Defenders of Wildlife v. U.S. Environ. Protec.

• Decision Date: 06 July 2005
• Docket Number: No. 04-2151.,04-2151.
• Citation: 415 F.3d 1121
• Parties: DEFENDERS OF WILDLIFE; Forest Guardians, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1121

415 F.3d 1121

DEFENDERS OF WILDLIFE; Forest Guardians, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.

No. 04-2151.

United States Court of Appeals, Tenth Circuit.

July 6, 2005.

COPYRIGHT MATERIAL OMITTED

Alletta d'A. Belin, Belin & Sugarman, Santa Fe, NM, for Plaintiffs-Appellants.

Lane M. McFadden, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C. (Thomas L. Sansonetti, Assistant Attorney General, Lois Godfrey Wye, and Robert S. Oakley, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; and Cathy Winer, United States Environmental Protection Agency, Washington, D.C., with him on the briefs) for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, McWILLIAMS, and HARTZ, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiffs-Appellants Defenders of Wildlife and Forest Guardians are environmental advocacy groups. They filed suit challenging the Defendant-Appellee United States Environmental Protection Agency's ("EPA") approval of New Mexico's water quality standards as contrary to the federal Clean Water Act ("CWA"). See 33 U.S.C. § 1251 et seq. The Plaintiffs contend that the New Mexico regulation exempts pollutants emanating from flood control and irrigation facilities from five CWA-required water quality standards. See N.M. Admin. Code tit. 20, § 6.4.12. The District Court found the regulation ambiguous and held that EPA's reliance upon a state agency's informal interpretation of the regulation, which construed the regulation as consistent with the CWA, was not arbitrary and capricious. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

As this case involves the interplay of state water regulations and the federal CWA, we begin with an overview of the CWA. We then turn to the facts and procedural history that give rise to this appeal.

A. The Clean Water Act

The CWA was adopted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this goal, Congress prohibited the discharge from a "point source" of any pollutant into the waters of the United States unless that discharge meets specific requirements set forth in the CWA. 33 U.S.C. §§ 1311(a), 1362(14).¹ In order for point source discharges to comply with the CWA, such discharges must adhere to the terms of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to the CWA. 33 U.S.C. § 1342. NPDES permits are issued by the EPA or, in certain jurisdictions, by state agencies authorized to do so by the EPA. 33 U.S.C. § 1342(a)-(d).

Unlike point source discharges, non-point source discharges, which are the pollutants at issue in this case, are not defined by the CWA. Non-point source pollution has been described as "`nothing more [than] a [water] pollution problem not involving a discharge from a point source.'" Am. Wildlands v. Browner, 260 F.3d 1192, 1193-94 (10th Cir.2001) (quoting Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 166 n. 28 (D.C.Cir.1982)). At least in New Mexico, most non-point pollutants are from farming run-off and dam overflows.

Unlike point source pollutants, the EPA lacks the authority to control non-point source discharges through a permitting process; instead, Congress requires states to develop water quality standards for intrastate waters. 33 U.S.C. § 1313. Development of water quality standards involves three steps: (1) every applicable body of water in the state must be given a "designated use," such as public water supply, fish propagation, or navigation; (2) the state must specify water quality criteria for each body of water, which sets the amounts of various pollutants that may be present without impairing the body's designated use; and (3) each state must adopt an antidegradation review policy which allows the state to assess whether the water is deteriorating below the level necessary to sustain its designated use. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 130.3, 130.10(d)(4), 131.6, 131.10, 131.11; Am. Wildlands, 260 F.3d at 1194; City of Albuquerque v. Browner, 97 F.3d 415, 419 n. 4 (10th Cir.1996).

In addition to setting these water quality standards, states must identify all intrastate waters not satisfying these water quality standards and establish "total maximum daily loads" ("TMDL") for those waters. 33 U.S.C. § 1313(d). "A TMDL defines the specified maximum amount of a pollutant which can be discharged into a body of water from all sources combined." Am. Wildlands, 260 F.3d at 1194.

