Lead Opinion
“Water, water, everywhere / Nor any drop to drink.”2
Because New York City cannot tap the rivers, bays, and ocean that inhabit, surround, or, on occasion, inundate it to slake the thirst of its many millions of residents, it must instead draw water primarily from remote areas north of the City, mainly the Catskill Mountain/Delaware River watershed west of the Hudson River, and the Croton Watershed east of the Hudson River and closer to New York City.
The movement of water from the Scho-harie Reservoir through the Shandaken
Historically, the United States Environmental Protection Agency (the “EPA”) has taken a hands-off approach to water transfers, choosing not to subject them to the requirements of the National Pollutant Discharge Elimination System (“NPDES”) permitting program established by the Clean Water Act in 1972. Some have criticized the EPA for this approach. They argue that like ballast water in ships,
Shortly thereafter, several environmentalist organizations and state, provincial, and tribal governments challenged the Rule by bringing suit against the EPA and its Administrator in the United States District Court for the Southern District of New York. After many entities—governmental, tribal, and private—intervened on either side of the case, the district court (Kenneth M. Karas, Judge) granted summary judgment for the plaintiffs, vacating the Rule and remanding the matter to the EPA. In a thorough, closely reasoned, and detailed opinion, the district court concluded that although Chevron deference is applicable and requires the courts to defer to the EPA and uphold the Rule if it is reasonable, the Rule represented an unreasonable interpretation of the Clean Water Act, and was therefore invalid under the deferential two-step framework for judicial review established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The Federal Government and the inter-venor-defendants timely appealed. Despite the district court’s herculean efforts and its careful and exhaustive explanation for the result it reached, we now reverse for the reasons set forth below.
At step one of the Chevron analysis, we conclude—as did the district court—that the Clean Water Act does not speak directly to the precise question of whether NPDES permits are required for water transfers, and that it is therefore necessary to proceed to Chevron’s second step. At step two of the Chevron analysis, we conclude—contrary to the district court— that the Water Transfers Rule’s interpretation of the Clean Water Act is reasonable. We view the EPA’s promulgation of
BACKGROUND
The Clean Water Act and the National Pollutant Discharge Elimination System (“NPDES”) Permitting Program
In 1972, following several events such as the 1969 “burning” of the' Cuyahoga River in Cleveland, Ohio that increased national concern about pollution of our nation’s waters, Congress enacted the Federal Water Pollution Control Act (“FWPCA”) Amendments of 1972, 86 Stat. 816, as amended, 88 U.S.C. § 1251 ei seq., commonly known as the Clean Water Act (sometimes hereinafter the “Act” or the “CWA”). Congress’s principal objective in passing the Act was “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Congress also envisioned that the Act’s passage would enable “the discharge of pollutants into the navigable waters [to] be eliminated by 1985.” Id. § 1251(a)(1). Although time has proven this projection to have been over-optimistic at best, it is our understanding that the Act has succeeded to a significant degree in cleaning up our nation’s waters.
“[B]y setting forth technology-based effluent limitations and, in certain cases, additional water quality based effluent limitations[, ]the NPDES permit ‘defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger’s obligations under the [Act].’ ” Waterkeeper Alliance, Inc. v. EPA,
The Act envisions “cooperative federalism” in the management of the nation’s water resources. See, e.g., New York v. United States,
Water Transfers and the Water Transfers Rule
According to EPA regulations, a “water transfer” is “an activity that conveys or connects waters of the United States without subjecting the. transferred water to intervening industrial, municipal, or commercial use.” 40 C.F.R. § 122.3(i). Water transfers take a variety of forms. A transfer may be accomplished, for example, through artificial tunnels and channels, or natural streams and water bodies; 'and through active pumping or passive direction. There are thousands of water transfers currently in place in the United States, including at least sixteen major diversion projects west of the Mississippi River. Many of the largest U.S. cities draw on water transfers to bring drinkable water to their residents. The City of New York’s “water supply system ... relies on transfers of water among its [nineteen] collecting reservoirs. The City provides approximately 1.2 billion gallons of ... water a day to nine million people—nearly half of the population of New York State.” Letter Dated August 7, 2006, from Mark D. Buffer, General Counsel, City of New York Department of Environmental Protection to EPA, at 1, J.A. at 331.
The parties and amici tell us that water transfers are of special significance in the Western United States. Because much precipitation in the West falls as snow, water authorities there must capture water when and where the snow falls and melts, typically in remote and sparsely populated areas, and then transport it to agricultural and urban sites where it is most needed. See Western States Br. 1-2; see also State of California Amicus Br. 16 n.5. Colorado, for example, engages in over forty interbasin diversions in order to serve the State’s water needs. See Letter Dated July 17, 2006, from Brian N. Nazar-enus, Chair, Colorado Water Quality Control Commission, to Water Docket, EPA, at 1, J.A. at 320. California uses the “California State Water Project,” a complex water delivery system based on interbasin transfers from Northern California to Southern California, to serve the water needs of 25 million of its 37 million residents. See State of California Amicus Br. 3-10. Water transfers are also obviously crucial to agriculture, conveying water to enormously' important farmihg regions such as the Central and Imperial Valleys of California, Weld and Larimer Counties in Colorado, the Snake River Valley of Idaho, and the Yakima Valley of Washington. See Water Districts Br. 16-19.
At the same time, though, water transfers, like ballast water in ships, see generally Nat. Res. Def, Council,
During the 1990s and 2000s, prior to its codification in the Water Transfers Rule, the EPA’s position was challenged by, among others, environmentalist groups, which filed several successful lawsuits asserting that NPDES permits were required for some specified water transfers. See, e.g., Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York,
In response, the EPA took steps to formalize its position. In August 2005, the EPA’s Office of General Counsel and Office of Water issued a legal memorandum written by then-EPA General Counsel Ann R. Klee (the “Klee Memorandum”) that argued that Congress did not intend for water transfers to be subject to the NPDES permitting program. The EPA proposed a formal rule incorporating this interpretation on June 7, 2006, 71 Fed. Reg. 32,887, and then, following noticé- and-comment rulemaking proceedings, on June 13, 2008, adopted a final rule entitled “National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule” (the ‘Water Transfers Rule”), 73 Fed. Reg. 33,697-708 (June 13,2008) (codified at 40 C.F.R. § 122.3(f)).
The Water Transfers Rule’s summary states:
EPA is issuing a regulation to clarify that water transfers are not subject to regulation under the National Pollutant Discharge Elimination System (NPDES) permitting program. This rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This rule focuses exclusively on water transfers and does not affect any other activity that may be subject to NPDES permitting requirements.
Id. at 33,697.
The Rule states that water transfers “do not require NPDES permits because they do not result in the ‘addition’ of a pollutant.”
In the Water Transfers Rule, the EPA justified its interpretation of the Act in an explanation spanning nearly four pages of the Federal Register, touching on the text of Section 402, the structure of the Act, and pertinent legislative history. See Water Transfers Rule,
District Court Proceedings
On June 20, 2008, a group of environmental conservation and sporting organizations filed a complaint against the EPA and its Administrator (then Stephen L. Johnson, now Gina McCarthy) in the United States District Court for the Southern District of New York. The States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington, and the Province of Manitoba, Canada (collectively, the “Anti-Rule States”) did the same on October 2, 2008. In their complaints, the plaintiffs requested that the district court hold unlawful and set aside the Water Transfers Rule pursuant to Section 706(2) of the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2).
At about the same time these actions were filed, five parallel petitions for review of the Water Transfers Rule were filed in the First, Second, and Eleventh Circuits. On July 22, 2008, the United States Judicial Panel on Multidistrict Litigation consolidated these petitions and randomly as
On January 30, 2013, the district court granted multiple applications on consent to intervene as plaintiffs and defendants under Federal Rule of Civil Procedure 24. This added as intervenor-plaintiffs the Miccosukee Tribe of Indians of Florida, Friends of the Everglades, the Florida Wildlife Federation, and the Sierra Club, and as intervenor-defendants the States of Alaska, Arizona (Department of Water Resources), Colorado, Idaho, Nebraska, Nevada, New Mexico, North Dakota, Texas, Utah, and Wyoming, and various municipal water providers from Western states. The parties filed multiple motions and cross-motions for summary judgment.
On March 28, 2014, the district court granted the plaintiffs’ mptions for summary judgment and denied the defendants’ cross-motions. Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA,
The defendants and intervenor-defen-dants other than the Northern Colorado Water Conservancy District (hereinafter “the defendants”) timely appealed.
DISCUSSION
“On appeal from a grant of summary judgment in a challenge to agency action under the APA, we review the administrative record and the district court’s decision de novo.” Bellevue Hosp. Ctr. v. Leavitt,
This framework has been fashioned as a means for the proper resolution of administrative-law disputes that involve all three branches of the Federal Government, seri-atim.
