Court Orders Dam Regulation Under Water Act

F. L. McChesney

To many, run-of-the-river dams, of which there are over 67,000 greater than 25 feet high in this county, appear environmentally benign. Indeed, hydroelectric dams are often praised as the least environmentally damaging of traditional energy sources. However, in addition to environmental problems stemming from dam construction, such as flooding, destruction of fish and wildlife habitat, and loss of natural river flows, the operation of dams, especially large impoundments such as hydroelectric projects, can create significant water quality problems. Water stored in reservoirs loses oxygen and can gain higher concentrations of dissolved metals and harmful chemicals. Water spilled over dams of substantial height often acquires high levels of suspended gases. Dam-engendered changes in the temperature and chemical content of river water can be harmful to aquatic life and have occasionally resulted in large fish kills.¹ Such problems can be controlled for the most part by careful control of certain aspects of dam operation. But, while construction damages have been minimized as a result of planning and regulation under the Federal Water Pollution Control Act (FWPCA)² and other federal statutes, much of the water pollution resulting from dam operations remains essentially unregulated.³

The FWPCA does not directly address the question whether dams are to be regulated as point sources under the national pollutant discharge elimination system (NPDES). Since it is undisputed that many dams contain discharge outlets that are "discernible, confined, and discrete conveyances" they seem to satisfy the § 502(14) definition of a point source.⁴ Nonetheless, the Environmental Protection Agency (EPA) generally treats them as non-point sources because under EPA's interpretation of the Act, dams do not "discharge pollutants" within the meaning of §§ 502(12) and 502(14).⁵ The Agency contends that dam-induced changes in water quality do not constitute a discharge since arguably dams do not add anything to the waters they impound. Consequently, NPDES permits have, with few exceptions, not been required for dam operation.⁶

Several federal court decisions have examined the validity of EPA's position. Without directly ruling on the question whether dams are point sources which discharge pollutants, a federal district court in South Carolina, denying a motion to dismiss by the federal agency defendants, has held that if dams change the chemical composition of downstream water, they are subject to NPDES permits.⁷ The court found the FWPCA's definition of the term "pollutant" to be broad enough to include chemical changes caused by dam operations.⁸ But in early 1982, the Eighth Circuit affirmed a ruling by a district court, unfortunately without explanation, that the operation of a dam in Missouri did not result in a "discharge of a pollutant" within the meaning of the Act.⁹

A dam-by-dam challenge to EPA's failure to require NPDES permits would undoubtedly produce a hodgepodge of conflicting results. However, if a recent district court decision stands, such challenges will be unnecessary.In National Wildlife Federation v. Gorsuch,¹⁰ the court ruled that the Administrator of EPA had violated her non-discretionary duty by failing to regulate dams under § 402 of the FWPCA. It found that dams discharge pollutants as defined in the Act, and ordered EPA to establish uniform effluent limitations and begin to regulate dams under the NPDES permit program. The decision has already created a legislative backlash that may result in an amendment to the Act exempting dams from the NPDES program.

NWF v. Gorsuch

In 1978, the National Wildlife Federation (NWF) unsuccessfully petitioned EPA to designate dams as point sources requiring NPDES permits under § 402 of the FWPCA and to establish categorical effluent limitations for dams. Taking the Agency's unfavorable decisions to the district court, plaintiffs, in NWF v. Gorsuch, claimed that the discharge of water of diminished quality constitutes the discharge of pollutants into the navigable waters of the United States from a point source. Thus, the discharges are unlawful under § 301,¹¹ unless permitted under the NPDES program.

