United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


             Argued September 11, 1997 Decided November 4, 1997 


                                 No. 96-5366


                    National Wildlife Federation, et al., 

                                  Appellants


                                      v.


                              Carol M. Browner, 

                  In her official capacity as Administrator,

                  U.S. Environmental Protection Agency and 

         Valdas V. Adamkus, In his official capacity as Regional 
         
                Administrator, U.S. Environmental Protection

                              Agency, Region V, 

                                  Appellees


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 95cv01811)


     Neil S. Kagan argued the cause for appellants, with whom 
Glenn P. Sugameli was on the briefs.



     John A. Bryson, Attorney, U.S. Department of Justice, 
argued the cause for appellees, with whom Lois J. Schiffer, 
Assistant Attorney General, and David C. Shilton, Attorney, 
were on the brief.

     Before:  Silberman, Rogers and Tatel, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Rogers.

     Rogers, Circuit Judge:  The National Wildlife Federation 
and others 1 appeal from the judgment dismissing its citizen 
suit under the Clean Water Act and denying its motion for 
summary judgment.  The Federation sought to compel the 
Environmental Protection Agency to review and evaluate 
certain water quality standards.  In view of the deference due 
to the agency's interpretation of its regulations, we find no 
merit to the Federation's contention that under the regula- tions the agency had a nondiscretionary duty to act, and 
accordingly, we affirm.

                                      I.


     The Clean Water Act ("the Act") requires states to estab- lish water quality standards for every body of water within a 
state.  See 33 U.S.C. s 1313 (1988).  These standards include 
three components:  (1) designated uses for each body of 
water, such as recreational, agricultural, or industrial uses;  
(2) specific limits on the levels of pollutants necessary to 
protect those designated uses;  and (3) an antidegradation 
policy designed to protect existing uses and preserve the 
present condition of the waters.  See 40 C.F.R. ss 131.10-.12 
(1996).  The antidegradation policy is further divided into 
three general levels of protection.  "Tier I" establishes the 
minimum level of water quality that must be maintained in 
every body of water.  See id. s 131.12(a)(1).  "Tier II" ap- plies to waters whose quality already exceeds the level "nec- essary to support propagation of fish, shellfish, and wildlife 
and recreation in and on the water," and only allows a 

__________
     1  Appellants are the National Wildlife Federation, Great Lakes 
United, and Michigan United Conservation Clubs.  For ease of 
reference we refer hereinafter to appellants as "the Federation."



reduction in quality when "necessary to accommodate impor- tant economic or social development."  Id. s 131.12(a)(2).  
For certain high quality bodies of water, "Tier III" prohibits 
any degradation of existing water quality standards with a 
limited exception for short-term or temporary changes in 
quality.  See id. s 131.12(a)(3);  Water Quality Standards 
Regulation, 48 Fed. Reg. 51,400, 51,403 (1983) (preamble).  
Waters falling into Tier III are designated "outstanding 
National resource waters" ("ONRW").   Id.

     The Act requires states to review their water quality 
standards at least once every three years (a "triennial re- view").  See 33 U.S.C. s 1313(c)(1) (1988).  They must submit 
the results of this review to the Environmental Protection 
Agency ("EPA").  See id.  EPA is then responsible for 
reviewing any new or revised standards adopted by the states 
to determine if the standards are consistent with the Act and 
EPA regulations promulgated under the Act. See id. 
s 1313(c)(2)(A), (c)(3).  If EPA disapproves the standards, 
the state has ninety days to correct the deficiencies else EPA 
must promulgate its own standards for the state.  See id. 
s 1313(c)(3), (4).

     Under Michigan's existing water quality standards, Lake 
Superior was in a special category created for the protection 
of the Great Lakes, called "outstanding state resource wa- ters."  See Mich. Envtl., Health & Safety Regs. rule 
323.1098(7) (1996).  The standards for this category are more 
stringent than those required by EPA under its "Tier II" 
classification and correspond to a "Tier II1/2" level recognized 
by EPA "to provide a very high level of water quality 
protection without precluding unforeseen future economic and 
social development considerations."  Environmental Protec- tion Agency, Water Quality Standards Handbook s 4.2, at 4- 2 (2d ed. 1994) (hereinafter Water Quality Standards Hand- book or Handbook).  Nevertheless, in October 1994, the 
Federation formally petitioned the state of Michigan to desig- nate the lake an ONRW subject to the highest level of 



antidegradation protection.2  The Federation also asked 
Michigan to consider its request as part of the state's current 
triennial review and to seek public comment on the issue.  On 
February 23, 1995, Michigan denied the Federation's petition 
on the ground that the state "does not think that it is 
appropriate or necessary to hold public hearings to discuss 
your request ... since we do not intend to proceed with the 
designation."

