National Wildlife Federation v. Consumers Power Co.

• Decision Date: 31 March 1987
• Docket Number: No. G85-1146.,G85-1146.
• Citation: 657 F. Supp. 989
• Parties: NATIONAL WILDLIFE FEDERATION, Plaintiff, v. CONSUMERS POWER COMPANY, Defendant.
• Court: U.S. District Court — Western District of Michigan

657 F. Supp. 989

NATIONAL WILDLIFE FEDERATION, Plaintiff, v. CONSUMERS POWER COMPANY, Defendant.

No. G85-1146.

United States District Court, W.D. Michigan, S.D.

March 31, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark Van Putten, Nat. Wildlife Federation, Ann Arbor, Mich., for plaintiff.

Joseph M. Polito, Honigman, Miller, Schwartz & Cohn Detroit, Mich., for defendant.

Peter A. Marquardt, The Detroit Edison Co., Detroit, Mich., for amicus Electric Utilities.

OPINION

ENSLEN, District Judge.

The plaintiff in this action is a non-governmental environmental conservation organization that alleges that defendant, a Michigan corporation that supplies electrical energy to millions of Michigan residents, is operating a hydro-electric power plant located on the shores of Lake Michigan in violation of the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act) ("CWA" or the "Act"). 33 U.S.C. §§ 1251-1376. The CWA prohibits the "discharge of any pollutant by any person," which prohibition encompasses "any addition of any pollutant to navigable waters from any point source," except in accordance with a permit issued by the Environmental Protection Agency ("EPA") or an EPA-approved state agency, which in this instance is the Michigan Water Resources Commission ("MWRC"). See 33 U.S.C. §§ 1311(a) (prohibition on discharge of pollutants), 1342 (permit system), & 1362(12)(A) (definition of a "discharge of a pollutant"). Currently pending before the Court for decision are plaintiff's March 24, 1986 Motion for Partial Summary Judgment and defendant's May 6, 1986 Cross-Motion for Dismissal and/or for Summary Judgment. The parties have extensively briefed the relevant legal issues and have submitted numerous documents and other materials for the Court to consider, and the Court heard oral arguments on the motions on December 9, 1986. In addition, a number of electric utility companies have filed an amicus curiae brief and reply brief. For the reasons discussed below, the Court will grant plaintiff's motion for partial summary judgment and deny defendant's cross-motion for dismissal and/or for summary judgment.

This opinion will consist of three parts. First, the Court will discuss the facts and the procedural posture of the case. Second, the Court will identify and discuss the factual issues that defendant argues are material and thus preclude a grant of summary judgment for plaintiff. Finally, the Court will discuss the legal issues the parties have raised in their submissions. Since the standard for deciding motions for summary judgment is well-known, I will not discuss it in this opinion. See Celotex Corp. v. Catrett, ___ U.S. ___, ___ - ___, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265, 273-75 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Watkins v. Northwestern Ohio Tractor Pullers Association, 630 F.2d 1155, 1158 (6th Cir.1980); FRCP 56(c).

I. Facts and Procedural History

The parties do not dispute most of the material facts. The hydro-electric power plant at issue in this case is located on the shores of Lake Michigan just south of Ludington, Michigan. The plant, which the parties refer to as the "facility," is jointly owned by defendant (51%) and the Detroit Edison Company (49%). The Court notes that the Detroit Edison Company has participated in this case as an amicus curiae. The facility is designed and operated primarily to provide electricity during hours of peak demand. The Court believes that the following portion of defendant's brief sufficiently summarizes the facility's physical characteristics.

The facility consists of two jetties projecting generally westerly into Lake Michigan and situated some distance apart from each other to the north and south, and a north-south breakwater to the west of the two jetties. At or about the shore, and located between the two jetties, is the water diversion structure. Directly to the east of the diversion structure is located a large building housing six turbine-pumps, each of which is connected to an electric generator, which can also be operated as an electric motor, and associated equipment. On top of the adjoining bluff to the east, approximately 400 feet above Lake Michigan and 900 feet east of the Lake, is situated a large, manmade reservoir or impoundment connected to the generator building by six large penstocks or pipes which divert water back and forth through the turbine-pumps between Lake Michigan and the reservoir. The reservoir is approximately 1.3 square miles in area and, when completely filled, has a holding capacity of approximately 27 billion gallons of water. The reservoir is enclosed by an embankment or dike 5.5 miles in circumference. This dike reaches a maximum height of 170 feet, with an average height of 103 feet.... The facility's six penstocks are 1,100 feet long and taper from 28 to 24 feet in diameter as they approach the turbine-pumps.

