Opinion for the court filed by Circuit Judge HARLINGTON WOOD, Jr.
HARLINGTON WOOD, Jr., Circuit Judge:
Plaintiff-appellant, the Environmental Defense Fund, Inc. ("EDF"), seeks review of an order and judgment denying its motion for summary judgment and granting federal and state defendants' cross-motions for summary judgment. EDF challenged certain action and inaction by the Environmental Protection Agency ("EPA"), the Department of the Interior ("Interior"), and the Bureau of Reclamation ("Reclamation")
EDF complains that EPA violated Sections 303(a)-(e) of the Clean Water Act, 33 U.S.C. §§ 1313(a)-(e) (1976 and Supp. III 1979); that both Reclamation and Interior violated Section 201 of the Colorado River Basin Salinity Control Act ("CRBSCA"), 43 U.S.C. § 1591 (1976 and Supp. III 1979); and that EPA, Interior, and Reclamation violated Section 102(2)(E) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(E) (1976 and Supp. III 1979). EDF sought an order from the district court which would have required EPA to promulgate regulations setting forth water quality standards, implementation plans, and waste load allocations for salinity in the Colorado River Basin;
EDF alleged six distinct but related claims for relief against three federal defendants regarding salinity levels in the Colorado River. The district court, in an unpublished opinion dated October 3, 1979, entered judgment for the federal and state defendants on all six claims. Environmental Defense Fund, Inc. v. Costle, 13 Envir.Rep. (BNA) 1867 (D.D.C. Oct. 3, 1979).
The district court held: in Claim One, that EPA acted reasonably and neither arbitrarily nor capriciously in approving the water quality standards for salinity which were adopted by the seven basin states pursuant to Sections 303(a) and (b) of the Clean Water Act;
This appeal involves a challenge by EDF of the district court's entry of judgment on behalf of the federal and state defendants on all six claims. Also involved are two additional issues related to the proper scope of review for the court and the need for a statement of basis and purpose as required by Section 4(c) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(c) (1976 and Supp. III 1979). We affirm the district court's order and entry of judgment on all issues.
I. THE CLEAN WATER ACT
The Clean Water Act has evolved into its current form after more than thirty years of legislative recognition of technological advancements in the field of water pollution control. The history of the Act and its predecessors, including the Federal Water Pollution Control Act ("FWPCA")
A. Water Quality Standards Under the Clean Water Act
Water quality standards initially appeared in Section 5 of the Water Quality Act of 1965
The significant role of water quality standards in controlling water pollution was altered by the passage in 1972 of the FWPCA Amendments.
B. Section 303 — Overview
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, as are Congressional mandates to EPA to promulgate regulations establishing standards for a state in the event of a failure to either submit or correct deficient standards. Sections 303(a) and (b). A mechanism for review, update, and revision of the standards is also enumerated. Section 303(c). In addition, the identification of state waters with insufficient controls is required, as is the establishment of maximum daily load limits for certain pollutants. Section 303(d). A continuing planning process must also be instituted. Section 303(e).
C. Section 208 — Introduction
Section 208 of the Act contains provisions for area-wide waste treatment management. The Section requires the identification and designation of areas within the states which have substantial water quality problems. Section 208(a). A continuing areawide planning process must be instituted which results in the formulation of a water quality management implementation plan. Section 208(b).
II. THE COLORADO RIVER SALINITY PROBLEM
The Colorado River flows over 1,400 miles from the Rocky Mountains to the Gulf of California, draining a basin of 244,000 square miles in the United States and an additional 2,000 square miles in Mexico. Portions of seven states lie within the River basin: Colorado, New Mexico, Utah, and Wyoming (chiefly comprising the "upper basin"), and Arizona, California, and Nevada (comprising the "lower basin" or the "lower main stem"). The basin itself has an estimated population of 2,250,000 in the United States portion and an additional 500,000 in Mexico. With the aid of trans-basin diversions, the Colorado provides full or supplemental water for agriculture, industry, and municipal uses for an additional 12,000,000 residents of non-basin population centers such as Denver, Salt Lake City, Cheyenne, Albuquerque, and Southern California.
From a basinwide perspective, salinity is the most significant pollutant in the River.
It is obvious that salinity in the River is a very significant problem with not only serious impact in the basin, but also indirect consequences far outside the basin. It is deserving of the best efforts of all involved to reach a satisfactory solution.
B. Salinity Control Efforts to Date
Federal and state salinity control efforts for the Colorado date back twenty years. In an effort to address the salinity problem, the basin states joined with EPA and its predecessor agencies, in enforcement conferences. Studies of the nature of the salinity problem as well as methods to alleviate its significant impact were undertaken. With the passage of the Water Quality Act of 1965, which mandated the states to adopt general water quality standards, the states and federal government began working together to evaluate the feasibility of and need for the development of water quality standards for salinity.
