Mississippi Com'n on Natural Resources v. Costle

• Decision Date: 18 September 1980
• Docket Number: No. 79-3538,79-3538
• Citation: 625 F.2d 1269
• Parties: , 10 Envtl. L. Rep. 20,931 MISSISSIPPI COMMISSION ON NATURAL RESOURCES, Plaintiff-Appellant, v. Douglas M. COSTLE, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1269

625 F.2d 1269

15 ERC 1256, 10 Envtl. L. Rep. 20,931

MISSISSIPPI COMMISSION ON NATURAL RESOURCES, Plaintiff-Appellant, v. Douglas M. COSTLE, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Defendants-Appellees.

No. 79-3538.

United States Court of Appeals Fifth Circuit.

Sept. 18, 1980.

William A. Allain, Atty. Gen., Jackson, Miss., LeBoeuf, Lamb, Leiby, MacRae, G. S. Peter Bergen, New York City, J. I. Palmer, Jr., Jackson, Miss., for plaintiff-appellant.

James N. Christman, J. Kennerly Davis, Jr., Turner T. Smith, Jr., Richmond, Va., amicus curiae.

Robert E. Hauberg, U.S. Atty., L. K. Travis, Asst. U.S. Atty., Jackson, Miss., for defendants-appellees.

William L. Andreen, Atlanta, Ga., James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist, Land & Natural Resources Div., U.S. Dept. of Justice, Martin W. Matzen, Washington, D. C., for EPA.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, FAY and RANDALL, Circuit Judges.

FAY, Circuit Judge:

The Mississippi Commission on Natural Resources (Commission) ¹ challenges the authority of the United States Environmental Protection Agency (EPA) to promulgate a water quality standard on dissolved oxygen for Mississippi. The Commission filed a complaint seeking a declaratory judgment that EPA's rejection of the state standard and promulgation of a federal standard were arbitrary, capricious, and beyond EPA's authority. The Commission sought a preliminary and permanent injunction against enforcement of EPA's standard. The district court granted the preliminary injunction. After cross-motions for summary judgment, the court granted judgment to EPA and dissolved the preliminary injunction. The Commission appeals pursuant to 28 U.S.C. § 1291 (1976). We affirm the district court.

I. Statutory Framework

Prior to 1972, the Federal Water Pollution Control Act (FWPCA) relied primarily upon state-promulgated water quality standards as the means for reaching its goal of enhancing the quality of the nation's waters. A water quality standard has two components. The first is the use for the water in an area. Possible uses are for industry, agriculture, propagation and protection of fish and wildlife, recreation, and public water supply. The second component is the water quality criteria necessary to meet the designated use. For most pollutants, criteria are expressed as specific numerical concentration limits. For example, a state might set the water quality standard for a certain creek by designating it as a fishing area and requiring that the chloride concentration be no greater than 250 milligrams per liter of water.

In 1965, Congress considered whether the states or a federal administrator should establish water quality standards. Concerned that federal promulgation would discourage state plans for water quality and "would place in the hands of a single Federal official the power to establish zoning measures over to control the use of land within watershed areas" throughout the nation, Congress gave the states primary authority to set water quality standards. H. Rep. 215, 89th Cong., 1st Sess., reprinted in (1965) U.S. Code Cong. & Admin. News pp. 3313, 3320-23. The state standards and plans were submitted to the federal administrator, who determined whether they were consistent with the Act's requirements. If the state did not adopt complying standards, the administrator promulgated water quality uses and criteria.

The Act "focused on the tolerable effects rather than the preventable causes of water pollution." EPA v. California Water Resources Control Board, 426 U.S. 200, 202, 96 S.Ct. 2022, 2023, 48 L.Ed.2d 578 (1976). Problems with translating violations of standards into limits on particular polluters, the lack of enforcement, and the "awkwardly shared federal and state responsibility" led to amendments in 1972. Id. at 202, 96 S.Ct. at 2023; S. Rep. 92-414, 92d Cong., 2d Sess., reprinted in (1972) U.S. Code Cong. & Admin. News pp. 3668, 3669-77. The major change was the establishment of the National Pollutant Discharge Elimination System (NPDES), under which it is illegal to discharge pollutants without a permit complying with the Act. The amendments focus on limiting the sources of pollution through EPA issued permits. A state can issue NPDES permits upon EPA approval of its program. The permits are the primary means for reaching the national goal of eliminating discharge of pollutants into water by 1985 and the interim goal of reaching a level of water quality, wherever attainable, "which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water . . . by July 1, 1983." 33 U.S.C. § 1251(a)(1)-(2) (1976).

