plans and eliminating the more difficult and persistent sources of water pollution. See EPA, Water Quality Strategy Paper 10-11 (1974).
Subsection (a)(6) is the residual clause in the areawide waste treatment management planning provision. As such it deals with the non-designated or "leftover" portions of the State not addressed by the Governor or by local officials in subsections (a)(2)-(4). The plain implication is that subsection (a)(6) empowers the State to achieve what the other planning organizations under the previous subsections are directed to achieve. Like the other planning organizations, the State under subsection (a)(6) is to engage in subsection (b)(2) (A) - (K) planning for the area within its authority; that is, for "all portions of such State which are not [otherwise] designated" by the Governor or by local officials. 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, or to carry out the already required Section 303(e) planning.
The Court also notes that more than half of the Governors have non-designated their entire State from coverage under Section 208. There are presently only about 85 designated problem areas in the United States, leaving an estimated 95% of the nation's waterways non-designated. Only one State, Maine, has a Statewide waste treatment management plan in operation. Surely the Congress did not intend Section 208 planning to be the exception rather than the rule, nor, despite the States' primary responsibility under the Act, were the Governors and local officials given effective veto power over Section 208. Cf., Train v. City of New York, 420 U.S. 35, 44-46, 43 L. Ed. 2d 1, 95 S. Ct. 839 (1975).
It is admitted by all parties that the non-designated State areas may not suffer from substantial water quality control problems. These remaining portions most likely will not be of the urban-industrial type, quickly identified as priorities or as health and safety hazards by Governors and local officials. Rather, they will probably be rural, agricultural, mining, or forest areas with somewhat unique pollution problems caused by "other factors." The Act does not eliminate such areas from planning even if a preference is given to urban-industrial problem areas. See 33 U.S.C. § 1288(a)(1); 40 C.F.R. §§ 126.10(a) - (b). In fact, subsections (b)(2)(F) - (K) of Section 208 specifically address nonpoint pollution problems in areas which might not have been selected in the primary designation process (i.e., under subsections (a)(2) - (4)). Likewise, some of the point source planning provisions under subsections (b)(2)(A) - (E) are aimed at preventing future degradation of pollution-free areas.
As for conflicts in the Act caused by giving subsection (a)(6) such an expansive meaning, the Court believes that subsections (a)(2), (3), (4), and (6) regulate which level of government is to develop a waste treatment management plan -- not whether an area or portion of a State is to be covered by such a plan. The provision for additional or modified areas under subsection (a)(2) is thus consistent with this interpretation. It allows a Governor subsequently to designate a part of a subsection (a)(6) portion of the State as a more problematic area requiring planning coverage by a specially appointed organization under subsection (a)(2). Furthermore, subsection (b)(4) does not contravene the Court's approach to subsection (a)(6). This subsection, providing for Statewide application of the nonpoint planning requirements, enables a Governor to take a unified approach to runoff pollution problems through bypassing the various planning organizations and coordinating the Section 208 plan with the regulatory program developed under Section 303.
It is possible that the use of terms like "area" and "designate" and "organization or agency" -- all present in the Senate version of the bill -- could have made subsection (a)(6) crystal clear and removed any potential ambiguity from its interpretation. The Conference Committee, however, modified the Senate version, and the Conference Report in explaining the change merely paraphrased the language of subsection (a)(6). See Legislative History, supra note 4, at 300. Still, the FWPCAA is not to be given a crabbed or technical construction. Train v. City of New York, 420 U.S. 35, 43 L. Ed. 2d 1, 95 S. Ct. 839 (1975). Subsection (c)(1), 33 U.S.C. § 1288(c)(1), uses the term "planning agency" interchangeably with subsections (a)(2)-(4)'s planning "organization." "Portions" in subsection (a)(6) apparently substitutes for "area" in order to convey the sense of large, non-discrete, residual regions without carefully drawn boundaries. Moreover, the Senate's leading conferee as well as the past and present Administrators of EPA have all concurred in giving a broad, generous construction to subsection (a)(6).
