Catskill Mountains Chapter of v. United States Environmental Pr
Filing
OPINION, Dissenting, by Judge Chin, FILED.[1949326] [14-1823, 14-1909, 14-1991, 14-1997, 14-2003]
Case 14-1823, Document 507, 01/18/2017, 1949326, Page1 of 35
CHIN, Circuit Judge, dissenting:
I respectfully dissent.
The Clean Water Act (the ʺActʺ) prohibits the ʺdischarge of any
pollutant by any personʺ from ʺany point sourceʺ to ʺnavigable watersʺ of the
United States, without a permit. 33 U.S.C. §§ 1311(a), 1362(12)(A). The question
presented is whether a transfer of water containing pollutants from one body of
water to another ‐‐ say, in upstate New York, from the more‐polluted Schoharie
Reservoir through the Shandaken Tunnel to the less‐polluted Esopus Creek ‐‐ is
subject to these provisions.
The United States Environmental Protection Agency (ʺEPAʺ) takes
the position that such a transfer is not covered, on what has been called the
ʺunitary watersʺ theory ‐‐ all water bodies in the United States, that is, all lakes,
rivers, streams, etc., constitute a single unit, and therefore the transfer of water
from a pollutant‐laden water body to a pristine one is not an ʺadditionʺ of
pollutants to the ʺnavigable watersʺ of the United States because the pollutants
are already present in the overall single unit. Consequently, in a rule adopted in
2008 (the ʺWater Transfers Ruleʺ), EPA determined that water transfers from one
water body to another, without intervening industrial, municipal, or commercial
Case 14-1823, Document 507, 01/18/2017, 1949326, Page2 of 35
activity, were excluded from the permitting requirements of the National
Pollutant Discharge Elimination System (ʺNPDESʺ), even if dirty water was
transferred from a polluted water body to a clean one. The majority holds that
the Water Transfers Rule is a reasonable interpretation of the Act. I disagree.
As the majority notes, we evaluate EPAʹs interpretation of the Act
under the two‐step framework of Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837
(1984). At step one, we consider whether Congress has ʺunambiguously
expressedʺ its intent. Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004). If
so, we ʺmust give effect to the unambiguously expressed intent of Congress.ʺ
Chevron, 467 U.S. at 842‐43. If the statute is ʺsilent or ambiguous,ʺ however, we
turn to step two and determine ʺʹwhether the agencyʹs answer is based on a
permissible construction of the statute,ʹ which is to say, one that is ʹreasonable,ʹ
not ʹarbitrary, capricious, or manifestly contrary to the statute.ʹʺ Riverkeeper, 358
F.3d at 184 (quoting Chevron, 467 U.S. at 843‐44).
I would affirm the district courtʹs decision to vacate the Water
Transfers Rule. First, I would hold at Chevron step one that the plain language
and structure of the Act is unambiguous and clearly expresses Congressʹs intent
to prohibit the transfer of polluted water from one water body to another distinct
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water body without a permit. In my view, Congress did not intend to give a pass
to interbasin transfers of dirty water, and excluding such transfers from
permitting requirements is incompatible with the goal of the Act to protect our
waters.1 Second, prior decisions of this Court and the Supreme Court make clear
that the unitary waters theory is inconsistent with the plain and ordinary
meaning of the text of the Act and its purpose. Third, even assuming there is any
ambiguity, I would hold at Chevron step two that the Water Transfers Rule is an
unreasonable, arbitrary, and capricious interpretation of the Act. Accordingly, I
dissent.
I
I begin with the language of the Act, its structure, and its purpose.
A.
The Statutory Language
The Act provides that ʺthe discharge of any pollutant by any person
shall be unlawful,ʺ 33 U.S.C. § 1311(a), except to the extent allowed by other
The term ʺinterbasin transferʺ refers to an artificial or man‐made conveyance of
water between two distinct water bodies that would not otherwise be connected. See
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 489‐93 (2d
Cir. 2001) (ʺCatskill Iʺ); see also 40 C.F.R. § 122.3(i) (ʺwater transferʺ is ʺan activity that
conveys or connects waters of the United States without subjecting the transferred
water to intervening industrial, municipal, or commercial useʺ).
1
3
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provisions, including, for example, those provisions establishing the NPDES
permit program, 33 U.S.C. § 1342.
The Act defines ʺdischarge of a pollutantʺ to include ʺany addition of
any pollutant to navigable waters from any point source.ʺ 33 U.S.C.
§ 1362(12)(A) (emphasis added). It defines ʺpollutantʺ to include solid, industrial,
agricultural, and biological waste. Id. § 1362(6) (emphasis added). It defines
ʺnavigable watersʺ as ʺthe waters of the United States, including the territorial
seas.ʺ Id. § 1362(7) (emphasis added). And it defines a ʺpoint sourceʺ as ʺany
discernible, confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.ʺ Id. § 1362(14) (emphasis
added). The Act does not define the word ʺaddition.ʺ
In my view, the plain language of the Act makes clear that the
permitting requirements apply to water transfers from one distinct body of water
through a conveyance to another. As noted, the Act prohibits ʺany addition of
any pollutant to navigable waters from any point source.ʺ Id. § 1362(12)(A). The
transfer of contaminated water from a more‐polluted water body through a
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conveyance, such as a tunnel, to a distinct, less‐polluted water body is the
ʺadditionʺ of a pollutant (contained in the contaminated water) to ʺnavigable
watersʺ (the less‐polluted water body) from a ʺpoint sourceʺ (the conveyance). In
the context of this case, as we held in Catskill I:
Here, water is artificially diverted from its natural
course and travels several miles from the [Schoharie]
Reservoir through Shandaken Tunnel to Esopus Creek,
a body of water utterly unrelated in any relevant sense
to the Schoharie Reservoir and its watershed. No one
can reasonably argue that the water in the Reservoir
and the Esopus are in any sense the ʺsame,ʺ such that
ʺadditionʺ of one to the other is a logical impossibility.
