From a nonpollutant into a pollutant: revising EPA'S interpretation of the phrase "discharge of any pollutant" in the context of NPDES permits.
I. 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. II. 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 avoid liability under the CWA. (29) But these are not the only situations in which a dam's operation can cause degrading environmental effects; day-to-day dam operations can significantly affect water quality and aquatic habitats by trapping sediments and polluttants in the reservoir and releasing water with concentrated levels of pollutants into the receiving waters downstream. (30) One type of dam-induced pollution is an increase in the sediment load in receiving waters following a discharge of sediment-laden water from a dam reservoir. Dam reservoirs accumulate sediment because the normal flow of rivers and streams slows down upon entering the reservoir, causing the sediments contained in that flow to settle to the bottom of the reservoir. (31) Larry W. Canter, the author of a technical report published by the U.S. Army Corps of Engineers, notes that when dams are drawn down to the extent that sediments are released downstream, the discharge may cause the downstream waters to exceed [the] equilibrium suspended load of [the] receptor stream altering many physical and biological characteristics of the channel; these include channel aggredation, silting of reservoirs, undesirable effects on marine life such as blanketing and smothering of benthic flora and fauna, altering the flora and fauna as a result of changes in light transmission and abrasion ... or obstruction of [fish] gill function. (32) In addition to this impact on fish and plant life, sediment-laden water also has adverse effects on humans. For example, the water may require considerable treatment to remove sediment and improve water clarity before that water can be used for municipal, industrial, or irrigation purposes. (33) Other types of pollutants such as PCBs, pesticides, and heavy metals such as mercury also accumulate in sediments that are trapped in reservoirs. (34) Releases of large volumes of water from the reservoir stirs up these sediments, resuspending the accumulated pollutants in the water. (35) The increased concentrations of these pollutants can result in bioaccumulation of harmful metals in aquatic wildlife. (36) Dam discharges may also contain increased concentrations of dissolved metals such as iron and manganese. (37) Although these metals often exist in the bottom sediments of reservoirs, (38) they become more soluble and diffuse into the surrounding water if the water has a low dissolved oxygen content. (39) In addition, the resulting anoxic conditions cause anaerobic activity, which leads to increased concentrations of ammonia, hydrogen, sulfide, methane, iron, and manganese. (40) Dissolved metals are more harmful to aquatic organisms and humans than are solid, particulate metals--they may damage or destroy aquatic organisms; they may be toxic to humans; and they can require that water undergo additional treatment before it can be used for domestic, municipal, or industrial purposes. (41) Because these pollutants are subject to NPDES permitting only when added to navigable waters from a point source, (42) it is necessary to examine the jurisdictional requirements of the CWA's permit provisions to discover whether the NPDES permitting system can--and should--properly regulate these pollutants. III. REGULATORY FRAMEWORK OF THE CLEAN WATER ACT The objective of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (43) To achieve this goal, section 301 of the CWA establishes that the discharge of any pollutant is presumptively unlawful; in other words, the discharge of any pollutant is unlawful unless that pollutant is discharged under the terms of either an NPDES permit or a dredge and fill permit. (44) The eventual goal of the CWA is to completely eliminate discharges of pollutants, (45) but, as the court noted in National Wildlife Federation v. Gorsuch (Gorsuch II), (46) "it is one thing for Congress to announce a grand goal, and quite another for it to mandate full implementation of that goal." (47) Congress's implementation of the CWA's permit programs illustrates the CWA's recognition that there are certain limits, which may be economic, technological, or political in nature, to fully realizing Congress's goal of total elimination of pollutants. (48) The CWA therefore authorizes the EPA Administrator to issue an NPDES permit for "the discharge of any pollutant, or combination of pollutants," (49) and grants the Secretary of the Army Corps of Engineers the authority to issue a dredge and fill permit for the "discharge of dredged or fill material." (50) Note that each permit provision is only invoked if the activity in question is a discharge of any pollutant--a discharge made unlawful by section 301 of the CWA. EPA's interpretation of each permit provision will be discussed later in this Comment, (51) but it is first necessary to examine the specific jurisdictional requirements in each permit provision in order to illustrate the basic structure of the CWA and the similarities between the permit programs. A. Jurisdictional Requirements of NPDES Permits Section 402 permits, more commonly known as NPDES permits, allow a discharger to undertake an activity that results in a discharge of any pollutant--an activity that would, if not for the permit, constitute an unlawful activity under section 301 of the CWA. (52) The phrase "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." (53) EPA can therefore only require that a discharger obtain an NPDES permit if the activity clearly satisfies the four jurisdictional factors set out in this definition: the activity at issue must cause 1) an "addition" 2) of a "pollutant" 3) to "navigable waters" 4) from any "point source." (54) The first jurisdictional element--that the activity involve an addition--is the most unclear and disputed element in determining whether an activity should be subject to NPDES permitting requirements, and is therefore the focus of this Comment. (55) The second element requires that the discharge involve a pollutant. (56) Sediment that accumulates behind a dam's headwall is resuspended into the water in some circumstances when water from the dam reservoir is released. In these circumstances, the pollutant may be the sediment itself, heavy metals that have been absorbed by those sediments, or other chemicals that remain dispersed throughout the water. The CWA expressly defines the term "pollutant" to include "dredged spoil," "rock," and "sand" (57) and, although "sediment" is not expressly listed as a pollutant, (58) EPA acknowledges that "sediment" is a pollutant, and recent case law supports this interpretation. (59) In addition, dissolved metals are pollutants for purposes of the NPDES permit program. (60) Third, the discharge must be made into a "navigable water." (61) The CWA defines the term "navigable waters" simply as "waters of the United States," (62) and case law supports a broad interpretation of the term "navigable water." (63) There is thus little possibility that dam discharges would be excluded from NPDES permitting requirements based on this element. The fourth element requires that the addition take place "from a point source." (64) The CWA defines the term "point source" to mean "any discernible, confined, and discrete conveyance ... from which pollutants are or may be discharged." (65) Several courts have concluded that a dam can, at least under certain circumstances, serve as a point source. (66) Therefore, whether EPA's interpretation--that releases of water from dams are outside the scope of the NPDES permitting requirements--is reasonable and entitled to deference hinges on the construction of the first jurisdictional element, the term "addition." (67) B. Jurisdictional Requirements of Dredge and Fill Permits Although this Comment does not argue that releases of polluted water from dams should be subject to section 404 dredge and fill permitting requirements, it is nonetheless necessary to examine the jurisdictional elements of dredge and fill permits in order to illustrate the common structure of the CWA's permit provisions and the resulting inconsistency in EPA's interpretations. Like NPDES permits, section 404 dredge and fill permits allow a discharger to lawfully undertake an activity that will result in a discharge of a pollutant--an activity that would otherwise be prohibited by section 301 of the CWA. These dredge and fill permits allow permit holders to lawfully "discharge ... dredged or fill material into the navigable waters." (68) The Secretary of the Army Corps of Engineers, who holds the authority to implement the dredge and fill permit program, can therefore only require that a discharger obtain a permit if the activity meets three jurisdictional elements: The activity must 1) be a "discharge" 2) of "dredged or fill material" 3) into "navigable waters." (69) The first element, which requires that the activity be a discharge, (70) is again the most unclear and disputed element and is thus the focus of this Comment. (71) The second element is more straightforward--it requires an activity to discharge either dredged material or fill material, (72) and federal regulations define the term "dredged material" as "material that is excavated or dredged from waters of the United States." (73) Finally, the third element, that the discharge must be made into navigable waters, is interpreted in the dredge and fill permit context just as the term is interpreted in the NPDES permit context. (74) The crucial jurisdictional element in both the NPDES context and the dredge and fill context is therefore whether the activity in question constitutes a discharge. The next section of this Comment thus explores the way in which EPA has interpreted this central term in each context, as well as the way the term has been defined by case law in various jurisdictions. IV. EPA's INTERPRETATION OF THE PHRASE "DISCHARGE OF ANY POLLUTANT" Although the CWA establishes that any discharge of any pollutant will be unlawful unless that discharge is made pursuant to one of two permits, EPA's interpretation of the term "discharge" in the context of dredge and fill permits is in direct conflict with the agency's interpretation of the same term in the NPDES permit context. (75) While EPA's interpretation of the term in the context of the NPDES permit program is narrow and requires that a pollutant be introduced from the outside world, (76) EPA's interpretation in the context of dredge and fill permits is broader and includes activities that transform a nonpollutant into a pollutant. (77) This Part illustrates this inconsistency by examining EPA's interpretation of the term in each provision and by reviewing several cases that apply these interpretations. A. Interpretation for NPDES Permitting Requirements: Introduction of a Pollutant "From the Outside World" NPDES permits are required for the "discharge of any pollutant," (78) a phrase defined by the CWA as "any addition of any pollutant to navigable waters from any point source." (79) But the term "addition" has not been defined anywhere in the CWA or in the regulations promulgated to interpret the CWA. In several informal policy statements, EPA has interpreted the term "addition" using a plain language approach: An addition would require the actual introduction of a pollutant from the outside world. (80) Under this interpretation, a release of polluted water from a dam cannot be an addition of a pollutant to the receiving waters because the dam merely moves pollutants downstream which were already in the upstream water. (81) In National Wildlife Federation v. Gorsuch (Gorsuch I), (82) the U.S. district court for the District of Columbia first interpreted EPA's guidelines. Although that court found that discharges of water from dams should be subject to NPDES permits, the D.C. Circuit overturned that judgment on appeal, holding that a discharge requires an actual introduction of new material from the outside world in order to be regulable. (83) The