*1 summary judg- motion for and Newman’s

ment. ALLI-

KENTUCKY WATERWAYS

ANCE; Club Cumberland Sierra

Chapter; for the Com- Kentuckians

monwealth; Floyds Fork Environ- Association, Plaintiffs-Appel-

mental

lants, JOHNSON,

Stephen L. in his official as Administrator Unit- Protection

ed States Environmental Defendant-Appellee,

Agency, Kentucky; Kentucky

Commonwealth of Association; Associated Indus-

Coal Kentucky; Kentucky

tries of Chamber Commerce; Kentucky League

Cities, Intervening Defendants-Appel-

lees.

No. 06-5614. Appeals,

United States Court of

Sixth Circuit.

Argued: Jan. 2008. Sept.

Decided and Filed: 2008.

Rehearing Denied Oct. *3 F. Ettinger,

ARGUED: Albert Envi- Center, Policy Chicago, ronmental Law & Lund- OPINION Illinois, Robert J. Appellants. .for Justice, man, Department United States CLAY, Judge. Circuit D.C., ON Appellees. Washington, Plaintiffs, Kentucky Waterways Alli- Ettinger, Environmen- BRIEF: Albert F. ance, Chapter, Sierra Club Cumberland Illinois, Center, Law & Policy Chicago, tal Commonwealth, Kentuckians for the FitzGerald, Kentucky Re- Thomas J. Association, Floyds Fork Environmental Inc., Frankfort, Council, Ken- sources grant the district of sum- appeal court’s Lund- Robert J. tucky, Appellants. Defendants, mary judgment favor of Justice, man, Department United States Johnson, Stephen L. in his official D.C., Vriesenga, R. Washington, Sharon *4 of the United En- as Administrator States Lowe, Kentucky Environmen- Brenda Gail (“EPA”), Agency vironmental Protection Cabinet, Frank- and Public Protection tal Kentucky, of the Ken- Commonwealth fort, Kentucky, Timothy Hagerty, J. Frost Association, tucky Associated Indus- Coal Louisville, Todd, LLC, Kentucky, Brown Kentucky, Kentucky tries of Chamber Brown, Bender, Carolyn M. John C. Commerce, Kentucky League of of McDonald, PLLC, Greenebaum, Doll & Cities, challenge, brought on Plaintiffs’ Riddle, Lexington, Kentucky, Mark S. pursuant to the Administrative Procedures McDonald, PLLC, Greenebaum, Doll & (“APA”), (2000), seq. 701 et § Act 5 U.S.C. Halliday, Louisville, Kentucky, Culver V. 303(c) § approval, of the EPA’s under of Williams, Ogden, Keenon 1313(c) T. Stoll Act, § Kenneth the Clean Water 33 U.S.C. Louisville, PLLC, Kentucky, (2000), Ronald R. Kentucky’s regulatory implemen- of Stockum, Jr., Louisville, quality tation of its Tier II water antide- Kentucky, Van gradation rules. For the reasons set forth Reuther, Appellees. Kevin Minnesota I, II, opinion in and III-A of this parts Advocacy, St. for Environmental Center expressed Judge as for the reasons in well Stoner, Paul, Minnesota, Nancy K. Natu- concurring opinion, AFFIRM in Cook’s we Council, Inc., ral Resources Defense part part and REVERSE the district D.C., Raettig, Karla Michele Washington, order, opinion court’s VACATE Merkel, Integrity Project, Environmental part the EPA’s Brown, D.C., Washington, Long, Scott L. rules, and RE- Graves, Gross, Winick, Baskerville & MAND the matter to the for further Schoenebaum, Moines, Iowa, Ami- Des opin- proceedings consistent with these ci Curiae. ions.1 COOK, SILER, CLAY, and Before: I. BACKGROUND Judges. Circuit Statutory Regulatory

A. Frame- work CLAY, J., opinion delivered 490-94), COOK, (pp. delivered court. J. The Federal Water Pollution Control in a opinion Act, the remainder of the court’s commonly as the Water known Clean seq., 1251 et (“CWA”), concurring opinion, § which “is separate Act 33 U.S.C. SILER, J., comprehensive quality statute de- joined. opinion. concurring Part III-B of this opinion contains the Cook's 1. Part III-A of this respect holding with to Plaintiffs' first Judge Clay Court's opinion expresses the views of holding respect argument. Court’s only. Judge claim is set forth in to Plaintiffs second 470 1342(a)-(d). agency. 33 maintain the chemi state U.S.C. to ‘restore and

signed Kentucky The EPA has authorized to is- cal, biological integrity of the physical, and ” permits for within the 1 sue NPDES waters waters.’ PUD No. Nation’s of Jeffer Commonwealth, Ken- Approval see Dept. Ecology, 511 County son v. Wash. Program, Fed.Reg. 700, 704, tucky’s L.Ed.2d NPDES 48 114 S.Ct. U.S. 1251(a)). (Oct. 45,597 6, 1983), (1994) program under a re- 33 U.S.C. (quoting CWA, Dis- to ferred to as the Pollution Congress sought passing (“KPDES”). charge System Elimination discharge pollutants into eliminate “the (2007). Regs. Admin. 5:050 navigable waters”2 and to the [nation’s] goal quality of water attain “an interim Second, “requires the CWA provides for the which State, subject approval, to federal each fish, shellfish, and propagation of wildlife.” comprehensive institute 1251(a)(1)-(2). 33 U.S.C. establishing quality goals standards goals, “pro- for all intrastate waters.” PUD No. To achieve these CWA 704, 114 County, meas- 511 U.S. at vides for two sets water Jefferson Oklahoma, (citing L.Ed.2d 716 ures.” Arkansas v. 503 U.S. S.Ct. *5 1313). 1311(b)(1)(C), 91, 101, 1046, §§ 112 117 L.Ed.2d 239 U.S.C. The stat- S.Ct. (1992). First, provides quality the EPA ute that these water stan- requires the CWA technology-based designated dards “shall consist of the uses “to establish and enforce navigable individual into waters involved and the limitations on country’s navigable quality from water criteria for such waters point- waters upon No. 1 Coun- based such uses. Such standards sources.”3 PUD of Jefferson 704, ty., (citing protect public at 114 1900 shall be such as to 511 U.S. S.Ct. 1314). 1311, welfare, §§ quality 33 U.S.C. These effluent health or enhance the rates, quantities, purposes “restrict water and serve the of [the limitations 1313(c)(2)(A). specified § and concentrations substances 33 U.S.C. CWA].” discharged point Supreme explained which are from sources.” Court has further Oklahoma, 101, quality water pro- Arkansas v. 503 U.S. state standards “[t]hese comply supplementary 112 S.Ct. 1046. In order to with vide ‘a basis ... so that CWA, sources, point-source an point despite individual dis- numerous individual limitations, charger compliance may must obtain and adhere to the with effluent Discharge regulated prevent of a National Pollutant further terms be (“NPDES”) System quality falling acceptable Elimination is- from below lev- ” EPA County, sued or an EPA-authorized els.’ PUD No. 1 of Jefferson craft, "pollutant” "dredged floating pollutants 2. The CWA defines as from which are or waste, residue, spoil, 1362(14). solid incinerator sew- discharged.” § be 33 U.S.C. munitions, age, garbage, sewage sludge, non-point The CWA does not define source wastes, materials, biological chemical radio- pollution regulate appear and does not materials, heat, active wrecked or discarded pollution. See v. such Defenders of Wildlife rock, sand, equipment, dirt cellar and indus- EPA, 1121, (10th Cir.2005); 415 F.3d 1124 trial, municipal, agricultural waste dis- Browner, American Wildlands v. 260 F.3d 1362(6). charged § into water.” 33 U.S.C. 1192, (10th Cir.2001). 1193-1194 One court pollution non-point has described source "point "any 3. The CWA defines source” as "nothing pollution problem more than a discernible, convey- confined and discrete involving discharge point from a source.” ance, including, any pipe, but not limited Gorsuch, 156, Nat’l Fed’n v. 693 F.2d ditch, tunnel, conduit, channel, well, Wildlife discrete (D.C.Cir.1982). 166 n. 28 container, stock, fissure, rolling concentrated feeding operation, animal or vessel or other

