Roads not taken: EPA vs. Clean Water.

• Author: Blumm, Michael C.

1. NATIONAL WILDLIFE FEDERATION V. GORSUCH: EXEMPTING DAMS FROM PERMIT REQUIREMENTS A. The District Court Decision B. The D. C. Circuit Opinion C. The Consumers Power Case D. The Catskill Mountains Case II. OREGON NATURAL DESERT ASSOCIATION V. DOMBECK: LEGITIMIZING COWS IN THE CREEK A. The District Court Decision B. The Ninth Circuit Decision C. Pronsolino v. Nastri: Applying TMDLs to Nonpoint Sources III. AMERICAN WILDLANDS V. BROWNER: EXEMPTING NONPOINT SOURCES FROM ANTIDEGRADATION A. The District Court Decision B. The Tenth Circuit Decision IV. CONCLUSION "Two roads diverged in a wood, and I-- took the one less traveled by, And that has made all the difference." -Robert Frost, The Road Not Taken In some circles, the United States Environmental Protection Agency (EPA) is known as a rigorous, even single-minded enforcer of federal environmental protection statutes. (1) While that reputation seems likely to erode in the second Bush Administration, (2) in fact EPA has never been very interested in pursuing a broad interpretation of the Clean Water Act (CWA) that would construe some of the statute's ambiguities to fit the scope of the nation's water pollution problem. (3) Often, when the goal of a comprehensive approach to clean water conflicted with administrative convenience or received political wisdom, EPA compromised that goal. (4)

   This Article discusses some landmark cases in which EPA evaded the Clean Water Act's fundamental objective of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters" (5) by either narrowly construing the statute or acquiescing in another agency's narrow construction. These compromises came under Republican as well as Democratic administrations, so crass politics does not help to explain the results. Instead, it seems more likely that the explanation lies in a maturing bureaucracy more interested in self-preservation than in championing the environmental goals established in its authorizing legislation.

   Our purpose here is not so much to argue that the cases we discuss were badly decided by the reviewing courts, although we believe in some instances they were. It does seem clear, however, that all three of the principal cases we examine involve statutory ambiguities that, if interpreted in light of the Clean Water Act's objective, could have and should have been interpreted differently by EPA. Given the deference that all the reviewing courts in this study demonstrated to EPA interpretations that undermined the statutory goal, we are confident that the same reviewing courts would have sustained administrative interpretations that furthered the goal. So, in the spirit of Professor Houck, whose project is to remind us of the foundation cases of modern environmental law, (6) we offer these case studies as evidence that there are forks in the road, that administrative discretion often is crucial to a statute's life history, and that today's Clean Water Act has been unable to achieve the ambitious goals Congress established thirty years ago (7) in some significant part because EPA has chosen not to try.

   All of the cases we analyze here concern the great divide in water pollution law: the distinction between point and nonpoint sources. Point sources, those "discernible, confined and discrete conveyance[s]" that require permits for statutory compliance, (8) are subject to detailed regulation. (9) Nonpoint source pollution (or polluted runoff), on the other hand--not even specifically defined in the statute but generally understood to include polluted runoff from farming, ranching, forestry, and land development activities (10)--remains largely free of federal regulation. (11) The statute encouraged states to limit polluted runoff by offering grant money to fund state nonpoint source control programs, (12) but without federal oversight, those programs have proved largely ineffective. (13) As a result, today nonpoint sources contribute more pollution to the nation's waters than point sources, (14) and in the rural West, nonpoint source pollution is the overwhelming source of water pollution. (15)

   In the cases we discuss, EPA chose to 1) construe narrowly the scope of point sources to eliminate dam-caused pollution from effective regulation, (16) 2) acquiesce in the Forest Service's position that federal nonpoint source pollution was exempt from state water quality certification, (17) and 3) allow a state to exempt most nonpoint source pollution from antidegradation requirements. (18) In each case, circuit courts of appeal sustained the government's choice of the unregulated option. However, as our analysis shows, there was sufficient ambiguity in the statute--and sufficient adverse water quality effects--that, had the agency taken seriously the statutory goal, the regulated option, in all probability, would have been sustained by the courts. Our hope is that one day Congress, or an EPA seriously concerned about clean water, will reconsider these issues and reverse the results of these cases. In the interim, we think some of the assumptions underlying the cases should not go unchallenged, at least in circuits outside of those that decided them.

