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American Wildlands v. Browner

ELR Citation: 31 ELR 20860
Nos. No. 00-1224, 260 F.3d 1192/(10th Cir., 08/08/2001) aff'd

The court holds that the U.S. Environmental Protection Agency (EPA) did not act arbitrarily or capriciously in approving Montana's water quality standards exempting nonpoint sources of pollution from antidegradation review or in approving Montana's mixing zone policies and procedures. The court first holds that because the Clean Water Act (CWA) nowhere gives EPA the authority to regulate nonpoint source discharges, EPA's determination that Montana's water quality standards exempting nonpoint source discharges from antidegradation review are consistent with the Act is a permissible construction of the CWA. States are not required to regulate nonpoint sources at the antidegradation stage; rather, the effect of nonpoint source discharges on water bodies will be diminished by state adoption of total maximum daily loads for water bodies not meeting state water quality standards. Therefore, EPA did not act arbitrarily or capriciously in approving Montana's antidegradation review rules. The court next holds that EPA properly approved Montana's mixing zone policy allowing point source discharges to degrade water quality within the mixing zone so long as the discharge does not degrade the water quality outside the zone. The CWA's antidegradation requirements apply to the waterbody as a whole, not specifically to the mixing zone.

[A prior decision in this litigation is published at 30 ELR 20536.]

Counsel for Plaintiffs
Kristen L. Boyles
Earthjustice Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Tacha, J. Before Reavley* and Lucero, JJ.

* Honorable Thomas M. Reavley. Senior Circuit Judge. United States Court of Appeals for the Fifth Circuit, sitting by designation.