National Wildlife Federation v. Gorsuch, Civ. A. No. 79-0915.

• Decision Date: 29 January 1982
• Docket Number: Civ. A. No. 79-0915.
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Anne GORSUCH, Administrator, U. S. Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — District of Columbia

530 F. Supp. 1291

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Anne GORSUCH,^* Administrator, U. S. Environmental Protection Agency, et al., Defendants.

Civ. A. No. 79-0915.

United States District Court, District of Columbia.

January 29, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patrick A. Parenteau, David G. Burwell, National Wildlife Federation, Washington, D. C., for plaintiffs.

Robert M. Lindholm, Jefferson City, Mo., for plaintiff intervenor State of Mo.

Fred R. Disheroon, Sr. Trial Atty., Dept. of Justice, Washington, D. C., for Anne Gorsuch in her official capacity as Administrator of the U. S. Environmental Protection Agency.

Arnold H. Quint, Washington, D. C., Turner T. Smith, Jr., Richmond, Va., for Electric Utilities-Alabama Power Co., et al.

Gerry Levenberg, Washington, D. C., for Northwest Utilities Group-Idaho Power et al.

Sam Kazman, Pacific Legal Foundation, Washington, D. C., for Ass'n of California Water Agencies (ACWA).

Robert L. McCarty, Washington, D. C., for Colorado Water Agencies-Colorado River Water Conservation Dist., et al.

Kenneth A. Rubin, James B. Vasile, Washington, D. C., for American Water Works Ass'n and Nat. Ass'n of Water Companies.

Frank E. Evans, Robert L. McCarty, Washington, D. C., for Nat. Water Resources Ass'n.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

This case concerns the applicability to man-made dams of the Clean Water Act's permit system for pollutant discharges. Plaintiff National Wildlife Federation and plaintiff-intervenor State of Missouri seek a declaratory judgment that defendant Gorsuch,¹ has violated her non-discretionary duty by failing to regulate the discharge of pollutants from dams under the National Pollution Discharge Elimination System (NPDES) as required by sections 301(a) and 402(a) of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1342(a),² and a writ of mandamus or injunction compelling defendant to immediately promulgate regulations which designate dams as a point source category under CWA § 402, establish effluent limitations or other performance standards for dams on a categorical basis, and subject existing and proposed dams to all the NPDES requirements applicable to other categories of point sources. The case was brought under CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2), vesting jurisdiction in the district courts over citizen suits against the Administrator of EPA "where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator"; and under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and (C), directing reviewing courts to set aside administrative action "not in accordance with law" and "in excess of statutory ... authority ...". There is no dispute as to EPA's non-discretionary duty to regulate dams under the NPDES program, if dams are in fact point sources which discharge pollutants into navigable waters within the meaning of the CWA. The case was tried to the Court in a three day trial.

Although the parties were unable to agree to stipulated facts which would have allowed disposition of this case on cross motions for summary judgment, they are nevertheless in agreement that the essence of this case is a single legal question. As will be seen, remaining factual disputes are not material to the resolution of that issue. It is not disputed that the existence and operation of dams sometimes cause water quality problems. The question is whether, in terms of the statutory definitions in the CWA, the discharge of water of diminished quality from dams constitutes the discharge of one or more pollutants into the navigable waters of the United States from a point source. If so, the discharges would be unlawful, CWA § 301(a), 33 U.S.C. § 1311(a), unless permitted under the NPDES system. CWA § 402(a), 33 U.S.C. § 1342(a).

EPA has taken the position that dams are not point sources requiring NPDES permits, (See Exhibit 2 to Plaintiff's Amended Complaint), and has classified dams as nonpoint sources of pollution. In February 1978, plaintiff National Wildlife Federation petitioned the EPA to institute a rulemaking proceeding to set uniform effluent limitations for discharges from hydroelectric dams as a point source category under CWA § 402(a).³ EPA has not done so. Defendants argue that dams were not intended to be subject to NPDES regulation, and that the water quality problems associated with dams, can be, and are being addressed through other mechanisms in the CWA, such as the regulation of upstream point sources and the nonpoint source pollution program under § 208, and by other federal and state laws.