After passage of the FWPCA Amendments in 1972, EPA, pursuant to Section 303(a)(1), began to review all current state water quality standards. As part of this review, EPA, in January 1973, notified six of the basin states that establishment of complying water quality standards for salinity would be required.
In June 1975, prior to the EPA deadline, the Forum issued the "Proposed Water Quality Standards for Salinity Including Numeric Criteria and Plan of Implementation for Salinity Control." This report was modified in August 1975 and was subsequently adopted by each of the basin states as their water quality standards for salinity and related plans of implementation. After a public comment period, EPA, in November 1976, determined that the plans and water quality standards met the requirements of the Clean Water Act. Section 303(c) of the Act requires a review of these standards at least once every three years.
C. Elements of the State Water Quality Standards for Salinity
The states' water quality standards for salinity include both narrative and numeric criteria, a plan of implementation, and other factual information on salinity in the Colorado River. The numeric criteria were established at three key points on the lower main stem of the River employing the flow-weighted average annual salinity concentrations for the year 1972.
The water quality standards also include narrative provisions which require salinity to be viewed as a basinwide problem. The provisions' purpose is to maintain salinity at or below 1972 levels found in the River's lowest reaches. Allowances are made, within the narrative provisions, for temporary increases above the 1972 levels, on the condition that control measures to offset such increases are included in the implementation plan.
The water quality standards for salinity also include a plan of implementation (hereinafter "1975 plan"). The plan details various federal and nonfederal projects and programs for the control of salinity; reviews possible future salinity control efforts; provides for review and revision, as needed, of the water quality salinity standards; and estimates model projections of future flow levels, water uses, and salinity levels.
III. JUDICIAL REVIEW UNDER THE APA
Before turning to the merits of EDF's challenges, we must briefly detail the appropriate scope and standard of review. We must also address the need for preparation of a statement of basis and purpose by EPA, as a prerequisite to approving the state water quality standards for salinity.
A. Standard of Review
The standard of review when ruling upon a challenge to informal agency action is governed by Section 10(e)(2)(A) of the APA, 5 U.S.C. § 706(2)(A) (1976 and Supp. III 1979), which provides that the reviewing court shall:
This "arbitrary and capricious" standard of review is a highly deferential one, Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1, 34 (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), which presumes the agency's action to be valid.
While we are admonished from "rubber stamping" agency decisions as correct, Ethyl Corp. v. EPA, supra, 541 F.2d at 34, our task is complete when "we find that the agency has engaged in reasoned decisionmaking within the scope of its Congressional mandate," American Radio Relay League, Inc. v. F.C.C., 199 U.S.App.D.C. 293, 297, 617 F.2d 875, 879 (1980). Thus, we must be assured that the agency action was "based on a consideration of the relevant factors," Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 823; and that "the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent," Ethyl Corp. v. EPA, supra, 541 F.2d at 35-36, quoting Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 444 F.2d 841, 850 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Our inquiry into the facts must also be searching and careful, Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 415-16,
Judicial review of agency inaction, on the other hand, is governed by a different standard. In reviewing EDF's Claims Two through Six, we must employ Section 10(e)(1) of the APA, 5 U.S.C. § 706(1) (1976 and Supp. III 1979). This standard provides that the reviewing court shall:
Courts which have construed this standard have found it to consist of either of two issues: (1) whether the agency has violated its statutory mandate by failing to act, Association of American Railroads v. Costle, 183 U.S.App.D.C. 362, 373, 562 F.2d 1310, 1321 (1977),
B. Scope of Review
The parties have not disputed the appropriate standards of review. They do disagree as to the proper scope of review, i. e., the extent of the district court's inquiry in its application of the respective standards. At issue is whether the district court properly struck, upon defendants' motion, four litigation affidavits submitted by EDF in support of its motion for summary judgment on Claim One (EPA's approval of the state water quality standards for salinity).
It is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made. The focal point for judicial review should be the administrative record already in existence, not some new record completed initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. at 825; Doraiswamy v. Secretary of Labor, 180 U.S.App.D.C. 360, 555 F.2d 832, 839-42 (1976).
In the time since Overton Park and Camp v. Pitts, several rules and exceptions governing the scope of informal agency action have emerged from subsequent decisions. See Asarco, Inc. v. U.S.E.P.A., supra, 616 F.2d at 1159. The most noted exception to the general rule occurs where "there was such a failure to explain administrative action as to frustrate effective judicial review." Camp v. Pitts, supra, 411 U.S. at 142-43, 93 S.Ct. at 1244. When the record is inadequate, a court may "obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." Id., at 143, 93 S.Ct. at 1244; Doraiswamy v. Secretary of Labor, supra, 555 F.2d at 842-843. The new materials should be merely explanatory of the original record and should contain no new rationalizations. Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977). If the agency action, once explained by the proper agency official, is not sustainable on the record itself, the proper judicial approach has been to vacate the action and to remand the matter back to the agency for further consideration. Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. at 1244; Asarco, Inc. v. U.S.E.P.A., supra, 616 F.2d at 1159.
