Environmental Defense Fund, Inc. v. Costle

No. 77-1436 (D.D.C. October 3, 1979)

The court grants summary judgment for defendants on all counts in a suit charging the Environmental Protection Agency (EPA), Department of the Interior, and Bureau of Reclamation with illegally failing to control salinity in the Colorado River. The court first determines that EPA's approval of the Colorado Basin states' water quality standards for salinity was not an abuse of discretion under §§ 303(a) and 303(b) of the Clean Water Act. The Act does not require that the standards contain separate numerical criteria for every state within the basin, and EPA had a reasoned basis for abandoning its initial position that more was required than numerical criteria for three points in the lower basin. The court also rejects plaintiff's attack on EPA's approval of the states' plan of implementation, finding that the plan satisfies the requirements of the Water Quality Act of 1965. The states' estimates of stream flow, their predictions of future development, and their assumption that 16 federal salinity control projects would ultimately be constructed all had a rational basis in light of the cumulative uncertainties involved. In addition, plaintiffs are mistaken in their assertion that the plan ignores structural and agricultural controls.The court rejects the allegation that EPA has unreasonably failed to promulgate revised water quality standards for the basin under §§ 303(c)(4)(A) and 303(c)(4)(B) of the Clean Water Act, noting that the states have not yet submitted revised standards for EPA review under that provision. The court also determines that plaintiff's request for an order directing the Agency to promulgate total maximum daily loads for salinity is both premature and unwarranted in view of the fact that the water quality standards are currently being met. The court finds that the additional claims that EPA and the other defendants violated § 102(2)(E) of the National Environmental Policy Act by failing to develop alternative salinity controls are similarly without merit because on-farm management measures are an integral part of rather than an alternative to defendants' salinity control program.

Counsel for Plaintiff
William A. Butler
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendants
Erica L. Dolgin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4496

[9 ELR 20717]

Flannery, J.:

Memorandum Opinion

This matter comes before the court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff in this case, the Environmental Defense Fund, Inc. (EDF), seeks review of certain action and inaction by the Environmental Protection Agency (EPA), the Department of the Interior (Interior), and the Bureau of Reclamation (Reclamation) regarding the control of salinity in the Colorado River. EDF alleges that EPA has violated §§ 303(a)-303(e) of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1313(a)-1313(e); that Interior and Reclamation have violated § 201 of the Colorado River Basin Salinity Control Act, 43 U.S.C. § 1517 et seq.; and that EPA, Interior, and Reclamation have violated § 102(2)(E) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(E). EDF seeks an order from this court 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, Interior, and Reclamation promptly to study, develop, and describe alternative methods of salinity control. Joining the federal defendants in opposing EDF's motion for summary judgment and in cross-moving for summary judgment are the seven states of the Colorado River Basin (state defendants), who have intervened as defendants in this action.

EDF's complaint alleges six distinct but related claims for relief against the three federal defendants concerning salinity levels in the Colorado River. The first four claims allege violations by EPA of § 303 of the Clean Water Act. In Claim 1, EDF contends that EPA's approval in 1976 of the water quality standards for salinity adopted by the basin states was arbitrary and capricious under §§ 303(a) and 303(b) of the Act. In Claim 2, EDF asserts that, in view of new information regarding salinity that has become available to EPA since 1976, EPA unreasonably has failed to determine that revised or new water quality standards for salinity are necessary and to promulgate such new standards under § 303(c)(4). In Claim 3, EDF alleges that, because the basin states have failed to act to identify those waters in the basin where point source effluent limitations are insufficient to meet salinity standards, EPA has a duty to promulgate total maximum daily loads for salinity pursuant to § 303(d). In Claim 4, EDF alleges that EPA unreasonably has failed to disapprove and correct state continuing planning processes that have not resulted in plans providing adequate implementation, including schedules for compliance, for revised or new water quality standards for salinity pursuant to § 303(e)(3)(F).

