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Roads not taken: EPA vs. Clean Water.

I. NATIONAL WILDLIFE FEDERATION V. GORSUCH: EXEMPTING DAMS FROM
 PERMIT REQUIREMENTS
 A. The District Court Decision
 B. The D. C. Circuit Opinion
 C. The Consumers Power Case
 D. The Catskill Mountains Case
II. OREGON NATURAL DESERT ASSOCIATION V. DOMBECK: LEGITIMIZING COWS
 IN THE CREEK
 A. The District Court Decision
 B. The Ninth Circuit Decision
 C. Pronsolino v. Nastri: Applying TMDLs to Nonpoint Sources
III. AMERICAN WILDLANDS V. BROWNER: EXEMPTING NONPOINT SOURCES
 FROM ANTIDEGRADATION
 A. The District Court Decision
 B. The Tenth Circuit Decision
IV. CONCLUSION

 "Two roads diverged in a wood, and I--
 took the one less traveled by,
 And that has made all the difference."

 -Robert Frost, The Road Not Taken


In some circles, the United States Environmental Protection Agency (EPA) is known as a rigorous, even single-minded enforcer of federal environmental protection statutes. (1) While that reputation seems likely to erode in the second Bush Administration, (2) in fact EPA has never been very interested in pursuing a broad interpretation of the Clean Water Act (CWA) that would construe some of the statute's ambiguities to fit the scope of the nation's water pollution problem. (3) Often, when the goal of a comprehensive approach to clean water conflicted with administrative convenience or received political wisdom, EPA compromised that goal. (4)

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

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

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

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

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

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

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

A. The District Court Decision

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

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

Judge Green was "not unmindful" of the deference a court owes an agency when interpreting its governing statutes, but she determined that "[t]he statutory interpretation involved here does not require scientific expertise" and observed that EPA's interpretation "runs counter to expressed congressional intent, and is inconsistent with its own implementation of the Act in other contexts." (38) She found EPA's interpretation "overly technical" and inconsistent with a proper reading of "broadly remedial legislation." (39) Moreover, EPA gave "absolutely no reasonable basis, consistent with the purpose and policies of the Act, why dams should not be regulated as point sources." (40) EPA simply decided it was unable to regulate dams as point sources because the agency didn't want to add up to two million new point sources, including fifty to sixty thousand large dams, (41) to its regulatory burden. In addition, many, perhaps most, large dams are federal dams operated by the United States Army Corps of Engineers and the Bureau of Reclamation, powerful agencies with which EPA did not wish to engage in further interagency turf wars. (42) There was no water quality improvement reason for EPA's position. Despite EPA's attempt to relegate dams to haphazard state nonpoint source control programs, Judge Green ordered the agency to designate dams as point sources subject to NPDES regulation. (43)

B. The D.C. Circuit Opinion

EPA, joined by no fewer than thirty-four public and private utilities and several trade associations, appealed the district court decision, and a panel of the D.C. Circuit, in an opinion by Judge Patricia Wald, reversed. (44) The appellate court did not disagree with Judge Green's interpretation of the statute; instead, it ruled that she failed to give the agency proper deference. (45) After an extensive search for legislative purpose, the court could find no clear congressional intent concerning whether dam-induced pollution should be subjected to permit requirements. (46) Anticipating the Supreme Court's imminent decision in the now-famous Chevron case, (47) the court ruled that EPA's interpretation was due more deference than Judge Green had given it--even though the agency was unable to give a reason for its position that was consistent with the purpose of the statute.

Although the D.C. Circuit acknowledged that "[t]he agency advanced no policy arguments" before the district court justifying its position, Judge Wald concluded that EPA was entitled to great deference. The court held that EPA's interpretation that dams were not subject to permit requirements was a contemporaneous construction of the statute that the agency had consistently maintained despite two internal reviews of the issue. (48) The court concluded that as long as it did not conflict with the statute or frustrate congressional policy, EPA's interpretation must be upheld if it was "sufficiently reasonable," even if it was not "the only reasonable one or even the reading the court would have reached" on its own. (49) After reviewing the statute and legislative history, the court upheld EPA's distinction between the terms "pollutant" and "pollution" under which "pollutant" was narrower than "pollution," so that dam-induced pollution was not necessarily subject to permit requirements. (50) Thus, EPA's conclusion that low-dissolved oxygen, cold, and gas supersaturation were not pollutants was not "manifestly unreasonable." (51)

Concerning the crucial definition of what constitutes an addition of a pollutant (and is thus subject to permit requirements), the court concluded that whether or not dams add pollutants was unclear: The "language of the statute permits either construction." (52) Moreover, the legislative history did not address whether dam-caused pollution should be subject to permit requirements. (53) The court determined that because Congress indicated that EPA should have discretion in defining what constitutes point sources and pollutants, it likely would have intended the agency to have similar discretion to define the term "addition." (54) Therefore, the court upheld EPA's interpretation that a point source must "itself physically introduce[] a pollutant into the water from the outside world." (55)

In the years since the D.C. Circuit decided Gorsuch, however, EPA has argued for--and the courts have upheld--a broad interpretation of the meaning of "addition," particularly in the context of wetland fills. (56) It is true that wetland fills are governed by section 404 permits, (57) not NPDES permits, but both permit programs regulate "discharges," (58) which, as noted above, (59) require additions. Construing the term narrowly in the NPDES context and broadly in the wetland fill context seems inconsistent and an unlikely candidate for judicial deference.

The court also rejected the argument that EPA's exclusion of dam pollution from permit requirements would undermine the primary role Congress intended the permit program to play in the legislative scheme. The district court had ruled that Congress intended to subject all pollution to permit requirements where feasible to do so. (60) However, the appellate court disagreed, even though another panel of the D.C. Circuit and the Tenth Circuit had suggested earlier that the permit program was crucial to achieving the Act's goals and should be interpreted to apply expansively. (61) Although it cited legislative history indicating the permit program was "the best available mechanism to control water pollution," (62) the court thought that if Congress had decided to apply the permit program wherever feasible, it would have done so in "suitable language." (63) The court also noted that the legislative history indicated Congress's intent to leave some kinds of pollution control to the states, a view that led to an exemption for irrigation return flows from permit requirements added in the 1977 amendments. (64) Consequently, the court concluded that despite "the admittedly important place of the NPDES permit program in the Clean Water Act," EPA's exclusion of dam-caused pollution was not unreasonable. (65)

Finally, the court considered whether the exclusion of dam-caused pollution from the permit program frustrated the purpose of the statute--to restore and maintain the chemical, physical, and biological integrity of the nation's waters. (66) To achieve this purpose, the Act established goals of eliminating the discharge of pollutants by 1985; achieving fishable and swimmable waters by 1983, wherever attainable; and prohibiting the discharge of toxic pollutants in toxic amounts. (67) The D.C. Circuit felt the district court relied too heavily on what it termed a "grand goal," overlooking congressional "practical recognition of the economic, technological, and political limits on total elimination of all pollution from all sources." (68) The court said this goal--which it observed was unenforceable--did not necessarily require that it (or EPA) broadly construe the term "pollutant" or interfere with state water management, "of which dams are an important component." (69) Thus, according to the court, "while Congress wanted to eliminate pollution if practicable, it realized that it might have to settle for something less." (70) In short, while the court determined that there was "no sure answer" to the question of whether Congress intended dams to be subject to permit requirements, deference was due to EPA's position because of the agency's contemporaneous interpretation and its "expert evaluation of the seriousness of the problem, the cost of cure, and the effectiveness of state regulation." (71) The court concluded by emphasizing the narrow nature of its decision, stating that
 [i]t is not our function to decide whether EPA's interpretation ...
 is the best one or even whether it is more reasonable than the
 Wildlife Federation's interpretation. We hold merely that EPA's
 interpretation is reasonable, not inconsistent with congressional
 intent, and entitled to great deference; therefore, it must be
 upheld. (72)


C. The Consumers Power Case

The D.C. Circuit opinion in Gorsuch II was followed two years later by the Supreme Court's well-known Chevron decision, in which the Court ruled that where a statute is silent or ambiguous, a reviewing court must defer to the administering agency's reasonable interpretations of the statute. (73) Chevron basically ratified the D.C. Circuit's approach to agency deference in Gorsuch. Then, six years after Gorsuch, the Sixth Circuit relied on both Chevron and Gorsuch to exempt from permit requirements a hydroelectric pumped storage plant that released dead fish and fish remains into Lake Michigan. (74)

The district court had ruled that these releases constituted an addition of a pollutant, not merely by conveying polluted water to another water body, but by physically removing water with live fish, holding the water, and then discharging it back into the lake with dead fish and fish remains added. (75) A divided Sixth Circuit reversed, holding that the district court had failed to give EPA's interpretation of the term "addition" the proper deference but had instead interpreted the term "in accordance with its own vision of the Act." (76) The appeals court rejected the distinction the district court had drawn between the D.C. Circuit's consideration of changes in water "conditions" and the pumped storage facility at issue which produced "substances." The Sixth Circuit determined that "such a distinction is irrelevant under the statute." (77) Thus, although a permit would be required for a fish-packing plant to dump thousands of pounds of fish into the lake, no permit is required for an adjacent hydroelectric plant that not only dumps the dead fish, but also kills them. Professor Rodgers's treatise found it curious that such "functionally equivalent deed[s]" should be treated so differently. (78) Thus, like the D.C. Circuit, the Sixth Circuit allowed EPA effectively to exempt dam-caused pollution from Clean Water Act permit requirements. The issue seemed settled.

D. The Catskill Mountains Case

The exemption of dam pollution from permit requirements remained unchallenged for some time. Then, in 1998, a coalition of environmental groups concerned about the water quality of Esopus Creek, a Hudson River tributary and world-class trout stream, challenged a water transfer to the creek from Schoharie Reservoir through the Shandaken Tunnel. This interbasin transfer to the creek and eventually to another reservoir helps provide New York City with drinking water. However, the diversion also produces suspended solids, turbidity, and temperature increases in the creek from the introduction of fine, red-clay sediments. (79) In Catskill Mountains, the plaintiffs claimed this water transfer amounted to an addition of pollutants, and therefore required an NPDES permit. (80) The district court dismissed the plaintiffs' suit, but a unanimous Second Circuit reversed. (81)

Chief Judge John Walker's opinion agreed with the plaintiffs that the lower court gave unjustified deference to EPA's position. EPA, of course, maintained that dam-produced pollution is exempt from permit requirements. (82) The court noted that recent Supreme Court decisions have indicated that while Chevron deference governs in a rulemaking or other formal proceeding, that sort of broad deference is not appropriate in a case like this one, in which EPA's position is grounded on a series of informal policy statements and litigation positions. (83) Instead, such a position is "'entitled to respect' ... but only to the extent that those interpretations have the 'power to persuade.'" (84) Litigation positions, according to Chief Judge Walker, lack "the indicia of expertise, regularity, rigorous consideration, and public scrutiny that justify Chevron deference." (85) Thus, the court concluded that EPA's position on the dam exemption from permit requirements should be followed "to the extent persuasive." (86)

The Second Circuit acknowledged that EPA's definition of an addition of a pollutant necessary to trigger permit requirements--an introduction of a pollutant from the outside world--was a "plain meaning" interpretation of the term. (87) But it hardly seemed to find the agency's position to be "persuasive." (88) The court distinguished the facts of the Esopus Creek situation from the typical dam situation and even the Lake Michigan pumped storage facility. In this case, water was diverted from one water body through a tunnel to a completely different water body. The passing of suspended sediments through the tunnel and into Esopus Creek therefore amounted to an addition of a pollutant, in the court's judgment. (89) Thus, the diversion required an NPDES permit.

By emphasizing the peculiar facts of Catskill Mountains, the Second Circuit left intact EPA's position that dam-induced pollution is not generally subject to permit requirements. (90) Under the court's opinion, EPA's interpretation must now be persuasive, not merely reasonable, and it is not clear that the D.C. and Sixth Circuits would have found the agency's position persuasive. 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 Clean Water Act permit requirements. (91) If it does not, the door is open to environmental plaintiffs to argue that EPA's position exempting dam pollution from permit requirements is not persuasive, and therefore merits no deference.

