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South Carolina Wildlife Fed'n v. Alexander

Citation: 8 ELR 20757
No. No. 76-2167, 457 F. Supp. 118/11 ERC 2045/(D.S.C., 07/27/1978)

In an action challenging the construction or operation of three dams on the Savannah River, the court denies defendants' motion for dismissal of Counts I and II of the complaint, which allege, respectively, that the defendants are in violation of §§ 301 and 402 of the Federal Water Pollution Control Act (FWPCA) for participating in the construction and operation of the dams without obtaining a discharge permit and that the defendant Administrator of the Environmental Protection Agency is in violation of § 309 of the FWPCA for failing to take proper enforcement measures to correct the violations described in Count I. Defendants' first contention, that the counts are barred by sovereign immunity, is rejected by the court, which finds that in § 505 of the Act Congress explicitly waived immunity from suits raising these issues.Defendants further contend that the 60-day notice requirement imposed by § 505(b) was violated because the notice given failed to mention all of the prospective plaintiffs and mentioned only the Russell Dam project. The court finds that despite the omission of several plaintiffs from the notice, it nonetheless served to make defendants aware of the litigation and therefore constitutes substantial compliance. On the other hand, defendants were prejudiced by the failure to specify that impoundments other than the Russell Dam would be the subject of the litigation; since 28 U.S.C. § 1331 does not confer jurisdiction on the court where the requirements of § 505 have not been met, only issues relating to the Russell Dam will be considered. With respect to the question whether a discharge permit for the Russell Dam must be obtained under § 301, the court rejects defendants' argument that the water released from the dam, which, it is alleged, will be deficient in oxygen and will bear high concentrations of dissolved metals, is not a "pollutant" under § 301. Nor is there merit in defendants' position that these changes in the water do not constitute the "addition" of a pollutant under § 301. Where water enters the impoundment in a relatively pure form and leaves in a relatively polluted form as a result of the actions of defendants, pollutants have been added within the meaning of the Act. The court also rejects the argument that the discharge openings at the base of the dam are not "point sources" and that the federal operators of the dam are not "persons" under § 301. After dismissing the further defense that § 404(r) exempts defendants from the requirements of § 301, the court denies the motion to dismiss Count I of the complaint.

With respect to Count II, seeking injunctive relief ordering the Administrator of the Environmental Protection Agency to take action to enforce § 301 against the operators of the dam, defendants argue that the court lacks jurisdiction over the issue under § 505(a)(2) because the Administrator's enforcement obligations under § 309 are nondiscretionary. The court finds that although the enforcement duties imposed by § 309 are subject to the Administrator's "finding" of a violation, this language does not confer unreviewable discretion upon the Administrator. Both the legislative history of the FWPCA and a comparison with the Clean Air Act show that where a clear violation has been brought to the attention of the Administrator, the obligation to take appropriate enforcement action is mandatory. The remainder of defendants' claims are rejected, and the motion to dismiss is denied.

Counsel for Plaintiffs
Thomas A. Smyder, Jr.
Route 1, P.O. Box 261, Walhalla SC 29691
(803) 638-3686

G. Phillip Nowak, Clifford B. Stromberg
Arnold & Porter
1229 19th St. NW, Washington DC 20036
(202) 872-6807

Oliver Houck
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Defendants
Geoffrey A. Mueller, Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20535
(202) 633-2721

J. D. McCoy, III
P.O. Box 10349, Greenville SC 29603
(803) 232-5646