Paula Goodman Maccabee, Esq. Just Change Law Offices 1961 Selby Ave., St. Paul, Minnesota 55104, Ms. Tinka Hyde August 19, 2016 page 2 that lacks the authority to implement its NPDES program in compliance with the Clean Water Act may somehow avoid the requirements of the Act if at some future time, given possible future contingencies and approvals, such authority might be secured. The two cases cited by the Minnesota Attorney General are not on point. To the extent they address the concerns raise by EPA, they run contrary to the positions taken by Minnesota. The first case cited by the Minnesota Attorney General, Environmental Defense Fund, Inc. v. Costle, 657 F. 2d 275 (D.C. Cir. 1981) pertains to EPA’s approval of salinity standards for seven states. To the extent this case says anything pertinent to Minnesota’s failure to implement existing water quality standards, it runs contrary to the position taken by Minnesota. The Court of Appeals in EDF v. Costle explained the history of the Clean Water Act, “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.” 657 F. 2d at 279. The Court held that EPA was not required to propose new or revised standards for salinity because new information “which was allegedly indicative of the need for revised or new salinity standards” did not require EPA to act to replace an existing implementation plan. Id. at 293. “[A]lleged deficiencies within the plan do not render the current standards (now consisting of only numeric and narrative criteria and designated uses) inadequate.” Id. The case of American Wildlands v. Browner, 94 F. Supp. 2d 1150 (D. Colo. 2000) also involved a challenge to EPA’s failure to promulgate new state water quality standards, rather than a state’s refusal to implement existing federally-approved water quality standards. This is a diversion. EPA did not suggest in its inquiry letters to Minnesota, and no environmental group has argued that Minnesota is obligated to revise its existing wild rice sulfate standard. The concern expressed by WaterLegacy in its Petition for Withdrawal of Minnesota’s NPDES Program Authority is the opposite. Whether or not Minnesota would be justified in revising its wild rice standard, until such revision is completed and approved by the EPA, our argument under the Clean Water Act is that Minnesota must enforce the existing federally-approved wild rice sulfate standard and may not adopt laws pertaining to its enforcement without EPA’s approval in compliance with the Clean Water Act. To the extent the Wildlands v. Browner case is pertinent to WaterLegacy’s concerns and the questions raised by EPA, the case undermines Minnesota’s argument. Wildlands v. Browner affirms the requirement under the Clean Water Act for states to obtain approval from EPA of changes in water quality standards. "When a state revises or adopts a new standard for water, such standards must be submitted to the Administrator of the EPA ("Administrator"), and shall be established taking into account their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, navigation, and other purposes. 33 U.S.C. § 1313(c)(2)(A).” 94 F. Supp 2d at 1153. EPA also cannot approve a state water quality revision that conflicts with the Clean Water Act. "The CWA requires that states periodically review water quality standards and secure EPA's approval of any revision of those standards. EPA does not have the authority to approve state water quality standards that are inconsistent with the CWA. 33 U.S.C. § 1313(c)(3).” 94 F. Supp. 2d at 1160. Ms. Tinka Hyde August 19, 2016 page 3 Based on the May 13, 2011 letter from EPA Region Five (Petition for Withdrawal Exhibit 16) as well as our own reading of the Clean Water Act, it is clear that a Minnesota law preventing enforcement of the federally-approved wild rice sulfate water quality standard would be inconsistent with the Clean Water Act, 33 U.S.C.