Defendants argued that Congress did not intend to subject dams to the NPDES program since such water quality problems can be addressed under § 208 of the FWPCA and other federal and state laws. They agreed [12 ELR 10046] that the operation of dams can cause water quality problems.However, they disputed whether (1) releases of water that had become unusually cold, low in dissolved oxygen, or high in dissolved metals simply from being held in the impoundment or (2) releases which, by virtue of the manner in which they were made caused the water to become heavily loaded with sediment or to become so saturated with dissolved gases as to be lethal to fish constitute "discharges of pollutants" under the Act. In their view, heat, sediments, and dissolved metals are pollutants because they are included in the § 502(6) definitional list, but cold, supersaturation, and lack of dissolved oxygen are not listed, and therefore are not pollutants.¹² Further, they contended, the Act defines the term "discharge of pollutants" as "any addition of any pollutant to navigable waters from any point sources,"¹³ but since none of the pollutants are added to navigable waters by the dam, they are not "discharged." The reservoir is part of the river, which is not a point source, and the dam merely passes on water of altered quality.

Since neither the FWPCA nor is legislative history prescribes whether dam-induced pollution must be regulated under § 402, Judge Green of the district court focussed on the Act's basic goals: the achievement of fishable and swimmable waters by 1983, and the complete elimination of all discharges of pollutants by 1985.¹⁴ And, as Judge Green noted, Congress regarded the NPDES permit program as "the heart of the Act and the most effective means of controlling water pollution."¹⁵ It appeared that Congress intended to subject all sources of pollution to § 402 to the extent feasible. Judge Green determined, therefore, that in cases of doubt the Act must be interpreted to subject sources to NPDES control.

Judge Green first addressed defendants' contention that dams do not add pollutants to navigable waters. She agreed with plaintiffs that, in keeping with the broad goals of the Act, the word "addition" should not be construed so strictly as to take "dams, which admittedly can be point sources and admittedly can emit pollutants, out of the NPDES program."¹⁶ Analogizing to the power plant that diverts water from a river, uses it for cooling, then returns it to the river at an unusually high temperature,¹⁷ she ruled that since dams create pollutants that would not otherwise exist, they "add" pollutants within the meaning of the Act. Furthermore, the word "addition" should not be construed to exclude the removal of something from the water, i.e., dissolved oxygen and heat.

As to whether such things are properly labeled "pollutants," Judge Green determined that at least some by-products of dams, such as excess sediments, raised water temperature, and increased concentrations of dissolved metals fall clearly within the statutory definition. Since all three are pollutants and are discharged through a point source, they must be regulated under the NPDES program. While § 502(6) does not mention low concentrations of dissolved oxygen, cold, and supersaturation Judge Green concluded that they nevertheless constitute pollutants. Again, she relief heavily on the remedial purposes of the Act to include any form of pollution emitted from a point source. Moreover, EPA's broad construction of the definition of "pollutant" in other contexts lent support to plaintiffs' claims.¹⁸

Finally, Judge Green ruled that Administrator Gorsuch had violated her non-discretionary duty in failing to designate dams as a point source category under § 402, to establish categorical effluent limitations for dams, and to require that they be regulated under the NPDES program. The judge ordered EPA to issue final regulations implementing the decision within 90 days. On April 18, the court ordered the parties to submit proposed schedules and timetables for compliance with its decision.¹⁹ On April 29, it ruled that a stay pending appeal is unjustified because defendants failed to meet the necessary legal standards.²⁰ But because of the unusual procedural issues involved, the court granted a 30-day stay to allow the parties to appeal the order and to consider interim enforcement measures.

Outlook

The decision in NWF v. Gorsuch quickly drew fire from EPA and members of Congress. EPA's draft bill²¹ [12 ELR 10047] to revise the FWPCA includes an amendment that would exempt dams from the definition of point source and from the NPDES permit requirements. A similar bill has also been introduced in the Senate.²² In addition, EPA has proposed to add dams to the list of non-point sources to be the subject of water quality planning under § 208(b)(2) of the Act.²³

Environmental groups, on the other hand, have strongly supported the decision. The Natural Resources Defense Council and six other groups criticized EPA's proposed amendment, stressing that the § 208 program has been largely unsuccessful, and that relegating dams to § 208 control will sweep their serious water quality problems under the rug.²⁴