First, the Legislative Branch, Congress, passes a bill that reflects its judgment on the issue—in the case before us, the Clean Water Act. After the head of the Executive Branch, the President, signs that bill, it becomes the law of the land.
Second, the Executive Branch, if given the authority to do so by legislation, may address the issue through its authorized administrative agency or agencies, typically although not necessarily by regulation— in this case the EPA through its Water Transfer Rule. In doing so, the executive agency must defer to the Legislative Branch by following the law or laws that it has enacted and that cover the matter.
Only last, in case of a challenge to the Legislative Branch’s authority to pass the law, or to the Executive Branch’s authority to administer it in the manner that it has chosen to adopt, may we in the Judicial Branch become involved in the process. When we do so, though, we are not only last, we are least: We must defer both to the Legislative Branch by refraining from reviewing Congress’s legislative work beyond determining what the statute at issue means and whether it is constitutional, and to the Executive Branch by using the various principles of deference, including Chevron deference, which we conclude is applicable in the case at bar. For us to decide for ourselves what in fact is the preferable route for addressing the substantive problem,at hand would be directly contrary to this constitutional scheme. What we may think to be the best or wisest resolution of problems of water transfers and pollution emphatically does not matter.
Abiding by this constitutional scheme, we begin at Chevron Step One. We conclude, as did the district court, that Congress did not in the Clean Water Act clearly and unambiguously speak to the precise question of whether NPDES permits are required for water transfers. It is therefore necessary to proceed to Chevron Step Two, under which we conclude that the EPA’s interpretation of the Act in the Water Transfers Rule represents a reasonable policy choice to which we must defer. The question is whether the Clean Water Act can support the EPA’s interpretation, taking into account the full
I. Chevron Step One
At Chevron Step One, “the [reviewing] court must determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” City of Arlington v. FCC, — U.S.—,
The issue before us at this point, then, is whether the Act plainly requires a party to acquire an NPDES permit in order to make a water transfer. We agree with the district court that the Clean Water Act does not clearly and unambiguously speak to that question. We will begin, however, by addressing the plaintiffs’ argument that we previously held otherwise in Catskill I,
A. Catskill I and Catskill II
The plaintiffs argue that this case can be resolved at Chevron Step One because we held in Catskill I and Catskill II that the Clean Water Act unambiguously requires NPDES permits for water transfers. We disagree with the plaintiffs’ reading of those decisions because our application there of the deference standard set forth in Skidmore v. Swift & Co.,
In Catskill I, we held that that the City of New York
In both Catskill I and Catskill II, we applied the Skidmore deference standard to informal policy statements by the EPA that interpreted the same provision of the Act at issue here not to require NPDES permits for water transfers. See
Although the Chevron and Skid-more deference standards differ in application, they are similar in one respect: As with Chevron deference, we will defer to the agency’s interpretation under the Skidmore standard only when the statutory language at issue is ambiguous. See, e.g., Riegel v. Medtronic, Inc.,
But as the dissent correctly notes, see Dissent at 541-42, it does not follow that a particular application of the Skidmore framework implies a threshold conclusion that the relevant statutory language is ambiguous. Although a court could first conclude that the text is unambiguous—and therefore that Skidmore deference is inappropriate or unnecessary
Our application of the Skidmore deference standard in Catskill I and Catskill II makes clear that we did not decide and have not decided that the statutory language at issue in this case—“addition ... to navigable waters”—is unambiguous. Although we did not explicitly conclude in those cases that the statutory text was ambiguous, we made clear that we did not intend to foreclose the EPA from adopting a unitary-waters reading of the Act (i.e., waters of the United States means all of those waters rather than each of them) in a formal rule; indeed, we stated in Catskill I that “[i]f the EPA’s position had been adopted in a rulemaking or other formal proceeding, [Chevron ] deference might be appropriate.” Catskill I,
The few references to “plain meaning” in Catskill I and Catskill II do not compel a different conclusion. The crucial interpretive question framed by Catskill I— which we identified as the “crux” of the appeal—was “the meaning of ‘addition,’ which the Act does not define.” Id. at 486. As the dissent points out, see Dissent at 543-44, we concluded in Catskill I that, based on the “plain meaning” of that term, the transfer of turbid water resulted in “an ‘addition’ of a ‘pollutant’ from a ‘point source’c
Nor did we make any such statement in Catskill II. There, we began by succinctly summarizing Catskill I as “concluding that the discharge of water containing pollutants from one distinct water body into another is an ‘addition of [a] pollutant’ under the CWA.” Catskill II,
The best interpretation of Catskill I and Catskill II, we think, is that those decisions set forth what those panels saw as the most persuasive reading of the phrase “addition ... to navigable waters” in light of how the word “addition” is plainly and ordinarily understood. Catskill I and Catskill II did not hold that “addition ... to navigable waters” could bear only one meaning, such that the EPA could not interpret the phrase differently in an interpretive rule. Therefore, as the district court concluded, neither Catskill I nor Catskill II requires us to resolve this appeal at Chevron Step One.
B. Statutory Text, Structure, and Purpose
Having determined that the meaning of the relevant provision of the Clean Water Act has not been resolved by prior case law, we turn to the overall statute and its context. In evaluating whether Congress has directly spoken to whether NPDES permits are required for water transfers, we employ the “traditional tools of statutory construction.” Li v. Renaud,
1. Statutory text and structure.
“As with any question of statutory interpretation, we begin with the text of the statute to determine whether the language at issue has a plain and unambiguous meaning.” Louis Vuitton Malletier S.A. v. LY USA Inc.,
Nor is the meaning of the relevant statutory text plain. The question, as we have indicated above, is whether “addition of any pollutant to navigable waters”—or, “addition of any pollutant to the waters of the United States”—refers to all navigable waters, meaning all of the waters of the United States viewed as a singular whole, or to individual navigable waters, meaning one of the waters of the United States. The term “waters” may be used in either sense: As the Eleventh Circuit observed, “[i]n ordinary usage ‘waters’ can collectively refer to several different bodies of water such as ‘the waters of the Gulf coast,’ or
Unfortunately, placing this statutory language in the broader context of the Act as a whole does not help either. A statutory provision’s plain meaning may be “understood by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.” Louis Vuitton,
As the plaintiffs and the dissent point out, several other provisions in the Clean Water Act suggest that “navigable waters” refers to any of several individual water bodies, specifically the Act’s references to:
• “the navigable waters involved,” 33 U.S.C. § 1313(c)(2)(A), (c)(4);
• “those waters or parts thereof,” id. § 1313(d)(1)(B);
• “all navigable waters,” id. § 1314(a)(2);
• “any navigable waters,” id. § 1314(f)(2)(F);
• “those waters within the State” and “all navigable waters in such State,” id. § 1314(i)(l)(A)-(B);
• “all navigable waters in such State” and “all navigable waters of such State,” id. § 1315(b)(l)(A)-(B); and
• “the navigable waters within the jurisdiction of such State,” “navigable waters within [the State’s] jurisdiction,” and “any of the navigable waters,” id. § 1342.
But this pattern of usage does not establish that “navigable waters” cannot ever refer to all waters as a singular whole because it also suggests that when Congress wants to make clear that it is using “navigable waters” in a particular sense, it can and sometimes does provide additional language as a beacon to guide interpretation. Cf. Rapanos,
We thus see nothing in the language or structure of the Act that indicates that Congress clearly spoke to the precise question at issue: whether Congress intended to require NPDES permits for water transfers.
2. Statutory purpose and legislative history
Inasmuch as the statutory text, context, and structure have yielded no definitive answer to the question before us, we conclude the first step of our Chevron analysis by looking to whether Congress’s purpose in enacting the Clean Water Act establishes that the phrase “addition ... to navigable waters” can reasonably bear only one meaning. See Gen. Dynamics,
As the Supreme Court has noted, however, “no law pursues its purpose at all costs.” Rapanos, 547 U.S, at 752,
Even careful analysis of the Clean Water Act’s legislative history does not help us answer the interpretive question before us. Although we are generally “reluctant to employ legislative history at step one of Chevron analysis,” legislative history is at times helpful in resolving ambiguity; for example, when the “‘interpretive clues [speak] almost unanimously,’ making Congress’s. intent clear ‘beyond reasonable doubt.’” Mizrahi v. Gonzales,
Finally and tellingly, neither the parties nor amici have pointed us to any legislative history that clearly addresses the applicability of the NPDES permitting program to water transfers. What few examples from the legislative history they have cited—such as the strengthening of the permit requirements in Section 301(b)(1)(C) to include water quality-based limits in addition to technology-based limitations, see William L. Andreen, The Evolution of Water Pollution Control in the United States—State, Local, and Federal Efforts, 1789-1972: Part II, 22 Stan. Envtl. L.J. 215, 270, 275-77 (2003), and broad aspirational statements about the elimination of water pollution and the need to regulate every point source by the report of the Senate’s Environment and Public Works Committee, S. Rep. No. 92-414, at 3738, 3758 (1971), provide at most keyhole-view insights into Congress’s intent. They do not speak to the issue before us with the “high level of clarity” necessary to resolve the textual ambiguity before us at Chevron Step One. Cohen v. JP Morgan Chase & Co.,
3. Canons of statutory construction-
The traditional canons of statutory construction also provide no clear answer to the question whether Congress intended that the NPDES permitting system apply to water transfers.