§ 1313(c)(2)-(3). If Minnesota had sought EPA approval of its 2015 and 2016 Session Laws restricting enforcement of the wild rice sulfate standard, EPA would have been obligated to disapprove these laws. WaterLegacy would note that there is precedent directly pertinent to the EPA’s authority and obligation to act on our Petition for Withdrawal of Minnesota’s NPDES Program Authority. In Save the Valley, Inc. v. EPA, 223 F. Supp. 2d 997,1015 (S.D. Ind. 2000), the court ordered the state of Indiana to bring its NPDES program into compliance with the Clean Water Act within 120 days and ordered that, should the State continue its failure to fulfill its obligations, within 150 days the EPA must conduct a public hearing to determine whether Indiana’s NPDES program complied with the Clean Water Act. The court ruled that “absent immediate, appropriate corrective action” the EPA must provide notice and proceed to withdraw Indiana’s NPDES program authority. Save the Valley explained applicable requirements of the Clean Water Act: The EPA retains a high level of involvement and authority when a State administers its own NPDES permit program. . . . In a previous Entry denying Defendants' Rule 12(b)(1) and Rule 12(b)(6) motions to dismiss, we held that those sections of the Clean Water Act impose mandatory duties upon the Administrator of the EPA. See Save the Valley, Inc. v. U.S. Envtl. Protection Agency, 99 F. Supp. 2d 981 (S. D. Ind. 2000). Section 1319(a)(2) states that the EPA Administrator shall assume enforcement of a State's permit program when "the Administrator finds that violations of permit conditions or limitations … are so widespread that such violations appear to result from a failure of the State to enforce such permit conditions or limitations effectively …". 33 U.S.C. § 1319(a)(2). Section 1342(c)(3) states that the Administrator shall withdraw approval of a State's NPDES program when a State fails to take appropriate corrective action even after being notified by the Administrator that its program is noncompliant. 223 F. Supp. 2d at 1006. The court explained that EPA is required under the Clean Water Act to make findings when widespread violations are occurring in the State, to issue a compliance order to the State, and to give public notice if the State has not corrected the problem within 30 days. Once public notice is given, “the Administrator must enforce the permit conditions until the State remedies its problems,” and, “if the State continues to fail in its enforcement of the NPDES program must withdraw approval of the State's program and make public the reasons for the withdrawal.” Id., citing Save the Valley, Inc. v. EPA, 99 F. Supp. 981, 984-985 (S.D. Ind. 2000)(Denial of dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6)); 33 U.S.C. §1342(c)(3). The court opined, “The State of Indiana has an ongoing obligation to administer its NPDES program in accordance with federal statutes and regulations.” 223 F. Supp. at 1008. As in Minnesota, the record in Indiana reflected EPA Region Five’s efforts to obtain NPDES program compliance through an agreement with the State and advice to Indiana of its obligation to aggressively implement the NPDES program for facilities of concern and “when violations are discovered, enforce compliance.” Id. at 1010-1011. The court in Save the Valley ordered the Ms. Tinka Hyde August 19, 2016 page 4 State to come into compliance with Clean Water Act NPDES requirements, emphasizing “withdrawal will be appropriate if Indiana continues to fail to issue NPDES or NPDES- equivalent permits as required by the Act.” Id. at 1014. WaterLegacy appreciates the deliberate process by which the EPA has provided Minnesota with the opportunity to respond to our allegations that MPCA has failed to reissue expired and out-of- date NPDES permits for mining facilities and the opportunity to address WaterLegacy’s concerns that the MPCA lacks requisite authority to enforce the existing federally-approved wild rice sulfate standard through NPDES permits. We believe that the July 13, 2016 letter of MPCA’s Metallic Mining Sector Director, Ann Foss, as well the Minnesota Attorney General’s letter of August 12, 2016 confirm the allegations made in WaterLegacy’s July 2, 2015 Petition for Withdrawal of Minnesota NPDES Program Authority. Ms. Foss’ letter informed the EPA that, pending revision of the wild rice sulfate standard, the MPCA has no intention to reissue “delayed” permits for mining facilities. A documented in 2 WaterLegacy’s Petition for Withdrawal and Exhibits , these expired permits are subject to a prior Performance Partnership Agreement with the EPA and have multiple deficiencies, including “monitor only” requirements for toxic metals and other inadequate controls of pollutants. The Minnesota Attorney General has now confirmed that the MPCA lacks the authority to enforce the wild rice water quality standard, at least until the standard is revised. As WaterLegacy’s Petition for Withdrawal and Exhibits demonstrate, there is ample evidence that the MPCA initially concluded that the existing wild rice sulfate standard was “needed” and “reasonable,” that a political controversy suppressed this opinion, and that elected leaders in Minnesota believe they should defer to a regulated party’s insistence that it will not “agree” to a permit with the existing standard. Revision of Minnesota’s existing wild rice sulfate standard will be controversial and may not comply with federal regulations that require changes in water quality standards to have an adequate scientific basis. 