The Ninth Circuit recently evaluated the "explanation" exception, in a similarly highly technical case, and found the need to look outside the record to determine whether the agency had considered all relevant factors. Asarco, Inc. v. U.S.E.P.A., 616 F.2d 1153 (9th Cir. 1980). The court, in review of an EPA action under the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (Supp. III 1979), felt that it could not adequately discharge its duty to engage in a "substantial inquiry" if it were required to "take the agency's word that it considered all relevant matters" as mandated by Overton Park. Id. The court resolved its dilemma by stating:
616 F.2d at 1160.
The district court found none of the four affiants to be employees of EPA, and that none had participated in the pertinent agency actions. Accordingly, the court declined to apply the exception which would have permitted it to look outside the record. EDF argues that this conclusion has no basis in the APA, its legislative history, or in Supreme Court decisions. We disagree, and find the motion to strike the four litigation
EDF asserts that judicial preclusion of presentation of evidence in litigation seeking review of informal agency actions creates a per se exclusionary rule which is both unsound as a matter of public policy, and will lead to capricious and ill-founded results. Further, such a per se rule, EDF maintains, is inconsistent with Overton Park's mandate for review which is thorough and probing, as well as searching and careful. EDF, in essence, calls for the creation of an exception which would enable parties challenging the propriety of informal agency action to submit expert affidavits to the reviewing court to supplement the administrative record. Such affidavits would address the propriety of the agency action.
EDF advocates the creation of an exception which would enable challenging parties to submit affidavits addressing the merits and propriety of the agency decision. The creation of such an exception would be contrary to decisions of the Supreme Court and of this court. There is no occasion for a judicial probe beyond the confines of a record which affords enough explanation to indicate whether the agency considered all relevant factors. Asarco, Inc. v. U.S.E.P.A., supra, 616 F.2d at 1160; Doraiswamy v. Secretary of Labor, supra, 555 F.2d at 842-43. If anything, a judicial venture outside the record can only serve either as background information, or to determine the presence of the requisite fullness of the reasons given; and it can never, under Camp v. Pitts, examine the propriety of the decision itself.
C. Statement of Basis and Purpose
EDF also avers that EPA violated Section 4(c) of the APA, 5 U.S.C. § 553(c) (1976 and Supp. III 1979), by failing to prepare a statement of basis and purpose prior to approving the state salinity standards and plans of implementation. That failure, EDF alleges, requires both reversal of EPA's actions and remand to the agency. This argument, however, was not raised in EDF's complaint and was not, so far as we can determine, asserted or ruled upon in the district court.
We are mindful of the settled rule that appeals courts should be very hesitant to review issues not addressed in the courts below. Regents of University of California v. Bakke, 438 U.S. 265, 283, 98 S.Ct. 2733, 2744, 57 L.Ed.2d 750 (1978) (and the cases cited therein); Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Brown v. Collins, 131 U.S.App.D.C. 68, 402 F.2d 209, 213 (1968). Our choice to resolve this issue is discretionary, Singleton v. Wulff, supra, 428 U.S. at 121, 96 S.Ct. at 2877, and is only exercised in extraordinary circumstances not present
IV. CLAIM ONE
In Claim One, EDF alleged that the approved water quality standards for salinity, including the implementation plans, failed to comply with the requirements of the Clean Water Act and the Water Quality Act of 1965. EDF also claimed that EPA's approval of the standards in November 1976 was arbitrary and capricious, as well as an abuse of discretion under Sections 303(a) and 303(b) of the Clean Water Act. 33 U.S.C. §§ 1313(a) and (b). EDF also challenged EPA's action on two related grounds. First, EDF asserted that establishment of specific numeric criteria was required for each basin state (including the four basin states within the upper basin). Second, EDF contended that the plan for the implementation of the standards, as adopted by each basin state, was based upon unrealistic assumptions, relied upon insufficient control methods, and contained "patently" ineffective provisions.
In its approval of the water quality standards, EPA was found by the district court to have acted in complete compliance with the Clean Water Act. The court correctly found EPA's actions to be sufficiently explained in the record, and determined that EPA had acted reasonably, and neither arbitrarily nor capriciously in approving the standards. EPA's actions, in approving the standards, had a rational basis in the administrative record and were not contrary to the provisions of the Clean Water Act.