First, the dissent asserts that the Water Transfers Rule violates the principle that “ ‘[w]here Congress explicitly enumerates certain exceptions to a general
Second, the plaintiffs invoke the canon of construction that a “statute should be interpreted in a way that avoids absurd results.” SEC v. Rosenthal,
The simplicity of the plaintiffs’ approach helps cloak their arguments with considerable force. But we are ultimately not persuaded that they establish that the Clean Water Act unambiguously forecloses the EPA’s interpretation in the Water Transfers Rule. Indeed, it is unclear to us how one can argue persuasively that the Water Transfers Rule leads to a result so absurd that the result could not possibly have been intended by Congress, while asserting at the same time that it codifies the EPA’s practice of not issuing NPDES permits that has prevailed for decades without Congressional course-correction of any kind. In light of the immense importance of water transfers, it seems more likely that Congress has contemplated the very result that the plaintiffs argue is foreclosed by the Act, and acquiesced in that result.
Furthermore, as the plaintiffs would have it, the EPA and the States could not, consistent with the Clean Water Act, select any policy that does not improve water quality as much as is possible. But the Clean Water Act is more flexible than that. Far from establishing a maxi-malist scheme under which water quality must be pursued at all costs, the Act leaves a considerable amount of policymak-ing discretion in the hands of both the EPA and the States—entirely understandably in light of its “welter of consistent and inconsistent goals.” Catskill I,
We think that the legislative compromises embodied in the Act counsel against the application of the absurdity canon here. We generally apply that canon only “where thp result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear as to be obvious to most anyone.” Pub. Citizen v. U.S. Dep’t of Justice,
As to the effect of the Rule on downstream states, even in the absence of NPDES permitting for water transfers, the States can seek to protect themselves against polluted water transfers through other means—for example, through filing a common-law nuisance or trespass lawsuit in the polluting state’s courts, see, e.g., Int'l Paper Co. v. Ouellette,
Third, arguing to the contrary, the defendants and amicus curiae State of California argue that we should reject the plaintiffs’ preferred interpretation of Section 402 of the Clean Water Act (i.e., that permits are required for water transfers) based on a clear-statement rule and principles of federalism derived from the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers,
In SWANCC, the Supreme Court addressed the “Migratory Bird Rule” issued by the U.S. Army Corps of Engineers (the “Corps”) under which the Corps asserted jurisdiction pursuant to Section 404(a) of the Clean Water Act to require permits for the discharge of dredged or fill material into intrastate waters used as habitat by migratory birds. SWANCC,
In Rapanos, a plurality of the Supreme Court rejected the EPA’s interpretation of the Clean Water Act as providing authority to regulate isolated wetlands lying near ditches or artificial drains that eventually empty into “navigable waters” because the wetlands are adjacent to “waters of the United States.” Rapanos,
The clear-statement rule articulated in SWANCC and Rapanos does not apply here. The case at bar presents no question regarding Congress’s authority under the Commerce Clause, inasmuch as it is undisputed that Congress has the power to regulate navigable waters and to delegate its authority to do so. SWANCC and Rapanos both involved attempts by the Army Corps of Engineers to extend the scope of the phrase “navigable waters” to include areas not traditionally understood to be such. They were therefore treated as attempts by the Corps to stretch the limits of its delegated authority vis-á-vis the States. Here, the EPA is not seeking to expand the universe of waters deemed to be “navigable.” The question before us is not whether the EPA has the authority to regulate water transfers; it is whether the EPA is using (or not using) that authority in a permissible manner.
The Clean Water Act was designed to alter the federal-state balance with respect to the regulation of water quality. Congress passed the Act precisely because it found inconsistent state-by-state regulation not up to the task of restoring and maintaining the integrity of the nation’s waters. See S. Rep. No. 95-370, at 1 (1977) (the Act is intended to be a “comprehensive revision of national water quality policy”). True, as the defendants point out, water allocation is an area of traditional state authority. But again, we are concerned here not with water allocation, but with water quality. We know of no authority or accepted principle that would require a “clear statement” by Congress before
Fourth, and finally, several of the defendants raise the related argument that requiring permits for water transfers under the plaintiffs’ preferred interpretation would pose a serious Tenth Amendment
But the plaintiffs’ proposed interpretation raises no Tenth Amendment concerns that we can discern because it would not result in federal overreach into states’ traditional authority to allocate water quantities. The Clean Water Act’s preservation of states’ water-allocation authority “do[es] not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation.” PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology,
We conclude, then, that Congress did not in the Clean Water Act speak directly to the question of whether NPDES permits are required for water transfers.
II. Chevron Step Two
At last, we reach the application of the second step of Chevron analysis, upon which our decision to reverse the district court’s judgment turns. We conclude that the EPA’s interpretation of the Clean Water Act is reasonable and neither arbitrary nor capricious. Although the Rule may or may not be the best or most faithful interpretation of the Act in light of its paramount goal of restoring and protecting the quality of U.S. waters, it is supported by several valid arguments—interpretive, theoretical, and practical. And the EPA’s interpretation of the Act as reflected in the Rule seems to us to be precisely the kind of policymaking decision that Chevron is designed to protect from overly intrusive judicial review. As we have already pointed out, although we might prefer a different rule more clearly guaranteed to reach the environmental concerns underlying the Act, Chevron analysis requires us to recognize that our preference does not matter. We conclude that the Water Transfers Rule satisfies Chevron’s deferential standard of review, and, accordingly, we reverse the judgment of the district court.
A. Legal Standard
The question for the reviewing court at Chevron Step Two is “whether the agency’s answer [to the interpretive question] is based on a permissible construction of the statute.” Mayo Found. for Med. Educ. & Research v. United States,
“Even under this deferential standard, however, agencies must operate within the bounds of reasonable interpretation,” Michigan v. EPA, — U.S.—,
In the course of its Chevron Step Two analysis, the district court incorporated the standard for evaluating agency action under APA § 706(2)(A) set forth in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company,
an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
As the Supreme Court, our Circuit, and other Courts of Appeals have made reasonably clear, State Farm and Chevron provide for related but distinct standards for reviewing rules promulgated by administrative agencies. See, e.g., Encino,
there are certainly situations where a challenge to an agency’s regulation will fall squarely within one rubric, rather than the other. For example, we might invalidate an agency’s decision under Chevron as inconsistent with its statutory mandate, even though we do not believe the decision reflects an arbitrary policy choice. Such a result might occur when we believe the agency’s course of action to be the most appropriate and effective means of achieving a goal, but determine that Congress has selected a different—albeit, in our eyes, less propitious—path. Conversely, we might determine that although not barred by statute, an agency’s action is arbitrary and capricious because the agency has not considered certain relevant factors or articulated any rationale for its choice. Or, along similar lines, we might find a regulation arbitrary and capricious, while deciding that Chevron is inapplicable because Congress’ delegation to the agency is so broad as to be virtually unreviewable.