471 704, 1900, applies “the 114 S.Ct. 128 when U.S. at quality of the waters exceed levels neces- (quoting ex L.Ed.2d California fish, sary support propagation Bd., shell- Control State Water Resources rel. fish, and recreation in wildlife and 2022, n. 96 S.Ct. 426 U.S. 131.12(a)(2). the water.” 40 C.F.R. For (1976)). L.Ed.2d waters, regulation requires such Pursuant to a 1987 amendment to the their “quality pro- shall maintained and CWA, quali- state-established finds, tected State full unless the after antidegrada- an ty standards must include intergovernmental satisfaction of the coor- policy “a policy, requiring which is tion public participation provisions dination and state standards be sufficient to main- continuing planning process, the State’s uses of existing navigable tain beneficial allowing lower is neces- waters, preventing degrada- their further sary important to accommodate economic Specifi- Id. at tion.” S.Ct. and social in the development area cally, permits the CWA the revision of which the are located.” 40 waters C.F.R. or water quality certain effluent limitations 131.12(a)(2). However, allowing “[i]n “only subject if revision standards such degradation such quality, or lower water and consistent with the the State shall water quality assure ade- policy [the CWA].” established under 33 quate existing to protect fully.”4 uses 1313(d)(4)(B). Accordingly, U.S.C. 131.12(a)(2). C.F.R. regulations implementing the CWA Finally, Tier III protection provides that “develop adopt each State to high “[w]here waters constitute antidegradation policy and statewide iden- resource, outstanding National such as wa- *6 tify implementing the methods for such ters of parks National and State and wild- 131.12(a) (2008). § policy.” C.F.R. life refuges exceptional and waters of re- regulations provide EPA further ecological creational significance, or that antidegradation policy that and im- “[t]he quality water shall be pro- maintained and shall, minimum, at a plementation methods 131.12(a)(3). § tected.” 40 C.F.R. with” federal be consistent certain stan- adopts Once a State or revises its water provided regulation. for in the dards standards, quality including antidegra- its 131.12(a). § These federal stan- C.F.R. policy, requires dation the CWA the State quali- dards establish three levels water to to EPA for submit these standards the II, I, ty protection: Tier Tier and Tier III. 1313(c)(1). § review. 33 If the U.S.C. protection Tier I the mini- establishes implementation State’s standards and pro- water all mum standard for of a minimum cedures are with the consistent waters that requires “[e]xisting State’s federal by standards the CWA the level of instream uses and implementing the EPA’s regulations, quality necessary to the protect existing approve then the EPA the must state stan- protected.” sixty shall days. uses be maintained dards within 33 U.S.C. 131.12(a)(1). 1313(c)(3). However, § C.F.R. if the state water justified necessity This Tier II also be would need the standard described to be body’s pollution achieving protecting important the water "assimilative the for econom- However, capacity” development. reg- ic which is the amount which the and social the any pollution prohibits level ulation exceeds the increase that support designated negative capacity, its uses. Under would create assimilative to the regulation, regardless necessity pollution a increase that would of the economic social body's pollution. for the decrease a water 19, 2001, May Plaintiffs served notice the CWA’s On satisfy do quality standards must, nine- a action the EPA within intent to commence civil requirements, of their the specify ty days, “notify the State and provision the under citizen suit If requirements. to changes meet such 1365, CWA, alleged U.S.C. changes adopted by the State are not such per- failure of the EPA Administrator days after of notifi- ninety the date within mandatory duty under 33 U.S.C. form his cation, promulgate such shall [EPA] 1313(c)(4) to a stan- promulgate federal 1313(c)(3). standard[s].” 33 U.S.C. antidegradation re- implementing dard In Kentucky. quirements for November History B. Factual and Procedural 2002, a proposed the EPA federal antide- Kentucky antidegra- adopted original its implementation procedure for gradation 1995, Ken- policy in 1979.5 dation however, Plaintiffs, Kentucky to adopt. Protec- tucky Environmental Public that was proposal advised EPA (the “Cabinet”) tion Cabinet established compliance inadequate ensure with policy procedures for this implementation CWA. Ky. Regs. Admin. 5:030.6 by adopting 401 17, 2004, re- February Plaintiffs On 11, 1995, August On Cabinet submitted notice, 60-day demanding their newed antidegradation implementation pro- perform duty EPA to finalize Tier its EPA for Two approval. cedures 7, 1997, rules later, years August on On comply September anti- the CWA. disapproved portion adopted ver- degradation program because it found Cabinet revised implementation the selection criteria for water bodies its antidegradation sion of given would be were procedure regulation, Admin. and, therefore, sufficiently inclusive did 5:030, Reg. it the EPA and submitted requirements not meet the of 40 C.F.R. September on 2004. How- § 131.12. ever, submission, days prior two 21, 2004, Plaintiffs September commenced 8,1999, in to this response

On December against the EPA in the the instant action Kentucky adopted disapproval, revisions *7 States District Court for the United West- standards, including revi- its water Kentucky. initial ern District Plaintiffs’ Ky. to 401 Admin. 5:030. Regs. sions (1) alleged that: the complaint two-count to the Cabinet submitted revisions comply had with manda- failed to its 15, approval EPA for on December 1999. duty tory under the CWA finalize feder- 2000, August 30, On EPA notified II al water Tier II rules Cabinet that these revised Tier (2) Kentucky; and this fail- fully failed to address the identi- standards concerns comply mandatory fied in the 1997 ure to with a CWA disapproval. EPA’s challenge Kentucky’s antidegradation policy, regarding which tiffs’ EPA’s type protection provides afforded Ky. of the revision of 401 Admin. Cabinet's bodies, qualitative categories water various technically challenge a Regs. 5:030 Ky. Regs. is found in 401 5:029. Admin. Kentucky's antidegradation policy, but rather challenge Kentucky’s implementation ais Kentucky's general antidegradation 6. While policy through which of this its selection of policy Regs. Ky. in 401 Admin. contained waters merit and its cate- Tier 5:029, implementation procedures speci- types discharg- gorical certain exclusion of fying particular water with- which bodies fall es from II review. protection category in each are contained Thus, Regs. Plain- Admin. 5:030. duty arbitrary, capricious, opinion was and con- court issued an denying order law, in trary to violation of the APA. summary judgment Plaintiffs’ motion for granting motion Defendants’ for sum- 29, 2005, a January On Plaintiffs filed mary judgment. Kentucky See Water- summary judgment requesting motion for Johnson, ways Alliance v. 426 F.Supp.2d court order the EPA to that the district 612, (W.D.Ky.2006). timely ap- This promulgate antidegradation regulations for peal followed. However, 12, 2005, Kentucky. April on prior to the district court’s issuance of a

ruling summary judgment on Plaintiffs’ II. STANDARD OF REVIEW motion, EPA approved re- antidegradation implementation pro- vised A. Review Under the APA cedures, based on its extensive evaluation upholds When district court on procedures. of those See J.A. at 176-233 summary judgment an administrative (EPA 303(c) Determination Under Section agency’s APA, final decision under the we Act, Regula- Review of Clean Water review the district court’s summary judg 5:030, Kentucky Antidegra- tion 401 KAR novo, ment decision de while reviewing the Policy Implementation Methodology dation agency’s decision under the APA’s arbi 2005) (hereinafter 12, Approv- “EPA (Apr. trary capricious standard. City of Document”)). al Ohio, 827, (6th Cleveland v. 508 F.3d response development, to this Plain- Cir.2007) (quoting Coalition Gov’tPro 27, complaint May tiffs amended their Indus., Inc., curement v. Fed. Prison 2005 to include third count—that (6th Cir.2004)). 435, F.3d The APA approval Kentucky’s revised anti- reviewing directs when the decision of degradation implementation procedures agency, an administrative a court shall arbitrary, capricious, and was otherwise “hold unlawful and agency set aside the 6, 2005, contrary to law. On June Plain- if “arbitrary, capri action” the action is I tiffs moved dismiss counts cious, an abuse of discretion or otherwise Thereafter, complaint. their amended accordance with law.” 5 U.S.C. Kentucky, Kentucky Commonwealth 706(2)(A). “A reviewing agen court Association, Coal Associated Industries of cy’s adjudicative accept action should Kentucky, Chamber of Com- agency’s findings factual if findings those merce, Kentucky League and the of Cities supported by are substantial evidence on intervened as defendants. On June as a the record whole.” Arkansas v. Okla approved the district court Plaintiffs’ homa, 503 U.S. S.Ct. 1046 voluntary dismissal of counts I and II of *8 altered). (emphasis complaint, leaving only the Plain- amended tiffs’ count III claim that the EPA acted standard, APA Under this the arbitrarily capriciously approving reviewing court “must consider whether imple- revised antidegradation the decision was based on a consideration procedures. mentation of the relevant factors and whether there 6, 2005, September judgment.”

On Plaintiffs filed a has been a clear error of Council, summary judgment Oregon motion for on count Marsh v. Natural Res. 360, 1851, 378, complaint. III of their amended Defen- 490 U.S. 109 S.Ct. 104 (1989) (quoting a responded filing dants cross-motion L.Ed.2d 377 Citizens to Park, summary judgment 31, v. Volpe, for on October Preserve Overton Inc. 401 31, 416, 2006, 402, 814, 2005. On March the district U.S. 91 S.Ct. 28 L.Ed.2d 136 474 Agency Interpretation “arbitrary Deference

(1971)). is B. agency An decision Regulations of agency: Statutes capricious” when the Congress which has relied on factors interpre a reviewing agency’s federal consider, entirely intended it to had not administers, a of a statute that it tation aspect of important an failed to consider “whether reviewing court must first ask explanation an problem, the offered directly pre the Congress spoken the that runs counter its decision U.S.A, at question issue.” Chevron cise so or is agency, before the evidence Council, Inc., Res. 467 Inc. v. Natural Def. it ascribed could not be implausible 842, 2778, 837, 104 L.Ed.2d S.Ct. 81 U.S. of product or the a difference view (1984). is Congress “If the 694 intent expertise. agency matter; the clear, the end that is of the v. Home Builders Nat’l Ass’n Defenders court, give agency, well as must 2518, - U.S. -, Wildlife, 127 S.Ct. in unambiguously expressed effect to (2007) 2529, Mo (quoting L.Ed.2d 467 842-43, 104 Congress.” at S.Ct. tent of Id. States, United tor Vehicle Ass’n Mfrs. However, di if has not “Congress 2778. Co., Ins. Farm Mut. Auto. Inc. v. State at question rectly precise addressed 29, 43, 2856, 77 L.Ed.2d 463 U.S. S.Ct. ambigu and “the statute is silent or issue” (1983)). “may court not reviewing The issue,” then respect specific ous with agency’s a reasoned basis for the supply question “the court is whether giv agency that the itself has action a agency’s permissible answer based on Ass’n, 463 U.S. Motor Vehicle en.” Mfrs. 843, of the Id. at construction statute.” However, 43, “[e]ven at 103 S.Ct. 2856. If construc agency’s 104 S.Ct. 2778. explains agency when an its decision one, if it is not permissible tion is a even clarity, reviewing than ideal a court less reading the court have reached “the would that account upset decision on will arisen in a question initially if the had reasonably agency’s path may if the judicial proceeding,” then the court must Dep’t discerned.” Alaska Env’t agency’s Id. interpretation. defer to the EPA, 461, 497, 124 v. S.Ct. Conservation U.S. n. 104 S.Ct. “In such at 843 (2004). 983, 157L.Ed.2d 967 case, its own a court not substitute Supreme explained Court has for a statutory provision construction arbitrary under and ca ad interpretation “[r]eview made reasonable standard is Nat’l pricious deferential.” an agency.” ministrator of Id. at Builders, Ass’n Home 127 S.Ct. 2529. S.Ct. 2778. “Nevertheless, merely our review because agency interpreting not mean that When [it] must be deferential does to the Moon v. a court also defer inconsequential.” regulation, must also be should interpretation Provident F.3d Corp., agency’s Unum Cir.2005). (6th it or inconsis arbitrary-and-capri plainly “The unless erroneous Robbins, regulation. ... us with the Auer v. cious standard does not tent 452, 461, 905, 137 merely [agency’s] de 117 S.Ct. stamp rubber 519 U.S. (1997). However, Ins. L.Ed.2d 79 “deference Metropolitan cision.” Jones *9 Life (6th Cir.2004). Co., of language In when the 385 F.3d is warranted deed, re regulation ambiguous.” review is not no Christensen “[deferential 576, 588, view, County, abject.” and deference v. Harris 529 U.S. need be (2000). 1655, 146 If the v. Ins. L.Ed.2d 621 McDonald Western-Southern S.Ct. Life (6th Cir.2003). clear, Co., 161, 172 then language 347 F.3d water, agency’s position ity defer to the would “[t]o which is all defined as water that agency, guise ONRW, designated under the of is not exceptional water, interpreting regulation, water, to create a de impaired is also afforded regulation.” new Id. II protection. Ky. See 401 Admin. facto l(3)(a)-(b). §

