|
Gorsuch Yattonai ;Viidli%e Federation v. Gorsuch 18 ERC 1123
<br /> irposes It is the policy of Congress that the 2. The Leg-slatwe History of the
<br /> its that authority of each State to allocate "Purposes" Section
<br /> itantive 1.. quantities of water within its jurisdic- In short, based on the text of the Act,
<br /> ,f com- - tion shall not be superseded, abrogat- EPA's interpretation cannot be said to
<br /> coals of ed, or otherwise impaired by this [Act]. plainly frustrate congressional purposes.
<br /> irposes ""`; In light of its intent to minimize federal Our review of the history of the 1912 Act
<br /> s "con- control over state decisions on water and the 1977 amendments also leaves us
<br /> [.act]," 'x quantity, Congress might also, if con- unsure what Congress would have decid-
<br /> ,en the fronted with the issue, have decided to ed to do about dam-caused pollution if it
<br /> ate dis- leave control of dams insofar as 'they had focused on the issue. Congress might
<br /> ie pre- affect water quality to the states. Such a have regulated dams under §402 (as the
<br /> inating policy would reduce federal/state friction Wildlife Federation desires), or under
<br /> and would permit states to develop inte- §208 (as EPA has done), or even under
<br /> e pur- grated water management plans that ad- an entirely new section specifically craft-
<br /> s only dress both quality and quantity. See R.R. ed to deal with dams.
<br /> hether Rep., supra note 52, at 96, 1972 Leg. Hut. On the one hand, the sponsors of the
<br />• Act successfully insisted on a zero-dis-
<br /> dams. 783 (In some states, "water resource
<br /> ing on development agencies are responsible for charge-of-pollutants goal despite strong
<br /> o alter allocation of stream flow and are required objection from both within and without.
<br /> to ive full consideration to the effects on The Senate took the stronger course;
<br /> cr
<br /> provi- a Senator Muskie, the Senate sponsor and
<br />;oal to water quality"; those states "should con-
<br /> itants„ tinue to exercise the primary responsibili- Principal force behind the bill, stated, in
<br /> eve ex- ty in both of these areas and thus provide the post-conference debate on the bill:
<br /> a balanced management control -sys- These [goals] are not merely the pious
<br />-rant 67 declarations that Congress so often
<br />'fined.. rem. ). makes in passing its laws; on the con-
<br /> e and 67 Section 101(g) was not intended to cake trary, this is literally a life or death
<br /> to be precedence over "legitimate and necessary proposition for the nation.
<br /> to be water quality considerations." 123 Cong. Rec. 118 Cong. Rec. 33,693 (1972), 1972.Leg.
<br /> recog- f 39,212 (1977), 1977 Leg. Hist. 532 (statement Hist. 164.68 But Senator Muskie also
<br /> water {! of Sen. Wallop, the sponsor of the amendment clarified that the zero-discharge-of-pollu-
<br />'lot to that added.§ 101(g)). However, with respect to [ants goal was not a legal command:
<br /> lution j one area where quality and quantity are in [T]he 1985 deadline for achieving no
<br />�tes to { conflict—salt-water intrusion caused by water
<br />,l Pro- diversion -for drinking or irrigation — discharge of pollutants is a policy ob-
<br /> p Congress explicitly declined to require the jective. It is not locked in concrete. It is
<br /> t con- states to control water quality. Section not enforceable. It simply establishes
<br /> t well 208(b)(2)(F)-(H), 33 U.S.C. § 1288(b)(2)(F)- what the committee thinks ought to be
<br /> lution (H) requires state areawide waste management done on the basis of present knowl-
<br />-ough plans to set forth "procedures and methods ... edge.
<br /> to control to the extent feasible" agricultural, 117 Cong. Rec. 38,800 (1971), 1972 Leg.
<br />)ubts, silvicultural, mine-related, and construction- Hist. 1262.69 And he recognized that zero
<br /> ily to related nonpoint sources. In contrast,
<br /> e find §208(b)(2)(I) requires the state plan merely to sources Board that it "was losing control of its
<br /> set forth procedures and methods to control water resources programs." 117 Cong. Rec.
<br /> that [salt water] intrusion to the extent feasible 10,256 (1971), 1972 Leg. Hut. 484-85.
<br /> any where such procedures and methods are otherwise a 68 See also 118 Cong. Rec. 36,873 (1972),
<br /> water part of the waste treatment management plan." 1972 Leg. Hut. 120 (statement of Sen. Muskie
<br /> a. im- (Emphasis added.) The italicized clause, not during debate on overriding the President's
<br />), 33 present in earlier versions of the bill,see, e.g., S. veto of the bill as too costly); id at 33,712,
<br /> 2770, 92d Cong.; . 1st Sess. -§209(b)(2)(I) 1972 Leg. Hut. 208-09 (statement of Sen.
<br /> (1971), 1972 L-g. Hut. 1597-98, was irtezded Tunney). For discussion of the controversy
<br /> Con- to prevent water quality goals from interfering over the zero-discharge goal, see, e.g., The
<br />;L 17, with state water allocation plans. See the Stormy Debate Over "Zero Discharge, "Bus. Week,
<br /> ,
<br /> House debate, in which Representative Waldie Feb. 5, 1972, at 70, 1972 Leg. Hist. 703; 118
<br />►rpting comments: "I have to conclude that this was a Cong. Rec. 10,788 (1972), 1972 Leg. Hist. 709-
<br /> from major weakening of this bill and that it was 10 (statement of Rep. Dingell) (quoting letter
<br /> (ex- done at the request of someone who does not from National Ass'n of Manufacturers oppos-
<br /> or fill desire to have salt water intrusion ... con- ing writing the goal into law).
<br /> mts), trolled in the bill"; and Representative John- 69 See also, e.g., 117 Cong. Rec. 38,820
<br /> to be son explains that the change reflects. the (1971), 1972 Leg. Hut. 1304 (statement of Sen.
<br /> '., concern of the California State Water Re- Cooper) ("I believe it would be a misinterpre-
<br /> .,�74
<br />
|