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such %atzonal Wiidate Federation v. Gorsuch IS ERC 1 1 13 <br /> i to The Wildlife Federation presents sev- sue information on methods for control- <br /> is eral arguments for reduced deference to ling "nonpoint" pollution due to <br /> iical EPA, none of which we find persuasive. "changes in the movement, flow, or circu- <br /> ajor 1 First, it claims that EPA's narrow defini- lation of any navigable waters or ground <br /> did r Lions of"addition" and "pollutant" in the waters, including changes caused by the <br /> i of <br /> r::: context of dam-caused pollution are in- construction of dams, levees, channels, <br /> we "�' consistent with its pursuit in other con- causeways, or flow diversion facilities." In <br /> ctor texts of broad definitions of "point the district court, EPA claimed that this <br /> was _ 4 source" and "pollutant."34 The district section was totally irrelevant.35 In this <br /> court agreed. 530 F.Supp. at 1304, 1311. court, it argues that §304(f)(2)(F) dem- <br /> We, however, find no inconsistency in onstrates congressional intent that some <br /> °ous EPA's taking a broad view of its statutory dam-caused water quality changes should <br /> once mandate in some situations and a narrow- be treated as nonpoint source pollution. <br /> See However, even if counsel for EPA has <br /> U.S. er view here, even though the same <br /> also statutory terms are involved. The factual rethought its legal argument,36 EPA has <br /> Ana- contexts in which EPA has broadly con- never changed its basic position that <br /> 37 strued the scope of the §402 permit dams generally do not require NPDES <br /> ion, ro m are too disparate from this one permits. Thus, any inconsistency in EPA's <br /> tes, `. to permit facile comparison. And EPA has statutory argument would at most be <br /> id cause not to defer to the agency on the <br /> c de never advocated the unlimited definition narrow question of the relevance of <br /> 55 of "pollutant" urged by the Wildlife §304(f)(2)(F), not reason to withdraw <br /> icii, Federation, nor the Federation's liberal deference to EPA on its underlying posi- <br /> 09] view of what constitutes an "addition" <br /> from a point source tion concerning dams. <br /> . <br /> V. Third, the Wildlife Federation argues <br /> 531 Second, the Wildlife Federation argues that EPA has never thoroughly consid- <br /> ght that EPA has been inconsistent in switch- ered whether dams require tiPDES per- <br /> of ing its position on appeal as to the mits.37 We agree that the "thoroughness <br /> ... relevance of §304(f)(2)(F), 33 U.S.C. <br /> ") § 1314(f)(2)(F), which directs EPA to is- 35 Memorandum in Support of Defendant <br /> .2d CoStle's Motion to Strike Post-Trial Brief at 1- <br /> 5)); Amendments. Hearings on H.R. 3199 Before the 4,J.A. at 41-44. <br /> V. House Comm. on Public Works and Transportation, 36 On consideration of a number of docu- <br /> i56 95th Cong., 1st Sess. 136-216 (1977), 1977 ments explaining EPA's interpretation of <br /> 31) Leg. Hut. 1399-1472 (statement of Douglas §304(f)(2)(F), it is possible to discern a consis- <br />)n] ; Cosde,Administrator, EPA). tent agency position, overstated on occasion in <br /> sx On the limited deference due when the course of litigation: the section reflects <br />)r's congressional understanding that some dam- <br /> Congress may have been unaware of the induced water quality problems are nonpoint <br /> , agency' interpretation, see SEC v. Sloan, 436 <br /> am s source pollution (thus it would be improper to <br /> U.S. 103, 121 (1978) ("We are extremely treat all dam-induced water problems as point <br />)b_ hesitant to presume general congressional source pollution), but does not indicate which <br /> far F awareness of the Commission's construction dam-caused problems are nonpoint pollution <br /> ib- ' based only upon a few isolated statements in (thus, the section does not preclude a finding <br /> ed the thousands of pages of legislative docu- that any particular pollution problem involves <br /> PA ments."); United States v. Rutherford, 442 a point source of pollutants). See EPA Brief at <br /> is U.S. 544. 554 n.10 (1979); Zuber v. Allen, 396 30-34; EPA Reply Brief at 10-12; Defendants' <br /> als U.S. 168, 185 & n.21 (1969); Sierra Club v. Joint Post-Trial Brief at 15-16 & n.30,J.A. at <br /> ng EPA, 540 F.2d 1114, 1126 [9 ERC 11291 (D.C. 49, 52-53 &n.30; Letter from Fred Disheroon, <br /> S�e Cir. 1976), vacated and remanded on other grounds, Attorney for EPA, to Hon. C. Weston Houck, <br />.of 434 U.S. 809 [10 ERC 17531 (1977). United States District Judge for the District of <br /> m- 34 Wildlife Federation Brief at 38-39; see South Carolina, concerning South Carolina <br /> in_ j Natural Resources Defense Council, Inc. v. Wildlife Federation v. Alexander, Civ. No. 76- <br /> ss.. Costle, 568 F.2d 1369, 1382 (10 ERC 20251 2167 (11 ERC 2045] (Feb. 21, 1980),J.A. at <br />,ig, (D.C. Cir. 1977); Sierra Club v.Abston Constr. 131 (South Carolina involved the same issues <br />'d- Co., 620 F.2d 41 [14 ERC 1984] (5th Cir. presented in this case, in the context of three <br /> 77 1980); United States v. Earth Sciences, Inc., specific dams); cf. United States v. Earth <br /> 61 599 F.2d 368, 374 (13 ERC 14171 (10th Cir. Sciences, Inc., 599 F.2d 368, 371-73 (10th Cir. <br /> 1979) (all approving broad EPA definition of 1979) (accepting EPA view that some mining <br /> i7r._ "point source"); United States v. Hamel, 551 discharges are regulable under §402 even <br /> 39:, F.2d 107, 110 [9 ERC 19321 (61h Cir. 1971) though "mining activities" are listed as non- <br /> 17: ; (gasoline is a pollutant even though not specif- point source pollution in §304(f)(2)(B)). <br /> 1ct- ically mentioned in the statutory definition). 37 Wildlife Federation Brief at 39-41. <br />