40 C.F.R. §§131.5,131.6. It should not be assumed that revisions of Minnesota’s existing wild rice sulfate standard will be completed, let alone approved by January 2018. WaterLegacy believes the time has come for EPA to proceed with findings that cause exists to commence hearings for withdrawal of Minnesota NPDES Program Authority. The Clean Water Act does not allow States, whether with the best of intentions or under the most egregious political pressure, to pick and choose if and when they will reissue expired and inadequate NPDES permits or which federally-approved water quality standards they will or will not enforce. Sincerely yours, Paula Goodman Maccabee WaterLegacy Counsel/Advocacy Director Enclosures (cited cases) 2 Petition for Withdrawal and Exhibits are available at NPDES Petition for Program Withdrawal in Minnesota, https://www.epa.gov/mn/npdes-petition-program-withdrawal-minnesota Environmental Defense Fund, Inc. v. Costle United States Court of Appeals for the District of Columbia Circuit October 14, 1980, Argued ; April 21, 1981, Decided No. 79-2432 Reporter 657 F.2d 275; 1981 U.S. App. LEXIS 14102; 211 U.S. App. D.C. 313; 11 ELR 20459; 16 ERC (BNA) 1185 ENVIRONMENTAL DEFENSE FUND, INC., Dennis Montgomery, Asst. Atty. Gen., Denver, PLAINTIFF-APPELLANT v. DOUGLAS M. Colo., with whom Evelyn R. Epstein, Asst. Atty. COSTLE, as Administrator, U.S. Environmental Gen., Phoenix, Ariz., Bruce S. Garber, Asst. Atty. Protection Agency, et al ., DEFENDANTS- Gen., Santa Fe, N. M., Dallin W. Jensen and APPELLEES Richard L. Dewsnup, Asst. Attys. Gen., for the State of Wyo., Salt Lake City, Utah, Emil Prior History: [**1] Appeal from the United Stipanovich, Jr., Deputy Atty. Gen., Los Angeles, States District Court for the District of Columbia Cal., and James V. LaVelle, Deputy Atty. Gen., Las (D. C. Civil Action No. 77-1436). Vegas, Nev., were on the brief, for state appellees. Core Terms Judges: Before TAMM and ROBINSON, Circuit * Judges, and HARLINGTON WOOD, Jr., salinity, basin, River, numeric, water quality Circuit [**2] Judge, United States Court of Appeals standards, levels, district court, water quality, for the Seventh Circuit. pollution, revised, regulations, promulgate, projects, agency's action, on-farm, measures, Opinion by: WOOD, Jr. requirements, provisions, Sections, implementation plan, plans, indicates, mandated, concentrations, Opinion narrative, alternatives, irrigation, basinwide, upper, establishment [*277] Plaintiff-appellant, the Environmental Defense Fund, Inc. ("EDF"), seeks review of an Counsel: George W. Pring, Denver, Colo., with order and judgment denying its motion for whom Paula C. Phillips, Denver, Colo., and summary judgment and granting federal and state William A. Butler, Washington, D. C., were on the defendants' cross-motions for summary judgment. brief, for appellant. EDF challenged certain action and inaction by the Environmental Protection Agency ("EPA"), the Lee C. Schroer, Atty., Environmental Protection Department of the Interior ("Interior"), and the 1 Bureau of Reclamation ("Reclamation") Agency, and Thomas H. Pacheco, Atty., U. S. Dept. concerning the control and abatement of salinity in of Justice, Washington, D. C., with whom Angus the Colorado River. The seven states in the MacBeth, Deputy Asst. Atty. Gen., and Edward J. Shawaker, Atty., U. S. Dept. of Justice, * Washington, D. C., were on the brief, for federal Sitting by designation pursuant to 28 U.S.C. § 291(a) (1976). appellees. James W. Moorman, Atty., U. S. Dept. Opinion for the court filed by Circuit Judge HARLINGTON of Justice, Washington, D. C., also entered an WOOD, Jr. appearance for federal appellees. 