p>Defenders of Wildlife (petitioners) objected to draft
National Pollution Discharge Elimination System (NPDES) permits prepared by the
Environmental Protection Agency (EPA) for Tempe, Tucson, Phoenix, and Pima
County, Arizona. The petitioners claimed that the permits must contain numeric
effluent limitations to ensure strict compliance with state water quality
standards. To address these objections, EPA added a storm water management
program to each permit to ensure compliance with Arizona water quality
standards. With the Arizona Department of Environmental Quality's approval, EPA
determined that these additions would ensure strict compliance and issued the
permits. Following this issuance, the petitioners requested an evidentiary
hearing with EPA's regional administrator concerning only the legal question of
whether numeric limitations were required to ensure strict compliance with
state water quality standards under the Clean Water Act (CWA).
name="_ednref1" title="">[1] The
regional administrator denied this request. Petitioners then filed a petition
for review with the Environmental Appeals Board (EAB). The EAB denied the
petition, holding that NPDES permits need not contain numeric effluent
limitations to ensure strict compliance with state water quality standards. The
petitioners moved for reconsideration by the EAB but this motion was also
denied. Consequently, petitioners sought review of EPA's decision in the Ninth
Circuit pursuant to the Clean Water Act provision authorizing judicial review
of EPA decisions "issuing or denying any [NPDES]
permit."[2]
In its review of EPA's decision, the court acknowledged the controversy surrounding the treatment of storm-water discharges under the CWA and referenced EPA's previous difficulty in promulgating regulation for municipal storm-water discharge. Under the 1987 amendments to the CWA, Congress created permit requirements for storm-water discharge from industrial activities[3] and for municipal sewer systems serving populations over 100,000.[4] The Act sets different standards for storm-water discharge permits for each of these sources. For industrial dischargers, the permit must "meet all applicable provisions of this section and section 1311 of this title."[5] However, for municipal storm-water discharge, permits "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system design and engineering methods, and such other provisions as the Administrator . . . determines appropriate for the control of such pollutants."[6]
The petitioners maintained that the difference in wording between the two provisions demonstrates that the statute is ambiguous as to whether Congress intended municipal storm water discharge to strictly comply with state water quality standards under Clean Water Act section 301(b)(1)(C).[7] Applying the two-step test for statutory interpretation established in Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron),[8] the court held that the statutory language was unambiguous. The first step of the Chevron test is to use the "traditional tools of statutory construction" to determine whether Congress's intent in the statute is clear. If Congress's intent is clear, then no examination of whether an agency's decision is "arbitrary, capricious, or manifestly contrary to the statute" is required.[9]
Under traditional statutory construction, "where Congress includes particular language in one section of the statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."[10] Accordingly, the exclusion of any reference to section 301(b)(1)(C)'s state water quality standard requirements in section 402(p)(3)(B)(iii) indicates that Congress did not intend to require municipal storm-water discharges to meet applicable state water quality standards. Furthermore, because Congress included language in section 402(p)(3)(B)(iii) requiring municipal storm water dischargers to "reduce the discharge of pollutants to the maximum extent practicable,"[11] to require municipal discharge to comply with a stricter standard under section 301(b)(1)(C) would render section 402(p)(3)(B)(iii) superfluous.
In Guam ex rel. Guam Economic Development Authority v. United States,[12] the Ninth Circuit held that an interpretation of a statute that withdraws effect from any provision of that statute is unacceptable.[13] Thus, in the present case the court held that petitioners' interpretation of the Act was impermissible. In closing, the court referred to precedent established in Natural Resources Defense Council, Inc. v. Environmental Protection Agency[14] that under the 1987 CWA amendments, Congress retained the existing controls for industrial storm water discharge but promulgated new standards for municipal discharges.[15] The court offered this holding as authority for the assertion that the differing standards for municipal and industrial storm water discharge are intentional.
Finally, the court considered Petitioners' claim that EPA may not impose numerical limits or other controls to ensure strict compliance with state water quality standards. The court dismissed the claim by referring to language in section 402(p)(3)(B)(iii) requiring permits for municipal storm sewer discharge to include "such other provisions as the Administrator . . . determines appropriate for the control of such pollutants."[16] This provision allows EPA the broad discretion whether to require strict compliance with state standards, if necessary to control pollution. With this discretion in mind, the court determined that EPA's issuance of the permits had been proper.
