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National Wildlife Fed'n v. Gorsuch

Citation: 12 ELR 20463
No. No. 79-0915, (D.D.C., 04/29/1982) Stay pending appeal denied

The court denies a stay pending appeal of its ruling, 12 ELR 20268, that dams are subject to the national pollutant discharge elimination system (NPDES) permit program. Previously, the court ordered the parties to submit proposed schedules and timetables for regulating dams under the NPDES program. Both plaintiffs and defendant Environmental Protection Agency (EPA) submitted proposed schedules and timetables, and EPA sought a stay pending appeal. The court concludes that the stay is unjustified because EPA is not likely to succeed on the merits and neither EPA nor intervenor dam operators will suffer irreparable injury if the stay is denied. The court rejects EPA's argument that it lacks resources to implement the order, noting that EPA simultaneously requested a reduction in funds from Congress. In addition, intervenors will not be subject to criminal and civil penalties for continued operation of dams since EPA does not intend to bring enforcement actions at this time. The court also rules that the public interest would be harmed by continued delay since the Federal Water Pollution Control Act requires NPDES regulation of dams. Finally, the court notes that while the 90-day time limit it initially imposed for promulgation of regulations was unreasonable, it is without power to modify that order since it is on appeal to the court of appeals. Therefore it grants a 30-day stay to permit defendants to appeal this order and/or seek a reopening of the case so that the 90-day deadline can be modified.

Counsel are listed at 12 ELR 20268.