include the deadline for permit approval in the permit application regulations. I agree that, given EPA’s past delays and the fact that the statutory dates for issuance or denial of permits are now long past, it is appropriate for this court to declare that the statute requires EPA to issue or deny permits within one year of the application deadline. I do not, however, see that any purpose is served by requiring EPA to issue supplemental regulations setting out these deadlines, and I doubt our authority to do so.
With respect to compliance deadlines, the statute contemplates that such deadlines will be set in individual permits as they are issued. See CWA § 402(p)(4)(A), (B) (“Any such permit shall provide for compli-ance_”). Each permit must contain a compliance deadline, which may not exceed three years from the date of issuance. Nothing in the statute requires EPA to establish compliance deadlines now, before any permits have been issued. Accordingly, in my view, NRDC’s challenge to the lack of compliance deadlines in EPA’s current regulations is premature. I therefore dissent from Part II.B.2.C of the majority opinion.
II
I dissent also from Parts II.C.2 and II. C.3. In my view, EPA’s definition of “discharge associated with industrial activity” is a reasonable construction of an ambiguous statute, entitled to deference. While my colleagues acknowledge that we may not overturn an agency rule that represents a “permissible construction” of a statute, ante at 1297 (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)), they fail to apply that axiom.
A
EPA’s rule excludes from the permitting requirement certain light industry facilities at which “areas where material handling equipment or activities, raw materials, in*1313termediate products, final products, waste materials, byproducts, or industrial machinery” are not exposed to storm water. See 40 C.F.R. § 122.26(b)(14). EPA determined that discharges from such facilities do not fall within the definition of “discharges associated with industrial activity.” In my view, this determination was reasoriable.
The majority concedes that the statute does not define “discharge associated with industrial activity.” Ante at 1304. The operative phrase, as my colleagues note, is “associated with.” See id. For purposes of evaluating the light industry exemption, I concede that manufacturing falls within the generally accepted meaning of “industrial activity,” and that many of the facilities exempted by the EPA rule are manufacturers. Nonetheless, that concession does not compel the conclusion that discharges from such facilities are “associated with industrial activity.”
The majority concludes, without explanation, that the phrase “discharges associated with industrial activity” is “very broad.” Ante at 1304. Neither the plain meaning of the term “associated” nor the legislative history of the statute support this conclusion. “Associated with” means closely related to or connected with. See Webster’s Ninth New Collegiate Dictionary 110 (1986). To the extent it casts any light on the subject, the legislative history supports a narrow reading of the phrase “associated with.” Four members of the House, in the course of floor debates on the measure both before and after President Reagan’s veto, explained that:
[a] discharge is associated with industrial activity if it is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. Discharges which do not meet this definition include those discharges associated with parking lots and administrative and employee buildings.
133 Cong.Rec. 985 (1987) (statement of Rep. Hammerschmidt) (emphasis added).1 The underscored language suggests that Congress intended to regulate only discharges directly related to certain activities at industrial facilities. EPA’s interpretation, that discharges are “directly related” to these activities only if storm water may reasonably be expected to come into contact with them before its discharge, is eminently logical.
The majority opinion interprets the exclusion of parking lots as an expression of congressional intent “to exclude only those facilities or parts of a facility that are completely nonindustrial.” Ante at 1304. My colleagues’ reliance on the second sentence of the statement quoted above to establish this intent, however, is misplaced. The sentence relied on cannot assist us in our search for the meaning of “associated with” because it employs that very term. Moreover, it does not pretend to establish an exhaustive list of areas excluded from regulation. Legislators listed discharges from parking lots and administrative and employee buildings as among' those not directly related to industrial activity; no one suggested that only discharges associated with those structures were to be excluded.
EPA’s definition is consistent with the plain words of the statute and, to the extent any intent is discernible, the congressional intent. EPA has defined the term “storm water discharge associated with industrial activity” to cover only those discharges reasonably expected to come into contact with industrial activities. A large number of facilities automatically fall within EPA’s definition and are required to *1314apply for permits. Because facilities falling within certain specified classifications under the Standard Industrial Classification manual generally conduct their operations entirely indoors, minimizing the likelihood of contact with storm water, EPA has not automatically included them within the regulations. However, these facilities are required to apply for permits if “areas where material handling equipment or activities, raw materials, intermediate products, final products, waste materials, byproducts, or industrial machinery at these facilities are exposed to storm water.” 40 C.F.R. § 122.26(b)(14). If a storm water discharge is in fact directly related to or associated with the industrial activity carried on at a facility falling within the light industry category, the facility must obtain a permit.2
In my view, the statute’s treatment of oil and gas facilities supports EPA’s reading of the term “associated with industrial activity.” Congress specifically exempted from the permit requirement discharges from oil and gas facilities and mining operations which have not come in contact with raw materials, finished products; or waste products. CWA § 402(Z)(2). This section indicates a congressional intent to exempt uncontaminated discharges which have not come into contact with “industrial activities” from regulation. For oil, gas, and mining operations, Congress in this section supplied a specific, and quite limited, definition of “industrial activities.” For other facilities, that definition was left to the discretion of EPA, which has adopted a much broader definition, encompassing contact with such things as industrial machinery- and materials handling equipment. See 40 C.F.R. § 122.26(b)(14).
I do not mean to suggest that the majority’s construction of the statute is untenable. It may even be preferable to the reading chosen by the agency. Nonetheless, in my view the statute is ambiguous and the legislative history does not demonstrate any clear congressional intent. The question before this court, therefore, is not whether “the agency construction was the only one it permissibly could have adopted” or even whether it is the “reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, U.S.A. v. NRDC, 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984). We need only inquire if the agency’s construction is a permissible one. Id. at 843, 104 S.Ct. at 2781. EPA’s definition falls well within permissible bounds, and should be upheld.
