Environmental Defense Fund, Inc. v. Costle, No. 79-2432

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before TAMM and ROBINSON; HARLINGTON WOOD, Jr.
• Citation: 657 F.2d 275,211 U.S.App.D.C. 313
• Parties: , 211 U.S.App.D.C. 313, 11 Envtl. L. Rep. 20,459 ENVIRONMENTAL DEFENSE FUND, INC., Plaintiff-Appellant, v. Douglas M. COSTLE, as Administrator, U. S. Environmental Protection Agency, et al., Defendants-Appellees.
• Docket Number: No. 79-2432
• Decision Date: 21 April 1981

Page 275

657 F.2d 275 16 ERC 1185, 211 U.S.App.D.C. 313, 11
Envtl. L. Rep. 20,459 ENVIRONMENTAL DEFENSE FUND, INC., Plaintiff-Appellant,
v.
Douglas M. COSTLE, as Administrator, U. S. Environmental
Protection Agency, et al., Defendants-Appellees. No. 79-2432. United States Court of Appeals,
District of Columbia Circuit. Argued Oct. 14, 1980.
Decided April 21, 1981.

George W. Pring, Denver, Colo., with whom Paula C. Phillips, Denver, Colo., and William A. Butler, Washington, D. C., were on the brief, for appellant.

Lee C. Schroer, Atty., Environmental Protection Agency, and Thomas H. Pacheco, Atty., U. S. Dept. of Justice, Washington, D. C., with whom Angus MacBeth, Deputy Asst. Atty. Gen., and Edward J. Shawaker, Atty., U. S. Dept. of Justice, Washington, D. C., were on the brief, for federal appellees. James W. Moorman, Atty., U. S. Dept. of Justice, Washington, D. C., also entered an appearance for federal appellees.

Dennis Montgomery, Asst. Atty. Gen., Denver, Colo., with whom Evelyn R. Epstein, Asst. Atty. Gen., Phoenix, Ariz., Bruce S. Garber, Asst. Atty. Gen., Santa Fe, N. M., Dallin W. Jensen and Richard L. Dewsnup, Asst. Attys. Gen., for the State of Wyo., Salt Lake City, Utah, Emil Stipanovich, Jr., Deputy Atty. Gen., Los Angeles, Cal., and James V. LaVelle, Deputy Atty. Gen., Las Vegas, Nev., were on the brief, for state appellees.

Before TAMM and ROBINSON, Circuit Judges, and HARLINGTON WOOD, Jr., ^* Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the court filed by Circuit Judge HARLINGTON WOOD, Jr.

HARLINGTON WOOD, Jr., Circuit Judge:

Plaintiff-appellant, the Environmental Defense Fund, Inc. ("EDF"), seeks review of an order and judgment denying its motion for summary judgment and granting federal and state defendants' cross-motions for summary judgment. EDF challenged certain action and inaction by the Environmental Protection Agency ("EPA"), the Department of the Interior ("Interior"), and the Bureau of Reclamation ("Reclamation") ¹ concerning the control and abatement of salinity in the Colorado River. The seven states in the Colorado River Basin Arizona, California, Colorado, New Mexico, Nevada, Utah and Wyoming were granted leave to intervene as party defendants. ²

EDF complains that EPA violated Sections 303(a)-(e) of the Clean Water Act, 33 U.S.C. §§ 1313(a)-(e) (1976 and Supp. III 1979); that both Reclamation and Interior violated Section 201 of the Colorado River Basin Salinity Control Act ("CRBSCA"), 43 U.S.C. § 1591 (1976 and Supp. III 1979); and that EPA, Interior, and Reclamation violated Section 102(2)(E) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(E) (1976 and Supp. III 1979). EDF sought an order from the district court which would have required EPA to promulgate regulations setting forth water quality standards, implementation plans, and waste load allocations for salinity in the Colorado River Basin;

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and requiring EPA, Reclamation, and Interior to study, develop, and describe alternative methods for salinity control.

EDF alleged six distinct but related claims for relief against three federal defendants regarding salinity levels in the Colorado River. The district court, in an unpublished opinion dated October 3, 1979, entered judgment for the federal and state defendants on all six claims. Environmental Defense Fund, Inc. v. Costle, 13 Envir.Rep. (BNA) 1867 (D.D.C. Oct. 3, 1979).

The district court held: in Claim One, that EPA acted reasonably and neither arbitrarily nor capriciously in approving the water quality standards for salinity which were adopted by the seven basin states pursuant to Sections 303(a) and (b) of the Clean Water Act; ³ in Claim Two, that EPA had not acted unreasonably in failing to propose revised or new water quality standards under Section 303(c)(4)(B) for the seven states; in Claim Three, that EPA was not required to promulgate total maximum daily loads ("TMDL's") for salinity for the seven states, Section 303(d)(2); in Claim Four, that EDF's attack upon EPA's alleged failure to remedy inadequate implementation provisions and lack of compliance schedules in the respective states' plans was without merit, Section 303(e)(3)(F); and in Claims Five and Six, that EDF's argument that the federal defendants had violated Section 201 of the CRBSCA, 43 U.S.C. § 1591 and Section 102(2)(E) of NEPA, 42 U.S.C. § 4332(2)(E), by not studying and implementing alternative salinity controls, was without merit.