Arent,
Much confusion about the relationship between State Farm and Chevron seems to arise because both standards purport to provide a method by which to evaluate whether an agency action is “arbitrary” or “capricious,” and Chevron Step Two analysis and State Farm analysis often, though not always, take the same factors into consideration and therefore overlap. See Judulang,
Several other considerations also counsel against employing the searching State Farm standard of review of the agency’s decisionmaking and rationale at Chevron Step Two. The Supreme Court has decided that agencies are not obligated to conduct detailed fact-finding or cost-benefit analy-ses when interpreting a statute—which suggests that the full-fledged State Farm standard may not apply to rules that set forth for the first time an agency’s interpretation of a particular statutory provision. See, e.g., Pension Benefit Guar. Corp. v. LTV Corp.,
Further, the Supreme Court has cautioned that State Farm is “inapposite to the extent that it may be read as prescribing more searching judicial review” in a case involving an agency’s “first interpretation of a new statute.” Verizon Commc’ns Inc. v. FCC,
For these reasons, the plaintiffs’ challenge to the Water Transfers Rule is properly analyzed under the Chevron framework, which does not incorporate the State
B. Reasoned Rationale for the EPA’s Interpretation
We conclude that the EPA provided a reasoned explanation for its decision in the Water Transfers Rule to interpret the Clean Water Act as not requiring NPDES permits for water transfers. We can see from the EPA’s rationale how and why it arrived at the interpretation of the Clean Water Act set forth in the Water Transfers Rule. It is clear that the EPA based the Rule on a holistic interpretation of the Clean Water Act that took into account the statutory language, the broader statutory scheme, the statute’s legislative history, the EPA’s longstanding position that water transfers are not subject to NPDES permitting, congressional concerns that the statute not unnecessarily burden water quantity management activities, and the importance of water transfers to U.S. infrastructure. See Water Transfers Rule,
In the Water Transfers Rule, the EPA analyzed the text of the statute, explaining how its interpretation was justified by its understanding of the phrase “the waters of the United States,” id. at 33,701, as well as by the broader statutory scheme, noting that the Clean Water Act provides for several programs and regulatory initiatives other than the NPDES permitting program that could be used to mitigate pollution caused by water transfers, id. at 33,701-33,702. The EPA also justified the Rule by reference to statutory purpose, noting its view that “Congress intended to leave primary oversight of water transfers to state authorities in cooperation with Federal authorities,” and that Congress intended to create a “balance ... between federal and State oversight of activities affecting the nation’s waters.” Id. at 33.701. The EPA also stated that subjecting water transfers to NPDES permitting could affect states’ ability to effectively allocate water and water rights, id. at 33.702, and explained how its interpretation was justified in light of the Act’s legislative history, see id. at 33,703. The EPA concluded by addressing several public comments on the Rule, and explaining in a reasoned manner why it rejected proposed alternative readings of the Clean Water Act. See id. at 33,703-33,706.
This rationale, while not immune to criticism or counterargument, was sufficiently reasoned to clear Chevron’s rather minimal requirement that the agency give a reasoned explanation for its interpretation. We see nothing illogical in the EPA’s rationale.
C. Reasonableness of the EPA’s Interpretation
Having concluded that the EPA offered a sufficient explanation for adopting the Rule, we next examine whether the Rule reasonably interprets the Clean Water Act. We conclude that it does. The EPA’s interpretation of the Clean Water Act as reflected in the Rule is supported by several valid arguments—interpretive, theoretical, and practical. The permissibility of the Rule is reinforced by longstanding practice and acquiescence by Congress, recent case law, practical concerns regarding compliance costs, and the existence of alternative means for regulating pollution resulting from water transfers.
First, as far as we have been able to determine, in the nearly forty years since the passage of the Clean Water Act, water transfers have never been subject to a general NPDES permitting requirement. Congress thus appears to have, however silently, acquiesced in this state of affairs. This may well reflect an intent not to require NPDES permitting to be imposed in every situation in which it might be required, including as a means for regulating water transfers. This in turn suggests that the EPA’s unitary-waters interpretation of Section 402 of the Act in the Water Transfers Rule is reasonable.
Second, the Supreme Court’s decision in Miccosukee and the Eleventh Circuit’s decision in Friends I support this conclusion. Miccosukee was decided before the EPA issued the Water Transfers Rule and, absent the interpretation of an agency rule, did not involve the application of Chevron. It was a citizen suit against the South Florida Water Management District (the “District”), which is also an intervenor-defendant in the instant proceedings. The Miccosukee plaintiffs argued that the District was impermissibly operating a pumping facility without an NPDES permit.
Second, the Court addressed whether “all the water bodies that fall within the Act’s definition of ‘navigable waters’ (that is, all ‘the waters of the United States, including the territorial seas,’ § 1362(7))
It may be that construing the NPDES program to cover such transfers would therefore raise the costs of water distribution prohibitively, and violate Congress’ specific instruction that “the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired” by the Act. § 1251(g). On the other hand, it may be that such permitting authority is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs. See 40 CFR §§ 122.28, 123.25 (2003).
Id. at 108,
Third, the Supreme Court addressed whether a triable issue of fact existed as to whether the water transfer at issue was between “meaningfully distinct” water bodies, and thus required an NPDES permit. The Court held that such a triable issue did exist, and vacated and remanded for further fact-finding. Id. at 109-12,
With respect to the unitary-waters interpretation of Section 402, then, Miccosukee suggested that a unitary-waters interpretation of the statute was unlikely to prevail because it was not the best reading of the statute, but did not conclude that it was an unreasonable reading of the statute. By acknowledging the arguments against requiring NPDES permits for water transfers, and noting that unitary-waters arguments would be open to the parties on remand, the Court can be read to have suggested that such arguments are reasonable, even if not, in the Court’s view, preferable.
This interpretation of Miccosukee is reflected in subsequent case law interpreting that decision. In Catskill II, we expressed our view that “Miccosukee did no more
Friends I provides further support for the reasonableness of the Rule’s interpretation. Like Miccosukee, the decision addressed whether the District was required to obtain NPDES permits to conduct certain specified water transfers. See Friends I,
The Eleventh Circuit agreed. It began its analysis by surveying relevant prior decisions, noting that “[t]he unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate.” Id. (collecting cases). In the time since those decisions were issued, however, there “ha[d] been a change. An important one. Under its regulatory authority, the EPA ha[d then-]recently issued a regulation adopting a final rule specifically addressing this very question. Because that regulation was, not available at the time of the earlier decisions,” including Catskill I, Catskill II, and Miccosukee, “they [we]re not precedent against it.” Id. at 1218. Therefore, the question before the Court was whether to give Chevron deference to the Rule. “All that matters is whether the regulation is a reasonable construction of an ambiguous statute.” Id. at 1219. The cases on which the plaintiffs relied—which included Catskill I, Catskill II, and Micco-sukee—were therefore unhelpful because there was then no formal rule to which to apply the Chevron framework. “Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness.” Id. at 1221.
The court then engaged in a Chevron analysis strikingly similar to the one we are tasked with conducting here. As to the plain meaning of the statutory language, the Eleventh Circuit determined that the key question was whether “ ‘to navigable waters’ means to all navigable waters as a singular whole.” Id. at 1223 (emphasis in original). This question could not be resolved by looking to the common meaning of the word “waters,” which could be used to refer to several different bodies of water collectively (e.g., “the waters of the Gulf coast”) or to a single body of water (e.g., “the waters of Mobile Bay”). Id. After examining the statutory language in the context of the Clean Water Act as a whole, the court then noted that Congress knew how to use the term “any navigable waters” in other statutory provisions when
Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marble-mover “add[ed] any marbles to buckets”? On one hand, as the [plaintiffs] might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the [District] might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other we cannot say that either side is unreasonable.
Id. at 1228 (first brackets in original).
Following Friends I, the Eleventh Circuit in Friends II dismissed several petitions for direct appellate review of the Water Transfers Rule on the grounds that the Court lacked subject-matter jurisdiction under the Act (specifically, 33 U.S.C. §§ 1369(b)(1)(E), (F)) and could not exercise hypothetical jurisdiction. Friends II,
Yet another consideration supporting the reasonableness of the Water Transfers Rule is that several alternatives could regulate pollution in water transfers even in the absence of an NPDES permitting scheme, including: nonpoint source programs;
With respect to other state authorities and laws, the Act “recognizes that states retain the primary role in planning the development and use of land and water resources, allocating quantities of water within their jurisdictions, and regulating water pollution, as long as those state regulations are not less stringent than the requirements set by the CWA.” Catskill II,
States have still more regulatory tools at their disposal. State agencies may be granted specific authority to address particular pollution or threats of pollution. For example, in New York, the NYSDEC is authorized and directed to promulgate rules to protect the recreational uses— such as trout fishing and canoeing—of waters affected by certain large reservoirs such as the Schoharie Reservoir. See N.Y. Envtl. Conserv. Law §§ 15-0801, 15-0805 (McKinney 2008). And as discussed above, states likely can also bring common-law nuisance suits to enjoin and abate pollution. See Int’l Paper Co. v. Ouellette,
The plaintiffs advance several other arguments against the reasonableness of the Water Transfers Rule’s interpretation of the Clean Water Act. Ultimately, none persuades us that the Rule is an unreasonable interpretation of the Clean Water Act.