Consumer Power Company's Brief at 5-6.

The facility has twelve intake/discharge openings connected to these six penstocks; two openings per penstock or pipe. It has two modes of operation. In its pumping mode, the facility draws water from the Lake for storage in the reservoir. During periods of peak electrical demand, the facility operates in its power generation mode, in which the water is released from the reservoir, sent through the turbines, and discharged back into the Lake. See Affidavit of Paul C. Hittle ¶ 4.C. The facility's maximum flow rate in its power generation mode is thirty-three (33) million gallons of water per minute. It is possible "for more than 20 billion gallons of water a day to pass between the reservoir and Lake Michigan." Consumer Power Company's Brief at 6. The facility has "a total generating capacity of 1.8 million kilowatts at full operation." Hittle Affidavit at ¶ 5.D. The discharge of water from the facility is larger than any discharge that the MWRC has ever authorized under the CWA by means of a National Pollutant Discharge Elimination System ("NPDES") permit. Affidavit of Frederick L. Brown, Ph.D. ¶ 12.

Preliminary investigative work for construction of the facility began in January, 1959. Hittle Affidavit ¶ 5.A. Construction of the facility began in July, 1969, and the facility commenced commercial operation in January, 1973. Id. In 1969, the Federal Power Commission ("FPC") (now the Federal Energy Regulatory Commission ("FERC")) issued defendant a license to operate the facility pursuant to the Federal Power Act ("FPA"). Three articles of this license address the facility's effect on the fishery resources of Lake Michigan. The first is article 16, which provides in pertinent part that "the licensee shall, for the conservation and development of fish and wildlife resources, construct, maintain, and operate ... the facility and comply with such reasonable modifications of the project structures and operation as may be ordered by the Commission...." The second is article 37, which requires defendant to conduct "biological and limnological studies ... to determine the effects of the project and its operation on the fishery resources of the project area ... and to make such modifications in project facilities and operations as may be required under Article 16...." The final article is article 38, which provides that defendant:

Shall make or pay the cost of making studies ... to determine the location and adequacy of various types of fish barriers at the project and the effect on the species of fish to be found in the project area of negative and positive pressures and pressure changes within the range expected to be found in the scroll case, penstocks, and draft tubes during the operation of the project and shall construct, operate, and maintain or provide for the construction, operation and maintenance of such fish barrier facilities or provide such deeper submergence of the turbine-pump runners and modify other project facilities and their operation as determined necessary to protect the fishery resources of the project area....

Addendum to National Wildlife Federation Brief at A-44.

Pursuant to its FPA license, defendant has produced approximately forty reports on the effects of the facility's operation on the Lake's fishery resources. Hittle Affidavit ¶ 3.H. In particular, in 1978 defendant requested the Department of Fisheries and Wildlife at Michigan State University to conduct a study on the facility's effects on the Lake's fishery resources. The department completed the study, which is entitled "Assessment of Larval, Juvenile, and Adult Fish Entrainment Losses at the Ludington Pumped Storage Power Plant on Lake Michigan" (the "Liston Report"), in February, 1981. Although the parties disagree about the actual number of fish and fish remains the facility discharges or extrains into Lake Michigan, the Liston Report states that a substantial number of fish are entrained into the facility, killed during the facility's operation, and then discharged into the Lake. See Affidavit of John P. Lawler, Exh. B.

In May of 1986, the FERC requested defendant to develop and to file with the Commission "a plan for mitigation of fishery impacts resulting from operation of the" facility. Supplemental Affidavit of Paul C. Hittle, Ex. A (letter of May 12, 1986 from Kenneth M. Pusateri, Acting Director, Office of Hydropower Licensing). At oral argument, defendant stated that it had filed a mitigation plan in August, 1986. Plaintiff and the Michigan United Conservation Clubs have filed a motion to intervene in the FERC proceeding, and have filed a petition "For Studies Pursuant to Article 38 of the License, for Preparation of an Environmental Impact Statement, for a Hearing, and for Revocation of License or for Order Requiring Installation of Fish Protective Devices, Modification of Operating Procedures, and Other Mitigation." Hittle Supplemental Affidavit, Exs. B & C. Plaintiff stated at oral...