1 On November 6, 1979, Reclamation's name was changed to the Water and Power Resources Service. To maintain consistency with past references, the Service will be referred to as "Reclamation" in this opinion. Page 2 of 22 Environmental Defense Fund, Inc. v. Costle Colorado River Basin Arizona, California, EPA had not acted unreasonably in failing to Colorado, New Mexico, Nevada, Utah and propose revised or new water quality standards Wyoming were granted leave to intervene as party under Section 303(c)(4)(B) for the seven states; in 2 defendants. Claim Three, that EPA was not required to promulgate total maximum daily loads ("TMDL's") [**3] EDF complains that EPA violated Sections for salinity for the seven states, Section 303(d)(2); 303(a)-(e) of the Clean Water Act, 33 U.S.C. §§ in Claim Four, that EDF's attack upon EPA's 1313(a)-(e) (1976 and Supp. III 1979); that both alleged failure to remedy inadequate Reclamation and Interior violated Section 201 of implementation provisions and lack of compliance the Colorado River Basin Salinity Control Act schedules in the respective states' plans was without ("CRBSCA"), 43 U.S.C. § 1591 (1976 and Supp. merit, Section 303(e)(3)(F); and in Claims Five and III 1979); and that EPA, Interior, and Reclamation Six, that EDF's argument that the federal violated Section 102(2)(E) of the National defendants had violated Section 201 of the Environmental Policy Act of 1969 ("NEPA"), 42 CRBSCA, 43 U.S.C. § 1591 and Section 102(2)(E) U.S.C. § 4332(2)(E) (1976 and Supp. III 1979). of NEPA, 42 U.S.C. § 4332(2)(E), by not studying EDF sought an order from the district court which and implementing alternative salinity controls, was would have required EPA to promulgate without merit. regulations setting forth water quality standards, implementation plans, and waste load allocations [**5] This appeal involves a challenge by EDF of for salinity in the Colorado River Basin; [*278] the district court's entry of judgment on behalf of and requiring EPA, Reclamation, and Interior to the federal and state defendants on all six claims. study, develop, and describe alternative methods Also involved are two additional issues related to for salinity control. the proper scope of review for the court and the need for a statement of basis and purpose as EDF alleged six distinct but related claims for relief required by Section 4(c) of the Administrative against three federal defendants regarding salinity Procedure Act ("APA"), 5 U.S.C. § 553(c) (1976 levels in the Colorado River. The district court, in and Supp. III 1979). We affirm the district court's an unpublished opinion dated October 3, 1979, order and entry of judgment on all issues. entered judgment for the federal and state I. THE CLEAN WATER ACT defendants on all six claims. Environmental Defense Fund, Inc. v. Costle, 13 Envir.Rep. (BNA) The Clean Water Act has evolved into its current 1867 (D.D.C. Oct. 3, 1979). form after more than thirty years of legislative recognition of technological advancements in the [**4] The district court held: in Claim One, that field of water pollution control. The history of the EPA acted reasonably and neither arbitrarily nor Act and its predecessors, including the Federal capriciously in approving the water quality 4 Water Pollution Control Act ("FWPCA") and the standards for salinity which were adopted by the seven basin states pursuant to Sections 303(a) and 3 (b) of the Clean Water Act; in Claim Two, that Section 301 33 U.S.C. § 1311 (1976 and Supp. III 1979) 2 Section 303 33 U.S.C. § 1313 (1976 and Supp. III 1979) This court affirmed the district court's denial of certain intervention applications. EDF, Inc. v. Costle, 79 F.R.D. 235 (D.D.C.1978), Section 304 33 U.S.C. § 1314 (1976 and Supp. III 1979) aff'd, 12 ERC 1255, D.C. Cir. No's. 78-1471, 78-1515, 78-1566 Section 307 33 U.S.C. § 1317 (1976 and Supp. III 1979) (unpublished per curiam order and memorandum of July 31, 1978), cert. denied, 439 U.S. 1071, 99 S. Ct. 840, 59 L. Ed. 2d 36 (1979). Section 402 33 U.S.C. § 1342 (1976 and Supp. III 1979) 3 Sections of the Clean Water Act are referred to in this opinion by The parallel United States Code citation for Section 102(2)(E) of their designations in the Statutes at Large. The parallel United States NEPA is 42 U.S.C. § 4332(2)(E) (1976 and Supp. III 1979). The Code citations for the sections to which most frequent reference is parallel United States Code citation for Section 202(a) of the made are as follows: CRBSCA is 43 U.S.C. § 1591(a) (1976 and Supp. III 1979). 4 Section 208 33 U.S.C. § 1288 (1976 and Supp. III 1979) Act of June 30, 1948, ch. 758, 62 Stat. 1155. Page 3 of 22 Environmental Defense Fund, Inc. v. Costle 5 FWPCA Amendments of 1972, [**6] has been controlling water pollution was altered by the 11 detailed in prior opinions construing various passage in 1972 of the FWPCA Amendments. 