clearest example of this is the point at which a pollutant is added to a navigable water for the first time. For example, the court noted that EPA has required NPDES permits for "the discharge of grease, oil, or trash through the outlet works of a dam." (84) In that situation, the grease, oil, or trash would first be introduced to the navigable water at the spillway of the dam. (85) Following Gorsuch II, courts have continued to give effect to this narrow "from the outside world" interpretation of discharge, holding that an activity will cause an addition if the material is physically removed from a navigable water and returned to that same navigable water in a different, more polluting form. For example, the court in Association of Pacific Fisheries v. Environmental Protection Agency (Pacific Fisheries) (86) found a discharge of a pollutant when a fish processor removed fish from a navigable water, took the fish to a processing plant, and then redeposited byproducts from the processing--fish remains--back into the navigable water from which the fish had come. (87) In contrast, those instances in which fish remains are created as fish and water pass through a dam's turbines--but are not physically removed from the water--do not cause a discharge because they are not added from the outside world. (88) In other cases, courts in various jurisdictions have applied EPA's interpretation to illustrate that diversion activities that take polluted water out of one navigable water and deposit it into another distinct water body are regulable, but activities that cause only the movement of water within a water body are not. (89) Such activities cause a discharge of a pollutant because the addition need not be an addition of a material from outside any water, only from outside the distinct navigable water at issue. For example, in Miccosukee Tribe of Indians of Florida v. South Florida Water Management Distinct (Miccosukee), (90) the Eleventh Circuit held that an activity was a regulable discharge and therefore subject to NPDES permitting requirements when a pumping station moved polluted water from one distinct body of water through a levee to another navigable water--a body of water into which that polluted water would not have flowed but for the pumping station's activity. (91) On appeal, (92) the Supreme Court reviewed the Department's "unitary waters" approach to whether a pollutant is added to navigable waters, under which all of the waters of the United States would be considered part of the same body of water and any transfers of water between bodies would not constitute discharges. (93) But the Court declined to address the issue, and instead remanded for a determination of whether the canal and impoundment area are meaningfully distinct. (94) If the Miccosukee court determines on remand that the canal and impoundment are not meaningfully distinct, the transfer of water would not add a pollutant to navigable waters and instead would simply involve an activity within one water body. Adoption of the "unitary waters" approach would produce a similar result: Even if the waters in question are meaningfully distinct, the unitary waters approach would view such waters as part of a greater system--one self-contained U.S. water body--and would again preclude a finding of a discharge. Finally, the court could find that the canal and impoundment are meaningfully distinct but reject the unitary waters approach, thus upholding the view taken by courts of other jurisdictions. (95) If the court were to follow either of the two former courses of action, however, the court would preserve the distinct dichotomy between the NPDES and dredge and fill contexts--an activity polluting a water body would not qualify as a discharge in the NPDES context as long as that activity took place within one water body (or one "unified" water body), but a similar activity that took place within one water body could constitute a discharge for purposes of section 404's dredge and fill permitting requirements. (96) Even after the Miccosukee court resolves the question before it, it is likely that EPA will continue to face the need to resolve the inconsistencies between its conflicting interpretations. B. Interpretation for Dredge and Fill Permitting Requirements: Legal Transformation "From a Nonpollutant into a Pollutant" In the dredge and fill context, the Agency's broad interpretation of the term "discharge" allows EPA to find that there has been a regulable discharge of dredged materials even where there has been no addition of materials from the outside world. The term "discharge" is defined simply as the "addition of dredged materials," (97) but courts applying this definition have determined that activities such as sidecasting, placer mining, and deep ripping cause a discharge and are thus subject to permitting requirements. (98) These activities do not, however, increase the volume of materials found in the navigable waters. (99) Rather, these cases find regulable any activity that causes a material's transformation from a nonpollutant into a pollutant. In United States v. Deaton, (100) the court was faced with determining whether a landowner's sidecasting activity was regulable under section 404 of the CWA. The court rejected the argument that a section 404 dredge and fill permit would only be necessary when an activity caused an increase in volume, noting, Contrary to what the Deatons suggest, the statute does not prohibit the addition of material; it prohibits the 'addition of any pollutant.' The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here. (101) Deaton indicated that this transformation takes place when the material is removed from its position in the navigable waters: "[O]nce [the soil] was removed, the material became 'dredged spoil,' a statutory pollutant and a type of material that up until then was not present on the Deaton property." (102) In 1998, the D.C. Circuit focused on this concept of "redeposit" in National Mining Ass'n v. United States Army Corps of Engineers, (103) reaffirming the notion that an activity could be regulable even if it only redeposited materials that were already present in the water at issue. (104) Although the court created a distinction between fallback, which is regulable as a discharge, and "incidental fallback," which escapes regulation as a de minimis effect of certain activities, the National Mining court nonetheless approved EPA's broad definition of the term "discharge" by recognizing that a fallback of materials into the same water body from which they had been removed would constitute an addition. (105) The addition, then, takes place upon the material's redeposit into the navigable water. (106) Judge Laurence Silberman, a concurring judge in National Mining, noted, [T]he word addition carries both a temporal and geographic ambiguity. If the material that would otherwise fall back were moved some distance away and then dropped, it very well might constitute an 'addition.' Or if it were held for some time and then dropped back in the same spot, it might also constitute an 'addition.' (107) Although this emphasizes the removal and redeposit of material, case law indicates that the material in question need not actually be removed from the surface of the water body itself--several cases focus on the movement of material and establish no requirement that the "removed" material actually breach the surface of the water. For example, in United States v. M.C.C. of Florida, Inc. (M.C.C.), (108) the court found a discharge of a pollutant when the propellers on a construction company's tugboat cut into the sea floor, which tore up both grasses and sediments and redeposited them on adjacent areas of the sea floor. (109) The court's analysis of this activity shows no indication that the sediments and bottom material churned up by the tugboat's propellers ever breached the surface of the water. (110) A removal and redeposit of material may therefore take place entirely below the surface of a water body. (111) This conclusion is only logical; an inch of movement may make a difference between whether a material breaches the surface of the water, but that inch will no have effect on the actual impact on the water body into which the material is redeposited. A material's physical removal from the water should therefore not be determinative in this circumstance. EPA's interpretation of the term "addition" in the dredge and fill context therefore requires only that a pollutant be removed from its original location and redeposited elsewhere in the navigable water. Since courts have assumed that this does not require that the material actually be removed from the surface of the water, (112) this interpretation should similarly include a reservoir, in which sediments and pollutants are removed from the water flowing downstream, are concentrated, and are then re-released downstream when the dam releases the water containing those sediments, dissolved metals, or other pollutants. EPA has therefore interpreted the phrase "discharge of any pollutant" in two drastically different ways. Under section 402 (which addresses NPDES permits), the phrase requires an addition of material from the outside world, whereas under section 404 (which addresses dredge and fill permits), the phrase requires only that the material be moved from one place in the water body to another. Courts have historically granted both of these conflicting definitions Chevron deference, noting that, as a general rule, courts must give "great deference to the interpretation given the statute by the officers or agency charged with its administration." (113) The following section introduces several standards of deference, and argues that EPA's inconsistent interpretation of the phrase "discharge of any pollutant" and its refusal to subject discharges of water from dams to NPDES permitting requirements is no longer reasonable and should not receive deference from the courts. V. UNDUE DEFERENCE TO EPA's REFUSAL TO SUBJECT DISCHARGES FROM DAMS TO NPDES PERMITTING REQUIREMENTS For over 20 years, courts have granted considerable deference to EPA's refusal to subject dam activity to NPDES permits. EPA's position was first granted judicial approval in Gorsuch II, (114) but a number of recent Supreme Court decisions indicate that Chevron deference to EPA's interpretation of the phrase "discharge of a pollutant" is improper and signal that the precedent established by Gorsuch II is no longer controlling on this question. (115) This Part introduces the principles underlying Chevron deference, discusses recent Supreme Court decisions that clarify its scope and meaning, and illustrates why those principles are not applicable to EPA's position. A. Principles of Chevron Deference In Chevron, the Supreme Court outlined the principles of deference that should be invoked when a court is deciding how much weight to give to an agency's interpretation of a statute. (116) The Court established that when a statute is "silent or ambiguous with respect to the specific issue" that the agency is interpreting, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." (117) This holding created a two-part test, in which the court first examines the statute for ambiguity and then, if the statute is ambiguous, examines the reasonableness of the agency's interpretation. The first step in this two-part test asks whether Congress clearly addressed the term at issue. Courts must first look to the language of the statute itself, and should examine the term at issue in light of the specific context of that language. (118) In addition, because language that seems ambiguous in isolation can become more clear after examining the broader statutory scheme, (119) courts also must look to surrounding statutory provisions for guidance. (120) If the congressional intent is clear, the court must give effect to that intent, and any agency interpretation that conflicts with the congressional intent cannot be upheld. (121) If the intent of the statue is not clear, courts proceed to the second step in the Chevron analysis--determining whether the agency's interpretation is based on a