A. Sufficiency of the Numeric Criteria
Pursuant to EPA regulation, each basin state adopted salinity standards which included: specific numeric criteria for three stations in the River's lower main stem, narrative provisions, and other factual information, with the goal of maintaining salinity concentrations below 1972 levels. Included also was a water quality monitoring and analysis program which was consistent with EPA's basinwide approach to the salinity problem. EPA, after a public comment period, approved the standards in 1976.
EPA's review of the standards must ensure that they were consistent with the applicable requirements of the FWPCA, as in effect immediately prior to the date of the enactment of the FWPCA Amendments of 1972. Clean Water Act §§ 303(a)(1), 303(a)(2), and 303(a)(3)(B). See Montgomery Environmental Coalition v. Costle, 646 F.2d 568, at 592, 593 (D.C.Cir.1980). This reference back mandated that the state standards were to be evaluated, by EPA, under the provisions of the Water Quality Act of 1965. The test for the adequacy of the standards under the 1965 Act directed that the standards were "to protect the public health or welfare, enhance the quality of water, and serve the purposes of [the] Act." § 10(c)(3).
EDF asserted below that separate numeric criteria were to be established in each basin state and that a failure to do so created a set of salinity standards with no accountability.
Here, EDF details several reasons which it argues necessitate judicial disapproval
The district court found the narrative and three numeric criteria to be sufficient to meet the 1965 Act's test of adequacy. We agree. The selection of the three points for numeric standards to supplement the narrative provisions is consistent with the basinwide approach and is fully explained in the record.
EDF next assails EPA's alleged change of an official agency position related to the number and location of the "appropriate points" where numeric standards would be set throughout the basin.
In the years prior to its approval of the state standards in 1976, EPA and the states were in disagreement concerning the proper number and efficacy of points along the River where numeric criteria would be necessary. Certain individuals within the agency were of the view that numeric standards would be required for several key points throughout the entire basin. As detailed earlier, the respective states, the Forum, and EPA combined efforts to develop an amenable solution, which eventually led to the first Federal Register notice of proposed rulemaking in June 1974.
EDF maintains that the memorandum from the EPA General Counsel represented a formal agency position, and that the promulgation of the salinity regulation with only three numeric points, and not for each state, was a complete and sudden reversal of EPA's alleged long-standing position. The district court determined that while certain EPA officials had initially advocated numeric criteria for each basin state, EPA took its first formal position upon its promulgation of the salinity regulation in December 1974. We agree. Accordingly, there was no reversal of an official position which would render EPA's actions in approving the standards either arbitrary, capricious, or an abuse of agency discretion.
EDF's argument misconstrues the record, including the General Counsel's opinion, and ignores the evidence which provides a reasonable as well as rational foundation for EPA's approval of the state salinity standards.
EPA's approval would survive scrutiny, under the arbitrary and capricious standard of review, even if this court were to construe EPA's early statements which favored implementation of numeric criteria in each state, as collectively representing formal EPA policy. It is well settled that an agency may alter or reverse its position if the change is supported by a reasoned explanation. See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 264-68, 95 S.Ct. 959, 967-69, 43 L.Ed.2d 171 (1975); Montana Power Co. v. EPA, 608 F.2d 334, 347-49 (9th Cir. 1979) (and the cases cited therein); N.L.R.B. v. International Union of Operating Engineers Local 925, AFL-CIO, 460 F.2d 589, 604 (5th Cir. 1972). Here, such a reasoned explanation is present in the record.
B. The Plan of Implementation
As a significant segment of the water quality standards for salinity, an implementation plan was also adopted by each state to supplement the requisite numerical criteria and narrative provisions.
EDF first avers that the states' plan was based upon unrealistic assumptions as to streamflow, rates and development in the upper basin, and feasibility of federal funded salinity mitigation projects. EDF contends that the plan overestimates both River streamflow levels and the funding feasibility of federal salinity projects, while simultaneously underestimating development rates in the upper basin.
EDF asserts that the plan, in effect, overstates streamflow levels and understates development (new water depletions) with the end result being an underestimation of expected salinity increases. EDF also complains that the plan was expressly reliant upon an annual streamflow of 15 million acre-feet ("m.a.f."), while the correct figure actually ranged from 13.5 to 13.9 m.a.f. In addition, EDF states that the plan is at odds with recognized authorities as to upper basin development levels. Contrary to these assertions, the district court correctly found the existence of a rational basis in the record to support the states' streamflow estimates, as well as their projection of upper basin development levels.
In effort to meet the Act's requirements, the states formulated the plan to address a range of variable flow levels and development rates within the River basin. The plan itself contains streamflow estimates ranging from 12 to 16 m.a.f., with estimated levels of depletion due to development evaluated for low, moderate, and high degrees of water use. It must be recognized that streamflow estimates may vary among the experts, as may estimates of future levels of depletion. The record evidence indicates that the plan presented enough data to EPA so that their approval cannot be said to be unreasonable. There is also record evidence which demonstrates the existence of a rational basis for EPA to conclude that depletion resulting from development would be low to moderate; with the resultant projected salinity levels being properly maintained under the plan.
