and then returns the water to the stream with added pollutants. The latter situation is described in Appalachian Power Co. v. Train, supra, which held that a plant is responsible under the NPDES program for the pollutants it adds to the waters passing through it, but not for pollutants naturally occurring in the waterway or previously added by other sources. Likewise, a dam/reservoir project should be responsible for the pollutants it adds to the waters which pass through it.
The plaintiffs' interpretation of the statutory language is plausible, consistent with the common sense meaning of the words, and supportive of the policies and goals of the legislation. Defendants' interpretation, in addition to taking pollution sources out of the regulatory program preferred by Congress with no policy justification, is the more tortured. It gives words like "addition" an overly literal and technical meaning, and strains to characterize a man-made and operated dam/reservoir facility as merely part of a river discharging pollutants into itself through natural processes.
Defendants' interpretation also results in the anomaly of taking dams, which admittedly can be point sources and admittedly can emit pollutants, out of the NPDES program. Since the CWA cannot achieve its goals without attacking all pollution sources, dams cannot simply be ignored. EPA has resolved this dilemma by treating dams, which obviously fit the definition of "point source", as nonpoint sources.
This clearly is not the most reasonable reading of the statutory language.
We will therefore accept plaintiffs' reading of the meaning of "discharge of pollutants," and proceed to examine the application of the NPDES program to the undisputed pollutants discharged by dams: sediments, dissolved metals, and heat.
The sediments collected in a reservoir derive from upstream sources on land and from the channel banks and bed, as do sediments in free-flowing streams. They also derive from the land that was flooded by the reservoir. Nonetheless, it is the construction and operation of the dam/reservoir facility which causes the sediments to be trapped, and then possibly discharged downstream, as by sluicing, in far greater than natural quantities. This excess load of sediments, created by the dam and reservoir, and purposefully discharged through a point source, should be subject to the NPDES program. Construction or mining sites which by their activities merely augment the natural process of erosion are subject to NPDES permitting when they discharge the accumulated sediments from that erosion through a discrete conveyance. Similarly, when a reservoir modifies the natural process of the transport of sediments, and then discharges the accumulated sediments through the dam, it should be subject to NPDES regulation. EPA itself so recognized at least once, in requiring an NPDES permit for the sluicing of Guernsey Reservoir.
The fact that sluicing operations may be unusual does not militate against the application of the permit program; it simply means that not many permits may be required. The problem is clearly amenable to point source controls, in that the dam operator can forego sluicing, control the amount of sediment released,
or remove excess sediments by dredging, a procedure which can be accomplished without releasing excess sediments downstream.
Although dissolved metals released by dams originally derive from sediments added to the stream from upstream sources and from native materials at the site, they are changed from the particulate to the dissolved form by the reservoir. Dissolved metals which did not exist before are created by the reservoir, and passed downstream through the dam. They can cause pollution problems which are not caused by the metals in their particulate form.
The reservoir also adds these metals to navigable waters in the sense that they in part derive from areas which were dry land before innundation by the reservoir, and so entered navigable waters when the dam was built and impounded the river. The release of water containing these metals from a dam in greater quantities than existed in the free-flowing river constitutes the discharge of a pollutant from a point source, subject to NPDES permitting.
Some dams discharge water warmer than that of the previously free-flowing stream, because they release water from the upper layer of a thermally-stratified reservoir. The warm water releases are the product of the combination of thermal stratification, which does not exist in a free-flowing stream, and is caused by its impoundment by the dam, and release from the top layer, which is a result of the structure and operation of the dam. There is no doubt but that the dam created, and added, the pollutant. The process, and the impact, are comparable to a power plant which takes in water from a river and returns it in a warmer state, a situation which is unquestionably subject to NPDES permitting. Heat discharges from dams can be controlled technologically, by the use of multiple outlet works, by destratification of the reservoir, or by other means. The discharge of water of higher temperature than existed in the free-flowing state is subject to the NPDES program.