6 portions of the statute. Our summary, therefore, The Amendments were enacted, in part, from a will be limited to the statutory provisions directly recognition in Congress of the lack of efficacy of involved in this appeal. the existing water quality standards as the major 12 vehicle [**8] for pollution control and abatement. [*279] A. Water Quality Standards Under the The Amendments assigned secondary priority to Clean Water Act the standards and placed primary emphasis upon both a point source discharge permit program and Water quality standards initially appeared in 7 federal technology-based effluent limitations Section 5 of the Water Quality Act of 1965 as the (specified maximum levels of pollution allowed to primary method of water pollution control. Under be discharged by an individual source). Clean the 1965 Act, the standards consisted of three basic Water Act §§ 301, 302, 307 and 402. The elements: (1) a "designated use" such as public standards, however, were retained in the newly water supply, recreational, fish propagation, enacted Section 303, and their use updated agricultural, or industrial uses; (2) water quality accordingly. "criteria" for various pollutants, which are expressed in numeric concentration limits or in 13 B. Section 303 Overview narrative form and are sufficiently stringent to 8 protect the designated use; and (3) a plan for the [**9] Section 303 of the Clean Water Act details implementation and enforcement [**7] of the water the statutory provisions concerning water quality 9 quality criteria. The states were each required to standards and implementation plans. Provisions adopt water quality standards for the waters within regarding the maintenance of existing standards are their boundaries, and if they failed to adopt included, as are Congressional mandates to EPA to complying standards, the federal government was promulgate regulations establishing standards for a required to promulgate standards in cooperation state in the event of a failure to either submit or 10 with state officials. correct deficient standards. Sections 303(a) and (b). A mechanism for review, update, and revision The significant role of water quality standards in of the standards is also enumerated. Section 303(c). In addition, the identification of state waters with insufficient controls is required, as is 5 Pub.L.No.92-500, 86 Stat. 816. The 1972 Amendments were the establishment of maximum daily load limits for updated in the Clean Water Act of 1977. Pub.L.No.95-217, 91 Stat. certain pollutants. Section 303(d). A continuing 1566 (passed Dec. 27, 1977), as codified at 33 U.S.C. §§ 1251 et seq. planning process must also be instituted. Section (1976 and Supp. III 1979). 303(e). 6 See, e. g., E. I. DuPont de Nemours and Co. v. Train, 430 U.S. 112, C. Section 208 Introduction 116-21, 97 S. Ct. 965, 969-71, 51 L. Ed. 2d 204 (1977); EPA v. California ex rel. State Water Resources Control Board, 426 U.S. Section 208 of the Act contains provisions for area- 200, 202-09, 96 S. Ct. 2022, 2023-26, 48 L. Ed. 2d 578 (1976); wide waste treatment management. The Section American Meat Institute v. EPA, 526 F.2d 442, 444, 446 (7th Cir. requires the identification and designation of areas 1975); Natural Resources Defense Council, Inc. v. Train, 166 within the states which have substantial water U.S.App.D.C. 312, 510 F.2d 692 (1975), for a summary and explanation of the Act. 7 Pub.L.No.89-234, 79 Stat. 903, amended, 84 Stat. 91, as codified at 11 Pub.L.No.92-500, 86 Stat. 816 (1972). 33 U.S.C. §§ 1151 et seq. (1976 and Supp. III 1979). 12 8 Senate Committee on Public Works, 93d Cong., 1st Sess., A Section 10(c)(1), 79 Stat. 907, 33 U.S.C. § 1160(c)(1) (1965). Legislative History of the Water Pollution Control Act Amendments 9 Id. of 1972, at 246 (1973) (hereinafter Leg. Hist.). 10 13 Sections 10(c)(1)-(4), 79 Stat. 907, 33 U.S.C. §§ 1160(c)(1)-(4) As construction of this section of the Clean Water Act comprises (1965). See EPA v. California ex rel. State Water Resources Control the gravamen of four of EDF's claims, the requisite statutory Board, 426 U.S. 200, 202 n.4, 96 S. Ct. 2022, 2023 n.4, 48 L. Ed. 2d interpretation and background will appear in our discussion of the 578 (1976). respective issues, infra. Page 4 of 22 Environmental Defense Fund, Inc. v. Costle quality problems. Section 208(a). A continuing indicates that damages to the River and its populace area-wide planning process must be instituted from salinity in the United States portion of the which results in the formulation of a water quality Colorado River system are approximately $ 53 management implementation plan. Section 208(b). million