As mentioned, the sixteen federal salinity control projects play an integral part in the plan. EDF challenges EPA's plan approval due to the states' assumption that the sixteen federal projects would materialize and function to maintain 1972 levels in the lower main stem. EDF maintains that the assumption was grossly speculative in 1976 because Congress had only authorized and funded four projects, feasibility studies on the remaining twelve projects were problematic, and there was some agency opposition to Congressional project authorization. Through the enactment of the CRBSCA, 43 U.S.C. §§ 1592, 1593, Congress expressed a strong federal commitment to aid in the reduction of River salinity levels via authorizing the construction of the sixteen projects, or their equivalents, in 1974.
Secondly, EDF attacks EPA's plan approval because the plan, "on its face," is allegedly ineffective and will not succeed in
EDF contends that the plan is short range and does not guarantee maintenance of the standards beyond 1990. EPA's approval of a plan with so short a useful life, EDF argues, is arbitrary and capricious. The district court noted that an entire chapter of the plan addressed future possible salinity controls and provided for review and appropriate modification of the plan every three years. The plan was not vague; and it adequately and reasonably projected salinity control measures through 1990. Thereafter, provisions within the plan itself address the incorporation of updates which may become necessary upon the development of future planning and control technology. We also note that no provision within the Clean Water Act requires that initial salinity standards be unalterable. In fact, the Act itself mandates appropriate revision of the water quality standards once every three years. Section 303(c). Hence, EPA's approval here cannot be considered to be arbitrary and capricious.
EDF also contests the plan's effectiveness because it allows for advance violations of the standards. Such violations are an actual narrative segment of the salinity standards. The violations are included to provide for temporary increases above the 1972 numeric levels on the condition that control measures to offset such increases are also contained within the plan itself. We find that provision for these temporary violations, as explained in the record, is proper, given the highly variable annual flow of the River, and the fact that the control projects may not come on line as soon as originally contemplated.
Third, EDF argues that the plan relied upon insufficient methods of control by ignoring non-structural on-farm approaches and other agricultural methods. EDF contends, in essence, that the plan erroneously excluded on-farm methods which are allegedly more effective than currently employed practices.
EDF avers that the plan ignores what EDF believes are the most effective and economic control measures available. Such disregard, EDF argues, has no rational basis in the law or in sound planning. While the record is indicative that on-farm techniques offer significant potential for the control and abatement of salinity, it also reveals that such measures are not always the most plausible or cost-effective controls, and alone would be insufficient to maintain the numeric criteria at 1972 levels. Given our limited scope and standard of review, we cannot say that the propriety of the plan's use of on-farm techniques, as approved by EPA, has been unreasonable or irrational. See Ethyl Corp. v. EPA, supra, 541 F.2d at 34.
Before turning to EDF's second claim, we make four brief observations. First, we are mindful that the scope and standard of review of the legal and practical need for specific basinwide numeric criteria and a related implementation plan is quite narrow as well as highly deferential. See generally Ethyl Corp. v. EPA, supra, 541 F.2d at 34. There is a presumption of validity to EPA's determination that the numeric criteria are not required in each basin state, and to the agency's ultimate approval of the state salinity standards and implementation plans. Id. EDF has not met its burden of overcoming this presumption. See Mt. Airy Refining Co. v. Schlesinger, supra, 481 F.Supp. at 264. A rational basis for EPA's actions is present in the record, and we conclude that the agency has engaged in reasoned decisionmaking which was based upon a consideration of all relevant factors. Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 415-16, 91 S.Ct. 823. See Citizens to Save Spencer County v. U.S.E.P.A., 195 U.S.App.D.C. 30, 600 F.2d 844, 886 n.212 (1979).
Second, we note that deference must be accorded to EPA's interpretation of the Clean Water Act. Board of Governors of the Federal Reserve System v. First Lincolnwood Corp., 439 U.S. 234, 99 S.Ct. 505, 58 L.Ed.2d 484 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); N.R.D.C., Inc. v. S.E.C., 196 U.S.App.D.C. 124, 606 F.2d 1031, 1050 n.24 (1979).