Regs. 5:030 Finally, im- water, paired which consists of those water III. DISCUSSION bodies for which one or designated more appeal, On Plaintiffs raise two chal- impaired uses are listed as by Kentucky in lenges to the approval EPA’s of Ken- its report biennial under 33 tucky’s antidegradation implementation § U.S.C. is afforded Tier I protec- regulation, Ky. Regs. Admin. 5:030. tion. Ky. See 401 Admin. Regs. 5:030 First, Plaintiffs contend that the EPA’s l(4)(a)-(b). § approval Kentucky’s of classification of Plaintiffs contend that eligible protec- ap- certain waters as for Tier I the EPA’s proval Kentucky’s protection impaired tion rather than Tier II exclusion of was arbitrary, protection waters from Tier II capricious, contrary and was law. arbi- Second, trary and capricious for argue Plaintiffs the EPA’s three reasons. First, approval Kentucky’s Plaintiffs maintain that categorical exemp- Kentucky’s use body-by-water tion of of a water types pollution discharges six ap- proach instead of a procedure parameter-by-parame- from the Tier II review was ter arbitrary, approach for capricious, contrary determining which to law. waters protection merit Tier II challenges We consider each of these in was inconsistent goals with the turn. the CWA and the lan- 131.12(a)(2). guage § of 40 Second, C.F.R. Approval Kentucky’s A. EPA’s that, Se- Plaintiffs claim even if regulations lection of Waters Tier II Protec- permitted Kentucky to body- use water tion by-water body approach, Kentucky’s cate- gorical exclusion of waters listed as “im- Plaintiffs challenge first concerns the paired” § under 33 U.S.C. 1315 is arbi- way in which Ken- trary unsupported by evidence tucky designates protec- waters for Tier II Third, the record. finally, Plaintiffs tion. antidegradation imple- argue that exclusion impaired procedures mentation divide from Tier II results the ex- (1) water bodies into four categories: out- clusion of a substantial number of Ken- standing national resource tucky’s water bodies from Tier II protec- (2) (“ONRW”); (3) water; exceptional high tion. We find none of arguments (4) water; impaired water. have merit. Ky. See 401 Admin. Regs. 5:030. ONRWs, which consist of about 30 miles of Body-by-Water Body 1. Water Ap- two streams and all of underground proach Parameter-by-Parame- Park, rivers Mammoth Cave National Approach ter protection. are afforded Tier III See 401 l(l)(a)-(b). Ky. Admin. Regs. 5:030 Plaintiffs first contend that water, Exceptional which consists of water EPA contradicted the CWA approving satisfying bodies the criteria set forth in Kentucky’s body-by-water body ap Ky. l(2)(a), Regs. Admin. proach 5:030 re- antidegradation policy imple II protection. ceives Tier See 401 mentation because both the CWA and 40 l(2)(b). Regs. 131.12(a)(2) Admin. High qual- 5:030 C.F.R. States to *10 476 Quality than criteria.” approach applicable Water parameter-by-parameter a

adopt 36,- Regulation, Fed.Reg. 63 at receive Tier II Standards which waters designating capacity for rejected a 782. assimilative “[Available court The district protection. subject any given always is pollutant argument, see Water- similar 631-33, regardless of whether protection, [Tier and we F.Supp.2d II] 426 at ways, pollutants are satis- the criteria for other argument unpersuasive. find likewise Thus, approach, fied.” under Id. CWA-implementing regula- The body could classified as same water be to ensure that waters tions States I for pollutants Tier II and Tier for certain necessary levels quality “exceed[s] whose 279 pollutants. Valley, other See Ohio fish, shellfish, propagation of support F.Supp.2d at 747. wildlife and recreation and on ie., body body-by-water their Under the water protection, receive Tier water” (also approach designational know as the existing high quality must be main- “weigh approach), variety it is of fac- protected tained and unless demon- States body over- lowering quality judge segment’s that a of water is tors a water strated important Quality all quality.” to accommodate eco- Water Standards 36,782. Regulation, Fed.Reg. at Tier II development. or social C.F.R. nomic 131.12(a)(2). However, overall as the EPA it- classification is then “based on the body quality segment, in its the water not on publicly has noted advance notice self rule-making, Valley, “the individual Ohio proposed regulation pollutants.” guidelines F.Supp.2d approach, at 747. “Under this specific does not include identifying high quality given pollutant for a waters.” [these] subject to Quality Regulation, protection [Tier II] Water Standards 36,782 if, overall, 36,742, segment ‘high is Fed.Reg. (proposed July not deemed ” 1998) (to 131).7 pt. quality.’ Quality Regu- be codified at 40 C.F.R. Water Standards 36,782. Instead, lation, Fed.Reg. at “States and Tribes have devel- ways identify various their oped [T]ier EPA has not found either of waters.” Id. [II] approaches compelled by the lan- to be 131.12(a)(2) “approaches high guage or the identifying These of 40 C.F.R. into two basic the EPA catego- contrary, waters fall CWA. See id. On (1) approaches, advantages pollutant-by-pollutant ries: found are “[t]here (2) approach.” body-by-water body ap- disadvantages to each Id. The pollutant-by- approach Id. proaches.” pollutant-by-pollutant Under is easier (which pollutant approach implement is the some same States “because parameter-by-parameter ap- considering Plaintiffs’ need for an assessment overall proach), ap- “the State makes a classification various factors is avoided.” Id. This have pollutant given body.” proach might gen- for each also the benefit of Valley erally including Ohio Environmental Coalition v. more waters within Tier Horinko, it F.Supp.2d “because would cover waters (S.D.W.Va.2003). clearly attaining goal The water then uses are (i.e., given protection against pol- supporting which are not ‘fish- those waters uses goal possess lutants for which “water but that is better able/swimmable’ previously, agen- guidance vides in assess- 7. As noted an administrative useful this Court cy's interpretation own ing argument of its Plaintiffs’ in this the merits of Auer, deference, great entitled to see 519 U.S. case. (1997), pro- 117 S.Ct. 905 thus *11 pollu- body for one or more the water suffering is from excess [sic]).” 36,782-36,783. loadings pollutant. of a different at 21 tant Id. at “The Id. 131.12(a)(2)). (quoting Thus, 40 C.F.R. body-by-water body approach, on water they regulation conclude that the requires hand, weighted other allows for a as- the protection be determined according chemical, physical, biological, sessment of pollutant-by-pollutant to a approach. (e.g., unique ecologi- and other information attributes).” Id. at argument cal or scientific 783. We find Plaintiffs’ to demon- only strate that a pollutant-by-pollutant By allowing high quality the water decision approach is regulation, consistent with the antidegrada- to be made in advance of the not that it is regulation; the review, approach may tion facilitate Plaintiffs’ plural ig- focus the “levels” implementation. approach Id. The “also nores rest phrase the in which that and Tribes to allows States focus limited appears. regulation word requires protecting higher-value resources on State quality of water qual- when “the Accordingly, or Tribal waters.” Id. ity of the necessary waters exceed levels approach has concluded “neither support fish, propagation shellfish, either, clearly superior is and that when and wildlife and recreation in and on the properly implemented, acceptable.” is Id. 131.12(a)(2). water.” 40 C.F.R. This at 782. language susceptible is to two interpreta- Likewise, the United States District tions. The first is that offered Plain- Court the Southern District of West i.e., tiffs, that “levels” refers to the levels Virginia, previ- court which has pollutants of various in the body. water issue, ously considered this has also con- However, the word “levels” here could also cluded that the federal statute regula- refer to the quality overall levels necessary tions do not support States to choose the the various water uses men- regulation. any tioned For pollutant-by-pollutant approach particu- over the lar body water there could quality be one body-by-water body approach. See necessary support level propagation Valley, F.Supp.2d Ohio 747. On the fish, quality a different necessary level contrary, Valley Ohio Environmental support propagation wildlife, Horinko, Coalition court found that finally quality a third level regulations permit “the EPA’s a State to support recreation. Either reading seems adopt body-by-water body ap- plain consistent with the language of the classification, proach to assuming that this regulation reading and neither seems com- approach implemented adequately.” Id. pelled by the language. Given this ambi- Plaintiffs nevertheless contend that the guity regulation, we defer to the 131.12(a) language requires of 40 C.F.R. Auer, interpretation, see 519 U.S. at a pollutant-by-pollutant approach. They 461, 117 S.Ct. which holds that either emphasize “the fact Thus, approach permissible. we do not speaks protecting quality levels of rath- find the EPA’s use ” protecting ‘high er than quality waters.’ body-by-water body of a water approach to that, They PL Br. at argue because arbitrary, capricious, contrary be to law. regulation protects of wa- Supporting Categori- 2. Evidence ters when that “exceeds levels nec- “Impaired cal Exclusion Wa- recreation, essary support” fish and ters” From Tier II Protection with safe levels of one or more pollutant protected that, must from unneces- argue Plaintiffs next even if sary loadings pollutant, new if Kentucky’s body-by-water even use of a water *12 478 supports aquatic life- quality for classifying in waters whose both