When the water and the suspended sentiment therein
passes from the Tunnel into the Creek, an ʺadditionʺ of
a ʺpollutantʺ from a ʺpoint sourceʺ has been made to a
ʺnavigable water,ʺ and the terms of the statute are
satisfied.
273 F.3d at 492.
EPA contends that such a transfer of contaminated water, from a
polluted body of water to a distinct and pristine one, is not an ʺadditionʺ because
all the waters of the United States are to be ʺconsidered collectively,ʺ EPA Br. at
2, that is, because the polluted and pristine bodies of water are both part of the
waters of the United States and all the waters of the United States are considered
to be one unit, the transfer of pollutants from one part of the unit to another part
is not an ʺaddition.ʺ I do not believe the words of the Act can be so interpreted.
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The critical words for our purposes are ʺadditionʺ and ʺnavigable waters.ʺ I take
them in reverse order.
1.
ʺNavigable Watersʺ
EPAʹs position ‐‐ accepted by the majority ‐‐ requires us to add
words to the Act, as we must construe ʺnavigable watersʺ to mean ʺall the
navigable waters of the United States, considered collectively.ʺ Contra Dean v.
United States, 556 U.S. 568, 572 (2009) (courts must ʺordinarily resist reading
words or elements into a statute that do not appear on its faceʺ) (quoting Bates v.
United States, 522 U.S. 23, 29 (1997)).
EPA also argues that if Congress had intended the NPDES
permitting requirements to apply to individual water bodies, it would have
inserted the word ʺanyʺ before ʺnavigable waters.ʺ See 33 U.S.C. § 1362(12)(A)
(ʺany addition of any pollutant to navigable waters from any point sourceʺ). This
interpretation is flawed, for the use of the plural ʺwatersʺ obviates the need for
the word ʺany.ʺ The use of the plural ʺwatersʺ indicates that Congress was
referring to individual water bodies, not one collective water body. The
Supreme Court addressed this precise issue in its discussion of ʺthe waters of the
United Statesʺ in Rapanos v. United States. There the Court considered the issue of
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whether § 1362(7)ʹs definition of ʺnavigable watersʺ meant ʺwaters of the United
States,ʺ and the Court squarely held that ʺwatersʺ referred to ʺindividual bodies,ʺ
not one collective body:
But ʺthe waters of the United Statesʺ is something else.
The use of the definite article (ʺtheʺ) and the plural
number (ʺwatersʺ) shows plainly that § 1362(7) does not
refer to water in general. In this form, ʺthe watersʺ refers
more narrowly to water ʺ[a]s found in streams and
bodies forming geographical features such as oceans,
rivers, [and] lakes,ʺ or the flowing or moving masses, as
of waves or floods, making up such streams or bodies.ʺ
Websterʹs New International Dictionary 2882.
547 U.S. 715, 732 (2006) (alterations in original) (emphases added). Hence, the
Supreme Court concluded the plural form ʺwatersʺ does not refer to ʺwater in
general,ʺ but to water bodies such as streams, lakes and ponds.2
The majority writes that the Supreme Courtʹs holding in Rapanos ʺdoes not
compel the conclusion that the statutory phrase ʹnavigable watersʹ is unambiguous
because that phrase, unlike the phrase in Rapanos, is not limited by a definite article.ʺ
Op. at 44, n.24. While Rapanos may not ʺcompelʺ that conclusion, it certainly supports
it. In Rapanos, the Supreme Court was interpreting the same definition of ʺnavigable
watersʺ in operation here, § 1362(7), which defines ʺnavigable watersʺ as ʺthe waters of
the United States.ʺ The lack of the word ʺtheʺ before ʺnavigable watersʺ in § 1362(12)(A)
hardly negates the Supreme Courtʹs holding that the definition of ʺnavigable watersʺ as
found in § 1362(7) does not refer to water in general, but water bodies. Moreover, the
existence or non‐existence of a definite article before a noun, on its own, has no bearing
on the plural or singular nature of a noun. ʺTheʺ can be used to refer to a particular
person or thing or a group. See Bryan A. Garner, Garnerʹs Modern American Usage: The
Authority on Grammar, Usage and Style, 883 (3rd Ed. 2009) (ʺThe definite article can be
2
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As the majority acknowledges, the Act contains multiple provisions
suggesting that the term ʺnavigable watersʺ refers to multiple water bodies, not
one national collective water body. Op. at 43 (citing 33 U.S.C. §§ 1313(c)(2)(A),
(c)(4), 1313(d)(1)(B), 1314(2), 1314(f)(2)(F), 1314(l)(1)(A)‐(B), 1342)).3 Likewise,
EPAʹs own regulations suggest that ʺnavigable watersʺ refers to individual water
bodies. For example, 40 C.F.R. § 122.45(g)(4) regulates intake credits. As the
Supreme Court has observed, this regulation is incompatible with the ʺunitary
watersʺ theory:
The ʺunitary watersʺ approach could also conflict with
current NPDES regulations. For example, 40 C.F.R.
§ 122.45(g)(4)(2003) allows an industrial water user to
obtain ʺintake creditʺ for pollutants present in the water
that it withdraws from navigable waters. When the
permit holder discharges the water after use, it does not
have to remove pollutants that were in the water before
used to refer to a group or, in some circumstances, a plural .ʺ).
3
There are additional sections in which the term ʺnavigable watersʺ clearly refers
to individual water bodies. See, e.g., 33 U.S.C. §§ 1341 (requiring any applicant for
federal license or permit ʺto conduct any activity, including but not limited to, the
construction or operation of facilities which may result in any discharge in the
navigable watersʺ to obtain a state certification that any discharge of pollutants will
comply with the receiving water bodyʹs water‐quality standard), 1344(a) (requiring
permits for ʺ[d]ischarge into navigable waters at specified disposal sitesʺ by establishing
a separate permit program for discharges of ʺdredged or fill material,ʺ which by
definition come from water bodies); see also 33 U.S.C. §§ 1313(a), (d)(1)(A), 1313(e)(4),
1314(l)(1), (b)(1), (d)(2)(D), (h)(9), (h)(11)(B).
