1994-05-19_GENERAL DOCUMENTS - M1977378

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:i 13 ERC 1126 Vational Wildlife Federation v. Gorsuch _ 3. Policy Considerations forms of NPDES limits (x°ro reduction in Finally, as a policy matter (and recog- biochemical oxygen demand (BOD) or y nizing our limited role in reviewing agen- Pounds of BOD Per ton of industrial cy policy decisions) we are not convinced output) would entail major costs at one that EPA's decision to leave dam regula- dam, and only minor costs at another. cion to the states was so misguided as to Thus, is would be difficult at best for EPA frustrate congressional policy. EPA con- to determine what level of reduction is obtainable by using the "best available tends that requiring permits for 2,000,000 dams would be an impossible technology economically achievable task. Yet, so far as the record shows, ry for S C each "category or class" of polluter. Act §301(b)(2)(.�), 33 most, if not all of the dams that cause Clean Water water quality problems are large hydro- U.S.C- § 1311(b)(2)(A) (emphasis added). electric dams. Thus, the number of dams Control that is economically feasible at that would require permits is probably no one site may be infeasible at another.76 more than the 50,000 "large" dams in the Conversely, major expenditures might be countrY,73 and quite possibly only the required for dams where, say, dissolved ! 3,000 or so dams that are large enough to oxygen levels are slightly reduced imme- generate significant amounts of hydro- diatelv below the dam, but not enough to harm fish, and the river is fully reaerated electric power.74 That is a manageable number even if it turns out to be imprac- within a few miles. tical to issue categorical permics.75 Nor Finally, we cannot say, on the record are we persuaded by EPA's argument that before us, that federal intervention is . because the NPDES program requires needed because the states have abdicated discharge of pollutants to be eliminated their §208 responsibility over a truly to the extent technologically feasible, it pressing national problem. The record will preclude beneficial dam-caused water does not show how vigorous state en- changes, such as cold water discharges to forcement has been, but at least some j support a trout fishery. It should be efforts have been made to remedy dam- feasible for EPA to define "pollutant" to caused pollution.77 Supersaturation and exclude beneficial water quality changes. sediment releases appear to be minor On the other hand, dam-caused pollu- problems. As discussed earlier, tempera- ture' Lion is unique because its severity de- changes are not always harmful, are not easily controllable at single-ou pends partly on whether other sources tlet have polluted the upstream river. The dams, and can apparently be readily controlled at multiple-outlet dams. Low NPDES program, however, requires EPA t dissolved oxygen and dissolved minerals o issue nationally uniform standards, and nutrients are the most serious prob- and thus would not allow the agency to lems, but EPA has the authority, when it take full account of the interrelationship reviews state water pollution control between dam-caused pollution and other pollution sources. :�loreover, dams area plans, to insist if need be on stronger efforts in the future. Also, new dams major component of state water manage- meat, providing irrigation, drinking wa- ter, flood protection, etc. In light of these stl:e water quality requiremeacs; thus the complexities, which the NPDES program problem is largely limited to existing was not designed to handle, it may well dams.78 be that state areawide water quality plans 76 Control costs will also vary from one are the better regulatory tool. industrial plant to another.As Congress recog- Also, the severity of dam-caused pollu- nized in requiring cost-benefit analysis only for tion is highly site-specific. Common each class or category of sources and not for each individual source, some inefficient plants 73 Joint Statement of Material Facts, supra may be forced to dose. See E.I. du Pont de note 4, 13,J.A. at 26. Nemours &Co. v.Train,430 U.S. 112, 128-33 74 National Wildlife Federation, Petition for (197 7) (discussing legislative history of$301). ' Rulemak:ng under the Federal Water Pollution Con- But apparently variation in the cost of pollu- trol Act 1 (Feb. 28, 1978),J.A.at 117. cion control is likely to be less at industrial 73 Cf. Natural Resources Defense Council, plants than at dams. Also, one cannot simply Inc. v. Costle, 568 F.2d 1369, 1380-82 (D.C. shut down an old dam; environmental effects Cir. 1977) (rejecting EPA claim that it would will remain. be infeasible to issue permits for 400,000 77 See note 9 supra;note 78 infra. a¢ricultural and silvicultural point sources). 78 See §401(a)(2), 33 U.S.C. $ 1341(a)(2).