National Wildlife Federation v. Consumers Power Co.
| Decision Date | 01 December 1988 |
| Docket Number | No. 87-1441,87-1441 |
| Citation | 862 F.2d 580 |
| Parties | , 19 Envtl. L. Rep. 20,235 NATIONAL WILDLIFE FEDERATION, Plaintiff-Appellee, v. CONSUMERS POWER COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert A. Fineman, Honigman, Miller, Schwartz, and Cohn, Detroit, Mich., Joseph M. Polito, Jay E. Brant, argued, A.T. Udrys, Consumers Power Co., Jackson, Mich., for defendant-appellant.
Mark Van Putten, argued, Ann Arbor, Mich., for plaintiff-appellee.
Douglas A. Cohen, Policy, Legislation, and Special Litigation Section, Land & Natural Resources Div. Dept. of Justice, Washington, D.C., amicus curiae U.S.
Steven J. Koorse, Hunton & Williams, Richmond, Va., amicus curiae Elec. Utilities.
Before JONES, WELLFORD, and BOGGS, Circuit Judges.
Defendant-appellant Consumers Power Company (Consumers) appeals from the district court order requiring it to apply for a permit, pursuant to Sec. 402 of the Clean Water Act (CWA), 33 U.S.C. Sec. 1342, for the Ludington hydro-electric facility's release of turbine generating water containing entrained fish (live and dead fish, and fish remains) into Lake Michigan. The facility is jointly owned by Consumers (51%) and Detroit Edison Company (49%). The court held that the Ludington facility's release of turbine generating water containing entrained fish is subject to the CWA's National Pollutant Discharge Elimination System (NPDES) permit requirements. 33 U.S.C. Sec. 1342. The district court's decision is reported as National Wildlife Federation v. Consumers Power Company, 657 F.Supp. 989 (W.D.Mich.1987). In a complaint filed in district court on November 22, 1985, NWF alleged that Consumers was operating its Ludington hydro-electric facility in violation of the CWA because the turbine generating water release at that facility contained entrained fish not authorized by the current NPDES permits for that facility. NWF brought the action as a citizen suit under CWA Sec. 505(a)(1), 33 U.S.C. Sec. 1365(a)(1).
After a motion from NWF for partial summary judgment respecting liability, and a cross-motion for dismissal and/or summary judgment from Consumers, the district court, in an Opinion and Order issued on March 31, 1987, held that Consumers was in violation of the CWA for the reasons stated in the complaint. The court ordered Consumers to apply to the Michigan Water Resources Commission (MWRC) within 60 days from the date of the Order for the proper NPDES permit authorizing the release of entrained fish into Lake Michigan. Consumers appealed to this court, and the district court stayed the remedial phase of the case pending decision by this court. After consideration of the parties' briefs and the supporting record, we reverse because the Ludington facility's movement of pollutants already in the water is not an "addition" of pollutants to navigable waters of the United States. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 174-75 (D.C.Cir.1982).
The Ludington facility is one of the largest pumped storage facilities in the world, which can move in one day more than 20 billion gallons of water between its manmade reservoir and Lake Michigan. Consumers Power Company, 657 F.Supp. at 993. It is located in Mason County, Michigan, on the eastern shore of Lake Michigan, about four miles south of Ludington. It consists of two widely separated jetties projecting into Lake Michigan. Between the jetties are the water diversion structure and a building that houses six large reversible pump/turbines which, when pumping, move Lake Michigan water uphill through six large penstocks into a manmade reservoir or impoundment. The six penstocks are very large pipes connecting the reservoir and the pump/turbines. Each penstock is 1,100 feet long and tapers from 28 to 24 feet as it approaches the pump/turbines. To these six penstocks are connected twelve intake/discharge openings with two openings per penstock. The reservoir, located on a dune about 400 feet above and 900 feet east of Lake Michigan, is approximately 1.3 square miles in area and, when filled to capacity, holds 27 billion gallons of water.
The facility generates power by letting the water from the reservoir flow through the turbines, and then back into Lake Michigan. The facility operates essentially as a storage battery, storing energy in a large quantity of water held at a height of 400 feet above Lake Michigan. This stored energy is released from the water when gravity forces the water downhill through the penstocks to turn the pump/turbines.
