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National Wildlife Fed'n v. Gorsuch

Citation: 12 ELR 20268
No. No. 79-0915, 530 F. Supp. 1291/16 ERC 2025/(D.D.C., 01/29/1982)

The court rules that the Administrator of the Environmental Protection Agency (EPA) violated §§ 301(a) and 402(a) of the Federal Water Pollution Control Act (FWPCA) by failing to regulate dams under the national pollutant discharge elimination system (NPDES) permit program. The court notes that defendants agree that dams have discharge outlets which are "discernible, confined, and discrete conveyances," and thus meet the FWPCA's definition of a point source. Although neither the Act nor its legislative history addresses the question whether dam-created pollution must be regulated under the NPDES program, the court reads the broad remedial purposes of the Act and the congressional designation of the NPDES program as the Act's primary regulatory tool to require a liberal interpretation of § 301(a). Therefore, it rules that dams which can cause increased pollution of the rivers they block, add pollutants to the water not unlike industrial plants that divert water and return it to the stream with added pollutants. In addition, it rules that increased sediment, dissolved metals, heated and cooled water, and water with reduced dissolved oxygen content created by a dam and reservoir system, are pollutants within the meaning of the Act. Further, the mention of dams as nonpoint sources in § 304(f)(2)(F) does not mean that dams can never be point sources since nonpoint sources listed in § 304(f)(2) are considered point sources when they emit pollutants from discernible, discrete conveyances. Finally, the court rules that the policy stated in § 101(g) that the Act is not to supercede or impair state water rights was not meant to prevent legitimate federal water quality regulation which has only an incidental effect on state water allocation.

Counsel for Plaintiffs
David G. Burwell, Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW. Washington DC 20036
(202) 797-6845

Counsel for Intervenor-Plaintiff State of Missouri
Robert M. Lindholm, Ass't Attorney General
Supreme Ct. Bldg., P.O. Box 899, Jefferson City MO 65101
(314) 751-3321

Counsel for Defendants
Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5313

Counsel for Intervenors-Defendants
Arnold H. Quint
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 223-8650

Gerry Levenberg
Van Ness, Feldman & Sutcliffe
Suite 500, 1220 19th St. NW, Washington DC 20036
(202) 331-9400