The Court further finds the position of EPA in this litigation to be untenable. If EPA agrees with plaintiffs' interpretation of subsection (a)(6), its regulations should reflect that agreement. Instead, 40 C.F.R. § 126.2(d) relieves States acting under subsection (a)(6) from the intensive subsection (b)(2)(A)-(K) planning requirements. 40 C.F.R. § 126.20(a) permits States to substitute Section 303 planning for that mandated by Section 208. And 40 C.F.R. § 35.1053 denies States any Section 208 funding for subsection (a)(6) activities. See note 2 supra. These shortcomings cannot be remedied by reliance upon the alleged "non-mandatory" nature of the regulations or upon EPA's gradual approach to water pollution problems. 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 mis-construction of the Act which must be cured swiftly so that the States can understand and fulfill their total planning responsibilities under subsection (a)(6). Nor can the Court accept EPA's "step by step" or adjudicatory method of issuing subsection (a)(6) guidelines. Erroneous regulations should not be allowed to stand for a period of months or years. Moreover, planning requirements and directives should precede the actual planning by States lest disorder and inefficiency reduce State efforts to naught. Equally as important, valuable time and resources cannot be squandered while strict statutory deadlines are facing the agency and the States.
As plaintiffs 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, and where possible coordinated with Section 303 planning. 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. The same intensive waste treatment management planning will certainly not be required over every cubic inch of the nation's waterways. The Act's goal of clean waters by 1983 can be achieved through a multitude of planning approaches.
It is not for this Court, however, to define or promulgate the subsection (a)(6) regulations. Hopefully, EPA's draft regulations already address the complexities of a State's subsection (a)(6) planning role and delineate the need for State and local cooperation. In any event, a full and prompt rulemaking proceeding will enable interested parties including the States to offer further comments to EPA with reference to the content of the proposed guidelines.
For the reasons stated supra, defendant Environmental Protection Agency is enjoined to begin the process of developing and promulgating Section 208 (a)(6) regulations consistent with the provisions of this Memorandum and to revise existing regulations inconsistent therewith. Defendants' Motion to Dismiss or, in the Alternative, to Stay is hereby denied. Plaintiffs' Motion for Summary Judgment is hereby granted.
Plaintiffs in this action are entitled to a declaratory judgment that: 1.) it is a national goal under the Federal Water Pollution Control Act Amendments of 1972 to restore and maintain the nation's waters so that by 1983 they will be fit for human recreation and wildlife propagation; 2.) 33 U.S.C. § 1288(a)(6) requires a State to act as the Section 208 planning agency for non-designated portions of the State in the same manner as planning organizations designated under 33 U.S.C. §§ 1288 (a)(2)-(4); 3.) 33 U.S.C. §§ 1288(b)(2)(A)-(K) waste treatment management planning is required of a State acting under Section 208(a)(6) for portions of the State not designated under 33 U.S.C. §§ 1288(a)(2)-(4); 4.) 33 U.S.C. §§ 1288(d)-(e) require that in all non-designated portions, grants made under 33 U.S.C. § 1281(g)(1) and permits issued under 33 U.S.C. § 1342 shall be made in conformity with the Section 208 (a)(6) plan for such portions; and 5.) funding for areawide waste treatment management planning under 33 U.S.C. § 1288(f) shall be available to a State for Section 208(a)(6) planning.
In view of the fact that the 1976 goal of plan submission cannot feasibly be met for Section 208(a)(6) plans -- although such a deadline is prescribed by the Act -- the plaintiffs and EPA shall, within 15 days of this Order, furnish (jointly and individually) a proposed timetable to the Court for a rulemaking proceeding for Section 208(a)(6) regulations and for the phased compliance of Section 208(a)(6) planning with the requirements of Section 208 and the goals of the Act.
John Lewis Smith / United States District Judge