1994-05-19_GENERAL DOCUMENTS - M1977378

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18 ERC 1110 Valzonal cye Federation v. Gorsuch below the dam, or constructing spillway The parties agree that a dam can, in deflectors.ls Supersaturation does not some circumstances, be a "point appear at present to be a major problem. source,"22 and that both the reservoir The most recent fish kills discussed in the and the downstream river are "navigable record occurred at Truman Dam in tifis- waters" within the statutory meaning souri in 1978 and 1979 while the dam was whether or not they are navigable in under construction, and subsequent in- fact.23 They dispute whether low dis- stallation of a spillway deflector has re- solved oxygen, cold, and supersaturation duced supersaturation to non-fatal lev- are "pollutants" and whether any of the els.19 disputed water quality problems consti- �'� 6. Other Water Quality Changes cute the "addition" of a pollutant "from" a point source. Dams also cause numerous other changes in the nation's waters, not direct- The Wildlife Federation argues that ly at issue in this litigation. On the any adverse change in the qualitti of fpositive side, dams can prevent floods, reservoir water from its natural state store drinking and irrigation water, pro- involves a "pollutant" and that release of vide a clean source of electric power (thus polluted water through the dam into the reducing other sources of pollution), downstream river constitutes the "addi- moderate stream flow, and provide recre- tion" of a pollutant to navigable waters ation opportunities.20 On the negative "from" a point source.24 If this is correct, side, they can indirectly affect ground the Administrator has a no ndis credo nary water quality and reduce stream flow and duty to regulate dams under §402.25 hence waste-assimilative capacity.21 In short, dams affect environmental quality 24 "Point source" is defined in §502(14), 33 in a large number of ways, both good and U.S.C. § 1362(14) as: bad. any discernible, confined and discrete con- .'. B. Legal Issue Presented veyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit ... 1 The issue in this case is one of statutory from which pollutants are or may be dis- ? ! construction — which if any of the water charged. quality changes caused by dams must be The pipes or spillways through which water regulated under the National Pollutant a flows from the reservoir through the dam into Discharge Elimination System (NPDES) the downstream river clearly fall within this established by §402 of the Clean Water definition, and EPA has required NPDES Act, 33 U.S.C. § 1342. Under §402(a), permits for the discharge of grease, oil, or "the Administrator may, after opportuni- trash through the outlet works of a dam. EPA tv for public hearing, issue a permit for Brief at 24 n.21. the discharge of any pollutant." Unless Y3 "Navigable waters" are defined in the Administrator issues an NPDES per- §502(7), 33 U.S.C. § 1362(7) as "the waters of mit, "the discharge of any pollutant by the United States, including the territorial seas." All courts considering the issue have any person (is] unlawful." Id. §301(a), 33 held that navigability in fact is not required. U.S.C. § 1311(a). Section 502(12), 33 See, e.g., United States v. Byrd, 609 F.2d 1204, U.S.C. § 1362(12), defines the key phrase 1209 [13 ERC 1954] (7th Cir. 1979) (citing "discharge of a pollutant" as "any addi- legislative history) Leslie Salt Co. v. Froehlke, tion of any pollutant to navigable waters 578 F.2d 742, 754-55 [11 ERC 1729] (9th Cir. from any point source." Thus, for dams. 1978); Natural Resources Defense Council, to require NPDES permits, five elements Inc. Y. Callaway, 392 F.Supp. 685 [7 ERC must be present: (1) a pollutant must be 1734] (D.D.C. 1975). (2) added (3) to navigable waters (4)from (5) '' Wildlife Federation Brief at 16-18. a point source. 25 If the releases constitute the discharge of a pollutant, the Administrator must regulate za Id IT 28-29,J.�. at 22; Deposition of Dr. dams and cannot issue a categorical exemption James Whitley,supra note 8,at 71-73. from the permit requirements. Natural Re- sources Defense Council, Inc. v. Costle, 568 19 Joint Statement of Material Facts, supra F.2d 1369 [10 ERC 1625] (D.C.Cir. 1977). note 4, 128,J.A. at 22. Y0 Id !f 1, 7-12,J.A.at 14-15. The Wildlife Federation has standing to 21 EA1 1973 Dam Report, supra note 5, at 80- enforce this duty under the citizen suit section 81,J.A. at 219-20 (ground water); id at 84-86, of the Act, 33 U.S.C. § 1365(a)(2), which J.A. at 234-36 (waste assimilation). authorizes any person adversely affected to J