Environmental Defense Center, Inc. v. United States Environmental Protection AgencyEnvironmental Defense Center, Inc. v. United States Environmental Protection Agency
Lead Opinion
Opinion by Judge JAMES R. BROWNING; Partial Concurrence and Partial Dissent by Judge TALLMAN.
Petitioners challenge a rule issued by the United States Environmental Protection Agency pursuant to the Clean Water Act,
Storm sewers drain rainwater and melted snow from developed areas into water bodies that can handle the excess flow. Draining stormwater picks up a variety of contaminants as it filters through soil and over pavement on its way to sewers. Sewers are also used on occasion as an easy (if illicit) means for the direct discharge of unwanted contaminants. Since storm sew
In the three cases consolidated here, petitioners and intervenors challenge the Phase II Rule on twenty-two constitutional, statutory, and procedural grounds. We remand three aspects of the Rule concerning the issuance of notices of intent under the Rule’s general permitting scheme. We affirm the Rule against all other challenges.
I.
BACKGROUND
A. The Problem of Stormwater Runoff
Stormwater runoff is one of the most significant sources of water pollution in the nation, at times “comparable- to, if not greater than, contamination from industrial and sewage sources.”
B. Stormwater and the Clean Water Act
Congress enacted the Clean Water Act in 1948 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Storm sewers are established point sources subject to NPDES permitting requirements. Natural Res. Def. Council v. Costle,
C. The Phase II Stormwater Rule
In Clean Water Act § 402(p), Congress also directed a second stage of stormwater regulation by ordering EPA to identify and address sources of pollution not covered by the Phase I Rule. Section 402(p)(l) placed a temporary moratorium (expiring in 1994) on the permitting of other storm-water discharges pending the results of studies mandated in § 402(p)(5) to identify the sources and pollutant content of such discharges and to establish procedures and methods to control them as “necessary to
EPA proposed the Phase II Rule in January of 1998.
Under the Phase II Rule, NPDES permits are required for discharges from small municipal separate storm sewer systems (“small MS4s”) and stormwater discharges from construction activity disturbing between one and five acres (“small construction sites”).
D. Facial Challenges to the Phase II Rule
The Rule was challenged in the Fifth, Ninth, and D.C. Circuits in three separate actions ultimately consolidated before the Ninth Circuit.
The Texas Cities Coalition on Stormwa-ter and the Texas Counties Stormwater Coalition (collectively, “the Municipal Petitioners”) assert that EPA lacked authority to require permitting, that its promulgation of the Rule was procedurally defective, that the Rule establishes categories that are arbitrary and capricious, and that the Rule impermissibly requires municipalities to regulate their own citizens in contravention of the Tenth Amendment and to communicate a federally mandated message in contravention of the First Amendment. The Natural Resources Defense Council (“NRDC”) intervened on behalf of EPA.
The American Forest & Paper Association (“AF & PA”) and the National Association of Home Builders (“the Industrial Petitioners”) assert that promulgation of the Rule was procedurally defective and violated the Regulatory Flexibility Act, that EPA’s retention of authority to regulate future sources of runoff pollution is ultra vires, and that the decision to regulate discharge from construction sites one to five acres in size is arbitrary and capricious. NRDC again intervened on behalf of EPA.
We have jurisdiction pursuant to section 509(b)(1) of the Clean Water Act,
II.
DISCUSSION
A. The Permit Requirements
The Municipal Petitioners’ primary contention is that the Phase II Rule compels small MS4s to regulate citizens as a condition of receiving a permit to operate, and that EPA lacks both statutory and constitutional authority to impose such a requirement. Because we avoid considering constitutionality if an issue may be resolved on narrower grounds, Greater New Orleans Broadcasting Ass’n v. United States,
1. Statutory Authority
The Municipal Petitioners assert that the statutory command in Clean Water Act § 402(p)(6) that EPA develop a “comprehensive program to regulate” small MS4s did not authorize a program based on NPDES permits. Petitioners argue that because § 402(p)(6) explicitly indicates elements that the program may contain (performance standards, guidelines, etc.) without mentioning “permits,” Congress must have intended that the program exclude permitting.
The fact that “permitting” is not included on a statutory list of elements that the program “may” include is not determinative, because the list is manifestly nonexclusive. The only constraints are that the § 402(p)(6) regulations be based on the § 402(p)(5) studies, that they be issued in consultation with state and local officials, and that-"at minimum"-they establish priorities, requirements for state stormwater management programs, and expeditious deadlines, and constitute a comprehensive program “to protect water
The Municipal Petitioners further contend that their interpretation is supported by the structure of § 402(p), which expressly requires permits for large and medium sized MS4s in a separate section, § 402(p)(3)(B).
Since there would have been no need to establish a permitting moratorium for these sources if the sources could never be subject to permitting requirements, petitioners’ interpretation violates the bedrock principle that statutes not be interpreted to render any provision superfluous. See Burrey v. Pacific Gas & Elec. Co.,
2. The Tenth Amendment
The Municipal Petitioners contend that the Phase II Rule on its face compels operators of small MS4s to regulate third parties in contravention of the Tenth Amendment. We note that a facial challenge must show that there are no circumstances under which the challenged provisions would be constitutional. Legal Aid Soc’y v. Legal Servs. Corp.,
a. The Individual and General Permit Options. The Phase II Rule requires any operator of a small MS4 applying for an individual permit or submitting a notice of intent for coverage under a general permit to specify plans for compliance with a series of six minimum control measures designed to protect water quality.
The Municipal Petitioners contend that the measures regulating illicit discharges, small construction sites, and development activities interfere excessively with local government functions and unconstitutionally compel small MS4 operators to regulate third parties, i.e. upstream dischar-gers. The Illicit Discharge Detection and Elimination measure requires that a permit seeker prohibit non-stormwater discharges to the MS4 and implement appropriate enforcement procedures.
EPA counters that nothing in the Phase II Rule violates the Tenth Amendment, because it extends to small MS4s a generally applicable regulatory scheme
b. Tenth Amendment Standards. The Tenth Amendment provides that “all is retained [by the States] which has not been surrendered [to the federal government].” New York,
The Supreme Court has made clear that while Congress has substantial power under the Constitution to encourage the States to regulate according to federal preferences, “the Constitution does not confer upon Congress the ability simply to compel the States to do so.” New York,
The key proscribed element is coercion. In New York, where the Court invalidated a federal law requiring States either to regulate radioactive waste according to a Congressional mandate or to take title to the waste, the Court held that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.”
While Congress may not coerce a State to regulate according to its terms, Congress may encourage a State to regulate in a manner consistent with federal interests. New York,
Moreover, the Court has distinguished between federal laws that unconstitutionally compel state regulation of third parties and generally applicable federal laws that permissibly regulate the activities of States that choose to act in the regulated field. South Carolina v. Baker,
Such “commandeering” is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.
Id. at 514-15,
Where state action is incidentally burdened by a federal law of general applicability, the Court has indicated that the Tenth Amendment may still be implicated if the law “excessively interfere^] with the functioning of state governments.” Printz,
The Tenth Amendment thus requires that we evaluate whether the Phase II Rule coerces state action (leaving a State no choice but to comply with a federal mandate), whether the mandated action forces the State to regulate third parties (as opposed to regulating state activities legitimately subject to generally applicable federal law), and, if the federal law is generally applicable, whether it nevertheless excessively interferes with the functioning of state government.
In conducting this inquiry, however, we are sensitive to the fact that solving pressing environmental problems may require the formation of partnerships between federal and state authorities that the Supreme Court has referred to as “program[s] of cooperative federalism.” Hodel,
We conclude that even if the Individual and General Permit options of the Phase II Rule require operators of small MS4s to regulate third parties, the Phase II Rule entails no unconstitutional coercion because operators of small MS4s have two alternatives to the Individual and General Permit options: the option of not discharging and the Alternative Permit option.
c. The Option of Not Discharging. The boundary between federal and local water resources is uniquely permeable; state water generally becomes federal along its journey to the sea,
If the Phase II Rule compelled state authorities to regulate third parties or involved excessive interference with local governance, it would transgress constitutional bounds regardless of the need for cooperative approaches to meet the important objectives of the Clean Water Act. But the Rule allows regulated MS4s flexibility within which to meet their obligations under federal law without unduly compromising local authority. The Rule does not coerce local governments to regulate third parties and does not excessively interfere with the state activities it regulates under legitimate commerce clause authority, but establishes a constitutional program of cooperative federalism like that upheld in Hodel.
Compliance with the Minimum Measures should not “excessively interfere” with the functioning of municipalities. The public education requirement may be satisfied by distributing leaflets or making public service announcements; the public participation measure requires only that small MS4s comply with state, Tribal and local public notice requirements when implementing a public involvement/participation program; and the pollution prevention measure requires only that a permit-seeker train its staff to reduce runoff pollution from municipal operations. The illicit discharge, construction, and post-development measures may impose greater burdens, but each requires only that a small MS4 take reasonable steps to regulate the pollutant intake of their systems to mini
The Minimum Measures addressing illicit discharges, construction-related pollution, and post-development pollution each explicitly require compliance “through ordinance, or other regulatory mechanism.”
Nevertheless, we cannot say that this Measure compels state authorities to regulate third parties, because local governments are not compelled to discharge collected stormwater to federal waters. Local governments make choices about how they wish to manage stormwater runoff, and in some cases take advantage of the presence of federal waters as a means of disposing of their own storm-water. While the Municipal Petitioners contend that municipalities cannot avoid discharging to federal waters, (because MS4s, broadly defined to include even roads with drainage systems, necessarily channel stormwater into downhill water bodies that ultimately enter the waters of the United States), alternative means for disposing of collected stormwater remain open to local governments that provide storm sewer services. Such alternatives include recycling programs and wetland construction. That these alternatives may prove more expensive does not alter the legal framework under which municipalities choose to discharge pollutants into the waters of the United States.
