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<br /> 18 ERC 1 1 16 .rational Wildlife Federation Gorsuch
<br /> But if the agency's construction neither U.S.C. § 1362(6) — "dredged spoil, solid
<br /> contradicts the language of the statute waste, incinerator residue, sewage, gar-
<br /> } nor frustrates congressional policy, our bage, sewage sludge, munitions, chemical
<br /> inquiry is a limited one. The agency's wastes, biological materials, radioactive
<br /> construction must be upheld if, in light of materials, heat, wrecked • or discarded
<br /> i the appropriate degree of deference, it is equipment, rock, sand, cellar dirt and
<br /> "sufficiently reasonable," even if it is not industrial, municipal, and agricultural
<br /> "the only reasonable one or even the waste discharged into water."4, These
<br /> reading the court would have reached" dam-induced changes are water conditions,
<br /> ! on its own. Democratic Senatorial Campaign not substances added to water. Section
<br /> Committee, 454 U.S. at 39; see Zenith Radio 502(6), however, primarily lists sub-
<br /> Corp. v. United States, 437 U.S. 443, 450 stances; "heat" is the only listed water
<br /> j (19 7 8); Train v. Natural Resources Defense condition.48 Moreover, the wording of
<br /> i Council, Inc., 421 U.S. 60, 75, 87 [7 ERC §506(6) makes us cautious in adding new
<br /> 17351 (1975).46 terms to the definition. Congress used
<br /> [2] Our analysis proceeds in two stages. restrictive phrasing — "[t]he term `pouu-
<br /> Section A considers the language and tant' means dredged spoil, [etc.]" — rath�
<br /> history legislative hif the specific substan- er than the looser phrase "includes,
<br /> a ry o s p used elsewhere in the Act.49 As a general
<br /> rive provisions of the Act relating to
<br /> dams; section B then considers the gener- rule, " `[a] definition which declares what
<br /> al legislative purposes underlying the a term "means" ... excludes any meaning
<br /> Act. We conclude from that analysis that that is not stated.' " Colautti v. Franklin,
<br /> EPA's interpretation of the specific provi- 439 U.S. 379, 392 n.10 (1919) (quoting
<br /> sions of the Act is reasonable and not C. Sands, Statutes and Statutory Construction
<br /> inconsistent with the lea slative purposes §47.07 (4th ed.Supp. 1982)).
<br /> ' and so must be upheld. The Wildlife Federation argues that
<br /> •� � A. Specific Substantive Provisions supersaturation and changes in tempera-
<br /> ; ture and oxygen level are indisputably
<br /> ! To briefly restate the issue before us,
<br /> ' dams can release water into the down- 47 In South Carolina Wildlife Federation v.
<br /> stream river which is low in dissolved Alexander, No. 76-2167-2, —F.Supp.
<br /> oxygen, contains dissolved minerals and slip op. at 24 (D.S.C. Apr. 26, 1982) (South
<br /> nutrients, is warm or cold, contains ex- Carolina I!), the court found that "low oxygen
<br /> cess sediment, or is supersaturated. The water ... fits easily within the scope of a
<br /> v or all of chemical waste' of the hydroelectric process.'
<br /> statutory question is whether an
<br /> We disagree. While oxygen is a chemical, EPA
<br /> these conditions constitute the "addition can reasonably believe that its absence does
<br /> of any pollutant to navigable waters from not constitute a"waste."
<br /> any point source" so as to require EPA to 48 Congress recognized that heat was differ-
<br /> issue NPDES permits for dams under ent in kind than the other listed pollutants.
<br /> §402• The House bill contained a separate definition
<br /> 1. "Pollutant for "thermal discharge." H.R. 11,896, 92d
<br /> Cong., 2d Sess. §502(17) (1972), reprinted in 1
<br /> Low dissolved oxygen, cold, and super- Congressional Research Service, Environmen-
<br /> saturation do not plainly fall within the tal Policy Division, 93d Cong., 1st Sess., A
<br /> statutory list of pollutants in §502(6), 33 Legislative History of the Water Pollution Control Act
<br /> Amendments of 1972, at 893, 1071 (Comm. Print
<br /> 46 In one recent case, the Supreme Court 1973) [hereinafter cited as 1972 Leg. Hilt. ].
<br /> apparently adopted an even narrower standard This definition does not appear in the Act as
<br /> enacted, but Congress did make special provi-
<br /> of review — Federal Reserve Board staff
<br /> Iopinions :east:ling, the Truth in Lending Act sion for thermal discharges in §316(a), 33
<br /> were to be upheld unless "demonstrably irra- U.S.C. § 1326(a), which permits EPA to relax
<br /> tional." Ford Motor Credit Co. v. Milhollin, the §402 technology-based effluent limits so
<br /> 444 L".S. 555, 565 (1980). But we believe that long as the discharge will not prevent the
<br /> this standard was meant to apply only to the "propagation of a balanced, indigenous popu-
<br /> ' i I Truth in Lending Act, for which there was lation of shellfish,fish,and wildlife."
<br /> I i powerful evidence that Congress intended "to 49 See, e.g., 33 U.S.C. § 1362(14) " `point
<br /> i treat administrative ... interpretation [of the source' means any discernible, confined and
<br /> I Act] as authoritative." Id. at 567-68. In the discrete conveyance, including but not limited
<br /> f usual case where congressional intent concern- to ... "); id. § 1321(a)(1) (" 'oil' means oil of
<br /> ! ing deference to the agency is weaker or less any kind or in any form, including, but not
<br /> clear, the "sufficiently reasonable" test ap- limited to ... "); id. § 1321(a)(2) (" 'discharge'
<br /> plies. includes, but is not limited to ...
<br />
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