American Wildlands v. Browner, No. 00-1224

• Decision Date: 08 August 2001
• Docket Number: No. 00-1224
• Citation: 260 F.3d 1192
• Parties: (10th Cir. 2001) AMERICAN WILDLANDS; PACIFIC RIVERS COUNCIL; MONTANA ENVIRONMENTAL INFORMATION CENTER and NORTHERN PLAINS RESOURCE COUNCIL, INC., Plaintiffs - Appellants, v. CAROL BROWNER, in her official capacity as the Administrator of the U.S. Environmental Protection Agency; BILL YELLOWTAIL, in his official capacity as the Regional Administrator of the U.S. Environmental Protection Agency, Region VIII and ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States Government, Defendants - Appellees. And WESTERN ENVIRONMENTAL TRADE ASSOCIATION, on behalf of its members and STATE OF MONTANA, Department of Environmental Quality, Intervenors - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1192

260 F.3d 1192 (10th Cir. 2001)

AMERICAN WILDLANDS; PACIFIC RIVERS COUNCIL; MONTANA ENVIRONMENTAL INFORMATION CENTER and NORTHERN PLAINS RESOURCE COUNCIL, INC., Plaintiffs - Appellants, v. CAROL BROWNER, in her official capacity as the Administrator of the U.S. Environmental Protection Agency; BILL YELLOWTAIL, in his official capacity as the Regional Administrator of the U.S. Environmental Protection Agency, Region VIII and ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States Government, Defendants - Appellees. And WESTERN ENVIRONMENTAL TRADE ASSOCIATION, on behalf of its members and STATE OF MONTANA, Department of Environmental Quality, Intervenors - Appellees.

No. 00-1224

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 8, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D. Ct. No. 98-K-1621)

Kristen L. Boyles, Earthjustice Legal Defense Fund, Seattle, Washington, (Stephen D. Mashuda, Earthjustice Legal Defense Fund, Seattle, Washington, and James S. Angell, Earthjustice Legal Defense Fund, Denver, Colorado, with her on the briefs), for Appellants.

Robert H. Oakley (Lois J. Schiffer, Assistant Attorney General, David A. Carson and Greer S. Goldman, with him on the brief), United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Appellee Environmental Protection Agency.

Claudia L. Massman, Special Assistant Attorney General, Department of Environmental Quality, Helena, Montana, for Appellee State of Montana.

Rebecca W. Watson, Gough, Shanahan, Johnson & Waterman, Helena, Montana, and John Bloomquist, Doney, Crowley, Bloomquist & Uda, Helena, Montana, filed a brief on behalf of Appellee Western Environmental Trade Association.

Before TACHA, Chief Judge, REAVLEY,^* and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

This appeal presents a challenge by Appellant American Wildlands to the Environmental Protection Agency's ("the EPA") approval pursuant to the Clean Water Act of certain of Montana's water quality standards. Specifically, two questions are presented to this court for review: (1) whether the EPA properly approved Montana's statutory exemption from antidegradation review of nonpoint sources of pollution; and (2) whether the EPA properly approved Montana's mixing zone policies and procedures. The district court held in favor of the EPA. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

1. Statutory and Regulatory Scheme

A. Point and Nonpoint Source Discharges

The Clean Water Act ("the Act") 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 met specific requirements set forth in the Act. 33 U.S.C. 1311(a). "Point source" is defined by the Act to mean: "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." 33 U.S.C. 1362(14). Further, a "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. 1362(6).

In order for point source discharges to be in compliance with the Act, such discharges must adhere to the terms of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to the Act. 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, nonpoint source discharges are not defined by the Act. One court has described nonpoint source pollution as "nothing more that a [water] pollution problem not involving a discharge from a point source." Nat'l Wildlife Federation v. Gorsuch, 693 F.2d 156, 166 n.28 (D.C. Cir. 1982) (internal quotation marks omitted).

