From a nonpollutant into a pollutant: revising EPA'S interpretation of the phrase "discharge of any pollutant" in the context of NPDES permits.

• Author: Dornsife, Alison M.
• Position: National Pollutant Discharge Elimination System

1. INTRODUCTION II. ENVIRONMENTAL EFFECTS OF DAMS III. REGULATORY FRAMEWORK OF THE CLEAN WATER ACT A. Jurisdictional Requirements of NPDES Permits B. Jurisdictional Requirements of Dredge and fill Permits IV. EPA's INTERPRETATION OF THE PHRASE "DISCHARGE OF ANY POLLUTANT" A. Interpretation for NPDES Permitting Requirements: Introduction of a Pollutant "From the Outside World" B. Interpretation for Dredge and Fill Permitting Requirements: Legal Transformation "From a Nonpollutant into a Pollutant". V. UNDUE DEFERENCE TO EPA's REFUSAL TO SUBJECT DISCHARGES FROM DAMS TO NPDES PERMITTING REQUIREMENTS A. Principles of Chevron Deference B. EPA 's Interpretation of the Term "Discharge" Should Not Receive" Deference in the NPDES Context VI. NEED FOR A FORMALIZED INTERPRETATION A. Uncertainty and Unpredictability B. Proposed Rule VII. IMPLICATIONS OF REQUIRING NPDES PERMITS FOR DAM DISCHARGES A. Scope of Effects 1. Limited to Situations in Which Pollutant Levels Increase 2. No Effect on Dam Retirement Activities Undertaken in Environmental Conservation Efforts B. Desirability of Result 1. More Consistency in EPA's Interpretation 2. Better Realization of Goals and Policies of Clean Water Act 3. Few Administrative Difficulties from Increased Number of Permit Applications VIII. CONCLUSION I. INTRODUCTION

   In 1972, Congress enacted the Clean Water Act (CWA) (1) in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (2) To achieve these goals, section 301 of the CWA makes it unlawful to discharge any pollutant unless that discharge takes place in compliance with either a National Pollutant Discharge Elimination System (NPDES) permit or a dredge and fill permit. (3) Although releases of polluted water from dams can have negative environmental effects on downstream waters, the United States Environmental Protection Agency (EPA or the Agency) has consistently refused to subject such releases to NPDES permitting requirements. (4)

   This refusal is particularly disturbing in dam draw-downs that release sediment-laden waters and waters with high concentrations of dissolved metals. Dams accumulate sediments, which over time may absorb other types of pollutants such as PCBs, pesticides, and heavy metals. Releases of water containing these sediments can inundate downstream habitats and shorelines with sediments that can be harmful to both humans and aquatic life. (5) The sediments may also contain toxic pollutants such as dioxins and heavy metals such as mercury, which can be re-suspended in the downstream waters upon discharge. (6)

   Discharges from dam reservoirs of water containing these pollutants are precisely the types of activities that escape regulation under EPA's current interpretation of the statute, but undeniably "transform" less polluted upstream water into a more polluted form by increasing the concentration of sediments and dissolved metals in the water to a greater degree than the downstream water can accommodate. (7) EPA's current approach is to address this multitude of problems by regulating point and nonpoint source pollution upstream from the dam and relying on other laws at the federal and state levels. (8) However, as the D.C. Circuit Court of Appeals has observed, the NPDES permit program is "the cornerstone of the [CWA]'s pollution control scheme." (9) Thus, the goals of the CWA would best be served by mandating that releases from dams be subject to NPDES permitting requirements. (10)

   EPA's conviction that discharges of water from dams are outside the scope of NPDES permits relies on the Agency's interpretation of the section 301 prohibition on the "discharge of any pollutant." The CWA defines the phrase "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." (11) Although the term "addition" is not further defined in the CWA, EPA interpreted the term in a number of informal statements to require the actual introduction of a pollutant from the outside world. (12) Releases of polluted water from dams have therefore been exempt from NPDES permitting requirements because, under EPA's interpretation, dams do not introduce material into the water from the outside world; rather, dams merely move downstream pollutants that were already present in the upstream water. Courts have consistently afforded considerable deference to this interpretation, on the grounds that the CWA's language is ambiguous and that EPA's construction of the term is reasonable. (13)