Just as the Tenth Amendment does not prevent the federal government from persuading state action by conditioning the receipt of federal funds it is not required to bestow, the Tenth Amendment does not prevent the federal government from conditioning permission to discharge into federal waters on municipal adoption of a storm water management program. In both cases, federal authorities persuade state authorities to take action that might otherwise encroach upon state sovereignty because the action is exchanged, not compelled, for a good the federal government was not required to provide in the first place.
In this sense, the Phase II requirements are comparable in spirit to the mandate issued to the States under the DPPA and upheld in Condon.
But even if we were to assume that States and localities have no choice but to discharge, and therefore no choice but to secure Phase II permits, a plain reading of the Phase II Rule demonstrates that they still would not face unconstitutional compulsion. A directive to enact a regulatory program is unconstitutionally coercive only if no constitutional alternative is provided. And the Phase II Rule offers an alternative means for obtaining permission to discharge.
d. The Alternative Permit Option. Operators of small MS4s may opt to avoid the requirements of Phase II individual and general permits under an “Alternative Permit” option.
EPA urges that the Minimum Measures are facially constitutional but that even if they were not, the Alternative Permit option reheves permit seekers of the obligation to take action that may approach the regulation of third parties. Because municipalities may choose an alternative that does not require regulation of third parties, EPA argues, the Phase II Rule does not run afoul of the Tenth Amendment.
The Municipal Petitioners maintain that the alternative program suffers from the same constitutional flaws as the general permit program, because the provisions addressing pollution from construction, development, illicit discharges, and municipal activities still functionally compel municipal authorities to administer a federal regulatory program.
Reducing “the discharge of pollutants from an MS4 which receives discharges from areas of new development” according to
Because the Alternative option provides applicants an avenue of securing a permit
3. Statutory Authority for the Minimum Measures
The Municipal Petitioners contend that, even if constitutional, the Minimum Measures of the General Permit option exceed EPA’s statutory authority under § 402(p). Petitioners argue that nothing in the statute confers authority on EPA to require small MS4 operators to regulate third parties as a condition of receiving a permit, and that EPA’s contrary interpretation is so constitutionally questionable that it is not entitled to Chevron deference. See Solid Waste Agency v. Army Corps of Engineers,
We agree that EPA’s adoption of the Minimum Measures represents a permissible interpretation of its authority under § 402(p)(6). See Chevron,
4. The First Amendment and the Minimum Measures
The Municipal Petitioners contend that the Public Education and Illicit Discharge Minimum Measures compel municipalities to deliver EPA’s political message in violation of the First Amendment. The Phase II Rule’s “Public Education and Outreach” Minimum Measure directs regulated small MS4s to “distribute educational materials to the community ... about the impacts of stormwater discharges on water bodies and the steps the public can take to reduce pollutants in stormwater runoff.”
The Municipal Petitioners argue that the First Amendment prohibits EPA from compelling small MS4s to communicate messages that they might not otherwise wish to deliver. They further contend that EPA’s interpretation of § 402(p) as authorizing these Measures does not warrant Chevron deference because it raises serious constitutional issues, but that even if deference were given, the resulting rule is unconstitutional because neither Congress nor EPA may dictate the speech of MS4s. They contend that municipalities are protected by the First Amendment, Pacific Gas & Elec. v. Public Utilities Comm’n,
We conclude that the purpose of the challenged provisions is legitimate and consistent with the regulatory goals of the overall scheme of the Clean Water Act, cf.
As in Zauderer v. Office of Disciplinary Counsel of the Sup.Ct. of Ohio,
Informing the public about safe toxin disposal is nonideological; it involves no “compelled recitation of a message” and no “affirmation of belief.” PruneYard Shopping Ctr. v. Robins,
Even if such a loosely defined public information requirement could be read as compelling speech, the regulation resembles another regulation that the Supreme Court has held permissible. In Glickman,
Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views. Indeed, since all of the respondents are engaged in the business of marketing California nectarines, plums, and peaches, it is fair to presume that they agree with the central message of the speech that is generated by the generic program.
Id. at 469-70,
5. Notice and Comment on the Alternative Permit Option
The Municipal Petitioners contend that, in adopting the Alternative Permit option, EPA did not comply with the minimum notice and comment procedures required in informal rulemaking by the Administrative Procedures Act (“APA”),
We have held that a “final regulation that varies from the proposal, even substantially, will be valid as long as it is ‘in character with the original proposal and a logical outgrowth of the notice and corn-ments.’ ” Hodge v. Dalton,
The Municipal Petitioners argue that the Alternative Permit option is not a logical outgrowth of EPA’s proposed rule because, although numerous alternatives were discussed in the Preamble to the proposed rule, 63 Fed.Reg. at 1554-1557, the Alternative Permit option eventually adopted was not. EPA counters that the proposed rule included a supplementary alternative permitting system based on concepts similar to those in the Minimum Measures, including “simplified individual permit application requirements.”
B. The General Permit Option and Notices of Intent
The Environmental Petitioners contend that the general permitting scheme of the Phase II Rule allows regulated small MS4s to design stormwater pollution control programs without adequate regulatory and public oversight, and that it contravenes the Clean Water Act because it does not require EPA to review the content of dis-chargers’ notices of intent and does not contain express requirements for public participation in the NPDES permitting process.
In reviewing a federal administrative agency’s interpretation of a statute it administers, we first determine whether Congress has expressed its intent unambiguously on the question before the court. See Chevron,
We conclude that the Phase II General Permit option violates the Clean Water Act’s requirement that permits for discharges “require controls to reduce the discharge of pollutants to the maximum extent practicable,”
1. Phase II General Permits and Notices of Intent
Primary responsibility for enforcement of the requirements of the Clean Water Act is vested in the Administrator of the EPA.
A general permit is a tool by which EPA regulates a large number of similar dis-chargers. Under the traditional general permitting model, each general permit identifies the output limitations and tech
The Phase II general permitting scheme differs from the traditional general permitting model. The Clean Water Act requires EPA not only to ensure that operators of small MS4s comply with the general effluent limitations of the Clean Water Act, but also that operators of small MS4s “reduce the discharge of pollutants to the maximum extent practicable.”
Because a Phase II NOI not only conveys assent to the broad effluent limitations of the Clean Water Act, but also establishes what the discharger will do to reduce discharges to the “maximum extent practicable,” the Phase II NOI crosses the threshold from being an item of procedural correspondence to being a substantive component of a regulatory regime. The text of the Rule itself acknowledges that a Phase II NOI is a permit application that is, at least in some regards, functionally equivalent to a detailed application for an individualized permit. See, e.g.,
2. Failure to Regulate
The Environmental Petitioners argue that, by allowing NPDES authorities to grant dischargers permits based on unre-viewed NOIs, the Rule creates an impermissible self-regulatory system.
EPA maintains that the Phase II permit system is fully consistent with the authorizing statute. It contends that § 402(p)(6) granted EPA flexibility in designing the Phase II “comprehensive program,” and notes that while the statute does not require general permits, neither does it preclude them. EPA contends that Congress delegated the task of designing the program to EPA, and that EPA reasonably adopted a “flexible version” of the NPDES permit program to suit the unique needs of the Phase II program. It disputes that the general permit program creates “paper tigers,” especially since EPA, States, and citizens may initiate enforcement actions. Finally, EPA argues that the Rule does not create a self-regulatory program, but that even if it did, nothing in § 402(p)(6) precludes such a program.
Reviewing the Phase II Rule under the first step of Chevron, we note that the plain language of § 402(p) of the Clean Water Act,
Phase II general permits do impose requirements that ensure that operators of small MS4s comply with many of the effluent standards of the Clean Water Act. Thus, general permits issued under Phase II will contain numerous substantive requirements, just as did the permits issued under Phase I. See
Every operator of a small MS4 who files an NOI under Phase II “must comply with other applicable NPDES permit requirements, standards, and conditions established in the ... general permit.” See
In fact, under the Phase II Rule, in order to receive the protection of a general permit, the operator of a small MS4 needs do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction. No one will review that operator’s decision to make sure that it was reasonable, or even good faith.
Involving regulated parties in the development of individualized stormwater pollution control programs is a laudable step consistent with the directive to consult with state and local authorities in the development of the § 402(p)(6) comprehensive program. But EPA is still required to ensure that the individual programs adopted are consistent with the law. Our holding should not prevent the Phase II
3. Public Participation
The Environmental Petitioners contend that the Phase II Rule fails to provide public participation as required by the Clean Water Act, because the public receives neither notice nor opportunity for hearing regarding an NOI. The EPA replies on the one hand by arguing that NOIs are not “permits” and therefore are not subject to the public availability and public hearing requirements of the Clean Water Act, and on the other hand by arguing that the combination of the public involvement minimum measure,
Reviewing the Phase II Rule under Chevron step one, we conclude that clear Congressional intent requires that NOIs be subject to the Clean Water Act’s public availability and public hearings requirements. The Clean Water Act requires that “[a] copy of each permit application and each permit issued under [the NPDES permitting program] shall be available to the public,”
As we noted above, under the Phase II Rule it is the NOIs, and not the general permits, that contain the substantive information about how the operator of a small MS4 will reduce discharges to the maximum extent practicable. Under the Phase II Rule, NOIs are functionally equivalent to the permit applications Congress envisioned when it created the Clean Water Act’s public availability and public hearing requirements. Thus, if the Phase II Rule does not make NOIs “available to the public,” and does not provide for public hearings on NOIs, the Phase II Rule violates the clear intent of Congress. EPA’s first argument — that NOIs are not subject to the public availability and public hearings requirements of the Clean Water Act— therefore fails.