annually. By the year 2000, these damages 14 Regional operating [**10] agencies must be are estimated to reach $ 124 million annually if 17 designated to effect the plan and revise it as control measures are not applied. Disregarding 15 necessary. Sections [*280] 208(c) and 208(d). flow variances from year to year, the record also The regional agencies are primarily responsible for indicates that salinity concentrations will increase the control and abatement of salinity under the progressively if adequate salinity control measures current statutory scheme, as salinity impacts often are not effected. These salinity increases will occur result from nonpoint sources. due to increased agricultural and industrial use, and II. THE COLORADO RIVER SALINITY trans-basin diversions. Estimates of the present PROBLEM value of salinity damage, through the year 2000, 18 range from $ 1 billion to $ [**12] 1.5 billion. A. Background It is obvious that salinity in the River is a very The Colorado River flows over 1,400 miles from significant problem with not only serious impact in the Rocky Mountains to the Gulf of California, the basin, but also indirect consequences [**13] far draining a basin of 244,000 square miles in the outside the basin. It is deserving of the best efforts United States and an additional 2,000 square miles of all involved to reach a satisfactory solution. in Mexico. Portions of seven states lie within the B. Salinity Control Efforts to Date River basin: Colorado, New Mexico, Utah, and Federal and state salinity control efforts for the Wyoming (chiefly comprising the "upper basin"), Colorado date back twenty years. In an effort to and Arizona, California, and Nevada (comprising address the salinity problem, the basin states joined the "lower basin" or the "lower main stem"). with EPA and its predecessor agencies, in The [**11] basin itself has an estimated population enforcement conferences. Studies of the nature of of 2,250,000 in the United States portion and an the salinity problem as well as methods to alleviate additional 500,000 in Mexico. With the aid of its significant impact were undertaken. With the trans-basin diversions, the Colorado provides full passage of the Water Quality Act of 1965, which or supplemental water for agriculture, industry, and mandated the states to adopt general water quality municipal uses for an additional 12,000,000 standards, the states and federal government began residents of non-basin population centers such as working together to evaluate the feasibility of and Denver, Salt Lake City, Cheyenne, Albuquerque, need for the development of water quality standards and Southern California. 19 for salinity. The record indicates that in 1971 From a basinwide perspective, salinity is the most EPA published a report which recommended that 16 significant pollutant in the River. The record salinity criteria be established at several key locations throughout the River basin. In April 1972, [*281] EPA and representatives of the seven basin 14 Our construction of this subsection comprises a significant portion states unanimously recommended, inter alia, that: of EDF's Claim Four, infra. 15 Section 208 also contains provisions which are not of import in lost through evaporation or transpiration, or when purer water is this appeal, and are therefore not detailed herein. either diverted from the basin or is not returned to the River after in- basin use. 16 Salinity is a term which denotes the concentration of dissolved 17 mineral salts and solids in the water. Salinity concentrations of the U.S. Bureau of Reclamation, et al., Final Environmental Colorado increase from the River's headwaters to its mouth. The Statement: Colorado River Water Quality Improvement Program I- increase is a result of two basic processes: salt loading (input of salts 12 (1977). into the River's waters) and salt concentrating (removal of purer 18 Id. at I-21. upstream water so that the same tonnage of salts is carried in a lesser 19 quantity of water). Salt loading results from both natural conditions It should be noted that the promulgation of specific salinity and from human activities. Salt concentrating occurs when water is standards was not required by the Act. Page 5 of 22 Environmental Defense Fund, Inc. v. Costle (1) a salinity policy be adopted for the River system October 18, 1975. 