The opinion of the court was delivered by: GREEN
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,
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),
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).
The 1972 Federal Water Pollution Control Act Amendments marked a major transformation in the nation's approach to the control of water pollution.
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.
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.
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.
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.
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 available for its intended use. Hydroelectric dams also have "penstocks", pipes which allow water to flow through the dam to the turbines before returning to the stream below. Dams constructed for navigation are equipped with locks, and those for irrigation have special outlets to the irrigation canals.
Clearly at least some, if not all, of these discharge outlets from dams, are "discernible, confined and discrete conveyances" which meet the CWA's definition of point source, especially in light of the congressional intent to embrace the "broadest possible definition of any identifiable conveyance from which pollutants might enter the waters of the United States." United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979).
Rather than allege that dams cannot be point sources, defendants have argued that some of the water quality changes described by plaintiffs are not pollutants, and that none of them are added by dams to navigable waters. Each of the dam-created pollution problems presented by plaintiffs will be discussed to illuminate the determination of whether they constitute the discharge of pollutants by dams.
The parties agree that certain dams which impound large, deep reservoirs and release water from deep in the reservoir discharge water low in dissolved oxygen (DO) content during the warm months of the year. The process responsible for depleting DO in the lower portion of standing water bodies is called thermal stratification. The surface of the water is heated by the sun, while the deeper water is not. Since warmer water is less dense than colder water, it has a tendency to stay at the top. For most of the year, wind-generated currents and waves mix the water so that its properties remain essentially uniform at all depths, but in the summer when the temperature differences are large, the currents cannot overcome the buoyancy of the warm water, the layers do not mix, and the water body becomes thermally stratified. The interface between the layers is known as the thermocline. The upper layer is called the epilimnion; and the lower layer is the hypolimnion. In the fall, the top layer of water cools, and becomes dense enough to sink and mix to some extent with the lower layers. This change reduces the temperature differential between layers and allows further wind-driven mixing until the waters gradually return to a fully mixed condition.
The hypolimnion of a stratified water body generally coincides with the tropholytic zone. In that region, sunlight levels are insufficient to support photosynthesis, and the respiration and decomposition of animals and bacteria can result in a net consumption of oxygen. In a non-stratified water body, waters which have been reareated by the atmosphere at the surface mix with these deep waters, replenishing the oxygen. However, in a thermally stratified body, as we have seen, that mixing does not occur, and dissolved oxygen content in the hypolimnion can drop to very low levels.
The amount of dissolved oxygen in a lake or reservoir is strongly influenced by the amount of oxygen demanding organic material in the water body, which in turn is a product of both processes within it and of inputs of organic matter and nutrients from upstream sources.
A lake or reservoir collects oxygen demanding material which would continue on downstream in a freeflowing stream. The decrease in water velocity when these materials reach the reservoir allows the materials to settle there. Some organic materials sink directly to the bottom. Inflowing nutrients like phosphorous and nitrogen promote the growth of plants such as algae in the epilimnion, which eventually sink to the hypolimnion below, and demand oxygen for their decomposition.
Thus large reservoirs differ from free-flowing streams both in collecting and producing more oxygen-demanding material, and in forming a thermally stratified zone which is not rearated. The combination of those factors creates oxygen depleted water.
Although these processes occur in large natural lakes as well as in man-made impoundments,
natural lakes do not discharge oxygen deficient waters downstream. A natural lake will discharge well-oxygenated water from the surface, while the outlet from a dam may be in the hypolimnionic layer, where the dissolved oxygen has been depleted.
As almost all animals living in water require dissolved oxygen to carry out metabolic processes, DO is one of the more common measurements of water quality.
Discharges from some dams are low enough in DO in the warm months to violate state water quality standards and to harm or destroy aquatic life, in some cases resulting in large fish kills. Low DO discharges can also reduce the assimilative capacity of the river downstream from the dam. That is, there is less oxygen available to break down organic matter, and additions from other sources might require more controls to avoid water pollution.
