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National Wildlife Fed'n v. Gorsuch

ELR Citation: 13 ELR 20015
Nos. Nos. 82-1335 et al., 693 F.2d 156/18 ERC 1105/(D.C. Cir., 11/05/1982) Judgment for plaintiffs rev'd

The D.C. Circuit, reversing the district court, 12 ELR 20268, rules that the Environmental Protection Agency's (EPA's) determination that dam-induced water quality changes do not constitute the "discharge of pollutants" as defined in §502(12) of the Federal Water Pollution Control Act (FWPCA) is reasonable and therefore EPA is not required to issue national pollutant discharge elimination system (NPDES) permits for dams under §402 of the FWPCA. The court first determines that the district court did not give enough deference to EPA's interpretation of the Act. Congress not only gave EPA substantial discretion in administering the Act generally, but in defining the terms "point source" and "pollutant" specifically. EPA's construction was made contemporaneously with the passage of the Act, and has been consistently adhered to since. The record contains sufficient evidence that EPA was thorough in analyzing whether to require NPDES permits for dams to support deference to its conclusion. EPA also deserves full deference because the record indicates that it gave primary consideration to policy implications rather than statutory interpretation in its decision.

The court next determines that EPA reasonably determined that low dissolved oxygen, cold, and supersaturation are not "pollutants" because they are not included in §502(6), the statutory list of pollutants. In addition, the legislative history both supports the conclusion that even though these conditions constitute "pollution" under §502(19), they are not "pollutants," and indicates that Congress intended EPA to have discretion in defining these terms. The court also finds reasonable EPA's determination that the water quality changes do not constitute an "addition" of a pollutant within the meaning of §502(6).

The court rejects defendants' argument that the definitions should be read broadly because the NPDES program is Congress' preferred method of water pollution control. Congress also intended to leave certain pollution problems to the states for control through §208. Sections 304(f)(2), 404, and 102(b), the sections of the FWPCA specifically mentioning dams, either offer limited support for EPA's view that it need not regulate dams under §402 or are irrelevant. The court determines that EPA's construction will not frustrate the stated goal of the Act to eliminate all pollution discharges and it therefore is not unreasonable. While Congress strongly stated this objective, it also recognized the practical limits to total elimination of pollution. Finally, the court concludes that EPA's decision on dam regulation was not unreasonable from a policy perspective. The record contains evidence that the program's nationally uniform standards approach is not suitable for dam-caused pollution, because the problems caused by dams are site-specific. In addition, state water quality programs may solve many of the problems caused by dams and appellees are free to seek a legislative solution.

[The briefs in this case are summarized at ELR Pend. Lit. 65759 — Ed.]

Counsel for Plaintiffs
David G. Burwell, Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6845

Counsel for Intervenor-Plaintiff State of Missouri
Robert M. Lindholm, Ass't Attorney General
Supreme Ct. Bldg., P.O. Box 899, Jefferson City MO 65102
(314) 751-3321

Counsel for Defendants
Fred R. Disheroon, Nancy B. Firestone, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2306

Alan W. Eckert; Robert M. Perry, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7606

Before: ROBINSON, Chief Judge; WALD, and BORK, Circuit Judges.