The plaintiffs first argue, as we have noted, that the Water Transfers Rule arises out of an unreasonable reading of the Act because it subverts the main objective of the Clean Water Act, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), by allowing “the transfer of water from a heavily polluted, even toxic, water body to one that was pristine,” Catskill 17,
Some plaintiffs also argue that the EPA’s interpretation of Section 402 contained in the Water Transfers Rule is unreasonable in light of the EPA’s interpretation of Section 404. They point out that the EPA has interpreted the phrase “discharge of dredged ... material into the navigable waters” from Section 404 to require a permit when dredged material is moved from one location to another within the same water body, regardless of whether the dredged material is ever removed from the water. See 33 U.S.C. § 1344(a); 40 C.F.R. § 232.2. They argue that if moving dredged material from one part of a water body to another part of that same water body is an “addition ... into ... the waters of the United States,” see 40 C.F.R. § 232.2, then it is unreasonable to say that the movement of heavily polluted water from one water body into a pristine water body is not also an “addition” to “waters” that would require an NPDES permit.
But Section 404 contains different language that suggests that a different interpretation of the term “addition” is appropriate in analyzing that section. Section 404 concerns “dredged material,” which, as the EPA pointed out in the Water Transfers Rule, “by its very nature comes from a waterbody.” 73 Fed, Reg. at 33,703. As the Fifth Circuit has observed, in the context of Section 404, one cannot reasonably interpret the phrase “addition
Finally, we think that the plaintiffs’ reliance on Clark v. Martinez,
In sum, the Water Transfers Rule’s interpretation of the Clean Water Act— which exempts water transfers from the NPDES permitting program—is supported by several reasonable arguments. The EPA’s interpretation need not be the “only possible interpretation,” nor need it be “the interpretation deemed most reasonable.” Entergy,
CONCLUSION
For the foregoing reasons, we defer under Chevron to the EPA’s interpretation of the Clean Water Act in the Water Transfers Rule. Accordingly, we reverse the judgment of the district court and reinstate the challenged rule.
Notes
. Samuel Taylor Coleridge, The Rime of the Ancient Mariner pt. II, st. 9 (1798) (as many high school students likely already know).
. For a New York State Department of Environmental Conservation map of the system, see New York City’s Water Supply System, N.Y.C. Dep't of Envtl. Prot., http://www.dec. ny.gov/docs/water_pdf/nycsystem.pdf (last visited July 18, 2016), archived at https://perma. cc/JG4J-FP3E.
.The reservoir is "roughly 110 miles from New York City.... [It] is one of two reservoirs in the City's Catskill system, and the northernmost reservoir in the entire [New York City] Water Supply System.” Schoharie, N.Y.C. Dep't of Envtl. Prot., http://www.nyc. gov/html/dep/html/watershecLprotection/ schoharie.shtml (last visited July 18, 2016), archived at https://perma.ee/ZPV4-EPCZ.
. See generally Nat. Res. Def. Council v. EPA,
. The parties and amici (we use the abbreviations here that we adopt for the remainder of this opinion) have filed sixteen briefs taking opposing positions on the validity of the Water Transfers Rule, as follows:
• Anti-Water Transfers Rule:
• The States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington, and the Province of Manitoba (collectively, the “Anti-Rule States”).
• Leon G. Billings et al.
• The Miccosukee Tribe of Indians of Florida et al.
• Catskill Mountains Chapter of Trout Unlimited, Inc. et al. (collectively, the "Sportsmen and Environmental Organization Plaintiffs”).
• Pro-Water Transfers Rule:
• The State of California.
• The United States Environmental Protection Agency and Gina McCarthy (collectively, the "EPA”).
• The American Farm Bureau Federation and Florida Farm Bureau Federation (collectively, the "Farmer Amici").
• National Hydropower Association et al. (collectively, the "Hydropower Amici").
• The City of New York ("NYC”).
• South Florida Water Management District.
• Central Arizona Water Conservation District et al. (the "Water Districts”).
• The States of Colorado, New Mexico, Alaska, Arizona (Department of Water Resources), Idaho, Nebraska, Nevada, North Dakota, Texas, Utah, and Wyoming (the “Western States,” and, together with the Water Districts, the "Western Parties").
. See, e.g., Michael Rotman, Cuyahoga River
.A “point source" is “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,” other than in the case of "agricultural storm-water discharges and return flows from irrigated agriculture." 33 U.S.C. § 1362(14).
. The EPA has authorized forty-six states and the U.S. Virgin Islands to implement the NPDES program. NPDES State Program Information, EPA, https://www.epa.gov/npdes/ npdes-state-program-information (last updated Feb. 19, 2016; last visited July 18, 2016), archived at https://perma.cc/7M4V-469F.
. The Act’s statement regarding the preservation of states’ water-allocation authority
. In this section, we refer to the contents of various documents supplied by the parties and amici. This information was not admitted into evidence in any judicial proceeding. We think, though, that it is at least plausible, and that even when treated as part of the argument, it supplies a general picture of the factual background of this appeal against which our legal conclusions may better be understood.
. Pennsylvania is the only NPDES permitting authority that regularly issues NPDES permits for water transfers. See Water Transfers Rule,
. The Rule added a new subsection to 40 C.F.R. § 122.3, which lists the pollutant discharges that are exempted from NPDES permitting. The new subsection provides:
Discharges from a water transfer. Water transfer means an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.
40 C.F.R. § 122.3(f).
. "Waters of the U.S.” are defined for purposes of the NPDES program in 40 C.F.R. § 122.2, but without addressing what precisely is within the scope of the term, Water Transfers Rule,
. The Anti-Rule States also sought a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a).
. In addition to the City of New York, the New York City Department of Environmental Protection and its Commissioner at the time, Joel A. Miele, Sr., were also defendants in Catskill I.
. Turbid water is water carrying high levels of solids in suspension. Catskill I,
. The Supreme Court’s 2001 decision in Mead breathed new life into Skidmore, which as one court recently put it, "has had a rough go of it ever since the birth of Chevron. Like the figurative older child neglected in the wake of a new sibling’s arrival, in 1984 Skid-more was relegated to the status of an administrative law sideshow while the courts fawned over Chevron.” Angiotech Pharmaceuticals Inc. v. Lee,
. Skidmore deference would be inappropriate with respect to an agency interpretation that is inconsistent with unambiguous statutory text. But with respect to an agency interpretation consistent with the unambiguous text, Skidmore deference would simply be unnecessary.
. The dissent stresses that Skidmore analysis is flexible and that the clarity of statutory language is one factor among many in assessing an agency interpretation’s power to persuade. See Dissent at 542. Skidmore is not, however, so flexible that a court could accord Skidmore deference to an agency interpretation inconsistent with unambiguous statutory text. Any interpretation inconsistent with unambiguous statutory language necessarily lacks persuasive power. See Whirlpool Corp. v. Marshall,
21.See supra note 8 for the definition of "point source” contained it 33 U.S.C. § 1362(14).
. In Catskill I, we also discussed the so-called "dams cases,” National Wildlife Federation v. Gorsuch,
. We find the dissent’s arguments relating to the ordinary meaning of the term “addition” to be unpersuasive. See Dissent at 536-37. We agree that the ordinary meaning of that term refers to an increase or an augmentation. But that dictionary definition does not answer the question at issue here: whether such an increase or augmentation occurs when a pollutant is moved from one body of water to another. In addressing that question, we must consider the entire statutory phrase, "addition ... to navigable waters,” not simply the definition of the term "addition.”
. Contrary to the dissent’s suggestion, the Supreme Court’s holding in Rapanos does not compel the conclusion that the statutory phrase "navigable waters” is unambiguous because that phrase, unlike the phrase addressed in Rapanos, is not limited by a definite article. See Dissent at 535-37.
. The dissent's argument proceeds as follows: (1) the Act imposes a general ban on "the discharge of any pollutant,” defined by Section 502 as "any addition ... to navigable waters”; (2) the Act specifies certain exemptions to the general ban; and (3) the Water Transfers Rule must be rejected because it effectively creates an implied exemption to the general ban on the discharge of pollutants. See Dissent at 537-39. This strikes us as decidedly circular: It presupposes that the scope of the general ban on the discharge of pollutants, as defined by Section 502, extends to water transfers in order to conclude that the Water Transfers Rule is an exemption from that general ban. This argument, therefore, is unhelpful because it sidesteps the question at issue here—whether "any addition ... to navigable waters” is ambiguous.
. Although common-law nuisance and trespass lawsuits may take a long time to work through the court system, preliminary injunctions may be available in urgent cases.
. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend. X.
. There is no reason to think that applying the NPDES program to water transfers would turn the prior appropriation doctrine ("first in time, first in right”) on its head, as some of the defendants insist. See Western States Br. 31-32. NPDES permits merely put restrictions on water discharges, without changing priority or ownership rights.