With over two million dams in the United States, it is not surprising that EPA and the close to 100 utilities that intervened in NWF v. Gorsuch are overwhelmed by the prospect of bringing dams within the ambit of the NPDES program. EPA faces substantial obstacles in establishing technology-based effluent limitations for dams, not the least of which is the lack of a technical foundation on which to build. However, because of the requirements of other statutes such as the Federal Power Act,²⁵ much of the technology needed to control several of the pollutants created by dam operations has already been tested.For example, supersaturation, which causes potentially fatal gas bubble disease in fish, can be controlled by a combination of the installation of spillway deflectors and decreased flow over spillways.²⁶ On the other hand, the control of dissolved metals, concentrations of dissolved oxygen, and temperature changes will necessitate the creation of new control technologies or costly changes in dam design and operation. Thus, developing effluent limitations for the new point source category would seem to require significant new research.

The size of the dam category could make permit writing a monumental undertaking. As of early 1980 EPA had issued "only" 58,907 NPDES permits,²⁷ a number completely overshadowed by the two million dams which might require permits. However, a number of administrative options exist that could significantly reduce the scope of the program and thus the new administrative workload for the Agency. For example, the District of Columbia Circuit has interpreted the common law to allow EPA to adopt categorical exemptions from statutory requirements for otherwise regulated activities which are de minimis in scope or effect.²⁸ Further, Judge Green suggested in NWF v. Gorsuch that EPA has explicit statutory powers to grant categorical exemptions, areawide permits, and general permits that could hold below 2,000 the number of federal and private dams to be permitted. Nevertheless, the processing of 2,000 permit applications and, more particularly, the development of effluent limitations, will require formidable commitments of resources that are now in very short supply.

1. See National Wildlife Federation v. Gorsuch, 12 ELR 20268 (D.D.C. Jan. 29, 1982) (discussing impacts of various pollutants on water quality). See also E. CHANEY, A QUESTION OF BALANCE (Pacific Northwest Information Center 1978) for a discussion of the impact of dams on fish.

2. FWPCA §§ 208, 404, 33 U.S.C. §§ 1288, 1344, ELR STAT. & REG. 42118, 42142.

3. See Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest's Anadromous Fish Resources for a Peaceful Coexistence with the Federal Columbia River Power System, 11 ENVTL. L. 211 (1981) (examining the legal mechanisms for regulating hydroelectric dams to protect fisheries).

4. 33 U.S.C. § 1362(14), ELR STAT. & REG. 42146.

5. 33 U.S.C. §§ 1362(12), 1362(14), ELR STAT. & REG. 42146. Section 502(14) defines a point source as "any discernible, confined and discrete conveyance, … from which pollutants are or may be discharged." Thus, if pollutants are not discharged, as EPA argued, then dams are not point sources.

6. EPA has classified dams as non-point sources unless the pollutants they convey are discharged into the impoundment for release through the dam. 12 ELR at 20274 n.66. EPA issued an NPDES permit for the release of sediment from the Guernsey Reservoir on the North Platte River in Wyoming. See 12 ELR at 20271.

7. South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978).

8. Id. at 124-26, 8 ELR at 20760-61.

9. Missouri ex rel. Ashcroft v. Department of the Mary, Corps of Engineers, 12 ELR 20368 (8th Cir. Mar. 9, 1982), aff'g 526 F. Supp. 660, 12 ELR 20359 (W.D. Mo. 1980). The district court ruled that "defendants' operation of the Stockton project clearly does not involve or result in the 'discharge of a pollutant' as that term is defined in the FWPCA." 526 F. Supp. at 678, 12 ELR at 20366. Nor did the increase in sediments caused by the rise and fall of the water level constitute a "runoff of a pollutant" within the meaning of the Act. Id.

10. 12 ELR 20268 (D.D.C. Jan. 29, 1982).

11. 33 U.S.C. § 1311, ELR STAT. & REG. 42133.

