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09/06/77 Natural Resources Defense v. Douglas M. Costle

September 6, 1977

DEFENSE FUND, INC

v.

DOUGLAS M. COSTLE, ADMINISTRATOR, ENVIRONMENTAL PROTECTON AGENCY, ET AL., NATIONAL FOREST PRODUCTS ASSOCIATION, APPELLANT* 1977.CDC.206



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATURAL RESOURCES DEFENSE COUNCIL, INC., ENVIRONMENTAL

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 74-1485).

APPELLATE PANEL:

McGowan, Leventhal and Robb, Circuit Judges. Opinion for the Court filed by Circuit Judge Robb.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBB

The Natural Resources Defense Council and the Environmental Defense Fund (referred to collectively as NRDC) brought an action in the District Court seeking (1) a declaratory judgment construing section 208 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1288, and (2) an order directing the Administrator of the Environmental Protection Agency to promulgate regulations consistent with the plaintiffs' interpretation of the Act. National Forest Products Association , an organization representing firms and local organizations engaged in the forest products industry, was permitted to intervene as a defendant. The District Court granted the plaintiffs' motion for summary judgment and ordered the EPA to promulgate regulations consistent with the court's construction of section 208. Natural Resources Defense Council v. Train, 396 F. Supp. 1386 (D.C.D.C. 1975). Both NFPA and EPA filed notices of appeal but thereafter EPA voluntarily dismissed its appeal and has now intervened as an appellee to defend the District Court's decision. The Commonwealth of Virginia and the State of Washington have filed briefs amicus curiae in support of the position taken by NFPA. We affirm.

The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1251 et seq., establish "a comprehensive program designed 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . .'" Natural Resources Defense Council v. Train, 166 U.S. App. D.C. 312, 315, 510 F.2d 692, 695 (1974). A central feature of this attack on the problem of water pollution is section 208, 33 U.S.C. § 1281. The full text of this lengthy section is set out in the appendix to this opinion.

Section 208(a) provides that State and local agencies shall develop and implement areawide waste treatment management plans to achieve the Act's 1983 goal of fishable and swimmable waters, Section 101 (a) (2), 33 U.S.C. § 1251 (a) (2). Section 208 (a) (1) directs the Administrator of EPA by regulation to publish guidelines for the identification of those areas having substantial water control problems. Section 208(a) (2) provides that "The Governor of each State . . . shall identify each area within the State which, as a result of urban-industrial concentrations or other factors, has substantial water quality control problems." The Governor shall then "designate the boundaries of each such area, and a single representative organization, including elected officials from local governments or their designees, capable of developing effective areawide waste treatment management plans for such area." In the case of an area located in two or more states the Governors of the respective states are to consult and cooperate "toward designating" the boundaries of the interstate area and "toward designating" a "representative organization" to develop effective areawide waste treatment management plans. Sec. 208(a)(3). If no designation is made by a Governor or Governors the "chief elected officials of local governments within an area may by agreement designate" an area and "a single representative organization" capable of developing the waste treatment management plan. Sec. 208 (a) (4). Section 208(a) (5) provides: "Existing regional agencies may be designated under paragraphs (2), (3), and (4) of this subsection." Section 208(a) (6), upon which the controversy in this case has focused, provides: "The State shall act as a planning agency for all portions of such State which are not designated under paragraphs (2), (3), or (4) of this subsection."

Section 208(b) (1) provides that not later than one year "after the date of designation of any organization" under section 208(a) "such organization shall have in operation a continuing areawide waste treatment management planning process". Section 208(b) (2) in turn specifies the required elements of a proper waste treatment plan. Section 208 (b) (2) -applies to the establishment of long-term preventive point source regulatory programs and section 208 (b) (2) -relates to programs for identifying and controlling non-point source pollution from agriculture, silviculture, mining, construction and other similar activities. The waste treatment management plans are to be certified annually by the Governors and submitted to the Administrator for his approval. Sec. 208(b)(3). The Administrator is directed to "make grants to any agency designated under subsection (a) of this section

for payment of the reasonable costs of developing and operating" the waste treatment planning processes "under subsection (b) of this section." Sec. 308(f)(1). These grants shall be 100% of the costs for each of the three fiscal years beginning June 30, 1973, and not more than 75% of such costs in each succeeding fiscal year. Sec. 208(f) (2).

As we have said, section 208(a) (1) of the Act provides that the Administrator of EPA shall by regulation publish guidelines for the identification of those areas having substantial water quality control problems. After some delay EPA promulgated such regulations. 40 C.F.R., Part 126, 38 Fed. Reg. 25,681 (Sept. 14, 1973). At this time EPA took the position that the State when acting as a "planning agency" under section 208(a)(6) was not required to develop a section 208 plan for all areas of the State which had not been "designated". In a subsequent regulation promulgated June 3, 1974, 40 C.F.R., Parts 130 and 131, 39 Fed. Reg. 19,634, EPA suggested that a State could fulfill its section 208 planning requirements for undesignated areas by planning under section 303(e) of the Act. 33 U.S.C. § 1313(e). Planning under section 303(e) includes some, but not all the elements required by section 208 plans.