It remains to address the conditions which defendants claim do not fit the definition of "pollutant": low dissolved oxygen, cold, and supersaturation. The general question is whether the list of pollutants in CWA § 502(6), 33 U.S.C. § 1362(6)
is intended to strictly limit the discharges subject to NPDES permitting, or is merely an hodgepodge attempt, not intended to be exclusive, at listing all of the substances and conditions causing pollution when discharged into water. The list is an odd assortment of terms, as specific as "cellar dirt" and as general as "industrial, municipal and agricultural waste." The legislative history is absent of guidance as to why the list was constructed in this manner, or why certain substances or conditions were or were not included. The definition goes on to specifically exclude sewage from vessels, and water, gas or other materials injected into wells in connection with oil or gas production, the latter of which appears not to be covered by the definition in the first place.
As discussed earlier, the definition will be construed broadly to further the purpose of the Act to eliminate all forms of water pollution.
At least two courts have interpreted the Act in the manner urged by plaintiffs, including any form of pollution emitted by a point source in the definition of pollutant. In United States v. Earth Sciences, Inc., supra, 599 F.2d at 373, the court stated, "We believe it contravenes the intent of FWPCA and the structure of the statute to exempt from regulation any activity that emits pollution from an identifiable point." In determining, on a motion to dismiss, that low dissolved oxygen and high metallic concentrations in water discharged from dams could be considered "pollutants" under the CWA, the South Carolina district court reasoned that the conditions described by plaintiffs certainly comprised "pollution" as defined in the Act, and that "no reasonable purpose would be served by admitting pollution while denying the existence of a pollutant." South Carolina Wildlife Federation v. Alexander, supra, 457 F. Supp. at 125. While not going so far as to include all pollution emitted by point sources in the definition of "pollutant", (which was not necessary to its decision), the court in United States v. Hamel, supra, concluded that the failure to include petroleum products in the definition of pollutant did not evidence an intent to exclude them from the Act's prohibition of pollutant discharges without a permit. Since the definition of pollutant had been based on the 1899 Refuse Act's prohibition of the discharge of refuse matter of any kind (except liquid sewage) into navigable water, it was seen as encompassing at the minimum what was covered under the 1899 Act. The Supreme Court had found in United States v. Standard Oil Co., 384 U.S. 224, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966) that aviation gasoline was within the proscription of the 1899 Act, and that it was undoubtedly a pollutant.
Only one case holding that a dam does not discharge "pollutants" under the CWA has come to our attention, and it is inapposite. Defendants have submitted to the Court the unreported opinion in State of Missouri v. Department of the Army, Corps of Engineers, 526 F. Supp. 660 (W.D. Mo. 1980), holding that the operation of the Stockton dam and reservoir project "does not involve or result in the "discharge of a pollutant' as that term is defined in the FWPCA." Slip Op. at 36. The Missouri court, however does not explain how it reached this conclusion, except to say that the dislodging of silt and other pollutants from the downstream river bank caused by the rise and fall of the water level resulting from the operation of the dam's hydroelectric generator does not constitute "runoff of a pollutant" within the meaning of the FWPCA. The only conditions alleged by plaintiff which might be considered pollutants discussed in the opinion are the increased downstream erosion just referred to, and low dissolved oxygen, which the court found had been returned to acceptable levels by the construction of a skimming weir in the reservoir. Slip Op. at 22-23. That case, therefore, does not concern any of the pollutants alleged in this case. Its unexplicated conclusion that one particular dam does not discharge pollutants cannot lend support to any more general determinations concerning the discharge of pollutants from dams.
Further foundation for plaintiffs' interpretation comes from the statute itself, and EPA's implementation of it. In the 1977 Amendments to the Act, Congress directed EPA to publish information and guidelines concerning "conventional pollutants" regulated under the NPDES program, including pollutants classified as biological oxygen demanding ("BOD" is a measure of the amount of dissolved oxygen consumed through biochemical oxidation when the discharge is added to the waterbody), suspended solids, and pH.
None of these are specifically listed in the definition of pollutant, although some of the constitutents causing biological oxygen demand and changes in acidity/alkalinity (pH) and some of the components of suspended solids are listed pollutants. However, pollutants not on the list can also be causes or constituents of these "pollutants." It therefore appears from the statute itself that the definitional list in CWA § 502(6) is not exclusive.