II. OREGON NATURAL DESERT ASSOCIATION V. DOMBECK : LEGITIMIZING COWS IN THE CREEK

In July 1993, the United States Forest Service issued a grazing permit to Robert and Diana Burril, enabling them to graze fifty head of cattle on federal lands in the Malheur National Forest in eastern Oregon. The permitted area, known as the Camp Creek allotment, straddled the Middle Fork of the John Day River, an important salmon spawning stream. (92) The grazing polluted both the river and the creek with animal waste, sedimentation, and increased water temperatures. Cattle grazing in and around streams is a problem of considerable dimension across the rural West. (93)

In 1994, eight environmental organizations, headed by the Oregon Natural Desert Association (ONDA), filed suit, (94) alleging that the Forest Service violated the Clean Water Act by issuing the federal grazing permit without obtaining a water quality certification from the state of Oregon stating that the permit would not lead to a violation of the state's water quality standards. Section 401 of the Act requires applicants for federal licenses or permits that may result in discharges into navigable waters to obtain state water quality certification. (95) The Confederated Tribes of the Warm Springs Indian Reservation, which have treaty fishing rights in the John Day River Basin, (96) intervened in support of ONDA. Robert Burril, Grant County, and the Eastern Oregon Land Coalition intervened on the side of the Forest Service. EPA was not involved in the suit, although the agency was well aware of it and its implications. (97) Nor was the state of Oregon involved, although it was the state's certification authority the environmentalism and the Tribes were attempting to assert. (98)

A. The District Court Decision

District Judge Ancer Haggerty, after ruling that ONDA and the tribe had standing, (99) decided that the plaintiffs could use the citizen suit provision of the Clean Water Act to enforce water quality certification violations. (100) He phrased the issue succinctly: "The primary issue is whether the reference [in section 401] to 'any discharge into navigable waters' ... is limited to point sources." (101) He decided that the government's argument limiting discharge to point sources contradicted the plain meaning of the statutory definition of discharge, which "includes a discharge of pollutants," which in turn is defined as an "addition of a pollutant to navigable waters from a point source." (102) According to Judge Haggerty, the term "includes" in the definition of discharge "permits additional, unstated meanings," and is therefore not restricted to point sources. (103)

The Forest Service argued that its interpretation restricting section 401 certification to point sources was entitled to Chevron deference. (104) The court, however, disagreed, stating that since EPA administers the Clean Water Act, the Forest Service was not entitled to any deference at all. (105) The court examined the legislative history of the statute, noting that section 401 originated in the 1970 amendments to the statute, when there was no distinction between point and nonpoint sources. (106) Judge Haggerty quoted Senator Cooper who, in describing the 1970 amendments, stated that they "require, without exception, that all Federal activities that have any effect on water quality be conducted so that water quality standards be maintained." (107) Because the court was convinced that the 1972 amendments, which established the point/nonpoint source dichotomy, "were intended to improve enforcement of pollution from point sources, not supplant the old system," it rejected interpreting the 1972 amendments to restrict section 401 to point sources. (108) Consequently, the district court concluded that the pollution of Camp Creek and the John Day River from the federally permitted grazing amounted to a discharge within the meaning of section 401, necessitating a state certification that the grazing would comply with water quality standards. (109) The result offered the prospect of using the state water quality certification process as an effective handle on water pollution produced by federal land management activities.

B. The Ninth Circuit Decision

By reversing Judge Haggerty, the Ninth Circuit dashed hopes of effectively controlling water pollution caused by federal land management activities. (110) The court, in an opinion by Judge Mary Schroeder (now Chief Judge of the circuit), determined that the result hinged on the interpretation of the word "discharge" as used in section 401. (111) She concluded that "It]he Clean Water Act, when examined as a whole, cannot support the [district court's] conclusion that [section 401] applies to nonpoint sources." (112)

To reach this conclusion, the Ninth Circuit examined the 1972 Clean Water Act amendments and incorrectly interpreted the amendments' effect. The court reviewed the pre-1972 water pollution control scheme, noting that it suffered from cumbersome enforcement procedures and a lack of incentives to reduce pollution if water quality standards were being met. (113) According to the court, the 1972 amendments overhauled water pollution control by focusing on point sources and did not directly regulate nonpoint sources. (114) This is not an inaccurate summation of the thrust of the 1972 amendments, but the court seemed unaware that, as Judge Haggerty and an earlier panel of the Ninth Circuit had recognized, the 1972 amendments did not supplant the preexisting water quality standards scheme. (115) Although CWA-funded state nonpoint source programs are not enforceable under the Act, (116) and effluent limitations, applicable to point sources, do not apply to nonpoint Sources, (117) the 1972 amendments left water quality standards intact. The Ninth Circuit seemed to think that the statute called for water quality standards to be enforceable only against point sources but, as discussed below, (118) that was an erroneous assumption.

The court appeared to acknowledge that when section 401 was enacted in 1970, it applied to point as well as nonpoint sources. (119) But Judge Schroeder thought the effect of the 1972 amendment of section 401 to include the term "discharge" was intended to restrict significantly the applicability of the provision. This alteration, the Ninth Circuit maintained, was necessary to ensure section 401's consistency "with the bill's changed emphasis from water quality standards to effluent limitations based on the elimination of any discharge of pollutants." (120) Although neither the text nor the legislative history clearly indicates that Congress intended to restrict the scope of state certification under section 401, (121) the court maintained that the "changed emphasis" of the 1972 amendments made water quality standards inapplicable to nonpoint sources. (122) Thus, the court declared: "The term 'discharge' in [section 401] is limited to discharges from point sources." (123) The court supported this conclusion by observing that section 401 made no mention of runoff. The court also asserted that all the other sections of the Clean Water Act referenced in section 401 concern point source regulation, again misinterpreting the effect of section 303's requirement of water quality standards, (124) The court also contrasted section 401's silence regarding runoff to section 313 of the statute, which was amended in 1977 expressly to expand its scope, requiring federal activities producing runoff to comply with state water quality standards. (125)

As for the crucial definition of "discharge," which seems to suggest additional, unexpressed meanings through its use of the term "includes," (126) the court stated that "discharge" is broader than "discharge of pollutants" because "it includes all releases from point sources, whether polluting or nonpolluting." (127) The court never explained why the statute would subject nonpolluting releases to permit requirements, although it claimed its interpretation "comports with the structure and lexicon of the Clean Water Act." (128) In the court's view, that structure and lexicon clearly did not include nonpoint sources subject to state water quality certification requirements because the court assumed that the Clean Water Act exempted nonpoint sources from any effective water quality controls. (129) Apparently, the structure and lexicon of the Act did not include the statute's goals of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters and attaining fishable and swimmable water quality. (130) Moreover, subsequent events have called into serious question the court's assumption about the regulatory exemption for nonpoint sources.

C. Pronsolino v. Nastri: Applying TMDLs to Nonpoint Sources

Under the Ninth Circuit's interpretation of section 401, the Clean Water Act contains no effective approach to control the cause of most of the water pollution in the country. But not even EPA accepted this position. (131) Water quality standards, which are set by the states but subject to federal review and oversight, (132) may be violated by point or nonpoint sources, or a combination of both. The Clean Water Act requires EPA to set water quality standards if it finds a state's standards inadequate. (133)

Section 303(d)'s establishment of total maximum daily loads (TMDLs) for waterbodies not meeting water quality standards is a means to bring all sources into compliance with water quality standards. TMDLs, which represent the maximum total pollution a stream can absorb and remain in compliance with water quality standards, can impose requirements on both point and nonpoint sources. The Clean Water Act requires states to identify all "in-state" or "interterritorial" waters that do not meet water quality standards and establish TMDLs for those waters. (134) EPA must promulgate TMDLs for states that do not. (135) For most of the Clean Water Act's life, this statutory requirement was overlooked, but it is now coming to the forefront. (136)

Establishing TMDLs is the first step in cleaning up streams that fail to meet water quality standards despite the application of all pertinent technology-based controls. The second step is determining what must be done to meet the TMDLs for a particular stream. This may involve imposing additional controls on point sources or requiring changed operations from nonpoint sources. (137) EPA regulations have long interpreted the setting of TMDLs to implicate nonpoint as well as point source pollution, (138) so it is puzzling why the Dombeck court thought the statute prescribed no regulation of nonpoint sources. True, unlike in the case of water quality standards and TMDLs, EPA lacks authority to prescribe load allocations for particular nonpoint sources, (139) but it does require states to set them. (140) Additionally, the Clean Water Act clearly requires states to take action to implement TMDLs in order to meet water quality standards. (141) These provisions amount to a considerable federal presence in the nonpoint pollution world.

In 1998, in response to a citizen suit, (142) EPA finally used its statutory authority to foster clean water, rather than let the states ignore the problem. The agency established a TMDL for the Garcia River in California, a stream affected only by nonpoint sources. (143) Just as surprising, the state actually took action to implement EPA's directive, as the California Department of Forestry imposed several restrictions designed to reduce soil erosion from a timber harvest proposed by a private landowner. (144) The landowner, joined by the county, state, and national chapters of the farm bureau, challenged EPA's authority to promulgate the TMDL. The district court, in a lengthy and thoughtful opinion, upheld EPA's action, repeatedly observing that Congress intended the Clean Water Act to result in a comprehensive system of pollution control to achieve the Act's water quality goals. (145) Consequently, Judge Alsup rejected the landowner's arguments that the TMDLs applied only to point sources. (146) Unlike the Dombeck court, the district court based its decision heavily on the goals of the statute and congressional intent to institute a comprehensive scheme of pollution control.

In 2002, the Ninth Circuit affirmed the district court, in an apparent repudiation of the Dombeck court's assumption that nonpoint sources are effectively immune from Clean Water Act regulation. (147) The court first decided that EPA's regulatory interpretation of the statute was entitled to Chevron deference because the agency was exercising delegated authority to interpret the statute, meaning its interpretation was controlling unless plainly erroneous. (148) The opinion by Judge Berzon rejected the landowner's argument that EPA had not interpreted the statute consistently, and therefore its position was not owed judicial deference. The court concluded instead that EPA had "quite clearly" required the identification of waters polluted only by nonpoint sources since 1973, in its first regulations implementing the 1972 amendments. (149) The fact that EPA did not "actively police" the requirement that states identify waters polluted only by nonpoint sources until the early 1990s did not convince the court that EPA's longstanding interpretation was not entitled to judicial deference. (150)

After examining the landowner's argument that TMDLs apply only to waters polluted by point sources, Judge Berzon found it "considerably weaker" than EPA's contention that TMDLs should be established for all waters not meeting water quality standards. The court found the landowner's interpretation to be divorced from the goal of implementing "any water quality standard applicable to such waters." (151) The court gave a structural interpretation to the Clean Water Act, noting that section 303(d), the TMDL provision, is a part of section 303, which also establishes water quality standards and the states' "continuing planning process," both of which apply equally to point and nonpoint sources. (152) Judge Berzon did not find persuasive the landowner's argument that sections 208 and 319, which apply exclusively to nonpoint sources, meant that section 303(d) should be limited to point sources. As the court noted, the requirements of sections 208 and 319 are qualified, but the requirements of section 303(d) "are unbending." (153) Moreover, the court was convinced that the statute clearly required TMDLs to be set for waters not meeting water quality standards due to both point and nonpoint sources, and that nothing in the statute indicated that TMDLs were not required for waters impaired only by nonpoint sources. (154) Consequently, the court concluded that EPA's interpretation was "not only entirely reasonable but considerably more convincing" than the landowner's interpretation. (155)

By ratifying TMDLs for nonpoint sources, the court confirmed a federal role in the control of nonpoint source pollution. While the federal government cannot impose regulation directly on nonpoint sources, it is misleading to suggest--as the Dombeck court did--that the clean water world consists of federal hegemony over point sources and exclusive state control over nonpoint sources. In addition to setting TMDLs when states do not, EPA reviews and approves water quality standards and may promulgate them for states that do not propose adequate ones. (156) EPA also must ensure states take effective action to achieve compliance with water quality standards, including implementing TMDLs. (157) The dichotomous world the Dombeck court described, which was central to its conclusion that water quality certification was inapplicable to nonpoint sources, (158) is largely the product of EPA's discretion and court decisions like Dombeck. It may be too much to expect the Ninth Circuit to reconsider its restrictive interpretation in Dombeck, however fallacious its underlying premise, but other circuits should take note that the Ninth Circuit's ruling on the scope of TMDLs is at war with its ruling on the scope of state water quality certification.