The record reveals that the discharge of oxygen-depleted water from dams is a widespread and serious problem.
Although defendants have questioned the severity and extensiveness of the problem claimed by plaintiffs, they have not disputed that it is a problem associated with the operation of dams which may require control techniques.
The dispute is whether the release of oxygen-depleted water from dams constitutes a "discharge of pollutants" under the CWA.
The dissolved metals problem is directly related to the oxygen depletion at the bottom of reservoirs which has just been described. Metals such as iron and manganese exist in particulate form in most bottom sediments of reservoirs. With sufficient dissolved oxygen in the water, a zone of oxidized iron, manganese and other constitutents develops between the water and the bottom sediments which effectively serves as a barrier preventing the bottom sediments from diffusing into the water. Yet, in a low DO condition, the iron and manganese in the interface zone will convert to more soluble forms and allow the metal in the bottom sediments to diffuse into the overlying water.
These dissolved metals, unlike their particulate forms, can be harmful to aquatic organisms and can cause the water to require treatment to be usable for domestic, municipal, or industrial purposes.
High concentrations of dissolved iron and manganese have been found in discharges from dams.
Although defendants' expert, Dr. Orlob, testified that certain reservoirs have high "trapping efficiency", discharging less iron and manganese than the amount entering from upstream sources,
defendants have not disputed that the above-described process does occur in some reservoirs, increasing the amount of metals in soluble form that are discharged downstream.
The discharge by dams of water which is warmer or colder than the natural stream temperature is also a function of thermal stratification and the level of the release structures in the dam. In a deep reservoir during a thermally stratified period, cold water would be released from the bottom of a reservoir, while warm water would be released from the top. The operation of a dam/reservoir facility can change the downstream temperature 20 to 30o F.
As various species of fish and other aquatic organisms are adapted to either warm or cold water conditions, dam-engendered temperature changes can, and have, resulted in the migration of fish away from certain areas, transforming a warm water fishery into a cold water fishery or vice-versa, and in fish kills.
Again, defendants have not disputed that these temperature changes occur, and have adverse effects on aquatic life,
but argue rather that they do not constitute discharges of pollutants as defined by the CWA.
Streams carry sediment which consist of organic and inorganic material derived from runoff from the land and from the streambanks and channel bed. Sources of sediment in water bodies include farms, forest land, geologic outcroppings subject to erosion, vegetation, and construction sites.
The amount of sediment which a stream will transport is generally dependent on the characteristics (size, shape, weight) of the sediment particles, and the hydraulics, or flow conditions, of the stream. Usually, the greater the velocity of the streamflow, the more sediment it will transport, as it is the flow velocity which keeps the particles in suspension rather than allowing them to settle to the bottom.
When a portion of a stream is transformed into a reservoir by the construction of a dam, the normal flow of sediments downstream is intercepted by the reservoir, where the sediments tend to sink to the bottom. As the water from a river enters the reservoir, the flow velocity decreases and the jet of water expands. Sediment settles out, beginning with the coarsest particles. The ability of a reservoir to retain sediment is called trapping efficiency. Trapping efficiency is dependent on the size, shape and depth of a reservoir as well as the characteristics of the sediment particles. The greater the length of the reservoir, the more sediment will settle out before reaching the dam and the less sediment will be passed downstream. Larger, heavier particles will settle out more quickly than finer, lighter particles. The chief parameter related to the trapping efficiency of a reservoir is its retention time, defined as the volume of the reservoir divided by the rate of inflow. Since retention time derives from the size of the water body as well as its rate of flow, it encompasses the most important factors in trapping efficiency. The larger the retention time (i.e. a large reservoir with a small inflow), the greater the trapping efficiency.
Another reason that many man-made impoundments are so effective in trapping sediments is that they are designed to cut off or moderate the transport of flood waters downstream. Since about 90% of sediments transported in river systems are transported during periods of major flood, these dams will significantly reduce the amount of sediment ...