Defendants correctly argue that pollution parameters such as BOD, pH, and total suspended solids (tss), are not pollutants added to water, but are indicators of the presence of other pollutants. For example, biological materials and sewage create biological oxygen demand, and the discharge of acidic industrial wastes can cause changes in the pH of the water. Yet, by using pollution parameters as effluent limitations, EPA controls not only listed pollutants which may contribute to these measurements, but also any unlisted emissions so contributing. For illustration, nitrogen and phosphorous, although naturally occurring elements, and not included in the definitional list, can act as nutrients contributing to BOD. It is true that the pollution parameters are often applied to industrial discharges, which would come under the definitional term "industrial waste" no matter what they contain. However, this need not always be the case. Examine the situation of sediments and other materials derived from run-off and collected at a construction site. They are treated as pollutants when discharged from a discernible conveyance. This discharge cannot be considered industrial, agricultural, or municipal waste, and its constitutents, although perhaps partially consisting of listed materials such as biological materials and sand, do not consist entirely of listed pollutants. It is treated as a pollutant basically because it contributes to the total suspended solids parameter, which, when it reaches a certain level, has deleterious effects. The use of pollution parameters indicates that EPA is looking toward the pollution effect on the water, such as the total sediment load or the depletion of dissolved oxygen, rather than at whether the constituents of the discharge strictly conform to the definitional list. In FMC Corp. v. Train, 539 F.2d 973, 982-83 (4th Cir. 1976), EPA defended its use of chemical oxygen demand (COD) as a pollution parameter based on the definition of pollution as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water", and the court upheld EPA's action on that basis.
Further obvious evidence of EPA's broad construction of the definition of "pollutant" is the fact that defendants, because EPA has treated such as pollutants in other contexts, have not disputed here that sediments and metals, though not specifically listed, can be pollutants.
In short, the case law, the statute itself, and EPA's implementation of it all controvert defendants' position here that the definitional list of pollutants is exclusive.
Having established that pollution discharges need not be specifically listed in CWA § 502(6) in order to be regulated as "pollutants", it remains to examine the specific pollutants alleged here, both as to whether they are statutory pollutants, and as to whether they are added to navigable waters from a point source. There appears to be no logical reason to exclude cold from NPDES coverage when heat is a listed pollutant, thereby making the discharge of warmer, but not colder water subject to NPDES permitting. Both warm and cold discharges are caused by the operation of the dam, (i.e. added by the point source), and are controllable by the same techniques, such as the use of multiple outlet works or destratification.
Oxygen deficient water is the very condition that BOD effluent limitations are designed to prevent. It would serve no purpose to use a BOD parameter to regulate all substances causing water to be depleted of oxygen while leaving unregulated the discharge of oxygen deficient water from dams. The layer of oxygen deficient water is created by the reservoir in the first place, and allowed to travel downstream only because of the peculiar structure and operation of the dam which discharges from the lower layer of the reservoir. The dam/reservoir facility is a point source which creates water low in dissolved oxygen, just as point sources discharging oxygen-demanding materials create oxygen deficient water. Low DO discharges can be controlled by technological changes applied to the structure and operation of the dam/reservoir facility, such as the use of multiple outlet works and injection of oxygen into the discharge water.
Just as elements such as nitrogen and phosphorous, entirely natural and harmless under most circumstances, are considered pollutants when added to water because they contribute to biological oxygen demand, the entrainment and solution of naturally occurring atmospheric gases in water caused by the operation of a dam and resulting in supersaturation lethal to aquatic life should logically be considered a pollutant. There is no question but that the operation of the dam creates the pollutant and adds it to navigable water, and that effluent limits could be achieved by the application of technology, either in the design of dams before they are built, in their operation, as in controlling the amount of water released over the spillway, or by added control features such as spillway deflectors.