III. AMERICAN WILDLANDS V. BROWNER. EXEMPTING NONPOINT SOURCES FROM ANTIDEGRADATION

Like the water quality standards of which it is a part, antidegradation policy has its roots in the Water Quality Act of 1965. (159) Unlike EPA in the dam-pollution cases discussed in section I, Interior Secretary Stewart Udall (160) interpreted the 1965 statute's purpose broadly, to authorize the establishment of a federal antidegradation policy. Secretary Udall thought that the purpose of "enchanc[ing] the quality and value of our water resources and ... establish[ing] a national policy for the prevention, control, and abatement of water pollution" justified the antidegradation policy he announced in 1968. (161) EPA eventually put the policy into regulations in 1975, (162) and Congress ratified the policy in the 1987 amendments to the statute. (163)

EPA's regulations attempt to ensure that states do not allow their high-quality waters to deteriorate to the level of water quality standards. The regulations do this by affording high-quality waters three kinds of protection, depending on how the waters are classified. Tier I waters must provide water quality that protects and maintains existing instream uses. (164) Tier II waters are waters that have water quality exceeding that necessary to support aquatic life and recreation, and may not be degraded unless "a lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located." (165) Tier III waters are "outstanding national resource waters," where water quality is to be maintained and protected without exception. (166)

The key antidegradation regulation concerns Tier II waters because the protection the regulations offer Tier I waters is quite uncertain, (167) and Tier III's waters are limited in scope. (168) Tier II waters, those high-quality waters, that support important aquatic and recreational resources but have not received "outstanding national resource water" designation, supposedly are protected against degradation absent a showing by the state of countervailing economic and social considerations. (169) However, the state of Montana sought to eliminate whatever Tier II protection might provide against nonpoint source pollution by exempting nonpoint sources from Tier II review. This exemption required EPA approval in conjunction with EPA's review of Montana's water quality standards. EPA's approval was challenged by environmentalists and upheld in American Wildlands v. Browner. (170)

A. The District Court Decision

Between 1989 and 1998, Montana made a number of changes in its water quality standards (including exempting nonpoint sources from Tier II antidegradation limits), none of which drew a response from EPA. Consequently, a coalition of environmental groups filed suit, challenging EPA's inaction. (171) The suit finally induced EPA to act, and the agency approved the state's changes. (172) The environmentalists then amended their complaint to challenge EPA's approval of the state's exemption of nonpoint sources from Tier II antidegradation review and its exemption of mixing zones from compliance with the state's water quality standards. (173) We focus here only on the antidegradation exemption. (174)

After upholding the environmentalists' standing, (175) Judge Kane ruled that EPA's decision would be reviewed under the deferential "arbitrary and capricious" standard of the Administrative Procedure Act. (176) He summarized the positions succinctly: "American Wildlands contends that exempting nonpoint sources of pollution undermines the objectives of the CWA. EPA maintains it lacks authority under the CWA to require states to establish regulatory schemes for nonpoint sources." (177) Judge Kane construed the Clean Water Act in a manner similar to Judge Schroeder in Dombeck, asserting that section 319's failure to impose penalties on nonpoint sources that violate the "best management practices" called for by that provision "implies [that] Congress did not intend the CWA to regulate nonpoint source pollution." (178) The court did not consider whether section 303's requirement that states establish (and that EPA establish if states do not) TMDLs for streams not meeting water quality standards might imply that nonpoint sources were not immune from regulation. (179)

In view of the statute's disparate treatment of point and nonpoint sources, Judge Kane concluded that "EPA acted within the range of authority and discretion Congress afforded it" because the agency had "examined the relevant data and articulated a rational connection between the facts found and the decision made." (180) Thus, he upheld EPA's decision to approve Montana's exemption of nonpoint source pollution from most antidegradation review in favor of a system of "education and voluntary compliance," two techniques that had previously shown themselves to be spectacular failures. (181)

B. The Tenth Circuit Decision

The Tenth Circuit had little difficulty sustaining Judge Kane's decision. (182) The court rejected the environmentalists' argument that EPA's approval of state water quality standards should not be given judicial deference because it involved a purely legal question of whether the standards satisfied the statute. Instead, the court applied the Chevron analysis because Congress charged EPA with administering the Clean Water Act, and the agency exercised that authority in approving Montana's water quality standards. (183) Because the court concluded that the statute was silent on the issues of statutory interpretation involved in the case, it reviewed EPA's decision only to ensure it was based on a permissible interpretation of the statute. (184) Judge Tacha agreed with Judge Kane that "Congress has chosen not to give the EPA the authority to regulate nonpoint source pollution." (185) From this misleading premise, the court reasoned that the agency's decision to allow the state to exempt nonpoint source pollution from antidegradation review was not a misinterpretation of the statute. (186) Even though it recognized water quality standards apply to both point and nonpoint sources, the court determined that the statute did not require states to regulate nonpoint sources at the antidegradation stage. (187) Instead, the court observed that the TMDL process was the appropriate mechanism to reduce nonpoint source pollution. (188) Although Judge Tacha mentioned in passing the statutory objective of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters, (189) he ignored that objective in resolving the issue of whether nonpoint source pollution should be subject to antidegradation policy.

The irony was palpable. The antidegradation policy, the very existence of which is due to Secretary Udall's reliance on the statutory purpose, was undercut in this case by an EPA apparently unconcerned about protecting high-quality waters from the major source of water pollution in rural areas, and by two courts that did not take seriously the statutory purpose. Antidegradation, now largely applicable only to point sources in Montana, will have no appreciable effect in most of the rural parts of the state.

As in the dam-pollution cases discussed in section I, EPA's narrow interpretation of its authority under the Clean Water Act was judicially sustained. The Tenth Circuit ratified EPA's position that it had no authority to disprove the state's exemption of nonpoint sources from antidegradation review because it had no authority to regulate nonpoint sources. But the former does not necessarily follow from the latter. Although the statute gives EPA no authority to impose controls directly on individual nonpoint sources, this does not mean EPA has no responsibility for nonpoint source pollution. The agency has authority to promulgate water quality standards for states that do not develop satisfactory ones; (190) it has authority to promulgate TMDLs for states that fail to develop satisfactory ones; (191) and it must ensure that state programs achieve water quality standards, including implementing TMDLs. (192) All of these provisions implicate nonpoint source pollution and make EPA responsible for ensuring nonpoint source pollution does not undermine the statute's water quality goals. (193) The Tenth Circuit acknowledged as much in its suggestion that the TMDL program was the mechanism to curb nonpoint source pollution. (194) Unfortunately, because that program defers any realistic possibility of nonpoint source regulation until waterbodies become so polluted that they fail to meet water quality standards, the court's decision means there is no effective control over nonpoint source pollution affecting high-quality streams. This result seems completely inconsistent with the Clean Water Act's objective of preserving and restoring the integrity of the nation's waters.

IV. CONCLUSION

When President Nixon chartered the Environmental Protection Agency in July 1970, he commented that "[d]espite its complexity, for pollution control purposes the environment must be perceived as a single, interrelated system." (195) Just two years later, in section 102 of the Clean Water Act, Congress instructed EPA to develop a comprehensive plan for reducing water pollution throughout the country. (196) The Supreme Court has interpreted the 1972 statute to establish a "comprehensive ... policy for the elimination of water pollution." (197) But today, thirty years removed, we have a badly fragmented system of water pollution control, so sharply divided between point and nonpoint sources that the Ninth Circuit was convinced by the federal government that there was no federal regulatory role at all in nonpoint source control. (198)

We acknowledge this fragmentation is due in large part to the structure of the Clean Water Act, but EPA--the agency directed to consider pollution as a single, interrelated force and to control it in a comprehensive manner--has failed miserably, as the three principal cases examined in this study illustrate. In them, EPA 1) ignored the remedial purpose of the statute and instead employed a narrow, technical interpretation to conclude that dam pollution was exempt from federal permit requirements; (199) 2) allowed the U.S. Forest Service to argue mistakenly that the statute contemplated no federal role in nonpoint source control and, further, that nonpoint sources were also exempt from state water-quality certification procedures; (200) and 3) claimed it had no authority to require states to apply antidegradation requirements to nonpoint sources. (201) There 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 to treat nonpoint source pollution as only the states' problem, and then to interpret broadly the pollution sources it defines as nonpoint, than to confront the difficulties of overseeing nonpoint source control. (202) The courts' deference to EPA amounts to judicial ratification of the agency's position--despite its incongruity with the purpose of the Clean Water Act and even the purpose of EPA itself.

The upshot is that after thirty years the nation's water pollution control effort is half-baked. With little or no federal oversight of their nonpoint source control efforts, the states have showed themselves to be spectacular failures. In 1999, the General Accounting Office reported that more than one-third of the nation's waters fail to meet water quality standards, principally because of nonpoint source pollution. (203) In 1996 alone, poor water quality--primarily due to nonpoint source pollution--led to more than 2000 fish advisories and 2500 beach closures. (204)

EPA has not only largely eschewed a federal regulatory role in nonpoint source control, but also acquiesced in the Forest Service's position that the states may not use their water quality certification procedures to control federal nonpoint source pollution. So the federal government continues to spend in excess of $3 billion annually on nonpoint source control, (205) yet widespread water quality standard violations continue because there is neither effective regulation of, nor investment in, nonpoint source control on nonfederal lands. Perhaps it is time to redirect some of that federal money to use existing federal regulatory authorities, such as overseeing and setting water quality standards and TMDLs, and ensuring that states take effective measures to meet water quality standards, (206) in order to combat nonpoint source pollution. While awaiting an EPA which would take seriously its nonpoint source obligations in light of the Clean Water Act's objective--a 21st century Secretary Udall, who created the antidegradation policy by interpreting the statutory objective broadly (207) reversing the three principal cases examined in this Article (208) would be a start toward producing the kind of comprehensive approach to water pollution control that both the President and Congress envisioned more than three decades ago.

(1) See, e.g., Theodore L. Garrett, Reinventing EPA Enforcement & 12 NAT. RESOURCES & ENV'T 180, 180 (1998) ("At a time when corporations are reducing emissions and improving compliance, the government is somewhat perversely driven to bring an increasing number of lawsuits and to collect higher fines to justify their budgets and prove that they are performing."); see also Christine L. Wettach, Mens Rea and the "Heightened Criminal Liability" Imposed on Violators of the Clean Water Act, 15 STAN. ENVTL. L.J. 377, 388 (1996) (noting that an increase in EPA's investigative resources and its ability to seek harsher penalties have resulted in more criminal environmental prosecutions. From 1990 through 1995, pleas and convictions increased 70%, frees increased 80%, and jail time increased 35%. Between 1992 and 1993, the number of federal environmental criminal cases doubled); Robert W. Darnell, Environmental Criminal Enforcement and Corporate Environmental Auditing: Time for a Compromise?, 31 AM. CRIM. L. REV. 123, 127 (1993) (stating that the federal government "dramatically increased enforcement of the criminal provisions of environmental laws" in the late 1980s and early 1990s. The "[f]ederal criminal penalties imposed between 1988 and 1992 represent ninety-four percent of all criminal penalties ever imposed under the nation's environmental laws."); Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes for a Flawed System, 3 VILL. ENVTL. L.J. 1, 4 (1992) (arguing that EPA should require a higher level of culpability in environmental enforcement); Virginia Morton Creighton, Colorado's Environmental Audit Privilege Statute: Striking the Appropriate Balance? 67 U. COLO. L. REV. 443, 444, 448 (1996) (noting that EPA enforcement of environmental laws without providing certainty for the regulated community through an audit privilege represents overly harsh enforcement).