. The dissent asserts that in reaching this conclusion we are effectively construing "navigable waters” to mean all the navigable waters of the United States, collectively. See Dissent at 535, Not so: By concluding that the phrase "addition ... to navigable waters” is ambiguous for purposes of Chevron Step One, we are emphatically declining to adopt any construction of the statute in the first instance. We are instead acknowledging that Congress has left the task of resolving that ambiguity to the EPA by delegating to that agency the authority "to make rules carrying the force of law” to which we must defer so long as they are reasonable. Mead, 533 U.S, at 226-27,
. In Encino, which was decided after the briefing in this appeal had been completed, the Supreme Court declined to defer under Chevron to a Department of Labor regulation that departed from a longstanding earlier position due to a "lack of reasoned explication,” inasmuch as the agency gave "almost no reasons at all” for the change in policy, and instead issued only vague blanket statements.
. None of the plaintiffs argue that the Rule was procedurally defective under APA § 706(2)(A), except for the Sportsmen and Environmental Organization Plaintiffs, who do so only in the context of a Chevron Step Two argument. See Sportsmen and Environmental Organization Pis.’ Br. at 36-54, 58. In any event, as we have explained above, the interpretive Rule here is properly reviewed only under the Chevron standard, which does not incorporate the State Farm standard.
. The district court criticized the EPA's rationale for the Water Transfers Rule on the grounds that it was illogical for EPA to reason that: (1) Congress did not intend to subject water transfers to NPDES permitting; (2) therefore, water transfers do not constitute an addition to navigable waters; (3) because water transfers are not an "addition,” they do not constitute a "discharge of a pollutant” under § 301(a), and therefore do not require an NPDES permit. Catskill III, 8 F.Supp.3d
. The Supreme Court's more recent decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., — U.S. —,
The Supreme Court’s opinion in Los Ange-les County does not discuss the definition of "navigable waters,” nor does it imply a definition of that term. True, the Supreme Court characterized Miccosukee as holding that a "water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were ‘meaningfully distinct
.The district court made no findings of fact in the course of answering the purely legal question before it, and we express no view as to the likelihood that requiring NPDES permits for water transfers would lead to the results identified above. We note only that concerns that such results might arise are plausible and could support the EPA’s interpretation of the Clean Water Act in the Water Transfers Rule.
. Examples of nonpoint source programs are state water quality management plans and total maximum daily loads (commonly called "TMDLs”). See EPA Br. 30; EPA Reply Br. 19-20; NYC Br. 51-53; Western States Br. 37-38; Western Parties J. Reply 25-28.
. One example of such a treaty is the Boundary Waters Treaty of 1909, Treaty Between the United States and Great Britain Relating to Boundary Waters, and Questions Arising Between the United States and Canada, Int'l Joint Comm’n, art. IV (May 13, 1910), available at
. For instance, the States and their agencies generally have broad authority to prevent the pollution of the States' waters. Colorado’s Water Quality Control Commission is authorized to promulgate regulations providing for mandatory or prohibitory precautionary measures concerning any activity that could cause the quality of any state waters to be in violation of any water quality standard. See, e.g,, Colo. Rev. Stat. §§ 25-8-205(l)(c), 25-8-503(5). In addition, New Mexico's State Engineer is authorized to deny a water transfer permit if he or she finds that the transfer will be detrimental to the State’s public welfare (for example, by jeopardizing water quality). See N.M. Stat. Ann. § 72-5-23; Stokes v. Morgan,
. See supra note 36.
. In any event, there is no requirement that the same term used in different provisions of the same statute be interpreted identically. Envtl. Def. v. Duke Energy Corp.,
Dissenting Opinion
dissenting:
I respectfully dissent.
The Clean Water Act (the “Act”) prohibits the “discharge of any pollutant by any person” from “any point source” to “navigable waters” of the United States, without a permit. 33 U.S.C. §§ 1311(a), 1362(12)(A). The question presented is whether a transfer of water containing pollutants from one body of water to another—say, in upstate New York, from the more-polluted Schoharie Reservoir through the Shandaken Tunnel to the less-polluted Esopus Creek—is subject to these provisions.
The United States Environmental Protection Agency (“EPA”) takes the position that such a transfer is not covered, on what has been called the “unitary waters” theory—all water bodies in the United States, that is, all lakes, rivers, streams, etc., constitute a single unit, and therefore the transfer of water from a pollutant-laden water body to a pristine one is not an “addition” of pollutants to the “navigable waters” of the United States because the pollutants are already present in the overall single unit. Consequently, in a rule adopted in 2008 (the ‘Water Transfers Rule”), EPA determined that water transfers from one water body to another, without intervening industrial, municipal, or commercial activity, were excluded from the permitting requirements of the National Pollutant Discharge Elimination System (“NPDES”), even if dirty water was transferred from a polluted water body to a clean one. The majority holds that the Water Transfers Rule is a reasonable interpretation of the Act. I disagree.
As the majority notes, we evaluate EPA’s interpretation of the Act under the two-step framework of Chevron, U.S.A., Inc. v. NRDC,
I would affirm the district court’s decision to vacate the Water Transfers Rule. First, I would hold at Chevron step one that the plain language and structure of the Act is unambiguous and clearly expresses Congress’s intent to prohibit the transfer of polluted water from one water body to another distinct water body without a permit. In my view, Congress did not intend to give a pass to interbasin transfers of dirty water, and excluding such transfers from permitting requirements is incompatible with the goal of the Act to protect our waters.
I
I begin with the language of the Act, its structure, and its purpose.
A. The Statutory Language
The Act provides that “the discharge of any pollutant by any person shall be unlawful,” 33 U.S.C. § 1311(a), except to the extent allowed by other provisions, including, for example, those provisions establishing the NPDES permit program, 33 U.S.C. § 1342.
The Act defines “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A) (emphasis added). It defines “pollutant” to include solid, industrial, agricultural, and biological waste. Id. § 1362(6) (emphasis added). It defines “navigable waters” as “the waters of the United States, including the territorial seas.” Id. § 1362(7) (emphasis added). And it defines a “point source” as “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.” Id. § 1362(14) (emphasis added). The Act does not define the word “addition.”
In my view, the plain language of the Act makes clear that the permitting requirements apply to water transfers from one distinct body of water through a conveyance to another. As noted, the Act prohibits “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12)(A). The transfer of contaminated water from a more-polluted water body through a conveyance, such as a tunnel, to a distinct, less-polluted water body is the “addition” of a pollutant (contained in the contaminated water) to “navigable waters” (the less-polluted water body)
Here, water is artificially diverted from its natural course and travels several miles from the [Schoharie] Reservoir through Shandaken Tunnel to Esopus Creek, a body of water utterly unrelated in any relevant sense to the Schoharie Reservoir and its watershed. No one can reasonably argue that the water in the Reservoir and the Esopus are in any sense the “same,” such that “addition” of one to the other is a logical impossibility. When the water and the suspended sentiment therein passes from the Tunnel into the Creek, an “addition” of a “pollutant” from a “point source” has been made to a “navigable water,” and the terms of the statute are satisfied.
EPA contends that such a transfer of contaminated water, from a polluted body of water to a distinct and pristine one, is not an “addition” because all the waters of the United States are to be “considered collectively,” EPA Br. at 2, that is, because the polluted and pristine bodies of water are both part of the waters of the United States and all the waters of the United States are considered to be one unit, the transfer of pollutants from one part of the unit to another part is not an “addition.” I do not believe the words of the Act can be so interpreted. The critical words for our purposes are “addition” and “navigable waters.” I take them in reverse order.
1. “Navigable Waters”
EPA’s position—accepted by the majority—requires us to add words to the Act, as we must construe “navigable waters” to mean “all the navigable waters of the United States, considered collectively,” Contra Dean v. United States,
EPA also argues that if Congress had intended the NPDES permitting requirements to apply to individual water bodies, it would have inserted the word “any” before “navigable waters.” See 33 U.S.C. § 1362(12)(A) (“any addition of any pollutant to navigable waters from any point source”). This interpretation is flawed, for the use of the plural “waters” obviates the need for the word “any.” The use of the plural “waters” indicates that Congress was referring to individual water bodies, not one collective water body. The Supreme Court addressed this precise issue in its discussion of “the waters of the United States” in Rayanos v. United States. There the Court considered the issue of whether § 1362(7)’s definition of “navigable waters” meant “waters of the United States,” and the Court squarely held that “waters” referred to “individual bodies,” not one collective body:
But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) shows plainly that § 1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882.
As the majority acknowledges, the Act contains multiple provisions suggesting that the term “navigable waters” refers to multiple water bodies, not one national collective water body. Op. at 513 (citing 33 U.S.C. §§ 1313(c)(2)(A), (c)(4), 1313(d)(1)(B), 1314(2), 1314(f)(2)(F), 1314(Z)(1)(A)-(B), 1342).
