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United States ex rel. Tenn. Valley Auth. v. Tennessee Water Quality Control Bd.

ELR Citation: 14 ELR 20598
Nos. No. 82-5288, 717 F.2d 992/19 ERC 1826/(6th Cir., 09/23/1983)

The court holds that the state of Tennessee may not require the Tennessee Valley Authority (TVA) to obtain, under §402(b) of the Federal Water Pollution Control Act (FWPCA), a discharge permit for the reconstruction and operation of a dam and flume, since a dam is not a point source and it is not alleged that any pollutants are added to the river water by the facility. The court first extensively reviews the arguments of the parties, and preliminarily holds that the 1977 amendments to §313 of the FWPCA did not change the breadth of the section's waiver of sovereign immunity but simply made clear that federal agencies are subject to procedural as well as substantive requirements of state water quality control laws. Tennessee has relied specifically on its Environmental Protection Agency (EPA) approved §402 permit program in its attempt to regulate the TVA dam and flume, and EPA has consistently treated dams as nonpoint sources, which do not "discharge" pollutants and are therefore not subject to §402. This EPA interpretation is entitled to deference; since EPA does not require discharge permits from dam operators under §402(a), Tennessee may not do so under §402(b). The court declines, however, to adopt TVA's interpretation of FWPCA §313 that a federal agency is subject to state water pollution laws only if it is causing a discharge or runoff of pollutant. In fact, a dam may be subject to state regulation as part of a §208 areawide waste treatment management program, but that question is not before the court. The court also declines to decide whether state administrative proceedings are generally removable to federal court. Section 313 preserves broad removal rights for federal agencies and Tennessee is relying on §313 for authority to regulate TVA. At any rate, it would be pointless to remand the proceedings to the Tennessee Water Quality Control Board since the court has decided the Board has no authority to proceed.

Counsel for Plaintiffs-Appellees
James Fox
Tennessee Valley Authority
400 West Summit Hill Dr., Knoxville TN 37902
(615) 632-2241

Counsel for Defendants-Appellants
Michael Pearigen, Ass't Attorney General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-1376

Counsel for Amicus Curiae
Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2072

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge, and GUY, District Judge.*