(2) See Press Release, U.S. Public Interest Research Group, Permit to Pollute: How the Government's Lax Enforcement of the Clean Water Act is Poisoning Our Waters (Aug. 6, 2002) (reporting that nearly 30% of Clean Water Act discharges are seriously violating the terms of their permits) available at http://uspirg.org/uspirgnewsroom.asp?id2=7545 (last visited Oct. 27, 2002); Nancy Stoner, Clean Water At Risk. A 30th Anniversary Assessment of the Bush Administration's Rollback of Clean Water Protections 9-24 (Oct. 2002), available at http://www.americanrivers.org/docs/cwa30.pdf.

(3) See, e.g., Nat'l Wildlife Fed'n v. Gorsuch (Gorsuch I), 530 F. Supp. 1291 (D.D.C. 1982); Nat'l Wildlife Fed'n v. Gorsuch (Gorsuch II), 693 F.2d 126 (D.C. Cir. 1982); Nat'l Wildlife Fed'n v. Consumers Power Co. (Consumers I), 657 F. Supp. 989 (W.D. Mich. 1987); Nat'l Wildlife Fed'n v. Consumers Power Co. (Consumers Il), 862 F.2d 580 (6th Cir. 1988); Am. Wildlands v. Browner (Am. Wildlands II), 260 F.3d 1192 (10th Cir. 2001); Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998).

(4) See supra note 3 (all cases).

(5) Federal Water Pollution Control Act, 33 U.S.C. [section] 1251(a) (2000).

(6) See, e.g., Oliver A. Houck, Unfinished Stories, 73 U. COLO. L. REV. 867 (2002); Oliver A. Houck, The Water, the Trees, and the Land: Three Nearly Forgotten Cases that Changed the American Landscape, 70 TUL. L. REV. 2279 (.1996).

(7) EPA recently acknowledged that nonpoint source pollution is the main reason approximately 40% of surveyed rivers, lakes, and estuaries are not clean enough to meet state water quality goals, or to satisfy the statutory goal of swimmable, fishable waters. U.S. ENVIRONMENTAL PROTECTION AGENCY, SECTION 319 SUCCESS STORIES, VOLUME III: THE SUCCESSFUL IMPLEMENTATION OF THE CLEAN WATER ACT'S SECTION 319 NONPOINT SOURCE POLLUTION PROGRAM I (2002), available at http://www.epa.gov/owow/nps/Section319III/ intro.htm. In 2000, EPA reported that, of those waterbodies assessed (which totaled fewer than half the nation's waters), 35% of the rivers and streams and 45% of the lakes, ponds, and reservoirs were not meeting water quality standards. In the Great Lakes (where 90% of the shoreline miles have been assessed), 96% failed to meet the standards. According to EPA, the leading cause of noncompliance of rivers and streams is nonpoint source runoff from agriculture, accounting for 59% of the reported noncompliance. 65 Fed. Reg. 43,586, 43,586-87 (2000) (preamble to EPA's 2000 water quality regulations, relying on information contained in the National Water Quality Inventory Report to Congress for 1998).

Professor Houck, the academic expert on nonpoint source pollution, claims that nonpoint source pollution represents the dominant water quality problem in the United States, "dwarfing all other sources by volume, and in conventional contaminants, by far the leading cause of nonattainment for rivers, lakes, and estuaries alike." OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION 66-61 (Envtl. L. Inst., 1999); see also David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control. The Clean Water Act's Bleak Present and Future, 20 HART. ENVTL. L.J. 515, 517 (1996) (noting that nonpoint sources account for 65-75% of the pollution in the nation's most polluted waters and 43% of the pollution in the country's estuaries); Cleanwater.gov, The Clean Water Action Plan, Setting the Stage: Successes, Challenges, and New Directions (1999) (stating that most water pollution comes from polluted runoff, and that agriculture is the most extensive source of water pollution), at http://www.cleanwater.gov/action/cla.html (last visited Oct. 28, 2002).

(8) 33 U.S.C [section] 1362(14) (2000). Section 301 of the statute, 33 U.S.C. [section] 1311, makes unlawful the "discharge of a pollutant" without a permit. The Act defines "discharge of a pollutant" as, Inter alia, the "addition of any pollutant to navigable waters from any point source." Id. [section] 1362(12).

(9) See, e.g., id. [subsection] 1311-1317 (specifying a series of effluent guidelines that must be incorporated into point source discharge permits, called National Pollutant Discharge Elimination System (NPDES) permits, authorized by section 402, id. [section] 1342, of the Act).

(10) EPA defines nonpoint source pollution as "pollution caused by diffuse sources that are not regulated as point sources and normally associated with agricultural, silvicultural and urban runoff." U.S. ENVIRONMENTAL PROTECTION AGENCY, NONPOINT SOURCE GUIDANCE (1987), reprinted in ENVTL. LAW INST., CLEAN WATER DESKBOOK 177 (2d ed. 1991); see also Gorsuch I, 530 F. Supp. 1291, 1305 (D.D.C. 1982) (noting EPA's litigation position that nonpoint pollution is "nothing more than a pollution problem not involving a discharge from a point source"). According to Professor Rodgers, "A nonpoint source, undefined but often used in the Act, should be understood as any source of water pollution or pollutants not associated with a discrete conveyance. For simplicity, the universe of the causes of water pollution should be considered as fully covered by the categories of point and nonpoint sources." WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 303 (2d ed. 1994).

(11) See Robert W. Adler, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act. 23 HARV. ENVTL. L. REV. 203, 289-90 (1999) (noting that no federal authority can design, implement, or enforce nonpoint source regulation, except on federal lands).

(12) 33 U.S.C [subsection] 1288(f), 1319.

(13) See Adler, supra note 11, at 293 (noting that nonpoint pollution remains the most intractable Clean Water Act problem); Robert W. Adler, Controlling Nonpoint Source Water Pollution: Is Help on the Way (From the Courts or EPA)? 31 Envtl. L. Rep. (Envtl. L. Inst. 2001) 10,270, 10,270 n.2 (citing U.S. ENVIRONMENTAL PROTECTION AGENCY, NATIONAL WATER QUALITY INVENTORY: 1998 REPORT TO CONGRESS 62, 88, 119 (EPA 841- R-00-001, June 2000) (EPA reporting that nonpoint source pollution contributes more pollution than any other source to river, lake, estuary, and coastal pollution)); see also supra note 7.

(14) See supra note 13 (all sources).

(15) Irrigated farmland accounts for 89% of the quality-impaired river miles in the West. Lawrence J. MacDonnell, Thinking About Environmentally Sustainable Development in the American West; 18 J. LAND RESOURCES & ENVTL. L. 123, 128 (1998) (citing NATIONAL RESEARCH COUNCIL, A NEW ERA FOR IRRIGATION 73 (1996)).

(16) See infra Part I.

(17) See infra Part II.

(18) See infra Part III.

(19) The facts in this paragraph are from the district court's opinion, Gorsuch I, 530 F. Supp. 1291, 1295-1303 (D.D.C. 1982), which contains a thorough discussion of dam-induced water quality problems.

(20) Earlier, the South Carolina Wildlife Federation and several other environmental groups had sued the United States Army Corps of Engineers and EPA concerning the construction and operation of the Richard B. Russell Dam on the Savannah River, which flows along the border of Georgia and South Carolina. S. C. Wildlife Fed'n v. Alexander, 457 F. Supp. 118, 120-21 (D.S.C. 1978). The environmental groups claimed that the construction and operation of the dam required a Clean Water Act permit because the construction would lower dissolved oxygen and increase dissolved minerals in the river. Id (Actually, the environmentalists also claimed that the operation of two other already-constructed dams on the Savannah River also required permits, but the district court dismissed these claims on the ground that the plaintiffs' 60-day notice of intent to sue, a jurisdictional prerequisite under the Clean Water Act, did not include those dams. Id at 123-24.) The court denied the government's motion to dismiss, because it agreed with the environmental plaintiffs that the dam's transformation of the river's water quality amounted to a "discharge of a pollutant" by adding pollutants. Id. at 125-26. See supra note 8, infra notes 24-27 and accompanying text (discussing the statutory definition of "discharge of a pollutant"). The key to this conclusion was the court's observation that the functional effect of a hydroelectric facility on water quality was not materially different from other production processes producing chemical wastes and steam electric plants producing heat. S. C. Wildlife Fed'n, 457 F. Supp. at 125. Thus, the dam's release of water whose quality was changed while in the reservoir constituted, according to the court, an "addition of a pollutant" within the meaning of the statute. Id. at 126.

(21) Dam-produced water pollution continues to be a major water quality problem. Dams alter stream temperatures and sediment flows and produce water that is low in dissolved oxygen and high in dissolved metals. U.S. ENVIRONMENTAL PROTECTION AGENCY, GUIDANCE SPECIFYING MANAGEMENT MEASURES FOR SOURCES OF NONPOINT POLLUTION CONTROL IN COASTAL WATERS (1993), available at http://www.epa.gov.OWOW/NPS/MMGI/Chapter6/index.html. For example, the Glen Canyon Dam on the Colorado River lowered water temperatures to such an extent that native fish cannot successfully reproduce within 240 miles downstream of the dam. PATRICK MCCULLY, SILENCED RIVERS: THE ECOLOGY AND POLITICS OF LARGE DAMS 36 (1996). In the Columbia Basin, where a series of hydroelectric dams have been the major reason why a river system that once supported 10-16 million adult salmon annually now can support roughly 10% of that, the vast majority of which are produced in hatcheries, water quality standards are regularly violated in the Columbia's principal tributary, the Snake. Id. at 41-42; MICHAEL C. BLUMM, SACRIFICING THE SALMON: A LEGAL AND POLICY HISTORY OF THE DECLINE OF COLUMBIA BASIN SALMON 87-108 (dam-building in Columbia Basin), 219-32 (water quality problems caused by dams) (2002) (www.salmonlaw.net). On the Lower Snake River dams' violation of the Clean Water Act, see infra note 91.

(22) Gorsuch I, 530 F. Supp. at 1295.

(23) Gorsuch II, 693 F.2d 156, 165 (D.C. Cir. 1982).

(24) See id. ("The parties agree that a dam can, in some circumstance be a 'point source,' and that both the reservoir and the downstream river are 'navigable waters' within the statutory meaning whether or not they are navigable in fact.").

(25) Id. at 165.

(26) 33 U.S.C. [section] 1362(12) (2000).

(27) Id [section] 1362(6). An exception is "heat," which dams can produce.

(28) Gorsuch I, 530 F. Supp. 1291, 1303-07 (D.D.C. 1982).

(29) Id . at 1303.

(30) Id. at 1304 (citing United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979) (mining); Sierra Club v. Abston Construction Co., 620 F.2d 41 (5th Cir. 1980) (coal mine); Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (silvacultural and agricultural operations, animal feedlots, storm sewers); Appalachian Power Co. v. Train, 545 F.2d 1351, 1373-74 (4th Cir. 1976) (construction site runoff)).

(31) Gorsuch I, 530 F. Supp. at 1304. Judge Green observed that "'the [CWA] must be given a reasonable interpretation, not parsed and dissected with the meticulous technicality applied in testing a common law indictment or a deed creating an estate in fee tail.'" (quoting Natural Res. Def. Council, Inc. v. Costle, 564 F.2d 573, 579 (D.C. Cir. 1977)).

(32) Id.

(33) See id. at 1306.

(34) Id. at 1307.

(35) Id. at 1309-10 (noting that EPA used pollutant indicators like total suspended solids and biological oxygen demand in setting, effluent guidelines, even though they were not among the list of pollutants identified in section 502(6) of the Act, 33 U.S.C. [section] 1362(6)). Also, EPA acknowledged that sediments and metals, although not listed in the statute, could be pollutants under the Act. Id. at 1310.

(36) Id. at 1311.

(37) Id.

(38) Id

(39) Id. at 1311-12.

(40) Id. at 1311.

(41) See id. at 1313. The parties defined large dams as those 25 feet or more in height, with more than 15 acre-feet of storage capacity, or at least six feet in height, with a storage capacity of more than 50 acre-feet. Id, at 1313 n.78.

(42) This is Professor Blumm's recollection from several agency meetings he attended while an attorney for EPA.

(43) Gorsuch I, 530 F. Supp. 1291, 1314 (D.D.C. 1982).