40 C.F.R. § 120.5(c) (1974). having as its objective the maintenance of salinity In June 1975, prior to the EPA deadline, the Forum levels at or below concentrations found [**14] in issued the "Proposed Water Quality Standards for 1972 in the River's lower main stem; (2) treatment Salinity Including Numeric Criteria and Plan of of salinity be viewed as a basinwide problem; and Implementation for Salinity Control." This report (3) a high priority be assigned to certain water was modified in August 1975 and was subsequently quality projects with the objective of achieving adopted by each of the basin states as their water stabilization of salinity levels in the lower basin at 20 quality standards for salinity and related plans of the earliest possible date. implementation. After a public comment period, After passage of the FWPCA Amendments in 1972, EPA, in November 1976, determined that the plans EPA, pursuant to Section 303(a) (1), began to and water quality standards met the requirements of review all current state water quality standards. As the Clean Water Act. Section 303(c) of the Act part of this review, EPA, in January 1973, notified requires a review of these standards at least once six of the basin states that establishment of every three years. complying water quality standards for salinity C. Elements of the State Water Quality Standards 21 would be required. [**16] In June 1974, EPA for Salinity proposed regulations [**15] establishing its "Salinity Control Policy Standards and The states' water quality standards for salinity Procedures," 39 Fed.Reg. 20703-20704 (June 13, include both narrative and numeric criteria, a plan 1974), and after completion of the requisite notice, of implementation, and other factual information on comment, and hearing procedures, the agency salinity in the Colorado River. The numeric criteria promulgated final salinity regulations in December were established at three key points on the lower 1974. 39 Fed.Reg. 43721-43723 (Dec. 18, 1974), main stem of the River employing [**17] the flow- 22 40 C.F.R. §§ 120 et seq. (1974). The salinity weighted average annual salinity concentrations for 23 24 regulations included three major elements: (1) the year 1972. maintenance of salinity levels in the lower main [**18] [*282] In addition, each basin state stem at or below the average level during 1972, 40 adopted a proposal for a water-quality monitoring C.F.R. § 120.5(b) (1974); (2) adoption by the states and analysis program as an integral segment of the of numeric criteria for "appropriate points" on the standards. The program's purpose is to provide River system, 40 C.F.R. § 120.5(c)(1) (1974); and information on a basinwide basis for plan (3) development by the states of a plan to implement the standards, 40 C.F.R. § 120.5(c)(2) (1974). The regulation, in addition, required each 23 These values were determined by Reclamation from daily flow basin state to establish specific numeric criteria by and salinity data collected by the U.S. Geological Survey and Reclamation itself. The River system is subject to a highly variable annual flow and these concentration values are calculated to present 20 a standard for comparison based upon an average flow. EPA, Proceedings of the Reconvened Seventh Session of the 24 Conference in the Matter of Pollution of the Interstate Waters of the The criteria are as follows: Colorado River and Its Tributaries Colorado, New Mexico, Arizona, California, Nevada, Wyoming, Utah, 215-218 (1972) (hereinafter Go to Table1 Proceedings). 21 The lower main stem of the River is defined as that portion from Pursuant to EPA's determination that salinity standards would be Hoover Dam to Imperial Dam. These three points were selected, as mandated, the seven basin states organized the Colorado River Basin the record shows, because of their significant locations. Nevada Salinity Control Forum ("Forum") in late 1973. The Forum was diverts the Colorado water from Lake Mead for use in the Las Vegas established as an interstate mechanism for cooperation among the area, and the returns enter the Lake just upstream from Hoover Dam. basin states in the development of water quality standards for The gaging station below Parker Dam is immediately downstream of salinity. the major Lake Havasu diversion for the Metropolitan Water District 22 The record indicates that the Forum was instrumental in aiding of Southern California. Large agricultural areas in the Imperial and EPA to propose and ultimately promulgate the 1974 salinity Coachella Valleys in California, and the Yuma area in Arizona and regulation. California, are served by diversions at Imperial Dam. Page 6 of 22 Environmental Defense Fund, Inc. v. Costle