The 1972 Federal Water Pollution Control Act Amendments marked a major transformation in the nation's approach to the control of water pollution.⁴ Prior to 1972, the program was based upon water quality standards promulgated and implemented by the states with some assistance and oversight from the federal government. The 1965 Act required each state to classify its streams (or stream segments) and waters according to their intended uses, such as agriculture, municipal water supply, fish and wildlife, or recreation; and set water quality standards, such as the allowable concentration of dissolved oxygen or suspended solids, appropriate for each category of use. The method of controlling water pollution was to work backwards from the desired water quality for the water body, and taking into account its capacity to assimilate pollutants, attempt to determine which sources were responsible for pollution causing violation of the standards. Pollution discharges did not violate the law unless they could be shown to cause the water body to fail to meet water quality standards. This process was inherently difficult and uncertain, and combined with the slow progress of the states in setting the standards and the cumbersome enforcement mechanisms, caused the Senate Committee on Public Works to conclude in 1972 that "the national effort to abate and control water pollution has been inadequate in every vital aspect", leaving many of the nation's navigable waters severely polluted, with major waterways near the industrial and urban areas unfit for most purposes.⁵

In an endeavor to bolster the flagging antipollution effort, in 1970 federal officials instituted a permit system for pollutant discharges under Section 13 of the Refuse Act of 1899, 33 U.S.C. § 407, which prohibits the discharge of any matter into navigable waters without a federal permit. This system, for various reasons, also proved to be cumbersome and ineffective.⁶

The new approach instituted by the 1972 legislation is based upon the principle that no one has the right to use the nation's waters to dispose of pollutants. Rather than allowing the disposal of pollutants in water up to the point where it causes water quality violations, the goal of the Act is to eliminate completely the discharge of pollutants into navigable waters. CWA § 101(a); 33 U.S.C. § 1251(a). However, since immediate total elimination of pollutant discharges is obviously impracticable, the Act provides a permitting system for discharges. To oversimplify somewhat, consonant with the philosophy of no right to pollute and the zero discharge goal, the permits are designed to allow the lowest level of discharge technologically feasible.⁷ For various categories of sources, EPA determines the pollution control processes which meet the appropriate level of technology, and sets effluent standards which can be achieved by application of those processes. The NPDES program converts these generalized standards into requirements for each individual source. Each permit contains effluent limitations, that is, restrictions of quantities, rates and concentrations of chemical, physical, biological, and other constitutents which may be discharged, CWA § 502(11), 33 U.S.C. § 1362(11), and a schedule of compliance. The permit program is administered either by EPA, or by states with EPA-approved administration programs. Water quality standards are not abolished, but supplement the technology-based program, and may be included in NPDES permits. CWA §§ 302, 303, 402(a)(1), 33 U.S.C. §§ 1312, 1313, 1342(a)(1).

In determining whether dams are subject to the NPDES program, the question is whether dams "discharge pollutants" within the meaning of the CWA. CWA §§ 301(a) and 402(a), 33 U.S.C. §§ 1311(a) and 1342(a). The definition of "pollutant" is "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." CWA § 502(6), 33 U.S.C. § 1362(6). The term "discharge of a pollutant" means "any addition of any pollutant to navigable waters from any point source", CWA § 502(12), 33 U.S.C. § 1362(12), and the term "point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture." CWA § 502(14), 33 U.S.C. § 1362(14).

Defendants have not argued that dams cannot be point sources.⁸ In the parties' Joint Statement of Material Facts No Longer in Dispute, they have characterized a dam as any structure which impounds water, and explained that all dams must have some structure to release excess water over, through, or around the dam, which is called a spillway. There are many different spillway designs. Some merely release water over the top of the dam. Large dams usually have multiple outlets, including one near the bottom of the reservoir so that most of the stored water is...