We therefore reject the Phase II Rule as contrary to the clear intent of Congress insofar as it does not provide for public hearings on NOIs as required by
EPA argues that the NOIs are “available to the public” as a result of the combined effects of the public participation minimum measures, and of federal and state freedom of information acts. This argument is unconvincing. First, the public participation Minimum Measure only requires dischargers to design a program minimally consistent with State, Tribal and local requirements.
In sum, we remand the Phase II Rule to EPA on the grounds that the Phase II Rule must provide for the review of NOIs to ensure that those NOIs “require controls” upon operators of small MS4s “that reduce the discharge of pollutants to the maximum extent practicable,”
C. Failure to Designate
We reject the Environmental Petitioners’ contention that EPA’s failure to designate for Phase II regulation serious sources of stormwater pollution, including certain industrial (“Group A”) sources and forest roads, was arbitrary and capricious. See Marsh v. Oregon Natural Res. Council,
In addition to the small MS4s and construction sites ultimately designated for regulation under the Phase II Rule, EPA evaluated a variety of other point-source discharge categories for potential Phase II regulation. One group of dischargers (referred to as the “Group A” facilities) included sources that “are very similar, or identical” to regulated stormwater discharges associated with industrial activity that were not designated for Phase I regulation for administrative reasons unrelated to their environmental impacts.
The Environmental Petitioners contend that EPA should have designated the Group A facilities for categorical Phase II regulation after finding (1) that stormwa-ter discharges from these facilities are the same as those from the industrial sources regulated under Phase I, and (2) that such discharges may cause “adverse water quality impacts.” Id. Petitioners argue that these findings, and EPA’s failure to provide individualized analysis regarding whether any specific source category within Group A requires regulation, render EPA’s decision not to regulate any of these sources under the Rule arbitrary and capricious. They maintain that EPA’s “line-drawing,” which regulates some pollution sources but leaves nearly identical sources unregulated without any persuasive rationale, is necessarily arbitrary and capricious. See Natural Res. Def. Council,
Petitioners argue that § 402(p)(6) at least required EPA to make findings with respect to individual Group A categories, and that data collected from Phase I permit applications could be used to evaluate the pollutant potential of the identical Group A sources. They contend that these findings should have sufficed as a basis for designating at least some Group A sources, and that EPA’s conclusion that it lacked adequate nationwide data upon which to designate any of these sources is not supported by the record evidence. Comparing EPA’s identification of the serious polluting potential of some of these sources with its statutory mandate under § 402(p)(6) “to protect water quality,” they argue that EPA fails even the forgiving standard of arbitrary and capricious review in that it has “offered an explanation for its decision that runs counter to the evidence before [it]”, and “is so implausible that it could not be ascribed to a difference in view or the product of agency exper
EPA maintains that it considered Group A facilities’ similarity to already regulated sources as only one of several criteria that it used in designating sources for regulation under Phase II, 64 Fed.Reg. at 68,780, and that sources that appear “similarly situated” under one criterion are not necessarily similarly situated under all. EPA asserts that nothing in § 402(p)(6) implied a responsibility to make individualized findings regarding each Group A subcategory, and it maintains that it simply lacked sufficient data to support nationwide designation of the Group A facilities. EPA notes that, after failing to receive requested comment providing such data, it proposed instead “to protect water quality” by allowing regional regulation of problem Group A facilities under the residual designation authority. EPA contends that agencies must be afforded deference in determining the data necessary to support regulatory decisionmaking and that it reasonably determined the quantum of data it would need to support the designation of additional sources on a nationwide basis. See Sierra Club v. EPA,
We conclude that sufficient evidence supports EPA’s decision not to designate Group A sources on a nationwide basis, and instead to establish local and regional designation authority to account for these sources and protect water quality. Although we are troubled by the purely administrative basis for the distinction between facilities regulated under the Phase I Rule and the Group A facilities that remain unregulated under Phase II,
EPA has articulated a rational connection between record facts indicating insufficient data to categorically regulate Group A facilities and its corresponding conclusion not to do so, and we defer to that decision. See Washington v. Daley,
2. Forest Roads
The Environmental Petitioners also contend that EPA arbitrarily failed to regulate forest roads under the Rule despite clear evidence in the record documenting the need for stormwater pollution control from these roads. Petitioners again contend that this agency action is arbitrary, because EPA has offered an explanation for its decision that runs counter to the evidence before it.
Petitioners point to EPA’s own conclusion that forest roads “are considered to be the major source of erosion from forested lands, contributing up to 90 percent of the total sediment production from forestry operations.”
EPA maintains that this argument is time-barred by Clean Water Act § 509(b)(1),
EPA’s fine of argument might be more persuasive if the Environmental Petitioners’ contention could only be understood as a direct challenge to its 1976 silviculture (forestry) regulations, but this is not the case. The Petitioners assert that EPA’s decision not to regulate forest roads under the Phase II rule is arbitrary, because EPA made the decision while aware that forest roads pose a recognized threat to water quality.
The fact that EPA exempted forest roads from NPDES permit requirements in 1976,
However, we cannot say that EPA’s decision not to designate forest roads for Phase II regulation was arbitrary, because EPA was asked by Congress to promulgate the Phase II Rule under the section of the Clean Water Act demarcated for regulating “Municipal and Industrial Stormwater Discharges.”
The Environmental Petitioners argue that this aspect of the Rule is arbitrary because EPA “offered an explanation for its decision that runs counter to the evidence before[it],” Motor Vehicle Mfrs. Ass’n,
In accordance with its instructions from Congress, EPA based its decision about which sources to designate on the available evidence related to municipal and industrial sources of stormwater discharges. The Petitioners have offered no evidence, either in this appeal or during the long Phase II rulemaking process, that forest roads should be considered municipal or industrial enterprises.
D. AF & PA’s Standing
The American Forestry & Paper Association (AF & PA), a national trade association representing the forest, pulp, paperboard, and wood products industry, is one of the two Industry Petitioners asserting the remaining claims.
EPA argues that AF & PA lacks standing because it cannot show that it represents entities that suffer a cognizable injury under the Phase II Rule as promulgated. EPA argues that the interests of AF & PA entities might have supported standing had EPA decided to regulate forest roads as Phase II stormwater dischargers, but since EPA declined to do so, none of AF & PA’s members are currently subject to the Rule. AF & PA contends that its members have a cognizable
We agree that AF & PA lacks standing. A claimant meeting Article III standing requirements must show that “(1) it has suffered an ‘injury in fact’ ...; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth v. Laidlaw Envtl. Servs. (TOC),
E. Consultation with State and Local Officials
The Industry Petitioners contend that EPA failed to consult with the States on the Phase II Rule as required by § 402(p)(5), which instructs EPA to conduct studies “in consultation with the States,” and § 402(p)(6), which instructs the Administrator to issue regulations based on these studies “in consultation with State and local officials.”
Petitioners concede several instances in which EPA circulated drafts of the Phase II Rule to state and local authorities, but argue that these consultations were meaningless because (1) the reports were circulated too far in advance of the actual rule-making, (2) the rulemaking wrongfully proceeded based on other sources of input, (3) standard APA notice and comment procedures could not suffice because Congress must have intended something more when it added the consultation requirements to the language of § 402, and (4) consultation at the final stage of rulemaking was inadequate because comment was sought on the final report only after it had been submitted to Congress and the Phase II Rule had been promulgated. Petitioners provide examples of state feedback that allegedly went unheeded by EPA in its promulgation of the final Rule.
EPA maintains that it consulted extensively with States and localities in developing the Phase II Rule, discharging its obligations under §§ 402(p)(5) & (6). EPA contends that the comments Petitioners cite as unheeded by EPA demonstrate that EPA did consult with States concerning the Rule, even if some States did not concur in EPA’s ultimate conclusion, and that the final rule adopted a good measure of the flexibility sought by state representatives. EPA argues that Industry Petitioners cannot complain that consultation was inadequate simply because it did not result in the adoption of Petitioners’ preferred views.
EPA also disputes Petitioners’ allegation that while EPA did comply with the terms of the 1999 Appropriations Act (requiring EPA to defend the proposed Phase II
We conclude that the overall record indicates EPA met its statutory duty of consultation. A draft of the first report was circulated to States, EPA regional offices, the Association of State and Interstate Water Pollution Control Administrators (“ASIWPCA”), and other stakeholders in November of 1993, and was revised based on comments received. EPA established the Urban Wet Weather Flows Federal Advisory Committee (“FACA Committee”), balancing membership between EPA’s various outside stakeholder interests, including representatives from States, municipalities, Tribes, commercial and industrial sectors, agriculture, and environmental and public interest groups. 64 Fed.Reg. 68,724. The 32 members of the Phase II FACA Subcommittee, reflecting the same balance of interests, met fourteen times over three years and state and municipal representatives provided substantial input regarding the draft reports, the ultimate Phase II Rule, and the supporting data.
The fact that the Rule did not conform to Petitioners’ hopes and expectations does not bear on whether EPA adequately consulted state and local officials. Although required to consult with States and localities, EPA was free to chart the substantive course it saw fit. EPA was not required to consult with States on the Appropriations Act report. Even if EPA should have sought further comment at that late stage, failure to do so does not outweigh the evidence demonstrating extensive consultation and cooperation with local authorities on development of the Rule.