Rather than vest the EPA with authority to control nonpoint source discharges through a permitting process, Congress required states to develop water quality standards for intrastate waters. 33 U.S.C. 1313. Water quality standards consist of three elements: first, each water body must be given a "designated use," such as recreation or the protection of aquatic life; second, the standards must specify for each body of water the amounts of various pollutants or pollutant parameters that may be present without impairing the designated use; and finally, each state must adopt an antidegradation review policy which will allow the state to assess activities that may lower the water quality of the water body. 33 U.S.C. 1313(c)(2)(A); 40 C.F.R. 130.3, 130.10(d)(4), 131.6, 131.10, 131.11. Further, each state is required to identify all of the waters within its borders not meeting 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. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995).

B. The EPA's Approval Role

Whenever a state revises or adopts a water quality standard, the state must submit the standard to the EPA's Regional Administrator for a determination as to whether the new standard is consistent with the Act. 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. 33 U.S.C. 1313(c)(3). If the state fails to make the changes required by the EPA, the agency must promptly promulgate and impose replacement standards upon the state. 33 U.S.C. 1313(c)(3)-(4)(A).

"'[S]tates 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.'" City of Albuquerque v. Browner, 97 F.3d 415, 425 (10th Cir. 1996) (quoting Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1399, 1401 (4th Cir. 1993)). Therefore, the EPA has a limited role in reviewing water quality standards. Id. ("Congress clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by states . . . .").

C. Antidegradation

The antidegradation review policies adopted by the states as a part of their water quality standards must be consistent with the federal antidegradation policy. 40 C.F.R. 131.12. The EPA's regulations establish three levels of water quality protection: Tier I, Tier II, and Tier III. Tier I protection establishes the minimum water quality standard for all waters and requires that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 C.F.R. 131.12(a)(1). Tier II protection provides that, where the water quality of a water body exceeds that necessary to support aquatic life and recreation, that level of water quality shall be maintained unless the state determines that "allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located." 40 C.F.R. 131.12(a)(2). Tier III protection provides that, where a water body "constitute[s] an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected." 40 C.F.R. 131.12(a)(3).

D. Mixing Zones

Pursuant to the EPA's regulations, a state may, at its discretion, include within its water quality standards "policies generally affecting . . . mixing zones." 40 C.F.R. 131.13. Mixing zones are "areas where an effluent discharge undergoes initial dilution and are extended to cover the secondary mixing in the ambient water body. A mixing zone is an allocated impact zone where acute and chronic water quality criteria can be exceeded as long as a number of protections are maintained." Environmental Protection Agency, Water Quality Standards Handbook 5.1.1, at 5-5 (2d ed.1994) (hereinafter Handbook). The protections that must be maintained include the absence of "toxic conditions to aquatic life," "objectionable deposits," "floating debris," "objectionable color, odor, taste, or turbidity," and substances resulting in "a dominance of nuisance species." Id. at 5-5 to 5-6. Mixing zones are allowable as a practical necessity because "[i]t is not always necessary to meet all water quality criteria within the discharge pipe to protect the integrity of the water body as a whole. Sometimes it is appropriate to allow for ambient concentrations above the criteria in small areas near outfalls." Id. 5.1, at 5-1. Should a state decide to include "policies generally affecting . . . mixing zones" within their water quality standards, those policies are subject to review and approval by the EPA. 40 C.F.R. 131.13.

E. Montana's Policies

1. Montana's Exemption of Nonpoint Source Pollution from Antidegradation Review

In drafting its water quality standards, the Montana legislature exempted "existing activities that are nonpoint sources of pollution as of April 29, 1993" from antidegradation review with respect to Tier II waters. Mont. Code Ann. 75-5-317(2)(a). Further, nonpoint sources initiated after April 29, 1993 are exempted from antidegradation review with respect to Tier II waters "when reasonable land, soil, and water conservation practices are applied and existing and anticipated beneficial uses will be fully protected." Mont. Code...