     The Federation thereafter filed a citizen suit against EPA 
under 33 U.S.C. s 1365(a) for its failure to review Michigan's 
denial of the Federation's petition.  The first count of the 
complaint, the only one at issue, claimed that EPA was under 
a mandatory duty to review and either approve or disapprove 
of state decisions to maintain existing water quality stan- dards, as well as state decisions to adopt new or revised 
standards.3  This duty allegedly arose under both the Act and 
EPA's regulations.  The Federation argued that Michigan's 
rejection of its petition constituted the completion of the 
state's review of water quality standards for Lake Superior, 
and that its failure to submit this decision to EPA was a 

__________
     2  The Federation also petitioned the states of Minnesota and 
Wisconsin to designate Lake Superior as an ONRW, and requested 
a similar designation from the Canadian province of Ontario.  
Minnesota and Wisconsin are currently conducting their review of 
the lake's water quality standards and are not involved in the 
instant case.  Canada's response is not revealed in the record.

     3  Only Count I of the complaint is at issue in the instant appeal.  
Count II alleged that EPA had a mandatory duty under the Act to 
designate Lake Superior as an ONRW despite the state refusal, a 
claim the Federation does not pursue on appeal.  Counts III and 
IV, brought under the Administrative Procedure Act, alleged that 
EPA's failure to review Michigan's decision was arbitrary and 
capricious and that EPA's inaction amounted to action unlawfully 
withheld and unreasonably delayed.  The district court dismissed 
both of these counts without prejudice because the Federation had 
not exhausted its administrative remedies and, hence, there was no 
final agency action to review under 5 U.S.C. s 704.  See National 
Wildlife Fed'n v. Browner, No. 95-1811, 1996 WL 601451, at *6 
(D.D.C. Oct. 11, 1996).



"constructive submission" of existing water quality standards 
for the lake, thereby triggering EPA's mandatory duty of 
review.

     EPA moved to dismiss the complaint for lack of subject 
matter jurisdiction and for failure to state a claim.  The 
Federation, in turn, moved for summary judgment.  The 
district court granted EPA's motion to dismiss, ruling that 
neither the Act nor the regulations imposed a nondiscretion- ary duty on EPA to review the state's decision to deny the 
Federation's petition, and therefore, the citizen suit could not 
be maintained.  See National Wildlife Fed'n, 1996 WL 
601451, at *12-*14.  The court consequently denied the Fed- eration's motion for summary judgment.

                                     II.


     The citizen suit provision of the Clean Water Act allows 
private individuals to sue EPA in federal district court "where 
there is alleged a failure of the Administrator [of EPA] to 
perform any act or duty under [the Act] which is not discre- tionary with the Administrator."  33 U.S.C. s 1365(a)(2) 
(1988).  On appeal, the Federation has abandoned its claim 
that the Act imposes a mandatory duty on EPA and instead 
focuses solely on EPA's regulations.  The primary issue on 
appeal, therefore, is whether the district court correctly ruled 
that EPA's regulations did not impose a mandatory duty on 
the agency to review and evaluate Michigan's denial of the 
Federation's petition.4  Our review of the dismissal of a 
complaint and denial of summary judgment is de novo.  See 
Waterview Mgmt. Co. v. FDIC, 105 F.3d 696, 699 (D.C. Cir. 
1997);  Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). __________
     4  Although EPA moved to dismiss the complaint for lack of 
subject matter jurisdiction, see Miccosukee Tribe of Indians v. 
United States, 105 F.3d 599, 602 (11th Cir. 1997), in addition to 
failure to state a claim, the district court invoked Fed. R. Civ. P. 
12(b)(6) and its dismissal was based on its conclusion that the 
Federation had failed to satisfy one element of its cause of action.  
Hence we are not confronted with the issue addressed by the 
Eleventh Circuit.  Id. at 603.