It should be noted that plaintiffs have not argued, and the Court certainly does not hold, that all water quality changes occurring in man-made reservoirs constitute discharges of pollutants subject to the prohibition of CWA § 301(a). Congress has directed EPA to issue guidelines for identifying and controlling nonpoint source pollution caused by "changes in the movement, flow, or circulation of any navigable waters ... including changes caused by the construction of dams...", CWA § 304(f)(2)(F), 33 U.S.C. § 1314(f)(2)(F), evidencing that dams cause nonpoint as well as point source pollution. A dam is a point source only when it discharges pollutants created by the dam/reservoir facility into navigable waters. Poorly oxygenated water and accumulated sediment deposits at the bottom of a reservoir are caused by changes in the movement, flow and circulation of the water due to the construction of the dam, but are not pollutants subject to NPDES permitting unless discharged from a point source, namely the dam. As long as the oxygen-depleted water or the sediments remain in the reservoir, they are subject only to nonpoint source controls, except in the sense that discharges of sediment or of oxygen demanding material from upstream point sources which contribute to these conditions are subject to NPDES permitting of those sources.
In concluding that EPA has violated the Clean Water Act in its refusal to regulate dams as point sources of the pollutants described by plaintiffs under the NPDES program, we are not unmindful of the deference normally afforded an agency in the interpretation of a statute which it administers. Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965). While a court need not find that the construction of the statute by the agency is the only reasonable one, or the one it would have reached had the question first arisen in judicial proceedings in order to affirm the agency's decision, Id., the court cannot simply echo an agency's construction and do no more. "Our duty is to see that the congressional mandate is carried out, and misinterpretation of that mandate will be corrected.... Where the Administrator's interpretation of the (CWA) coincides with the purpose and intent of the statute we defer to his construction. Where the issue presented involves questions of scientific expertise or a choice between reasonable interpretations of the statute we defer to the Administrator's interpretation; however no amount of deference can justify an interpretation of the statute that is contrary to law." Natural Resources Defense Council, Inc. v. U. S. Environmental Protection Agency, 211 U.S. App. D.C. 179, 656 F.2d 768, 774 (D.C. Cir. 1981).
The statutory interpretation involved here does not require scientific expertise, but rather is an interpretation of ordinary language used by Congress to identify the kinds of pollution it intended to control through the NPDES program. As we have seen, EPA's interpretation of the statute runs counter to expressed congressional intent, and is inconsistent with its own implementation of the Act in other contexts. EPA has given absolutely no reasonable basis, consistent with the purpose and policies of the Act, why dams should not be regulated as point sources. Its entire argument rests upon a dissection of the language of the Act, particularly the definition section, in an overly technical manner which has been rejected in the context of this broadly remedial legislation. Natural Resources Defense Council, Inc. v. Costle, 184 U.S. App. D.C. 88, 564 F.2d 573 (D.C. Cir. 1977). Under these circumstances, EPA's interpretation cannot be accepted merely because it is the agency administering the CWA.
It remains to consider the post-trial brief of defendant-intervenors Colorado Water Agencies, the National Water Resources Association, the American Water Works Association, the National Association of Water Companies and the Association of California Water Agencies, (Water Group), which does propound policy reasons for not regulating dams under the NPDES program, based upon the alleged division of state and federal authority in the CWA. Defendant EPA has stated its emphatic disagreement with the position of the Water Group, and asked that its post-trial brief be stricken.