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it was withdrawn. There is a caveat, however: EPA
extends such credit ʺonly if the discharger demonstrates
that the intake water is drawn from the same body of
water into which the discharge is made.ʺ The NPDES
program thus appears to address the movement of
pollutants among water bodies, at least at times.
S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 107‐08 (2004). In all of
these instances, the phrase ʺnavigable watersʺ refers to individual water bodies
and not one collective national water body. Indeed, neither the majority nor the
parties have identified a single provision in the Act where ʺnavigable watersʺ
refers to the waters of the United States as a unitary whole.
2.
ʺAdditionʺ
EPAʹs interpretation also requires us to twist the meaning of the
word ʺaddition.ʺ Because the word ʺadditionʺ is not defined in the Act, we
consider its common meaning. See S.D. Warren Co. v. Me. Bd. of Environ. Prot., 547
U.S. 370, 376 (2006) (in considering the definition of ʺdischargeʺ in 33 U.S.C.
§ 1362(12), noting that where a word is ʺneither defined in the statute nor a term
of art, we are left to construe it ʹin accordance with its ordinary or natural
meaningʹʺ (citing FDIC v. Meyer, 510 U.S. 471, 476 (1994))); see also Perrin v. United
States, 444 U.S. 37, 42 (1979) (words should be interpreted according to their
ʺordinary, contemporary, common meaningʺ).
9
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The ordinary meaning of ʺadditionʺ is ʺthe result of adding:
anything added: increase, augmentation.ʺ Websterʹs Third New International
Dictionary of the English Language Unabridged 24 (1968); see also Websterʹs New
World Dictionary of the American Language 16 (2d College ed. 1970 and 1972) (ʺa
joining of a thing to another thingʺ). Transferring water containing pollutants
from a polluted water body to a clean water body is ʺaddingʺ something to the
latter; there is an ʺadditionʺ ‐‐ an increase in the number of pollutants in the
second water body. In this context, ʺadditionʺ means adding a pollutant to
ʺnavigable watersʺ when that pollutant would not otherwise have been in those
ʺnavigable waters.ʺ Words should be given their ʺcontextually appropriate
ordinary meaning,ʺ Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 70 (2012), and the context here is a statute intended to
eliminate water pollution discharges. See Catskill I, 273 F.3d at 486. That context
makes clear that the word ʺadditionʺ encompasses an increase in pollution
caused by an interbasin transfer of water.
The plain words of the statute thus make clear that Congress did not
intend to except water transfers from §§ 1311 and 1362 of the Act.
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B.
The Structure of the Act
Congressʹs intent to require a permit for interbasin water transfers is
even clearer when we consider the statutory language in light of the Actʹs
structure. In determining whether Congress has spoken to the precise question
at issue, we consider the words of the statute in ʺtheir context and with a view to
their place in the overall statutory scheme,ʺ FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000), because ʺthe meaning ‐‐ or ambiguity ‐‐ of certain
words or phrases may only become evident when placed in context,ʺ King v.
Burwell, 135 S. Ct. 2480, 2489 (2015) (citing Brown & Williamson, 529 U.S. at 133);
see also Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) (ʺreasonable
statutory interpretation must account for both ʹthe specific context in which . . .
language is usedʹ and ʹthe broader context of the statute as a wholeʹʺ (citations
omitted)); Davis v. Mich. Depʹt of Treasury, 489 U.S. 803, 809 (1989) (a
ʺfundamental canon of statutory constructionʺ is ʺthat the words of a statute
must be read in their context and with a view to their place in the overall
statutory schemeʺ).
Here, EPAʹs ʺunitary watersʺ theory, when considered in the context
of other provisions of the Act, contravenes Congressʹs unambiguous intent to
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subject interbasin transfers to permitting requirements and is therefore
unreasonable. See King, 135 S. Ct. at 2489 (a ʺprovision that may seem ambiguous
in isolation is often clarified by the remainder of the statutory scheme . . . because
only one of the permissible meanings produces a substantive effect that is
compatible with the rest of the lawʺ (citing United Sav. Assʹn of Tex. v. Timbers of
Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988))).
First, the Water Transfers Rule creates an exemption to permitting
requirements, in violation of the canon expressio unius est exclusio alterius, which
cautions against finding implied exceptions where Congress has created explicit
ones. Section 1311(a) of the Act prohibits ʺ[t]he discharge of any pollutant by any
person.ʺ 33 U.S.C. § 1311(a). The Supreme Court has held that ʺevery point
source dischargeʺ is covered by the Act:
Congressʹ intent in enacting the [1972] Amendments [to
the Federal Water Pollution Control Act] was clearly to
establish an all‐encompassing program of water
pollution regulation. Every point source discharge is
prohibited unless covered by a permit, which directly
subjects the discharger to the administrative apparatus
established by Congress to achieve its goals. The ʺmajor
purposeʺ of the Amendments was clearly to ʺestablish a
comprehensive long‐range policy for the elimination of
water pollution.ʺ S. Rep. No. 92‐414, at 95, 2 Leg. Hist.
1511 (emphasis supplied). No Congressmanʹs remarks
12
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on the legislation were complete without reference to
the ʺcomprehensiveʺ nature of the Amendments.
See City of Milwaukee v. Illinois, 451 U.S. 304, 318 (1981).
Congress created specific exceptions to the prohibition on the
discharge of pollutants, as § 1311(a) bans such discharges ʺ[e]xcept as in
compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344.ʺ
33 U.S.C. § 1311(a). These include specific exemptions to the NPDES permitting
requirements for, e.g., return flows from irrigated agriculture, 33 U.S.C.
§ 1342(l)(1), stormwater runoff, 33 U.S.C. § 1342(l)(2), and discharging dredged
or fill material into navigable waters, 33 U.S.C. § 1344(a). Congress did not create
an exception for interbasin water transfers.
It is well‐settled that when exceptions are explicitly enumerated,
courts should not infer additional exceptions. See Hillman v. Maretta, 133 S. Ct.