It appears that only about 5% of the nation's waterways were in areas "designated" for local planning. Thus, if the EPA's original interpretation of the statute was correct, 95% of the country's area was not subject to section 208 planning. In particular the long-term preventive programs of section 208 (b) (2) -, for identifying and controlling non-point source pollution from agriculture, silviculture, mining, construction and other similar activities, were not required or were limited to areas in which they could have little or no effect.

Responding to the EPA regulations NRDC notified the Administrator of its intention to file an action for a declaratory judgment that (1) section 208 (a) (6) requires the same type of planning in local and State planning areas, and (2) so far as they were inconsistent with that requirement the EPA regulations were invalid. As a result, at a conference with counsel for NRDC on August 29, 1974 EPA's associate general counsel provided counsel for NRDC with an EPA memorandum of law which indicated substantial agreement with NRDC's position. This memorandum, dated August 26, 1974, stated in part:

Section 208 appears to require the State to act in the same capacity as the designated organizations and therefore it should apply all of the criteria listed in § 208 (b) (2) in the non-designated areas. However, this does not mean that the same level of planning or implementation of each of those elements is required for every area of the State. The State has flexibility to apply varying degrees of planning, depending on factors such as the amount of development, present water quality, and existing review procedures, which are consistent with the successful implementation of § 208 for any particular area where it is operating as a planning agency.

(J.A. 13)

This means that plans developed by State agencies in non-designated areas also must implement the requirements of § 208 (b) (2) -. That is in agreement with the position taken by NRDC in this matter.

We do not believe, however, that this conclusion requires States to employ the same sophisticated, comprehensive planning approach throughout the State regardless of the need or the water quality conditions of the area where the planning is to be done.

(J.A. 14)

Although EPA had signified this agreement with NRDC, regulations implementing the agreement were not forthcoming. Accordingly, NRDC filed its complaint for a declaratory judgment construing section 208(a) (6) and for an order directing EPA to promulgate appropriate regulations. After some skirmishing during which EPA averred that it intended to promulgate such regulations but was not required to do so, NRDC filed its motion for summary judgment. At this stage of the case our appellant National Forest Products Association intervened. NFPA contended, and argues before us, that section 208 (a) (6) does not require statewide planning and that any such planning in areas which have not been "designated" for local planning is a matter for State discretion.

The District Court granted NRDC's motion for summary judgment. Natural Resources Defense Council v. Train (supra). Emphasizing that section 208 must be read "in the context of the entire Act so that its purpose together with the intent of the whole Act may be effectuated", the court held that section 208 is a "critical provision in a broad, far-reaching Act" which requires comprehensive statewide planning:

[Section 208] contains unique authority to control water pollution from point sources (e.g., factory or pipe discharge) . . . and from nonpoint sources (e.g., mining or agricultural runoff). Its implementation features distinguish it from Section 303(e) of the Act, which emphasizes ongoing State planning and limits State efforts to stationary sources of pollution. The Section is also intended to coordinate and integrate other planning, construction, and discharge permit provisions of the Act. Section 208 charts a course not only for the cleaning up of polluted waters but also for the prevention of future pollution by identifying problem sources, regulating construction of certain industrial facilities, and developing processes to control runoff sources of pollution. While Section 208 focuses on "urban-industrial" areas with substantial water quality control difficulties, it also directs attention to other geographical locations with water pollution problems, such as forests, mining areas, farms, and salt water inlets. As a "bottom line" for the Section 208 waste treatment management activities, the Act prescribes a 1983 goal of clean waterways. Id. at 1389. [Citations omitted]

The District Court stressed the critical importance of section 208(a) (6) as "the residual clause in the areawide waste treatment management planning provisions". Id. at 1390. The court explained that:

[Section 208 (a) (6)] deals with the non-designated or "leftover" portions of the State . . . . The plain implication is that [Section 208(a) (6)] empowers the State to achieve what other [designated] planning organizations . . . are directed to achieve. . . . It would be illogical for Congress to set forth a detailed scheme for State, interstate, and local water pollution planning - and then to lump the remainder of State territory into a residuary provision with veiled instructions to the state, to do as it saw fit regarding waste treatment control . . . .

There are presently only about 85 designated problem areas in the United States, leaving an estimated 95% of the nation's waterways non-designated . . . . Surely the Congress did not intend Section 208 planning to be the exception rather than the rule . . . . Id. at 1390.

The court recognized that the intensity of planning might not be as great in the state planning portions of a State:

As [NRDC and Environmental Defense Fund] have stressed on numerous occasions, the subsection (a) (6) regulations will not call for rigorous planning where no pollution problems exist. Rural areas need not implement safeguards for urban pollution problems, and vice versa; planning can be tailored to a region's peculiar problems . . . . A State may certify large portions of its territory as pollution-free and concentrate on preventive measures for these portions as well as on abatement efforts for the substantial problem areas. Id. at 1391-92.

The court agreed with NRDC, however, that the States should be advised promptly of their important residual responsibilities:

EPA's regulations have positively misled the States in regard to subsection (a) (6) responsibilities. This is not "partial guidance" of the States. It is an impermissible misconstruction of the Act which must be cured swiftly so that the States can understand and fulfill their total planning responsibilities . . . . Planning requirements and directives should precede the ...


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