The last two claims allege violations of other statutes. In Claim 5, EDF contends that Interior and Reclamation unreasonably have failed to discharge their duties under the Colorado River Basin Salinity Control Act by failing to ensure future maintenance of salinity concentrations at or below 1972 lower main stem levels and the development of alternative and additional programs for salinity control. In Claim 6, EDF alleges that all three of the federal defendants have violated § 102(2)(E) of NEPA by failing to study, develop, and describe alternatives to the present salinity control programs and methods.

There are no disputed issues as to any material fact in this action, and the court properly may decide this controversy under Rule 56. For the reasons set forth below, the court will deny EDF's motion for summary judgment and will enter judgment for the federal and state defendants on all six of the claims raised in the complaint.¹

I. Claim 1

The court's review of the Agency action challenged in Claim 1 is governed by § 10(e)(2)(A) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). That section instructs the reviewing court to:

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .

As the Court of Appeals for the District of Columbia Circuit has observed, the "arbitrary and capricious" standard of review "is a highly deferential one" which "presumes agency action to be valid." Ethyl Corp. v. Environmental Protection Agency, 176 U.S. App. D.C. 373, 406, 541 F.2d 1, 34 [6 ELR 20267] (en banc), cert. denied, 426 U.S. 941 (1976) (citing, among other cases, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971)). The court's task in this case is to determine whether the EPA decision under review was based upon a consideration of the relevant factors. Id. If the court concludes that the Agency had a rational basis for its decision to approve the water quality standards for salinity adopted by the states, it must defer to the Agency even if it disagrees with that decision. Id. at 36. Consistent with the Supreme Court's decision in the Overton Park case, supra, 401 U.S. at 415-16, the court has given a hard look at the complex evidentiary record assembled by the EPA, but it has done so mindful of the narrowly defined limits of its function under § 10(e) of the APA.

Although there is no dispute regarding the standard of review applicable to Claim 1, the parties disagree concerning the scope of the evidence the court permissibly may consider in conducting its review. The court must resolve this preliminary question before it addresses the merits of Claim 1.

EPA has certified an administrative record for the court's review of Claim 1 that comprises 376 documents and totals over 4,900 pages. EDF contends that the record is deficient in several respects, the principle defect being the "after-the-fact" inclusion of documents purportedly not reviewed or relied upon by EPA decision makers. But, given the informal nature of the decisionmaking process under review, it is unrealistic to assume that all of the documents critical to the Agency's decision were in fact placed "before" the head of the Agency. Where, as in the present case, many of the decisions concerning Agency actions are delegated and are taken over extended periods of time, and where the decisions involve consideration of highly complex technical data, the only way for an Agency to reconstruct accurately how the decisions were made is for it to collect the documents that passed through the internal procedures of the Agency. It is the court's conclusion, therefore, that the "historical" approach followed by EPA in assembling the record in this case is a sound one and fully adequate to the requirements of review exacted by this suit.

The court agrees with the federal and state defendants that it must strike the four affidavits submitted by EDF in support of its motion for summary judgment on Claim 1. It is well settled that in judicial review of agency action under § 10(e)(2)(A) of the APA, the "merit of the administrative decision is to be determined exclusively on the administrative record." Richards v. INS, 180 U.S. App. D.C. 314, 318, 554 F.2d 1173, 1177 (1977); see Doraiswamy v. Secretary of Labor, 180 U.S. App. D.C. 360, 555 F.2d 832 (1976). Because "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court," Camp v. Pitts, 411 U.S. 138, 141 (1973), the affidavits submitted by EDF are not admissible for the purposes of the court's review of Claim 1. None of the affiants is employed by EPA and none of them participated in the Agency actions reviewed here. Indeed, none of the affidavits was submitted to the Agency before they were filed with this court. It is true that Overton Park stands for the principle that a court may go beyond the record if the record does not disclose adequately the basis of the Agency's decision. The Supreme Court declared that, in such cases, the reviewing court "may require the administrative officials who participated in the decision to give testimony explaining their action." 401 U.S. at 420. EDF's affiants, however, are not Agency officials and did not participate in the challenged decisions, so the court must conclude that EDF cannot avail itself of the narrow Overton Park exception to exclusive reliance on the record.