Third, EDF would have us dissect the Act in an effort to find the need for basinwide criteria and a more efficacious implementation plan. This we decline to do. Courts have held that the Clean Water Act is to be given a reasonable interpretation which is not parsed and dissected with the meticulous technicality applied in testing other statutes and instruments. N.R.D.C., Inc. v. Costle, 184 U.S.App.D.C. 88, 564 F.2d 573, 579 (1977). See Consolidation Coal Co. v. Costle, 604 F.2d 239, 243 (4th Cir. 1979), rev'd on other grounds, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980). In addition, any ambiguities as to the EPA Administrator's powers under the Clean Water Act are to be resolved in his favor. E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 128-29, 97 S.Ct. 965, 975, 51 L.Ed.2d 204 (1977); Inland Steel Corp. v. EPA, 574 F.2d 367, 373 (7th Cir. 1978).
Last, we confirm that the standards as approved by EPA were sufficient under the adequacy test espoused in the 1965 Act.
Environmental Defense Fund, Inc. v. Costle, 13 Envir.Rep. (BNA) 1867, 1873 (D.D.C. Oct. 3, 1979).
V. CLAIM TWO
In Claim Two, EDF argued that EPA's continued failure to promulgate revised or new salinity standards under the Clean Water Act, Section 303(c)(4)(B), 33 U.S.C. § 1313(c)(4)(B), was unreasonable as well as an abuse of discretion.
EDF's Claim is based upon Section 303(c)(4)(B) which provides:
EDF avers that EPA has not promulgated revised or new standards, when such standards are in fact necessary to counteract the alleged deficiencies in the states' 1975 plan and current 1978 revision. Since we determined in Claim One that the 1975 plan was not deficient, this argument is without merit.
The gravamen of EDF's Claim below involved an argument that because "new information" had become available since 1976, which was allegedly indicative of the need for revised or new salinity standards, EPA's failure to act under Section 303(c)(4)(B) was unreasonable and an abuse of discretion. This information consists of evidence which arguably proved the inadequacy of the respective states' 1975 implementation plan.
The district court correctly enumerated three supplemental factors which it utilized in reaching its outcome. The first factor was that the 1972 numeric criteria for salinity had not been exceeded during 1975, 1976, or 1977. EDF assails the court's reliance upon this fact due to its belief that significant increases in salinity levels are imminent. Such potential increases, even if substantiated, cannot be considered to render the district court's reliance upon them erroneous. The only issue below was whether EPA acted unreasonably, or with an abuse of discretion, by not affecting a discretionary determination that revised or new salinity standards were necessary in or before 1977. Thus, post-1977 increases have no bearing upon the propriety of EPA's failure to act and can be adequately addressed, if in fact they do occur, in subsequent standard revisions under Section 303(c)(1).
The second factor is that unexpectedly slow development in the upper basin had tended to offset the phenomenon that the federal salinity control projects had not
The court noted, as its third factor, that to mandate EPA intercession at that time would breach the orderly state review process, as required by the Act itself. Section 303(c)(1). EDF argues that neither the Act nor the related regulations excuse EPA from its Section 303(c)(4)(B) duties, in light of the States' respective Section 303(c)(1) duties. While this is correct in principle, it is logical that EPA should refrain from acting until the states have completed an initial effort to update the standards as they deem appropriate. For EPA to intercede prior to the initial completion of the state review process would also disserve the mandate within Section 101(b) of the Clean Water Act, 33 U.S.C. § 1251(b) (1976 and Supp. III 1979). This section recognizes the Congressional policy of placing "primary" responsibility with the states "to prevent, reduce, and eliminate" water pollution.
We note that EPA has not violated its statutory mandate by failing to act, nor has its delay in acting been unreasonable. Under this court's limited standard of review,
VI. CLAIM THREE
EDF asserted in Claim Three that EPA failed to promulgate total maximum daily loads ("TMDL's") for salinity, in violation of Section 303(d) of the Clean Water Act.
Section 303(d) involves a complex statutory scheme which requires the states to identify waters where point source controls alone will be insufficient to implement the water quality standards applicable to such waters. The Section obligates the states to establish the TMDL's in accordance with a priority ranking based upon both the severity of the pollution and the water's designated uses. The TMDL's set the maximum amount of a pollutant which can be contributed into a stream segment without causing a violation of the water quality standards. The TMDL's can then be allocated by insertion into NPDES permits, among the various point source dischargers upon the stream segment, taking into account nonpoint source impacts as well.
The states are to submit the respective TMDL calculations for EPA approval, Section 303(d)(2), within one hundred and eighty days of the date of the Administrator's publication of the initial Section 304 identification of the respective pollutants. EPA is to review the TMDL identification and levels, and either approve or disapprove them as appropriate. Id. EPA approval will then result in the incorporation of the TMDL's into the state water quality management plans under Section 303(e).