1943, 1953 (2013) (ʺWhere Congress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not to be implied, in the absence of
evidence of contrary legislative intent.ʺ (citing Andrus v. Glover Constr., Co., 446
U.S. 608, 616‐617 (1980))). This prohibition against implying exceptions has been
applied to the Actʹs permitting requirements. See NRDC v. Costle, 568 F.2d 1369,
1377 (D.C. Cir. 1977) (ʺThe wording of the statute, legislative history and
13
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precedents are clear: the EPA Administrator does not have authority to except
categories of point sources from the permit requirements of § [1342]ʺ); Nw. Envir.
Advocates v. EPA, 537 F.3d 1006, 1021‐22 (9th Cir. 2008) (EPA may not ʺexempt
certain categories of discharge from the permitting requirementʺ); N. Plains Res.
Council v. Fidelity Exploration & Dev. Co., 325 F.3d 1155, 1164 (9th Cir. 2003) (ʺOnly
Congress may amend the CWA to create exemptions from regulation.ʺ).
Defendantsʹ position that all water transfers between water bodies are exempt
from § 1342 permitting requirements is a substantial exemption that Congress
did not create.
Second, the Act also sets forth a specific plan for individual water
bodies. The Act requires States to establish water‐quality standards for each
distinct water body within its borders. See 33 U.S.C. § 1313(c)(1), (2)(A). To
establish water‐quality standards, a State must designate a use for every
waterway and establish criteria for ʺthe amounts of pollutants that may be
present in [those] water bodies without impairingʺ their uses. Upper Blackstone
Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 14 (1st Cir. 2012) (citing 33
U.S.C. § 1313(c)(2)(A)). The NPDES permit program is ʺthe primary meansʺ by
which the Act seeks to achieve its water‐protection goals. Arkansas v. Oklahoma,
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503 U.S. 91, 101‐02 (1992). The NPDES program covers all ʺpoint sources,ʺ
including ʺany pipe, ditch, channel, [or] tunnel,ʺ 33 U.S.C. § 1362(14), and a
broad range of pollutants, including chemicals, biological materials, rock, and
sand, id. § 1362(6).
This carefully designed plan to fight water pollution would be
severely undermined by an EPA‐created exception for water transfers. A Stateʹs
efforts to control water‐quality standards in its individual lakes, rivers, and
streams would be disrupted if contaminated water could be transferred from a
polluted water body to a pristine one without a NPDES permit. It is hard to
imagine that Congress could have intended such a broad and potentially
devastating exception. Indeed, exempting water transfers from the NPDES
program would undermine the ability of downstream States to protect
themselves from the pollution generated by upstream States. The NPDES
program provides a procedure for resolving disputes between States over
discharges. See Upper Blackstone Water Pollution Abatement Dist., 690 F.3d at 15
(citing City of Milwaukee, 451 U.S. at 325‐26). When a State applies for a permit
that may affect the water quality of a downstream State, EPA must notify the
applying State and the downstream State. If the downstream State determines
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that the discharge ʺwill violate its water quality standards, it may submit its
objections and request a public hearing.ʺ Id. If water transfers are exempt from
NPDES requirements, the ability of downstream States to protect themselves
from upstream states sending their pollution across the border will be severely
curtailed.4
The City and certain of the States argue that subjecting water
transfers to permitting requirements will be extremely burdensome. As we have
repeatedly recognized, however, there is ample flexibility in the NPDES
permitting process to address dischargersʹ concerns. See Catskill Mountains v.
EPA, 451 F.3d 77, 85‐86 (2d Cir. 2006) (ʺCatskill IIʺ); see also Nw. Envtl., 537 F.3d at
1010 (ʺObtaining a permit under the CWA need not be an onerous process.ʺ).
Downstream states would have to resort to common law nuisance suits in the
courts of the polluting state, instead of addressing permit violations with EPA. As the
district court points out, ʺEPA never explains how states, post Water Transfers Rule, can
address interstate pollution effects ʹthrough their WQS [water quality standards] and
TMDL [total maximum daily loads] programsʹ or ʹpursuant to state authorities
preserved by section 510,ʹ given that states do not have authority to require other states
to adhere to effluent limitations or state‐based regulations. See Intʹl Paper Co. v.
Ouellette, 479 U.S. 481, 490 (1987).ʺ Catskill Mountains Chapter of Trout Unlimited v. U.S.
E.P.A., 8 F. Supp. 3d 500, 552 (2014). Indeed, at oral argument before the district court,
counsel for the State of Colorado conceded that a downstream Stateʹs only remedy for
interstate pollution of this sort is a common‐law nuisance suit and ʺdrink[ing] dirty
water until this case makes its way up to the courts.ʺ Id. at 553. This cannot be what
Congress intended.
4
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The draft permit issued in this case allows for variable turbidity level restrictions
by season and exemptions from the limitations in times of drought to remedy
emergency threats or threats to public health or safety. Catskill II, 451 F.3d at 86.
Point source operators can also seek a variance from limits. See 40 C.F.R.
§ 125.3(b).
In addition, much of the concern over water transfers involved
agricultural use, but water diversions from a ʺnavigable waterʺ for agricultural
use direct water away from a ʺnavigable water,ʺ and thus do not trigger the need
for a § 402 permit. Waters returning to a ʺnavigable waterʺ which are
ʺagricultural stormwater dischargesʺ and ʺreturn flows from irrigated
agricultureʺ are specifically exempted from the statutory definition of ʺpoint
source.ʺ 33 U.S.C. § 1362(14); see also 33 U.S.C. § 1342(l) (exempting ʺdischarges
composed entirely of return flows from irrigated agricultureʺ from permitting
requirements). Thus, the catastrophic results of applying NPDES permits to
water transfers bemoaned by appellants are exaggerated.5
In addition, general permits can be issued to ʺan entire class of hypothetical
dischargers in a given geographic region,ʺ and thus covered discharges can commence
automatically without an individualized application process. Nw. Envtl., 537 F.3d at
1011 (citations omitted); see 40 C.F.R. § 122.28.
5
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Third, as discussed above, Congress used the phrase ʺnavigable
watersʺ to refer to individual water bodies in numerous provisions of the Act.