permissible construction of the statute. (122) The Supreme Court has identified several factors that courts should consider in making this determination, including whether the "construction was made contemporaneously with the passage of the CWA, and has been consistently adhered to since," and whether "construction of the [CWA] is likely to require scientific and technical expertise." (123) The agency's construction need not be the one the court itself would adopt or the one the court feels would best implement congressional policy; it must only be a reasonable construction of the statutory question at issue. (124) B. EPA's Interpretation of the Term "Discharge" Should Not Receive Deference in the NPDES Context Under this two-part test, courts following Gorsuch II have granted considerable deference to EPA's initial conclusion that discharges from dams are exempt from NPDES permitting requirements. Most courts seem to view this as a step two issue, holding that the statutory term at issue is "ambiguous" and that EPA's interpretation of the term is a "permissible construction" of the CWA. (125) Recent case law has clarified the circumstances in which an agency's interpretation is entitled to Chevron deference. (126) In Christensen v. Harris Count, the Supreme Court established that an agency's interpretation is not entitled to such deference if the interpretation is "not one arrived at after, for example, a formal adjudication or notice and comment rulemaking." (127) United States v. Mead Corp. clarified this rule, determining that courts should grant an agency's interpretation this degree of deference only "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." (128) In Mead, the Court determined that the Customs Department's interpretation of a certain term, which was set forth in Department ruling letters, did not warrant Chevron deference because the rulings were not created through notice and comment rulemaking, nor were there "any other circumstances reasonably suggesting that Congress ever thought of classification rulings as deserving the deference claimed for them here." (129) In Gorsuch II, the D.C. Circuit afforded considerable deference to EPA's interpretation of the phrase "discharge of any pollutant" even though the Agency had not formalized its interpretation through rulemaking. (130) EPA's basic position in that case--that dams should be exempt from NPDES permit program requirements--focused only on a series of informal policy decisions. (131) Although Mead suggested that there are some circumstances in which an agency's interpretation may be entitled to Chevron deference absent a formalized interpretation, (132) EPA's position that dams are exempt from permitting requirements was not established in such circumstances. In Catskill Mountains, the Second Circuit noted that none of EPA's informal policy statements and letters advancing this position "come close to the sort of formal, binding articulation of an agency's views that would justify Chevron deference after Christensen." (133) After Christensen, these policy statements issued by EPA without formal notice and comment lack the force of law and are not entitled to Chevron deference. EPA's interpretation also fails to meet the test for the lesser level of deference established under Skidmore v. Swift & Co. (134) In Skidmore, the Supreme Court established that when an agency's interpretation "lack[s] power to control" because the interpretation has not been formalized, "[t]he weight of such a judgment in a particular case will depend upon ... all those factors which give it power to persuade." (135) One factor courts consider in determining how much deference to grant an agency's interpretation is whether the agency's interpretation in the case at hand is consistent with the agency's interpretation in other contexts. (136) EPA's interpretation of the phrase "discharge of any pollutant" is inconsistent and thus is not entitled to Skidmore deference. Although the D.C. Circuit found it significant that EPA has consistently asserted the position that releases of water through dams are exempt from NPDES permitting requirements, (137) EPA's inconsistency lies rather in its interpretation of the underlying term "discharge": EPA requires an addition of a pollutant from the outside world before an activity will be subject to NPDES permitting requirements, yet any transformation of a nonpollutant into a pollutant will subject an activity to dredge and fill permit requirements. Skidmore also directed the courts to consider the "thoroughness evident in [the agency's] consideration" and the "validity of its reasoning." (138) Here, the informal policy statements in which EPA announced its conclusion that dam discharges are exempt from NPDES permitting requirements have eluded courts for 20 years, and no court interpreting EPA's interpretation in this context has analyzed the extent of reasoning underlying EPA's position. (139) In the absence of clear evidence of such reasoning, EPA should not receive deference here. EPA's contradictory interpretations also violate a number of basic canons of statutory construction. First, phrases within a single statutory section should be accorded a consistent meaning. (140) Section 301, which prohibits the discharge of any pollutant unless such discharge is made in compliance with the terms of a permit, is central to the interpretation of the permit provisions. Neither section 402 nor section 404 is invoked unless a section 301 discharge is at issue. EPA should thus accord section 301's "discharge" language a consistent meaning for purposes of both permit provisions. Moreover, phrases within different statutory sections also should be accorded a consistent meaning. (141) The term "discharge," used first in section 301, appears again, in identical language, in both sections 402 and 404 of the CWA, and is further defined for purposes of both sections to include an addition of a pollutant or of a dredged or fill material, respectively. (142) Because both definitions find a common root in section 301, an addition for purposes of one permit should be no different from an addition for purposes of the other. Furthermore, the several exceptions to the application of these canons do not apply. While an agency may interpret an identical term differently in two separate sections of a statute when those sections have different purposes, (143) sections 402 and 404 clearly do not have different purposes--both permit provisions regulate discharges in order to prevent and control pollution. (144) Although one provision regulates the discharge of a pollutant and the other regulates, more specifically, the discharge of dredged and fill material, these provisions are not distinct enough to justify such inconsistent interpretations of the provisions' central terms. (145) In addition, an agency need not interpret two similar terms consistently if Congress has expressed a clear intent to the contrary. (146) When Congress has clearly indicated that an identical word should have varying meanings within a single statute, courts should defer to the expressed congressional intent when interpreting the word in each context. (147) But Congress did not clearly express an intention that the term be interpreted differently in these two contexts. (148) Such inconsistency absent clear congressional intent indicates that Skidmore deference is inappropriate in this context. Recent case law supports this conclusion. In Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York (Catskill Mountains), (149) the Second Circuit noted that the courts in Gorsuch II and National Wildlife Federation v. Consumers Power Co. (150) "accorded unjustified deference to the EPA's interpretation of 'addition.'" (151) After finding Chevron deference inappropriate, the court noted that "courts do not face a choice between Chevron deference and no deference at all," but nonetheless held that EPA's position was not persuasive and thus was not entitled to deference. (152) One commentator who examined the effects of Catskill Mountains opined that the Second Circuit's decision "has relegated Gorsuch II and Consumers Power to the dustbins of history." (153) While this conclusion is perhaps overly optimistic, it nonetheless hints at the problem facing courts today: EPA's interpretation is no longer entitled to the deference it has received for over two decades, and courts must now scrutinize EPA's position to determine its persuasiveness and merit. VI. NEED FOR A FORMALIZED INTERPRETATION A. Uncertainty and Unpredictability EPA could choose to resolve this issue in a number of ways. If EPA does nothing, courts will continue to grapple with this issue and will undoubtedly take different stances until EPA clarifies its interpretation. EPA could promulgate a formal interpretation redefining the term "discharge" for purposes of section 402 NPDES permitting requirements. To assimilate this definition with that in the section 404 context, EPA should expand its definition in the section 402 context to include not only those circumstances in which a pollutant is added from the outside world, but also those in which a nonpollutant is transformed into a pollutant. Alternatively, EPA could revise its interpretation of discharge in the section 404 context and read the term more narrowly, which would result in fewer regulable activities by limiting the circumstances in which dredging activities would create an addition of dredged or fill material. If EPA fails to address this issue and decides against promulgating a rule to increase the consistency in its interpretations for purposes of sections 402 and 404, it is unclear how courts will proceed. Courts may continue to follow the D.C. Circuit's holding in Gorsuch II--that dams are not subject to NPDES permits--even though the level of deference accorded to EPA's interpretation was improper. (154) Or, as the court's holding in Greenfield Mills, Inc. v. O'Bannon (Greenfield Mills I) (155) indicates, courts may begin to apply EPA's broader interpretation of the term "discharge" from the dredge and fill permit context to NPDES permitting issues as well. (156) Other cases indicate, however, that courts may overturn EPA's broader interpretation of the term from the section 404 context, thus increasing consistency between the two contexts by adopting a more limited definition of the term "discharge." (157) Due to the multitude of directions in which courts could go, EPA needs to formally promulgate a rule that resolves the inconsistencies between its narrow interpretation of the term "discharge" in the context of NPDES permits and its contrastingly broad interpretation of that same term in the context of dredge and fill permits. EPA could certainly resolve these inconsistencies by promulgating a rule that adopts the narrower definition of the term "discharge" in all contexts. (158) Following this approach, activities that result in the fallback of dredged material into a navigable water would not create a discharge, since no material would then be added from the outside world. Although this would increase the degree of consistency between the two permit provisions, it would also undermine the purposes of the CWA--dredging wetlands with the express purpose of destroying their biological integrity would no longer be regulable. An activity would not be regulable if the dredged or fill material being deposited was originally present in the dredged water body, but would be regulable if material from the shores of that water body was added to the water for the first time. Parsing the language of the statute in this manner would completely fail to meet the purposes of the CWA by exempting activities that significantly degrade the quality of navigable waters and may in some cases result in the complete drainage of those waters from a wetland area. The courts nonetheless seem poised to move in this direction. EPA itself limited the reach of section 404's jurisdiction following National Mining, (159) as have a number of recent cases. (160) For example, in Borden Ranch Partnership v. United States Army Corps of Engineers, (161) the court split over the