F. Designation of Certain Small MS4s and Construction Sites
The Industry Petitioners contend that, in designating certain small MS4s and construction sites for regulation under the Phase II Rule, EPA failed to adhere to the statutorily required regulatory basis and misinterpreted record evidence. We disagree.
2. Regulatory Basis
The Industry Petitioners and the Municipal Petitioners contend that EPA violated the statutory command to base the Phase II regulations on § 402(p)(5) studies. We review EPA’s interpretation of its statutory authority under the Chevron standard,
Petitioners argue that the studies mandated by § 402(p)(5) were intended to provide the sole substantive basis for the “comprehensive program” envisioned in § 402(p)(6), but that EPA also (and thus improperly) based its designation of small MS4s and construction sites on (1) public comment received in the aftermath of judicial invalidation of the scope of construction sites regulated by the Phase I Rule,
EPA contends that the statute did not require it to base its designations exclusively on the § 402(p)(5) studies, and that it was in fact required to take account of information from other sources in promulgating the regulations. It argues that it based the Phase II Rule on conclusions reported in the § 402(p)(5) studies, but then appropriately supported these results with data described in the additional study requested by Congress in the Appropriations Act, comments submitted during the statutorily required notice-and-comment process, and other available information. To read the authorizing statute as limiting reliance to the § 402(p)(5) studies, EPA claims, would preclude it from relying on recommendations received through the separate, post-study requirement to “consult with State and local officials” under § 402(p)(6), and through the notice and comment process mandated by the APA,
Respondent-intervenor NRDC adds that the Phase II Rule is consistent with the § 402(p)(5) studies reported in 1995, and moreover, that the Industry Petitioners lack standing to raise the “regulatory basis” claim because they cannot show the requisite injury. See Friends of the Earth,
a. Standing. Industry Petitioners
NRDC argues that the injuries Petitioners allege are not consistent with the guidelines laid out in Friends of the Earth,
NRDC’s causation argument is complex. Although the Petitioners purport to challenge EPA’s failure to follow all of the 1995 Report’s recommendations in the final Phase II Rule, NRDC contends, they are really challenging the subsequent proceedings through which EPA developed the final Rule. Even if there were some unlawful variance between the 1995 report and final rule, NRDC continues, the cause of that variance would have been some failure to abide by rulemaking standards during administrative proceedings that produced the text of the final Rule — not EPA’s attention to sources of input other than the 1995 Report. NRDC maintains that these intervening acts of rulemaking (e.g., Phase II Subcommittee activities and the notice-and-comment process) break the requisite chain of causation between EPA’s alleged failure to adhere to recommendations in the 1995 report and the flaws Petitioners allege in the Phase II Rule, which NRDC claims would have been due to “purportedly unlawful EPA decisions on the merits during the subsequent administrative proceedings.” See Northside Sanitary Landfill v. Thomas,
We note that NRDC’s standing arguments apply equally to the Municipal •Petitioners, who can also assert only the harms resulting to members from the Rule itself or from a lack of notice, and that we are thus not only considering the standing of the Industry Petitioners but also that of the Municipal Petitioners to raise the “regulatory basis” claim.
NRDC essentially argues that petitioners lack standing because (1) they cannot show that being subject to NPDES permitting is the causal result of the procedural injury they urge, (2) they cannot claim any actual notice injury from the alleged procedural wrong because notice was actually given, and (3) they cannot claim standing based on hypothetical injury that may (or may not) arise from future regulation under the residual authority. We can readily agree with the latter two contentions. As discussed above, the “actual injury” requirement of Article III standing precludes judicial consideration of exactly the kind of hypothetical harm the Industry Petitioners allege may follow from use of Phase II authority for future designations of regional sources. Friends of the Earth,
However, NRDC’s causation argument is less persuasive. NRDC correctly argues that the petitioners cannot establish a definite chain of causation between the EPA’s alleged failure to limit their regulatory basis to the § 402(p)(5) studies and the fact that they now must obtain permits. But this will almost always be true of petitions challenging an agency’s failure to abide by statutory procedural requirements. Because all administrative deci-sionmaking following an alleged procedural irregularity could always be considered an intervening factor breaking the chain of causation, NRDC’s interpretation of the requisite chain of causation would dubiously shield administrative decisions from procedural review.
For this reason, we have held that the failure of an administrative agency to comply with procedural requirements in itself establishes sufficient injury to confer standing, even though the administrative result might have been the same had proper procedure been followed. City of Davis v. Coleman,
The Supreme Court has also acknowledged that standing may be established by harm resulting indirectly from the challenged acts, Warth v. Seldin,
Thus, although the petitioners cannot show with certainty that the alleged “regulatory basis” violation caused them to be wrongfully subjected to Phase II permitting requirements, we hold that they have alleged a procedural injury sufficient to support their standing to bring the claim.
b. Merits. Athough we resolve the standing issue in favor of the petitioners, we nevertheless affirm the Rule against their claim that EPA violated procedural constraints implied by the authorizing statute, § 402(p)(6).
Congress intended EPA to use all sources of information in developing a comprehensive program to protect water quality to the maximum extent practicable. The statute unambiguously required EPA to base its regulations both on the § 402(p)(5) studies and on consultation with state and local officials. Congress enacted § 402 with full knowledge that EPA would also be required to take account of public comments during the notice and comment phase of administrative rale-
2. MS4s in Urbanized Areas
The Municipal Petitioners contend that the designation of small MS4s for Phase II regulation according to Census Bureau defined areas of population density (“urbanized areas”) is arbitrary and capricious. They argue that EPA has not established that the Census Bureau’s designation of urbanized areas is correlated with actual levels of pollution runoff in stormwater, and that EPA adopted the designations simply for administrative convenience. We affirm, because the record reflects a reasoned basis for EPA’s decision. See Marsh,
Conceding that the Preamble cites studies purporting to establish “a high correlation between the degree of develop-meni/urbanization and adverse impacts on receiving waters due to stormwater,” 64 Fed.Reg. at 68,751, the Municipal Petitioners nevertheless contend, that the record contains no “demonstrably correlated, quantified basis on which EPA may reasonably have concluded that any particular population, or any population density, per se establishes that all urban areas having that same characteristic in gross are necessarily appropriate for inclusion as Phase II sources.” Pointing to Leather Indus. of Am. v. EPA,
EPA responds that it extensively documented the relationship between urbanization and harmful water quality impacts from stormwater runoff, pointing to its findings that the degree of surface imper-viousness in an area directly corresponds to the degree of harmful downstream pollution from stormwater runoff, 64 Fed.Reg. at 68,724-27, and that it articulated a rational connection between these record facts and its decision to designate small MS4s serving areas of high population density (“urbanized areas”) to protect water quality.
We treat EPA’s decision with great deference because we are reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise. See Baltimore Gas & Elec. Co. v. NRDC,
The statute simply called upon EPA to “designate stormwater discharges,” other than those designated in Phase I, “to be regulated to protect water quality.”
3. Small Construction Sites
Industry and Municipal Petitioners also argue that EPA’s decision to regulate under Phase II all construction sites disturbing between one and five acres of land (“small construction sites”) is arbitrary and unsupported by the record. We do not agree. See Marsh,
a. Record Evidence. Municipal Petitioners claim that EPA arrived at the one-acre standard based not on factual findings in the record but instead as a reaction to the earlier Ninth Circuit remand of the Phase I five-acre designation. They allege that the one-acre standard is no more based on supporting data than the rejected five-acre standard, and is thus quantitatively arbitrary.
Industry Petitioners argue that EPA’s findings do not support regulation of all small construction sites, but indicate only that small construction sites, taken cumulatively, may cause effects similar to large sites in a given area. They contend that EPA’s conclusion that adverse effects are possible under certain circumstances cannot support categorical designation of all small construction sites nationwide, and that the Rule is arbitrary because (1) it is based on an analysis that fails to take account of the frequency of negative impacts, (2) it fails to take account of acknowledged factors that determine whether small construction activities cumulatively cause harm (such as the degree of development in a watershed at any given time), and (3) EPA has acknowledged that the actual water quality impact of construction sites of all sizes varies widely from area to area depending on climatological, geological, geographical, and hydrological influences.
Industry Petitioners further contend that the record does not support the designation of small sites, because almost all of the technical papers EPA relied on focused on larger sites or failed to take account of size,
EPA maintains that construction sites regulated under the Phase II Rule de
EPA also disputes petitioners’ assertions that data from studies involving larger construction sites are irrelevant to the Phase II Rule. EPA explains that discharges of sediment due to erosion are the result of the interaction of several factors including soils, slope, precipitation, and vegetation:
For construction sites that are one acre or more, none of the environmental factors contributing to sediment discharges is dependent on the size of the site disturbed. A one-acre site can have the same combination of soils, slope, degree of disturbance and precipitation as a 100-acre site, and consequently can lose soil at the same rate ... and discharge sediments in the same concentrations ... as a 100-acre site.
EPA contends that it is thus reasonable to extrapolate data about small sites from studies of larger ones — arid that such an extrapolation may even be forgiving, since small sites are currently less likely to have effective erosion and sedimentation control plans.
Indeed, EPA argues that although adverse water quality impacts of small construction sites have been widely recognized, effective local erosion and sedimentation control programs have not been adopted in many areas.