Another well‐settled rule of statutory interpretation holds that the same words in
a statute bear the same meaning. See Sullivan v. Stroop, 496 U.S. 478, 483 (1990)
(ʺthe ʹnormal rule of statutory construction [is] that identical words used in
different parts of the same act are intended to have the same meaning.ʹʺ (internal
citations omitted)); Prus v. Holder, 660 F.3d 144, 147 (2d Cir. 2011) (ʺthe normal
rule of statutory construction [is] that identical words used in different parts of
the same act are intended to have the same meaningʺ). When the Act is read as a
whole, it is clear that Congress did not intend the phrase ʺnavigable watersʺ to be
interpreted as a single water body because that interpretation is ʺinconsisten[t]
with the design and structure of the statute as a whole.ʺ Utility Air, 134 S. Ct. at
2442; see also Scalia & Garner, Reading Law 63 (ʺA textually permissible
interpretation that furthers rather than obstructs the documentʹs purpose should
be favored.ʺ).
Accordingly, in my opinion, the structure and context of the Act
show clearly that Congress did not intend to exempt water transfers from the
permitting requirements.
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C.
The Purpose of the Act
The Act was passed in 1972 to address environmental harms caused
by the discharge of pollutants into water bodies. As the Act itself explains, its
purpose was to ʺrestore and maintain the chemical, physical, and biological
integrity of the Nationʹs waters.ʺ 33 U.S.C. § 1251(a); accord Miccosukee, 541 U.S.
at 102; Waterkeeper All., Inc. v. EPA, 399 F.3d 486, 490‐91 (2d Cir. 2005); see also
Catskill I, 273 F.3d at 486 (ʺ[T]he Act contains the lofty goal of eliminating water
pollution discharges altogether.ʺ).
The Water Transfers Rule is simply inconsistent with the purpose of
the Act and undermines the NPDES permit program. It creates a broad
exemption that will manifestly interfere with Congressʹs desire to eliminate
water pollution discharges. As the majority acknowledges, water transfers are a
real concern. Artificial transfers of contaminated water present substantial risks
to water quality, the environment, the economy, and public health. If interbasin
transfers are not regulated, there is a substantial risk that industrial waste, toxic
algae, invasive species, and human and animal contaminants will flow from one
water body to another. Accepting the argument that water transfers are not
covered by the Act on the theory that pollutants are not being added but merely
19
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moved around surely undermines Congressʹs intent to restore and maintain the
integrity of our waters. See Robert A. Katzmann, Judging Statutes 31 (2014) (ʺThe
task of the judge is to make sense of legislation in a way that is faithful to
Congressʹs purposes.ʺ).
In sum, based on the plain words of §§ 1311 and 1362, the structure
and design of the Act, and its overall purpose, I would hold that Congress has
ʺunambiguously expressedʺ its intent to subject water transfers to the Actʹs
permitting requirements.
II
As the majority notes, our Court has twice interpreted these precise
provisions of the Act as applied to these very facts. See Catskill I, 273 F.3d 484‐85;
Catskill II, 451 F.3d at 79‐80. The decisions are not controlling, however, because
EPA had not yet adopted the Water Transfers Rule and we conducted our review
under a different deference standard. See Catskill I, 273 F.3d at 490 (ʺIf the EPAʹs
position had been adopted in a rulemaking or other formal proceeding, [Chevron]
deference might be appropriate.ʺ (emphasis added)); Catskill II, 451 F.3d at 82
(ʺThe City concedes that this EPA interpretation is not entitled to Chevron
deference.ʺ). Nonetheless, the two decisions are particularly helpful to the
20
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analysis at hand. Similarly, Supreme Court decisions have also suggested that
EPAʹs unitary waters theory is inconsistent with the plain wording of the Act.
A.
Catskill I and II
In Catskill I and II, we conducted our inquiry under Skidmore v. Swift
& Co., 323 U.S. 134 (1944), and United States v. Mead Corp., 533 U.S. 218 (2001). See
Catskill I, 273 F.3d at 491; Catskill II, 451 F.3d at 83 n.5.6 Our application of the
Skidmore/Mead framework does not imply that we found the Act to be
ambiguous. Rather, to the contrary, we concluded in Catskill I and II that the
meaning of the Act was plain and unambiguous.
While we discussed Mead and Skidmore in Catskill I and II, we rejected EPAʹs
position as unpersuasive. In Catskill I we held:
6
[C]ourts do not face a choice between Chevron deference and
no deference at all. Administrative decisions not subject to
Chevron deference may be entitled to a lesser degree of
deference: the agency position should be followed to the
extent persuasive. See Mead, 121 S. Ct. at 2175‐76 (citing
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). For the
reasons that follow, however, we do not find the EPAʹs
position to be persuasive.
273 F.3d at 491. In Catskill II, we observed that because EPAʹs position was not the
product of a formal rulemaking, the most EPA could hope for was to persuade the court
of the reasonableness of its position under Skidmore, a position we did not accept.
Catskill II, 451 F.3d at 83 n.5 (ʺ[W]e do not find the [ʹholisticʹ] argument persuasive and
therefore decline to defer to the EPA.ʺ).
21
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1.
Skidmore
Under Skidmore, the court applies a lower level of deference to
certain agency interpretations and considers ʺthe agencyʹs expertise, the care it
took in reaching its conclusions, the formality with which it promulgates its
interpretations, the consistency of its views over time, and the ultimate
persuasiveness of its arguments.ʺ Community Health Ctr. v. Wilson‐Coker, 311 F.3d
132, 138 (2d Cir. 2002); accord In re New Times Sec. Servs., Inc., 371 F.3d 68, 83 (2d
Cir. 2004); see Skidmore, 323 U.S. at 140. The appropriate level of deference
afforded an agencyʹs interpretation of a statute depends on its ʺpower to
persuade.ʺ Christensen v. Harris County, 529 U.S. 576, 587 (2000). Unlike Chevron,
however, Skidmore does not require a court to make a threshold finding that the
statute is ambiguous before considering the persuasiveness of the agencyʹs
interpretation. Instead, Skidmore merely supplies the appropriate framework for
reviewing agency interpretations that ʺlack the force of law.ʺ Id.