issue of whether deep ripping caused a discharge regulable under section 404 of the CWA (162)--in his dissent, Circuit Judge Gould argued that the court should follow and extend National Mining to hold that returning soft following plowing to the place from which it had come does not constitute a discharge. (163) In addition, in Catskill Mountains, the court suggested that a de minimis amount of material that was removed but redeposited from the same body of water from which it had come would not constitute a discharge. (164) These views on what activities constitute a discharge indicate that the courts are limiting EPA's authority to regulate discharges in the section 404 context. In order to best realize the goals of the CWA, however, EPA should instead promulgate a rule that defines the term "discharge" for purposes of NPDES permits similarly to the way in which the term is defined for purposes of section 404, making regulable all activities that cause a material's transformation from a nonpollutant into pollutant. This rule will have to be specific enough to clearly delineate the circumstances in which a discharge of polluted water from dams will constitute a regulable discharge under section 402's NPDES permit provision even without the addition of material from the outside world. The next section of this Comment outlines a broad framework for such a rule. B. Proposed Rule In 1993, EPA promulgated a regulation interpreting the term "discharge" for purposes of section 404 dredge and fill permitting. This rule, commonly known as the Talloch Rule, established that the term "discharge" should be interpreted broadly; (165) it codified the idea that all discharges of dredged and fill material should be subject to section 404 permitting requirements and removed the exception from regulation for de minimis discharges. (166) Under the Tulloch Rule, even incidental fallback was subject to permitting requirements. (167) In promulgating such a rule interpreting section 402's NPDES permit provision, EPA should start with a similar presumption--that all discharges of polluted water from dams require an NPDES permit. But EPA's section 402 regulation will also need to be tailored narrowly enough to withstand judicial scrutiny. In National Mining, the D.C. Circuit invalidated the Tulloch Rule as overly broad. (168) EPA's recent regulations now exclude "incidental fallback" from the scope of the dredge and fill permit program; (169) these regulations define the term "incidental fallback" to mean the "redeposit of small volumes of dredged material incidental to excavation activities" that "return[s] dredged material to 'substantially the same place' from which it came." (170) These regulations draw the line between regulable and nonregulable discharges of pollutants as follows: [D]ischarge of dredged material includes:.., any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States. The term includes, but is not limited to, the following: (i) The addition of dredged material to a specified discharge site located in waters of the United States; (ii) The runoff or overflow from a contained land or water disposal area; and (iii) Any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation. (171) The notion of redeposit therefore excludes those situations in which a landowner, for instance, intends to remove dredged material from the navigable waters entirely, but actually removes only a majority of those materials. (172) A formal interpretation of the scope of section 402 should similarly define the term "discharge" to clearly indicate which releases of polluted water from dams would--and would not--be subject to such requirements. If EPA promulgates such a rule through notice-and-comment procedures under the Administrative Procedure Act, (173) this rule would be eligible for Chevron deference even under the stricter standards elucidated in Mead and Christensen. (174) Because courts seem to be analyzing EPA's interpretation of the term "discharge" as a "step two" Chevron issue, (175) courts would afford EPA's interpretation deference ff they determine that it is a reasonable construction of the statute. Courts have upheld section 404's interpretive regulations as reasonable under step two of the Chevron doctrine, so parallel regulations under section 402 should be reasonable by analogy. The added consistency between the two permit provisions only strengthens the argument that the proposed rule is a reasonable interpretation of the CWA--essentially, the interpretation set forth in this regulation would be reasonable for the same reasons that the agency's current interpretation is not. VII. IMPLICATIONS OF REQUIRING NPDES PERMITS FOR DAM DISCHARGES A. Scope of Effects The scope of the modification proposed in this Comment is fairly limited. This Comment advocates promulgating a rule to expand the definition of the phrase "discharge of any pollutant" to incorporate those circumstances in which no material is added from the outside world but the activity nonetheless transforms a nonpollutant into a pollutant. In the specific context of releases of polluted water from dams, this broadened definition would regulate only those circumstances in which the presence of the dam has concentrated pollutants in the water temporarily retained in the reservoir. And, just as in the context of section 404 dredge and fill permits, certain discharges would also be exempt from permitting requirements if they added pollutants in only a de minimis amount. In addition, dam retirement activities (176) could continue to take place without the need for an NPDES permit. 1. Limited to Situations in Which Pollutant Levels Increase Currently, case law interpreting section 402 only requires dam operators to obtain NPDES permits in those instances in which a pollutant is added to the water from the outside world. Under the rule proposed in this Comment, NPDES permits would be required in those instances in which the water released from the dam has become more polluted due to the water's retention in the dam reservoir. In the context of releases of sediment-laden water, a dam draw-down would likely require an NPDES permit only when the draw-down is significant--for instance, if the dam reservoir drops over 20 feet in height. (177) In the context of dissolved metals, this would only apply ff the dam reservoir actually increased the concentration of dissolved metals in the discharged water. (178) A dam would remain exempt from NPDES permitting requirements if the dam did not cause a transformation of materials within the reservoir water--i.e., an increase in the concentration of sediments or pollutants. In addition, a dam would remain exempt from regulation in circumstances similar to those exempt in the context of section 404 dredge and fill permits. As under the post-Tulloch Rule regulations, this refined definition of the term "discharge" would not regulate those activities in which someone intended to remove polluted water from a dam reservoir or impoundment and some water incidentally fell back into the reservoir. (179) This definition would regulate, however, those situations in which a large volume of water accumulates sediments and other pollutants and is released downstream or is piped into another water body; it would also regulate situations where a nonpollutant material was otherwise transformed into a pollutant by a dam's activities. (180) Significantly, the activities held to be outside of NPDES jurisdiction in Gorsuch Hand Consumers Power (181) would be regulable under this expanded definition. 2. No Effect on Dam Retirement Activities Undertaken in Environmental Conservation Efforts In recent years, there has been a scientific and public outcry to breach a number of dams across the United States in order to return dammed rivers to their natural states. (182) Proponents of dam breaching see removal activities as restorative and as progress toward rehabilitation of downstream ecosystems, (183) notwithstanding the fact that those dam removal activities may release the same pollutants as would a dam draw-down or routine release of water. (184) Currently, parties wishing to undertake dam removal activities need not obtain an NPDES permit. (185) One initial concern with the argument advanced in this Comment is that dam breaching activities could also be subject to such requirements. Fortunately for advocates of dam breaching, the Seventh Circuit indicated in Froebel v. Meyer (186) that dam breaching efforts are not bound by NPDES permit requirements because sediments released during a dam breach could not be considered pollutants released "from a point source." (187) In cases that have concluded that a dam is a point source, the court has focused on spillways, pipes, valves, and other specific outlets from the dam itself. (188) In Froebel, however, the court refused to subject dam removal activities to NPDES permit requirements, noting that following dam removal the dam "is mostly gone, and the supposed 'point source' is really nothing more than the hole through which the Oconomowoc River now flows unrestrained." (189) The court flatly rejected the plaintiffs theory that the former dam impoundment and a portion of the river channel can constitute a point source simply because there used to be an artificial structure at that location. (190) Under Froebel, it thus does not seem likely that courts will subject dam retirement activities to NPDES permitting requirements under this modified reading of the phrase "discharge of any pollutant." However, if future courts reverse this holding and determine that dam removal does create a point source (e.g., the new riverbed or ditch by which the river flows around the dam structure), these activities would also require an NPDES permit in order to avoid violating the CWA. B. Desirability of Result The benefits of expanding EPA's interpretation of the term "addition" in NPDES permits to include discharges of polluted water from dams significantly outweigh the disadvantages of this proposal. Not only will assimilating EPA's interpretations in the two permit contexts increase consistency in the CWA and make undertaking activities in navigable waters more predictable, it will better achieve the purposes of the CWA. (191) In addition, the possible increased burden on EPA should be too insignificant to preclude adoption of such a regulation; with a limited increase in the number of activities that would be regulable, administration of the permit program should remain feasible. (192) 1. More Consistency in EPA's Interpretation Applying EPA's interpretation of the term "discharge" from the dredge and fill context and abandoning EPA's conclusion that dams should not be subject to NPDES requirements will increase the consistency in EPA's implementation of the CWA. At least one court has started down this road: in Greenfield Mills I, the Northern District of Indiana reviewed EPA's broader interpretation of the term "discharge" from section 404's dredge and fill permit provision and applied it to the question of whether a dam draw-down that released sediment into downstream waters should have been subject to NPDES permitting requirements. (193) Significantly, the Greenfield Mills I court recognized that the term "addition" as defined in dredge and fill permit cases, which does not require an addition of a material from the outside world, could be relevant to determining the scope of NPDES permitting requirements. Following this reasoning to its natural conclusion, however, was untenable for the court--while the terms of the NPDES permit provision appeared to require a NPDES permit for the activity in question, this result was contrary to EPA's long-standing conclusion that discharges of polluted water from dams are exempt from such requirements. The court then went to great lengths to give effect to this conclusion; in refusing to find an addition of a pollutant, (194) the court reasoned that the plaintiffs' claim did not show any "active removal or excavation" or a "redeposit" into the Fawn River. (195) The court wrongfully focused on the element of the dam operator's intent, noting that "any 'churning' or movement of the soil or sediment in this case was entirely incidental to a maintenance activity that had no purpose of excavating and redepositing soil downstream." (196) On appeal to the Seventh Circuit, the court reversed this holding in part, criticizing the district court's consideration of the dam operator's intent. (197) While the final resolution of this case remains to be seen, (198) it nonetheless illustrates the difficulties courts will continue to have with this currently unresolved area of law. By applying the broader definition of the term "discharge" from section 404 to an NPDES permit issue, the district court in Greenfield Mills I could have concluded that the release in question was a discharge and was thus regulable under the CWA. But, in attempting to increase consistency between the two permit provisions without ruling contrary to EPA's conclusion that dams are exempt from such regulation, the court did little more than unnecessarily complicate the inquiry and frustrate progress toward realization of the broad goals of the CWA. Synthesizing these two vastly different interpretations in a manner that will entitle EPA's interpretation to deference could prevent such internally inconsistent holdings and would give dam operators, landowners, and other potential dischargers a clearer understanding of the standards to which they would be subject. 