Petitioners’ primary contention is that evidence in the record suggests it is not possible to provide an explicit, quantitative link between small construction sites and an adverse effect on water quality. But even if this were so, EPA’s decision to regulate preventively small construction sites “to protect water quality” is not inconsistent with the record. Petitioners contend that EPA’s reliance on data from studies of large construction sites is insufficient to support EPA’s designation of small sites, but EPA has adequately supported its contention that experts can reasonably extrapolate projected water quality impacts from large to small sites. We apply the substantial evidence standard when reviewing the factual findings of an agency, Dickinson v. Zurko,
Moreover, EPA is not required to conduct the “perfect study.” Sierra Club,
b. Waivers. Industry Petitioners further contend that EPA’s allowance of regulatory waivers for small construction sites not likely to cause adverse water quality impacts inappropriately supplements the permitting regulations.
Petitioners argue that EPA has the burden of establishing a comprehensive program to control sources as necessary to protect water quality, and that shifting the burden to individual contractors, businesses, and homeowners to prove they do not harm water quality falls short of meeting this statutory obligation. Citing National Mining Ass’n v. Babbitt, 172 F.3d
EPA is correct; the Phase II Rule creates no presumption applicable to an evi-dentiary hearing, and a regulation creating exemptions by waiver is reviewed under the familiar arbitrary and capricious standard. The use of waivers to allow permit exemptions for small sites unlikely to cause adverse impacts is reasonable under that standard.
c. Consistency. Industry Petitioners also argue that EPA’s decision to regulate all small construction sites under the Phase II Rule is arbitrary and capricious because EPA applied a different standard in regulating small construction projects than it applied to other potential sources of stormwater runoff subject to Phase II regulation.
Petitioners contend that EPA decided not to designate other potential sources identified in the § 402(p)(5) studies because it determined that there are not “sufficient data ... available at this time on which to make a determination of potential adverse water quality impacts for the category of sources.” 64 Fed.Reg. at 68,780. Petitioners contend this standard should have been applied to small construction sites as well, but EPA opted to regulate these sources despite an alleged lack of coherent data on small site impacts as a general category.
EPA counters, once again, that it did have adequate data to regulate small construction sites. It contends that construction sites of all sizes have greater erosion rates than almost any other land use, and thus are not similarly situated to the potential polluters that EPA chose not to regulate at this time.
We find no error. See Marsh,
G. Continuing (“Residual”) Designation Authority
The Industry Petitioners argue that EPA acted improperly in retaining authority to designate future sources of stormwa-ter pollution for Phase II regulation as needed to protect federal waters. We disagree.
The Phase II Rule preserves authority for EPA and authorized States to designate currently unregulated stormwater dischargers as requiring permits under the Rule if future circumstances indicate that they warrant regulation “to protect water quality” under the terms of § 402(p)(6).
Under today’s rule, EPA and authorized States continue to exercise the authority to designate remaining unregulated discharges composed entirely of stormwa-ter for regulation on a case-by-case basis.... Individual sources are subject to regulation if EPA or the State, as the case may be, determines that the storm-water discharge from the source contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. This standard is based on the text of section CWA 402(p). In today’s rule, EPA believes, as Congress did in drafting section CWA 402(p)(2)(E), that individual instances of stormwater discharge might warrant special regulatory attention, but do not fall neatly into a discrete, predetermined category. Today’s rule preserves the regulatory authority to subsequently address a source (or category of sources) of stormwater discharges of concern on a localized or regional basis.
64 Fed.Reg. 68,781. The text of the Rule requires a discharger to obtain a permit if the NPDES permit authority determines that “stormwater controls are needed for the discharge based on wasteload allocations that are part of ‘total maximum daily loads’ (TMDLs
1. Statutory Authority
The Industry Petitioners contend that this “residual” designation authority, which would allow a NPDES permitting authority to require at any future time a permit from any stormwater discharge not already regulated, is ultra vires. Although they concede that Congress authorized case-by-case designation in § 402(p)(2)(E),
Petitioners contend that § 402(p)(6)
EPA counters that § 402(p)(6) authorized the designation, made on the basis of statutorily required sources of input and in consultation with the States, of a third class of discharges to be identified on location-specific bases by the NPDES permitting authority. EPA contends that Petitioners mistake the source of its authority for continuing designations as arising only from § 402(p)(2), discounting the full scope of its authority under § 402(p)(6). EPA argues that it permissibly interpreted
We review EPA’s interpretation of the statute it administers with deference, Royal Foods Co.,
While not a blank check, § 402(p)(6) authorizes a comprehensive program that allows regional designation of polluting discharges that compromise water quality locally, even if they have not been established as compromising water quality nationally at the time Phase II was promulgated. In allowing continuing designation authority, EPA permissibly designated a third category of dischargers subject to Phase II regulation — those established locally as polluting U.S. waters — following all required studies and consultation with state and local officials. EPA reasonably determined that discharges other than those from small MS4s and construction sites were likely to require regulation “to protect water quality” in satisfaction of the § 402(p)(6) mandate. EPA reasonably determined that, although it lacked sufficient data to support nationwide, categorical designation of these sources, particularized data might support their designations on a more localized basis. EPA reasonably interpreted § 402(p)(6) as authorizing regional designation of sources and regional source categories, based on water quality standards including TMDLs.
Petitioners’ § 402(p)(2)(5) argument (that EPA could not draw support for the residual designation authority from § 402(p)(2)(5) because such authority expired in 1994) is contradicted by the plain language of the statute. Respondent-in-tervenor NRDC correctly notes that § 402(p)(l) sets forth a permitting moratorium for stormwater discharges prior to 1994, and that § 402(p)(2) exempts certain categories of sources from that permitting moratorium, including those to be regulated on a case-by-case basis under § 402(p)(2)(5). Specifically, the statute provides that the 1994 date “shall not apply” to the five categories of discharges listed in § 402(p)(2). The termination of a moratorium that “shall not apply” to the continuing designation authority under § 402(p)(2)(5) cannot rescind EPA’s authority to regulate sources in that category. Nothing in § 402(p) suggests that authority to designate these sources ends at any time, and EPA remains free to designate § 402(p)(2)(E) dischargers.
Finally, although Petitioners may be legitimately concerned that a permitting authority may designate a source without adequately establishing its eligibility, this issue must be addressed in the context of an actual case or controversy. Whether a NPDES authority may impose permitting requirements on a discharger without an adequate finding of polluting activity is not yet ripe for judicial review. Thomas v. Anchorage Equal Rights Comm’n,
2. Nondelegation Doctrine
Industry Petitioners contend that EPA’s interpretation of § 402(p) to allow the residual designation authority must be rejected because it would render the statute unconstitutional under the nondelegation doctrine. We deny petitioners’ claim, both because it is not properly raised and because it rests on an interpretation explicitly overturned by the United States Supreme Court.
Petitioners base their contention on American Trucking Ass’ns v. EPA
However, in reversing American Trucking, the Supreme Court rejected the notion that an agency has the power to interpret a statute so as to either save it from being, or transform it into, an unconstitutional delegation. Whitman v. Am. Trucking Ass’ns,
But even if the challenge were properly raised, § 402(p) would, like the Clean Air Act standard-setting provision at issue in Whitman, survive constitutional review. The Supreme Court has upheld against nondelegation attacks many similar statutes establishing nonquantitative standards. Am. Power & Light Co. v. SEC,
Industry Petitioners also contend that, to the extent it allows the designation of entire categories of sources, rather than individual sources, the residual designation authority violates the APA,
EPA notes that it had proposed to promulgate continuing designation authority in some form, and points to elements in the proposed rule that explicitly envision the categorical designation of sources at the local/watershed level.
According to the “logical outgrowth” standard, a final regulation must be “in character with the original proposal and a logical outgrowth of the notice and comments.” Hodge,
H. Regulatory Flexibility Act
The Industry Petitioners contend that the Phase II Rule will impose substantial compliance costs on their members and other small entities, but that EPA failed to conduct the analysis required by the Regulatory Flexibility Act (“RFA”),
The RFA requires a federal agency to prepare a regulatory flexibility analysis and an assessment of the economic impact of a proposed rule on small business entities,
EPA did certify that the Phase II Rule would not yield “significant impacts,” 64 Fed.Reg. at 68,800, but Petitioners contend this certification is erroneous because (1) EPA treats as “not significant” costs
EPA maintains that its certification was appropriate, and, moreover, that it has already voluntarily followed the additional RFA procedures that the Industry Petitioners now request. EPA argues that Petitioners have incorrectly specified the costs that the small entities they represent will bear, referring erroneously to EPA’s total annual compliance costs estimates for all entities, rather than to costs estimated for small entities as defined under the RFA. EPA maintains that it did consider economic impacts on small home construction contractors who might be denied discharge permits, and that it evaluated the annual costs of Phase II compliance associated with any land disturbance between one and five acres. 64 Fed.Reg. at 68,800-01.
Respondent-intervenor NRDC contends that Petitioners’ rebanee on measures of the aggregate impact of'the Rule on small entities to determine compliance with the threshold test under the RFA fails as a matter of law because aggregate measures are not consistent with the statutory language setting out that test. NRDC notes that the plain language of § 605(b) sets out a three-component test indicating that EPA need not perform a regulatory flexi-bihty analysis if it finds that the proposed rule will not have: (1) “a significant economic impact” on (2) “a substantial number” of (3) “small entities.”
We believe NRDC correctly interprets the statute, Marsh,
III.
CONCLUSION
We conclude that the EPA’s failure to require review of NOIs, which are the functional equivalents of permits under the Phase II General Permit option, and its failure to make NOIs available to the public or subject to public hearings contravene the express requirements of the Clean Water Act. We therefore remand these aspects of the Small MS4 General Permit option so that EPA may take appropriate action to comply with the Clean Water Act. We affirm all other aspects of the Phase II Rule against the statutory, administrative, and constitutional challenges raised in this action.