As the majority notes, the Supreme Court has never explicitly held
that courts must find ambiguity before applying the Skidmore framework. While
there is some scholarly authority for the proposition that ʺʹthe Skidmore standard
implicitly replicates Chevronʹs first step,ʹʺ Op. at 34 (quoting Kristin E. Hickman
22
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& Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L.
Rev. 1235, 1247 (2007)), the Supreme Court has decided numerous cases under
Skidmore without finding that a statuteʹs language was ambiguous, see, e.g., EEOC
v. Arabian American Oil, 499 U.S. 244, 257 (1991) (applying Skidmore without
finding ambiguity in statute and noting that agencyʹs interpretation ʺlacks
support in the plain language of the statuteʺ); Whirlpool Corp. v. Marshall, 445 U.S.
1, 11 (1980) (applying Skidmore without finding ambiguity in statute and holding
that regulation was permissible after considering statuteʹs ʺlanguage, structure
and legislative historyʺ); see generally Richard J. Pierce, Jr., I Admin. L. Treatise
§ 6.4 (5th ed. 2010).
Of course, the Supreme Court did not hold, in either Skidmore or
Mead, that ambiguity was a threshold requirement to applying the framework.
See Mead, 533 U.S. at 235 (An agency ruling is entitled to ʺrespect proportional to
its ʹpower to persuade,ʹ . . . . Such a ruling may surely claim the merit of its
writerʹs thoroughness, logic, and expertness, and any other sources of weight.ʺ
(citations omitted)); Skidmore, 323 U.S. at 164 (ʺThe weight of [an agencyʹs]
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
23
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pronouncements, and all those factors which give it power to persuade, if lacking
power to control.ʺ). Rather, the Skidmore/Mead framework adopts a less rigid,
more flexible approach, see U.S. Freightways Corp. v. Commʹr, 270 F.3d 1137, 1142
(7th Cir. 2001) (referring to ʺthe flexible approach Mead described, relying on . . .
Skidmoreʺ), as it presents ʺa more nuanced, context‐sensitive rubricʺ for
determining the level of deference a court will give to an agency interpretation,
Thomas W. Merrill and Kristin E. Hickman, Chevronʹs Domain, 89 Geo. L.J. 833,
836 (2001); see also Pierce, supra, § 6.4, at 444 (ʺThe Court has referred to a variety
of factors that can give an agency statement ʹpower to persuade.ʹ . . . [N]o single
factor is dispositive . . . .ʺ).
Ambiguity in a statute, of course, can be a factor, and in the sliding‐
scale analysis of the Skidmore/Mead framework, the ʺpower to persuadeʺ of an
agency determination can be affected by the clarity ‐‐ or lack thereof ‐‐ of the
statute it is interpreting. Indeed, upon applying the Skidmore/Mead framework, a
court may uphold ‐‐ or reject ‐‐ an agency interpretation because the
interpretation is consistent with ‐‐ or contradicts ‐‐ a statute whose meaning is
clear. See Pierce, supra, § 6.4, at 443. Here, we did not defer to the agencyʹs
24
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interpretation of the Act in Catskill I and II, precisely because the Water Transfers
Rule contravened the plain meaning of the Act.
2.
The Plain Meaning of the Act
The majority dismisses the notion that we ruled on the plain
meaning of the Act in Catskill I and II, asserting that there were only a ʺfew
references to ʹplain meaningʹʺ in our decisions. Op. at 36. To the contrary,
through both our words and our reasoning, we made clear repeatedly in Catskill I
and II that the agencyʹs unitary waters theory was inconsistent with the
unambiguous plain meaning of the Act.
In Catskill I, we held that defendantsʹ interpretation was
ʺinconsistent with the ordinary meaning of the word ʹaddition.ʹʺ 273 F.3d at 493
(emphasis added). Specifically, we held that there is an ʺadditionʺ of a pollutant
into navigable water from the ʺoutside worldʺ ‐‐ thus triggering the permitting
requirement ‐‐ any time such an ʺadditionʺ is from ʺany place outside the
particular water body to which pollutants are introduced.ʺ Id. at 491 (emphasis
added). We reasoned that:
Given the ordinary meaning of the [Act]ʹs text and our
holding in Dague, we cannot accept the Gorsuch and
Consumers Power courtsʹ understanding of ʺaddition,ʺ at
least insofar as it implies acceptance of what the Dubois
25
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court called a ʺsingular entityʺ theory of navigable
waters, in which an addition to one water body is
deemed an addition to all of the waters of the United
States. . . . We properly rejected that approach in Dague.
Such a theory would mean that movement of water from one
discrete water body to another would not be an addition even
if it involved a transfer of water from a water body
contaminated with myriad pollutants to a pristine water body
containing few or no pollutants. Such an interpretation is
inconsistent with the ordinary meaning of the word
ʺaddition.ʺ
Id. at 493 (emphases added).7 As a result, we held that ʺthe transfer of water
containing pollutants from one body of water to another, distinct body of water
is plainly an addition and thus a ʹdischargeʹ that demands an NPDES permit.ʺ Id.
at 491 (emphasis added). Accordingly, we clearly were relying on the plain
meaning of the Act in reaching our conclusion.
We also noted that ʺ[e]ven if we were to conclude that the proper
application of the statutory text to the present facts was sufficiently ambiguous
to justify reliance on the legislative history of the statute, . . . that source of
In Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991), the City of Burlington
argued that ʺpollutants would be ʹaddedʹ only when they are introduced into navigable
waters for the first time,ʺ id. at 1354, an argument mirroring those raised by defendants
here. We rejected the contention, in light of ʺthe intended broad reach of § 1311(a),ʺ
noting ʺthat the definition of ʹdischarge of a pollutantʹ refers to ʹany point sourceʹ
without limitation.ʺ Id. at 1355 (quoting 33 U.S.C. § 1362(12)). We rejected the assertion
that water flowing from a pond to a marsh was not an ʺaddition.ʺ See Catskill I, 273 F.3d
at 492.
