## Facts

- Consumers Power Company operated the Ludington pumped-storage hydroelectric facility on Lake Michigan, moving large volumes of lake water to a manmade reservoir and later releasing it back through turbines to generate electricity.
- During intake and discharge, fish and other organisms in the lake water were entrained, and some were killed or fragmented by the facility’s operations.
- National Wildlife Federation (NWF) alleged the facility discharged turbine-generating water containing live and dead fish, fish remains, and fragments into Lake Michigan without authorization under the facility’s existing NPDES permits.
- NWF brought a Clean Water Act (CWA) citizen suit under 33 U.S.C. § 1365(a)(1), asserting the discharges required an NPDES permit under § 402, 33 U.S.C. § 1342.
- The district court granted partial summary judgment to NWF on liability, held the discharges were subject to NPDES permitting, and ordered Consumers to apply for a permit; remedial proceedings were stayed pending appeal.

## Issues

1. Whether returning turbine-generating water containing entrained fish (including dead fish and fish remains) to Lake Michigan is an “addition” of a “pollutant” to “navigable waters” from a “point source” requiring an NPDES permit under the CWA.
2. Whether fish killed and fragmented by the facility’s operation are “added” to the waters when they were never removed from the aquatic environment before being returned to the lake.
3. Whether temporary storage in a manmade reservoir makes the subsequent return flow an addition from an external source rather than movement within the same water body.

## Decision

- The Sixth Circuit reversed the district court and vacated the order requiring Consumers to apply for an NPDES permit for the entrained-fish discharge.
- The court held the facility did not “add” pollutants to navigable waters because it merely moved lake water (and materials already in it) through the pumped-storage system and back to the lake.
- The court accepted EPA’s distinction between (i) discharges introducing material from outside the aquatic environment and (ii) operations that kill or fragment organisms already in the water but do not remove them and reintroduce them.
- The court rejected the argument that the reservoir and Lake Michigan were separate waters for purposes of determining whether there was an “addition.”

## Legal Principles

- “Discharge of a pollutant” under the CWA requires an “addition” of a pollutant to navigable waters from a point source; movement or circulation of materials already present in the water is not an “addition.”
- A dam or pumped-storage facility that passes water through turbines and returns it to the same aquatic system does not “add” pollutants merely because its operations kill or fragment organisms already in the water.
- The relevant comparison for “addition” is introduction from outside the aquatic environment, not relocation within components of a connected water system (such as a lake-reservoir loop).
- Agency interpretation that NPDES permits are not required for mere passage of water (and its contents) through hydroelectric structures may be given substantial weight when consistent with statutory text.

## Conclusion

The Sixth Circuit held that a pumped-storage facility’s return of Lake Michigan water containing entrained fish and fish remains did not constitute an “addition” of pollutants under the Clean Water Act, so the discharge did not require an NPDES permit.


Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988)