(44) Gorsuch H, 693 F.2d 156 (D.C. Cir. 1982).

(45) Id. at 166.

(46) Id. at 171-82.

(47) Chevron, U.S.A. v. Natural Res. Def. Council (Chevron), 467 U.S. 837, 865 (1984) (holding that if a statute is silent or ambiguous on a specific issue, and the agency's interpretation is based on a reasonable construction of the statute, a court must defer to the agency's interpretation). Note, however, that unlike Chevron, Gorsuch did not involve an EPA rulemaking. See infra notes 83-86 and accompanying text.

(48) Gorsuch II, 693 F.2d at 169-70. The court noted that "[t]he usual factors ... (regulatory agency, consistency, contemporaneous construction, expertise, congressional acquiescence, thoroughness) generally support giving great deference to EPA's interpretation." Id. at 169. EPA originally determined that dams would not be subject to permit requirements in a 1973 letter which, the court observed, contained little legal or policy analysis. Id. at 169. The agency reconsidered its position in 1974 and 1978, but chose to adhere to its earlier interpretation. The court concluded that "[t]his reconsideration is sufficient evidence of thoroughness to meet the standard for deference." Id Although the court stated that these "internal reconsiderations did give primary emphasis to the policy implications of the point source--nonpoint source distinction," it did not identify the policies the agency considered, nor whether they were consistent with the purpose of the Clean Water Act. Id. at 170. And, while the court announced that "construction of the Act is likely to require scientific and technical expertise," it did not discuss how or why EPA's position involved either. Id. at 167. Finally, the court admitted that it was not clear that Congress was aware of EPA's interpretation when Congress amended the statute in 1977, so only "modest weight" was given to this factor. Id. at 167.

(49) Id. at 171 (quoting FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 38, 39 (1981)).

(50) Id. at 172-73. The court noted that the Supreme Court, in Train v. Colorado PIRG, 426 U.S. t (1976), ruled that "certain radioactive materials are not 'pollutants,' although they undoubtedly emit pollution." Id. at 172. Moreover, the presumption is that when Congress uses two different terms, it intends them to mean different things, especially when it defines them differently. Id. Further, EPA justified its distinction between "pollutant" and "pollution" on the ground that Congress intended to limit the permit system to well-recognized pollutants. Id. The court also pointed to statements in the legislative history indicating that the term "pollutant" was meant to be less inclusive than the term "pollution," the conference committee's change in the definition of "pollutant" to eliminate inclusive phrases such as "but is not limited to" and "other waste," and congressional intent that EPA should have discretion to make distinctions between point and nonpoint sources. Id. at 172-74.

(51) Id. at 174.

(52) Id. at 175. The court pointed to section 102(b) of the Act, 33 U.S.C. [section] 1251(b), which states the policy of Congress "to recognize, preserve, and protect the primary responsibilities and rights of the States" to plan the development and use of land and water resources as "an indication that Congress did not want to interfere any more than necessary with state water management, of which dams are an important component." Id Leaving to states the authority to control dam pollution would, the court thought, "reduce federal-state friction and would permit states to develop integrated water management plans that address both [water] quality and quantity." Id. at 178-79. This wishful thinking on the part of the D.C. Circuit has proved to be just that: If there are any such integrated state plans in the West, Professor Blumm, who served as co-director of the Northwest Water Law and Policy Project for seven years, is unaware of them.

(53) Id. at 175.

(54) Id.

(55) Id. at 174-75. Professor Rodgers wryly commented: "On this reading, it would appear that a source discharging pollutants drawn from its intake waters would be functionally indistinguishable from the municipal sewage treatment plants that are routinely held accountable for toxics slipped into their effluent by uninvited and unwelcome suppliers." RODGERS, supra note 10, at 439.

(56) See, e.g., Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983) (redeposit of trees and vegetation dug up during land clearing is an "addition"); Rybacheck v. EPA, 904 F.2d 1276, 1285 (9th Cir. 1990) (dirt and gravel excavated from a streambed for placer mining, then returned to the stream, is an "addition"); United States v. Deaton, 209 F.3d 331, 336-37 (4th Cir. 2000) (sidecasting dirt from digging in a wetland is an "addition"); Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d 810, 815 (9th Cir. 2001), cert. granted 122 S.Ct. 2355 (2002) ("deep ripping"--using bulldozers to plow up a wetland--to create vineyards and orchards is an "addition"). In the Deaton decision, the 4th Circuit commented:
 [T]he [Clean Water Act] 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 entirely unremarkable, at least when an activity transforms
 some material from a nonpollutant into a pollutant, as occurred
 here.... It is of no consequence that what is not dredged spoil
 was previously present on the same property in the less threatening
 form of dirt and vegetation in an undisturbed state. What is
 important is that once that material was excavated from the
 wetland, its redeposit in that same wetland added a pollutant where
 none had been before.


Deaton, 209 F.3d at 335. Moreover, in the 2001 final rule revising the definition of "discharge of dredged material," EPA and the United States Army Corps of Engineers stated: "The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback." 66 Fed. Reg. 4450, 4575 (Jan. 17, 2001) (codified at 33 C.F.R. [section] 323.2(d)(2)(i) (2001) (Corps regulations), 40 C.F.R. [section] 232.2(2)(i) (2001) (EPA guidelines). After delaying the effective date of the rule on January 24, 2001, the Bush Administration let it go into effect on April 17, 2001, 66 Fed. Reg. 10,367 (Feb. 15, 2001). See generally William S. Pufko, The Revised Definition of "Discharge of Dredged Material:" Its Legality, Practicality, and impact on Wetlands Protection, 9 ENVTL. LAW. 187 (2002).

(57) See, e.g., William Funk, Wetlands, in ENVIRONMENTAL PRACTICE GUIDE, ch. 19 (2002); Michael C. Blumm, The Clinton Wetlands Plan: No Net Gain in Wetlands Protection, 9 J. LAND USE & ENVTL. L. 203 (1994).

(58) 33 U.S.C. [section] 1342(a)(1) (2000) ("IT]he Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant."); 33 U.S.C. [section] 1344(a) ("The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material.").

(59) See supra note 26 and accompanying text.

(60) Gorsuch I, 530 F. Supp. 1291, 1304 (D.D.C. 1982).

(61) Gorsuch II, 693 F.2d 126, 175 n.59 (D.C. Cir. 1982) (citing Natural Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374 (D.C. Cir. 1977) (NPDES program "is central to the enforcement of the [Act]") and United States v. Earth Sci., Inc., 599 F.2d 368, 373 (10th Cir. 1979) ("Congress would have regulated so-called nonpoint sources if a workable method could have been derived.")) (quotations omitted).

(62) Gorsuch II, 693 F.2d at 176 (citing S. REP. No. 92-414 at 8, reprinted in 1972 U.S.C.C.A.N. at 3675 (internal quotations omitted)).

(63) Id. (suggesting that Congress could have done so by indicating that the permit program would govern "all pollution released through a point source," instead of being limited to the "addition" of pollutants from point sources).

(64) Id.

(65) Id. at 176-77.

(66) 33 U.S.C. [section] 1251(a) (2000).

(67) Id. [section] 1251(a)(1)-(3).

(68) Gorsuch II, 693 F.2d 126, 178 (D.C. Cir. 1982).

(69) Id. at 178. Given the congressional policy of minimizing federal control over state decisions concerning water allocation, expressed in a 1977 amendment (33 U.S.C. [section] 1251(g)), the court thought that, had Congress specifically considered dam-caused pollution, it might have decided to leave control over dams to the states, allowing the states to develop integrated plans addressing both water quality and quantity. Id. at 179. No such plans have ensued in the more than two decades since the court's decision.

(70) Id. at 181. In support of this conclusion, the court cited the 1977 amendments' replacement of "best available technology" for nontoxic pollutants with the more cost-sensitive "best conventional pollutant control technology." Id.

(71) Id. at 181-82. However, there is nothing in either the district or appellate court opinions to indicate that EPA systematically considered the severity of dam-induced pollution, the cost of regulating it, or the effectiveness of state controls. The D.C. Circuit did not think it was impractical to regulate dams, discounting EPA's claim that it would require two million permits and suggesting that most of the problem could be effectively confronted if the 3000 large dams producing hydropower were regulated. Id. at 182. The court did note that dam pollution is unique because its severity is partly a function of upstream pollutant sources and is highly site-specific, making promulgation of a generic "best available technology" regulation standard difficult. Id.

(72) Id. at 183. Professor Rodgers was unconvinced by the court's decision:
 Dams look very much like point sources--with single structures,
 observable effects, modifiable behavior. Nationwide, there are
 approximately 5500 power generating dams that would be considered the
 major sources.... Empirically, serious nitrogen supersaturation
 problems on the Columbia River were relieved only after years of
 operational adjustments at the individual federal dams on the river,
 suggesting problems suitable for individualized permit treatment. By
 contrast, the state experimentation with pollution control at dams,
 recommended by the jurisdictional allocation theory, is not in
 evidence.


RODGERS, supra note 10, at 316.

(73) Chevron, 467 U.S. 837, 843 (1984).

(74) Consumers II, 862 F.2d 580, 584-86 (6th Cir. 1988).

(75) Consumers I, 657 F. Supp. 989, 1005-09 (W.D. Mich. 1987).

(76) Consumers II, 862 F.2d at 585.

(77) Id. at 586. The dissent agreed with the district court's conclusion that the pumped storage facility "added" a "pollutant" in the process of discharging dead fish and fish remains. Id. at 590 (Jones, J., dissenting).

(78) WILLIAM H. RODGERS, JR., 2 ENVIRONMENTAL LAW: AIR AND WATER [section] 4.10 (1986); see also RODGERS, supra note 10, at 314 n.74:
 There is a plausible if not compelling textual case for the coverage
 of dams by the "point source" provisions. They certainly cause
 "pollution," as the term is defined, and appear to be responsible for
 "pollutants" if attention is paid to the historical breadth of the
 term. They even could be said to bring about some of their polluting
 potential by "adding" beds to the stream if a physical showing is
 required, which is doubtful since waste "heat" alone clearly passes
 muster as a "pollutant."


Id.

(79) See Catskill Mountains Chapter of Trout Unlimited v. City of New York (Catskill Mountains), 273 F.3d 481,485 (2d Cir. 2001).

(80) Id.

(81) Id. at 494.

(82) Id. at 489.

(83) Id. at 490 (relying on United States v. Mead Corp., 533 U.S. 218 (2001) and Christensen v. Harris County, 529 U.S. 576 (2000)).

(84) Id. at 491 (quoting Christensen, 529 U.S. at 587).

(85) Id.

(86) Id. (citing Mead, 533 U.S. at 235).

(87) Id. at 492.

(88) Id

(89) Id.

(90) However, the effect of Catskill Mountains could be quite significant. For example, in the Ninth Circuit, where irrigation canals are "waters of the United States" subject to Clean Water Act jurisdiction (Headwaters v. Talent Irrigation, 243 F.3d 526 (9th Cir. 2001)), the Second Circuit's conclusion that there is an "addition of a pollutant" where there are adverse water quality effects from a transfer from one water body to another could lead to new permit requirements for irrigation ditches. Mark Morford, Stoel Rives law finn, Remarks at The Clean Water Act Turns 30: Celebrating Its Past, Predicting Its Future (Lewis & Clark Law School, Oct. 17, 2002); see also the Eleventh Circuit's decision in Miccosukee Tribe of Indians of Florida v. S. Fla. Water Mgmt. Dist, 280 F.3d 1364 (11th Cir. 2002), where the court held that flood control operations pumping water with high levels of phosphorus from a canal into a water conservation area added pollutants, requiring a Clean Water Act permit. The court ruled:
 When a point source changes the natural flow of a body of water which
 contains pollutants and causes that water to flow into another
 distinct body of navigable water into which it would not have
 otherwise flowed, that point source is the cause-in-fact of the
 discharge of pollutants. And, because the pollutants would not have
 entered the second body of water but for the change in flow caused by
 the point source, an addition of pollutants from a point source
 occurs.


Id at 1368-69 (emphasis in original).

