National Wildlife Federation v. Gorsuch
18 ERC 1105, 224 U.S. App. D.C. 41, 693 F.2d 156 (1982)
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Rule of Law:
The term 'discharge of a pollutant' under the Clean Water Act requires the addition of a pollutant from a point source into navigable waters, and water quality changes caused by the passing of water through a dam are not considered an 'addition of a pollutant'. An agency's reasonable interpretation of a statute it administers is entitled to great deference, especially when the interpretation is contemporaneous, consistent, and involves technical expertise.
Facts:
- Large dams create reservoirs where the water can thermally stratify, leading to a deep, cold, oxygen-depleted lower layer (the hypolimnion).
- When water is released from this lower layer, it can have low levels of dissolved oxygen, which harms downstream aquatic life and the river's self-purification capacity.
- The anaerobic conditions in the hypolimnion can also cause minerals and nutrients, such as iron and manganese, to be leached from bottom sediments and then discharged downstream.
- The release of cold hypolimnion water or warm surface water can drastically alter the temperature of the downstream river, affecting fish species that are sensitive to temperature changes.
- Water plunging from a dam's spillway can become supersaturated with atmospheric gases, a condition which can be fatal to fish.
- Reservoirs act as sediment traps, causing the water released from the dam to be clearer but also leading to scouring of the downstream river channel.
Procedural Posture:
- The National Wildlife Federation (NWF) filed a petition in the U.S. District Court for the District of Columbia.
- NWF sought a declaratory judgment that the EPA Administrator has a nondiscretionary duty to require dam operators to apply for NPDES permits under the Clean Water Act.
- The State of Missouri intervened as a plaintiff, and numerous electric utilities and water agencies intervened as defendants.
- The district court granted the requested relief, ruling in favor of the National Wildlife Federation and ordering the EPA to regulate dams under the § 402 permit program.
- The EPA and the defendant-intervenors (appellants) appealed the district court's decision to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does the release of water with altered quality characteristics, such as low dissolved oxygen, temperature changes, or supersaturation, by a dam constitute the 'discharge of a pollutant' under § 402 of the Clean Water Act, thereby requiring dam operators to obtain a National Pollutant Discharge Elimination System (NPDES) permit?
Opinions:
Majority - Wald, Circuit Judge
No, the release of water with altered quality characteristics by a dam does not constitute the 'discharge of a pollutant' under the Clean Water Act. The court held that the Environmental Protection Agency's (EPA) interpretation of the statute is reasonable and entitled to great deference. The court's reasoning is based on several key points: First, the EPA's interpretation—that the Act distinguishes between 'pollutants' (largely substances) and 'pollution' (a broader concept including altered water conditions)—is a plausible reading of the statutory text, which defines 'pollutant' with the restrictive term 'means' rather than 'includes'. Second, the EPA’s construction of the term 'addition' to mean the introduction of a pollutant from the outside world, rather than the mere passing of altered water from a reservoir to a downstream river, is also reasonable. Third, the court found that great deference was owed to the EPA's consistent, contemporaneous construction of the Act, which involves its scientific and technical expertise. Finally, while acknowledging the Act's broad goal to eliminate pollution, the court determined that Congress also recognized practical and economic limits, and other sections of the Act suggest that some dam-related pollution was intended to be regulated by states as nonpoint source pollution under § 208, rather than through the federal NPDES permit program under § 402.
Analysis:
This decision significantly shapes the regulatory landscape for dams under the Clean Water Act by affirming the distinction between point source and nonpoint source pollution. It solidifies the principle of judicial deference to an agency's reasonable interpretation of an ambiguous statute it administers, a precursor to the standard later articulated in Chevron v. NRDC. By classifying dam-induced water quality changes as nonpoint source pollution, the court placed their regulation primarily under the authority of state-managed programs rather than the federal NPDES permit system. This ruling limits the scope of the NPDES program and has had a lasting impact on how environmental harms from hydroelectric and other dams are addressed, often leaving regulation to less stringent state-level controls.