B
Although the issue is closer, I also am not persuaded that EPA’s exemption for construction sites under five acres should be struck down. EPA has not conceded that “construction activity is industrial in nature.” Ante at 1306. In the preamble to its final rule, EPA noted that “Construction activity at a high level of intensity is comparable to other activity that is traditionally viewed as industrial, such as natural resource extraction.” 3 55 Fed.Reg. 48,033 (1990) (emphasis added). EPA explained that it was “attempting to focus [regulation] only on those construction ac*1315tivities that resemble industrial activity.” 55 Fed.Reg. at 48,035 (emphasis added).
Neither NRDC nor the majority point to anything in the statute or the legislative history that would require the agency to define “industrial activity” as including all construction operations. Accordingly, I believe deference is due EPA’s definition, provided it is not arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., 467 U.S. at 844, 104 S.Ct. at 2782.
In trying to determine when construction should be treated as industrial activity, EPA considered a number of possible approaches. See 55 Fed.Reg. at 48,035. Exempting construction that would be completed within a certain designated time frame was deemed inappropriate, because the work could be both intensive and expansive but nonetheless take place over a short period of time. Basing the limit on quantity of soil removed was also rejected as not relating to the amount of land surface disturbed. EPA finally settled on the surface area disturbed by the construction project as a feasible and appropriate mechanism for “identifying sites that are [sic] amount to industrial activity.” 55 Fed. Reg. at 48,036.
Having determined that not all construction amounts to industrial activity, and that the appropriate basis for differentiation is land area disturbed, EPA then had to determine where to draw the line. Initially, EPA proposed to exempt all construction operations disturbing less than one acre of land, as well as single family residential projects disturbing less than five acres. 53 Fed.Reg. 49,431 (1988). In the final rule, however, EPA adopted a five-acre minimum for all construction projects. 55 Fed. Reg. 48,066 (1990); 40 C.F.R. § 122.-26(b)(14)(x).
Admittedly, the final rule contains little in the way of justification for treating two-acre sites differently than five-acre ones, but that does not necessarily make it arbitrary and capricious. Line-drawing is often difficult. NRDC was apparently willing to accept EPA’s proposed one-acre/five-acre rule. Although NRDC now challenges the blanket five-acre rule, it offers no evidence that sites excluded from the permitting requirement constitute “industrial activity.” In such absence of any evidence in the record undermining EPA’s conclusion on an issue squarely within its expertise, I believe the rule must be upheld.4
Ill
Finally, while I concur in the result reached by the majority in Part II.D, rejecting NRDC’s claim that EPA has unlawfully failed to require substantive controls on municipal discharges, I disagree with the majority’s reasoning. In my view, NRDC’s claim is premature, and we should decline to address its merits.
NRDC contends that the 1987 amendments require EPA to establish substantive controls for municipal storm water discharges. In support of this argument, NRDC relies on CWA § 402(p)(3)(B), 33 U.S.C. § 1342(p)(3)(B), which provides:
Permits for discharges from municipal storm sewers—
******
(ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and
(iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable....
This section refers only to permits, and says nothing about permit applications. Because EPA has yet to issue any permits, NRDC’s claim on this point is premature. In the absence of any indication to the contrary, we must assume that any permit issued will comply with all applicable statutory requirements. The statute does not require that EPA detail the substantive controls to be imposed when establishing permit application requirements. Accordingly, I would reject NRDC’s claim without *1316reaching the issue of the Administrator’s discretion in selecting those controls.
IV
In sum, I join much of my colleagues’ opinion. However, I would not require EPA to issue supplemental regulations detailing the time line for issuance of and compliance with permits, and I would uphold EPA’s definition of “discharge associated with industrial activity.” Finally, I would reject NRDC’s claim that EPA is required to detail control measures in the permit application regulations on the grounds that the statute requires control measures only in the permits themselves.
. This statement was repeated verbatim by Reps. Stangeland and Snyder. 133 Cong. Rec. at 991-92; 132 Cong. Rec. at 31,959, 31,964 (1986). Rep. Rowland offered a slight variation on the theme:
One of the discharge categories is "a discharge associated with an industrial activity.” A discharge is not considered to be associated with industrial activity unless it is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant. Such discharges include (sic] those from parking lots and administrative areas and employee buildings.
132 Cong. Rec. at 31,968. Rep. Rowland apparently misspoke; he probably meant, like the other legislators who addressed the topic, to say “[s]uch discharges do not include” those from parking lots.
. Thus, nothing turns on the assumption, attacked by my colleagues as unsupported by the record, ante at 1304, that industrial activities at this category of facilities will take place largely indoors. Where the assumption does not hold true, the permit requirement applies with full force. I also note that NRDC has pointed us to no evidence undermining EPA's assumption.
Unlike my colleagues, I decline to assume that EPA will not carry out its responsibility to identify and to require permits of facilities where industrial activities are in fact exposed to storm water, or that such facilities will ignore their statutory duty to apply for permits. Should that occur, a lawsuit challenging EPA’s failure to enforce its regulations might well be in order. An unsubstantiated suspicion that EPA may not vigorously enforce its regulations, however, does not make those regulations arbitrary or capricious.
. EPA did admit that "[e]ven small construction sites may have a significant negative impact on water quality in localized areas,” 55 Fed.Reg. at 48,033. In the absence of any indication of what EPA meant by “small," however, that statement does not undermine EPA’s exemption of sites under five acres.
. Because I conclude that the rule falls within the permissible bounds of the statutory definition of "discharges associated with industrial activity,” I need not consider the applicability of the de minimis exception.