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18 ERC 1 1 1 2 Nat:onal Wildlife Federatzon v. Gorsuch i
<br /> erence: "Under these circumstances, and has been consistently adhered to
<br /> ' EPA's interpretation cannot be accepted since.3i Also, construction of the Act is
<br /> merely because it is the agency adminis- likely to require scientific and technical '
<br /> 1 tering the [Clean Water Act]." Id. at experti5e.32 Moreover, during a major
<br /> i 1312. revision of the Act in 197 7, Congress did
<br /> In this appeal, EPA and the Wildlife not object to EPA's characterization of
<br /> Federation largely repeat the statutory dams as nonpoint sources, although we
<br /> arguments they raised below. In addition, give only modest weight to this factor
<br /> 3; EPA argues that the district court failed since it is not clear that Congress was
<br /> a
<br /> to givesufficient deference to EPA's aware of EPA's interpretation.13
<br /> interpretation of the Act. 31 Both consistency and contemporaneous
<br /> construction increase the amount of deference
<br /> II. Deference To EPA to be given to an agency's interpretation. See
<br /> Zenith Radio Corp. v. United States, 437 U.S.
<br /> �+ [1] Because we agree with the district 443, 450 (1978). On consistency, see also
<br /> court that neither the language of the Act Federal Election Comm'n V. Democratic Sena-
<br /> nor its legislative history conclusively corial Campaign Comm., 454 U.S. 27, 37
<br /> (1981). On contemporaneous construction.
<br /> supports either side's interpretation of see also Adamo Wrecking Co. v. United Scaces.
<br /> §402, we make a threshold. inquiry into 434 L.S. 275, 287 n.5 [9 ERC 1443] (1978); id.
<br /> how much deference to ye to EPA's at 302 (Stevens,J., dissenting); E.I. du Pont de
<br /> construction. In our view, the district Nemours & Co. v. Collins. 432 U.S. 46, 55
<br /> court erred in failing to give enough (1981); Natural Resources Defense Council,
<br /> deference to EPA's construction of the Inc. v. Train, 510 F.2d 692. 706 [1 ERC 12091
<br /> Act. First, as a general rule, courts must (D.C. Cir. 1975).
<br /> give " `great deference to the interpreta- 3Y See E.I. du Pont de Nemours & Co. v.
<br /> icon given the statute by the officers or Train. 430 U.S. 112, 135 n._5 [9 ERC 1753]
<br /> agency charged with its administration.' " (1977) (noting the need for deference in light
<br /> EPA v. :Vational Crushed Stone Assoczation, of " `the complexity and technical nature of
<br /> the statutes and the subjects they regulate ...
<br /> : 449 U.S. 64, 83, [15 ERC 2091 (1980) and EPA's unique experience and expertise' ")
<br /> (footnote omitted) (quoting Udall v. Tall- (quocinz American Meat Inst. v. EPA. 526 F2d
<br /> ' t : man, 380 U.S. 1, 16 (1965)).29 Here, EPA 442, 450 n.16 [8 ERC 1369] (7th Cir. l915));
<br /> i certainly has responsibility for adminis- Natural Resources Defense Council. Inc. v.
<br /> tering the Act. Indeed, since deference is United States Envtl. Protection Agency, 636
<br /> "ultimately `a function of Congress' in- F.2d 768. 774 [16 ERC 14171 (D.C. Cir. 1981)
<br /> ' ("[w]here the issue [of statutory construction]
<br /> tent,' " Process Gas Consumers Group v.
<br /> f presented involves questions of scientific ex-
<br /> United Stales Department of Agriculture, No. pertise ... we defer to the Administrator's
<br /> 7 9-1336, — F.2d —, — slip op. at 29 znterpretauon").
<br /> (D.C. Cir. Oct. 1, 1982) (en banc) (quot- 33 Two early EPA reports, EPA 1973 Dam
<br /> ing Constance v. Secretary of Health &Human Report. supra note 5, and EPA 1975 Dam Report,
<br /> Ser✓ices, 672 F.2d 990, 995 (1st Cir. supra note 13, treat dam-caused water prob-
<br /> z 1982)), we find it noteworthy that lems as nonpoint source pollution. But, so far
<br /> Congress expressly meant EPA to have as the record shows, the first document sub-
<br /> milted to Congress that identified dam-caused
<br /> not only substantial discretion in admin-
<br /> istering' problems as nonpoint source pollution is EPA
<br /> some power to define the specific terms
<br /> j the Act generally, but also at least 97- Resort to Congress, supra note 3, which is
<br /> dated October, 1978. Nor did EPA officials
<br /> "point source" and "poilutant."30 inform Congress of the agency's views during
<br /> Several other factors point to increased their testimony on the 1977 amendments. See
<br /> deference due to EPA's interpretation. Federal Water Pollution Control Act Amendments of
<br /> i EPA's construction was made contempo- 1977: Hearings Before the Subcomm. on Environ-
<br /> mental Pollution of the Senate Comm. on Environ- ;
<br /> raneously with the passage of the Act, me^t :rd Public Works, 95th Cong., 1st Sess. {
<br /> !f I 29 See also Federal Election Comm'n v. 619-65 (1977) (statement of Thomas Joriing,
<br /> Democratic Senatorial Campaign Comm., 454 Assistant Administrator for Water and Hazard-
<br /> U.S. 27, 37 (1981) ("deference should pre- ous Materials, EPA) [hereinafter cited as 1977
<br /> sumptively be afforded" to rulemaking agen- Senate Hearings], reprinted in 4 Congressional
<br /> I cy); E.I. du Pont de Nemours & Co. v. Collins, Research Service, Environmental Policy Divi-
<br /> sion. 95th Con 2d Sess., A Legulatzve History
<br /> 432 U.S. 46, 54-35 (1977); Kirkhuff v. Nimmo, g
<br /> o the Clean Water Act of 1977, at 1093-1139 i
<br /> 683 F.2d 544, 549 (D.C. Cir. 1982). f
<br /> 30 See notes 54-55 infra and accompanyingg Hut. Federa8(Comm. Print 197 )water 1Pollut:an1CControl9Act
<br /> text.
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