(91) Dams are not completely beyond Clean Water Act regulation, however. Where federal dams produce violations of state water quality standards, they are subject to section 313's directive that they comply with applicable federal, state, or local pollution control requirements, even if they produce only nonpoint source pollution. See 33 U.S.C. [section] 1323 (applying to all federal activities resulting in the discharge or runoff of pollutants); Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 92 F. Supp. 2d 1072 (D. Or. 2000), where the district court ruled that section 313 required the U.S. Army Corps of Engineers to operate its four dams on the Lower Snake River to meet state water quality standards. Subsequently, the court determined that a Corps' operating plan for the dams satisfied section 313. Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 99-CV-442-FR (D. Or. Jan 9, 2003). As of this writing, an appeal of this decision to the Ninth Circuit appeared likely. See also Robin Kundis Craig, Idaho Sporting Congress v. Thomas and Sovereign Immunity: Federal Facility Nonpoint Sources, the APA, and the Meaning of "In the Same Manner and to the Same Extent as Any Nongovernmental Entity," 30 ENVTL. L. 527, 537 (2000) (noting that section 313 requires compliance by federal facilities only if the state also requires nonfederal nonpoint sources to comply with state water quality standards). However, in the case of dams, nonfederal hydropower dams licensed by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C. [sub section] 791-825 (2000), must obtain state water quality certification under section 401(a)(1) of the Clean Water Act, 33 U.S.C. [section] 1341(a)(1). See Michael C. Blumm & Viki A. Nadol, The Decline of the Hydropower Czar and the Rise of Agency Pluralism in Hydroelectric Licensing, 26 COLUM. J. ENVTL. L. 81, 96108 (2001) (discussing the requirement that FERC-licensed dams must obtain Section 401 state water quality certification). Thus, under the "equal protection" promise of section 313, federal dams should be required to meet water quality standards as well.

(92) The John Day is the only river in the Upper Columbia Basin where salmon spawnswithout dams and without hatcheries. To reach the John Day, salmon must pass two Corps of Engineers dams on the mainstem Columbia.

(93) For example, as Professor Houck reports:
 Cattle grazing has long been recognized as a primary source of
 pollution in western waters, which tend to be scarce to begin with
 and lack the volume to flush, mix, and biodegrade, and otherwise
 accommodate the loads of oxygen demand and sediments input directly
 from livestock manure and indirectly from destabilized riparian
 zones. There are 2 million livestock across the West today, and
 there have been as many as 20 million at times in this century.
 They congregate at, on, and in any water source at hand. An adult
 cow produces more than 80 pounds of manure per day, nearly 16 tons
 per year. In all bovine innocence, they trample streambanks into
 mudslides and pound their watering holes into so-called sacrifice
 areas and water gaps. With the loss of vegetation comes the loss of
 shade, the onset of thermal pollution and serious algal bloom.
 Overgrazing, even on lands miles distant from western watercourses,
 leads to accelerated runoff from period storms, further degrading
 water quality.


HOUCK, supra note 7, at 95.

(94) ONDA fried suit under the Clean Water Act's citizen suit provision, 33 U.S.C. [section] 1365 (2000), and the Administrative Procedure Act, 5 U.S.C. [section] 702 (2000). The other environmental plaintiffs were Rest the West, the Oregon Natural Resources Council, the Oregon Wildlife Federation, the Pacific Rivers Council, the Portland Audubon Society, the Northwest Environmental Defense Center, and Trout Unlimited. The Oregon Natural Resources Coalition joined in the appeal.

(95) 33 U.S.C. [section] 1341 (2000).

(96) See generally BLUMM, supra note 21, at 53-86 (discussing Pacific Northwest Indian treaties and their judicial interpretation).

(97) Fred Hansen, General Manager, Tri-County Metropolitan Transportation District of Portland, Remarks at The Clean Water Act Turns 30: Celebrating Its Past, Predicting Its Future (Lewis & Clark Law School, Oct. 17, 2002). Mr. Hansen, Deputy EPA Administrator at the time of Dombeck, recalls arguing that the government should not have adopted the Forest Service's position, but the Justice Department did not agree. We maintain that EPA, expressly entrusted by Congress with the administration of the Clean Water Act, 33 U.S.C. [section] 1251(d), bears responsibility for allowing the Forest Service's interpretation to become the government interpretation put before the courts.

(98) The state's lack of interest in exercising its own authority lends support to Professor Houck's assertion that the state certification battle was perhaps much ado about not much, because certification "is in many states a routine and meaningless formality." HOUCK, supra note 7, at 97 (suggesting that the requirements of section 313 of the statute, requiring federal facilities to comply with state nonpoint requirements to the same extent as other nonpoint source users (see supra note 91) would bear more fruit).

(99) The court determined that ONDA had standing even though no member of the organization lived near Camp Creek because its members recreated in the vicinity, and the pollution from the grazing was allegedly the result of defective government procedures. Or. Natural Desert Ass'n v. Thomas, 940 F. Supp. 1534, 1538 (D. Or. 1996). The Warm Springs Tribe satisfied the standing threshold on similar grounds. Id.

(100) Id. (relying on Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995), for the proposition that citizen suits are appropriate to enforce either effluent or water quality standards violations). Although the court noted that ONDA sought review under both the Clean Water Act and the Administrative Procedure Act (Thomas, 940 F. Supp. at 1536) it did not address the APA claim, because it found jurisdiction under the Clean Water Act's citizen suit provision. Id. at 1538.

(101) Id. at 1539.

(102) Id at 1539-40 (citing 33 U.S.C. [sub section] 1362(16) (definition of "discharge") and 33 U.S.C. [section] 1362(12) (definition of "discharge of a pollutant")).

(103) Id at 1540 (citing, inter alia, Gorsuch II, 693 F.2d 156, 172 (D.C. Cir. 1982)); see also Alia S. Miles, Searching for the Definition of "Discharge": Section 401 of the Clean Water Act, 28 ENVTL. L. 191, 213 (1998) (noting that of 20 definitions in section 502 of the Clean Water Act, only in the definition of "discharge" did Congress use the word "includes," and suggesting that the language should be interpreted to mean "but is not limited to," rather than "means").

(104) Thomas, 940 F. Supp. 1534, 1540 (D. Or. 1996).

(105) Id, also noting that "a post hoc rationalization by an agency counsel, when the agency itself has not taken a position prior to litigation, is not entitled to deference." Id.

(106) Id. at 1540-41.

(107) Id. at 1541 (quoting 115 Cong. Rec. 28,970 (1969) (statement of Sen. Cooper)).

(108) Id.

(109) Thomas, 940 F. Supp. at 1541. See Miles, supra note 103, at 228-28 (concluding that the district court's opinion was supported by the language of the statute, its legislative history, and its structure).

(110) The court upheld the district court's determination that ONDA had standing, concluding that its members live adjacent to the John Day River and use it for recreation and are injured by the pollution produced by the permitted grazing. Dombeck, 172 F.3d 1092, 1094 (9th Cir. 1998). The court observed that by alleging a procedural injury (a lack of water quality certification), the plaintiffs burden of proving immediacy and redressability are reduced. Id. (relying on Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)). The appeals court did not address the standing of the Warm Springs Tribes.

The Ninth Circuit also ruled that the suit was authorized by the Clean Water Act's citizen suit provision, noting that the provision authorizes any citizen to bring a suit against a federal agency alleged to be in violation of section 401's requirement of obtaining state water quality certification, not just those agencies allegedly violating point source discharge limitations imposed by state certification. Id. at 1095. The court also rejected an argument that the Clean Water Act authorized suits only to challenge water quality certifications that had been issued.

Id.

(111) Id

(112) Id. at 1096.

(113) Id. "Regulators had to work backward from an overpolluted body of water and determine which entities were responsible; proving cause and effect was not always easy.... [Moreover], [t]he scheme focused on 'the tolerable effects rather than the preventable causes' of pollution." Id. (quoting Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1316 (9th Cir. 1990) (quoting EPA v. State Water Res. Control Bd., 426 U.S. 200, 202-03 (1976))).

(114) Id.

(115) See supra note 107 and accompanying text (discussing Judge Haggerty's ruling); see also No, west Envtl. Advocates, 56 F.3d 979, 986 (9)th Cir. 1995) ("[N]owhere does Congress evidence an intent to preclude the enforcement of water quality standards that have not been translated into effluent discharge limitations.... [The 1972 amendments were] intended to improve enforcement, not supplant the old system.") (emphasis in original).

(116) Nonpoint source controls may, however, be enforceable under state law. However, most state nonpoint source programs are hortatory, vague, and unenforceable, and virtually no state authorizes citizen suits against nonpoint source polluters.

(117) Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998) (citing Or. Natural Res. Council v. U.S. Forest Serv., 834 F.2d 842, 850 (9th Cir. 1987) (ruling that reference to state water quality standards in section 301(b)(1)(C) of the Act, 33 U.S.C. [section] 1311(b)(1)(C), applied only to point sources)).

(118) See infra notes 146-58 and accompanying text (discussing the Pronsolino decisions).

(119) Prior to 1972, section 401 required certification that all federally licensed activities would not violate state water quality standards. Dombeck, 172 F.3d at 1097 (citing Pub. L. No. 91-224, [section] 21(b)(1), 84 Stat. 91 (1970)).

(120) Id. (quoting S. REP. No. 414, at 69 (1971)).

(121) Craig N. Johnston, 1998-The Year In Review, 29 ENVTL. L. 69, 91-94 (1999).

(122) Dombeck, 172 F.3d at 1097-98.

(123) Id. at 1097.

(124) Id. at 1097-98. Section 401 references sections 301, 302, 303, 306, and 307 of the Act. 33 U.S.C. [section] 1341(a) (2000). The court also rejected ONDA's claim that the Supreme Court indicated the Act should be interpreted more broadly because in PUD No. 1 v. Wash. Dept. of Ecology, 511 U.S. 700 (1994), the Court upheld a state water quality certification that imposed minimum streamflows, even though those conditions did not relate to a discharge from the water project. Dombeck, 172 F.3d at 1097-98. According to the Ninth Circuit, that Supreme Court case involved a point source (the court erroneously supposed the project at issue involved a dam--it actually involved a water diversion into an off-stream hydroelectric facility), and therefore was distinguishable from federal land grazing. Id.

(125) Id. at 1098. Section 313 would appear to require that an issuance of a federal permit for activities producing runoff must comply with state water quality standards if the state required similarly situated nonfederal activities to comply with water quality standards. 33 U.S.C. [section] 1323(a) (2000). However, the court noted that violations of section 313 were not actionable under the Clean Water Act's citizen suit provision. Dombeck, 172 F.3d at 1098 (citing 33 U.S.C. [section] 1365(f)). The court did not mention that ONDA sought review under both the Clean Water Act and the Administrative Procedure Act. See supra note 94.

(126) Federal Water Pollution Control Act, 33 U.S.C. [section] 1362(16) (2000) ("The term 'discharge,' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.").

(127) Dombeck, 173 F.3d at 1098.

(128) Id. at 1098 (citing Gorsuch II, 693 F.2d 156 (D.C. Cir. 1982) (interpreting "discharge" to include turbid water not containing any pollutant)). The court also rejected the Warm Springs Tribes' argument that the cattle wading into the John Day River and defecating there are sufficiently similar to point source discharges as to be subjected to permit requirements because the term "point source" does not include a human being or an animal. Id. The court also dismissed the tribes' claim that the cattle amounted to a "concentrated animal feeding operation" (a defined "point source") because EPA regulations require operations of this size to be certified by the state NPDES program director. Id. at 1099.

(129) Id. at 1098.

(130) 33 U.S.C. [section] 1251(a), (a)(2) (2000). For a sophisticated analysis of other provisions of the Clean Water Act to control federal nonpoint source pollution in the wake of Dombeck, see Peter M. Lacy, Addressing Water Pollution from Livestock Grazing after ONDA v. Dombeck: Legal Strategies Under the Clean Water Act, 30 ENVTL. L. 617 (2000) (examining the TMDL program, discussed in the next section, as a long-term strategy, and section 313, requiring federal facilities to comply with state nonpoint source requirements, as a short-term strategy to improving water quality).

