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
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