     The Federation contends that EPA has a mandatory duty 
to review Michigan's denial of its petition under 40 C.F.R. 
s 131.20(c), which provides in pertinent part:

     The State shall submit the results of the [triennial] 
     review ... and any revisions of the standards to the 
     Regional Administrator for review and approval, within 
     30 days of the final State action to adopt and certify the 
     revised standard, or if no revisions are made as a result 
     of the review, within 30 days of the completion of the 
     review. 40 C.F.R. s 131.20(c) (1996) (emphasis added).  The Federa- tion maintains that the phrase "for review and approval" 
applies regardless of whether the state has adopted any new 
or revised standards.  EPA interprets the regulation to mean 
that while states must submit both revised and unrevised 
standards, the agency is only required to approve or disap- prove modifications to the standards.  In EPA's view, the 
Federation provides no reason for its broader reading to 
include all previously approved but unchanged water quality 
standards.  Consequently, EPA contends, its decision to eval- uate existing state water quality standards is purely discre- tionary.

     As a preliminary matter, EPA maintains that district 
courts lack jurisdiction under the citizen suit provision to 
enforce "obligations created by regulations."  The agency 
interprets the citizen suit provision narrowly, to allow only for 
suits to enforce nondiscretionary duties that are explicitly 
established in the Act. We need not decide this question,5 
however, because even assuming that mandatory regulatory 
duties can provide the bases for citizen suits, no such duty 
exists here.6 __________
     5  EPA's contention that only a duty imposed by the Clean 
Water Act itself can support a citizen suit appears to be an issue of 
first impression in the federal courts.  EPA relies on dicta in a 
footnote in Maine v. Thomas, 874 F.2d 883, 888 n.7 (1st Cir. 1989).

     6  We also do not decide whether, as EPA contends, a "readily- ascertainable deadline" for agency action is a necessary jurisdiction-



     EPA interprets 40 C.F.R. s 131.20(c) to impose no manda- tory duty of review over existing water quality standards.  
Focusing on the fact that the Act itself only imposes a 
mandatory duty on the agency to review and approve or 
disapprove new or revised standards, 33 U.S.C. s 1313(c)(3), 
EPA contends that the regulation is focused on the duties of 
the states, not the agency, and that there is no evidence to 
suggest that the agency intended to expand its statutory 
mandatory duties in promulgating the regulation.  Generally, 
the court accords substantial deference to an agency's inter- pretations of its own regulations.  See Auer v. Robbins, 117 
S. Ct. 905, 911 (1997);  Thomas Jefferson Univ. v. Shalala, 
512 U.S. 504, 512 (1994).  Provided the interpretation "does 
not violate the Constitution or a federal statute, it must be 
given 'controlling weight unless it is plainly erroneous or 
inconsistent with the regulation.' "  Stinson v. United States, 
508 U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & 
Sand Co., 325 U.S. 410, 414 (1945)).

     The Federation's contention that the court should not defer 
to EPA's interpretation of this regulation because it is "no 
more than a convenient litigating position" is unpersuasive.  
The mere fact that an agency offers its interpretation in the 
course of litigation does not automatically preclude deference 
to the agency.  It is true that "agency 'litigating positions' are 
not entitled to deference when they are merely appellate 
counsel's 'post hoc rationalizations' for agency action, ad- vanced for the first time in the reviewing court."  Martin v. 
Occupational Safety & Health Review Comm'n, 499 U.S. 144, 
156 (1991).  This reluctance to defer to agency counsel stems 
from two concerns.  First, appellate counsel's interpretation 
may not reflect the views of the agency itself.  See FLRA v. 
United States Dep't of Treasury, 884 F.2d 1446, 1455 (D.C. 
Cir. 1989).  Second, it is likely that "a position established 
only in litigation may have been developed hastily, or under 
special pressure," and is not the result of the agency's 
deliberative processes.  FLRA, 884 F.2d at 1455;  see also 

__________ al base for a citizen suit under the Act.  Cf. Sierra Club v. Thomas, 
828 F.2d 783, 791 (D.C. Cir. 1987) (Clean Air Act).



Church of Scientology v. IRS, 792 F.2d 153, 165 (D.C. Cir. 
1986) (en banc) (Silberman, J. concurring).  However, as the 
Supreme Court has recently affirmed, deference to an inter- pretation offered in the course of litigation is still proper as 
long as it reflects the "agency's fair and considered judgment 
on the matter."  Auer, 117 S. Ct. at 912;  accord Tax Ana- lysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997).