1. NATIONAL WILDLIFE FEDERATION E GORSUCH : EXEMPTING DAMS FROM PERMIT REQUIREMENTS

   In 1978, the largest fish kill in Missouri history occurred on the Osage River below the Harry S. Truman Dam, when more than 400,000 fish died of gas bubble disease because of supersaturated gas caused by uncontrolled spills over the unfinished dam. (19) The next year 100,000 fish died from the same cause. The experience induced the state of Missouri to intervene in a Clean Water Act suit filed by the National Wildlife Federation, which sought to control changes in water quality resulting from dam operations. (20) The Wildlife Federation had petitioned EPA to establish an effluent guideline to control water quality problems dams caused to waters downstream, such as oxygen depletion (which in turn allows the release of dissolved metals like iron and manganese from reservoir sediments), temperature changes (which could be hot or cold depending on dam operations), sediment disruption impairing water quality, and gas supersaturation. (21) EPA refused, and the Wildlife Federation, joined by the state of Missouri, filed suit seeking a judicial declaration that these dam-induced water-quality changes should be subject to NPDES permit requirements. (22)

   Dams must discharge a pollutant into a navigable water from a point source in order to be subject to Clean Water Act permit requirements. (23) There is little question that dams are point sources, and they usually are situated on navigable waters, as defined by the statute. (24) The issue was whether dams discharged pollutants. (25) The Act defines "discharge of a pollutant" to require "any addition of any pollutant," (26) and it defines "pollutant" with a list that does not include most kinds of pollutants produced by dams. (27) Thus the critical question was: Did dams add pollutants that were unmentioned by the statute?

   1. The District Court Decision

      Judge Joyce Hens Green of the District Court of District of Columbia agreed with the plaintiffs that the CWA required permits for the water pollution caused by dams. (28) She observed that nothing tn the statute or its legislative history indicates that dam-related pollution is to be regulated by the federal permit program, but "in view of the broadly remedial purpose of the Act, 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,'" she concluded that "it would disserve those mandates to give the Act a constricted reading." (29) She noted that several courts had concluded that activities other than those specifically identified in the legislative history, like overflows from mining operations, silvacultural and agricultural operations, storm sewers, and runoff from construction sites, (30) were subject to permit requirements, and she determined that "[t]he NPDES program was intended to be comprehensive." (31) Relying on legislative history from the Senate's consideration of the bill, Judge Green concluded that "the NPDES system is the preferred method of control, and it appears that Congress would have put all pollution sources under that program had it been feasible." (32)

      EPA maintained that none of the dam-induced pollution involved an "addition" of pollutants necessary to fall within the statutory definition of pollutant because the pollutants were already in the water, or in the case of oxygen-depleted water and cold temperatures, involve depletions, not additions. (33) The plaintiffs countered that the term "addition" should be construed as "creation," and that none of these conditions would have existed without the dams. The court agreed with the plaintiffs because it found EPA's "overly literal and technical" interpretation to be "more tortured" and less consonant with the goal of the statute. (34) Judge Green also called attention to the fact that in other contexts EPA had construed the term "pollutant" broadly, so as not to limit the term to those specifically identified in the statute. (35) Thus, she ascertained that the list of pollutants in the statute was not exclusive. (36) Although the court recognized that the term "pollutant" was narrower than the term "pollution," she concluded that oxygen depletion, temperature changes, sediment releases, and gas supersaturation caused by dams were subject to permit requirements. (37)

      Judge Green was "not unmindful" of the deference a court owes an agency when interpreting its governing statutes, but she determined that "[t]he statutory interpretation involved here does not require scientific expertise" and observed that EPA's interpretation "runs counter to expressed congressional intent, and is inconsistent with its own implementation of the Act in other contexts." (38) She found EPA's interpretation "overly...