7
26
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legislative intent would not help the City.ʺ 273 F.3d at 493. That language
certainly makes clear we concluded the statutory text was not ambiguous.
Finally, in the penultimate paragraph of Catskill I, we made
absolutely clear that our holding was based on the plain meaning of the statutory
text. We held:
In any event, none of the statuteʹs broad purposes
sways us from what we find to be the plain meaning of its
text. . . . Where a statute seeks to balance competing
policies, congressional intent is not served by elevating
one policy above the others, particularly where the
balance struck in the text is sufficiently clear to point to an
answer. We find that the textual requirements of the
discharge prohibition in § 1331(a) and the definition of
ʺdischarge of a pollutantʺ in § 1362(12) are met here.
Id. at 494 (emphases added). 8
Our analysis in Catskill II was similar, as we dismissed defendantsʹ
arguments as merely ʺwarmed‐upʺ versions of those rejected in Catskill I, made
no more compelling by EPAʹs new ʺholisticʺ interpretation of the statute. 451
At least one commentator has agreed that we found in Catskill I that ʺthe statuteʹs
plain meaning was clear.ʺ Jeffrey G. Miller, Plain Meaning, Precedent and Metaphysics,
Interpreting the ʺAdditionʺ Element of the Clean Water Act Offense, 44 Envtl. L. Rep. News
& Analysis 10770, 10792 (2014) (ʺAlthough the Second Circuit did not explicitly employ
the two‐step Chevron deference test to EPAʹs water transfer rule, it left no doubt as to
how it would have decided the case under Chevron. With regard to the first step,
whether the statute is ambiguous, the court in Catskill I held that the statuteʹs plain
meaning was clear.ʺ).
8
27
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F.3d at 82. We rejected New York Cityʹs ʺʹholistic arguments about the allocation
of state and federal rights, said to be rooted in the structure of the statute,ʺ
because, we concluded, they ʺsimply overlook its plain language.ʺ Id. at 84.
(emphasis added). We noted our dismissal of the unitary waters theory in
Catskill I based on the ordinary meaning of the word ʺadditionʺ:
We also rejected the Cityʹs ʺunitary waterʺ theory of
navigable waters, which posits that all of the navigable
waters of the United States constitute a single water
body, such that the transfer of water from any body of
water that is part of the navigable waters to any other
could never be an addition. We pointed out that this
theory would lead to the absurd result that the transfer of
water from a heavily polluted, even toxic, water body to
one that was pristine via a point source would not
constitute an ʺadditionʺ of pollutants and would not be
subject to the [Act]ʹs NPDES permit requirements.
Catskills I rejected the ʺunitary waterʺ theory as
inconsistent with the ordinary meaning of the word
ʺaddition.ʺ
Id. at 81 (emphasis added) (internal citations omitted). Again, we considered the
very interpretation of ʺnavigable watersʺ proffered in the current appeal and
rejected it based on ʺthe plain meaningʺ of the Actʹs text. Id. at 82.9
The majority suggests that we ruled on the meaning of ʺadditionʺ based on the
plain meaning of the statute without reaching the meaning of ʺaddition . . . to navigable
waters.ʺ Op. at 36‐37 (emphasis added) (ʺWe do not . . . think that by referring to the
ʹplain meaningʹ of ʹadditionʹ in Catskill I we were holding that the broader statutory
9
28
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I do not suggest that we are bound by our prior decisions. But in
both decisions, we carefully considered the statutory language, and in both
decisions, based on the plain wording of the text, we rejected an interpretation of
§§ 1311 and 1362 that construes ʺnavigable watersʺ and ʺthe waters of the United
Statesʺ to mean a single water body. Hence, we have twice rejected the theory
based on the plain language of the Act. That plain language has not changed,
and neither should our conclusion as to its meaning.
B.
The Supreme Court Precedents
Finally, although the Supreme Court has not explicitly ruled on the
validity of EPAʹs ʺunitary watersʺ theory, it has expressed serious reservations.
In South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S.
1537 (2004), the Court strongly suggested that the theory is not reasonable. First,
the Court remanded for fact‐finding on whether the two water bodies at issue
phrase ʹaddition . . . to navigable watersʹ unambiguously referred to a collection of
individual ʹnavigable waters.ʹʺ (internal citations and quotations omitted)). It is not
possible, however, to define ʺadditionʺ without defining the object to which the
addition is made, as the concepts are inexorably linked. It is clear from our reasoning in
Catskill I and II, that we considered the entire phrase in reaching our conclusion. Thus,
when we stated ʺthat the discharge of water containing pollutants from one distinct
water body to another is an ʹaddition of [a] pollutantʹ under the CWA,ʺ we could only
have meant that the discharge of water containing pollutants constitutes ʺan ʹadditionʹ
of [a] pollutantʺ to navigable waters. Catskill II, 451 F.3d at 80.
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were ʺmeaningfully distinct water bodies.ʺ 541 U.S. at 112. That disposition
follows from Judge Walkerʹs soup ladle analogy in Catskill I: ʺIf one takes a ladle
of soup from a pot, lifts it above the pot, and pours it back into the pot, one has
not ʹaddedʹ soup or anything else to the pot (beyond, perhaps, a de minimis
quantity of airborne dust that fell into the ladle).ʺ 273 F.3d at 492. In Catskill II,
we noted that such a transfer would be an intrabasin transfer, from one water
body back into the same water body, and we then applied the analogy to the
facts of this case: ʺThe Tunnelʹs discharge . . . was like scooping soup from one
pot and depositing it in another pot, thereby adding soup to the second pot, an
interbasin transfer.ʺ 451 F.3d at 81. In Miccosukee, the Supreme Court cited the
ʺsoup ladleʺ analogy with approval, and remanded the case to the district court
to determine whether the water bodies in question were ʺtwo pots of soup, not
one.ʺ 541 U.S. at 109‐10; see also id. at 112. If the ʺunitary watersʺ theory were
valid, however, there would have been no need to resolve this factual question.