     There is no reason to suspect that EPA's interpretation of 
40 C.F.R. s 131.20(c) represents anything less than the agen- cy's considered opinion.  While the Federation claims that 
EPA has never explicitly interpreted this regulation in a prior 
agency adjudication or rulemaking, there is nothing to sug- gest that the agency has ever before had any reason to 
address the issue.  See General Servs. Admin. v. FLRA, 86 
F.3d 1185, 1188 (D.C. Cir. 1996).  Nor does the Federation 
offer evidence that EPA has ever adopted a different inter- pretation of the regulation or contradicted its position on 
appeal.  To the contrary, several passages in an official 
agency document support EPA's contention that in practice it 
has, at least implicitly, followed the same interpretation that 
it advances on appeal.  EPA's Water Quality Handbook 
includes a flowchart outlining the "EPA Water Quality Stan- dards [WQS] Review Process."  Handbook s 6.2, at 6-9 fig. 
6-2.  The directions in the chart state that after a "State 
Adopts or Revises WQS," it "Submits Revisions, Methods, 
Justifications ... to [the] Regional Administrator for Re- view," and the Administrator then approves or disapproves of 
the revisions.  Id.  No similar procedure is outlined for the 
review and evaluation of a state's existing water quality 
standards.  The Handbook's overall structure and content 
thereby suggest that in the past EPA has interpreted the 
regulation in the same manner as it does in the instant 
appeal.  Absent any showing to the contrary, EPA's interpre- tation is entitled to deference if it is reasonable.

     The Federation's challenge to EPA's interpretation of its 
regulation rests entirely on a textual analysis of 40 C.F.R. 
s 131.20.  Essentially, the Federation views the phrase "for 
review and approval" as modifying all of the preceding claus- es in the sentence.  40 C.F.R. s 131.20(c) (1996).  It main-



tains that the regulation thus requires states to submit the 
results of their triennial reviews to EPA and the agency to 
approve or disapprove them regardless of whether there are 
any new or revised standards.  Reading this sentence differ- ently, EPA contends that the phrase, and thus the duty of 
approval, only refers to the immediately preceding phrase 
"any revisions of the standards."  Id.  Even if the Federation 
might have the better reading of the text, this awkwardly 
drafted regulation is capable of supporting either interpreta- tion.  The Federation's interpretation of s 131.20 is not "com- pelled by the regulation's plain language," Gardebring v. 
Jenkins, 485 U.S. 415, 430 (1988), and nothing in the record 
indicates that such an interpretation of s 131.20 was intended 
by EPA.7  Cf. id.

     Although the Federation presents a colorable construction 
of s 131.20 viewed in isolation, EPA's interpretation is emi- nently reasonable in light of the structure and purpose of the 
water quality standard regulations taken as a whole.   See 
Adams Telecom, Inc. v. FCC, 38 F.3d 576, 580 (D.C. Cir. 
1994);  cf. Crandon v. United States, 494 U.S. 152, 158 (1990);  
Tataranowicz v. Sullivan, 959 F.2d 268, 275-77 (D.C. Cir. 
1992).  EPA concedes that states are required to submit 
existing water quality standards to the EPA upon completion 

__________
     7  To support its interpretation of the regulation, the Federation 
points to 40 C.F.R. s 131.5, which supplies "benchmarks" by which 
EPA will review submitted water quality standards.  This regula- tion does not explicitly distinguish between revised or existing 
standards, and is worded generally to apply to all "State-adopted 
water quality standards" reviewed by EPA.  40 C.F.R. s 131.5(a) 
(1996).  However, these "benchmarks" merely describe the criteria 
to be used by EPA when it does review state standards without 
addressing when EPA must review those standards.  No more 
persuasive is the Federation's reliance on the fact that the final rule 
contained a change in the language of s 131.20(a) to require states 
to review "all" water quality standards during their triennial re- views, see Water Quality Standards Regulation, 48 Fed. Reg. at 
51403, since this change addressed the extent of the state triennial 
review process and sheds no light on the subsequent duties of EPA 
in reviewing the results of that process.  See id.



of a triennial review.  EPA, however, is not automatically 
required under the Act to review and approve those stan- dards.  Instead, EPA observes, the agency is granted discre- tionary authority under s 303(c)(4)(B) of the Act to force a 
state to accept "a revised or new standard ... [if] necessary 
to meet the requirements of" the Act.  33 U.S.C. 
s 1313(c)(4)(B) (1988).  This discretionary power is reflected 
as well in the agency's regulations.  See 40 C.F.R. s 131.22(b) 
(1996).  Therefore, under s 131.20 of the regulations states 
are only required to submit existing water quality standards 
to EPA to enable it to make an informed decision about 
whether to exercise its discretion to supplant the state stan- dards.