[9 ELR 20718]

The court turns next to the merits of Claim 1, in which EDF alleges that EPA's approval in November 1976 of the basin states' water quality standards for salinity was an abuse of discretion under§§ 303(a) and 303(b) of the Clean Water Act of 1972, 33 U.S.C. §§ 1313(a) and 1313(b). Substantively, EDF assails EPA's action on two principle grounds. First, EDF argues that approval of the state-adapted standards was arbitrary and capricious because the water quality criteria adopted by the states did not contain numerical criteria for that portion of the Colorado River within the upper basin. Second, EDF argues that the plan for implementation of the criteria adopted by the basin states was based upon unreasonable assumptions and relied upon "incorrect methods" for controlling salinity.²

The Water Quality Act of 1965 (1965 Act), Pub. L. 89-234, 79 Stat. 903, amended, 84 Stat. 91, under which EPA reviewed the states' salinity standards, as provided for by § 303(a) of the Clean Water Act, stated that standards were "to protect the public health or welfare, enhance the quality of water and serve the purposes of [the] Act." Section 10(C)(3). Standards were to include salinity criteria set at levels to protected designated uses. Sections 10(c)(1) and 10(C)(3). In 1975-76, the states adopted criteria stated in both numerical and narrative form. The points chosen as appropriate for establishing numerical criteria were three locations in the lower main stem of the river, below the Hoover and Parker Dams and at the Imperial Dam.

EDF does not challenge the levels of salinity established by the states and approved by EPA in 1976. Nor does EDF contend that the three numerical criteria, if met, will fail to protect the designated uses on any stretch of the river. Rather, the gravamen of EDF's complaint is that the states should have established additional numercal criteria upstream. EDF argues that the "numeric standards alone provide complete grounds for judicial disapproval and corrective remand," because each state must adopt numerical criteria for salinity "for appropriate reaches within its own territory." EDF Reply at 5 (emphasis in original).

EDF has not pointed the court to any section of the Clean Water Act that would require the establishment of separate numerical criteria in every basin state. Indeed, the Act nowhere requires the establishment of criteria in numerical form; criteria may be entirely narrative. Moreover, the court cannot agree with EDF that the establishment of criteria at three points in Arizona, California, and Nevada was contrary to EPA's 1974 salinity regulation. That regulation required the states to treat salinity as a basinwide problem and to adopt numerical criteria "for appropriate points" in the Colorado River system to maintain salinity levels at or below the average value found during 1972 in the lower main stem. 40 C.F.R. §§ 120.5(b), 120.5(c)(1), 120.5(c)(2)(ii); AR 202 at 43721. The choice of the three locations for numerical criteria is consistent with the basinwide approach and is fully explained in the record. AR 53-59. The states' decision not to establish criteria upstream, which was influenced both by the conclusion that salinity does not threaten designated uses of the Colorado River water in the upper basin states and by the technical difficulties that would attend attempts to set upstream standards, similarly is explained in the record, AR 60-61, and has a reasonable basis.

In its attack on the rationality of EPA's approval of the three salinity criteria, EDF alleges that EPA arbitrarily abandoned its earlier position that upstream standards were legally required and, in fact, essential if downstream standards were to be preserved. For several years before 1975, representatives of EPA and the states had disagreed regarding the appropriate number of points in the river at which numerical criteria should be set. Individuals within EPA expressed the view that numerical criteria within each state were desirable and necessary, AR 182-83, 198, 206, 225, 229, 235, 237, while the states maintained that one criterion at Imperial Dam was adequate, AR 171 at 2, and that no state-line numerical criteria should be established. AR 233. In early 1975, the issue finally was resolved when EPA and the states agreed that criteria at three points would be acceptable. AR 239 at 9, 244 at 2. EDF characterizes EPA's approval of three criteria as an arbitrary switch in its position induced only by "political" considerations, i.e., by EPA's desire "to keep the states' support of the plan," EDF Memorandum at 24, and urges the court, on the authority of Associated Industries v. Train, 9 ERC 1561 (N.D. Ala. 1976), to strike down the Agency's action as an abuse of discretion.

