693 F.2d 156 (D.C. Cir. 1982), 82-1363, National Wildlife Federation v. Gorsuch
|Docket Nº:||and 82-1363.|
|Citation:||693 F.2d 156|
|Party Name:||Envtl. NATIONAL WILDLIFE FEDERATION, et al. v. Anne GORSUCH, in her official capacity as Administrator of the United States Environmental Protection Agency, et al., Idaho Power Company, Montana Power Company, Puget Sound Power and Light Company, Eugene Water and Electric Board, Portland General Electric Company, Public Utility District No. 1 of Che|
|Case Date:||November 05, 1982|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Sept. 13, 1982.
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Peter R. Steenland, Jr., Atty. Dept. of Justice, Washington, D.C., with whom Robert M. Perry, Gen. Counsel, E.P.A., Carol E. Dinkins, Asst. Atty. Gen., Fred R. Disheroon and Nancy B. Firestone, Dept. of Justice, and Alan W. Eckert, E.P.A., Washington, D.C., were on brief, for Anne M. Gorsuch, Administrator, E.P.A., appellant in 82-1354 and cross-appellee in 82-1335, 82-1337, 82-1351, 82-1352, 82-1353 and 82-1363.
Jeffrey H. Howard, with whom James B. Vasile, Robert L. McCarty, Kenneth A. Rubin and Sam Kazman, Washington, D.C., were on brief, for Colorado Water Agencies, et al., appellants in 82-1337, 82-1351 and 82-1353, and cross-appellees in 82-1335, 82-1352, 82-1353, 82-1354 and 82-1363.
Thomas G. Nelson and James C. Tucker, Twin Falls, Idaho, for Nat. Water Resources Ass'n, appellant in 82-1353.
Gerry Levenberg, with whom R. Keith Guthrie, Washington, D.C., was on brief, for Northwest Utilities Group, appellants in 82-1335 and 82-1352, and cross-appellees in 82-1337, 82-1351, 82-1352 and 82-1354.
Turner T. Smith, Jr. and William B. Ellis, Richmond, Va., were on brief, for Alabama Power Co., et al., appellees in 82-1335, 82-1337, 82-1351, 82-1352, 82-1353 and 82-1354.
David G. Burwell, Windsor, Vt., with whom Patrick A. Parenteau, Washington, D.C., was on brief, for Nat. Wildlife Federation, et al., appellees in 82-1335, 82-1337, 82-1351, 82-1352, 82-1353, 82-1354 and 82-1363. Dan Summers, Jefferson City, Mo., also entered an appearance for State of Missouri, appellees in 82-1335 and 82-1337.
Carl Boronkay and Victor E. Gleason, Los Angeles, Cal., were on brief, for Metropolitan Water Dist. of Southern California, amici curiae urging reversal in 82-1335, 82-1337, 82-1351, 82-1352, 82-1353, 82-1354 and 82-1363.
Roger J. Marzulla, Denver, Colo., was on brief, for Mountain States Legal Foundation, et al., amici curiae urging reversal in 82-1335. R. Norman Cramer, Jr., Denver, Colo., also entered an appearance for Mountain States Legal Foundation, et al.
Frederick H. Ritts and Kirk Howard Betts, Washington, D.C., were on brief, for American Public Power Ass'n, amici curiae urging reversal in 82-1335.
Zygmunt J.B. Plater, Newton Centre, Mass., was on brief, for American Rivers Conservation Council, et al., amici curiae urging affirmance in 82-1335, 82-1337, 82-1351, 82-1352, 82-1353, 82-1354 and 82-1363.
Before ROBINSON, Chief Judge, WALD and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
The National Wildlife Federation petitioned the district court for a declaration that the Administrator of the Environmental Protection Agency (EPA) has a nondiscretionary duty to require dam operators to apply for pollutant discharge permits under Sec. 402(a) of the Clean Water Act, 33 U.S.C. Sec. 1342(a), and for an order directing her to perform that duty. The district court issued the requested declaration and order, 530 F.Supp. 1291 (D.D.C.1982), from which EPA and the numerous defendant-intervenors (principally electric utilities and water agencies) now appeal. The sole issue is whether certain dam-induced water quality changes constitute the "discharge of a pollutant" as that term is defined in Sec. 502(12) of the Act, 33 U.S.C. Sec. 1362(12). The Wildlife Federation, joined by plaintiff-intervenor State of Missouri, argues that in light of the remedial purpose of the Act, this phrase should be read broadly enough to cover these dam-induced changes. EPA argues for a narrower reading under which dams would not require discharge permits, but would instead be regulated under state-developed areawide waste treatment management plans pursuant to Sec. 208 of the Act, 33 U.S.C. Sec. 1288. Because we believe that EPA's interpretation is entitled to great deference and that its view of the statute is reasonable, we reverse.
Dam-Induced Water Quality Changes
Dams cause a variety of interrelated water quality problems, both in reservoirs and in river water downstream from a dam. The Wildlife Federation claims that five of these problems--low dissolved oxygen, dissolved minerals and nutrients, water temperature changes, sediment release, and supersaturation--require EPA to regulate dams under the Sec. 402 permit program. The district court's opinion, 530 F.Supp. at 1297-1303, describes these problems in detail, and we will only summarize them here. 1
Low Dissolved Oxygen
Water released from a reservoir through a dam into downstream water may be low in dissolved oxygen. The river below the dam will remain oxygen-depleted for some distance, although the river will gradually become reaerated through wind mixing as it flows downstream. 2 If the oxygen level is too low, fish cannot survive. Also, a river low in oxygen has limited ability to break down pollutants and other organic matter. Because dissolved oxygen is important both for fish and for breakdown of organic matter,
it is an important measure of water quality. 3
Only large storage dams have low dissolved oxygen problems, and then only during warmer months and only when water is released from the lower part of the reservoir. 4 During warm months, deep reservoirs, like deep natural lakes, stratify into a cold, dense lower layer and a warmer, lighter upper layer. The upper layer, called the "epilimnion," is aerated by wind mixing; oxygen is also produced by photosynthesis. Thus, water quality in the upper layer is good. The lower level, called the "hypolimnion," is too deep to be aerated by wind action and light levels are too low to support photosynthesis. Organic decomposition, which consumes oxygen, leads to a continual net depletion of dissolved oxygen. Depletion continues until "fall turnover," when the two layers break up and the reservoir returns to full aeration. 5
The rate of oxygen depletion depends primarily on the volume of water in the hypolimnion (the more water, the more oxygen is available for decomposition), its temperature (decomposition occurs more slowly in cold water and colder water also contains more dissolved oxygen), and the quantity of organic matter it contains (the more organic matter, the greater the oxygen demands for decomposition). In particular, if the river above the dam is high in plant nutrients or organic waste when it enters the reservoir--whether from pollution or from natural causes--oxygen depletion in the hypolimnion will be severe. 6
Several techniques can be used to prevent release of oxygen-depleted water. First, for many dams, water can be released from the epilimnion (which occurs...
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