2. Better Realization of Goals and Policies of Clean Water Act Subjecting releases of polluted water from dams to the NPDES permitting requirements could also better promote the goals underlying the CWA. In Gorsuch I the court noted that, because "the CWA cannot achieve its goals without attacking all pollution sources, dams cannot simply be ignored." (199) EPA's contrary position is that this multitude of problems can be adequately addressed by regulating point source and nonpoint source pollution upstream from the dam, and by relying on other laws at the federal and state level. (200) But the NPDES permit program has been described by courts as the "cornerstone of the [CWA]'s pollution control scheme." (201) Not only does an NPDES permit impose effluent limitations on all discharges under its jurisdiction, (202) but permits may also require permit holders to achieve other, more stringent limitations, including those necessary to meet water quality standards. (203) While NPDES permits may not be able to curb pollution entirely, these permits have nonetheless been shown to have positive environmental effects. As the Ninth Circuit has noted, the CWA "deals with the unfortunate inevitability of pollution, and shifts costs from third parties to polluters, by allowing pollution only pursuant to a permit." (204) Subjecting releases of polluted water from dams to NPDES permit requirements will therefore best promote the basic purpose of the CWA. 3. Few Administrative Difficulties from Increased Number of Permit Applications Professor Mike Blumm and Bill Warnock suggest that EPA's longstanding refusal to subject dams to NPDES permits stems in large part from the Agency's fear that including dams in the permit program would bog down the Agency's ability to effectively administer and enforce permits. (205) They claim that in the EPA's refusal to subject discharges of water from dams to the NPDES permit program, "[t]here is a pattern here that has nothing to do with clean water and everything to do with administrative and/or political convenience. It simply has been more convenient for EPA." (206) However, the Gosurch II court noted that the district court record showed most dam-related water quality problems are caused by large hydroelectric dams. (207) If the permitting requirements were imposed only on those large dams, EPA would probably only have to issue an additional 50,000 permits. (208) In addition, it is quite possible that only the approximately 3,000 dams that are large enough to generate a significant amount of hydroelectric power Coy releasing large volumes of reservoir water at once) will require such regulation. (209) This increase of 3,000 permit applications for dams would certainly be manageable. (210) VIII. CONCLUSION EPA has a number of different options to pursue, which range from doing nothing to broadly expanding or narrowly limiting its varying interpretations of the term "discharge." Given the blatant inconsistencies in the interpretations of the term in two separate provisions of the same Act, EPA may find it advisable to promulgate a rule that helps resolve these inconsistencies. Because one means of increasing the consistency between the permit provisions would undermine the purposes of the CWA, (211) EPA should formally adopt a definition of the term "discharge" for purposes of section 402 NPDES permits that closely mirrors the way in which EPA has interpreted the term in section 404. Expanding the definition of the phrase "discharge of any pollutant" will certainly present the courts with other questions, such as how to determine the number of violations for the sake of penalty calculations. But the existing inconsistency in EPA's differing interpretations only serves to confuse courts and permit applicants alike. Redefining the term "discharge" for purposes of section 402 by incorporating EPA's broader definition from the section 404 context to regulate those circumstances in which a material is transformed from a nonpollutant into a pollutant will increase both the consistency and the effectiveness of the CWA. It is time for a change, and the courts should not allow EPA to cling to its conclusion--formulated over 20 years ago--that dam-induced pollution is exempt from NPDES permitting requirements. EPA's interpretation requiring an addition from the outside world is no longer persuasive in light of the clarified standards of deference due to EPA's interpretation and the considerable case law broadly interpreting the term "discharge" in the dredge and fill permit context. As manufacturer and electrical engineer Charles F. Kettering noted even before the passage of the CWA, "[t]he world hates change, yet it is the only thing that has brought progress." (212) The courts have made considerable progress in defining the scope of deference due EPA, but they will do the CWA a serious injustice if they continue to afford deference to EPA's narrow interpretation of the term "discharge" in the NPDES permit context. (1) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000). (2) Id. [section] 1251(a). (3) Id [section] 1311(a); see also infra Part III. (4) See Nat'l Wildlife Fed'n v. Gorsuch (Gorsuch II), 693 F.2d 156, 183 (D.C. Cir. 1982) (upholding EPA's position that releases of water from dams are exempt from NPDES permit requirements); see also infra Part IV.A. (5) See JOHN D. ECHEVERRIA ET AL., RIVERS AT RISK: THE CONCERNED CITIZEN'S GUIDE TO HYDROPOWER 5 (1989) ("Depending on the size, composition, and timing of unexpected loads, the eroded sediments threaten to block fish gills, fill up spawning sites, and smother live food."); see also infra notes 31-32 and accompanying text. (6) See infra note 32 and accompanying text. (7) See infra Part II. Other authors have also criticized EPA's failure to regulate dam-induced pollution. See Michael C. Blumm & William Warnock, Roads Not Taken: EPA vs. Clean Water, 33 ENVTL. L. 79, 83 (2003) (noting that, in many cases, EPA construed the definition of the term "point source" narrowly "to eliminate dam-caused pollution from effective regulation"); Timothy E. Britain, Dam-Induced Pollution is not Within the Ambit of NPDES Permit Program, 7 SUFFOLK TRAYSNAT'L L.J. 513, 535-36 (1983) ("Allowing dam pollution to remain unchecked while regulating industrial discharges seems an anomaly that may frustrate the eventual goal."); Cheri Y. Cornell, Note, The Clean Water Act: When Dumping Dead Fish is Not the Discharge of Pollutant National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), 64 WASH. L. REV. 913, 932 (1989) (noting that EPA's decision to interpret the term "addition" in a way that omits dam-induced pollution from coverage under the NPDES permit program "reflects a naive understanding of environmental problems and unnecessarily limits [the CWA] as an effective weapon in the water pollution battle"). (8) Nat'l Wildlife Fed'n v. Gorsuch (Gorsuch I), 530 F. Supp. 1291, 1296 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). For example, EPA can address nonpoint source pollution through section 208 of the CWA, which provides that the Administrator must identify those areas that have substantial water quality problems and must develop effective area-wide waste treatment management plans for each area. 33 U.S.C. [section] 1288 (2000). (9) Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency, 822 F.2d 104, 108 (D.C. Cir. 1987). (10) See infra Part VII.B.2. (11) 33 U.S.C. [section] 1362(12) (2000). (12) Gorsuch II, 693 F.2d 156, 165 (D.C. Cir. 1982); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York (Catskill Mountains), 273 F.3d 481, 490 n.1 (2d Cir. 2001) ("The original documents in which the EPA staked out its position were not included in the filings before this court and were not published in the usual sources of administrative law, the Code of Federal Regulations and the Federal Register. We accordingly base our discussion of the EPA's position on that included in the District of Columbia Circuit's comprehensive opinion in Gorsuch."). This Comment does the same. See infra Part IV.A; infra notes 123-135 and accompanying text. (13) See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. (Chevron), 467 U.S. 837, 84243 (1984) (establishing a two-part test for deference); see also Gorsuch II 693 F.2d at 168 (according deference to EPA's construction of section 402); infra Part V.A. (14) 33 U.S.C. [section] 1344(a) (2000). (15) See infra Part IV.B. (16) 33 C.F.R. [section] 323.2(d)(1) (2004). (17) See, e.g., United States v. Deaton, 209 F.3d 331, 335-36 (4th Cir. 2000) (definition of the term "discharge" includes sidecasting even though sidecasting results in no net increase in the amount of material present in the wetland at issue); see also infra Part IV.B. (18) See, e.g., Rybachek v. United States Envtl. Prot. Agency, 904 F.2d 1276, 1285 (9th Cir. 1990) (arguing that definition of the term "discharge" includes placer mining); Deaton, 209 F.3d 331, 337 (4th Cir. 2000) (arguing that definition of the term "discharge" includes sidecasting); Borden Ranch P'ship v. United States Army Corps of Eng'rs (Borden Ranch), 261 F.3d 810, 815 (9th Cir. 2001) (arguing that definition of the term "discharge" includes deep ripping), aff'd, 537 U.S. 99 (2002). (19) 467 U.S. 837 (1984). (20) Id. at 843-44 (establishing a two-part test for deference). (21) See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (discussing deference due informal agency interpretations); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (discussing deference due informal agency interpretations); see also infra notes 137-38 and accompanying text. (22) Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). (23) See Gorsuch II, 693 F.2d 156, 167 n.31 (D.C. Cir. 1982) (noting that "[b]oth consistency and contemporaneous construction increase the amount of deference ... given to an agency's interpretation"); see also infra note 140 and accompanying text. See generally infra Part V.B. (24) 33 U.S.C. [section] 1251(a) (2000). (25) See infra Part V. (26) See infra Part VI. (27) Cheri Y. Cornell has also advocated that NPDES permits incorporate this broader definition of the phrase "discharge of a pollutant." See Cornell, supra note 7, at 920-33 (criticizing the court's ruling in National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), that there was no discharge of a pollutant when dead fish parts were released from a pumped storage plant facility into Lake Michigan). Ms. Corneli argued that EPA's definition of the term "addition," one of the necessary elements in finding a discharge, is unreasonable for two reasons: First, EPA's definition undermined the purposes of the CWA by ignoring the environmental effects of the activity under review; and second, EPA's definition conflicts with the CWA's broad