body approach uses, uses and recreation-based “the Ken based permissible, is protection II Tier bodies Kentucky may reasonably exclude upheld cannot be because tucky rules if the Tier protection un from II to be left of water selecting waters for method uses.8 impaired any of those support water is arbitrary and without protected with Defendants that Relying agree Pl. on We Br. at in the record.” from Tier merely “impaired” of waters exclusion Valley, Plaintiffs claim Ohio the re- protection is consistent with body “impaired” is insuf II listing a water as 131.12(a). § 40 II of C.F.R. justify protec quirements of Tier denial ficient that a maintain that fact They “[t]he tion. implementa- antidegradation more fails to one or body meet water provide protection II procedures Tier tion determinative quality criteria is not “exceptional and the State’s waters” its or wheth quality of its water of the overall Ky. quality waters.” 401 Admin. “high of existing ‘quality exceed[s] the waters er (3)(b). l(2)(b) §§ In con- 5:030 Regs. of necessary propagation to support levels trast, Kentucky only pro- Tier I extends shellfish, and recreation wildlife fish categorized to “surface water as tection ” 40 (quoting on the water.’ Id. 26 uses” applicable designated impaired 131.12(a)(2)). focusing § of Instead C.F.R. “the surface is listed as an unless Plain impaired, the water is on whether outstanding water in 401 state resource Kentucky at a full argue, “must look tiffs Ky. Regs. 5:030 5:026.” Admin. KAR deter ‘qualification criteria’ to range l(4)(a). clari- Kentucky regulation § body quality if a water of sufficient mine categorized that “a surface water as fies protection.” Id. at 25. Be for Tier applicable designated uses impaired proce implementation cause the pursuant a water shall be identified classify fail to II waters on this dures Tier (§ § 1315.” Id. 305 of U.S.C. Section basis, Plaintiffs the EPA contend CWA), however, provide does not approving erred in them. Rather, impaired definition water. requires § to submit a each State counter that exclusion Defendants (“ § report 305 re- biennial waters is protection impaired from includes, alia: port”) which inter 131.12(a)(2). § with 40 C.F.R. consistent (A) that, description quality the water They argue because protection only navigable for waters State dur- requires [the] Tier all waters protection. Kentucky fur- 8. Defendant Commonwealth of ter bodies should receive Tier II argues excluding impaired Rather, waters ther this section out the conditions sets protection with 33 from Tier II is consistent prior modifying that must satisfied 1313(d)(4)(B). The Commonwealth U.S.C. permits stringent ef- NPDES to include less requir- interprets provision this of the CWA 1313(d). fluent limitations. See 33 U.S.C. ing apply antidegradation States to that, 1313(d)(4)(b) provides for water Section applicable to waters whose quality "equals whose or exceeds lev- bodies impaired has been wa- standard attained. As designated protect [their] els ters, definition, their have not attained uses,” any revisions to effluent limitations standard, applicable water the Com- "consis- placed on that water must be argues appropriate not to monwealth that it is policy estab- with the tent antidegradation protec- them Tier II afford this The section lished under section.” does tion. question not address the of how States must statutory ar- We find the Commonwealth’s anti- which receive Tier II determine waters misguided. reading gument to be A careful helpful degradation and is thus not 1313(d) U.S.C. reveals that the section point. resolving parties’ dispute nothing identifying wa- to do with which (B) year ... ing preceding analy- uses.” Regs. Admin. 5:030 l(4)(a). navigable sis of the extent to which all provide waters of State for the [the] approved Kentucky’s The EPA exclusion propagation of a protection and balanced impaired waters from II protection, shellfish, fish, wildlife, population of *13 finding it to be “consistent with the federal and allow recreational activities in and requirement that high quality waters have (C) water; analysis on the an [and] of water quality supports aquatic both the extent to which the elimination of life-based uses and recreation-based uses.” discharge pollutants the and a level of (EPA Document). J.A. at 184 Approval water provides which for the approving Kentucky’s classification of Tier propagation of a balanced waters, that, the EPA noted as Plain- shellfish, fish, population and wildlife argued, tiffs have Kentucky did not imple- and allows recreational activities and ment a body-by-water strict water body water, on the have been or will be approach: requirements achieved of [the Kentucky’s combined selection criteria CWA], together with recommendations for classification of waters for antidegra- necessary as to additional action dation purposes combines some ele- objectives achieve such and for what designational ments approach and waters such additional action is neces- some elements of the pollutant-by-pollu- sary. tant approach. Qualification for the ex- 1315(b)(1). § 38 U.S.C. Section 1315 does ceptional category waters [which receive report this to include an iden- Tier II protection] is meeting based on Instead, tification of impaired waters. criteria, certain which high include levels requirement identify impaired waters in biological diversity, recognition of out- § report seems to come from 33 standing through values other statutory 1313(d)(1)(§ 303(d) CWA) § U.S.C. provisions, exceptional or aesthetic eco- requires “identify which each State to values, logical significance, historical those waters within its boundaries for high levels of quality. This is which the effluent required by limitations typically designational considered a ap- stringent are not enough [the CWA] proach. implement any standard ap- However, in adopting the category plicable to such waters.” 33 U.S.C. high quality waters are [which also af- 1313(d)(1)(A). Kentucky submits its protection], forded Tier II Kentucky has 303(d) impaired list of such waters as chosen to create a “default” category See, part of its annual report. e.g., that contains all other waters of the (2004 J.A. at Kentucky Report to Con- Commonwealth, unless the water gress Quality). on Water This list of im- or has ONRW been show to be impaired paired waters includes “all waters not sup- for a designated use. This approach is porting one or designated more uses.” clearly not a “designational” approach, Integrated Report Final 2006 Congress since no data are for a water to on the Condition of Water Resources in placed high quality waters 2007). Kentucky, II, p. Volume 1 (April category, Kentucky does not main- Thus, antidegradation im- listing high quality tain a waters that plementation clarifies have been classified in that category. categorized impaired “[s]urface as shall be Qualification assessed as not for impaired [C]abinet waters fully supporting any applicable designated (i.e., category waters of the to the EPA submission not considered the WVDEP are

Commonwealth minimum) 303(d) of the Clean Water protection, at a under section II] [Tier by Ken- solely on determination Id. at 748. The court noted that based Act.” meet that a water does tucky been waters that list had classi- other 131.12(a)(2) requirement the 40 C.F.R. and that had fied as that “exceed levels for waters justification why par- no provided shellfish, fish, support propagation of impairments Monongahela ticular in and on recreation and wildlife segments Kanawha river rendered those added). This method (emphasis water.” Tier I “as to other listed opposed rivers from consider- waters of exclusion Id. impairments.” with similar waters combines some II] waters [Tier ation *14 words, that problem 749. In other in that of both concepts approaches, found with EPA’s evidence was court biological are evaluat- data chemical it rivers as Tier I not that classified the decision, making impairment ed their but rather upon impairment, based final decision to include waters but any evidence that the EPA did not have to whether category in this is based on treating waters justify impaired some use water designated for the each classifying I while others as Tier II. Tier attained. being is properly cannot Accordingly, Valley Ohio Document) (EPA Approval J.A. at 185-86 proposition to stand for that a be read original). EPA found (emphasis enough to impairment water’s is not ex- Kentucky’s hybrid ap- use that of this protection it from Tier II when all clude classifying II is proach for Tier waters waters the same impaired are treated 131.12(a)(2). with 40 C.F.R. consistent antidegradation purposes. “Kentucky’s noted cate- The EPA also Perhaps flimsy support recognizing ap- is gorization approach similar to by Plaintiffs provided Valley, Ohio alterna- proach by Region 4 in Ala- approved tively argue excluding impaired wa- (EPA bama and Tennessee.” J.A. at 186 arbitrary Tier II protection ters from is Document). Approval because, approach, under such an contend that Plaintiffs nevertheless body’s protection exclusion from Tier is for its merely listing “impaired” water as by the designated determined uses justify is to designated uses insufficient by rather than the water’s overall rely protection. denial Tier II Plaintiffs However, quality. argument this over- reliance, Valley support. on This Ohio 131.12(a)(2) fact that looks the 40 C.F.R. however, Valley, misplaced. In Ohio body’s quality a water links relevant level by the the issue faced court was whether regula- designated to its uses. Under sufficient in the record there was evidence tion, Kentucky’s implementation proce- the EPA’s approval of West provide protection dures must Tier II Virginia’s protection exclusion Tier II quality all of waters whose “ex- particular segments from of the Monon- support levels necessary propa- ceed gahela and Kanawha rivers. fish, shellfish, and wildlife and gation at 746. found the F.Supp.2d The court in and on the water.” recreation the administrative was insuffi- record 131.12(a)(2) added). (emphasis C.F.R. support cient to decision be- EPA’s words, Kentucky provide must In other only to the pertaining cause the evidence quality to waters whose of those was quality segments river quality than the minimum level of that both is better segments [were] “the fact river uses, impaired prepared support aquatic-life based a list waters needed uses, Im- wildlife and recreational uses. district court’s calculation of percent- waters, which, by definition do not paired age Kentucky waters afforded Tier II quality support have the needed to their protection may be well-founded—the rec- and must “be assessed the [C]abi- uses ord indicates that 90% of the stream fully supporting any designated net as not miles that had been studied at the time of uses,” Regs. Admin. 5:030 the EPA’s decision are afforded Tier II l(4)(a) added), do not fall (emphasis (EPA protection, see J.A. at 187 Approval category within this of Tier waters. Document) fail to explain how —Plaintiffs Impaired waters do even have the the district court’s factual mischaracteri- necessary minimum level that is zation of the record is relevant to our de uses, support designated their let alone a novo evaluation of whether the ap- better than proval Kentucky’s antidegradation reg- uses, support aquatic-life based wildlife arbitrary, ulations was capricious, or con- uses, and recreational uses. Plaintiffs trary to law. criteria for convincingly explain have failed to how the identifying waters afforded II protec- such from Tier II pro- exclusion of waters tion are not to be evaluated based on the problematic tection is under 40 C.F.R. percentage of waters for *15 they pro- which 131.12(a)(2). Accordingly, we are not protection, vide Tier II but upon rather persuaded approval the EPA’s of consistency their 40 C.F.R. Kentucky’s impaired of exclusion waters 131.12(a)(2). Neither the CWA nor its II protection arbitrary, from Tier was ca- implementing regulations specify that a pricious, contrary or to law. percentage certain of a State’s waters