We allowed the post-trial brief to be filed, but deferred the question of its relevance until the time of determination of the merits. It cannot be said that legal arguments supporting the conclusion that dams should not be regulated by the NPDES program (which were addressed at trial in the testimony of Dr. Jeris A. Danielson,
) are irrelevant to this action and should not be considered. Yet, while relevant, the defendant-intervenors' arguments are not persuasive. Essentially the Water Group argues that the mention of dams as a nonpoint source in CWA § 304(f)(2) (F), 33 U.S.C. § 1314(f)(2)(F), combined with expressions of congressional intent in the CWA and in other contexts to preserve the rights of states to allocate quantities of water within their borders, requires the conclusion that Congress intended dams to be regulated as nonpoint sources under the state-controlled § 208 program and under state law. Congress would so provide, they argue, because the operation of dams is essential to the system of water allocation rights in the arid West. There are two major fallacies in this argument. The first is that the reference to dams as a nonpoint source in § 304(f)(2)(F) means they can never be point sources. EPA's position, which has been affirmed by the courts, is that the nonpoint sources listed in § 304(f)(2) are to be considered point sources when they emit pollutants from discernible, discrete conveyances. United States v. Earth Sciences, Inc., supra; Sierra Club v. Abston Construction Co., Inc., supra; Natural Resources Defense Council, Inc. v. Costle, 186 U.S. App. D.C. 147, 568 F.2d 1369 (D.C. Cir. 1977). Therefore the inclusion of dams in CWA § 304(f)(2)(F) has no bearing whatsoever on the issue in this case, and is certainly not evidence that Congress intended to exclude dams from the NPDES program to protect state water rights. The second fallacy is that Congress expressed an intent to limit federal control of water quality in order to preserve state rights to allocate water quantity. The Water Group relies for this proposition primarily on CWA § 101(g), 33 U.S.C. § 1251(g), which sets forth the policy that "the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is further the policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State...." However, it is clear from the remarks of Senator Wallop, who offered the amendment which became § 101(g), that the purpose of the provision was to prevent unwarranted interference with state water rights under the guise of water quality regulation. The amendment was not intended to change existing law or interfere with incidental effects on water allocation stemming from legitimate federal water quality regulation.
Assuming arguendo that the application of the NPDES permit system to dams would affect state water allocation systems, a proposition for which no supporting evidence has been introduced, this nonetheless would not negate the applicability of the federal permit program.
Plaintiffs have proved that some dams discharge pollutants from a point source, subjecting them to the requirement of the CWA to obtain an NPDES permit for such discharges, and that therefore defendant Gorsuch has violated her non-discretionary duty to designate dams as a point source category subject to NPDES requirements. Judgment will be entered in favor of plaintiffs, and appropriate relief will be granted.
This decision is made in full cognizance of the enormous number of dams in this country (over two million total, including 50 to 60 thousand large dams
) and their importance for many purposes, including flood control, water storage, irrigation, navigation and power production. Fortunately, as the parties recognize, the granting of this relief will not force EPA to require a permit for every dam in the United States. Many dams may cause no pollution problems whatsoever, and there are administrative options available to EPA, such as categorical exemptions, areawide permits and general permits, which can minimize the burden on both the Agency and dam owners and operators. Those dams that do or may discharge pollutants must be regulated according to law.
An appropriate judgment accompanies this memorandum opinion.
It is this 29th day of January, 1982, hereby
ORDERED, that declaratory judgment that defendant Anne Gorsuch, in her capacity as Administrator of the United States Environmental Protection Agency, has violated a non-discretionary duty under §§ 301(a) and 402(a) of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1342(a), and has acted arbitrarily and in excess of her statutory authority in failing to regulate dams as point sources of pollution under the National Pollutant Discharge Elimination System mandated by § 402(a) of the Clean Water Act, be and it hereby is entered in favor of plaintiff National Wildlife Federation and plaintiff-intervenor State of Missouri and against defendant Anne Gorsuch in her capacity as Administrator of the United States Environmental Protection Agency and against defendant-intervenors Alabama Power Company; Allegheny Power Company; American Electric Power Company, Inc.; Appalachian Power Company; Arkansas-Missouri Power Company; Arkansas