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National Wildlife Fed'n v. Consumers Power Co.

Citation: 17 ELR 20801
No. No. G-85-1146, 657 F. Supp. 989/25 ERC 1812/(W.D. Mich., 03/31/1987)

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 requires a Federal Water Pollution Control Act (FWPCA) national pollutant discharge elimination system (NPDES) permit. The court initially concludes that there are no material factual disputes precluding it from deciding the case on motions for summary judgment. First, although there is no clear evidence that the defendant is currently discharging fish remains into the lake, there is also no evidence to dispute a 1981 report that documented the discharges. The court holds that whether defendant's discharge of turbine generating water is subject to the FWPCA is a legal, not factual, question. The court holds that whether state and federal agencies have determined that defendant's discharge of turbine generating water is not subject to the FWPCA is also a legal issue, since it involves only the level of deference the court should give the governmental actions. The court finds that whether the discharge of fish adversely affects the quality of Lake Michigan's water is not a material fact, since the discharge of any pollutant is unlawful.

The court first addresses procedural issues. The court holds that a private environmental organization has standing to sue under FWPCA § 505. Plaintiff has shown injury-in-fact, since it has submitted affidavits from members indicating that the discharge of fish remains adversely affects their recreational and esthetic interests. Plaintiff has also satisfied the redressability requirement, since the court can require defendant to secure a discharge permit. Whether that relief might be ineffective as a result of the Federal Energy Regulatory Commission's (FERC's) jurisdiction under the Federal Power Act (FPA) is not a basis for denying standing. The court holds that plaintiff complied with the FWPCA's 60-day notice requirement. Although plaintiff may not have complied fully with the relevant regulations, its notice satisfied the requirements of the statute. The court holds that plaintiff has sufficiently established that defendant was violating the FWPCA when the complaint was filed. Defendant's argument that there was no violation since it was not required to secure a permit is nonsensical, since that issue is the core of plaintiff's complaint. The argument that there is no direct evidence that defendant is currently discharging fish remains into the lake also fails, since the court has already determined that it is likely that discharges continue. The court holds that the FPA does not preempt plaintiff's FWPCA claim. The court also holds that plaintiff's participation in ongoing proceedings before FERC does not preclude it from seeking judicial relief under the FWPCA and that plaintiff is not required to exhaust its administrative remedies before FERC and the state before doing so. The court holds that the doctrine of primary jurisdiction is not applicable. The FPA does not preempt the FWPCA, and thus FERC does not have exclusive jurisdiction. Whether the FWPCA covers the discharge of fish remains into the lake is an issue that does not necessarily fall within the special expertise of the various state and federal agencies involved. The court holds that the case is ripe, despite the absence of a final decision by the Michigan Water Resources Commission (MWRC) in a pending state permit renewal proceeding concerning defendant's NPDES permit for its cooling water, since the court hasalready determined that plaintiff need not bring its claim first to the agency and a pending permit proceeding is not a bar to a citizen suit within the meaning of FWPCA § 505(b)(1)(B). The court holds that plaintiff was not required to challenge the Environmental Protection Agency's (EPA's) and MWRC's decision that the discharge was not subject to the NPDES permit requirements, if those agencies in fact made such a decision, in federal court under FWPCA § 509(b)(1)(F) or in state court in accordance with state law.

Turning to the merits, the court first holds that neither EPA nor the MWRC has expressly determined that defendant need not secure an NPDES permit for the discharge of fish remains into Lake Michigan. Defendant can only point to the fact that the agencies have not, to date, required a permit for its argument that they have actually determined that defendant need not obtain one. There is no evidence that EPA has a uniform policy on this issue. Moreover, the MWRC has stayed further action on the permit renewal proceeding pending the outcome of this litigation. The court distinguishes National Wildlife Federation v. Gorsuch, 13 ELR 20015, and United States ex rel. Tennessee Valley Authority v. Tennessee Water Quality Control Board, 14 ELR 20598, both of which considered and rejected the application of the NPDES permit program to dams, although it adopts Gorsuch's basic test for determining such application. The court then holds that defendant is subject to the FWPCA's NPDES permit requirement for its turbine generating water. The court holds that the dead fish and fish remains are "pollutants" under the FWPCA. The court holds that the six penstocks or pipes through which water is drawn from the lake and eventually discharged back into the lake are "point sources." The court rejects defendant's argument that its facility is a dam and thus is exempt under FWPCA § 304(f)(2)(F), which concerns the issuance of guidelines for nonpoint sources and includes dams in its list. Section § 304(f)(2)(F) only indicates that a dam can be a nonpoint source of pollution; it does not mean that a dam is never a point source. The court holds that the facility "adds" a pollutant to the lake. Although the fish never leave the water and thus are not introduced to the lake from the outside world, they first enter the lake, which is navigable water, as pollutants at a point source, thus establishing defendant's liability.

The court holds that FWPCA § 402(k), which provides that compliance with an NPDES permit is a defense to an enforcement proceeding, does not provide defendant with immunity, since defendant's existing NPDES permit does not cover the discharges at issue. The court holds that the five-year statute of limitation in 28 U.S.C. § 2462 is applicable to plaintiff's citizen suit claim for civil penalties. The court holds that plaintiff, which was also the plaintiff in Gorsuch, is not barred by res judicata or collateral estoppel. Although plaintiff could have raised the issue of dams' discharges of fish remains in that litigation, it is not clear that plaintiff's claim in the instant case would be barred even if it had raised the issue in the earlier proceeding, since the Gorsuch court's decision was premised on more general grounds. Finally, the court holds that the doctrine of laches does not bar plaintiff's claim and that plaintiff is not estoppedas a result of not raising its concerns in prior permit renewal proceedings before the MWRC.

Counsel for Plaintiff
Mark Van Putten
National Wildlife Federation
802 Monroe, Ann Arbor MI 48104
(313) 769-3351

Counsel for Defendant
Joseph M. Polito
Honigman, Miller, Schwartz & Cohn
2290 First Nat'l Bldg., Detroit MI 48226
(313) 256-7800

Counsel for Amicus Curiae
Peter A. Marquardt
The Detroit Edison Co.
2000 Second Ave., Detroit MI 48226
(313) 237-7455