Member Pipeline - Legal - July/August 2002 Legal Perspectives
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Printer friendly versionVolume I, Issue 6 |
July/August 2002 |
Five elements are needed to state a claim for the improper discharge of a pollutant without an NPDES permit under CWA § 301 – “’(1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source.’”
Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, No. 00-CV-511
(N.D.N.Y. 2000)(quoting Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982))The National Pollutant Discharge Elimination System (NPDES) program, created by the Clean Water Act (CWA) in 1972, is one of the primary drivers behind our nation’s substantial improvement in water quality. Today, more than 400,000 industries and commercial facilities, municipal and industrial storm water systems, concentrated animal feeding operations, and publicly owned treatment works (POTWs) are required to have NPDES permits. This number will increase to over 500,000 as the Phase II storm water requirements come into effect in 2003. As of 2001, 44 states and one territory were authorized to implement the NPDES program.
The legal test for determining whether an NPDES permit is required, as laid out in the 1982 National Wildlife case cited above, is deceptively simple. A “pollutant” (CWA § 502(6)) must be “added” to a “navigable water” (CWA § 502(7)) from a “point source” (CWA§ 502(14)). A significant body of case law has grown up around each one of these of these criteria, as courts have been asked to determine whether certain substances are a pollutant (e.g., gasoline, oil, acid mine drainage, copper, nonindigenous species), whether pollutants are added (see this article), what is a point source (e.g., a broken barge in a hurricane, bulldozers and backhoes, landfills, lagoons, trap shooting facilities), and what is a navigable water (e.g., wetlands, man made structures, intermittent stream beds). The significant number of legal battles over these issues is testament to the inherent difficulty of determining the applicability of the NPDES criteria.
Recently, several high U.S. courts have used these criteria to find that NPDES permits are required in several scenarios which appear to expand the NPDES program beyond the regulation of more traditional point source discharges. This issue of Legal Perspectives reviews these cases, and discusses the implications of this emerging NPDES legal trend for AMSA member agencies.
“Pollutant Added” When Water Tunneled
In October 2001, the U.S. Court of Appeals for the Second Circuit held that moving turbid water containing pollutants from one water body, through a tunnel to another water body, constituted the “addition” of a “pollutant,” requiring an NPDES permit. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir. 2001). The Catskill case concerned New York City’s (NYC) use of an underground tunnel to move drinking water from a reservoir 18 miles south to a creek, which flowed into a larger reservoir. Trout Unlimited alleged that NYC was violating the CWA by discharging the turbid water from the tunnel, which contained suspended solids and elevated temperature, to the creek without an NPDES permit.The U.S. District Court for the Northern District of New York dismissed the complaint. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, No. 00-CV-511 (N.D.N.Y.), Oct. 2000. The court found that NYC did not “add” a pollutant to the creek because it did not alter the water collected in the tunnel. The court deferred to EPA’s longstanding interpretation that an “addition” of a pollutant from a point source means “the introduc[tion of a] pollutant . . . from the outside world.” The court also relied on cases finding that NPDES permits are not required to move pollutants through dams because pollutants are not “added” in the process. See Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988).
The Second Circuit, however, reversed the District Court on appeal. The court found that EPA’s interpretation of “addition of a pollutant” was not entitled to deference because EPA did not adopt the position via rulemaking. Further, while the court agreed that “addition” meant the introduction of a pollutant from the “outside world,” it defined the outside world as anywhere outside the particular water body into which the pollutants were introduced. Because NYC was diverting turbid water (a “pollutant”) from the reservoir into the creek, the “point source” tunnel was “adding” a pollutant and an NPDES permit was required. The Court distinguished Gorsuch and Consumers because in those cases, the dam waters were released back to the original streams.
“Pollutant Added” When Water Pumped Through Levee
Earlier this year, the Eleventh Circuit followed the Second Circuit, finding that an NPDES permit was required for a water management district to pump water from a canal through a levee to a water conservation area, to prevent flooding of a portion of Florida’s populated Broward County. Miccosukee Indian Tribe of Florida, et al. v. South Florida Water Management District, 280 F.3d 1364 (11th Cir. 2002). In this case, an Indian tribe alleged the South Florida Water Management District (SFWMD) violated the CWA by discharging water with high phosphorus levels from the pump station into the lower phosphorus level water conservation area without an NPDES permit.Like NYC, the SFWMD argued under Gorsuch and Consumers that because the pump station did not introduce pollutants from the outside world, no “addition” of a pollutant occurred to require an NPDES permit. However, the Eleventh Circuit endorsed the Second Circuit’s finding that the “addition of a pollutant from the outside world” meant any place outside of the particular water body to which the pollutants are added. The court noted that “from a point source” includes situations where the point source is the “agent or instrumentality” or the “cause or reason” for the pollutant addition. Following this reasoning, the court held that an NPDES permit was required to operate the pump station.
Policy Implications of Requiring NPDES Permits for Water Management
By taking a broad view of what constitutes the “addition” of a pollutant, the Catskill and Miccosukee cases concluded that NPDES permits were required for what were essentially water management activities. While it is understandable that courts might view NPDES permits as a vehicle for resolving complex water quality issues, given that they are the most direct and enforceable mechanism to control water pollution, the policy implications of this legal trend are concerning. It is worth noting that local governments, water suppliers, water management facilities, flood control districts, and irrigation districts almost universally undertake the type of water management and movement activities involved in these two cases. If NPDES permits are required for these activities, public agencies will find themselves exposed to increased regulatory oversight, reduced operational flexibility, and the ever present threat of citizen suits for discharging without an NPDES permit. Furthermore, given the pressing nature of some of our nation’s water quality challenges, the Catskill and Miccosukee cases raise questions about whether requiring NPDES permits for water management activity is the most sound use of limited state regulatory and local government resources.It is likely that Catskill and Miccosukee will not be the last cases to find that pollutants are added by, and that NPDES permits are required of, non-typical point source discharge activities. In fact, the U.S. Supreme Court has an opportunity to weigh in on these issues when it reviews a Ninth Circuit wetlands case this fall. Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001); cert. granted, 122 S.Ct. 2355 (Jun. 10, 2002). In Borden Ranch, the Ninth Circuit found that “deep ripping” soil for crops, which essentially churns up existing soil, constitutes the “addition” of a “pollutant,” that bulldozers and tractors are “point sources,” and that a CWA § 404 wetlands permit was required for the activity. Given that the Court accepts only 10 percent of the cases presented to it for review, its’ selection of Borden Ranch signals a desire to set the record straight on some key water issues. The Court could use the case to make broad pronouncements about the scope of the CWA, what constitutes a point source, or the addition of a pollutant. Thus, this wetlands case could impact the future of the NPDES program.
AMSA’s Steps
Given the importance of NPDES permit trends to the membership, AMSA will continue to identify ways to influence and shape the permitting program to make it as sensible and effective as possible, to preserve members’ operational flexibility, and to reduce the likelihood of litigation for utilities. We also will seek opportunities to become involved in key NPDES permit cases to ensure that the voice and perspective of the wastewater treatment community is heard.© 2002 Association of Metropolitan Sewerage Agencies
Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).
Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.
AMSA welcomes comments on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, at adunn@amsacleanwater.org or 202/533-1803.