must be afforded Tier II protection. As Percentage Kentucky of long Water as all waters whose “ex- Receiving Tier II Bodies Protec- levels to support propa- ceed[s] tion fish, shellfish, gation of and wildlife and recreation in grant- and the water” are Finally, argue that Plaintiffs protection, ed Tier II regulation district court’s decision should be reversed 131.12(a)(2). satisfied. 40 C.F.R. because it is “based on the misunderstand Plaintiffs’ contention that less than 90% of ing approach that the EPA approved [the] Kentucky’s waters are afforded Tier II provided of 90% waters not, itself, protection does demonstrate II protection.” with Tier PI. Br. at 27. approval Kentucky’s that the of EPA’s an- Plaintiffs contend that “the record tidegradation procedures implementation shows that 90% of the stream miles that arbitrary, capricious, contrary was had been studied as of the time of the law. impaired” decision were not listed as figure “the 90% stream mile does not reasons, foregoing For the we AFFIRM address the extent to which lakes would be grant summary district court’s of judg- protected.” at Id. 28. Plaintiffs maintain ment to Defendants with respect to the that “[a]s continues to collect approval Kentucky’s EPA’s of method of data, percentage of waters found selecting which waters merit Tier II pro- likely impaired higher.” to be much Id. tection. find final argument

We to be mis- guided. Approval Kentucky’s While Plaintiffs’ criticisms of the B. EPA’s Mul- (5) Exceptions Tier II pursuant

tiple Review9 discharges;11 discharges renewals and modifica- to KPDES challenge concerns the Plaintiffs’ second twenty in less than a tions that result exemptions to specific approval EPA’s loading. See percent pollutant increase which procedure applies II the Tier review Regs. 5:030 Ky. Admin. II into Tier waters. discharges to new (2)(b)(1) (3)(b)(l)(a)-(e). (a)-(e), §§ 1 The Kentucky’s antidegradation imple- While regulation allows non-domestic dis- also affords regulation generally mentation factories) chargers opt out of Tier (e.g., “exceptional water” they II KPDES if permits review for new water,” “high quality accept permit limits are “restricted discharges resulting pollution exempts (1/2) of the water no more than one-half activity from specific categories from have limitations that would based dischargers Tier II review and allows condi- permitted design been standard categories activity to avoid Tier other 5:030 Ky. Regs. tions.” Admin. specified permit ef- accepting (3)(b)(5). 1(2)00(5), ap- §§ particular, regu- fluent limitations. from Tier proved exemptions most of provides categorical lation it de review because found them to be process specified from the Tier II review minimus. (1) Regs. 5:029 in 401 Admin. for: Plaintiffs that the discharges pursuant argue issued to storm water (2) categorical permits;10 exemption coal general mining dis- (3) sewage types pollution discharges these six charges; domestic (4) residences; II review single-family procedure concen- from the Tier was from (“CAFO”) contrary to law. feeding operation arbitrary, capricious trated animal *16 122.23(b)(1), portion opinion expresses only 9. This 11. Under 40 C.F.R. an animal of ("AFO”) Judge Clay. For the the views Court’s hold- feeding operation defined as "a lot claim, ing respect with to Plaintiffs’ second (other facility aquatic pro- or than animal Judge the reader should refer to con- Cook's facility)” duction in which: curring opinion. (i) (other animals) aquatic than have Animals general been, are, per EPA and often use The States will be confined and or stabled or dischargers classes mits for where there is days fed for a or maintained total of 45 or agency a basis for to establish the same period, any more in 12 month dischargers permit all conditions for in the (ii) forage Crops, vegetation, growth, post- or See, e.g., class. 40 C.F.R. 122.28. “With a harvest residues are not sustained in the general permit, [agency] issues a growing any portion normal season over types specific for of activities establishes facility. the lot or specific complying permit. rules large defines a a or CAFO as Then, apply per rather than for an individual 122.23(b)(2). 40 C.F.R. In medium AFO. mit, operators a Notice must file of Intent words, large-scale other "CAFOs are industri- (“NOI”) stating they plan operate that un operations extraordinary al that raise num- general permit, negative a der the and absent example, bers For of livestock. ‘Medium ruling by discharges [agency], comply 9,999 54,999 many sheep, CAFO’ as raises as general permit with the terms are auto 124,999 (other turkeys, lay- chickens than or matically Indep. authorized.” Texas Produc hens). ing 'Large CAFOs' even more raise EPA, Royalty & ers Owners Assoc. 410 F.3d sometimes, staggering numbers of livestock— 964, (7th Cir.2005). Both the EPA and raising literally millions of animals in one general permits particular Slates have found EPA, Alliance, Waterkeeper location.” Inc. v. ly discharges useful for of storm water. See (2d Cir.2005). 399 F.3d general permits id. established has categories of for several different storm water discharges. EPA approved contend that most of particular, Plaintiffs cate (1) gorical exemptions to Tier by: law II review for contrary failing acted types discharges certain under the ad exemption only allowed ensure each principle ministrative law which allows an discharges that would pollution individual agency exceptions to create unwritten ato percent ten of a not reduce more than insignificant statute or rule for or “de min (2) body’s capacity; ” imus matters. Under well-estab failing cap a cumulative on provide “permissible lished it is principle, as an by caused the loss of assimilative agency power, exercise of inherent in most the combined effect of allowed schemes,” statutory to create categorical (3) exemptions; basing under these its exemptions “to overlook circumstances exemp- of the effect determination fairly context be considered de assurances made non-binding tions Costle, minimus.” Power Alabama Co. v. Cabinet, than on the text rather (D.C.Cir.1979). 636 F.2d This Kentucky regulation itself. Unlike the authority to create “is not an majority, arguments I of these find each statute, ability depart from the but rath persuasive. er a tool in implementing to be used legislative words, Id. In design.” other 1. Limit Percent of Ten Destruction exemption authority “this is narrow in for De Capacity Assimilative tightly reach and bounded the need to Minimus Discharges show genuinely the situation is de 131.12(a)(2) The text of 40 C.F.R. does minimus or one of administrative necessi exceptions provide any to Tier II ty.” Accordingly, Id. at 361. an agency type quantity review based on the of only implied authority to create an but pollution, new sources of rather re- exemption “when the burdens of regulation that, whose quires for waters is yield gain or no of trivial value.” Green support prop- better than EPA, (6th baum v. 370 F.3d Cir. agation of fish and wildlife well as re- 2004) Power, (quoting Alabama 636 F.2d creation, ie., waters, “that quality 360-61). “implied authority This is not protected shall maintained unless available for a where regula situation *17 finds, State full satisfaction of the the after benefits, tory function provide does the intergovernmental public coordination regulatory sense of the furthering objec of the State’s participation provisions con- tives, agency but the concludes that that tinuing planning process, allowing acknowledged by benefits are exceeded quality necessary water to accom- lower is Power, costs.” Alabama 636 F.2d at 361. important economic social de- modate truly “Determination of when matters are velopment in the area which the waters naturally de will turn on minimus added). Likewise, (emphasis are located.” circumstances, particular assessment of provide any excep- the CWA does not for agency and the will bear the burden of antidegradation to Tier II review but tions making required showing.” Green any instead demands that revision to ef- baum, at 534 (quoting 370 F.3d Alabama for fluent limitation standards Tier II wa- 360). Power, 636 F.2d at antidegrada- ters be “consistent with that, Plaintiffs in the contend context of policy under this section.” tion established review, II reading Tier “a narrow of the de 1313(d)(4)(B). U.S.C. 33 appropriate given minimus doctrine is clear federal Despite excep- antidegradation this lack of text-based intent of the review, for the requirements lowering to Tier II to allow tions insignificant to ac that would have an effect necessary when es quality water argue, or social Plaintiffs the EPA important quality, commodate economic on at area.” Pl. Br. development authority in the its under legal exceeded 131.12(a)(2)). agree I (citing 131.12(a) C.F.R. allow de and C.F.R. CWA that hold would suggestion agree. I exceptions. minimus exemptions approval any EPA’s EPA previously The indicated process review must from the Tier II II purpose the central of the federal Tier upon a well-founded determination based antidegradation regulations is a protect discharges un pollution permitted that the body’s capacity, which is assimilative truly will a de exemptions such have der the applicable “the difference between wa- quality the water impact upon minimus pollutant param- for a quality ter criterion II Tier waters.12 quality eter and ambient water challenge primary In their to the crite- parameter when it is better that the categorical (Memorandum J.A. from rion.” at 922 exemptions, Plaintiffs contend that Ephraim King, S. Director EPA Office ensured that individual should have Technology, Man- of Science Water discharges under allowed Directors, 1-10 agement Regions Division specified more than a would cause 2005) (hereinafter (Aug. “King Memo- quality. particular, decrease In (EPA randum”)); at Ap- accord J.A. an an argue exemption Plaintiffs Document). short, a water proval pollution individual that would discharge body’s assimilative a measure- up percent use than ten a water’s more ment of the amount which its remaining capacity cannot be assimilative fish, support exceeds levels By approving de minimus.13 wildlife, ensuring and recreation. Tier II re- categorical exemptions without they only exempt discharg- that this process would new view ensures matter, question exception I a de 12. As initial whether hibits minimus from Tier exceptions only a such de even be review when water minimus should lowered Likewise, amount”). ‘trivial’ the EPA has allowed for review. The review Tier II categorical 131.12(a)(2), permitted exemp- States to create process, 40 C.F.R. review tions from Tier does not "the bur- create situation where whose effect on Tier II is deemed waters regulation yield gain dens of of trivial or no See, e.g., Quality trivial. Water Standards Greenbaum, (6th value.” 370 F.3d at 534 36,783. Regulation, Fed.Reg. Finally, at Cir.2004) Power, (quoting Alabama 636 F.2d directly challenge appeal Plaintiffs do not 360-61). contrary, On the this Tier II authority the EPA’s de minimus process directly Congress' furthers exceptions requirements to the of 40 C.F.R. regulatory objective "to restore and maintain *18 131.12(a). apparent acceptance this Given chemical, physical, biological integri- authority approve of the EPA's to de minimus ty of U.S.C. Nation's waters.” exemptions, to I am hesitant conclude 1251(a) added). (emphasis This acknowl- contrary simply by the EPA has acted to law edged protection benefit of the afforded allowing Kentucky provide ex- for some procedures ignored Tier II be review cannot However, emptions agree to Tier II review. I simply the EPA because Tier II review also authority the EPA’s Plaintiffs imposes pol- some economic costs on certain approve Kentucky’s exemptions from Tier II dischargers. lutant quite as de review minimus is limited. Nevertheless, have consid- court to ered this not de minimus actually argue issue has found 13. Plaintiffs seem for a low- threshold, that, exceptions impermissible . regardless, to be in this context. er but insist ten (find- Valley, F.Supp.2d permissible percent See Ohio at 769 limit of re- the outer ing "nothing regulation pro- capacity. in the duction of assimilative EPA's capacity is maintained so as to avoid fur- Although de minimus provisions do in- degradation high quality ther volve assumptions, non-conservative Thus, provisions de any exceptions Tier II waters. minimus .included in the be deemed de proposed Guidance are not likely mini- review cannot seri- ously undermine the mus they permit if new afforded which high quality a body water through anti- significantly decrease a Tier II water degradation. De provisions minimus Indeed, body’s assimilative capacity. provide a means for States and Tribes to EPA against using has cautioned States “a differentiate between actions that will high significance” creating threshold of result in an increased loading pollu- of a categorical exemptions, because such an tant receiving to a likely water that is approach “unduly could ] the restrict! significant have a impact on quali- water proposed number of activities that are sub- ty and those that are unlikely to do so ject antidegradation to a full review” and and focus review efforts on actions that “may adequately prevent cumulative degrade will quality. water It is reason- quality degradation water aon watershed able to assume that loading increases of Quality scale.” Water Regula- Standards non-BCCs that will use less than ten tion, 36,783. Fed.Reg. The EPA has percent of the remaining assimilative ca- that, likewise indicated while “the current pacity in a will negli- have a regulation specify significance does not a gent effect on ambient quality. threshold below which re- (Great SID) J.A. at 698 (emphasis Lakes view required!, would the] EPA’s added). recently, More the EPA em- thinking current is that a clear national braced percent this ten threshold in the regarding norm ‘significance test’ is context of Tier II generally. In a necessary and developed should be memorandum to the EPA’s Water Man- in established either the na- agement Directors, Division the Director Id. guidance.” tional of the EPA’s Office of Science and Tech- Neither the EPA any nor federal court nology stated: previously has precise determined the EPA has afforded the states and tribes significant insignifi- threshold between some discretion determining what cant capacity. decreases assimilative a significant constitutes lowering of wa- Nevertheless, prior guidance the EPA’s quality. ter accepted range a statements indicate that more than a ten approaches to defining “significance percent reduction in over threshold” which full antidegra- and thus not de mini- significant, would be required. dation review is This issue mus. Quality In its Water Guidance for was considered at length process in the Lakes System Supplementary Great of developing the Water Quality Guid- (“Great Information Document Lakes ance for the Great Relying Lakes. SID”), issued the EPA addressed input during offered a four-year open de minimus degradation in the public process involving environmental ecosystem. Great particular, Lakes groups, industry representatives, as de EPA allowed categorize States to other experts, with opportuni- numerous *19 minimus any discharge of non-bioaccumu- public ties input, for the directors of the (“non-BCCs”) lative chemicals that caused eight Great Lakes states and EPA tech- a percent loss of less than ten nical experts reached a consensus on a capacity. available assimilative The EPA significance threshold value per- of ten (10%) stated: cent of the available assimilative waters, that Tier II I would hold a cumulative capacity, coupled with (10%) percent contrary approving value is acted in these cap.... A ten law signifi- for range within of values exemptions de For this rea- as minimus. approved has cance that EPA thresholds alone, required and son I find reversal as EPA considers in other states well. EPA, the matter to the so would remand pro- to be workable and approach this that it could consider whether significant identifying those tective in exemptions permit indi- categorical would that should lowerings more discharges vidual that would cause tier 2 re- receive a a Tier II percent than a ten loss of water’s full view, public including participation. capacity. assimilative Memorandum) (King (emphasis at J.A.