(131) EPA has interpreted TMDLs to apply to nonpoint sources since 1973, when the agency's interim regulations required that in their water quality planning process, states would identify "water quality segments," waterbodies not meeting water quality standards, and establish TMDLs for those waterbodies, "including consideration of nonpoint source contributions." Identifying Impaired Waterbodies and Establishing Total Maximum Daily Loads (TMDLs), 38 Fed. Reg. 8035, 8037 (1973) (codified at 40 C.F.R. [section] 130.24 (1973)). For water quality segments, states had to identify allocation for nonpoint sources where feasible, id. at 8037 (codified at 40 C.F.R [section] 130.25(b) (1973)), and "identify, evaluate, and, to the extent practicable establish controls over nonpoint sources of pollutants." 38 Fed. Reg. at 8037 (codified at 40 C.F.R. [section] 130.29 (1973)).

EPA's final regulations in 1974 retained the required identification of water quality segments and the setting of TMDLs in the states' continuing planning process, requiring states to target allocations for nonpoint sources. Water Quality Planning and Management, 39 Fed. Reg. 19,634, 19,641 (1974) (codified at 40 C.F.R. [section] 131.305(a) (1974)). The purpose was to establish controls for certain nonpoint sources, including agriculture, silvaculture, mining, construction, salt water intrusion, and others. Id at 19,641 (codified at 40 C.F.R. [sub section] 131.305-131.306).

EPA reorganized its regulations in 1975, but continued to require states to identify nonpoint source "control needs." 40 Fed. Reg. 55,343, 55,345 (codified at 40 C.F.R. [section] 131.11(f), (g), (j) (1975)). States still had to set TMDLs for water quality segments, including a gross allotment for nonpoint sources. Id. [section] 131.11(f)(3).

In 1985, EPA comprehensively revised its regulations, and those regulations remain in effect as of this writing. The revised regulations required states to identify "water quality-limited segments" (a nomenclature change) and set TMDLs for those segments, including "load allocations" (another nomenclature change) for nonpoint source pollution where necessary to meet water quality standards. 50 Fed. Reg. 1774, 1779 (1985) (codified at 40 C.F.R. [sub section] 130.2(h), 130.7(1985)); see also infra note 137.

EPA's latest attempt to revise its regulations in 2000, see infra note 193, was not at issue in the Pronsolino case.

(132) See 33 U.S.C. [section] 1313(d), (e) (2000).

(133) Id. [section] 1313(b).

(134) Id. [section] 1313(d).

(135) Id. [section] 1313(d)(2). Professor Houck's book explains that EPA ignored its responsibility under section 303(d) for years--until environmentalists instituted a series of successful suits that eventually convinced EPA to take belated action to implement the provision. HOUCK, supra note 7, at 49-63; see also id., app. B 183-84 (chart of all TMDL-related litigation as of 1999, by state).

(136) See Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 Envtl. L. Rep. (Envtl. L. Inst.) 10,415, 10,416 (1998); Nina Bell, TMDLs at a Crossroads: Driven by Litigation, Derailed by Controversy?, 22 PUB. LAND & RESOURCES L. REV. 61, 62-63 (2001) (reporting that TMDL lawsuits were fried against EPA in 38 states, resulting in 20 court orders to produce TMDLs in 18 different states); Adler, supra note 11, at 205 (noting that the citizen suits have rejuvenated the TMDL program).

(137) To meet water quality standards, EPA requires states to impose additional controls on point sources through what it terms "wasteload allocations" and imposes changed operations on nonpoint sources through "load allocations." EPA defines a "wasteload allocation" as "[t]he portion of a TMDL's pollutant load allocated to a point source of a pollutant for which an NPDES permit is required. For waterbodies impaired by both point and nonpoint sources, wasteload allocations may reflect anticipated or expected reductions of pollutants from other sources if those anticipated or expected reductions are supported by reasonable assurance that they will occur." Water Quality Planning and Management, 40 C.F.R. [section] 130.2(g) (2002). The agency defines "load allocation" as "[t]he portion of a TMDL's pollutant load allocated to a nonpoint source, storm water source for which a National Pollutant Discharge Elimination System (NPDES) permit is not required, atmospheric deposition, ground water, or background source of pollutants." Id. [section] 130.2(f).

(138) See supra note 131.

(139) See Adler, supra note 11.

(140) Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998).

(141) 33 U.S.C. [section] 1313(e)(3)(F) (2000).

(142) Pac. Coast Fed. of Fishermen's Ass'n v. Marcus, No. 95-4474 MHP (consent decree, March 6, 1997) (agreeing to establish a TMDL for the Garcia River and 16 other rivers that had been recently added to the states list of impaired waters under section 303(d)(1)(A) of the statute, 33 U.S.C. [section] 1313(d)(1)(a)).

(143) See Pronsolino v. Marcus (Pronsolino I), 91 F. Supp. 2d 1337, 1339-40 (N.D. Cal. 2000); Garcia River TMDL, (March 16, 1998), available at www.epa.gov/Region9/water/ tmdl/garcia/garcia.pdf.

(144) Pronsolino I, 91 F. Supp. 2d at 1138. The state thought that if it did not implement EPA's TMDL, EPA could withdraw the state's pollution control money. Id. at 1340.

(145) Id. at 1341-43, 1345, 1352, 1355.

(146) Id. at 1346-52 (construing section 303(d) of the Act, its legislative history, and Ninth Circuit case law). The cases central to the court's analysis were Alaska Ctr. for the Env't v. Browner, 20 F. 3d 981, 985 (9th Cir. 1994) ("Congress and the EPA have already determined that establishing TMDLs is an effective tool for achieving water quality standards in waters impacted by non-point source pollution."); and Dioxin/Organochlorine Center v. Clark, 57 F.3d 1517, 1520 (9th Cir. 1995) ("A TMDL represents the cumulative total of all 'load allocations which are in turn best estimates of the discrete loading attributed to nonpoint sources, natural background sources, and ... individual point sources.").

Judge Alsup also rejected the landowner's argument that TMDLs are required only for "pollutants," a term associated with point sources. The court concluded that the Ninth Circuit had already decided that "pollutant" included sediment, which is what the EPA TMDL sought to reduce. Pronsolino I, 91 F. Supp. 2d at 1351 (citing Rybacheck v. EPA, 904 F. 2d 1276, 1285-86 (9th Cir. 1990) and Idaho Conservation League v. Thomas, 91 F.3d 1345, 1347 (9th Cir. 1996)). The court had more trouble with the fact that the statutory definition of "pollutant" was something "discharged" into water, especially in light of the Dombeck court's limitation of "discharges" to point sources for purposes of state water quality certification. However, the district court observed that the statute referred to nonpoint sources of pollutants with some frequency. Id at 1352 (citing sections 105(d), 304(e), 305(b)(1)(E), and 201(d)(2) of the Act). The court also noted that EPA's position about TMDLs including nonpoint sources has been consistent, and the agency never represented that it lacked authority to issue a TMDL for nonpoint sources. Id. at 1354 n.17. For criticism of the district court's reasoning, see Man(ii M. Hale, Pronsolino v. Marcus, the New TMDL Regulation, and Nonpoint Source Pollution: Will the Clean Water Act's Murky TMDL Provision Ever Clear the Waters?, 31 ENVTL. L. 981, 995-1002 (2001) (objecting to the court's conclusion that Congress intended to include nonpoint sources within TMDLs, but acknowledging that defining the term "pollutant" was within EPA's discretion).

(147) Pronsolino v. Nastri (Pronsolino II), 291 F.3d 1123, 1140-41 (9th Cir. 2002).

(148) Id. at 1133. The court noted that even if EPA was not entitled to Chevron deference, the agency was still owed substantial deference under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), because EPA was interpreting "a complicated, science-driven statute" for which it possessed delegated regulatory authority. Pronsolino II, 291 F.3d at 1133. Under Skidmore, a court defers to an agency's position if that position is persuasive. See id.

(149) Id. at 1133-34 (citing Water Quality Planning and Management, 40 C.F.R. [section] 130. 11(d)(1) (1973)) (the regulation was renumbered as section 130.2(o)(1) in 1976) (defining a "water quality" segment as a water body not meeting water quality standards regardless of the pollution source, in juxtaposition to an "effluent limitation" segment, which was a water body not meeting water quality standards due to point sources). See State Continuing Planning Process, 38 Fed. Reg. 8034 (1973) (explaining the 1973 regulation).

(150) Pronsolino II, 291 F.3d at 1134-35 (noting that the agency's interpretation was, "at the very least," entitled to Skidmore deference). See supra note 131 (explaining the evolution of EPA's TMDL regulations).

(151) Pronsolino II, 291 F.3d at 1135 (quoting from section 303(d)(1)(A), 33 U.S.C. [section] 1313(d)(1)(A)); see also id at 1137 (noting that the Ninth Circuit in Dioxin/Organochlorine Center v. Clark, 57 F.3d 1517, 1528 (1995), upheld EPA's setting of TMDLs for toxic pollutants, even though the effluent limitations referenced in section 303(d)(1)(A) did not apply to toxic pollutants).

(152) Id. at 1138. Section 303(a)-(c), 33 U.S.C. [section] 1313(a)-(c), establish the requirements for water quality standards; section 303(e), 33 U.S.C. [section] 1313(e), is the continuing planning process provision, one provision of which--section 303(e)(3)(F)--requires state plans to "account for the elimination of nonpoint source pollution to the extent necessary to meet [water quality] standards." Pronsolino II, 291 F.3d at 1138-39.

(153) Pronsolino II, 291 F.3d at 1138 (noting that sections 208 and 319, 33 U.S.C. [subsection] 1288, 1329, are qualified by the phrases "to the extent feasible" and "to the maximum extent practicable").

(154) Id. at 1139 (observing that the list of impaired waters required by section 303(d)(1)(A), 33 U.S.C. [section] 1313(d)(1)(A), clearly does not differentiate between the source of the pollution, and noting that section 303(d)(1)(C) requires setting of TMDLs for waters on the section 303(d)(1)(A) list).

(155) Id. The court also rejected the landowner's argument that establishing TMDLs for waters impaired only by nonpoint source pollution would impermissibly intrude on the states' traditional control over land use under the dicta of the Supreme Court in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001). The court noted that the Garcia River TMDL leaves implementation issues, such as specifying the exact load of pollutants from particular parcels of land, to the state, allowing the state to choose whether if and how to implement the TMDL. Pronsolino II, 291 F.3d at 1140. A state choosing not to implement a TMDL might risk losing federal funding of its water pollution program. Id.

(156) 33 U.S.C. [subsection] 1313(d)(2) (granting EPA's authority to promulgate federal TMDLs); 1313(b)-(c) (granting EPA's review and approval of state standards and authority to promulgate federal standards).

(157) Id. [section] 1313(e)(3)(F) (stating that EPA is to ensure that states achieve compliance with water quality standards). Presumably, a state that failed to take effective action to meet water quality standards would be subject to losing federal grant money. See Pronsolino II, 291 F.3d at 1140.

(158) See supra notes 120-23 and accompanying text (discussing Dombeck).

(159) Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903 (1965) [hereinafter 1965 Act]; see Oliver A. Houck, The Clean Water Act TMDL Program V: Aftershock and Prelude, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,385, 10,406 (2002).

(160) See John Harleston, What is Antidegradation Policy: Does Anyone Know?, S.C. ENVTL. L.J. 33, 39-41 (1996) (Before EPA was created in 1970, the Interior Department had jurisdiction over water pollution control.).

(161) 1965 Act, supra note 159, [section] 1, to authorize the antidegradation policy he announced in 1968. See Harleston, supra note 160, at 40.

(162) Establishment of Water Quality Standards, 40 Fed. Reg. 55,334, 55,341 (Nov. 28, 1975) (codified at 40 C.F.R. [section] 130.17(e) (1976). EPA amended the regulations eight years later, making minor changes to the policy that is still in effect. Water Quality Standards Regulation, 48 Fed. Reg. 51,405 (Nov. 8, 1983) (codified at 40 C.F.R. [section] 131.12 (2002)). See Harleston, supra note 160, at 40-47 (comparing the 1968, 1975, and 1983 versions of antidegradation policy).

