1994-05-19_GENERAL DOCUMENTS - M1977378

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)rsuch National Wildlife Federation v. Gorsuch 13 ERC 1121 )nex- lems to the states, at least for the time .... logy- being: (F) changes in the movement, flow, or vater Section 208 ... may not be adequate. circulation of any navigable waters or ition It may be that the States will be reluc- ground waters, including changes they tans to develop [adequate] control caused by the construction of dams, n to measures ... and it may be that some levees, channels, causew•ays, or flow at 8, H time in the future a Federal presence diversion facilities. can be justified and afforded. In its view, this section demonstrates that But for the moment, it is both neces- congressional intent that some water DES sary and appropriate to make a distinc- quality changes caused by dams be regu- nted tion as to the kinds of activities that are lated as nonpoint pollution.63 But even osen to be regulated by the Federal Govern- under the Wildlife Federation's reading, i re- ment and the kinds of activities which downstream bank erosion due to de- ead, are to be subject to some measure of creased sediment load or variable water was local control. releases, saltwater intrusion due to re- nts" Id. at 10, 1977 Leg. Hist. 644. Consistent duce flow, and pollution of the reservoir with this view of its intent to give the itself would be nonpoint source pollu- 9 a chance to show that they could do tion.64 Thus, Congress' mention of dam- states✓iew the job, we note that Congress chose to induced changes in §304 as nonpoint itrol exempt irrigation return flows from the source pollution provides only mild sup- ider NPDES program even though they were port for EPA's position since some dam- causedient amenable to point source control. Clean water quality changes will be vice i Water Act of 1977, §33(c), 33 U.S.C. treated as nonpoint polluuon in any me- § 1342(1); see Natural Resources Defense event. -ols. Council, Inc. v. Costle, 568 F.2d 1369, Even less relevant are the references to Lion 1372-7 3 (D.C. Cir. 1977) (discussing pri- dams in §404 (dredge and fill permits ?m't or NPDES permit requirements for imga- required for, among other things, con- of tion return flows). struction of new dams) and § 102(b) (use )5th In short, the admittedly important of dams to regulate streamflow). That M, place of the NPDES permit program in Congress created a special section to deal Ad- the Clean Water Act does not convince us with dredge and fill problems caused by that EPA's interpretation of its scope, as dams as well as many other construction [ear far as dam-cause pollution is concerned, activities tells us little about what it would Ant is unreasonable.62 have done about the dam-caused prob- to 4. Provisions Specifically Refemng to lems at issue here, had it focused on on- Dams them. Similarly, because it affirmatively was recognized one beneficial Several other sections of the statute water quality )cal refer specifically to dams. To the very effect of dams in § 102(b) does not tell us _08 limited extent that these sections are what it would have wanted to do about relevant, they support EPA and hence other, harmful effects of dams. reinforce our conclusion that EPA's posi- B. The Purposes of the Act au- Lion is reasonable. In particular, EPA We conclude, then, on the basis of the on- relies on §304(f)(2)(F) 33 U.S. text and history of the Act, that EPA's , the construction of relevant substantive pro- -se, § 1314(f)(2)(F), which requires it to devel- visions is reasonable. We consider next ro- op: - the Wildlife Federation's argument, sc- ent processes, procedures, and methods to ce ted by the district court, that-EPA's control [nonpoint source] pollution re- p gym' suiting from— construction nonetheless will plainly frus- isi= trate the general congressional purposes 5,b- 02 Also: a necessary predicate to the Wildlife underlying the Act. We find that it does Federation's argument is its belief that dam- not. Hof caused pollution is in fact amenable to point i in ' source controls. EPA argues, however, that 63 EPA Brief at 30-34; see notes 35-36 supra i dams may not be amenable to the nationally and accompanying text for our attempt to (26 uniform controls contemplated by §402 be- decipher EPA's argument. :ep• cause pollution problems are highly site-spe- 64 Wildlife Federation Brief at 17. The site-spe- cific, and its expert judgment on such matters contrary statement in South Carolina II, supra )ry. . must be given great weight. EPA Brief at 37- note 47,—F.Supp. at—, slip op. at 31, relied fat 39;Affidavit of Steven Schatzow,supra note 12, on by EPA, must be rejected as factually "` l R 9 10-12,J.A. at 99-101. incorrect.