added). Cap 2. on De Minimus only Cumulative court to have considered Discharges likewise that a ten suggested issue percent capacity reduction assimilative that argue “[a] Plaintiffs next second any limit de is outer for minimus requirement any exemp- for minimus de Valley, exception. See Ohio II antidegradation require- tion Tier from F.Supp.2d (finding at 770 that subject be exemption ments is that such Virginia’s exception approval of West from cap, a that individual dis- cumulative so discharges individual charges as trivial not pass allowed do causing up percent to a ten loss avail- a im- up having significant end combined reasonable, capacity assimilative able was agree I pact.” Again, PL Br. that failing approval but to indorse the EPA’s such cumulative is in order cap a Virginia’s twenty percent of West de mini- permitted a discharge exemption to be provision for discharges). mus cumulative as de minimus. interpreta- Based on authorities’ noted, already qualify As order tions of the amount of loss of assimilative minimus, any exemption de to the strict capacity signifi- that would considered be requirements only of Tier II review must cant, that, I find in order would to be discharges com exempt pollution whose (and permis- thus considered de minimus a significant bined does lead to effect not exception to 40 sible as C.F.R. a degradation body’s Tier II water 131.12(a)(2)’s requirement that all Tier the limit of ten quality. percent While review), a waters be afforded in capacity destruction of assimilative categorical exemption from Tier II review exempted discharges helps en dividual any discharge must individual sure have a triv that destroy percent than ten would more ial on water a cumulative impact quality, aof Tier II water’s available assimilative cap necessary to com ensure capacity. discharges causing While less many discharges bined effect of al percent than a ca- ten loss of assimilative truly de exemption lowed under pacity might significant also be to be too FEC, 414 F.3d Shays minimus. See minimus, considered de I find this the ten (D.C.Cir.2005) (rejecting the Fed percent clearly supported limit to outer eral Election Commission’s practice. the EPA’s own As the EPA exemption de minimus from $5000 in this did not consider case even whether finance be campaign reform Kentucky’s categorical exemptions could obviously cause it was “an trivial allow individual would i.e., amount, could considering cause a more that donors significant, than ten state, percent, give every amount to loss each *20 Id. at 770-771. Likewise, district, party organization”); and local the EPA has Power, (indicat- indicated that in Alabama as de qualify order to F.2d minimus an exemption must a have cumu- power to find ing agency’s that an cate- cap lative on the reduction of assimilative statutory gorical exemptions schemes capacity that may caused exempted designed is to “overlook circumstances discharges. See 923 (King J.A. at Memo- fairly in context be considered randum) (noting defining that in a “suffi- minimus”). Indeed, if significant de a ciency discharges threshold” for into the degradation quality of Tier water were Great Lakes the “EPA technical experts allowed to in- occur because numerous reached a significance consensus on a de minimus dis- dividually exempted (10%) threshold value of ten percent charges, then the non-textual de minimus coupled capacity, available assimilative exception would be allowed to swallow the ” with a cap (emphasis cumulative add- 131.12(a)’s rule set forth in 40 C.F.R. ed)). a plain language that Tier water’s In light concerns, foregoing I “shall be maintained and quality protect- would hold that cap a cumulative on the determines, ed unless” the State after en- allowable reduction of capaci- assimilative gaging process, in the Tier II review ty is in categorical order a “allowing quality is necessary lower water exemption to Tier ap- II review to be important to accommodate economic or proved as de minimus. Neither party in the development social area which suggested appropriate limit for added). (emphasis the waters are located.” However, cap. cumulative given the only court Accordingly, the to have con- previous regarding discussion the signifi- sidered this issue has found that a cumula- cant negative impact quality water cap necessary in order tive for an ex- caused the loss more than per- ten as de minimus. emption permitted to be cent of a body’s water capaci- Valley, Ohio F.Supp.2d at 770. The ty, I am an exemption convinced that Valley Ohio persuasively court articulated would allow for discharges combined cap: the rationale a for such percent cause more than a ten loss as- perspective From the of maintaining the ie., capacity, similative a significant loss a of Tier body cannot, of Tier II quality, under the (which 131.12(a)(2)), §of is the focus standards, EPA’s own scientific be consid- de minimus standard for cumulative ered de minimus. As the EPA never important is more than the even considered whether a cap cumulative de minimus standard individual dis- approving Kentucky’s when charges; it is former that will dic- categorical let exemptions, alone whether tate the total reduction available assi- the combined effect of individual dis- a capacity milative that water may charges allowed exemptions under such undergo any without review. would fall requirements below the of such on de mini- cap Without cumulative cap, I would find that the EPA acted mus individual de minimus discharges, contrary to approving law in these exemp- easily discharges could consume all of tions as de minimus. Accordingly, I available assimilative for a would reverse grant the district court’s given pollutant parameter, reducing wa- summary judgment to Defendants on ter minimum to the level neces- Plaintiffs’ challenge to sary support existing uses without and remand the matter remand, having undergone ever Tier 2 to the review. EPA. On addition to *21 488 state such as by agencies, Commitments Kentucky’s categori-