The record reveals that, although EPA officials initially advocated that salinity criteria should be established within each basin state, EPA first took a formal position on the issue in its 1974 salinity regulation. As discussed above, the salinity regulation declared that numerical criteria should be adopted by the states at "appropriate points" on the Colorado River system. 40 C.F.R. § 120.5(c)(1); AR 202. Because EPA never took a formal position on what would qualify as "appropriate points," its approval of the states' choice of the three points did not represent any reversal regarding the number of points that would be "appropriate."

In the court's view, the EPA action challenged here would survive scrutiny under the arbitrary and capricious standard even if the court were to construe the statements by EPA officials favoring criteria within each state as collectively representing official Agency policy. An agency has the right to change its policy as long as it supports the change by a reasoned explanation. Gulf Power Co. v. EPA, 11 ERC 1865, 1866 (N.D. Fla. 1978). See also NLRB v. International Union of Operating Engineers, Local 925, 460 F.2d 589, 604 (5th Cir. 1972). Such an explanation is provided by Mr. Dubois, chairman of EPA's salinity task force. An early advocate of numerical criteria in each state, Mr. Dubois later recommended approval of the state-adopted standards. He stated later, although EPA would have "preferred" that each state adopt criteria within its boundaries, on the basis of the substantial evidence challening the technical feasibility or need for such criteria, EPA accepted the use of three criteria as appropriate. Dubois dep. at 126-27. Mr. Dubois explained that "numeric standards at state lines were not essential to the success of salinity control." Dubois dep. at 125. In lieu of numerical criteria within each state, the basin states adopted a proposal for a water quality monitoring and analysis program. The monitoring points were viewed as "benchmark" points that would enable officials to "keep track of what was coming out of each state." Dubois dep. at 130. It well may be, as EDF vigorously contends, that monitoring points are a poor substitute for numerical criteria in the fight against salinity pollution. Nevertheless, on the basis of the record before it, the court cannot conclude that EPA acted arbitrarily and capriciously in approving three numerical criteria and the plan of implementation that included provisions for monitoring points throughout the basin.

In addition to adopting the numerical criteria and the designated uses, the basin states adopted an implementation plan as a part of their water quality standards. See AR 245 passim. EDF's primary challenge in Claim 1 is directed against what it describes as the "inadequacies and ineffectiveness of the states' 1975 plan, approved by EPA." EDF Memorandum at 17. The federal defendants contend that the states' plan of implementation met the requirements of the 1965 Act, pursuant to § 303(a) of the Clean Water Act of 1972, and therefore that EPA's approval of the plan was not arbitrary or capricious.

EDF presents a three-pronged attack on EPA's approval of the states' plan of implementation. First, EDF alleges that the plan was based upon unreasonable assumptions as to streamflow, rate of development in the upper basin, and feasibility of federal salinity mitigations projects. Second, EDF asserts that the plan "on its face" would not work because violations of the criteria were excused in advance and because the plan did not plan for salinity increases beyond 1990. Third, EDF alleges that the plan relied upon "incorrect methods" of control, rather than upon improved irrigation practices, crop modification, acreage retirement, and other on-farm methods.

The legal test for judging the states' implementation plan is whether it was consistent with the 1965 Act's provision that the [9 ELR 20719] plan "protect the public health or welfare, enhance the quality of water and serve the purposes of this Act." 79 Stat. 903, amended, 84 Stat. 91, § 10(c)(3). The court is satisfied from its examination of the record that there is ample evidence supporting EPA's conclusion that the 1976 plan satisfied this statutory requirement.

In formulating the implementation plan, the states made projections of future salinity levels based upon a range of streamflows and water depletion levels. Contrary to the position taken by EDF, there is a rational basis in the record to support the states' streamflow estimates and their projection of development levels. AR 245 at 26, 32-37. See also Key dep. at 51-53. Further, the court cannot agree with EDF's argument that the states' "final assumption — that a total federal program of 16 control projects would materialize and function effectively — was grossly speculative in 1976." EDF Memorandum at 19. In enacting the Colorado River Basin Salinity Control Act, 43 U.S.C. § 1571 et seq., Congress committed the federal government to aiding the states in reducing salinity levels in the Colorado River. Congress authorized the construction of the 16 projects, or their equivalents in 1974. Therefore, it was reasonable for the states in 1975 to include these 16 projects as components in their plan of implementation, especially in view of the fact that the projects were the only components of the plan directed at the control of natural sources of salinity.