evaluation. Seventeen points on the River were Act, Section 402; (4) the reformulation of selected to aid in both the measurement of the previously authorized, but unconstructed, [**20] effectiveness of salinity control projects and federal water projects to reduce the salt loading programs, and to serve as a continuous effect; (5) the use of saline water for industrial uses informational source of salinity levels throughout whenever practical; and (6) the institution of the entire basin. The monitoring points are not miscellaneous water user programs and the locations where numeric criteria are established, commencement of future possible salinity control except at the three key points on the lower main programs. The 1975 plan is categorized into four stem. The majority of the points are, in fact, located separate components: (1) control of existing point in the upper-basin. The points are usually the sources; (2) diffuse source control; (3) irrigation lowest locations near statelines at which source control; and (4) control of new point measurements are taken on the River's major sources. tributaries. III. JUDICIAL REVIEW UNDER THE APA The water quality standards also include narrative Before turning to the merits of EDF's challenges, provisions which require salinity to be viewed as a we must briefly detail the appropriate scope and basinwide problem. The provisions' purpose is to standard of review. We must also address the need maintain salinity at or below 1972 levels found in for preparation of a statement of basis and purpose the River's lowest reaches. Allowances are made, by EPA, as a prerequisite to approving the state within the narrative provisions, for temporary water quality standards for salinity. increases above the 1972 levels, on the condition A . Standard of Review that control measures to offset [**19] such increases are included in the implementation plan. The [**21] standard of review when ruling upon a challenge to informal agency action is governed by The water quality standards for salinity also include Section 10(e)(2)(A) of the APA, 5 U.S.C. § a plan of implementation (hereinafter "1975 plan"). 706(2)(A) (1976 and Supp. III 1979), which The plan details various federal and nonfederal provides that the reviewing court shall: projects and programs for the control of salinity; reviews possible future salinity control efforts; [*283] (2) hold unlawful and set aside agency provides for review and revision, as needed, of the action, findings, and conclusions found to be water quality salinity standards; and estimates (A) arbitrary, capricious, an abuse of discretion, or model projections of future flow levels, water uses, 27 25 otherwise not in accordance with law…. and salinity levels. The primary goal of the plan is to reduce the salt load of the River. The principal This "arbitrary and capricious" standard of review 26 components of the 1975 plan are as follows: (1) is a highly deferential one, Ethyl Corp. v. EPA, 176 prompt construction and operation of four initial U.S.App.D.C. 373, 541 F.2d 1, 34 (en banc), cert. salinity control units authorized by Section 202 of denied, 426 U.S. 941, 96 S. Ct. 2662, 49 L. Ed. 2d the CRBSCA, 43 U.S.C. § 1592 (1976 and Supp. 394 (1976), which presumes the agency's action to III 1979); (2) future construction of the twelve 28 be valid. Citizens to Preserve Overton Park, Inc. other units listed in Section 203 of the CRBSCA, 43 U.S.C. § 1593 or their equivalents after receipt of favorable planning reports; (3) the placing of 27 See Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 590 F.2d effluent limitations, principally under the National 1011, 1024 (1978); Ethyl Corp. v. EPA, supra, 541 F.2d at 33-34; Pollution Discharge Elimination System Sierra Club v. EPA, 176 U.S.App.D.C. 335, 540 F.2d 1114, 1123-24 ("NPDES"), on industrial dischargers, Clean Water (1976), vacated and remanded sub nom., Montana Power Co. v. U.S. E.P.A., 434 U.S. 809, 98 S. Ct. 40, 54 L. Ed. 2d 66 (1977). 28 25 The burden of overcoming this presumption is upon the party The streamflow estimates in the plan range from twelve to sixteen challenging the agency action. Mt. Airy Refining Co. v. Schlesinger, million acre-feet, and the depletion levels include water use 481 F. Supp. 257, 264 (D.D.C.1979), citing Udall v. Washington, estimates characterized as low, moderate, or high. Virginia & Maryland Coach Co., 130 U.S.App.D.C. 171, 398 F.2d 26 The 1975 plan, at ii. 765 (1968), cert. denied, 393 U.S. 1017, 89 S. Ct. 620, 622, 21 L.