considering whether Cabinet, regarding application the the of individual exemptions cal would antidegradation implementa- Kentucky’s more than a that would cause discharges tion not the force of procedures do have a Tier II water’s assi- ten loss of percent Ky.Rev.Stat. Ann. Kentucky. law in See require the I would also capacity, milative (2006) (“An 13A.130(1) § administrative potential the cumulative EPA to evaluate body by policy, not internal memo- shall as these individual so effect of randum, ... or form of action [m]od- other they do not cause com- to ensure ify [or][e]xpand upon limit a statute ... or of the percent than ten bined loss more Hagan regulation.”); or v. administrative Kentucky’s capacity of Tier (“An Farris, (Ky.1991) 807 S.W.2d 490 waters. by agency regulations must be bound promulgates.... prohibits it KRS 13A.130 Kentucky’s 3. EPA’s Reliance on modifying from an administrative Regarding Reg- Its Commitments regulation by policy administrative internal Assessing Their ulations When action.”); v. Ky. form of Kerr another Impact as De Minimus l Registration Eng’rs State Bd. Prof Surveyors, & Land 717 S.W.2d Finally, argue that Plaintiffs deter- (“Regulatory agencies (Ky.Ct.App.1990) exemptions mining Kentucky’s whether statute, are not pow- creatures of and have minimus, are in fact de the EPA was not own; internally adopted ers of their [their] rely Kentucky’s unenforcea- entitled on void, no policies are null and and of effect exemp- these regarding ble commitments whatsoever.”). they may Accordingly, tions, but rather was assess by evaluating be considered the EPA when exemption solely impact each based Kentucky’s exemp- whether Tier II review language exemption on itself. I impact have tions will a de minimus agree compelled conclusion is Kentucky’s quality waters. regulations. the federal See Northwest Envtl. Advocates EPA (D.Or.2003) F.Supp.2d 1268-69 implementing regula- The EPA’s CWA include, (finding that the EPA was entitled require part each State tions rely on unenforceable commitment from quality its water standards submitted approving state-promulgat- State when review, antidegradation the EPA for “[a]n standards). ed environmental policy consistent with [40 C.F.R.] 131.6(d). § These 131.12.” C.F.R. promises the Cabinet’s or commit- While regulations further federal way regarding the in which it will ments provide State “Certification apply Kentucky’s antidegradation policies Attorney appropri- State or other General assessing not be considered should when legal authority ate within the State that categorical the minimus effects of the de standards [submitted] contained anti- duly adopted pursuant to State law.” were degradation regulations, the Cabinet’s in- 131.6(e). Thus, reviewing C.F.R. terpretations regulations may those rules for com- understanding useful in the effects their 131.12, pliance application. Kentucky’s duly adopted C.F.R. anti- degradation implementation consider poli- must rules and regulations duly cy Regs. “were found in 401 Admin. are adopted pursuant interpreting to State law.” C.F.R. 5:029 5:030. 131.6(e). regulations, EPA must first look to the *22 plain language of the regulations case, them- In the instant the EPA relied upon Baptist Physician Hosp. Org., selves. See unenforceable commitments made by the Military Inc. v. Humana Healthcare Cabinet in determining whether the ex- Serv., Inc., (6th Cir.2007) 337, 481 F.3d emptions at issue would have an insignifi- (“As with all regulatory matters of inter- cant effect on the pretation, plain we look first to the and Tier II waters. The language of Ken- unambiguous meaning regulation, of the if tucky’s antidegradation implementation any.”). If the EPA reasonably concludes regulation clearly provides that the Tier II regulations ambigu- are process specified in the regulation ous, may rely then it on the Cabinet’s apply” “shall not specified to certain dis- interpretation which, regulations, of these chargers. See 401 Admin. Regs. if light reasonable in regulations’ l(2)(b)(l)(a)-(e), (3)(b)(l)(a)-(e). §§ 5:030 plain language, is entitled to deference. not, The regulation face, does on its pro- Auer, 905; See 519 U.S. at 117 S.Ct. vide for an exception to these exemptions EPA, 415 F.3d Defenders of Wildlife in cases where the exempted discharge (10th Cir.2005) 1121, 1127 it (finding per- significant would cause a lowering of water missible for rely the EPA to on a state Nevertheless, quality. in approving these agency’s environmental interpretation of exemptions, the EPA relied on the Cabi- the State’s provisions net’s commitments that it would not issue when reviewing them for compliance with discharge permits under these exemptions 131.12); Hagan, C.F.R. 807 S.W.2d that would cause a signifi- (“In cases, at 490 most agency’s inter- cant lowering quality. of water For exam- pretation regulations of its own is entitled ple, approved the EPA deference.”). Kentucky’s exemp- However, to substantial “the tion for discharges subject EPA to storm may [permit Cabinet ef- to] general permits, in fectively part, rewrite or existing amend state because of Ken- regulations, may tucky’s nor it ‘escape the notice indication that “the Commonwealth requirements comment ... labeling has determined that it will ... assure that major substantive addition to a rule a permits such only allow discharges that ” interpretation.’ mere Wild- will significant not cause a lowering Defenders of life, (citing 415 F.3d at 1127 Riverside (EPA quality.” J.A. at 191 Approv- Thomas, Cement Co. v. 843 F.2d Document). al in approving Likewise (9th Cir.1988), quoting Appala- exemption for sewage domestic dischar- EPA, chian Power v.Co. 208 F.3d gers accept pollutant limits, who certain (D.C.Cir.2000)). See also Hagan, 807 EPA noted: (“An at agency’s S.W.2d interpretation represented has that these de- valid, however, of a only if the fault [pollutant] limits prevent any will interpretation complies with the actual lan- [significant lowering of water quality]. guage Thus, regulation.”). rare those instances where these de- may rely on the Cabinet’s reasonable in- fault protective limits are not of water terpretation Kentucky’s categorical ex- quality, Kentucky Department [the emptions from Tier II review to the extent (“KDOW”) Water ] more that it regulation ambiguous, finds the but stringent options applicants rely it on the Cabinet’s substan- in the form of more stringent tive limits or a exemptions additions to those when prohibition determining compliance discharge. their with the re- The effect of quirements of 40 C.F.R. 131.12. provision implementation and its reason reverse court’s low- third district any significant to prevent

KDOW summary judgment to Defendants grant ering quality'. of water of Ken- respect to the Document). (EPA Approval J.A. from tucky’s categorical exemptions six Finally, approving the matter II review and remand *23 discharges pursu- and discharges CAFO remand, determining, the EPA. In on that re- permit renewals ant to KPDES Kentucky’s regulatory exemptions whether twenty percent pollu- in less than a sult only discharges exempt II to Tier review EPA stated expansion, explicitly the tion insignificant an effect on II that have the assur- relying it was on Cabinet’s that require quality, I would the EPA to water exemp- it allow that would not such ances Ky. primarily language on the of 401 focus lowering of significant to cause a tions 5:030. In I Regs. particular, Admin. Tier II re- applying without relying EPA on prohibit the from would (EPA Approval J.A. at 206 view. See from the Cab- unenforceable commitments Document) antidegra- that (“By providing concerning implement- inet its methods for discharg- review not dation ing regulation. that CAFOs, Kentucky represent- es from it KPDES that will assure these ed IV. CONCLUSION (both per- and general individual permits I, II, expressed parts the in For reasons mits) in- new or will authorize those of opinion and III-A this as well as the sig- discharges that will not cause creased Judge expressed in concur- reasons Cook’s lowering quality. nificant of water Based below, part in ring opinion we AFFIRM understanding, approves EPA on part opinion and in and REVERSE Ken- provisions as revisions to these court. AFFIRM order district We standards.”); tucky’s J.A. grant summary judg- of Document) (“EPA’s the district court’s (EPA Approval challenge on Plaintiffs’ ment Defendants that, possible it is in analysis shows that Kentucky’s to the EPA’s of selec- situations, expansion limited a 20% could However, RE- tion of Tier II waters. we than assi- use more 10% of available of sum- water, grant VERSE district court’s capacity receiving milative of mary judgment respect to Defendants with could leave little challenge ap- expansion. However, Kentucky to Plaintiffs’ the EPA’s after the 11, 2005, Kentucky’s categorical exemption if of April proval in its letter that stated arise, types pollution discharges of six from such situations Commonwealth antidegradation would review. Tier review. We thus VACATE that analyses light In of EPA’s and portion approving decision assurances, approving provi- Kentucky’s EPA is this of cer- categorical exemption sion.”). by review, These commitments made from Tier II tain reasonably cannot be construed Cabinet EPA so REMAND this matter interpretations Ky. as mere of 401 Admin. aspect it this 5:030, EPA Regs. and the was not entitled implementation proce- rely upon the de evaluating them in a that is dures manner consistent with impact regulation on the minimus opinion. Judge concurring Cook’s quality Kentucky’s waters. COOK, joined Judge, concurring, Circuit view, contrary my the EPA acted SILER, Judge. Circuit by relying