EDF's second argument is that EPA's approval of the states' plan was arbitrary and capricious because the plan allows "violations." But, as the state defendants point out, the narrative provision stating that the actual salinity levels may "vary above and below the recommended numeric criteria" if the increase is "temporary," AR 245 at 56-57, is actually part of the criterial. As explained in the ecord, the allowance for such fluctuations in salinity levels is appropriate because a number of factors affect salinity; for example, control projects may not be in full effect, or a period of below long-term average annual river flow may result in temporary increases in salinity concentrations. AR 250 at 10. This portion of the states' plan is consistent with EPA's salinity regulation, 40 C.F.R. § 120.5(c)(ii), or AR 202 at 43723, which reasonably interprets the requirements of the 1965 Act.

Observing that the states' plan does not make projections of salinity levels beyond 1990, EDF argues that the plan does not provide any "long-term planning" and that it was arbitrary and capricious of EPA to approve a plan with so brief a "useful life." EDF Memorandum at 21. In fact, however, an entire chapter of the plan is devoted to a discussion of future possible control programs. AR 245 at 121-32. Moreover, the plan provides for review and modification as appropriate every three years. AR 245 at 133-34. It was not unreasonable for the plan to fail to project the effects of salinity control measures beyond 1990, because the states concluded that the inherent difficulty of projecting the cumulative impacts of streamflow, development rates, and effects of salinity control measures made it unrealistic to attempt projections beyond 1990. AR 150, attachment 3 at 4.

Finally, EDF alleges that the plan relied upon "incorrect methods of control" by "[v]irtually ignor[ing]" non-structural and agricultural controls. EDF Memorandum at 25-26. This allegation is contradicted by the record, which reveals the inclusion in the plan of nonstructural projects and programs directed at improving irrigation practices and reducing salinity from irrigation return flows. AR 245 at 68-69, 83-84. In addition, several of the structural projects were directed at reducing salinity impacts from irrigation sources. AR 245 at 70-71, 74-77, 82. Although EPA representatives believe on-farm management measures offer considerable potential for alleviating salinity, they have concluded that such measures are not always the most feasible or cost-effective controls on salinity and, by themselves, probably would not be sufficient to maintain the numerical criteria for all-levels of future water development in the basin. Reetz Aff., para. 11 and 12. That there may be evidence to the contrary, as EDF argues, does not make the EPA judgment an unreasonable one.

In conclusion, EDF's challenge to the states' plan of implementation amounts to a plea that there ia a "better" way to control salinity than that followed by the states and approved by EPA. It is not the function of the court, however, to establish a preference between conflicting approaches to salinity control in the Colorado River. The court may not substitute its judgment for that of EPA so long as the Agency's actions met "minimum standards of rationality," Ethyl Corp. v. EPA, supra, 176 U.S. App. D.C. at 408, 541 F.2d at 36, as they have here.

In Claims 2 through 6, EDF challenges a variety of inactions on the part of EPA, Interior, and Reclamation. The court's review of these claims is governed by § 10(e)(1) of the APA, 5 U.S.C. § 706(1), which provides that the reviewing court shall:

(1) compel agency action unlawfully withheld or unreasonably delayed.

The parties agree that the standard of review under § 10(e)(1) is virtually identical to that under § 10(e)(2)(A), except that there is no administrative record for the court's review of the federal defendants' ongoing failure to act. The court will enter judgment as a matter of law in favor of the defendants on all five claims.