Petitions for Review GRANTED IN PART and DENIED IN PART.
Notes
. The "Phase II Rule” reviewed here is the product of the second stage of EPA's two-phase stormwater rulemaking effort. The "Phase I Rule" governing larger-scale storm-water discharges, was issued in 1990 and reviewed by this court in Natural Res. Def. Council v. EPA,
. Richard G. Cohn Lee and Diane M. Cameron, Urban Stormwater Runoff Contamination of the Chesapeake Bay: Sources and Mitigation, THE ENVIRONMENTAL PROFESSIONAL, Vol. 14, p. 10, at 10 (1992); see also Natural Res. Def. Council,
. Regulation for Revision of the Water Pollution Control Program Addressing Storm Water, 64 Fed.Reg. 68,722, 68,724, 68,727 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, and 124).
. Id. at 68,726.
. Id.
. Id. at 68,725-31.
. 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.”
. Diffuse runoff, such as rainwater that is not channeled through a point source, is considered nonpoint source pollution and is not subject to federal regulation. Oregon Natural Desert Ass'n v. Dombeck,
.National Pollutant Discharge Elimination System Permit Application Regulations for Stormwater Discharges, 55 Fed.Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pt. 122-124). The Phase I rule was challenged in this court in Natural Res. Def. Council,
. Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 63 Fed.Reg. 1536 (proposed Jan. 9, 1998).
. Pub.L. No. 106-74, § 431(a), 113 Stat. 1047, 1096 (1999) ("Appropriations, 2000— Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies”).
. Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed.Reg. 68,722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123, and 124).
. The Rule also allows a small MS4 to be regulated under an individual NPDES permit covering a nearby large or medium MS4, with provisions adapted to address the small MS4.
. The text of that section reads: "Not later than October 1, 1993, [EPA], in consultation with State and local officials, shall issue regulations (based on the results of the studies conducted under paragraph (5)) which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and shall establish a comprehensive program to regulate such designated sources. The program shall, at a minimum, (A) establish priorities, (B) establish requirements for State stormwa-ter management programs, and (C) establish expeditious deadlines. The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.”
. The lesser category of "permits” may also be implied by the inclusion of "performance standards” in the list of possible program features.
. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 29-30,
.A court may refuse to defer to an agency’s interpretation of a statute that raises serious constitutional questions. Ma v. Reno,
. This subsection provides that permit seekers must, "[t]o the extent allowable under State, Tribal, or local law, effectively prohibit, through ordinance or other regulatory mechanism, non-stormwater discharges into your storm sewer systems and implement appropriate enforcement procedures and actions. ...”
. This subsection provides that permit seekers "must develop, implement, and enforce a program to reduce pollutants in any storm water runoff to your small MS4 from construction activities that result in a land disturbance of greater than or equal to one acre .... [The proposed] program must include the development and implementation of, at a minimum: (A) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under State, Tribal, or local law; (B) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices; (C) Requirements for construction site operators to control waste such as discarded building materials, com-Crete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality; (D) Procedures for site plan review which incorporate consideration of potential water quality impacts; (E) Procedures for receipt and consideration of information submitted by the public, and (F) Procedures for site inspection and enforcement control measures.”
. This subsection provides that permit seekers must "[u]se an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects [disturbing one acre or more] to the extent allowable under State, Tribal or local law.”
. Petitioners actually contend that all MS4s are operated by municipal governments, but this is untrue. The Phase II Rule regulates all authorities who operate small storm sewer systems, "including but not limited to” federal, State, Tribal, and local authorities.
.Support for this claim is also found in ACORN v. Edwards,
. See
. EPA further argues that the alternative option, discussed in detail below, provides a lawful failsafe mechanism against any future "as applied” defects in the Minimum Measures.
. We note that this is often, but not always, the case. Contrary to Petitioners' assertion, state water does not inexorably become federal water by running downhill through a point source. For example, it may be channeled to a naturally or artificially created terminal basin, as with other forms of sewage, and there treated at the State’s discretion.
. A proposed management program must include "[requirements for construction site operators to implement appropriate erosion and sediment control best management practices [and] for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality.”
. EPA argues that, even if one of the Minimum Measures is constitutionally questionable, there is no compulsion cognizable under the Tenth Amendment because a municipality that lacks the authority to adopt regulations, pass ordinances, or otherwise exercise power to implement a Minimum Measure will be exempted from that measure. 64 Fed.Reg. at 68,766. However, the exemption applies only to permit-seekers who genuinely lack the authority to pass ordinances or regulate the targeted activity, not to permit-seekers who simply resist. Id.
.The dissent argues that the choice between abiding by Phase II and not discharging into federal waters at all is a Hobson's choice analogous to the choice facing Washington State in Board of Natural Res. v. Brown,
. EPA correctly argues: "[a]s in Condon, where the federal government permissibly regulated States as database owners selling data, even though the federal requirements applied to States exclusively, the Phase II regulations do not 'require' local governments ‘in their sovereign capacity to regulate their own citizens.'
. Small MS4s seeking an individualized permit under the Phase I model are relieved of the requirements of
. EPA further argues that a facial constitutional challenge to the Alternative Permit option cannot lie, since the rules list application requirements, not permit requirements. EPA contends that any challenge would have to be made "as applied,” and that such a challenge would be unripe at this point, as the pertinent facts have not yet materialized. Abbott Laboratories v. Gardner,
. Specifically, petitioners object to the requirements that a permit seeker must submit, with its application:
(A)(2) A description of planning procedures including a comprehensive master plan to develop, implement and enforce controls to reduce the discharge of pollutants from municipal separate storm sewers which receive discharges from areas of new development and significant redevelopment. Such plan shall address controls to reduce pollutants in discharges from municipal separate storm sewers after construction is completed; ...
(B) A description of a program, including a schedule, to detect and remove (or require the discharger to the municipal separate storm sewer to obtain a separate NPDES permit for) illicit discharges and improper disposal into the storm sewer. The proposed program shall include: (1) A description of a program, including inspections, to implement and enforce an ordinance, orders or similar means to prevent illicit discharges to the municipal separate storm sewer system; ...
(C) A description of a program to monitor and control pollutants in storm water discharges to municipal systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial facilities that are subject to section 313 of title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and industrial facilities that the municipal permit applicant determines are contributing a substantial pollutant loading to the municipal storm sewer system [including control measures for such discharges]; ...
(D) A description of a program to implement and maintain structural and nonstructural best management practices to reduce pollutants in storm water runoff from*418 construction sites to the municipal storm sewer system [including a description of requirements for such controls].
. An MS4 that requests a discharger to seek its own NPDES permit may reasonably decline service to that discharger if it refuses to secure such permit, without implicating the Tenth Amendment. The decision not to provide storm sewer service is of the sort that the federal government may compel when a municipality elects to partake in an activity regulated by the federal government.
. According to
. The nearest the Alternative Permit option comes to presenting a Tenth Amendment violation is the provision in
. We decline to address two further arguments raised by EPA: first, that municipalities do not receive full First Amendment protections, under Muir v. Ala. Educ. Television Comm’n,
. As a subsidiary matter, we note that it also falls short of compelling the MS4 to "regulate” third parties in contravention of the Tenth Amendment. Dispensing information to facilitate public awareness about safe disposal of toxic materials constitutes "encouragement,” not regulation.
. "When the constitutional validity of a statute or regulation is called into question, it is a cardinal rule that courts must first determine whether a construction is possible by which the constitutional problem may be avoided." Meinhold,
. In its most recent treatment of compelled speech, the Supreme Court held that a generic advertising campaign violated free speech where the message was specific and antagonistic to the preferred advertising message of the plaintiff, and the regulation compelling participation was not part of a broader regulatory apparatus already constraining the plaintiff's autonomy in the relevant arena. United States Dep't. of Agriculture v. United Foods,
. In deciding the similar question of whether a regulation impermissibly compelled speech by requiring manufacturers of mercury-containing products to inform consumers how to dispose safely of the toxic material, the Second Circuit held that "mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of in
. The Alternative option contains a public education requirement that is similar but even less specific, and therefore even less burdensome, than the requirements in the Minimum Measures. See
. Municipal Petitioners concede that "simplified individual permit application requirements” were discussed, but they contend that the permit requirements discussed are not sufficiently similar to those promulgated to establish a logical outgrowth.
. Petitioners suggest that EPA should be held to the standard it espoused to procure judicial approval for the Phase I program. In 1991, responding to NRDC's assertion that the Phase I Rule failed to set "hard criteria” for review of MS4 stormwater programs, EPA responded that "inadequate proposals will result in the denial of permit applications.” Respondent’s Brief at 67, Natural Res. Def. Council v. EPA,
. That the Rule allows a permitting authority to review an NOI is not enough; every permit must comply with the standards articulated by the Clean Water Act, and unless every NOI issued under a general permit is reviewed, there is no way to ensure that such compliance has been achieved.
The regulations do require NPDES permitting authorities to provide operators of small MS4s with ‘'menus” of management practices to assist in implementing their Minimum Measures, see
Nor is the availability of citizen enforcement actions a substitute for EPA's enforcement responsibility, especially because, as discussed below, the Rule does not require that NOIs be publically available. Absent review on the front end of permitting, the general permitting regulatory program loses meaning even as a procedural exercise.
. EPA identifies no other general permitting program that leaves the choice of substantive pollution control requirements to the regulated entity, and we are not persuaded by the analogy it urges to the traditional model of general permitting (where NOIs routinely are not reviewed), because, as we have noted, the Phase II general permit model is substantially dissimilar.
. Agency determinations based on the record are reviewed under the "arbitrary and capricious" standard.
