U.S. ex rel. Tennessee Valley Authority v. Tennessee Water Quality Control Bd.
Decision Date | 20 October 1983 |
Docket Number | No. 82-5288,82-5288 |
Citation | 717 F.2d 992 |
Parties | , 14 Envtl. L. Rep. 20,598 UNITED STATES of America ex rel. TENNESSEE VALLEY AUTHORITY and Tennessee Valley Authority, Plaintiffs-Appellees, v. TENNESSEE WATER QUALITY CONTROL BOARD, et al., Defendants-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
William M. Leech, Jr., Atty. Gen. of Tennessee, Michael Pearigen (argued), Asst. Atty. Gen., Nashville, Tenn., for defendants-appellants.
Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, (argued), Robert C. Glinski, Brent R. Marquand, Tennessee Valley Authority, Knoxville, Tenn., for plaintiffs-appellees.
Nancy B. Firestone, Appellate Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., amicus curiae for U.S.
Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and GUY, District Judge. *
The question in this case is whether the Tennessee Water Quality Control Board may require the Tennessee Valley Authority (TVA) to acquire a state permit for the reconstruction and operation of a dam and flume on a navigable waterway within the State of Tennessee. The case arises under the Federal Water Pollution Control Act, as amended, commonly referred to as the Clean Water Act (the Act), 33 U.S.C. Sec. 1251 et seq. (1976 ed. and Supp. V).
A private power company built a hydroelectric unit on the Ocoee River in Tennessee in 1913. Water was diverted to the power plant by the second in a series of three dams on the river. This dam is referred to as Ocoee No. 2. TVA acquired all three dams in 1939 and built an additional dam in 1941. Ocoee No. 2 consists of a rock-filled timber crib dam which can divert water into a wooden flume that leads to a powerhouse approximately four and one-half miles downstream. The dam does not impound water, but merely diverts it. From the time the project was put into operation until 1976 the four and one-half miles of riverbed between the dam and the powerhouse contained very little water, consisting primarily of seepage through the dam. In September 1976 TVA shut down the project in order to repair the dam and the steel support trestles of the flume. As a result of the shutdown the Ocoee has been allowed to run its natural course along the streambed and it has provided excellent rafting and canoeing. Since the stretch of the river between the dam and the power plant is adjacent to a U.S. highway the recreational area has been accessible to large numbers of visitors. 1
TVA determined to reopen the Ocoee No. 2 project after completion of the repairs without allowing for recreational releases of water into the riverbed between the dam and powerhouse. The decision was made after Congress rejected a requested appropriation to provide for the loss of revenue from electricity sales which would result from providing for 82 days of recreational release of water annually. Suit was filed by the Ocoee River Council, a non-profit corporation chartered in part to promote recreational uses of the Ocoee River, a private individual who uses the river for recreational purposes and a commercial rafting company to enjoin further work on the project for alleged violation of a number of federal statutes. The district court found that TVA had prepared an adequate final environmental impact statement in connection with its decision to reconstruct Ocoee No. 2. Ocoee River Council v. T.V.A., 540 F.Supp. 788, 795-96 (E.D.Tenn.1981). However, the court also found that the decision to proceed with the reconstruction without any provision for recreational use of the Ocoee River between the dam and the powerhouse was deficient under the National Environmental Policy Act (NEPA) and therefore "not in accordance with law." 5 U.S.C. Sec. 706(2)(A). 540 F.Supp. at 798. Rather than granting an injunction, however, the district court stayed the action in order for TVA to reconsider its decision in light of the NEPA requirements.
After holding several public hearings TVA ratified its previous decision to rehabilitate the Ocoee No. 2 hydroelectric facility and directed that it be operated exclusively for power generation in the absence of some method for ensuring compensation for power losses associated with recreational releases. The general manager of TVA was granted authority to provide for approximately 82 days of recreational releases per year upon development of appropriate compensation arrangements, which were not limited to appropriations but could include concession, license or user fees or other sources of funding. The district court then found that TVA's decision had been reached after evaluation of environmental factors as mandated by NEPA, along with other proper considerations, and granted TVA's motion for summary judgment, dismissing the action. Id. at 800-02.
The plaintiffs did not appeal the final judgment of the district court. However, the Ocoee River Council had filed a complaint with the Commissioner of the Tennessee Department of Public Health prior to entry of the final judgment by the district court. This complaint alleged that the Ocoee No. 2 project would violate the Tennessee Water Quality Control Act unless TVA obtained a water quality permit from the State for diversion of the Ocoee. The commissioner investigated the complaint and by a letter dated December 11, 1981 advised TVA that he had concluded "that TVA's proposed activity requires a State water quality permit pursuant to T.C.A. 70-330(b)" (Tennessee Code Annotated, Section 70-330(b)). One of the two items which the commissioner considered in reaching this conclusion was a written opinion of the Attorney General of Tennessee. In this opinion the Attorney General concluded that a state permit was required for Ocoee No. 2 because the United States Environmental Protection Agency (EPA) had approved Tennessee's permit system as contained in the Tennessee Water Quality Control Act of 1977. The Attorney General pointed out that the authority for states "to create, administer, and enforce state permit systems" under the national pollution discharge elimination system derived from section 402 of the Act, 33 U.S.C. Sec. 1342.
TVA appealed the commissioner's decision to the Tennessee Water Quality Control Board and then filed a petition to remove the proceedings to the federal district court. On the same day TVA filed a declaratory judgment action in the same district court and a motion to consolidate it with the removed action. In the original district court action TVA sought a declaration that the Tennessee Water Quality Control Board and the commissioner had no authority to regulate or interfere with TVA's projected repair and operation of Ocoee No. 2, "by requiring a permit or otherwise."
The Tennessee defendants filed a motion to remand the removed case and a motion to dismiss the declaratory judgment action. In the alternative, if remand were not granted, it filed a motion to dismiss the consolidated actions or for summary judgment. The Ocoee River Council filed a motion to intervene with a motion to remand. However, the district court did not act on the motion to intervene. This court permitted the Ocoee River Council to file a brief and to participate in oral argument as amicus curiae.
The district court granted the motion to consolidate the action, but did not rule on the motion to remand the removed action. Following extensive briefing the district court granted TVA's motion for summary judgment. The district court and the parties agreed that decision of the consolidated actions depended primarily on the proper construction of Section 313 of the Act as amended, 33 U.S.C. Sec. 1323 (1976 ed. and Supp. V), which provides in pertinent part:
Sec. 1323. Federal facilities pollution control
(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any record-keeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. Nothing in this section shall be construed to prevent any department, agency, or instrumentality of the Federal Government, or any officer, agent, or employee thereof in the performance of his official duties, from removing to the appropriate Federal district court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant to this section, and any such proceeding may be removed in accordance with section 1441 et seq. of title 28.
The district court found that section 313 waives federal sovereignty over only those activities of federal agencies resulting in the discharge or runoff of pollutants and that Ocoee No. 2 merely diverts the water from its bed for a short distance, resulting in no discharge or runoff of pollutants. In reaching its conclusion the district court pointed out that Ocoee ...
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