II. Claim 2

EDF alleges in Claim 2 that "EPA is clearly obligated to step into an affirmative role and promulgate effective [water quality] standards." EDF Memorandum at 29-30. EDF asserts that EPA unreasonably has failed to exercise its authority under §§ 303(c)(4)(A) and 303(c)(4)(B) of the Clean Water Act of 1972, 33 U.S.C. §§ 1313(c)(4)(A) and 1313(c)(4)(B), and to promulgate revised or new salinity standards for the seven basin states. The federal defendants concede that EPA has not promulgated such water quality standards, but contend that no facts in the present case justify EPA exercising its authority under § 303 to propose water quality standards for salinity.³

The Clean Water Act gives EPA broad discretion to determine when it is necessary to propose revised or new water quality standards. EPA is not authorized to act under § 303(c)(4)(A) until the states submit revised or new water quality standards pursuant to § 303(c)(2). Once the states have submitted the new or revised standards to EPA, § 303(c)(3) then requires the Agency to review the standards to determine whether they are consistent with the requirements of the Clean Water Act. If EPA determines that the standards submitted are not consistent with the Act, it is required under § 303(c)(4)(A) "promptly" to "prepare and publish proposed regulations setting forth" revised or new water quality standards.

In 1978, the basin states, acting through the Salinity Control Forum, held public hearings to review their water quality standards for salinity. Reetz dep. at 92-95. The seven states currently are in the process of determining whether to adopt revisions proposed by the forum. Because the states have not yet submitted revised or new water quality standards for EPA review, the Agency has been under no duty to act under § 303(c)(4)(A), and EDF's challenge under that provision therefore must fail.

The court further concludes that EPA has not acted unreasonably in failing to propose revised or new water quality standards under § 303(c)(4)(B). That provision authorizes EPA to propose a standard only when the Agency makes a discretionary determination that a revised or new water quality standard is necessary to meet the requirements of the Clean Water Act. EDF suggests that because "new information" has become available since 1976 that purportedly indicates the need for new standards, EPA's failure to act has been unreasonable. The court agrees with EPA, however, that it would be a breach of the orderly state review process, as provided in the Act, for the Agency to intercede at this time and propose revised or new standards. Further, EPA points to several developments that support the reasonableness of its decision not to act at this time, principally the fact that the 1975 numerical criteria have not been exceeded during the past three years, Order, dated January 31, 1979, and that unexpectedly slow development in the upper basin has tended to offset the fact that the federal control projects have not come on line as quickly as anticipated. Reetz Aff., Def. Ex. 1, para. 7.

[9 ELR 20720]

III. Claim 3

In Claim 3, EDF alleges that EPA has failed to promulgate total maximum daily loads (TMDLs) for salinity in the Colorado River in violation of § 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d). The court finds this claim to be without merit for two reasons. First, EDF's request that EPA be ordered to promulgate TMDLs for salinity is premature. Because EPA did not identify pollutants suitable for TMDL calculations until December 28, 1978, 43 Fed. Reg. 60662, the states' statutory duty to submit TMDL calculations to the Agency for approval or disapproval arose only on June 28, 1979. Section 303(d)(2), 33 U.S.C. § 1313(d)(2). The court is unable to conclude, therefore, that either the states or EPA has been late in discharging any duty to establish TMDLs particularly inasmuch as the states are not obligated to establish a TMDL for salinity as their first TMDL submitted to EPA. 43 Fed. Reg. 60662 (Dec. 28, 1978).

The second reason for the court's determination not to grant the requested relief is that the water quality standards currently are being met. EDF correctly points out that TMDLs sometimes may appropriately be used for preventing an anticipated violation of water quality. In view of the fact that average annual salinity levels have been decreasing at the Hoover, Parker, and Imperial Dams since 1972, however, a court order directing the establishment of TMDLs for salinity would not be warranted at the present time.

IV. Claim 4

In Claim 4, EDF attacks EPA's alleged "failure to insure that the basin states' continuing planning processes have resulted or will result in water quality plans providing 'adequate implementation, including schedules of compliance' for meeting the existing water quality standards, in direct violation of Section 303(e)(3)(F)." EDF Memorandum at 33. In the court's view, EDF's reliance on the statutory provision it cites is misplaced.