The “unitary waters” approach could also conflict with current NPDES regulations. For example, 40 C.F.R. § 122.45(g)(4)(2003) allows an industrial water user to obtain “intake credit” for pollutants present in the water that it withdraws from navigable waters. When the permit holder discharges the water after use, it does not have to remove pollutants that were in the water before it was withdrawn. There is a caveat, however: EPA extends such credit “only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made.” The NPDES program thus appears to address the movement of pollutants among water bodies, at least at times.
S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe,
2. “Addition”
EPA’s interpretation also requires us to twist the meaning of the word “addition.”
The ordinary meaning of “addition” is “the result of adding: anything added: increase, augmentation.” Webster’s Third Neto International Dictionary of the English Language Unabridged 24 (1968); see also Webster’s Neto World Dietionary of the American Language 16 (2d College ed. 1970 and 1972) (“a joining of a thing to another thing”). Transferring water containing pollutants from a polluted water body to a clean water body is “adding” something to the latter; there is an “addition”—an increase in the number of pollutants in the second water body. In this context, “addition” means adding a pollutant to “navigable waters” when that pollutant would not otherwise have been in those “navigable waters.” Words should be given their “contextually appropriate ordinary meaning,” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 70 (2012), and the context here is a statute intended to eliminate water pollution discharges. See Catskill I,
B. The Structure of the Act
Congress’s intent to require a permit for interbasin water transfers is even clearer when we consider the statutory language in light of the Act’s structure. In determining whether Congress has spoken to the precise question at issue, we consider the words of the statute in “their context and with a view to their place in the overall statutory scheme,” FDA v. Brown & Williamson Tobacco Corp.,
Here, EPA’s “unitary waters” theory, when considered in the context of other provisions of the Act, contravenes Congress’s unambiguous intent to subject in-terbasin transfers to permitting requirements and is therefore unreasonable. See King,
First, the Water Transfers Rule creates an exemption to permitting requirements, in violation of the canon expressio unius est exclusio alterius, which cautions against finding implied exceptions where Congress has created explicit ones. Section 1311(a) of the Act prohibits “[t]he discharge of any pollutant by any person.” 33 U.S.C. § 1311(a). The Supreme Court has held that “every point source discharge” is covered by the Act:
Congress’ intent in enacting the [1972] Amendments [to the Federal Water Pollution Control Act] was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The “major purpose” of the Amendments was clearly to “establish a comprehensive long-range policy for the elimination of water pollution.” S. Rep. No. 92-414, at 95, 2 Leg. Hist. 1511 (emphasis supplied). No Congressman’s remarks on the legislation were complete without reference to the “comprehensive” nature of the Amendments.
See City of Milwaukee v. Illinois,
Congress created specific exceptions to the prohibition on the discharge of pollutants, as § 1311(a) bans such discharges “[e]xcept as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344.” 33 U.S.C. § 1311(a). These include specific exemptions to the NPDES permitting requirements for, e.g., return flows from irrigated agriculture, 33 U.S.C. § 1342(Z )(1), stormwater runoff, 33 U.S.C. § 1342(Z)(2), and discharging dredged or fill material into navigable waters, 33 U.S.C. § 1344(a). Congress did not create an exception for interbasin water transfers.
It is well-settled that when exceptions are explicitly enumerated, courts should not infer additional exceptions. See Hill-man v. Maretta, — U.S.-,
Second, the Act also sets forth a specific plan for individual water bodies. The Act requires States to establish water-quality standards for each distinct water body
This carefully designed plan to fight water pollution would be severely undermined by an EPA-created exception for water transfers. A State’s efforts to control water-quality standards in its individual lakes, rivers, and streams would be disrupted if contaminated water could be transferred from a polluted water body to a pristine one without a NPDES permit. It is hard to imagine that Congress could have intended such a broad and potentially devastating exception. Indeed, exempting water transfers from the NPDES program would undermine the ability of downstream States to protect themselves from the pollution generated by upstream States. The NPDES program provides a procedure for resolving disputes between States over discharges. See Upper Blackstone .Water Pollution Abatement Disk,
- -The City and certain of the States argue that subjecting water transfers to permitting requirements will be extremely burdensome. As we have repeatedly recognized, however, there is ample flexibility in the NPDES permitting process to address dischargers’ concerns. See Catskill Mountains v. EPA,
In addition, much of the concern over water transfers involved agricultural use, but water diversions from a “navigable water” for agricultural use direct water away from a “navigable water,” and thus do not trigger the need for a § 402 permit. Waters returning to a “navigable water” which are “agricultural stormwater discharges” and “return flows from irrigated agriculture” are specifically exempted from the statutory definition of “point source.” 33 U.S.C. § 1362(14); see also 33 U.S.C. § 1342(2) (exempting “discharges composed entirely of return flows from irrigated agriculture” from permitting requirements). Thus, the catastrophic results of applying NPDES permits to water transfers bemoaned by appellants are exaggerated.
Thud, as discussed above, Congress used the phrase “navigable waters” to refer to individual water bodies in numerous provisions of the Act. Another well-settled rule of statutory interpretation holds that the same words in a statute bear the same meaning. See Sullivan v. Stroop,
Accordingly, in my opinion, the structure and context of the Act show clearly that Congress did not intend to exempt water transfers from the permitting requirements.
C. The Purpose of the Act
The Act was passed in 1972 to address environmental harms caused by the discharge of pollutants into water bodies. As the Act itself explains, its purpose was to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); accord Miccosukee,
The Water Transfers Rule is simply inconsistent with the purpose of the Act and undermines the NPDES permit program. It creates a broad exemption that will manifestly interfere with Congress’s desire to eliminate water pollution discharges. As the majority acknowledges, water transfers are a real concern. Artificial transfers of contaminated water present substantial risks to water quality, the environment, the economy, and public health. If interba-
In sum, based on the plain words of §§ 1311 and 1362, the structure and design of the Act, and its overall purpose, I would hold that Congress has “unambiguously expressed” its intent to subject water transfers to the Act’s permitting requirements.
II
As the majority notes, our Court has twice interpreted these precise provisions of the Act as applied to these very facts. See Catskill I,
A. Catskill I and II
In Catskill I and II, we conducted our inquiry under Skidmore v. Sivift & Co.,
1. Skidmore
Under Skidmore, the court applies a lower level of deference to certain agency interpretations and considers “the agency’s expertise, the care it took in reaching its conclusions, the formality with which it promulgates its interpretations, the consistency of its views over time, and the ultimate persuasiveness of its arguments.”
As the majority notes, the Supreme Court has never explicitly held that courts must find ambiguity before applying the Skidmore framework. While there is some scholarly authority for the proposition that “‘the Skidmore standard implicitly replicates Chevron’s first step,’” Op. at 510 (quoting Kristin E. Hickman & Matthew D. Krueger, In Search of the Modem Skidmore Standard, 107 Colum. L. Rev. 1235, 1247 (2007)), the Supreme Court has decided numerous cases under Skidmore without finding that a statute’s language was ambiguous, see, e.g., EEOC v. Arabian American Oil,
Of course, the Supreme Court did not hold, in either Skidmore or Mead, that ambiguity was a threshold requirement to applying the framework. See Mead,
Ambiguity in a statute, of course, can be a factor, and in the sliding-scale analysis of the Skidmore/Mead framework, the “power to persuade” of an agency determination can be affected by the clarity—or lack thereof—of the statute it is interpreting. Indeed, upon applying the Skidmore/Mead framework, a court may uphold—or reject—an agency interpretation because the interpretation is consistent with—or contradicts—a statute whose meaning is clear. See Pierce, supra, § 6.4, at 443. Here, we
2. The Plain Meaning of the Act
The majority dismisses the notion that we ruled on the plain meaning of the Act in Catskill I and II, asserting that there were only a “few references to ‘plain meaning1 ” in our decisions. Op. at 510. To the contrary, through both our words and our reasoning, we made clear repeatedly in Catskill I and II that the agency’s unitary waters theory was inconsistent with the unambiguous plain meaning of the Act.
In Catskill I, we held that defendants’ interpretation was “inconsistent with the ordinary meaning of the word ‘addition.’ ”
Given the ordinary meaning of the [Actj’s text and our holding in Dague, we cannot accept the Gorsuch and Consumers Poiver courts’ understanding of “addition,” at least insofar as it implies acceptance of what the Dubois court called a “singular entity” theory of navigable waters, in which an addition to one water body is deemed an addition to all of the waters of the United States.... We properly rejected that approach in Dague. Such a theory would mean that movement of water from one discrete water body to another would not be an addition even if it involved a transfer of water from a water body contaminated with myriad pollutants to a pristine water body containing few or no pollutants. Such an interpretation is inconsistent with the ordinary meaning of the word “addition.”
Id. at 493 (emphases added).