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.
Motor Vehicle Mfrs. Ass’n,
. EPA explains that the Group A facilities were not regulated with the other Phase I sources because EPA used Standard Industrial Classification Index (SIC) codes in defining the universe of regulated industrial activities: "By relying on SIC codes, a classification system created to identify industries rather than environmental impacts from these industries [sic] discharges, some types of storm water discharges that might otherwise be considered 'industrial' were not included in the existing NPDES storm water program.” 64 Fed.Reg. at 68,779.
. As discussed in footnote 47, Group A facilities were not regulated with other Phase I industrial sources based on a government coding system used to distinguish different types of industry (without reference to their similar environmental impacts). See
. "In identifying potential categories of sources for designation in today’s notice, EPA considered designation of discharges from Group A and Group B facilities. EPA applied three criteria to each potential category in both groups to determine the need for designation: (1) The likelihood for exposure of pollutant sources included in that category) (2) whether such sources were adequately addressed by other environmental programs, and (3) whether sufficient data were available at this time on which to make a determination of potential adverse water quality impacts for the category of sources. As discussed previously, EPA searched for applicable nationwide data on the water quality impacts of such categories of facilities ....
"EPA's application of the first criterion showed that a number of Group A and B sources have a high likelihood of exposure of pollutants.... Application of the second criterion showed that some categories were likely to be adequately addressed by other programs.
. Guidance Specifying Management Measures For Sources of Nonpoint Pollution in Coastal Waters, EPA guidance paper 840-B-93-001c (Jan. 1993), available at http://www.epa.gov /owow/nps/mmgi/index.html (last visited Sept. 18, 2002) ("Coastal Waters”).
. Revisions to the NPDES Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation, 64 Fed.Reg. 46,058, 46,088 (Aug. 23, 1999) (proposed rule).
. Revisions to the Water Quality Planning and Management Regulation, 65 Fed.Reg. 43,586, 43,652 (July 13, 2000) (to be codified at
. Petitions for judicial review of that decision are currently pending in the D.C. Circuit. Am. Farm Bureau Fed’n. v. Whitman, Docket No. 00-1320 and consolidated cases.
. EPA has singled out several silvicultural activities for regulation as point sources, but forest roads are expressly excluded from the short list.
. The legality of EPA's recent decision not to separate its general treatment of forest roads from its treatment of agricultural activities under the Clean Water Act is currently under review in the D.C. Circuit, Am. Farm Bureau Fed’n., Docket No. 00-1320, and must be resolved in that forum.
. See, e.g., Coastal Waters, supra note 50, (describing how forestry operations, including road construction and use, degrade water quality in water-bodies receiving drainage from forest lands).
. Nonpoint Source Pollution: The Nation's Largest Water Quality Problem, EPA841-F-96-004A ("Pointer # 1”) ("The latest National Water Quality Inventory indicates that agriculture is the leading contributor to water quality impairments, degrading 60 percent of the impaired river miles and half of the impaired lake acreage surveyed by states, territories, and tribes.”).
. Petitioners can barely be regarded as having raised the issue of regulating forest roads at all during the Phase II notice and comment process. Their only comment on the matter was contained in a single sentence in a single footnote amidst forty-five single-spaced pages of general comments about the proposed Rule.
. The Municipal Petitioners join in asserting the "regulatory basis" claim at Part 11(F)(1).
. NRDC argues that this claim is not only meritless for the reasons stated by EPA, but also frivolous, since industry petitioner National Association of Home Builders, as a member of the FACA Phase II Subcommittee, participated in and affirmed that such consultation took place.
. See Natural Res. Def. Council,
. The Industry Petitioners contend that EPA lacked authority to issue the Phase II regulation of construction sites based on a process EPA itself characterized as "separate and distinct” from the development of the Report to Congress. 64 Fed.Reg. at 68,732. They add that the Phase II Rule was not "based on” the 1999 Report ultimately requested by Congress in the Appropriations Act, since EPA’s report in response was released on the very day that the final Phase II Rule was published.
.Since we have already determined that AF & PA lacks standing to raise any of its claims, see Section D above, this discussion pertains to the remaining Industry Petitioner, National Association of Home Builders.
. Although the issue of Municipal Petitioners' standing has not been raised by the parties, we are obliged to consider it to determine whether the case-or-controversy requirement of Article III is satisfied. See, e.g., Boeing Co. v. Van Gemert,
. Even if the statute were ambiguous, we would defer to EPA’s reasonable interpretation. Chevron,
. The Industrial Petitioners argue that although the Phase I authorizing statute required EPA to regulate all sources associated with "industrial activity,” Congress expressly directed that the Phase II regulatory program be focused on sources that require regulation "to protect water quality.” They assert that because EPA's rule ignores the variability of water quality impacts nationwide, the Rule is not appropriately targeted on the protection of water quality.
. Petitioners heavily critique two studies relied on by EPA that dealt specifically with the water quality impacts of small construction sites, noting that one concludes it is impossible to generalize about the impacts of small sites, Lee H. MacDonald, Technical Justification for Regulating Construction Sites 1-5 Acres in Size, July 22, 1997, and that the other merely concludes that small sites "can have” significant effects if erosion controls are not implemented, David W. Owens, et al., Soil Erosion from Small Construction Sites. Petitioners contend that the latter study was managed with no erosion controls, intentionally producing worst-case sediment runoff and unreasonable estimates of actual sediment yields for small sites nationwide. EPA vigorously defends the studies.
. NRDC adds that notwithstanding the clear interest of the National Association of Home Builders ("NAHB,” one of the Industry Petitioners), NAHB's multi-year participation in the FACA Phase II Subcommittee Small Construction and No Exposure Sites Work Group, and NAHB's own submission of detailed comments on the proposed Rule, NAHB failed to enter into the administrative record any study contradicting the proposition that small construction sites cause water quality problems. NRDC points to the record's showing that NAHB had itself proposed that regulation of construction sites of two acres or greater was appropriate, and contends that this is thus not a dispute over whether small construction sites should be regulated on a nationwide basis, but instead a technical disagreement over whether EPA should establish a one-acre threshold or a different threshold on a similar small scale.
. Whitney Brown and Deborah Caraco, Controlling Stormwater Runoff Discharges from Small Construction Sites: A National Review, Task 5 Final Report submitted by the Center for Watershed Protection to the EPA Office of Wastewater Management, March 1997, IP E.R. 633, 643.
. EPA adds that operators of small sites in areas unlikely to suffer adverse impacts may apply for a permit waiver if little or no rainfall is expected during the period of construction (the "rainfall erosivity waiver”) or if regulation is unnecessary based on a location-specific evaluation of water quality (the "water quality waiver”). 64 Fed.Reg. at 68,776.
. EPA also implies permission to regulate for potential cumulative impacts of small sites from the past directive of this court. When the Phase I industrial discharge regulations were challenged, we found no record data to support that rule’s exemption of construction activities on less than five acres and held that small sites did not categorically qualify for a
. The "substantial evidence” standard requires a showing of such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Edlund v. Massanari,
. EPA further argues that even if the waiver provision were properly characterized as an evidentiary presumption, it should be sustained because the record demonstrates that the presumed fact of the water quality impact of small sites is more likely true than not.
. EPA notes that the Phase II Rule empowers regional permitting authorities to regulate local sources of these types known to be responsible for harmful water quality impacts via the continuing "residual designation” authority (an aspect of the Rule that Petitioners also challenge).
. TMDLs are pollutant loading limits established by NPDES permitting authorities under the Clean Water Act for waters that do not meet a water quality standard due to the presence of a pollutant. See
. This section enables a NPDES permitting authority to designate for regulation: "[a] discharge for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of.the United States.”
. Notably, Industry Petitioner NAHB itself took the position during Phase II Subcommittee proceedings that the power to designate additional sources survived the promulgation of the Phase II Rule. In a 1996 comment letter to EPA, NAHB asserted its understanding that "[t]he permitting authority still reserves the right to designate additional sources if they are shown to be a contributor of water quality impairment.” NRDC Supplemental Excerpts of Record at 58.
. The full text of § 402(p)(6), which specifically authorizes the Phase II program, reads: “Not later than October 1, 1993, the Administrator, in consultation with State and local officials, shall issue regulations (based on the results of the studies conducted under paragraph (5)) which designate stormwater discharges, other than those discharges described in paragraph (2), to be regulated to protect water quality and shall establish a comprehensive program to regulate such designated sources. The program shall, at a minimum, (A) establish priorities, (B) establish requirements for State stormwater management programs, and (C) establish expeditious deadlines. The program may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.”
.Petitioners further argue that even if EPA could preserve the case-by-case authority conferred in § 402(p)(2)(E), that section confers authority only to regulate "a discharge” determined to threaten water quality, not a category of discharges. However, we agree with respondent-intervenor NRDC’s argument that § 402(p)(2)(E) does not preclude EPA from designating entire categories of sources. Petitioners’ argument follows from its reliance on the fact that § 402(p)(2)(E) refers to "discharge” in the singular rather than the plural to conclude that EPA may only designate sources meeting the § 402(p)(2)(E) description on a case-by-case basis. But all five of the § 402(p)(2)(5) categories refer to "discharge” in the singular, even in reference to discharges clearly intended for categorical regulation, like "a discharge from a municipal separate storm sewer system serving a population of 250,000 or more.”