EDF argues that the basin states' continuing planning processes are inadequate because of alleged deficiencies in the plan of implementation adopted by the states in 1975 as part of their water quality standards for salinity. The plan of implementation, however, is not part of the water quality management plans that the states develop under §§ 303(3) and 208. The requirements in § 303(e) apply only to water quality management plans. Moreover, § 303(e)(3)(F) provides that water quality management plans should include "adequate implementation, including schedules of compliance for revised or new water quality standards" adopted under § 303(c) (emphasis added). The basin states' water quality standards are not "revised or new" water quality standards adopted pursuant to § 303(c). Rather, the existing state standards were adopted and approved pursuant to §§ 303(a) and 303(b). Therefore, EDF's challenge to agency action in Claim 4 must fail.

V. Claims 5 and 6

In Claims 5 and 6 of its complaint, EDF alleges that EPA has violated § 102(2)(E) of NEPA, 42 U.S.C. § 4332(2)(E), and that Interior and Reclamation have violated § 102(2)(E) of NEPA and the Colorado River Basin Salinity Control Act, 43 U.S.C. § 1517 et seq., by failing to develop and implement alternative salinity controls, in particular, on-farm management measures. The court finds these claims to be without merit.

EDF seeks to have EPA consider on-farm management measures as "alternatives" to EPA's "salinity program," pursuant to the NEPA § 102(2)(E) requirement that an agency studydevelop, and describe appropriate alternatives. The court is persuaded, however, that NEPA § 102(2)(E) is not applicable in this case, because on-farm management measures being taken by EPA are not "alternatives" to the Agency's salinity control program; rather they constitute an integral part of such a program. The affidavit of James P. Law, which federal defendants have attached as Exhibit 2, lists 41 studies and reports prepared by or for EPA in recent years which relate to on-farm management measures for controlling salinity. An examination of the titles demonstrates that EPA has been studying, describing, and developing on-farm management measures for controlling salinity.

Similarly, on-farm management measures are not alternatives to Interior's and Reclamation's salinity control program, but rather are a part of it. See, e.g., AR 37 at 58-64; Quality of Water, Colorado River Basin, Progress Report No. 9, January 1979, Def. Ex. at 78-82, 86-92; Irrigation Management Services Program Annual Report of 1977, Def. Ex. 13. The affidavit of R. Keith Higginson, which the federal defendants have attached as Exhibit 4 lists dozens of studies that reveal the interest of Interior and Reclamation in developing on-farm management measures. Because Interior and Reclamation, like EPA, have undertaken preliminary research, contingency planning, and the assignment of personnel and equipment to pursue the possibilities of on-farm management measures, NEPA § 102(2)(E) is not applicable to these defendants in this case. Further, EDF has failed to establish any facts which make any "study of alternatives" requirement in the Colorado River Basin Salinity Control Act applicable in the present case.

An appropriate Judgment accompanies this Memorandum Opinion.

Judgment

Upon consideration of the cross-motions for summary judgment and the memoranda filed in connection therewith, and the court having heard the oral argument of counsel and reviewed the record herein, and for the reasons set forth in the court's Memorandum Opinion filed this day, it is, by the court, this 3d day of October 1979,

ORDERED, ADJUDGED and DECREED that the plaintiff's motion for summary judgment be, and the same hereby is, denied; and it is further

ORDERED, ADJUDGED and DECREED that the federal and state defendants' motion for summary judgment be, and the same hereby is, granted; and it is further

ORDERED, ADJUDGED and DECREED that summary judgment be, and the same hereby is, entered for the defendants.

1. In view of the court's disposition of the present action on cross-motions for summary judgment, the court finds it unnecessary to consider the effect of the Colorado River Compacts on the claims presented by EDF.

2. EDF also argues that EPA violated the procedural requirements of §§ 303(a) and 303(b) by not "promptly" promulgating water quality standards when the states failed to do so by April 18, 1973. The court cannot agree.EPA's practice of allowing sufficient time for state adoption of salinity standards accorded fully with the policy of the Clean Water Act, which was to "recognize, preserve, and protect the primary responsibilities and rights of states" to develop water quality standards. Section 101(b).

3. In Claim 2, EDF again raises the argument that EPA did not act in a timely fashion to promulgate standards under § 303(b). The court has addressed that contention in note 2, supra.