(163) Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987). The amendments added section 303(d)(4)(B), 33 U.S.C. [section] 1313(d)(4)(B), which authorizes revision of discharge limits or water quality standards on high-quality waterbodies only in conformance with the antidegradation policy. In 1990, Congress again ratified the antidegradation policy in the Great Lakes Critical Programs Act of 1990. Pub. L. No. 101-596, 104 Stat. 3001 (1990) (codified at 33 U.S.C. [section] 1268(c)(2)(A), (C)). See Harleston, supra note 160, at 47-48; Adler, supra note 11, at 215.

(164) Establishment of Water Quality Standards, 40 C.F.R. [section] 131.12(a)(1) (2002).

(165) Id. [section] 131.12(a)(2).

(166) Id. [section] 131.12(a)(3). Outstanding national resource waters include waters in national and state parks and wildlife refuges and other waters of exceptional recreational or ecological significance. Id.

(167) EPA's Tier I antidegradation regulations do not quantify the degree of degradation allowed. They require only that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." Establishment of Water Quality Standards, 40 C.F.R. [section] 131.12(a)(1) (2002). However, since the Supreme Court sustained EPA's interpretation that point source discharges do not violate state antidegradation standards absent "actually detectable or measurable changes in water quality" (Arkansas v. Oklahoma, 503 U.S. 91, 111-13 (1992)), it would seem quite likely that the application of antidegradation standards to nonpoint sources would also require a detectable change in water quality.

(168) EPA has admitted that "[t]he designation of water bodies as ONRWs [Outstanding National Resource Waters] has been limited in its application. Overall, there are relatively few water bodies designated as ONRWs in the United States, although some States have designated a high percentage of State waters as ONRWs. Several States have been reluctant to adopt ONRWs because of concerns regarding the process for adopting ONRW classifications and the level of protection afforded to a water once it is classified as an ONRW.' Water Quality Standards Regulation, 63 Fed. Reg. 36,742, 36,786 (July 7, 1998) (codified at 40 C.F.R. [section] 131 (2002)). See Judith M. Brawer, Antidegradation Policy and Outstanding National Resource Waters in the Northern Rocky Mountain States, 20 PUB. LAND & RESOURCES L. REV. 13, 20 (1999) (noting that there are few waterbodies designated as ONRWs throughout the country).

(169) EPA regulations require states to determine, after public participation, that allowing lower water quality is necessary for essential economic or social development in the geographical area in which the waters are located. 40 C.F.R. [section] 131.12(a)(2) (2002). The state must obtain EPA approval to allow degradation of water quality. Id

(170) Am. Wildlands v. Browner (Am. Wildlands II), 260 F.3d 1192, 1197 (10th Cir. 2001).

(171) The suit was Fried in the district court of Colorado, the site of EPA's regional office with oversight over Montana. Thus, even though the state of Montana is in the Ninth Circuit, the case was filed in the Tenth Circuit. The environmental plaintiffs were American Wildlands, Pacific Rivers Council, the Montana Environmental Information Center, and the Northern Plains Resource Council. Am. Wildlands v. Browner (Am. Wildlands I), 94 F. Supp. 2d 1150 (D. Colo. 2000).

(172) Id. at 1155.

(173) Id.

(174) Mixing zones are small areas of a water body near a discharge point where a pollutant first enters a water body, and where water quality standards need not be met, because dilution allows the standard to be met outside the designated mixing zone without impairing the integrity of the water body or the organisms in it, or posing heath risks. See id. at 1162. The court sustained the exemption of mixing zones from narrative water quality standards, despite environmentalist's claims that the state provided no substantive restrictions on the size, shape, or location of mixing zones, and gave no assurance that designated uses would be protected, because the court determined that EPA's mixing zone criteria were only suggestive and the state "has made efforts to protect water quality criteria of mixing zones" through its permit system for point sources. Id. at 1163 (citing state provisions requiring that mixing zones be the smallest practicable size, have a minimum practicable effect on water uses, and have definable boundaries). The court also upheld exemption of mixing zones from antidegradation requirements on the basis of an EPA guidance document, which it considered a more specific "law" than the antidegradation policy. Id. at 1164.

(175) Id. at 1155-56. The court cited several affidavits from members of the plaintiff environmental groups stating that those individuals drink, fish, swim, and use various Montana waters for agricultural and domestic use as sufficient injury in fact, and it noted that these injuries could be redressed by an EPA rule for Montana's waters. Id.

(176) Id. at 1157. The court concluded that there was no substantive difference between "substantial evidence" review and "arbitrary and capricious" review, "since it is impossible to conceive of a 'nonarbitrary' factual judgment supported only by evidence that is not substantial in the APA sense." Id. (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994)).

(177) Id. at 1159. The court also noted that "[a]dditionally, EPA argues, because there is no permit procedure for nonpoint source pollution, it would be unrealistic to regulate nonpoint source pollution through its antidegradation policy." Id.

(178) Id. at 1160 (quoting Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1318 (10th Cir. 1994)).

(179) The court did, however, note that EPA's Water Quality Standards Handbook, which asserted that water quality standards applied to all waters and all sources of pollution, claimed that "[i]mplementation may not be possible in all circumstances." Id. at 1161.

(180) Id. at 1161, 1162. The statement in the text is the Tenth Circuit's interpretation of what agencies must do to satisfy judicial review under the arbitrary and capricious standard, as set forth in Olenhouse, 42 F.3d at 1574. Curiously, the court also suggested that the state was due deference in implementing water quality standards. Am. Wildlands I, 94 F. Supp. 2d at 1161.

(181) Am. Wildlands I, 94 F. Supp. 2d 1150, 1161 (D. Colo. 2000). On the ineffectiveness of education and voluntary compliance, see Oliver A. Houck, Clean Water Act Developments, 1999-2000, SE55 ALI-ABA, 107, 109 (Feb. 9, 2000) (explaining that EPA's use of voluntary compliance programs to control nonpoint sources allowed nonpoint source pollution to grow into a national problem); and see Oliver A. Houck, Clean Water Act and Related Regimes, CA 37 ALI-ABA, 295, 298 (Feb. 14, 1996) (noting that voluntary compliance programs to abate nonpoint source pollution have produced little improvement).

(182) Am. Wildlands II, 260 F.3d 1192, 1197 (10th Cir. 2001).

(183) Id. at 1196-97.

(184) Id. at 1197.

(185) Id.

(186) Id. at 1198.

(187) Id.

(188) Id. at 1198 (citing 40 C.F.R. [section] 131.13). The Tenth Circuit also upheld EPA's decision to allow the state to exempt mixing zones from antidegradation review, noting that mixing zones are authorized by EPA's water quality standards regulations. Id. The court thought that mixing zones were "a practical necessity" and were recognized by other courts, and the court claimed that the state included measures aimed at ensuring that mixing zones do not damage the water quality of the whole water body. Id.

(189) Id. at 1193.

(190) 33 u.s.c. [section] 1313(b) (2000).

(191) Id. [section] 1313(d)(2).

(192) Id. [section] 1313(e)(3)(F).

(193) In 2000, EPA finally seemed to acknowledge its central role in ensuring that nonpoint source pollution does not thwart the goals of the Clean Water Act when it promulgated revised TMDL regulations. Revisions to Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,588 (2000) (codified at C.F.R. [subsection] 9, 122-24, 130 (2002)). The rules maintained the jurisdiction of the TMDL program over nonpoint sources, see supra note 131, but added a requirement that states establish a schedule that would lead to setting TMDLs on all waterbodies that required them within ten years, although that time period could be extended five years. Id. at 43,591. The regulations also required states to provide "reasonable assurance" that the load allocations of TMDLs will be met. Id.

The regulations proved extremely controversial. The American Farm Bureau and a number of other challengers fried suits. Those organizations helped convince Congress to prohibit EPA from implementing the rules before the end of fiscal year 2001, while a National Academy of Sciences panel studied the TMDL program. The NAS panel concluded in 2001 that there was sufficient science underpinning the program and made a number of other recommendations aimed at improving the program, including using biological as well as chemical and physical criteria to determine water quality. The new Bush Administration responded to the report first by proposing to delay the effective date of the TMDL regulations until March 2003, and then withdrawing the regulations in October 2001, claiming it would reissue them within eighteen months. See Linda A. Malone, The Myths and Truths that Threaten the TMDL Program, 32 Envtl. L. Rep. (Envtl. L. Inst.) 11,133, 11,138 (2002) (discussing the controversy in greater detail and providing documentation); see also Bell, supra note 136, at 72-73 (describing legal attacks on the TMDL program).

(194) Am. Wildlands II, 260 F.3d 1192, 1198 (10th Cir. 2001).

(195) President's Message to Congress Accompanying Reorganization Plans 3 (establishing EPA) and 4 (establishing the National Oceanic and Atmospheric Administration) (July 9, 1970), reprinted in 6 WEEKLY COMP. PRES. DOC. 908 (1970).

(196) Federal Water Pollution Control Act, 33 U.S.C. [section] 1252(a) (2000).

(197) Milwaukee v. Illinios, 451 U.S. 304, 318 (1981) (emphasis in original) (quoting S. REP. No. 92-414, at 95 (1971) reprinted in 1971 U.S.C.C.A.N. 3669, 3757).

(198) See supra notes 119-30 and accompanying text.

(199) See supra notes 20-78 and accompanying text.

(200) See supra notes 104-30 and accompanying text.

(201) See supra notes 170-94 and accompanying text.

(202) These difficulties are largely political in nature, as neither EPA nor the states have had the will to confront the pollution produced by farming, timber, and mining operations. See Malone, supra note 193. Devising effective nonpoint source controls is hardly rocket science, as Professor Houck has pointed out: "[T]he control technologies for nonpoint source pollution (e.g., shelter-belts, nutrient caps, retention ponds) are anything but unknown, complex, technologically difficult, or even very costly." Houck, supra note 136, at 10,424.

(203) U.S. GEN. ACCOUNTING OFFICE, FEDERAL ROLE IN ADDRESSING--AND CONTRIBUTING TO-NONPOINT SOURCE POLLUTION 18 (1999).

(204) Id.

(205) Id. at 25 (reporting $14 billion in federal spending for fiscal years 1994-98, which has since increased); Id. at 11.

(206) See supra notes 156-157 and accompanying text.

(207) See supra note 161 and accompanying text.

(208) We suggest 1) in the Second Circuit, challenging the pollution produced by dam operations not involving an interbasin water transfer, as in Catskill Mountains--alleging EPA's interpretation is, in Judge Green's words, "overly literal ... technical ... tortured ... counter to expressed congressional intent ... [and inconsistent with a proper interpretation of] broadly remedial legislation" (supra notes 34, 38-39 and accompanying text), and claiming that for these reasons EPA's position lacks persuasiveness, especially in light of the agency's apparently inconsistent interpretation of the term "addition" in the context of wetland fill (supra note 56 and accompanying text); 2) challenging federal grazing permits or timber sales producing nonpoint source pollution exceeding state water quality standards for failing to have a section 401 certification in a circuit outside the Ninth Circuit--alleging that the Ninth Circuit (and EPA) has repudiated the assumption that there is no federal role in nonpoint source pollution, the assumption underlying its Dombeck decision, in its subsequent Pronsolino decision; and 3) challenging the next state, outside the Tenth Circuit, seeking to follow Montana's example and exempt nonpoint source pollution from antidegradation review--claiming that the Tenth Circuit, by giving Chevron deference to EPA's approval, applied the wrong standard of review, and that the exemption lacks persuasiveness in light of the statutory goal to protect and restore the integrity of the nation's waters. In short, while awaiting the appointment of an EPA Administrator willing to interpret statutory ambiguities and gaps in light of the Clean Water Act's express objective, we advocate judicial revisiting of these "roads not taken."

MICHAEL C. BLUMM * & WILLIAM WARNOCK **

* [c] Michael C. Blumm, 2003. Professor of Law, Lewis & Clark Law School. Thanks to Erin Tobin (2L) for research assistance.

** Articles Editor, Environmental Law, 2002-2003; J.D. expected May 2003, Lewis & Clark Law School; B.A. 1998, Washington and Lee University.
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Date:Jan 1, 2003
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