definition of the term "pollutant." Id. at 924. While Ms. Cornell's arguments continue to be valid, the Supreme Court's recent cases clarifying the level of deference due EPA present a different, more contemporary argument for adopting this broader interpretation. (28) Gorsuch II, 693 F.2d at 165 n.22. (29) Id. (30) This Comment focuses on the effects of sediment transport and accumulation of dissolved metals. Although EPA does not dispute that heat, sediments, and dissolved metals are pollutants for purposes of the CWA and would thus be subject to permitting requirements ff an activity added them to navigable waters from a point source, the agency nonetheless has expressed the position that low dissolved oxygen, cold, and supersaturation are not pollutants for these purposes. Gorsuch I, 530 F. Supp. 1291, 1303 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). This Comment therefore does not detail the adverse effects of these disputed dam-induced water quality issues. (31) Gorsuch I, 530 F. Supp. at 1300; see also Gorsuch II, 693 F.2d at 163-64 (describing large reservoirs as "sediment traps"). (32) L.W. CANTER ET AL., AN ASSESSMENT OF PROBLEMS ASSOCIATED WITH EVALUATING THE PHYSICAL, CHEMICAL AND BIOLOGICAL IMPACTS OF DISCHARGING FILL MATERIAL 51 tbl.7 (1977); see also Michael Anton Proett, Cumulative Impacts of HydroelecttT"e Development: Beyond the Cluster Impact Assessment Procedure, 11 HARV. ENVTL. L. REV. 77, 86-87 (1987) (listing the effects that hydroelectric dams can have on water quality and noting the effect on the habitat required for anadromous fish spawning and reproduction as one of the ten most significant effects). (33) Id. Butsee Gorsuch II, 693 F.2d at 183 (noting that "sediment releases appear to be minor problems"). (34) U.S. ARMY CORPS OF ENG'RS, ENGINEERING AND DESIGN HYDROLOGIC ENGINEERING REQUIREMENTS FOR RESERVOIRS 9-5 (Oct. 31, 1997) ("Due to a high adsorption capacity, sediments act as sinks for contaminants in the reservoirs and, in agricultural and industrial areas, may contain PCB[s], chlorinated hydrocarbon pesticides, oil and grease, heavy metals, coliform bacteria, or mutagenic substances.") [hereinafter ENGINEERING AND DESIGN], http://www.usace.army.mil/inet/usace-docs /eng-manuals/em1110_2.1420/c_9.pdf. (35) See Deaton, 209 F.3d 331, 336 (4th Cir. 2000) (noting that when sediments are resuspended, one potential effect is the "bio-availability of toxic chemicals such as oil and grease, pesticides, arsenic, and heavy metals") (citing OFFICE OF TECH. ASSESSMENT, U.S. CONG., WETLANDS: THEIR USE AND REGULATION 124 (1984)). (36) ENGINEERING AND DESIGN, supra note 34, at 9-3. Bioaccumulation, bioconcentration, and biomagnification all refer to the process by which certain highly persistent chemicals, including certain pesticides and other synthetic organics, concentrate in aquatic organisms through the food chain as these organisms ingest a significant number of smaller organisms containing these materials. The effects of bioaccumulation can be transmitted to humans when humans consume these contaminated organisms. CANTER ET AL., supra note 32, at 52 tbl. 7. (37) Gorsuch I, 530 F. Supp. at 1291, 1299 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). (38) Id. (39) Id. (40) RICHARD L. OTTINGER ET AL., ENVIRONMENTAL COSTS OF ELECTRICITY 406 (1990). These increased concentrations are "toxic to aquatic life and affect water quality." Id. A broader, less deferential definition of the term "pollutant" may also require EPA to incorporate into the NPDES permit program activities discharging water with increased concentrations of these materials. (41) See CANTER ET AL., supra note 32, at 53 tbl. 7 (noting the toxicity of dissolved solids and heaving metals); Gorsuch I, 530 F. Supp. at 1299 (noting the need for additional treatment). But see id. (noting that some dam reservoirs may decrease the concentration of dissolved metals in discharged water due to the trapping efficiency of those reservoirs). (42) Gorsuch I, 530 F. Supp. at 1303. (43) 33 U.S.C. [section] 1251(a) (2000). (44) Id. [section] 1311(a) establishes that "[e]xcept as in compliance with this section and sections ... 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." CWA section 402, the NPDES permit provision, appears at id. [section] 1342, and CWA section 404, the dredge and fill permit provision, appears at id. [section] 1344. (45) Id. [section] 1251(a)(1). (46) 693 F.2d 156 (D.C. Cir. 1982). (47) Id. at 178. (48) Id. (49) 33 U.S.C. [section] 1342(a)(1) (2000). (50) Id. [section] 1344(a). (51) See infra Part IV. (52) See 33 U.S.C. [section] 1311(a) (2000) (making unlawful any discharge made "[e]xcept as in compliance with ... [sections] 1342, and 1344 of this title"). (53) Id. [section] 1362(12). (54) See Cornell, supra note 7 (describing a four-part test); see also Gorsuch II, 693 F.2d 156, 164-65 (D.C. Cir. 1982) (describing a five-part test, in which "from" and "a point source" are two distinct elements). (55) See infra Part IV.A. (56) See supra note 54 and accompanying text. (57) CWA section 502(6) defines the terra "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste." 33 U.S.C. [section] 1362(6) (2000). (58) See id. (59) See Go, such II, 693 F.2d at 174 n.56 (explaining that EPA "admits that 'sediment' is a pollutant, although not clearly listed"); Catskill Mountains, 273 F.3d 481, 492 (2d Cir. 2001) (finding an addition of a pollutant when water and suspended sediment passed through a tunnel and into a creek). (60) See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir. 2000) (remanding for a determination of whether Gaston Copper discharged pollutants in excess of its permit levels; Gaston Copper's permit allowed the discharge of wastewater containing limited quantities of pollutants, including cadmium, copper, iron, lead, mercury, nickel, PCB, and zinc); see also supra note 30 and accompanying text. (61) See supra note 54 and accompanying text. (62) 33 U.S.C. [section] 1362(7) (2000). (63) See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985) (holding that "navigable waters" includes wetlands adjacent to navigable waters because of the "evident breadth of congressional concern for protection of water quality and aquatic ecosystems"); Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 964 (7th Cir. 1994) (noting that the CWA is a "broad statute" and therefore intended to cover waters that are not actually navigable). But see Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs (SWANCC), 531 U.S. 159 (2001) (invalidating the Migratory Bird rule and thus limiting this jurisdiction). In defining the term in this manner, courts essentially allowed the CWA to cover U.S. waters to the maximum extent permissible under the Commerce Clause. Natural Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975). (64) See supra note 54 and accompanying text. (65) 33 U.S.C. [section] 1362(14) (2000). (66) See Conun. to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993) (holding that the spillways and valves of the dam and reservoir are point sources); Gorsuch II, 693 F.2d 156, 165 n.22 (D.C. Cir. 1982) (holding that pipes and spillways of a dam are point sources). (67) Note that some commentators argue instead that Gorsuch II failed to subject releases of polluted water from dam activities to NPDES permitting requirements because EPA "construe[d] narrowly the scope of point sources to eliminate dam-caused pollution from effective regulation." Blumm & Warnock, supra note 7, at 83. This Comment, however, focuses on the "addition" element because the majority of subsequent cases that have refused to subject dam discharges to NPDES permitting requirements have done so by finding no addition, not by finding that the dam or structure in question was not a point source. See infra Part IV.A. (68) 33 U.S.C. [section] 1344(a) (2000). (69) See, e.g., Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 529-32 (W.D. La. 1979) (bifurcating the "jurisdictional issue" of which areas of the tract were wetlands regulable as navigable waters from the "activities issue" of whether plowing, discing, or raking caused a discharge of dredged or fill material, and separately considering whether scraped soil and leaf litter constituted dredged or fill material and whether a conveyance of that material from one area of the wetland to another constituted a discharge). (70) See supra note 69 and accompanying text. (71) See infra Part IV.B. (72) See supra note 69 and accompanying text. (73) 33 C.F.R. [section] 323.2(c) (2004). Although sediments can also be considered dredged material, this Comment argues that EPA's definition of the term "discharge" should he broadened to subject discharges of sediment-laden material to NPDES permitting requirements rather than section 404 dredge and fill permitting requirements, because subjecting such discharges to section 404 requirements would allow other additions of pollutants, including dissolved metals, to continue to escape regulation through the permit process. (74) See supra notes 54, 62-63 and accompanying text. (75) See generally infra Parts IV.A, IV.B. (76) See infra Part IV.A. (77) See infra Part IV.B. (78) 33 U.S.C. [section] 1311(a) (2000). (79) Id. [section] 1362(12). (80) See supra note 12 and accompanying text. (81) This interpretation ignores the evidence that dams do in fact cause changes in the water quality. See supra note 30 and accompanying text; see generally supra Part II. (82) 530 F. Supp. 1291 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). (83) Gorsuch II, 693 F.2d at 165-66. (84) Id. at 165 n.22 (citation omitted). (85) In Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991), cert. granted in part, 502 U.S. 1071 (1992), and rev'd in part, 505 U.S. 557 (1992), the Second Circuit rejected the city's argument that this is the only context in which an addition could occur, noting that "pollutants would [therefore] be 'added' only when they are introduced into navigable waters for the first time." Id. at 1354. Although the Second Circuit relied almost exclusively on the vague principle that the term "point source" should be interpreted as broadly as possible, see id. at 1354-55, its holding has been clearly affirmed by subsequent case law: Given the ordinary meaning of the CWA's text and our holding in Dague, we cannot accept the Gorsuch and Consumers Power courts' understanding of 'addition,' at least insofar as it implies acceptance of what the Dubois court called a 'singular entity' theory of navigable waters, in which an addition to one water body is deemed an addition to all of the waters of the United States. We properly rejected that approach in Dague. Catskill Mountains, 273 F.3d 481, 493 (2d Cir. 2001); see also infra notes 89-96 and accompanying text for additional discussion regarding the "singular entity" theory, also termed the "unitary waters" theory. (86) 615 F.2d 794 (9th Cir. 1980). (87) See id. at 802 (assuming that byproducts from fish processing plant were pollutants and discussing applicable effluent limitations to control their discharge). (88) Compare id. (holding that there was a discharge when byproducts from fish processing were released into the water), with Consumers Power, 862 F.2d 580, 581 (6th Cir. 1988) (holding that there was no discharge when a hydroelectric dam released dead fish that had been killed by the dam's turbines). EPA's interpretation thus treats these two scenarios differently even though they have an identical effect--dead fish are present downstream from the point source in both cases and would not be present but for the activity at issue, but only one of the activities causing these effects is regulable. (89) Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1299 (1st Cir. 1996); see also supra notes 87-88 and accompanying text. (90) 280 F.3d 1364 (11th Cir. 2002), vacated, 124 S. Ct. 1537 (2004). (91) Id. at 1368-69. See also Catskill Mountains, 273 F.3d 481, 492-93 (2nd Cir. 2001) (finding an addition sufficient to constitute a discharge when polluted water from a reservoir was diverted through a tunnel into a stream, but limiting the scope of this interpretation to exclude de minimis