This appeal involves a challenge by EDF of the district court's entry of judgment on behalf of the federal and state defendants on all six claims. Also involved are two additional issues related to the proper scope of review for the court and the need for a statement of basis and purpose as required by Section 4(c) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(c) (1976 and Supp. III 1979). We affirm the district court's order and entry of judgment on all issues.

I. THE CLEAN WATER ACT

The Clean Water Act has evolved into its current form after more than thirty years of legislative recognition of technological advancements in the field of water pollution control. The history of the Act and its predecessors, including the Federal Water Pollution Control Act ("FWPCA") ⁴ and the FWPCA Amendments of 1972, ⁵ has been detailed in prior opinions construing various portions of the statute. ⁶ Our summary, therefore, will be limited to the statutory provisions directly involved in this appeal.

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A. Water Quality Standards Under the Clean Water Act

Water quality standards initially appeared in Section 5 of the Water Quality Act of 1965 ⁷ as the primary method of water pollution control. Under the 1965 Act, the standards consisted of three basic elements: (1) a "designated use" such as public water supply, recreational, fish propagation, agricultural, or industrial uses; (2) water quality "criteria" for various pollutants, which are expressed in numeric concentration limits or in narrative form and are sufficiently stringent to protect the designated use; ⁸ and (3) a plan for the implementation and enforcement of the water quality criteria. ⁹ The states were each required to adopt water quality standards for the waters within their boundaries, and if they failed to adopt complying standards, the federal government was required to promulgate standards in cooperation with state officials. ¹⁰

The significant role of water quality standards in controlling water pollution was altered by the passage in 1972 of the FWPCA Amendments. ¹¹ The Amendments were enacted, in part, from a recognition in Congress of the lack of efficacy of the existing water quality standards as the major vehicle for pollution control and abatement. ¹² The Amendments assigned secondary priority to the standards and placed primary emphasis upon both a point source discharge permit program and federal technology-based effluent limitations (specified maximum levels of pollution allowed to be discharged by an individual source). Clean Water Act §§ 301, 302, 307 and 402. The standards, however, were retained in the newly enacted Section 303, and their use updated accordingly.

B. Section 303 Overview ¹³

Section 303 of the Clean Water Act details the statutory provisions concerning water quality standards and implementation plans. Provisions regarding the maintenance of existing standards are included, as are Congressional mandates to EPA to promulgate regulations establishing standards for a state in the event of a failure to either submit or correct deficient standards. Sections 303(a) and (b). A mechanism for review, update, and revision of the standards is also enumerated. Section 303(c). In addition, the identification of state waters with insufficient controls is required, as is the establishment of maximum daily load limits for certain pollutants. Section 303(d). A continuing planning process must also be instituted. Section 303(e).

C. Section 208 Introduction

Section 208 of the Act contains provisions for area-wide waste treatment management. The Section requires the identification and designation of areas within the states which have substantial water quality problems. Section 208(a). A continuing areawide planning process must be instituted which results in the formulation of a water quality management implementation plan. Section 208(b). ¹⁴ Regional operating agencies must be designated to effect the plan and revise it as necessary. Sections

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208(c) and 208(d). ¹⁵ The regional agencies are primarily responsible for the control and abatement of salinity under the current statutory scheme, as salinity impacts often result from nonpoint sources.

II. THE COLORADO RIVER SALINITY PROBLEM

A. Background

The Colorado River flows over 1,400 miles from the Rocky Mountains to the Gulf of California, draining a basin of 244,000 square miles in the United States and an additional 2,000 square miles in Mexico. Portions of seven states lie within the River basin: Colorado, New Mexico, Utah, and Wyoming (chiefly comprising the "upper basin"), and Arizona, California, and Nevada (comprising the "lower basin" or the "lower main stem"). The basin itself has an estimated population of 2,250,000 in the United States portion and an additional 500,000 in Mexico. With the aid of trans-basin diversions, the Colorado provides full or supplemental water for agriculture, industry, and municipal uses for an additional 12,000,000 residents of non-basin population centers such as Denver, Salt Lake City, Cheyenne, Albuquerque, and Southern California.

From a basinwide perspective, salinity is the most significant pollutant in the River. ¹⁶ The record indicates that damages to the River and its populace from salinity in the United States portion of the Colorado River system are approximately $53 million annually. By the year 2000, these damages are estimated to reach $124 million annually if control...