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.
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