fallback); Dubois, 102 F.3d at 1296-99 (finding an addition sufficient to constitute a discharge when a ski resort operator on federal land pumped water from a polluted river into a less-polluted pond in order to operate its snowmaking equipment). (92) S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians of Fla. (Miccosukee), 124 S. Ct. 1537 (2004), vacating 539 U.S. 957 (2003). (93) Id. at 1543-44. (94) Id. at 1545. Regardless of the way in which this case is resolved on remand, the jurisdictional requirements for regulation under sections 402 and 404 of the CWA will continue to differ--two "meaningfully distinct" water bodies are not required for section 404 dredge and fill permits. See infra Part IV.B. (95) See, e.g., Dubois, 102 F.3d at 1296-99 (finding an addition when polluted water was transferred from one water body to another); see also supranote 89 and accompanying text. (96) See infra Part W.B. (97) See 33 C.F.R. [section] 323.2(d)(1) (2000) (defining the phrase "discharge of dredged material" as "any addition of dredged material into, including redeposit of dredged material other than incidental fallback within, the waters of the United States"). (98) See, e.g., Deaton, 209 F.3d 331, 337 (4th Cir. 2000) (holding that the definition of the term "discharge" includes sidecasting); Borden Ranch, 261 F.3d 810, 815 (9th Cir. 2001) (holding that the definition of the term "discharge" includes deep ripping), aff'd, 537 U.S. 99 (2002); Rybachek, 904 F.2d 1276, 1285 (9th Cir. 1990) (holding that the definition of the term "discharge" includes placer mining). (99) Sidecasting is a practice common to ditch-digging or channeling activities, in which the dirt excavated dirt during digging is piled on either side of the newly formed ditch. See Deaton, 209 F.3d at 333. Deep ripping is an activity in which a bulldozer or tractor drags four- to seven-foot metal prongs through the soil behind it which gouge through the soil and "disgorge" soil that can then also be dragged along behind the "ripper." See Borden Ranch, 261 F.3d at 812. The Ninth Circuit has observed that deep ripping "essentially poke[s] a hole in the bottom of protected wetlands" through the restrictive clay or soil layer and allows any standing water to drain out through that hole. Id. at 815. Placer mining is a method of mining metal ores from deposits of loose gravel, sand, or soil. These sediments are run through a sluicing process, which essentially runs water through the sediments and forces the heavier metals to settle out to the bottom and leaves the sediment particles suspended in the water. The water, which contains higher concentrations of suspended toxic metals after the sluicing process, is then released hack into the stream. See Rybachek, 904 F.2d at 1282 (providing background information on the sluicing process). (100) 209 F.3d 331 (4th Cir. 2000). (101) Id. at 335. (102) Id. (103) 145 F.3d 1399 (D.C. Cir. 1998). (104) Id. at 1405 (assuming that a dredge and fill permit is required for activities that create fallback). (105) National Mining limited the reach of EPA's broad interpretation of addition to exclude "the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back." Id. at 1404; see also infra notes 168-72 and accompanying text. (106) See Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983) (interpreting the term "addition" to include "redeposit" of trees and vegetation that had been dredged from or excavated from the wetland itself); see also Deaton, 209 F.3d at 335-36 (noting that "once [the] material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before"). (107) National Mining, 145 F.3d at 1410 (Silberman, J., concurring). (108) 772 F.2d 1501 (11th Cir. 1985). (109) Id. at 1503. (110) Id. at 1503-04 (describing bottom scarring and other damage done to bottom sediments and vegetation). (111) Several Ninth Circuit cases also support this concept of transformation. See Borden Ranch, 261 F.3d 810, 815 (9th Cir. 2001) (finding an addition of dredged and fill material when materials below the soft surface and under a body of standing water were pulled up to the soil surface during deep ripping; the court gave no indication that the dredged soft broke the surface of the standing water but nonetheless found that the dredged material was redeposited), aft 'd, 537 U.S. 99 (2002); Rybachek, 904 F.2d 1276, 1282, 1285 (9th Cir. 1990) (finding an addition when wastewater from placer mining was released back into a body of water; the court noted that "[p]lacer mining typically is conducted directly in streambeds or on adjacent property"); see also United States v. Sinclair Oil Co., 767 F. Supp. 200, 204-05 (D. Mont. 1990) (finding an addition when riverbed materials were rearranged within the riverbed to cut off high water channels, protect riverbanks from accelerated erosion, and maintain the river channel). (112) See M.C.C., 772 F.2d at 1506 (reasoning that the term "discharge" includes redeposit, and holding without further explanation that the dredging caused by the tug's propellers caused a redeposit). (113) Envtl. Prot. Agency v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 83 (1980) (quoting Udall v. Tallman, 380 U.S. 1, 16 (1965)). (114) 693 F.2d 156, 161 (D.C. Cir. 1982). (115) See Mead, 533 U.S. 218, 226-27 (2001) (discussing deference due informal agency interpretations); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (discussing deference due informal agency interpretations); see also infra notes 126-33. (116) 467 u.s. 837, 842-43 (1984). (117) Id. at 843. (118) Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). (119) Bailey v. United States, 516 U.S. 137, 145 (1995). (120) Robinson, 519 U.S. at 341-42. (121) Chevron, 467 U.S. at 842-43. (122) Id. at 843. (123) Gorsuch II, 693 F.2d 156, 167 (D.C. Cir. 1982); see also, e.g., Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 656 F.2d 768, 774 (D.C. Cir. 1981) (explaining that "[w]here the issue presented involves questions of scientific expertise" and the agency's interpretation is not "contrary to law," the court defers to that interpretation). (124) Chevron, 467 U.S. at 843 n.11. (125) See id. at 843 (establishing these standards); see also Consumers Power, 862 F.2d 580, 584 (6th Cir. 1988) (citing principles of Chevron deference, then proceeding to step two, which asks whether an agency's interpretation of an ambiguous statute is a reasonable construction of that statute; the CWA's ambiguity is assumed by the court); Gorsuch II, 693 F.2d at 175 ("In our view, the language of the statute permits either construction."). Although the court decision in Gorsuch II was handed down two years prior to Chevron, the Second Circuit has noted that the Gorsuch II court "applied essentially the same degree of deference" outlined in Chevron. Catskill Mountains, 273 F.3d 481, 491 n.2 (2nd Cir. 2001). Compare Catskill Mountains with Consumers Power, which held that the phrase "discharge of any pollutant" was not ambiguous because the clear language of the statute supported the plaintiffs interpretation that a diversion of polluted water from one distinct navigable water to another, less polluted water was an addition. Consumers Power, 862 F.2d at 584. (126) See Christensen, 529 U.S. 576, 587 (2000) (holding that interpretations in opinion letters do not merit Chevron deference); Mead, 533 U.S. 218, 226-27 (2001) (declaring that Chevron deference extends to interpretations exercised under Congress's delegation of authority). (127) 529 U.S. at 587. (128) 533 U.S. at 226-27. (129) Id. at 231-32. (130) 693 F.2d 156, 166-67 (D.C. Cir. 1982). (131) See Catskill Mountains, 273 F.3d 481, 489 (2nd Cir. 2001) (describing the source of EPA's interpretation as "policy statements made in opinion letters and reports to Congress in the 1970s and 1980s"); see also supra note 12 and accompanying text. (132) See supra notes 128-29 and accompanying text. (133) 273 F.3d at 491; see also id. ("Like the position taken by the Department of Labor in its opinion letter in Christensen, the EPA position on dam discharges has never been articulated in circumstances that would give it the 'force of law.'"); John H. Paul, The Second Circuit Clears the Murk of Gorsuch and Consumers Power from the Esopus Creek, 20 PACE ENVTL. L. REV. 841, 867 (2003) ("Christensen and Mead strongly suggested that the deference accorded in those cases to EPA's informally adopted interpretation was improper; Catskill explicitly stated this to be so."). (134) 323 U.S. 134 (1944). (135) Id. at 140. (136) See Gorsuch II, 693 F.2d 156, 167 n.31 (D.C. Cir. 1982) (noting that consistency increases the amount of deference to be given to an agency's interpretation); see also Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978) (noting that consistency and contemporaneous construction increase deference); Fed. Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (noting that consistency increases deference). (137) Gorsuch II, 693 F.2d at 167 (noting that "EPA's construction was made contemporaneously with the passage of [the CWA], and has been consistently adhered to since."). (138) Skidmore, 323 U.S. at 140. (139) See supra note 12 and accompanying text. (140) First City Bank v. Nat'l Credit Union Admin. Bd., 111 F.3d 433, 438-39 (6th Cir. 1997); Comm'r v. Keystone Consul. Indus., Inc., 508 U.S. 152, 159 (1993). (141) See Firestone v. Howerton, 671 F.2d 317, 320 (9th Cir. 1982) (holding that when the same terms are used in different sections of a statute, those terms receive the same meaning); Gonzales v. Barber, 207 F.2d 398, 402 (9th Cir. 1953) ("The meaning of a term used in a statute cannot mean one thing for one situation and something else for a different situation else the law would not have that reasonable certainty which the people have a right to expect."), aff'd, 347 U.S. 637 (1954). EPA must interpret the term "discharge" to have the same meaning in both permit provisions because landowners, dam operators, and any other potential landowners--as well as the courts--could easily misinterpret the statute; EPA cannot expect such parties to understand the term's supposed disparate meanings when neither the statute nor the interpretive regulations provide any indication of EPA's intent to give the term "discharge" two distinct meanings. Rather, had EPA intended to define the term differently for purposes of sections 301, 402, and 404, the agency easily could have used different language to make this clear. (142) See also supra Part III. (143) Abbott Labs. v. Young, 920 F.2d 984, 987 (D.C. Cir. 1990); Weaver v. United States Info. Agency, 87 F.3d 1429, 1437-38 (D.C. Cir. 1996). (144) See, e.g., SWANCC, 531 U.S. 159, 179 (2001) ("[Section] 404 was principally intended as a pollution control measure."); State of California v. United States Dep't of the Navy, 845 F.2d 222, 224 (9th Cir. 1988) (noting that the CWA authorized the NPDES permit program for the purpose of enforcing pollution discharge limitations). (145) Cf. Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531 (9th Cir. 2001) ("[C]ursory review" of the Federal Insecticide and Rodenticide Act (FIFRA), 7 U.S.C. [subsection] 136-136y (2000), and the CWA "reveals that a FIFRA label and a NPDES permit serve different purposes. FIFRA establishes a nationally uniform labeling system to regulate pesticide use ... [while the] CWA establishes national effluent standards to regulate the discharge of all pollutants into the waters of the United States."). The purposes of dredge and fill permits and NPDES permits are not so distinct. See supra note 133 and accompanying text. Situations in which releases of water from dams are sediment-laden and result in the discharge of dredged spoil, rock, and sand, are strikingly similar to the context in which a dredge and fill permit is already required for activities that discharge dredged or fill material. (146) Timex V.I., Inc. v. United States, 157 F.3d 879, 884 (Fed. Cir. 1998); Schooler v. United States, 231 F.2d 560, 563 (8th Cir. 1956); Stowell v. Sec'y of Health & Human Servs., 3 F.3d 539, 542 (1st Cir. 1993) ("It is apodictic that Congress may choose to give a single phrase different meanings in different parts of the same statute."). (147) E.g., Bailey v. United States, 360 F.2d 113, 116 (9th Cir. 1966). (148) There is a definite lack of considerable legislative history regarding how Congress intended the terms in the NPDES permit program to be interpreted. See Britain, supra note 7, at 517 ("The scarcity of legislative history forced the district court to extrapolate congressional intent from their apparent preference for the NPDES program."); id. at 525 ("Congress neglected to anticipate the issue of whether dam-induced water quality changes fell within the ambit of the NPDES program."). Although Senator Edmund Muskie noted prior to passage of the CWA that "[s]ometimes a particular kind of matter is a pollutant in one circumstance, and not in another," 117 CONG. REC. 38,838 (1971) (statement of Sen. Muskie), no such history pertains specifically to Congress's intended interpretation of discharge. (149) 273 F.3d 481, 489 (2d Cir. 2001). (150) 862 F.2d 580 (6th Cir. 1988). (151) 273 F.3d at 489. (152) Id. at 491; see also supra notes 133-37 and accompanying text. (153) Paul, supra note 133, at 867. See also Catskill Mountains, 273 F.3d at 490 ("Given subsequent Supreme Court decisions governing judicial deference to federal agencies' constructions of the statutes that they implement, we hold that the EPA position is due less deference than that accorded it by the Gorsuch and Consumers Power courts."). (154) See supra notes 152-53, infra note 157 and accompanying text. (155) 189 F. Supp. 2d 893 (N.D. Ind. 2002), aff'd in part, rev'd in part sub nom. Greenfield Mills, Inc. v. Macklin, 361 F.3d 934 (7th Cir. 2004). (156) See infra notes 194-98 and accompanying text. (157) See generally Borden Ranch, 261 F.3d 810 (9th Cir. 2001), aff'd, 537 U.S. 99 (2002). Compare id at 812 (Hawkins, J.) with id at 819-20 (Gould, J., dissenting). (158) See Blumm & Warnock, supra note 7, at 93 ("Of course, EPA could choose to promulgate its position on dams as a rule, thereby reviving Chevron deference and allowing the serious water quality problems dams cause to continue to escape CWA permit requirements."). (159) See infra notes 167-76 and accompanying text. (160) See infra notes 164-66 and accompanying text. (161) 261 F.3d 810 (9th Cir. 2001). (162) Id. at 812, 819. (163) Id. at 819 (Gould, J., dissenting). (164) Catskill Mountains, 273 F.3d 481, 492 (2d Cir. 2001); see also infra note 180 and accompanying text. (165) Clean Water Regulatory Programs, 58 Fed. Reg. 45,008, 45,035 (Aug. 25, 1993) (to be codified at 33 C.F.R. pts. 323, 328); see also 33 C.F.R. [section] 323.2(d)(1) (1993) (expanding the definition of the term "discharge" to include "any addition of dredged material into, including redeposit of dredged material ... within ... the waters of the United States"). (166) National Mining, 145 F.3d 1399, 1402 (D.C. Cir. 1998) (examining the effects of the Tulloch Rule). (167) Id. (168) 145 F.3d at 1409-10. (169) EPA's exception for de minimis discharges is arguably contrary to the spirit of the CWA, which aims to eliminate all discharges of pollutants. See 33 U.S.C. [section] 1251(a) (2000) (setting forth the CWA's broad goal). (170) Further Revisions to the CWA Regulatory Definition of "Discharge of Dredged Material," 66 Fed. Reg. 4550, 4553 (Jan. 17, 2001) (to be codified at 40 C.F.R. pt. 232); see also United States v. Sartori, 62 F. Supp. 2d 1362, 1365 (S.D. Fla. 1999) (defining the term "incidental fallback" as "the minor displacement of soil caused by landclearing operations, also known as 'bucket drippings' that fall from equipment as earth is excavated"). (171) 33 C.F.R. [section] 323.2(d)(1) (2000) (emphasis added). (172) See also National Mining, 145 F.3d at 1404 ("Congress could not have contemplated that the attempted removal of 100 tons of that substance could constitute an addition simply because only 99 tons of it were actually taken away."); Am. Mining Cong. v. United States Army Corps of Eng'rs, 951 F. Supp. 267, 270 n.4 (D.D.C. 1997) ("Incidental fallback does not include soil movements away from the original site."), aff'd, 145 F.3d 1399 (D.C. Cir. 1998). (173) Administrative Procedure Act, 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). (174) See supra notes 126-29 and accompanying text. (175) See supra note 125 and accompanying text. (176) Dana retirement and decommissioning activities involve "the deactivation of a dam project's principle [sic] functions and may include: dismantling power generating equipment, permanently opening dam gates, partial breaching of earthen structures, or complete and permanent removal." INTERNATIONAL RIVERS NETWORK, Decommissioning Methods, in REVIVING THE WORLD'S RIVERS: DAM REMOVAL, at http://www.irn.org/revival/decom/brochure/rrpt5.html (last visited Feb. 20, 2005). (177) See Dubois, 102 F.3d 1273, 1279 (1st Cir. 1996) (expressing concern over adverse sediment-related effects when the proposed drawdown was over 20 feet, rather than the usually permitted 18 inches). (178) Gorsuch I, 530 F. Supp. 1291, 1299 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). (179) See Catskill Mountains, 273 F.3d 481,492 (2d Cir. 2001) ("If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not 'added' soup or anything else to the pot"); see also supra notes 169-72 and accompanying text (discussing incidental fallback). (180) For instance, a dam reservoir does not necessarily remove the sediments and pollutants "geographic[ally]," but does "h[o]ld the pollutants for some time" before they are re-released downstream. See National Mining, 145 F.3d 1399, 1410 (D.C. Cir. 1998) (Silberman, J., concurring). (181) See supra notes 82-88 and accompanying text. (182) See, e.g., Save Our Wild Salmon, About Us, at http://www.wildsalmon.org/about/membergroups.cfm (last visited Feb. 20, 2005) (listing campaign partners, newspapers, businesses, and national organizations in support of the campaign to breach four dams on the Snake River, including groups such as American Rivers, Earthjustice, Friends of the Earth, National Wildlife Federation, Northwest Environmental Defense Center, NW Energy Coalition, Sierra Club, and Trout Unlimited). (183) See, e.g., American Rivers & Trout Unlimited, Dam Removal Today, at http://www.amrivers.org/index.php?module=HyperContent&func=display&cid=1720 (last visited Feb. 20, 2005) (noting that dam "removal is now considered a reasonable and often cost effective method of river management and restoration"). (184) Emily H. Stanley & Martin W. Doyle, Trading Off: The Ecological Effects of Dam Removal, 1 FRONTIERS IN ECOLOGY AND THE ENV'T 15, 18-19 (2003) (describing downstream effects from sediments released during dam breaches), available at http://www.unc.edu/~mwdoyle/FEE%20Stanley%20and%20Doyle.pdf; see also AMERICAN RIVERS AND TROUT UNLIMITED, EXPLORING DAM REMOVAL: A DECISION-MAKING GUIDE 18-19 (Aug. 2002) (noting that sediments that have accumulated behind the dam's headwall are released downstream and large amounts of sediment can be re-suspended, and those "[l]arger sediments that cannot be re-suspended may move along the stream bottom, as part of the bed load, resulting in the scouring and/or inundation or critical aquatic habitat"), available at http://www.amrivers.org/doc_repository/Report%20Ecologicalical%Issues.pdf. (185) H. JOHN HEINZ III, CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT, DAM REMOVAL: SCIENCE AND DECISION MAKING 68 (2002) (stating that "there is no CWA provision or associated regulation that specifically addresses dam removal"), available at http://www.heinzctr.org/NEW_WEB/PDF/Dam_removal_full_report.pdf. But see id. ("[I]f a dam removal changes pollutant-loading levels in rivers or streams, the U.S. Environmental Protection Agency's total maximum daily load (TMDL) requirements may apply."). (186) 217 F.3d 928 (7th Cir. 2000). (187) Id. at 937-38. (188) See supra note 66 and accompanying text. (189) 217 F.3d at 937. (190) Id. (191) See Cornell, supra note 7, at 924-26 (noting that although the CWA is a remedial statute, and "[d]espite the obvious adverse effects dams or pumped storage plants can have on water quality, [EPA's addition from the outside world] interpretation allows the identified polluters to avoid responsibility"). (192) See infra Part VII.B.3. (193) 189 F. Supp. 2d 893, 909-12 (N.D. Ind. 2002), aff'd in part, rev'd in part sub nom. Greenfield Mills, Inc. v. Macklin (Greenfield Mills II), 361 F.3d 934 (7th Cir. 2004). (194) Id. at 912. (195) Id. The defendant, an assistant property manager at a fish hatchery, noticed problems with the flow control structure and the river intake plumbing and proceeded to draw down the reservoir to expose the dam components in need of repair. Id. at 898-901. During the draw-down, several hatchery employees noted that the water discharging from the dam was discolored; one employee noted that the water was "very dark. It had picked up a lot of ... bottom muck, sediment material." Id. at 900 (internal quotations and citations omitted). (196) Id. at 912 (emphasis added); see also id. (distinguishing the facts of the case before it from those in other cases in which courts had found a discharge, noting that, "[i]ndeed, each of [those] cases involved activities having as their very design movement and excavation of soil and sediment" (emphasis added)). (197) Greenfield Mills II, 361 F.3d at 938, 946-47 n.14. The Eleventh Circuit has similarly established that liability does not turn on whether a discharge was "incidental" to another, more purposeful activity. See, e.g., M.C.C., 772 F.2d 1501, 1506 (11th Cir. 1985) (holding a tugboat operator liable for churning up bottom sediment even though the dredging of sediment was obviously "incidental" to the tugboat's purpose of aiding a barge's transportation of materials that were too large to be carried by land). (198) Greenfield Mills II, 361 F.3d at 949, 953 (holding that the draining of a supply pond was an addition of dredged spoil subject to section 404 permitting requirements, but remanding for determination of whether an exception to the CWA applies). (199) Gorsuch I, 530 F. Supp. 1291, 1307 (D.D.C. 1982), rev'd, 693 F.2d 156 (D.C. Cir. 1982). (200) Id. at 1296; see also supra note 8 and accompanying text. (201) Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 822 F.2d 104, 108 (D.C. Cir. 1987); see also Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977) (noting that the "NPDES permit program ... is central to the enforcement of [the CWA]"). (202) See 33 U.S.C. [section] 1342(a)(1) (2000) (incorporating effluent limitations found in 33 U.S.C. [section] 1311 (2000)). (203) Id. [section] 1311(b)(1)(C). (204) Sierra Club v. U.S. Envtl. Prot. Agency, 995 F.2d 1478, 1485 (9th Cir. 1993). Although it is both likely and necessary that dams would continue to discharge polluted water, subjecting these discharges to NPDES permit requirements would allow EPA to impose restrictions on those discharges and would push dam-induced pollution into the public eye. (205) Blumm & Warnock, supra note 7, at 110. (206) Id.; see also Gorsuch II, 693 F.2d 156, 182 (D.C. Cir. 1982) (noting that one of EPA's main objections to the argument that dams should be subject to NPDES permitting requirements is that administering the permit program for 2,000,000 dams would be an impossible task). (207) Gorsuch II, 693 F.2d at 182. (208) See id. (209) See id. (210) Id. at 182; see also Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1380-82 (D.C. Cir. 1977) (finding that it would not be infeasible to issue permits for nearly 400,000 agricultural and silvicultural point sources, as EPA had claimed). (211) See supra Part VI.A. (212) World of Quotes.com, Browse Authors: Charles F. Kettering, at http://www.worldofquotes.com/author/Charles-F.-Kettering/1/ (last visited Feb. 20, 2005). Alison M. Dorsife * * [c] Alison M. Dornsife, 2005. Articles Editor, Environmental Law, 2004-2005; Member, Environmental Law, 2003-2004; J.D. and Certificate in Environmental and Natural Resource Law expected May 2005, Northwestern School of Law of Lewis & Clark College; B.A. 2002, cum laude, Whitman College. |
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