The district court also relied upon the fact that the salinity standards are currently being met. EDF correctly argued below that TMDL's are occasionally employed to prevent anticipated violations of the water quality criteria. The court countered this observation, however, by finding that average salinity levels had been decreasing since 1972, and there was no likelihood of any anticipated violations in the immediate future. Hence, the court ruled that an order directing EPA to establish salinity TMDL's in the basin states would not be warranted. We agree. If salinity concentrations were to rise and future violations were anticipated, the states or EPA, in their respective review processes, could establish TMDL's as necessary to comply with Section 303(d).
Our affirmance of this Claim is further strengthened by the record evidence which indicates that under two percent of the salinity concentration is currently subject to the Section 402 NPDES permit program. Thus, the effect of placing TMDL's for salinity upon the specific numeric criteria is minimal at best. EPA and the states have acted reasonably and in compliance given our limited standard of review under Section 706(1) of the APA. However, we admonish EPA to approve or disapprove such identification, prioritization, and load limits within the requisite statutory framework and time limits. While review of EPA's action is now premature, we urge EPA to carefully heed the statutory deadlines in the future.
VIII. CLAIM FOUR
In Claim Four, EDF assailed EPA inaction as violative of Section 303(e) of the Clean Water Act. EDF alleged that EPA had unreasonably failed to either disapprove or remedy the basin states' continuing planning processes ("CPP's") under Section 303(e). The state CPP's, EDF asserts, have not resulted in water quality plans which have provided adequate implementation provisions and compliance schedules for salinity. Section 303(e)(3)(F). Thus, EPA would be duty bound to sanction states which had not submitted a complying CPP. Section 303(e)(2). The district court determined that EDF's reliance upon the cited statutory provision was clearly misplaced. We agree and find EPA's inaction has not been unlawfully withheld or unreasonably delayed. APA Section 10(e)(1), 5 U.S.C. § 706(1).
EDF claims that the basin states' CPP's are inadequate due to alleged deficiencies in the states' 1975 implementation plans. EDF argues that the salinity implementation plan, promulgated under Sections 303(a) and 303(b), is a part of the water quality management plans under both Sections 208 and 303(e) as well as under related EPA planning regulations, 40 C.F.R. §§ 35.1500, 35.1503(g), and 35.1509-3 (1979). To the contrary, our reading of the regulations and of Sections 208 and 303(e) indicates that the plan of implementation contained within the water quality standards is not a part of the water quality management plans. The implementation plan included in the water quality standards was adopted pursuant to Sections 303(a) and 303(b), as originally mandated by the 1965 Act, while the water quality management plans were adopted pursuant to Sections 208 and 303(b). Moreover, the plan referenced in the regulations refers to the implementation of the water quality management plan and continuing planning processes, while the plan required by Sections 303(a) and 303(b) goes to the implementation of the water quality standards. Hence, different implementation plans involving diverse statutory schemes are present.
Further, Section 303(e)(3)(F) mandates that water quality management plans should include adequate implementation provisions for "revised or new" water quality standards under Section 303(c). The district court noted that the basin states' salinity standards are not revised or new standards adopted pursuant to Section 303(c), but are in fact existing standards adopted and approved pursuant to Sections 303(a) and 303(b). Thus, EDF's reliance upon Section 303(e)(3)(F) is misplaced.
IX. CLAIMS FIVE AND SIX
EDF also presented two claims concerning statutory mandates requiring federal defendants to evaluate and develop alternatives to recommended courses of action. EDF argued, in Claim Five, that Interior and Reclamation failed in their duty to develop alternatives to current salinity control programs as required by Section 201 of the Colorado River Basin Salinity Control Act ("CRBSCA"), 43 U.S.C. § 1591. In Claim Six, EDF alleged that EPA, Interior, and Reclamation had violated Section 102(2)(E) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(2)(E) by failing to institute alternative salinity management measures.
Aside from the oft-litigated requirements of NEPA Section 102(2)(C), 42 U.S.C. § 4332(2)(C) involving the preparation and filing of an environmental impact statement ("EIS"), is Section 102(2)(E), 42 U.S.C. § 4332(2)(E), which requires the development and analysis of alternatives apart from those usually found in an EIS. Section 102(2)(E) requires all federal agencies to:
Section 201(a) of the CRBSCA, 43 U.S.C. § 1591(a), contains similar requirements. The CRBSCA outlines specific duties which Interior and Reclamation must follow, and which are designed to implement the conclusions and recommendations reached at the April 1972 Water Pollution Conference of the seven basin states. CRBSCA § 201(a).
The essence of EDF's two claims is its belief that "on-farm management practices" should be instituted as the alternative to control the salinity problems on the Colorado River. Accordingly, EDF believes that the federal defendants have not sufficiently developed and utilized on-farm methods such as irrigation scheduling and management, improved application methods, recycling irrigation runoff, reorienting field topography, and seepage reduction. This analysis and implementation of such on-farm techniques, EDF argues, is legally mandated by NEPA Section 102(2)(E) and by CRBSCA Section 201(a).