. This case was reversed in relevant part by the Supreme Court in Whitman v. Am. Trucking Ass’ns,
. "[TJoday’s proposal would encourage [voluntary] control of stormwater discharges ... unless the discharge (or category of discharges) is individually or locally designated as described in the following section. The necessary data to support designation could be available on a local, regional, or watershed basis and would allow the NPDES permitting authority to designate a category of sources or individual sources on a case-by-case basis. If sufficient nationwide data[becomes] available in the future, EPA could at that time designate additional categories of industrial or commercial sources on a national basis. EPA requests comment on the three-pronged analysis used to assess the need to designate additional industrial or commercial sources and invites suggestions regarding watershed-based designation.” 63 Fed.Reg. at 1588.
. Our consideration of the issue at all may be gratuitous, since petitioners failed to submit timely comment disputing the adequacy of EPA's consideration of economic impacts on small businesses proposed at 63 Fed.Reg. at 1605-07. United States v. L.A. Tucker Truck Lines,
Concurrence in Part
concurring in part and dissenting in part:
I concur in some of the Court’s conclusions, but I respectfully disagree with two significant sections of the majority’s opinion. I cannot agree with Section II.A.2, which upholds the constitutionality of the Environmental Protection Agency’s (“EPA”) final administrative rule (the “Phase II Rule”), § 402(p) of the Clean Water Act,
I also dissent from Section II.B of the majority’s opinion, which remands the Phase II Rule because its system of general permits is “arbitrary and capricious.” I believe EPA’s design of a system of general permits supported by notices of intent was a reasonable exercise of EPA’s administrative discretion.
I
No party disputes that the Phase II Rule is a federal regulatory scheme to be carried out by the states. At issue, however, is whether the states are being compelled to enact that scheme, whether the scheme requires the states to regulate third parties, and whether the Alternative Permit Option saves such regulation by creating a constitutionally sound alternative. The Court holds that the states are not compelled to regulate here because they have two choices: to stop municipal stormwater from discharging into federal waters, or to stop third parties from dis
The states cannot choose to stop storm-water from entering federal waters, nor can they stop third parties or Mother Nature from discharging into municipal stormwater systems. To implement the scheme under the Phase II Rule, municipalities must regulate their citizens and businesses to ensure that the stormwater they discharge meets the pollutant standards of the Clean Water Act. The states are therefore being compelled to regulate third parties in furtherance of a federal regulatory scheme. The Alternative Permit Option is qualitatively indistinguishable.
A
Congress has the power to regulate pollutants in navigable waters under Article I of the Constitution, and may lawfully delegate that regulatory function to EPA. The regulatory power of EPA, however, is limited by the Residual Powers Clause of the Tenth Amendment, which states that “[t]he 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. See United States v. Darby,
We must examine United States Supreme Court case law to decide upon the appropriate division between state and federal spheres of power. The Supreme Court has made it clear that “Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States.” New York v. United States,
The federal government may persuade the states to adopt a regulatory scheme in a preempted field, but such persuasion must stop short of coercion. See South Dakota v. Dole,
Contrary to the majority’s conclusion, the “choice” not to discharge differs substantially from the choice the states faced in Hodel. In Hodel, the Supreme Court held that the states were not compelled “in any manner whatsoever” because if the states chose not to regulate, “the full regulatory burden will be borne by the Federal Government.”
While the case at hand is clearly distinguishable from Hodel, it is strikingly analogous to our decision in Brown. The Phase II Rule bears a strong resemblance to the Forest Resources Conservation and Shortage Relief Act that we found to be coercive in Brown. The challenged legislation in Brown contained a provision that called for the states to issue regulations in accordance with an export ban on timber from federal lands. In Brown, we considered an argument much like that presented here: that Washington State was making a “choice” because it had the option to halt all sales of timber. Following the Supreme Court’s decision in New York, we held that this was a Hobson’s choice and that Congress did not have the authority to command such an option. Brown,
B
The Phase II Rule also violates the Tenth Amendment by requiring the states to regulate third parties. As stated above, the federal government may not force the states to use their sovereign power to address federal issues. See Printz,
The majority concedes that the Construction Measure,
The Illicit Discharge Measure does so by requiring the states to prohibit illicit discharge “through ordinance, or other regulatory mechanism .... ”
We need not consider such options, however, in determining if the Construction Site Measure requires municipalities to regulate third parties. The majority concedes that the language of the Construction Site Measure requires such regulation outright. It does so by mandating MS4s to develop and promulgate “requirements for construction site operators to implement appropriate erosion and sediment control[and] to control waste .... ”
C
Finally, the Court holds that the states are not compelled under the Phase II Rule because the Alternative Permit Option provides a constitutional choice for the states. Majority Op. at 416-417. I disagree. The Alternative Permit Option is not qualitatively different from the Phase II General Permit Option described above.
Under the Alternative Permit Option of the Phase II Rule, a permit applicant may also seek a permit under the previous Phase I Rule.
Subsection (D) calls for municipalities to submit a program to “implement and maintain structural and non-structural
D
While I concede that one of our most difficult judicial undertakings may be to determine the appropriate exercise of state and federal power, I would hold in this case that the three contested Minimum Measures unconstitutionally compel the states to adopt a federal program that requires the states to regulate third parties, and that the Alternative Permit Option is similarly flawed. Because the Phase II Rule violates the principles of federalism embodied in the Tenth Amendment, I respectfully dissent.
II
I also cannot agree with Section II.B of the Court’s opinion, which remands the Phase II Rule because EPA acted arbitrarily and capriciously in creating a general permitting system supported by notices of intent (“NOIs”). Majority Op. at 423. This Court must give deference to EPA’s interpretation of the laws it is charged with enforcing, so long as EPA’s reading of those laws is permissible. Because EPA acted reasonably in designing a National Pollutant Discharge Elimination System (“NPDES”) based on general permits and supported by NOIs, I respectfully dissent from the Court’s decision to remand this portion of the Phase II Rule.
A
As the majority concedes, we evaluate EPA’s interpretation of the Clean Water Act with deference. Majority Op. at 428. If Congress’s intent is unclear as to whether a system of general permits supplemented by NOIs is allowed, we simply ask “whether EPA’s interpretation is permissible.” Ober v. Whitman,
B
As an initial matter, then, we must ask if Congress was clear in its intent concerning the propriety of a system of general permits augmented by NOIs.
Five legislative commands guide this inquiry. First,
Second,
Third,
Fourth, the Clean Water Act mandates that “a copy of each permit application and each permit issued under” the NPDES permitting program be made availablé to the public for inspection and photocopying.
And fifth, the Clean Water Act authorizes the issuance of an NPDES “permit” “after opportunity for public hearing.”
In short, the Clean Water Act fails to address the propriety of a general permit system, or whether NOIs ought to be considered “permits.” Therefore, EPA’s creation of a system of general permits buttressed by NOIs should be upheld by this Court so long as it is “permissible.” See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
The central issues regarding EPA’s general permit system are whether the Clean Water Act allows such a system and whether NOIs should be considered “permits.” The resolution of these issues requires a complicated weighing of policies (e.g., administrative streamlining vs. robust inquiry) that is precisely what agencies are designed to do and courts are without the resources or expertise to do. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction.” Chevron,
C
The Phase II Rule promulgates a system of general permits. EPA contemplated that these general permits will be issued on a watershed basis, with individual stormwater dischargers then filing NOIs to operate under general permits. The federal regulations implementing this system repeatedly emphasize that “[t]he use of general permits, instead of individual permits, reduces the administrative burden of permitting authorities, while also limiting the paperwork burden on regulated parties.” 64 Fed.Reg. 68,722, 68,737, 68,762 (Dec. 8,1999).
The use of a general permit system for the administration of the NPDES system has been considered and approved before. In NRDC v. Costle,
Against this backdrop, EPA’s creation of a general permit system was entirely permissible. And if the creation of a general permit system is permissible, then it does not matter whether NOIs are given a public airing.
The majority contends that the general permit system prevents EPA from fulfilling its duty to make sure that municipalities do not discharge pollutants in violation of the Clean Water Act. The majority reasons that by failing to require EPA review of NOIs, the Rule fails to ensure that a regulated MS4’s stormwater pollution control program will satisfy the Clean Water Act requirement that the MS4 “reduce the discharge to the maximum extent practicable.” Majority Op. at 427. But the majority’s analysis ignores the effects of the general permit. By filing an NOI, a dis-charger obligates itself to comply with the limitations and controls imposed by the general permit under which it intends to operate. EPA mandates that all permits (including general permits) condition their issuance on satisfaction of pollution limitations imposed by the Clean Water Act.
The Court also objects to EPA’s general permit system because it fails to allow for sufficient public participation in the NOIs. Majority Op. at 427-428. The majority’s position fails to give deference to EPA and imposes the majority’s own wishes instead. EPA would have been justified in creating a system entirely reliant on general or area permits. Its imposition of NOIs is an indulgence to certain policy prerogatives, namely public involvement and the collection of additional information. But the power to create a general permit system necessarily implies the power to require subordinate steps for NOIs that do not quite reach the level of inquiry associated with actual permits.
D
We function as an adjudicator of disputes, not as a policymaking body. Where an agency promulgates rules after a deliberative process, it is incumbent upon us to respect the agency’s decisions or else risk trivializing the function of that agency. In this case, EPA made a permissible decision to create a general permit program supported by NOIs. Therefore, I also respectfully dissent from Section II.B of the Court’s opinion.
. The majority also contends that EPA’s interference with state sovereignty is permissible because the Phase II Rule is a rule of general applicability. While I agree with this classification of the Phase II Rule, I disagree that it has any bearing on the outcome here because the question of coercion is a threshold determination. Both of the Supreme Court cases cited by the majority as examples of the rule of general applicability exception specifically mention the voluntary participation of the states in a field of federal preemption. See Condon,