If all the navigable waters of the United States were deemed one collective
national body, there would be no need to consider whether individual water
bodies were distinct ‐‐ there would be no need to determine whether there were
two pots of soup or one.
30
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Second, as previously discussed, the Court observed that ʺseveral
NPDES provisions might be read to suggest a view contrary to the unitary
waters approach.ʺ Id. at 107. The Court noted that under the Act, states ʺmay set
individualized ambient water quality standards by taking into consideration ʹthe
designated uses of the navigable waters involved,ʺ thereby affecting local
NPDES permits. Id. (quoting 33 U.S.C. § 1313(c)(2)(A)). ʺThis approach,ʺ the
Court wrote, ʺsuggests that the Act protects individual water bodies as well as
the ʹwaters of the United Statesʹ as a whole.ʺ Id.10
Subsequent Supreme Court decisions support this reading of
Miccosukee. In Los Angeles County Flood Control District v. Natural Resources
Defense Council, Inc., the Supreme Court held that a water transfer between one
portion of a river through a concrete channel to a lower portion of the same river
did not trigger a NPDES permit requirement. 133 S. Ct. 710 (2013). The Court
observed that ʺ[w]e held [in Miccosukee] that th[e] water transfer would count as
a discharge of pollutants under the CWA only if the canal and the reservoir were
ʹmeaningfully distinct water bodies.ʹʺ Id. at 713 (emphasis added) (citations
omitted). In holding that ʺthe flow of water from an improved portion of a
In Catskill II, we concluded that ʺ[o]ur rejection of [the unitary waters] theory in
Catskill I . . . is supported by Miccosukee, not undermined by it.ʺ 451 F.3d at 83.
10
31
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navigable waterway into an unimproved portion of the very same waterway
does not qualify as a discharge of pollutants under the CWA,ʺ id., the Court
again suggested that it would be a discharge of pollutants if the transfer were
between two different water bodies.
In Miccosukee, the Supreme Court acknowledged the concerns that
have been raised about the burdens of permitting, but also observed that ʺit may
be that such permitting authority is necessary to protect water quality, and that the
States or EPA could control regulatory costs by issuing general permits to point
sources associated with water distribution programs.ʺ 541 U.S. at 108 (emphasis
added). Indeed, recognizing the importance of safeguarding drinking water,
Congress created an extensive system to protect this precious resource, a system
that would be undermined by exempting interbasin water transfers.
Hence, the Supreme Courtʹs decisions in Miccosukee and Los Angeles
County support the conclusion that water transfers between two distinct water
bodies are not exempt from the Act.
III
In my view, then, Congress has ʺunambiguously expressedʺ its
intent to subject interbasin water transfers to the requirements of §§ 1311 and
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1362 of the Act. Accordingly, I would affirm the judgment of the district court
based on step one of Chevron. Even assuming, however, that the statutory text is
ambiguous, I agree with the district court that the Water Transfers Rule also fails
at Chevron step two because it is an unreasonable and manifestly contrary
interpretation of the Act, largely for the reasons set forth in the district courtʹs
thorough and carefully‐reasoned decision. I add the following:
First, Chevron deference has its limits. ʺDeference does not mean
acquiescence,ʺ Presley v. Etowah County Commʹn, 502 U.S. 491, 508 (1992), and
ʺcourts retain a role, and an important one, in ensuring that agencies have
engaged in reasoned decisionmaking,ʺ Judulang v. Holder, 132 S. Ct. 476, 484‐85
(2011).
Second, an agencyʹs interpretation of an ambiguous statute is not
entitled to deference where the interpretation is ʺat oddsʺ with the statuteʹs
ʺmanifest purpose,ʺ Whitman v. Am. Trucking Assʹns, 531 U.S. 457, 487 (2001), or
the agencyʹs actions ʺʹdeviate from or ignore the ascertainable legislative intent,ʹʺ
Chem. Mfrs. Assʹn v. EPA, 217 F.3d 861, 867 (D.C. Cir. 2000) (quoting Small Refiner
Lead Phase‐Down Task Force v. EPA, 705 F.2d 506, 520 (D.C. Cir. 1983)). See
Katzmann, Judging Statutes 31 (ʺThe task of the judge is to make sense of
33
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legislation in a way that is faithful to Congressʹs purposes. When the text is
ambiguous, a court is to provide the meaning that the legislature intended. In
that circumstance, the judge gleans the purpose and policy underlying the
legislation and deduces the outcome most consistent with those purposes.ʺ). As
discussed above, in my view the Water Transfers Rule is manifestly at odds with
Congressʹs clear intent in passing the Act.
Third, the Water Transfers Rule is not entitled to deference because
it will lead to absurd results. See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015)
(ʺNo regulation is ʹappropriateʹ if it does significantly more harm than good.ʹʺ);
see also Scalia & Garner, Reading Law 234 (ʺA provision may be either disregarded
or judicially corrected as an error (when the correction is textually simple) if
failing to do so would result in a disposition that no reasonable person could
approve.ʺ). Indeed, this Court has already held ‐‐ twice ‐‐ that the ʺunitary
watersʺ theory would lead to absurd results. In Catskill I, we concluded that
ʺ[n]o one can reasonably argue that the water in the Reservoir and the Esopus are
in any sense the ʹsame,ʹ such that ʹadditionʹ of one to the other is a logical
impossibility.ʺ 273 F.3d at 492 (emphasis added). In Catskill II, we rejected the
ʺunitary waterʺ theory for a second time, observing that it ʺwould lead to the
34
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absurd result that the transfer of water from a heavily polluted, even toxic, water
body to one that was pristine via a point source would not constitute an
ʹadditionʹ of pollutants.ʺ 451 F.3d at 81 (emphasis added). It would be an absurd
result indeed for the Act to be read to allow the unlimited transfer of polluted
water to clean water. Clean drinking water is a precious resource, and Congress
painstakingly created an elaborate permitting system to protect it. Deference has
its limits; I would not defer to an agency interpretation that threatens to
undermine that entire system.
* * *
I would affirm the judgment of the district court, and, accordingly, I
dissent.
35
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