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March 24, 1975

RUSSELL TRAIN, Administrator of the Environmental Protection Agency, et al., Defendants.


The opinion of the court was delivered by: THOMAS A. FLANNERY


This matter is before the court on motions to dismiss and for summary judgment. Federal defendants Russell Train, Administrator of the Environmental Protection Agency (EPA), and the EPA, and defendants-intervenors National Livestock Feeders Association, the State of Washington, Department of Natural Resources, and the State of Colorado, Water Quality Control Commission, have filed motions to dismiss for failure to state a claim upon which relief can be granted. The motions by all but the State of Colorado have been supported by material outside the pleadings and will be considered motions for summary judgment. Fed. R. Civ. P. 12(b). Plaintiff Natural Resources Defense Council (NRDC) and defendants-intervenors National Forest Products Association and the Colorado River Water Conservation District have filed motions for summary judgment denominated as such. Defendant-intervenors National Milk Producers Federation opposes plaintiff's motion for summary judgment but has filed no motion. *fn1"

 This case involves important questions of statutory interpretation of sections of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), Pub. L. No. 92-500, 86 Stat. 816, 33 U.S.C. §§ 1251 et seq. (Supp. III, 1973). This lengthy and complicated Act has the stated objective of restoring and maintaining the integrity of the nation's waters. See FWPCA § 101 (a), 33 U.S.C. § 1251(a) (Supp. III, 1973). In order to accomplish this goal the discharge of pollutants into the navigable waters of the United States is to be eliminated by 1985. In the interim, a number of mechanisms and deadlines are established for regulating discharges. Section 301(a) of the Act provides that, with only a few exceptions, any discharge of pollutants by any person is unlawful. Id. § 1311(a). One of the exceptions is for discharges made under a permit issued by the Administrator of EPA pursuant to the National Pollutant Discharge Elimination System (NPDES) established by section 402 of the Act. Id. § 1342. That section provides in pertinent part:

Sec. 402.(a)(1) . . . the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 301 (a) . . . ."

 See id. § 1342 (a)(1). Under such a permit the discharge must meet the effluent standards established by the Act.

 The term discharge of pollutants is defined in section 502 (12) of the Act to mean any addition of any pollutant to the navigable waters from any point source. See id. § 1362(12).

Thus, all nonpoint sources are excluded from the effluent limitations and the NPDES program. They are not subject to the stringent control scheme established for point sources.

 The term point source is defined as follows:

Sec. 502. . . . (14) The term 'point source' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.

 See id. § 1362(14). In 1973 the Administrator of EPA promulgated regulations which exempted certain sources from the NPDES permit requirements. These included discharges from storm sewers composed entirely of storm runoff uncontaminated by industrial or commercial activity; from relatively small animal confinement facilities; from silvicultural activities; and irrigation return flow from point sources where the flow is from less than 3000 acres. See 40 C.F.R. §§ 125.4(f), (j) (1974). *fn2" These exemptions were only from the requirement to apply for a permit. They did not waive the applicable effluent limitations or other standards established under the Act. 38 Fed. Reg. 18001-02 (1973). Additionally, the exemption does not extend to discharges from activities which the Administrator of EPA or the director of a state water pollution agency identifies as a significant contributor of pollution. 40 C.F.R. §§ 124.11(h)(5), 125.4(j)(5) (1974).

 Plaintiff NRDC challenges these regulations and asks for a declaratory judgment that the Administrator's action excluding those categories of sources from the NPDES permit program is unlawful under both FWPCA and section 13 of the Rivers and Harbors Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407 (1970). *fn3" NRDC does not press for injunctive relief at this time.

 Defendants Train and EPA contend that the exempted categories of sources are ones which fall within the definition of point source but which are ill-suited for inclusion in a permit program. Pollutants, EPA maintains, are best eliminated from storm sewer, agricultural and silvicultural discharges by "process changes" which prevent pollutants from entering rainwater runoff rather than by treating the discharges by the "end-of-pipe" method. EPA argues that the Act and its legislative history reflect congressional recognition that such runoff is to be dealt with in a nonpoint method. Moreover, it is EPA's contention that the tremendous number of sources within the exempted categories would make the permit program unworkable. Faced with this problem the Administrator harmonized the conflicting demands for regulation of point sources by exercising his discretion under the permit program to establish the challenged exemptions.

