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National Wildlife Fed'n v. Consumers Power Co.

Citation: 19 ELR 20235
No. No. 87-1441, 862 F.2d 580/28 ERC 1572/(6th Cir., 12/01/1988) Rev'd & remanded

The court holds that the discharge into Lake Michigan of dead fish and fish remains by a hydroelectric power plant in its turbine generating water does not require a national pollutant discharge elimination system (NPDES) permit under the Federal Water Pollution Control Act (FWPCA). The plant has two NPDES permits for operational wastewater discharges, which involve pollutants from outside the hydroelectric power generation system, but has never applied for a permit for its turbine generating system, which draws water from the lake and eventually returns it. The court initially holds, agreeing with the district court, that the dead fish and fish remains are "pollutants" within the meaning of FWPCA § 502. The court then holds that the Environmental Protection Agency's (EPA's) interpretation that to qualify as a discharge requiring an NPDES permit, a pollutant must be physically introduced to navigable waters from the outside world is reasonable. EPA's interpretation is entitled to deference, since there are no compelling indications in the FWPCA or the legislative history that it is incorrect, and Congress intended that EPA exercise substantial discretion in interpreting the Act. The court holds that the turbine generating system does not "add" pollutants within this definition, since the dead fish and fish remains released into Lake Michigan with the turbine generating wastewater originate in the lake. That the electricity-generating process may create the pollutant does not mean the facility adds a pollutant to the lake. If the dam itself added pollutants to the water, rather than merely transmitting the water coming into it, in whatever altered form, then it would be subject to the NPDES permit system. EPA's construction of the term "addition" is consistent with the general congressional policy that NPDES permits not be required for dam-caused water-quality changes. The court declines to distinguish this hydroelectric facility and dam from other facilities that pass on water of already altered quality, since the water that passes through the facility never loses its status as water of the United States and all hydroelectric facilities are fundamentally the same, whether they sit squarely in a riverbed or divert water such as this one does.

[The district court's decision is published at 17 ELR 20801.]

Counsel for Plaintiff-Appellee
Mark Van Putten
802 Monroe St., Ann Arbor MI 48104
(313) 769-3351

Counsel for Defendant-Appellant
Jay E. Brant
2290 First National Bldg., Detroit MI 48226
(313) 256-7800

Before: JONES, WELLFORD, and BOGGS, Circuit Judges.