Fish and other aquatic organisms enter this power generation system when the facility, during normal operation, moves the waters of Lake Michigan into the reservoir. During diversion or pumping operations, the facility causes fish and other aquatic organisms to be carried through the system ("entrained") owing to the moving force of the water. As all parties in this lawsuit concede, a substantial number of the fish and other aquatic organisms are destroyed during the normal pump-storage operations of the facility. Some percentage of the fish and other aquatic organisms, however, survive and are released back into Lake Michigan.
Under the Michigan Water Resources Act, Mich.Comp.Laws Ann. Secs. 323.1 et seq., and Section 402 of the CWA, 33 U.S.C. Sec. 1342, the Michigan Water Resources Commission (MWRC) has issued two NPDES permits to Consumers for what is called "operational wastewater discharges" from the facility into Lake Michigan. As explained below, operational wastewater is distinguishable from the turbine generating water on the ground that the former contains pollutants from outside the hydro-electric power generation system. Neither 402 permit has regulated the release of pollutants in the turbine generating water of the facility. Consumers now operates the Ludington facility under a 1969 license as required by the Federal Power Act, 16 U.S.C. Sec. 791a et seq., which was issued by the Federal Power Commission, predecessor of the current Federal Energy Regulatory Commission (FERC).
Generally, the objective of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA Sec. 101(a), 33 U.S.C. Sec. 1251. The CWA establishes a comprehensive statutory system for controlling water pollution. To that end, it establishes the Sec. 402 NPDES permit system for regulating discharges of pollutants into waters of the United States. The District of Columbia Circuit Court of Appeals recently indicated that "the cornerstone of the Clean Water Act's pollution control scheme is the National Pollution Discharge Elimination System (NPDES) permit program...." Natural Resources Defense Council, Inc. v. EPA, 822 F.2d 104, 108 (D.C.Cir.1987). The United States Environmental Protection Agency (EPA) is principally responsible for administering the NPDES permit system, and it may lawfully delegate permit issuing authority to state government. CWA Sec. 402(b), 33 U.S.C. Sec. 1342(b).
The CWA has been held to divide the sources of water pollution into categories: "point source," 33 U.S.C. Sec. 1362(14); and "nonpoint source." 33 U.S.C. Sec. 1288. As the Gorsuch court explained, "[t]he latter category is defined by exclusion and includes all water quality problems not subject to Sec. 402." 693 F.2d at 166 (footnote omitted). The NPDES permit program was designed to control "point sources" of pollution, and the legislative history behind CWA indicates that Congress's focus was on the discharge of traditional industrial and municipal wastes. Id. at 175.
Under Sec. 402, an NPDES permit is required for the "discharge of a pollutant" from a "point source." 33 U.S.C. Sec. 1342. Unless the EPA issues an NPDES permit, "the discharge of any pollutant by any person [is] unlawful." CWA Sec. 301(a), 33 U.S.C. Sec. 1311(a). Where the source of a pollutant is a point source, and the pollutant is discharged into navigable waters, the source must obtain a Sec. 402 permit limiting and controlling both the amount and type of pollutants which can be lawfully discharged. The general prohibition of CWA Sec. 301(a) regarding point source pollution is self-executing. United States v. Frezzo Brothers, Inc., 602 F.2d 1123, 1127 (3rd Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980). In order to avoid liability under Sec. 301(a), a polluter must apply for and obtain an NPDES permit from the EPA, or from an authorized state water pollution control agency. EPA, or an authorized state agency, may in its discretion exempt a specific pollutant discharge from Sec. 301(a)'s general prohibition by issuing an NPDES permit. Alternatively, the agency may choose not to issue such a permit, leaving the discharge unlawful under Sec. 301(a). We have indicated that "[u]nder Sec. 402(a)(2) of the Act, 33 U.S.C. Sec. 1342(a)(2), the Administrator of EPA is required to prescribe the conditions of such permits and to assure compliance with those conditions and other requirements of the Act." United States ex rel. Tennessee Valley Authority v. Tennessee Water Quality Control Board, 717 F.2d 992, 998 (6th Cir.1983).
Section 502(12) of the CWA, a key portion of the statute, defines the term "discharge of pollutants" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. Sec. 1362(12)(A). The District of Columbia Circuit has held that for NPDES requirements to apply to any given set of circumstances, "five elements must be present: (1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source." National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir.1982). We now analyze the Ludington facility's release of turbine generating water containing entrained fish under this framework.
CWA Sec. 502(6) defines "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage,...
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