The EPA's role in formulating these water quality standards is limited. When states enact water quality standards, they must also submit them to the EPA's Regional Administrator to determine whether the new standard is consistent with the CWA. 33 U.S.C. § 1313(c)(2); 40 C.F.R. § 131.21(a). "The EPA must either approve the standard within sixty days of submission or—if the EPA determines that the standard is inconsistent with the Act—disapprove the standard and notify the state of any changes necessary to gain the EPA's approval." Am. Wildlands, 260 F.3d at 1194 (citing 33 U.S.C. § 1313(c)(3)). Should a state fail to make the required changes, the EPA must enact replacement standards that are consistent with the CWA and impose them upon the state. 33 U.S.C. § 1313(c)(3)-(4)(A). Thus, "`states have the primary role, under § 303 of the CWA (33 U.S.C. § 1313), in establishing water quality standards. EPA's sole function, in this respect, is to review those standards for approval.'" Am. Wildlands, 260 F.3d at 1194 (alterations omitted) (quoting City of Albuquerque, 97 F.3d at 425). Indeed, "`Congress clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by states.'" Id. (quoting City of Albuquerque, 97 F.3d at 425).

Of particular importance to this case is the fact that the CWA does not require states to take regulatory action to limit the amount of non-point water pollution introduced into its waterways. While the CWA requires states to designate water standards and identify bodies of water that fail to meet these standards, "`nothing in the CWA demands that a state adopt a regulatory system for nonpoint sources.'" American Wildlands, 260 F.3d at 1197 (quoting Am. Wildlands v. Browner, 94 F.Supp.2d 1150, 1161 (D.Colo.2000)).

B. The New Mexico Regulation

We turn now to the regulation that sparked this lawsuit. In 1999, the New Mexico Water Quality Control Commission ("WQCC") adopted revised water quality standards that, among other things, included a revised enforcement exemption for some pollutants that result from irrigation and flood control facilities. In relevant part the regulation states:

When changes in dissolved oxygen, temperature, dissolved solids, sediment or turbidity in a water of the state is [sic] attributable to natural causes or the reasonable operation of irrigation and flood control facilities that are not subject to federal or state water pollution control permitting [i.e., nonpoint source pollutants], numerical standards for temperature, dissolved solids content, dissolved oxygen, sediment or turbidity adopted under the Water Quality Act[, N.M. Stat. Ann. § 74-6-1 et seq.,] do not apply.

N.M. Admin. Code tit. 20, § 6.4.12. Prior to this regulation, New Mexico had a similar exemption that was limited to dissolved oxygen, sediment, and turbidity; the 1999 regulation added temperature and dissolved solids to the exemption. In January 2000, the WQCC forwarded N.M. Admin. Code tit. 20, § 6.4.12 to the EPA for its approval pursuant to the terms of the CWA. See 33 U.S.C. § 1313(c)(2). On January 23, 2001, the EPA refused to approve N.M. Admin. Code tit. 20, § 6.4.12. The EPA sent the following letter explaining its reasoning:

The [regulation], in referring to the "reasonable operation and maintenance" of irrigation and flood control structures, requires that this activity be defined by regulation of the WQCC. Without a clear definition of what this exemption means and where it does and/or does not apply, this provision is not acceptable because it could be interpreted as either consistent or inconsistent with the requirements of the CWA. An interpretation of the underlying statutory provisions as precluding enforcement against listed activities (essentially nonpoint sources associated with the "reasonable operation and maintenance" of irrigation and flood control structures) may be acceptable as long as assurance is provided that the numeric criteria in question continue to apply to affected surface waters and will be considered in assessing water quality in surface waters of the state affected by such activities. It would be unacceptable if this provision means that exceedance of criteria due to such activities are simply ignored in assessing water quality.

...

[If][t]he New Mexico Water Quality Control Commission could provide an interpretation of the underlying statutory provisions [along the lines of the first interpretation, the regulation would be acceptable.] ... EPA would reserve the right to [disapprove the regulation, however,] if the state does not adhere to this interpretation.

R. at 207 (emphasis added).

In short, the EPA ruled that New Mexico need not limit the amount of non-point pollutants introduced into its waters; however, it must continue with all the CWA requirements such as setting water quality standards and listing waters that fail to meet these standards.

The Chairman of the WQCC responded to the EPA with a letter on behalf of the Commission, stating:

The Commission interprets this provision to preclude enforcement of the specified numerical standards against listed activities; essentially non-point sources associated with the reasonable operation and maintenance of irrigation and flood control facilities. However, New Mexico measures, and will...