In Claim Five, the court correctly decided that on-farm management measures were not alternatives to Interior's and Reclamation's CRBSCA salinity control efforts, but comprised instead, an integral part of the program itself. There is evidence in the record which exhibits the defendants' interest in the development and use of on-farm measures. EDF has not established any facts which would activate the "study of alternatives" requirement within the CRBSCA. On-farm techniques comprise an integral segment of Interior's and Reclamation's existing salinity control program and do not, as EDF asserts, represent alternatives to such a program. The record details several instances where on-farm methods have been evaluated, including the final EIS of the program itself,
This same record evidence is supportive of the district court's resolution of Claim Six. Section 102(2)(E) of NEPA is inapplicable to Claim Six, because on-farm measures currently employed by EPA are not "alternatives" to the agency's salinity control program. Rather, the measures constitute an integral segment of the program. The district court found the existence of record evidence indicative of the fact that
Because we find that on-farm techniques are integral segments of both programs, and we locate the existence of sufficient record evidence to indicate that significant attention to on-farm measures has been undertaken by the three defendants, we conclude that the district court's entry of judgment on these two claims was proper.
For the foregoing reasons, the order and entry of judgment of the district court are affirmed.
The parallel United States Code citation for Section 102(2)(E) of NEPA is 42 U.S.C. § 4332(2)(E) (1976 and Supp. III 1979). The parallel United States Code citation for Section 202(a) of the CRBSCA is 43 U.S.C. § 1591(a) (1976 and Supp. III 1979).
Salinity in milligrams/liter ---------------------------- Below Hoover Dam 723 Below Parker Dam 747 At Imperial Dam 879The lower main stem of the River is defined as that portion from Hoover Dam to Imperial Dam. These three points were selected, as the record shows, because of their significant locations. Nevada diverts the Colorado water from Lake Mead for use in the Las Vegas area, and the returns enter the Lake just upstream from Hoover Dam. The gaging station below Parker Dam is immediately downstream of the major Lake Havasu diversion for the Metropolitan Water District of Southern California. Large agricultural areas in the Imperial and Coachella Valleys in California, and the Yuma area in Arizona and California, are served by diversions at Imperial Dam.
The two other matters which state defendants moved to strike appeared in EDF's reply brief. One involved the argument in footnote 4 at 7-8, concerning prompt EPA promulgation of water quality standards for salinity. The other involved the discussion at 20-22 related to alleged state refusal to enforce water quality standards through the NPDES program. These must also be stricken because neither was raised in EDF's opening brief nor addressed by defendants in their briefs, and therefore are beyond the scope of argument permitted to be raised in a reply brief. Mississippi River Corp. v. F.T.C., 454 F.2d 1083, 1093 (8th Cir. 1972). See U.S. v. Bucchino, 606 F.2d 590, 591 (5th Cir. 1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980); U.S. Steel Corp. v. Train, 556 F.2d 822, 839 n.23 (7th Cir. 1977). This is true in the absence of issues of grave public import, Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1266, 27 A.L.R.Fed. 925 (4th Cir. 1974), or where there would otherwise be a miscarriage of justice. U.S. v. Luther, 521 F.2d 408, 411 (9th Cir. 1975). Since we find neither, we must strike these matters as well. Were we to rule otherwise, the federal and state defendants would not have had a full and fair opportunity to adequately respond to EDF's later arguments. U.S. v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31, 78 n.113 (1976) (en banc, per curiam), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
We find EDF's other arguments concerning the propriety of the district court's grant of defendants' motion to strike the four affidavits to be without merit.
Second, the district court determined that the establishment of upstream criteria was technically infeasible, as it would be difficult to identify upstream impacts and to correlate them to downstream effects. EDF disagrees with the court's characterization of EPA's task as "technically difficult" because of its belief that upstream standard establishment had been completed ten years earlier by the U.S. Geological Survey and by EPA's own methodology. The district court found the technical difficulties to have been adequately explained in the record, and that EPA's response had been reasonable. We agree, and add that the record details sufficient data to show that the states fully enumerated their belief in both the technical impracticality of upstream criteria and the incompleteness of the EPA data. See the 1975 plan at 60-61.
However, Sections 303(a) and 303(b) still require that a state's initial standards (adopted upon enactment of the 1972 Act) are consistent with the provisions of the 1965 Act. Thus, an implementation plan was necessary as a segment of each basin state's initial water quality standards for salinity, as approved by EPA in 1976. Section 303(c) of the 1972 Act removed the plan as an element of the water quality standards. Accordingly, the states are no longer mandated to continue to include the plan as a segment of the standards, once the separate planning and control procedures of Sections 208 and 303(e) are instituted.
§ 1591. Implementation of salinity control policy