12. Section 502(6) lists dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water as pollutants. 33 U.S.C. § 1362, ELR STAT. & REG. 42146.

13. FWPCA § 502(12), 33 U.S.C. § 1362(12), ELR STAT. & REG. 42146.

14. FWPCA § 101(a), 33 U.S.C. § 1251(a), ELR STAT. & REG. 42105.

15. 12 CLR at 20273.

16. Id. at 20274. Accord, South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 125-26, 8 ELR 20757, 20760 (D.S.C. 1978).

17. See NRDC v. Costle, 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1977) (irrigation return flows), Appalachian Power Co. v. Train, 545 F.2d 1351, 6 ELR 20732 (4th Cir. 1976) (steam electric generating plants).

18. The court noted that EPA has not, with respect to industrial discharges, limited its regulatory powers only to those pollutants listed in § 502(6). It has set effluent limitations for pollution parameters, such as biological oxygen demand, pH, and total suspended solids, because they indicate the presence of other pollutants. 12 ELR at 20275-76.

19. Plaintiffs proposed that EPA inform builders of new dams that NPDES permits may be required and that they supply EPA with information about their project. They also suggested that EPA send questionnaries to the operators of the approximately 67,000 dams greater than 25 feet in height and a reservoir capacity of over 50 acrefeet listed on the Army Corps of Engineers registry of dams to collect information on physical attributes and biological effects of each dam and to identify information gaps. Based on this information, EPA could develop a list of priority dams and a schedule for processing individual permits. A permanent regulatory program would be developed concurrently. See Plaintiffs' National Wildlife Federation and State of Missouri Response to the Court's Order Regarding a Proposed Compliance Schedule, NWF v. Gorsuch, 12 ELR 20268 (D.D.C. Jan. 29, 1982). EPA submitted a schedule for setting effluent limitation guidelines to be finalized by July 26, 1989, and again argued for a stay pending appeal point out that it lacks sufficient resources to carry out the final order without interfering with other programs. See Defendants' Schedules and Timetables in Response to Order of April 19, 1982, NWF v. Gorsuch.

20. NWF v. Gorsuch, No. 79-0915, 12 ELR 20463 (D.D.C. Apr. 29, 1982).

21. See EPA Draft Bill to Revise and Extend Certain Provisions of the FWPCA as Amended, OMB Legislative Referral Memorandum (Mar. 23, 1982).

22. S. 2280, 97th Cong., 2d Sess., 127 CONG. REC. S2777 (daily ed. Mar. 24, 1982). It is noteworthy that a legislative exemption was enacted after the D.C. Circuit held that EPA could not administratively exempt irrigation return flows from NPDES permit requirements in NRDC v. Costle, 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1977). See FWPCA § 502(14), 33 U.S.C. § 1362(14), ELR STAT. & REG. 42146.

23. The EPA budgets for fiscal years 1982 and 1983 contained no funding for § 208 planning or implementation of existing federally funded plans. Thus, the EPA bill would leave the problem entirely to the states.

24. NRDC et al., Analysis of EPA Proposals for Amending the Clean Water Act (Apr. 8, 1982).

25. 16 U.S.C. §§ 791(a)-825(r). The Federal Power Act requires the Federal Energy Regulatory Commission, which licenses non-federal dams, to include provisions in licenses to minimize adverse environmental effects on fish and wildlife. See Udall v. Federal Power Commission, 387 U.S.. 428 (1967). In addition, the National Environmental Policy Act, 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009, the Fish and Wildlife Coordination Act, 16 U.S.C. (KEY OFF)(KEYWORD) 661-666c, ELR STAT. & REG. 41801, and the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. § 839, also require consideration of the environmental impacts of dam operation.

26. See 12 ELR at 20272.

27. COUNCIL ON ENVIRONMENTAL QUALITY, ANNUAL REPORT, at 130 (1980).

28. See Alabama Power Co. v. Costle, 636 F.2d 323, 360-61, 10 ELR 20001, 20011 (D.C. Cir. 1979).