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<br /> r 18 ERC 1122 Valzonal Wildlife Federation v. Gorsuch
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<br /> h1. The Text of the "Purposes" Section those limit5.66 Moreover, the purposes
<br /> The district court, in giving "pollutant" section, in its own right, suggests that
<br /> and "addition" a broad reading, relied Congress recognized that the substantive
<br /> heavily on the "purposes" section of the provisions of the Act fall short of tom-
<br /> - ' Act, § 101(a), 33 U.S.C. § 1251(a). That pletely achieving the announced goals of
<br /> section declares (emphasis added): the Act. Congress hedged the purposes
<br /> ' section by making it apply only as "con-
<br /> The objective of this [Act] is to restore
<br /> l' and maintain the chemical, physical, sistent with the provisions of this [Act],'
<br /> .s k and explicitly distinguished bet-ween the
<br /> , and biological integrity of the Nations congreioal �,
<br /> r waters. In order to achieve this objec- chargesof noxicpolicy pollutan� andsnate the prie-
<br /> 1� tive it is hereby declared that, consis- sumably weaker "goal" of eliminating
<br /> tent with the provisions of this [Act] — discharge of all pollutants.
<br /> (1) it is the national goal that the Moreover, even if we accept the pur-
<br /> poses of pollutants into the navi-
<br /> gable waters be eliminated by 1985; poses section at face value, it is only
<br /> suggestive, not dispositive of whether
<br /> (2) it is the national goal that wherever attainable, an interim goal EPA must issue NPDES permits for dams.
<br /> Caution is always advisable in relying on
<br /> of[fishable and swimmable] water be a general declaration of purpose to alter
<br /> achieved by July 1, 1983; the apparent meaning of a specific provi-
<br /> ' (3) it is the national policy that the sion. Here, Congress expressed goal to
<br /> discharge of toxic pollutants in toxic eliminate "the discharge of pollutants"
<br /> amounts be prohibited .... does not necessarily require that we ex-
<br /> Undeniably, Congress' strong state- pansively construe the term "pollutant,"
<br /> ment of its objective must color EPA's which Congress itself specifically defined.
<br /> and our interpretation of specific provi- As for the interim goal of fishable and
<br /> ' sions of the Act. But, as any student of swimmable water, the purposes section
<br /> the legislative process soon learns, it is does not tell us how that goal is to be
<br /> one thing for Congress to announce a achieved. And Congress, although recog-
<br /> grand goal, and quite another for it to nizing the weaknesses of past state water
<br /> mandate full implementation of that goal. pollution efforts, explicitly chose not to
<br /> Read as a whole, the Clean Water Act completely federalize water pollution
<br /> shows not only Congress' determined control, but instead directed the states to
<br /> effort to clean up our polluted lakes and establish their own pollution control pro-
<br /> rivers, but also its practical recognition of grams under EPA oversight. Had it con-
<br /> the economic, technological, and political sidered the matter, Congress might well
<br /> limits on total elimination of all pollution have decided that dam-caused pollution
<br /> from all sources. The Act contains nu- was a problem best addressed through
<br /> merous requirements that cost be taken state programs.
<br /> into account in establishing effluent lim- In addition to our general doubts,
<br /> its,65 as well as assorted exemptions from expressed above, about how heavily to
<br /> 63 E.g., 33 U.S.C. § § 1311(b)(2)(A) ("best rely on the broad goals of the Act, we find
<br /> available technology economically achievable" specific indication in the Act that
<br /> ! Congress did not want to interfere any
<br /> for toxic pollutants), 1311(b)(2)(E) ("best con-
<br /> ventional pollution control technology" for more than necessary with state water
<br /> "conventional" pollutants);see B.Ackerman,S. management, of which dams are an im-
<br /> Rose-Ackerman, J. Sawyer & D. Henderson, portant component. Section 101(g),. 33
<br /> supra note 2, at 319 ("A thorough reading of U.S.C. § 1251(g), states:
<br /> f the Act ... makes it apparent that the legisla-
<br /> tors were unwilling to accept the enormous Entitled "The Federal Water Pollution Con-
<br /> social costs which [the zero-discharge] posi- trol Act Amendments of 1972," at- 1 (Oct. 17,
<br /> f tion, if taken seriously, would entail.") (foot- 1972), 1972 Leg. Hut. 137, 137.
<br /> note omitted). 66 E.g., 33 U.S.C. §§ 1342(1) (exempting
<br /> Congress'concern with cost was undoubted- "return flows from irrigated agriculture" from
<br /> ly enhanced by the need to obtain enough the NPDES permit program), 1344(f)(1) (ex-
<br /> votes to override President Nixon's veto, empting certain discharges of dredged or fill
<br /> I which was based on the "unconscionable $24 material from NPDES permit requirements), '
<br /> billion price tag." Message from the President 1362(6) ("sewage from vessels" is not to be
<br /> i Returning Without Approval the Bill (S. 2770) treated as a"pollutant").
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