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<br /> :orsuch P
<br /> Valional WiL,.ie Federation v. Gorsuch 13 ERC 1107
<br /> nental Full Text of Opinion scribes these problems in detail, and we
<br /> -1354 will only summarize them here.!
<br /> 1337, Before: ROBINSON, Chief Judge;
<br /> 1. Low Dissolved Oxygen
<br /> 1363. WALD, and BORK, Circuit fudges. g-
<br /> ames - Opinion for the Court filed by Circuit Water released from a reservoir
<br /> !th A. fudge WALD. through a dam into downstream water
<br /> may be low in dissolved oxygen. The
<br /> brief WALD, Circuit Judge. The National river below the dam will remain oxygen-
<br /> t al., Wildlife Federation petitioned the district depleted for some distance, all
<br /> the
<br /> j 82' o court for a declaration that the Adminis- river will gradually become reaerated
<br /> ', 82- trator of the Environmental Protection through wind mixing as it flows down-
<br /> 1363. Agency (EPA) has a nondiscretio nary stream.= If the oxygen level is too low,
<br /> icker duty to require dam operators to apply fish cannot survive. Also, a river low in
<br /> ional i for pollutant discharge permits under oxygen has limited ability to break down
<br /> ,llant §402(a) of the Clean Water Act, 33 pollutants and other organic matter. Be-
<br /> U.S.C. § 1342(a), and for an order direct- cause dissolved oxygen is important both
<br />:eith ing her to perform that duty. The district for fish and for breakdown of organic
<br /> west court issued the requested declaration matter, it is an important measure of
<br />.335 and order, 530 F.Supp. 1291 [16 ERC water quality.3
<br /> 82- s 20251 (D.D.C. 1982), from which EPA Only large storage dams have low
<br /> and the numerous defendant-intervenors dissolved oxygen problems, and then
<br /> (principally electric utilities and water only during warmer months and only
<br /> I B.,wer agencies) now appeal. The sole issue is when water is released from the lower
<br /> 335, whether certain dam-induced water quali- part of the reservoir.} During .warm
<br /> and tv changes constitute the "discharge of a months, deep reservoirs, like deep natu-
<br /> an pollutant" as that term is defined in ral lakes, stratify into a cold, dense lower
<br /> §50202) of the Act, 33 U.S.C. laver and a warmer, lighter upper laver.
<br /> A. § 1362(12). The Wildlife Federation, The upper layer, called the "epilimnion,"
<br /> mal joined by plaintiff-intervenor State of is aerated by wind mixing; oxygen is also
<br /> in Missouri, argues that in light of the produced by photosynthesis. Thus, water
<br /> 82- remedial purpose of the Act, this phrase quality in the upper layer is good. The
<br /> Im- should be read broadly enough to cover lower level, called the "hypolimnion," is
<br /> for these dam-induced changes. EPA argues too deep to be aerated by wind action and
<br /> 135 for a narrower reading under which dams light levels are too low to support photo-
<br /> would not require discharge permits, but synthesis. Organic decomposition, which
<br /> would instead be regulated under state- consumes oxygen, leads to a continual
<br /> on net depletion of dissolved oxygen. Deple-
<br /> ter developed areawide waste treatment tion continues until "fail turnover," when
<br /> ici management plans pursuant to §208 of the two layers break up and the reservoir
<br />;2- the Act, 33 U.S.C. § 1288. Because we returns to full aeration.
<br />;2- believe that EPA's interpretation is end-
<br /> tied to great deference and that its view i The government does not dispute the
<br /> of the statute is reasonable, we reverse. district court's statement of the nature of the
<br /> or water quality problems caused by dams. See
<br /> 1 ' I. BACKGROUND EPA Brief at 11-14.
<br /> 5• 2 See Trial Transcript, Nov. 3, 1980, at 36-37
<br /> in (testimony of Dr. James Whitley); B. Acker-
<br /> al A. Dam-Induced Water Quality Changes man, S. Rose-Ackerman,J. Sawyer & D. Hen-
<br /> Dams cause a variety of interrelated derson, The Uncertain Search for Environmental
<br />.d water quality problems, both in reservoirs Quality_0 (1
<br /> 974).
<br /> For a more more extended discussion of the
<br /> n and in river water downstream fro n a relation between dissolved oxygen level and
<br /> e- dam. The Wildlife Federation claims that water quality, see B.Ackerman, S. Rose-Acker-
<br /> five of these problems — low dissol y ed man,J. Sawyer & D. Henderson, supra note 2,
<br /> oxygen, dissolved minerals and nutrients, at 18-28.
<br /> r = water temperature changes, 4 See Joint Statement of Material Facts No
<br /> 1,' sediment re- Longer In Dispute (Pan II of the Pretrial
<br /> n
<br /> lease, and supersaturation — require Order of Oct. 31, 1980), ¶¶ 13-16, Joint
<br /> EPA to regulate dams under the §402 Appendix ("j.A.") at 13, 15-11.
<br /> permit program. The district court's S Id. 1 115-18,J.A. at 16-18; Environmental
<br /> opinion, 530 F.Supp. at 1297-1303, de- Protection Agency, The Control of Pollution from
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