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7t- <br /> h vaizonal Wildlife Pederatzon v. Gorsuch <br /> 18 ERC 1111 <br /> n EPA argues, on the other hand, that for the matter, it would have included dams <br /> I t <br /> " addition of a pollutant. from a point in the permit program. ri reach this <br /> r s w lv on <br /> source to occur, the pont source must conclusion, it relied Pn goal lto e- <br /> e in the pollutant into navigable wa- Congress' expressed broad <br /> g P , ter from the outside world; dam-caused store and maintain the chemical, physical, <br /> n includingan interim <br /> pollution, in contrast, merely passes and biological integrity of the Nation's <br /> of <br /> _ through the dam from one body of navi- waters," <br /> ' gable water (the reservoir) into another fishable and swimmable water by 1983 <br /> n <br /> e (the downstream river).=6 Also, while and total cessation of the "discharge of <br /> conceding that all adverse water quality pollutants" by 1985. Clean Water Act <br /> t" changes are "pollution — broadly de- § 101(a), 33 U.S.C. § 1251(a); see 530 <br /> fined in §502(19), 33 U.S.C. § 1362(19), F.Supp. at 1304-06. <br /> as "the man-made or man-induced alter- On the meaning of§402's requirement <br /> anon of the chemical, physical, biological, of an "addition" of pollutants, the district <br /> it <br /> it and radiological integrity of water" — court believed that neither side's inter- <br /> e EPA argues that low dissolved oxygen, pretation of the statute was wholly saris- <br /> f cold, and supersaturation are not includ- factory. However, it found that EPA's <br /> e ed in the narrower statutory term "pollu- "overly literal and technical" construc- <br /> i- tans," defined in §502(6), 33 U.S.C. tion was the "more tortured" and was <br /> •s <br /> § 1362(6) as: also the reading less consonant with <br /> � goal. 530 <br /> t, dredged spoil, solid waste, incinerator Congress zero-discharge <br /> y residue, sewage, garbage, sewage F.Supp. at 1307. As for the distinction <br /> sludge, munitions, chemical wastes, bi- between "pollutant" and "pollution," the <br /> ological materials, radioactive materi- court believed that the statutory list of <br /> 3 als, heat, wrecked or discarded equip- pollutants was not exclusive. 'While'de- <br /> 3- rock, sand, cellar dirt and indus- clining to wholly equate "pollutant" and <br /> waste "pollution," it believed that low dissolved <br /> trial, municipal, and agricultural <br /> oxygen, cold, and supersaturation were <br /> ly discharged into water.27 <br /> In EPA's view, the Act divides the causes all similar enough to listed pollutants to <br /> s- and control of water pollution into two be among "the kinds of pollution [Con- <br /> ` categories, point sources of pollutants (regu- gress] intended to control through the <br /> 'r laced throu h the §402 permit program) NPDES program." Id. at 1311. The dis- <br /> g a trict court thus ruled in favor of the <br /> .o and nonpoint sources of pollution (regulated Wildlife Federation on the meaning of <br /> is by the states through "areawide waste both "addition" and "pollutant." Recog- <br /> treatment management plans" under <br /> 'r §2089 33 U.S.C. § 1288). The latter cafe- nizing that the large number vi dams to <br />'A gory is defined by exclusion and includes the country made issuing individual per- <br /> ti all water quality problems not subject to mits impractical, it ordered EPA to estab- <br /> in lish "effluent limitations or other perfor- <br /> of §402.28 mance standards for dams on a categori; <br />:al The district court acknowledged that cal, as opposed to a case-bv-case basis.' <br /> ve nothing in the Act or its legislative history Id at 1314. <br /> d. su gests that Congress thought about the In reaching this result, the district <br /> 4_ <br /> prececise issue before us: whether dam- court was "not unmindful" of the defer- <br /> 'g caused pollution should be regulated ence normally accorded to an a ency's <br /> g, y g <br /> under the NPDES permit program. 530 interpretation of its governing statute. Id. <br /> F.Supp. at 1303. The court concluded, <br /> i1 howvr, that had Congress considered at 1311. However, it believed that "[t]he <br /> ,� statutory interpretation involved here <br /> bring suit to require the Admini� - 'or "to does not require scientific expertise" and <br /> erform an act or duty ... which is not that EPA'sinterpretation "runs counter <br /> r p y to expressed congressional intent, and is <br /> it <br /> -- discretionary." <br /> 36 EPA Brief at 19-25; EPA Reply Brief at 4 inconsistent with its own implementation <br /> &n 2 of the Act in other contexts." Id. More- <br /> :: 29 EPA Brief at 26-29. over, EPA had put forward no policy <br /> Y8 See id at 7-8; Memorandum in Support of reasons why dams should not be regula[- <br /> Defendant Costle's Motion to Strike Posc-Trial <br /> ..i Brief at 2,J.A. at 41, 42 ("A`non-point source' ed as point sources; rather, "[i]ts enure <br /> oti a argument rests upon a dissection <br /> is nothing more than a pollution problem not erefof the <br /> involving a discharge from a poi ct." Id Therefore, the <br /> point source.") language of the A <br /> (emphasis in original). district court gave EPA only limited def- <br /> i <br />