In the Senate version of the amendments, section 302 utilized water quality standards as a way to measure the permit program's effectiveness. If the effluent limitations were not stringent enough to meet the interim water quality goal, a more restrictive standard could be set after public hearing. The House added section 303 to the Act to continue the use of state water quality standards. The Conference Committee adopted section 302 of the Senate bill after deleting all reference to state authority. The Committee also added a modified version of the House amendment. As the Act was passed, states promulgate water quality standards, which are submitted to EPA for approval. EPA can promulgate standards if the state does not set standards consistent with the Act or whenever EPA determines that another "standard is necessary to meet the requirements of (the Act)." State standards are reviewed every three years. 33 U.S.C. § 1313 (1976). NPDES permits must contain not only any effluent limitations set by EPA and the states, but also any more stringent limits necessary to reach the water quality standards. Id. § 1311(b). If EPA determines that limits on discharges from a source or group of sources are insufficient for the water quality set for that area, it can, after hearing, set effluent limitations designed to reach that standard. Id. § 1312. In addition, EPA must develop and publish "criteria for water quality accurately reflecting the latest scientific knowledge." Id. § 1314.

II. Facts

The dispute in this case arises from EPA's refusal to approve the Mississippi water quality standard for dissolved oxygen (DO) and EPA's subsequent promulgation of a DO standard. Dissolved oxygen is necessary for the protection and propagation of fish and aquatic life, and is generally measured in milligrams per liter (mg/l).

In 1946, the Mississippi Game and Fish Commission adopted a regulation requiring a minimum average DO concentration of 3.0 mg/l and an instantaneous minimum of 2.5 mg/l. Under this standard, the DO concentration could drop as low as 2.5 so long as compensating periods at higher concentrations raised the daily average to 3.0 mg/l.

In response to state and federal legislation, the Commission adopted standards on January 17, 1967 requiring a minimum daily average DO of 4.0 mg/l. The 1972 amendments to the Act allowed preexisting water quality standards to remain in effect upon approval by EPA. 33 U.S.C. § 1313(a)(1)-(2) (1976). These standards were approved in October, 1972.

On January 18, 1973, EPA advised the Commission that it was time for the triennial review of its standards. After public hearings, the Commission submitted to EPA a DO standard of not less than an average of 5.0 mg/l, but allowing a level of 4.0 mg/l during periods with extremely low water levels. ² The low flow standard applies to days with the lowest water level that occurs for seven consecutive days in ten years (7 days Q 10). On May 15, 1973, EPA approved the Commission's water quality standards, stating they were in "full compliance with the 1972 Amendments to the Federal Water Pollution Control Act."

As noted above, one of EPA's duties under the amendments is to develop and publish "criteria for water quality accurately reflecting the latest scientific knowledge." 33 U.S.C. § 1314(a)(1) (1976). These criteria were to be published one year after October 18, 1972 and from time to time thereafter. Id. EPA gave notice of the availability of Quality Criteria for Water, also called the Red Book, on October 26, 1973. It thereafter became EPA's policy to request a state to justify its standards whenever the state submitted for approval water quality criteria less stringent than those in the Red Book.

In 1976, at the time for Mississippi's triennial review, EPA conferred with the Commission about upgrading its DO standard. Although the likelihood of the 7 day Q 10 rate's occurring for seven straight days is only once in ten years, that particular low flow rate actually occurs for significant periods virtually every year. In addition, the 4.0 mg/l 7 day Q 10 standard is an average, which therefore allows the DO level to fall below 4.0 on numerous occasions each year. Higher DO concentrations reduce crowding of fish and the resulting susceptibility to disease and toxicants. Adult fish generally are more tolerant of lower DO levels than juvenile forms. Lower levels also interfere with fish spawning.

The Commission forwarded to EPA for comment a proposed standard which required 5.0 mg/l with an instantaneous minimum of 4.0 mg/l, but allowed the DO to range between 5.0 and 4.0 for short periods. The Commission also proposed a higher standard of 5.0 mg/l for shellfish harvesting areas. In March, 1977, the Commission held hearings on the proposal. EPA advised that the proposal appeared to meet the Act's requirements. The Commission, however, abandoned the proposal and on April 22, 1977, submitted to EPA its existing 5.0 mg/l 4.0 mg/l 7 days Q 10 standard.

On June 9, 1977, EPA notified the Commission that it questioned the adequacy of the DO criteria. Specifically, Mississippi's DO standard was the only one in its region...