 Defendants-intervenors support the arguments set forth by EPA. Some of them argue further that the exempted sources were not even intended to be point sources under the Act and therefore are exempt from the permit requirements. *fn4" However, the court concludes that the power to define point and nonpoint sources is vested with EPA and should be reviewed by the court only after opportunity for full agency review and examination. In the court's view the only issue to be determined is whether FWPCA allows the Administrator the latitude to exempt entire classes of point sources from the NPDES permit requirements. The court holds that it does not.

 The judicial decisions interpreting FWPCA and the Rivers and Harbors Act and the legislative history of FWPCA support plaintiff's contentions that all discharges by point sources were intended to be covered by a permit. Decisions of the Supreme Court of the United States and the Court of Appeals for this Circuit, while not determinative of the issue, present strong support for a finding that the Administrator erred in exempting categories of point sources from the permit requirements.

 The most important of the judicial precedents is the Supreme Court's decision in United States v. Pennsylvania Industrial Chemical Corp. (PICCO), 411 U.S. 655, 36 L. Ed. 2d 567, 93 S. Ct. 1804 (1973), which involved section 13 of the Rivers and Harbors Act of 1899. The primary issue before the Court was whether section 13 was an absolute prohibition on discharging without a permit, even though no formal permit program had been established. The Court held that the section was such a prohibition, even though it was impossible for dischargers to obtain permits.

 A formal permit program under section 13 was subsequently established and that permit program was later incorporated in the new permit program authorized by section 402 of FWPCA. Section 402 prohibits further issuance of permits under section 13 of the Rivers and Harbors Act and designates the Administrator of EPA as the exclusive authority to permit discharges of pollutants into navigable waters. PICCO, supra at 657 n. 2, 658 n. 7, 659 n. 9. Section 402 specifically provides as follows:

Sec. 402. (a) . . . (4) All permits for discharges into the navigable waters issued pursuant to section 13 of the Act of March 3, 1899, shall be deemed to be permits issued under this title, and permits issued under this title shall be deemed to be permits issued under section 13 of the Act of March 3, 1899, and shall continue in force and effect for their term unless revoked, modified, or suspended in accordance with the provisions of this Act.

 Therefore, while PICCO dealt with a prior law, it is equally applicable to the statute now at issue. Indeed the Supreme Court stated that the later water quality legislation expressly complements section 13 of the 1899 Act:

"Section 13, although authorizing the Secretary of the Army to permit certain water deposits, contains no criteria to be followed by the Secretary in issuing such permits. The water quality legislation, on the other hand, calls for the setting of standards, and once such standards are established, federal permit authority, such as that vested in the Secretary of the Army by the second proviso to § 13, is specifically limited to that extent--i.e., a permit could not be granted by the Secretary unless the discharge material met the applicable standards. Water Quality Improvement Act of 1970, § 103, 84 Stat. 107. In essence, therefore, the Water Quality Acts placed a limitation on the Secretary's permit authority without undermining the general prohibitions of § 13.

 PICCO, supra at 668-69.

 The Supreme Court's ruling in PICCO is especially pertinent because it reversed the decision of the Third Circuit on which EPA relied in preparing to promulgate the exemption regulations. See United States v. Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3d Cir. 1972). The circuit court found that the Rivers and Harbors Act provision banning discharges without a permit was not intended to be effective unless a permit program was established. By analogy, EPA's staff reasoned that if EPA refused to accept permit applications from exempted sources then those sources did not need to comply with the permit requirements and could not be prosecuted for discharging without a permit. *fn5" This reasoning effectively was undercut by the Supreme Court's ruling that the statute clearly prohibited discharges without a permit, ...

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