Power & Light Company; Baltimore Gas & Electric Company; Boston Edison Company; Carolina Power & Light Company; Central Illinois Light Company; Central Illinois Public Service Company; Cincinnati Gas & Electric Company; Cleveland Electric Illuminating Company; Columbus & Southern Ohio Electric Company, Commonwealth Edison Company, Connecticut Light & Power Company; Consolidated Edison Company of New York, Inc.; Dallas Power & Light Company; Dayton Power & Light Company; Delmarva Power & Light Company; Detroit Edison Company; Duke Power Company; Edison Electric Institute; Florida Power & Light Company; Georgia Power Company; Gulf Power Company; Hartford Electric Light Company; Holyoke Water Power Company; Houston Lighting & Power Company; Illinois Power Company; Indiana-Kentucky Electric Corporation; Indiana & Michigan Electric Company; Indiana & Michigan Power Company; Indianapolis Power & Light Company; Iowa Public Service Company; Kansas City Power & Light Company; Kentucky Power Company; Long Island Lighting Company; Louisiana Power & Light Company; Madison Gas & Electric Company; Middle South Utilities, Inc.; Mississippi Power Company; Mississippi Power & Light Company; Monongahela Power Company; Montaup Electric Company; National Rural Electric Cooperative Association; New England Power Company; New Orleans Public Service, Inc.; New York State Electric & Gas Corporation; Niagara Mohawk Power Corporation; Northeast Utilities; Northern States Power Company; Ohio Edison Company; Ohio Electric Company; Ohio Power Company; Ohio Valley Electric Corporation; Oklahoma Gas and Electric Company; Pacific Gas and Electric Company; Pennsylvania Power & Light Company; Philadelphia Electric Company; Potomac Edison Company; Potomac Electric Power Company; Public Service Electric & Gas Company; Public Service Company of Indiana, Inc.; Rochester Gas & Electric Corporation; San Diego Gas & Electric Company; South Carolina Electric & Gas Company; Southern California Edison Company; Southern Company Services, Inc.; Tampa Electric Company; Texas Electric Service Company; Texas Power & Light Company; Texas Utilities Generating Company; Toledo Edison Company; Union Electric Company; Virginia Electric and Power Company; West Penn Power Company; Western Massachusetts Electric Company; Wisconsin Electric Power Company; Wisconsin Power and Light Company; Wisconsin Public Service Corporation; Idaho Power Company; Montana Power Company; Puget Sound Power & Light Company; Benton Rural Electric Association; Big Bend Electric Cooperative, Inc.; Blachly-Lane Electric Cooperative Association; Central Electric Cooperative, Inc.; Clearwater Power Company; Columbia Rural Electric Association, Inc.; Consumers Power, Inc.; Coos-Curry Electric Cooperative, Inc.; Eugene Water and Electric Board; Inland Power & Light Company; Kootenai Electric Cooperative, Inc.; Lane Electric Cooperative, Inc.; Lincoln Electric Cooperative, Inc.; Lower Valley Power & Light, Inc.; Midstate Electric Cooperative, Inc.; Orcas Power & Light Company; Portland General Electric Company; Public Utility District No. 1 of Chelan County, Washington; Public Utility District No. 1 of Cowlitz County, Washington; Public Utility District No. 1 of Douglas County, Washington; Public Utility District No. 2 of Grant County, Washington; Raft River Rural Electric Cooperative, Inc.; City of Seattle, Department of Lighting; City of Tacoma, Department of Public Utilities; Umatilla Electric Cooperative Association; The Washington Water Power Company; The Association of California Water Agencies; Colorado River Water Conservation District; Southwestern Water Conservation District; Northern Colorado Water Conservancy District; City and County of Denver, City of Aurora, Colorado; City of Colorado Springs, Colorado; Board of Water Works; City of Pueblo, Colorado; American Water Works Association; National Association of Water Companies and National Water Resources Association, and it is
FURTHER ORDERED, that defendant Anne Gorsuch in her capacity as Administrator of the United States Environmental Protection Agency designate dams as a point source category under § 402 of the Clean Water Act, 33 U.S.C. § 1342; establish effluent limitations or other performance standards for dams on a categorical, as opposed to a case-by-case basis; and subject existing and proposed dams to all the National Pollutant Discharge Elimination System requirements applicable to other categories of point sources, and it is
FURTHER ORDERED, that final regulations implementing the above order be issued no later than 90 days from this date.
Plaintiff National Wildlife Federation and plaintiff-intervenor State of Missouri have requested an award of costs and attorneys fees, pursuant to 33 U.S.C. § 1365(d), section 505(d) of the Clean Water Act, which provides for awards of the costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines such award is appropriate. If plaintiffs wish to pursue their request, they must submit to the Court a detailed accounting and justification for the amounts requested within 15 days of this date. Responses by defendants, if any, shall be filed within 15 days of plaintiffs' filing.
IT IS SO ORDERED.