   But the CWA's central tenet--that the discharge of any pollutant is unlawful unless in compliance with a permit--is also tempered by the section 404 dredge and fill permit program, which allows the "discharge of dredged or fill material." (14) Notably, EPA's interpretation of the same phrase, "discharge of any pollutant," in the dredge and fill permit context flatly contradicts the agency's interpretation of those terms for NPDES permits. (15) In the section 404 context, EPA defines the term "discharge" as the "addition of dredged material into ... waters of the United States," which includes those situations in which an activity transforms some material from a nonpollutant to a pollutant. (16) This definition allows courts to find that there has been an addition of dredged materials without an addition of materials from the outside world. (17) EPA and other federal agencies have pushed for this broad definition of the term "discharge" in a number of recent cases. (18) EPA's interpretations thus create a dichotomy--a discharge is flatly prohibited by section 301, but a discharge is not a discharge in all circumstances.

   EPA's position that releases of polluted water from dams are not subject to NPDES permit requirements should no longer be entitled to the deference it has enjoyed for well over two decades. In Chevron, USA., Inc. v. Natural Resources Defense Council, Inc. (Chevron), (19) the United States Supreme Court established that courts should grant great deference to federal agency interpretations of ambiguous statutory provisions, (20) but EPA's interpretation of the CWA is not formalized, and recent case law indicates that the agency's interpretation is therefore not entitled to Chevron deference. (21)

   An agency's informal interpretation may nonetheless be entitled to deference to the degree that it is persuasive, (22) but the inconsistencies in EPA's interpretation of the term "discharge" indicate that the Agency should not receive deference in both the dredge and fill context and the NPDES context. (23) Rather, EPA's broader interpretation of the term "discharge" for the purpose of dredge and fill permits should receive deference because it is more consistent with the CWA's goal "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (24) Deference to the Agency's interpretation of discharge in the NPDES permit context is therefore inappropriate. (25)

   EPA must therefore clarify its interpretation of the term "discharge," the central term in section 301 and the primary activity prohibited by the CWA. EPA has a number of options before it: The Agency could do nothing and allow the courts to continue to interpret the term inconsistently; it could revise its interpretation in the NPDES context to find a discharge in a broader range of circumstances, including those in which a nonpollutant is simply transformed into a pollutant; or, the Agency could revise its interpretation for purposes of section 404 to require an addition of a pollutant from the outside world. (26) Although it appears that EPA is more likely to scale back its broad section 404 interpretation, this Comment advocates the former alternative--increasing consistency by broadening the definition of the term "discharge."

   Part II of this Comment describes the environmental effects of dams, particularly the effects that discharges of polluted water from dams can have on downstream water quality. Part III introduces the regulatory framework of two types of pollution control permits under the CWA: section 402 NPDES permits, which regulate the addition of pollutants, and section 404 dredge and fill permits, which regulate the addition of dredge and fill materials. Part IV describes EPA's interpretations of the term "discharge" in each context, and addresses the ways in which several courts have applied these interpretations. Part V introduces several standards of deference, and argues that, because EPA has not formally promulgated its interpretation of discharge for purposes of NPDES permitting requirements, EPA's refusal to subject discharges of water from dams to NPDES permitting requirements is not entitled to such deference. Part VI examines the potential courses of action that EPA could follow, and suggests that EPA should promulgate a formal rule redefining the term "discharge" for purposes of section 402 to incorporate its broader definition from the dredge and fill context and to establish standards for situations in which there is an "addition of any pollutant" even absent the introduction of material from the outside world. (27) Part VII examines the implications of redefining the scope of NPDES jurisdiction in this manner, and specifically addresses the consequences of subjecting releases of polluted water from dams to NPDES permitting requirements. Finally, Part VIII concludes this Comment by predicting EPA's potential response to this proposal and suggesting issues that deserve further consideration in the future.

2. ENVIRONMENTAL EFFECTS OF DAMS

   Releases of polluted water from dams can have a number of significant environmental effects. For instance, dam construction may deposit significant volumes of dredged material into navigable waters, and dams themselves may add pollutants such as grease, oil, or trash to the water from the outlet works of a dam. (28) EPA has required dam operators to obtain NPDES permits for such discharges to...