National Wildlife Federation v. Consumers Power Co.

Consumers Power Company (Consumers) (defendant) operated the Ludington hydroelectric facility. The facility generated electricity by pumping water from Lake Michigan uphill into a man-made reservoir through reversible pump/turbines and then releasing the water to flow back through the turbines. Fish and other aquatic life were entrained, i.e., caught up, in the system. Some of the entrained life forms survived, but many were killed, and their remains were released back into the lake. The National Wildlife Federation (NWF) (plaintiff) argued that the Clean Water Act (CWA) required operators of hydroelectric facilities to apply for discharge permits under the National Pollutant Discharge Elimination System (NPDES). The NWF sued Consumers for having failed to obtain a permit. The Environmental Protection Agency (EPA) argued that, under the CWA, pollutants must be added to the water from a point source outside the water in order for the NPDES rules to apply. The EPA noted that if a seafood-processing plant removed fish from the water and discharged parts of dead fish back into the water, pollutants were added, and the NPDES rules would apply. However, if aquatic life was killed by a dam, the fish parts were never removed from the water and were thus not added back into the water, and the NPDES rules did not apply. The district court rejected the EPA’s argument, noting that Consumers had created the pollution even if no pollutants were added from outside. The court ordered Consumers to apply for a permit. In other cases, courts had declined to require dams to comply with NPDES rules. The NWF had also argued that Ludington differed from other dams because the facility removed the water and altered its quality, transforming it into something other than part of the waters of the United States, such that when the water and fish parts were returned, pollutants were added from an outside source.