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Environmental Defense Fund v. Costle

Citation: 11 ELR 20459
No. No. 79-2432, 657 F.2d 275/16 ERC 1185/(D.C. Cir., 04/21/1981) Aff'd

Affirming a district court, 9 ELR 20716, the District of Columbia Circuit Court of Appeals rules that the Environmental Protection Agency (EPA) acted reasonably in approving water quality standards for salinity adopted by seven states within the Colorado River Basin. The Environmental Defense Fund (EDF) initially sought a court order requiring EPA to promulgate regulations setting forth water quality standards, implementation plans, and waste load allocations for salinity in the Colorado River Basin and requiring EPA, the Department of the Interior, and the Bureau of Reclamation to develop alternative methods for salinity control. The lower court granted the government's motion for summary judgment. The court of appeals first determines that the district court properly refused to look outside the administrative record and thus did not err in granting a motion to strike appellant's affidavits in support of its motion for summary judgment. Further, the court refuses to consider whether EPA violated the Administrative Procedure Act by failing to prepare a statement of basis and purpose before approving the state salinity standards, since appellant did not raise this issue in its complaint. Turning to the substantive issues, the court rules that EPA's determination regarding specific basin-wide criteria and its approval of state implementation salinity standards was not arbitrary and capricious under § 303(a) and (b) of the Federal Water Pollution Control Act (FWPCA). The lower court properly concluded that EPA acted reasonably in refusing to exercise its discretionary authority to promulgate revised or new water quality salinity standards under § 303(c)(4)(B) of the FWPCA, in addition, there is no merit to appellant's contention that EPA's failure to establish total maximum daily loads for salinity violated § 303(d) of the FWPCA. The court similarly rejects appellant's assertion that EPA's failure to disapprove or remedy the basin states' continuing planning processes violated § 303(e) of the FWPCA. Finally, the court rules there was no violation of § 102(2)(E) of the National Environmental Policy Act because (1) EPA's salinity control program does not constitute a "proposal" and (2) the on-farm management measures advocated by appellant were not actually alternatives to the salinity control efforts since they comprised an integral part of appellees' programs.

Counsel for Appellant
George W. Pring, Paula C. Phillips
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Counsel for Appellees
Angus C. Macbeth, Deputy Ass't Attorney General; Thomas H. Pacheco, Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Lee C. Schroer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20530
(202) 755-2511

Before TAMM and ROBINSON, Circuit Judges, and HARLINGTON WOOD, JR.,* Circuit Judge, United States Court of Appeals for the Seventh Circuit.