ELR Citation: ELR 20229
No(s). 00-9447 (2d Cir. Oct 23, 2001)

The court reverses a district court decision that water diverted from a reservoir through a city-operated tunnel and then released into a creek is not the "addition" of a pollutant to a creek, thereby triggering the Clean Water Act's (CWA's) permit requirement. The transfer of water was necessary to provide drinking water to the city. An organization that used the creek for recreational purposes argued that the process caused pollutants in the form of suspended solids, turbidity, and heat to be discharged into the creek in violation of state water quality standards for turbidity and temperature.

The court first dismisses the organization's thermal discharge claim without prejudice. The organization's notice-of-intent-to-sue letter included notice of "suspended solids," which was sufficient to notify the city of claims of turbidity. Notice of discharges of suspended solids is sufficient to notify the city of an eventual claim based on discharges of "turbidity" because each logically depends on the other. The presence of suspended solids, however, does not inevitably raise water temperature.

The court next holds that the district court erred in holding that the release of water from the reservoir into the creek is not an "addition" that requires a permit. The city relied on two cases in which the courts accorded substantial deference to the U.S. Environmental Protection Agency's (EPA's) position that the CWA's discharge permit requirement does not apply to discharges from dams. However, the courts in those cases accorded too much deference to EPA's position, as it was based on a series of informal policy statements and litigation stances in the 1970s and 1980s. Moreover, the cases involved the recirculation of water without anything added from the outside world. According to EPA's position, an addition requires a point source to introduce the pollutant into navigable water from the outside world. In the present case, however, the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a "discharge" that demands a national pollutant discharge elimination system permit. Further, when the water and the suspended sediment therein pass from the tunnel into the creek, an "addition" of a "pollutant" from a "point source" has been made to a "navigable water," and the terms of the CWA are satisfied. The court, therefore, reverses the district court's dismissal of the organization's claim.

Counsel for Plaintiffs
Karl S. Coplan
Pace Environmental Litigation Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
Ellen S. Ravitch
Office of Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303

Walker, J. Before Katzmann and Cudahy, ^* JJ.