We also noted that “[e]ven if we were to conclude that the proper application of the statutory text to the present facts was sufficiently ambiguous to justify reliance on the legislative history of the statute, ... that source of legislative intent would not help the City.”
Finally, in the penultimate paragraph of Catskill I, we made absolutely clear that our holding was based on the plain meaning of the statutory text. We held:
In any event, none of the statute’s broad purposes sways us from what we find to be the plain meaning of its text.... Where a statute seeks to balance competing policies, congressional intent isnot served by elevating one policy above the others, particularly where the balance struck in the text is sufficiently clear to point to an answer. We find that the textual requirements of the discharge prohibition in § 1331(a) and the definition of “discharge of a pollutant” in § 1362(12) are met here.
Id. at 494 (emphases added).
Our analysis in Catskill II was similar, as we dismissed defendants’ arguments as merely “warmed-up” versions of those rejected in Catskill I, made no more compelling by EPA’s new “holistic” interpretation of the statute.
We also rejected the City’s “unitary water” theory of navigable waters, which posits that all of the navigable waters of the United States constitute a single water body, such that the transfer of water from any body of water that is part of the navigable waters to any other could never be an addition. We pointed out that this theory would lead to the absurd result that the transfer of water from a heavily polluted, even toxic, water body to one that was pristine via a point source would not constitute an “addition” of pollutants and would not be subject to the [Actj’s NPDES permit requirements. Catskills I rejected the “unitary water” theory as inconsistent with the ordinary meaning of the word “addition.”
Id. at 81 (emphasis added) (internal citations omitted). Again, we considered the very interpretation of “navigable waters” proffered in the current appeal and rejected it based on “the plain meaning” of the Act’s text. Id. at 82.
I do not suggest that we are bound by our prior decisions. But in both decisions, we carefully considered the statutory language, and in both decisions, based on the plain wording of the text, we rejected an interpretation of §§ 1311 and 1362 that construes “navigable waters” and “the waters of the United States” to mean a single
B. The Supreme Court Precedents
Finally, although the Supreme Court has not explicitly ruled on the validity of EPA’s “unitary waters” theory, it has expressed serious reservations. In South Florida Water Management District v. Miccosukee Tribe of Indians,
Second, as previously discussed, the Court observed that “several NPDES provisions might be read to suggest a view contrary to the unitary waters approach.” Id. at 107,
Subsequent Supreme Court decisions support this reading of Miceosukee. In Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., the Supreme Court held that a water transfer between one portion of a river through a concrete channel to a lower portion of the same river did not trigger a NPDES permit requirement. — U.S. -,
In Miccosukee, the Supreme Court acknowledged the concerns that have been raised about the burdens of permitting, but also observed that “it may be that such permitting authority is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs.”
Hence, the Supreme Court’s decisions in Miccosukee and Los Angeles County support the conclusion that water transfers between two distinct water bodies are not exempt from the Act.
Ill
In my view, then, Congress has “unambiguously expressed” its intent to subject interbasin water transfers to the requirements of §§ 1311 and 1362 of the Act. Accordingly, I would affirm the judgment of the district court based on step one of Chevron. Even assuming, however, that the statutory text is ambiguous, I agree with the district court that the Water Transfers Rule also fails at Chevron step two because it is an unreasonable and manifestly contrary interpretation of the Act, largely for the reasons set forth in the district court’s thorough and carefully-reasoned decision. I add the following:
First, Chevron deference has its limits. “Deference does not mean acquiescence,” Presley v. Etowah County Comm’n,
Second, an agency’s interpretation of an ambiguous statute is not entitled to deference where the interpretation is “at odds” with the statute’s “manifest purpose,” Whitman v. Am. Trucking Ass’ns,
Third, the Water Transfers Rule is not entitled to deference because it will lead to absurd results. See Michigan v. EPA, — U.S. —,
* * *
I would affirm the judgment of the district court, and, accordingly, I dissent.
. The term “interbasin transfer” refers to an artificial or man-made conveyance of water between two distinct water bodies that would not otherwise be connected. See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y.,
. The majority writes that the Supreme Court's holding in Rapanos “does not compel the conclusion that the statutory phrase 'navigable waters’ is unambiguous because that phrase, unlike the phrase in Rapanos, is not limited by a definite article." Op. at 514, n.24. While Rapanos may not “compel” that conclusion, it certainly supports it. In Rapanos, the Supreme Court was interpreting the same definition of “navigable waters” in operation here, § 1362(7), which defines "navigable waters” as "the waters of the United States.” The lack of the word "the” before "navigable waters” in § 1362(12)(A) hardly negates the Supreme Court’s holding that the definition of "navigable waters” as found in § 1362(7) does not refer to water in general, but water bodies. Moreover, the existence or non-existence of a definite article before a noun, on its own, has no bearing on the plural or singular nature of a noun. "The” can be used to refer to a particular person or thing or a group. See Bryan A. Garner, Gamer’s Modem American Usage: The Authority on Grammar, Usage and Style, 883 (3rd Ed. 2009) ("The definite article can be used to refer to a group < the basketball team > or, in some circumstances, a plural < The ideas just keep on flowing >.”).
. There are additional sections in which the term "navigable waters” clearly refers to individual water bodies, See, e.g„ 33 U.S.C. §§ 1341 (requiring any applicant for federal license or permit "to conduct any activity, including but not limited to, the construction or operation of facilities which may result in any discharge in the navigable waters” to obtain a state certification that any discharge of pollutants will comply with the receiving water body’s water-quality standard), 1344(a) (requiring permits for "[discharge into navigable waters at specified disposal sites” by establishing a separate permit program for discharges of "dredged or fill material,” which by definition come from water bodies); see also 33 U.S.C. §§ 1313(a), (d)(1)(A), 1313(e)(4), 1314(0(1), (b)(1), (d)(2)(D), (h)(9), (h)(ll)(B).
. Downstream states would have to resort to common law nuisance suits in the courts of the polluting state, instead of addressing permit violations with EPA. As the district court points out, “EPA never explains how states, post Water Transfers Rule, can address interstate pollution effects 'through their WQS [water quality standards] and TMDL [total maximum daily loads] programs' or ‘pursuant to state authorities preserved by section 510,’ given that states do not have authority to require other states to adhere to effluent limitations or state-based regulations. See Int'l Paper Co. v. Ouellette,
. In addition, general permits can be issued to "an entire class of hypothetical dischargers in a given geographic region,” and thus covered discharges can commence automatically without an individualized application process. Nw. Envtl.,
. While we discussed Mead and Skidmore in Catskill I and II, we rejected EPA's position as unpersuasive. In Catskill I we held:
[Cjourts do not face a choice between Chevron deference and no deference at all. Administrative decisions not subject to Chevron deference may be entitled to a lesser degree of deference: the agency position should be followed to the extent persuasive. See Mead,121 S.Ct. at 2175-76 (citing Skidmore v. Swift & Co.,323 U.S. 134 , 140,65 S.Ct. 161 ,89 L.Ed. 124 (1944)). For the reasons that follow, however, we do not find the EPA’s position to be persuasive.
. In Dague v. City of Burlington,
. At least one commentator has agreed that we found in Catskill I that "the statute’s plain meaning was clear.” Jeffrey G. Miller, Plain Meaning, Precedent and Metaphysics, Interpreting the “Addition" Element of the Clean Water Act Offense, 44 Envtl. L. Rep. News & Analysis 10770, 10792 (2014) ("Although the Second Circuit did not explicitly employ the two-step Chevron deference test to EPA’s water transfer rule, it left no doubt as to how it would have decided the case under Chevron. With regard to the first step, whether the statute is ambiguous, the court in Catskill I held that the statute’s plain meaning was clear.”).
. The majority suggests that we ruled on the meaning of "addition” based on the plain meaning of the statute without reaching the meaning of "addition ... to navigable waters.” Op. at 510 (emphasis added) ("We do not ... think that by referring to the ‘plain meaning' of ‘addition’ in Catskill I we were holding that the broader statutory phrase ‘addition ... to navigable waters’ unambiguously referred to a collection of individual ‘navigable waters.' ” (internal citations and quotations omitted)). It is not possible, however, to define “addition” without defining the object to which the addition is made, as the concepts are inexorably linked. It is clear from our reasoning in Catskill I and II, that we considered the entire phrase in reaching our conclusion. Thus, when we stated “that the discharge of water containing pollutants from one distinct water body to another is an 'addition of [a] pollutant' under the CWA,” we could only have meant that the discharge of water containing pollutants constitutes "an ‘addition’ of [a] pollutant” to navigable waters. Catskill II, 451 F.3dat80.
. In Catskill II, we concluded that ‘‘[o]ur rejection of [the unitary waters] theory in Catskill I ... is supported by Miceosukee, not undermined by it.”