law on these unenforceable I, II, III-A, joinwe Accordingly, parts commitments. I would find While IV separate- we Judge Clay’s opinion, last to be write this contention Plaintiffs holding Discharges with re- 4. under storm express gen- the Court’s ly to permits;1 eral to Plaintiffs’ second claim-that spect Kentucky’s six Discharges from ani- approving EPA erred concentrated (“CAFOs”).2 For feeding operations from Tier review. mal follow, EPA that the we find reasons Reg. Admin. 5:030 See exemptions, and approving did err l(2)(b)(l)(a), l(2)(b)(4)-(6); (d), (e); §§ grant the district court’s REVERSE thus (d), l(3)(b)(2)-(4). (e); l(3)(b)(l)(a), summary judgment to the EPA this Unless a statute or REMAND to the the matter point “extraordinarily employs rigid” language, consistent proceedings for further recognize an courts administrative law opinion. *24 agencies that allows principle to create exceptions unwritten to a statute or rule I. ” for “de matters. v. minimis Greenbaum (6th 527, Cir.2004); 370 F.3d 534 see EPA A. Whitman, 1190, also 243 Ober F.3d Kentucky’s antidegradation regulations Cir.2001) (9th (finding 1193-95 the that discharges or into expanded new may “exempt de minimis sources waters to “exceptional” “high quality” or pollutant] from Air pollution [a [Clean Act] review, five cate- pass exempt but controls”). Under this principle, “per it is them discharges, designating as gories an agency missible as exercise of power, causing insignificant loss. water-quality statutory schemes, in most inherent discharges are: These in overlook circumstances that context Any under a re- expanded discharge 1. may fairly be considered de minimis.” permit, newed or modified KPDES Costle, Ala. Co. v. 636 Power F.2d long so does not expansion as the (D.C.Cir.1979). authority This “is not pollutant loading increase 20% or statute, ability depart from the rath but more; er a be used in the implementing tool to discharges Industrial if the emitter 2. design.” An legislative agency Id. thus discharges pollutants at less than implied authority exempt has “ half the authorized concentration regulation yield “when the burdens of ” permit; a normal KPDES Greenbaum, or gain of trivial no value.’ Power, discharges (quoting Domestic if the emitter 370 F.3d at 534 Ala. 3. “ 360-61). certain pollutants limits seven below F.2d at ‘Determination of when truly targets example, naturally residual chlo- matters are de minimis —for greater rine to “no 0.010 milli- will turn particular than assessment of circumstances, grams liter”; per agency and the will bear general permit, large-scale "With a issues a opera- the EPA 2. "CAFOs are industrial permit specific types and es- of activities extraordinary tions that raise numbers of live- specific complying with the tablishes rules for example, a stock. For 'Medium CAFO' raises Then, permit. apply for an indi- rather than 9,999 54,999 sheep, many turkeys, or as permit, operators a Notice vidual must file 124,999 (other hens). laying chickens than (‘NOI’) operate stating they plan to Intent ‘Large staggering raise even more CAFOs' general nega- permit, under absent sometimes, raising lit- numbers of livestock— EPA, ruling by comply discharges tive erally millions animals one location.” general permit are auto- terms of the Alliance, EPA, Waterkeeper Inc. v. F.3d matically Indep. authorized.” Producers Tex. Cir.2005) (footnotes omitted). (2d EPA, Royalty F.3d OwnersAss’n v. & (7th Cir.2005). emption “insig- making “significant” resulted or show- the burden ” Power, degradation, approach 636 F.2d nificant” but ing.’ (quoting Ala. Id. 360). assessing exemptions’ cumula- at avoids antidegradation tive on the effects State’s the EPA’s au- Though accept Plaintiffs compliance. regulates Because 131.12 thority exemptions de approve minimis degradation, deg- not individual sources of 131.12, con- they challenge the EPA’s (“The radation, develop see id. State shall exemptions five listed clusion that adopt pol- a statewide only “insignificant” wa- above will result icy identify imple- the methods for degradation; Plaintiffs contend ter menting policy pursuant such this sub- eviscerate part.”), legally inquiry relevant allowing significant process, whether Tier-II-review ex- in water without dem- degradations emptions together significant deg- necessity. onstrated radation, Valley, 279 F.Supp.2d see Ohio Kentucky’s regula- To whether assess (“From perspective 770 n. 3 of water permit significant degradation, tions we quality ... it does not matter whether the normally turn to EPA’s calculations. number of is one one hun- *25 Council, 447 F.3d at 890 See Citizens Coal dred; question the relevant is how much (reiterating that courts must afford the by and all any lowered highest of deference to the EPA’s level body”). into a water evaluations). Be- technical or scientific answering decision document avoids EPA’s § protects capac- cause assimilative 131.12 accordingly this question, we lack necessarily ity, we focus on how much meaningfully needed to information capacity would be lost uti- approve Kentucky’s decision to EPA’s exemptions. lization of the five Tier II See regulations. See Motor Vehicle Mfrs. (Memorandum Ephraim from S. JA (hold- Ass’n, 463 U.S. 103 S.Ct. 2856 King, Director of EPA of Science Office ing agency arbitrary that an action is Management to Technology, Water capricious agency “entirely if the failed Directors, 1-10 Regions (Aug. Division aspect to consider an important 2005)) (stating proposed regulations “need problem”). very carefully to to determine be evaluated they in how translate to reduction assimi- Moreover, though EPA’s decision capacity lative order to understand document details the tests conducted significant whether a decrease assimila- impact, exemption’s measure each the doc- occur”). Relying capacity tive will on the resulting ument often fails include the estimates, assimilative-capacity-loss EPA’s i.e., the EPA’s estimate measurements — we must this determine de novo whether capacity how much assimilative would merely loss is de significant minimis. Instead, be EPA lost. concludes EPA’s in that “insignificant” degra- While the decision document the tests show analysis, this case offers detailed technical dation will occur. cannot review this We analysis legally legal it fails aim its at the conclusion’s reasonableness without operative question: discussing to the first its will extent EPA’s assimilative- why explaining which loss estimates and various emitters avail themselves (stat- significant, insignificant. result in rather it them See id. exemptions deems minimis, degradation? ing “may than de reviewing supply The EPA that a court Kentucky’s agency’s a basis action compliance measured 131.12 reasoned agency given”). whether that has not We assessing each individual ex- itself find a remand to the EPA JA Finding explanation thus unsatis- factory, that it address these deficiencies in the EPA pressed so for more. See 131.12(a)(2) Kentucky’s its consideration of de minimis 40 C.F.R. (requiring a dem- exemptions. degradation onstration Tier wa- “necessary ters is impor- accommodate B. tant economic or social development in the area in which the waters are located” Having determined added)). (emphasis Through response of five of six letter, the Cabinet assured the EPA that reconsidered, must turn we prior to issuing KPDES coal-mining per- remaining exemption to the for coal-min waters, discharge mits to into Tier II it ing discharges. Unlike the de minimis “interpret” existing would its regulations exemptions, Kentucky excep carved this governing permits such a show- general antidegradation tion out of its ing that the “discharge is from an activity provisions believing existing that its coal- important social or economic develop- mining regulations satisfy re 131.12’s ment to the area in which the waters are quirements. JA 192-93. The evalu located.” Relying JA 253. on this com- regulations ated existing agreed mitment, the EPA approved the coal-min- 131.12, they complied ac ing exemption. JA 194-95. knowledging steps Kentucky the five takes before for a coal- issuing The Plaintiffs maintain mining discharge into Tier response “effectively waters. letter amended” the Taking with one aspect regulations issue discrete procedure outside the State’s approval, the EPA’s Plaintiffs contend for promulgating modifying *26 or administra- erroneously that the EPA credited Ken tive rules. Ky.Rev.Stat. See Ann. 13A.130(1) (“An tucky’s existing regulations requiring administrative coal-mining dischargers to demonstrate by policy, memorandum, shall not internal when, fact, necessity economic or social or other form of action ... [m]odify ... Indeed, regulations the do not. Ken [or][e]xpand upon or limit a statute or tucky’s “socioeconomic review” is found regulation.”). administrative The EPA in water-quality regulations, not its but in Kentucky’s counters that letter did not an informal commitment to the EPA. See amend regulations its but fur- merely JA 253. The Plaintiffs insist nished the interpretation. State’s may EPA not rely promises, on such clarify ambiguous EPA state agree. we regulations by consulting with the state subject Kentucky agreed proposed relying on interpreta- authorized state tions, coal-mining discharges to socioeconomic see v. EPA Defenders of Wildlife 1121, (10th Cir.2005) during review the EPA’s audit of its anti- 415 F.3d 1127-28 degradation procedures. When the EPA (holding that the EPA rely could on a probed Kentucky it about how determined state’s interpretation ambiguous of an wa- necessity coal-mining standard, socioeconomic for ter long so as the EPA discharges, replied it), “effectively Cabinet Ken- did not rewrite or amend” tucky “believes that the socioeconomic im- happened but that is not what here. Ken- portance mining tucky’s of coal is well documented exemption for coal-mining data, by ... and supported ambiguous. sufficient so was not The anti- stated, that a demonstration of importance degradation regulations in explicit terms, mining activity required.” each coal is not apply” Tier review “shall not regula- state at odds with a regulated interpretation under coal-mining discharges equivalent Admin. tion’s text is the “bureaucratic existing regulations. See l(3)(b)(l)(b). l(2)(b)(l)(b), contract”); §§ Advo- illusory of an Nw. Envtl. Reg. 5:030 existing regulations do F.Supp.2d Those cates v. EPA Indeed, (D.Or.2003) review. when socioeconomic re- (finding EPA erred queried first the State socioeco- EPA lying promise” on an “unenforceable —the coal-mining discharges, review nomic state’s to use a informal commitment more there no responded that was the State approve protective water standard —to Only after further JA 298. such review. Act certain Be- regulations). Clean Water EPA did from the inquiries cause EPA relied on an informal Cabi- starkly position its adopt a different net to approve —that commitment one) (it particular did cite a regulations exemption coal-mining dis- review for each a socioeconomic compelled charges, approv- find that agency’s we discharge. JA 253. proposed al was “not accordance with law.” 5 706(2). Accordingly, U.S.C. we hold securing informal commitment This too requiring exemption requires rather than remand to agency from a state regulations state to amend its violates the EPA for reconsideration. approval procedure the federal established 1313(c)(3) EPA either 33 U.S.C. —the II. regulations approves disapproves reasons, For we REVERSE by a state. See Ce- proposed Riverside grant summary judg- the district court’s Thomas, F.2d ment Co. v. challenge ment to EPA on Plaintiffs’ (9th Cir.1988); 279 F.Supp.2d Ohio Valley, Tier-II- six (finding reading at 756 the EPA’s strained and REMAND this Virginia unambiguous regula- of an West proceedings matter for further consistent “an impermissible attempt tion to be opinion. with this regulation”); amend the Natural De- Res. 16 F.3d Council

fense Cir.1993) (4th (“EPA reviewing in a sits *27 state-implemented stan-

dards, rejection powers 1313(c)).

only.”) (citing 33 U.S.C. Short- circuiting the promulgation process America, normal UNITED STATES of by addressing through deficiencies agency Plaintiff-Appellee, commitments contravenes 1313(c)(3), but hinders an important also Jr., ALEXANDER, Damon objective public participation rule- — Defendant-Appellant. making process. generally Appala- See EPA, chian Power Co. v. 208 F.3d No. 07-3219. (D.C.Cir.2000) (stating Appeals, States Court of United “escape the notice comment re- Sixth Circuit. by labeling major ... quirements sub- legal stantive addition to a rule a mere June 2008. Argued: interpretation”). Enforceability ar- also Filed: Aug. Decided and gues against EPA’s reliance on infor- See, e.g., mal state commitments. River- (an Cement,

side 843 F.2d at 1247 informal