ELR Citation: ELR 20197
No(s). 96-5366 (D.C. Cir. Nov 4, 1997)

The court holds that the U.S. Environmental Protection Agency (EPA) does not have a mandatory duty under 40 C.F.R. §131.20(c) to review Michigan's denial of a petition by environmental groups to designate Lake Superior as an outstanding national resource water under the Federal Water Pollution Control Act (FWPCA). The groups maintain that the phrase "for review and approval" applies regardless of whether the state has adopted any new or revised standards. EPA interprets the regulation to mean that while states must submit both revised and unrevised standards, the Agency is only required to approve or disapprove modifications to the standards. The court first holds that the mere fact that EPA offers its interpretation of its water quality standard regulations in the course of litigation does not automatically preclude deference to the Agency. There is no reason to suspect that EPA's interpretation of 40 C.F.R. §131.20(c) represents anything less than the Agency's considered opinion. Several passages in an official agency document support EPA's contention that in practice it has followed the same interpretation that it advances on appeal. And absent any showing to the contrary, EPA's interpretation is entitled to deference if it is reasonable. The court next holds that the environmental groups' interpretation is not compelled by the regulation's plain language, and nothing in the record indicates that such an interpretation was intended by EPA. Although the environmental groups present a colorable construction of the regulation viewed in isolation, EPA's interpretation is eminently reasonable in light of the structure and purpose of the water quality standard regulations taken as a whole. While establishing deadlines for the Agency's approval of revised standards, the regulation contains no similar provision relating to the review of existing water quality standards. If, as the environmental groups contend, EPA were under a nondiscretionary duty to evaluate both existing and revised standards, presumably the regulations would provide deadlines for that review as well. The court also holds that EPA's interpretation of the water quality regulations will not upset the balance between state and federal environmental authorities. In the event that a state refuses to make any revisions after completing its triennial review, or fails to conduct a review of its water quality standards within a three-year period, EPA retains discretion to take appropriate action after reviewing the states' submissions. Finally, the court holds that because EPA's interpretation of its water quality standard regulations is neither plainly erroneous nor inconsistent with the regulation, the court must defer to the Agency's interpretation.

Counsel for Appellants
Neil S. Kagan, Glenn P. Sugameli
Public Land and Energy Division
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Appellees
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Silberman and Tatel, JJ.