     EPA points to other regulations as aids in clarifying the 
agency's responsibilities, focusing primarily on s 131.21(a), on 
which the district court had relied.  This section, entitled 
"EPA review and approval of water quality standards," pro- vides:

     After the State submits its officially adopted revisions, 
     the Regional Administrator shall either:

          (1) Notify the State within 60 days that the revisions 
          are approved, or

          (2) Notify the State within 90 days that the revisions 
          are disapproved. 40 C.F.R. s 131.21(a) (1996) (emphasis added).  EPA con- tends that the "clear import of these provisions" is that its 
duty to approve or disapprove of water quality standards is 
limited to "revisions" of state standards.  Even if EPA may 
overstate the clarity of this regulation, it does lend support to 
the agency's interpretation of s 131.20.  While establishing 
deadlines for the agency's approval of revised standards, 
s 131.21(a) contains no similar provision relating to the re- view of existing water quality standards.  If, as the Federa- tion contends, the agency were under a nondiscretionary duty 
to evaluate both existing and revised standards, presumably 
the regulations would provide deadlines for that review as 
well.  Further, EPA suggests, were it required to review 
every state's decision within the time frames that the Federa-



tion maintains are required, it "would be overwhelmed by the 
vast scope of such an obligation," contrary to the legislative 
scheme reserving to EPA a discretionary decision whether to 
force a state to change its standard.

     Finally, the Federation's contention that EPA's interpreta- tion of the water quality regulations will upset the balance 
between state and federal environmental authorities intended 
by Congress in enacting the Clean Water Act is also unper- suasive.  The Federation maintains that absent a mandatory 
duty on the part of EPA to review and to approve or 
disapprove existing standards, states could frustrate the goals 
of the Act by refusing to revise their water quality standards 
at all.  Yet this position fails to take into account EPA's 
statutory authority to promulgate its own water quality stan- dards for a recalcitrant state.  See 33 U.S.C. s 1313(c)(4)(B) 
(1988);  40 C.F.R. s 131.22(b) (1996).  In the event a state 
refuses to make any revisions after completing its triennial 
review, or fails to conduct a review of its water quality 
standards within a three year period, EPA retains discretion 
to take appropriate action after reviewing the state's submis- sions.  If EPA subsequently failed to review the existing 
water standards of a delinquent state, the Federation would 
not be without legal recourse.  Although it would not be able 
to bring a citizen suit, it could still sue EPA under the 
Administrative Procedure Act to compel the agency to act.  
See 5 U.S.C. ss 702, 706 (1988);  supra note 3.  Under these 
circumstances, EPA's refusal to exercise its discretion might 
constitute an action "unreasonably delayed" or considered to 
be "arbitrary, capricious, [or] an abuse of discretion."  Id. 
s 706(1), (2)(A).

     Because EPA's interpretation of its water quality standards 
regulations is neither "plainly erroneous" nor "inconsistent 
with the regulation," Bowles v. Seminole Rock & Sand Co., 
325 U.S. 410, 414 (1945), the court must defer to the agency's 
interpretation and therefore conclude that the regulations do 
not impose a mandatory duty on EPA to approve water 
quality standards that a state leaves unmodified after comple-



tion of its triennial review.8  Accordingly, we affirm the 
judgment dismissing the Federation's citizen suit and denying 
its motion for summary judgment. __________
     8  Because we hold that EPA is not under a mandatory duty to 
review and evaluate existing (i.e., non-new and non-revised) water 
quality standards submitted by the states, we need not address the 
Federation's contention that the court should adopt a theory of 
"constructive submission" for circumstances where states have 
failed to submit their water quality standards to EPA.  See Scott v. 
City of Hammond, 741 F.2d 992, 996-98 (7th Cir. 1984).