Rethinking Gorsuch: The Case for NPDES Regulation of Dam Discharge

Abstract

The reservoir created by damming a river, along with the dam itself, contributes to a host of adverse environmental effects. These environmental harms would not occur in the same quantity or quality but for the existence of the dam-reservoir construct. In many cases, these environmental harms manifest in the form of pollutants that may be discharged by dam operations to the downstream waters. NPDES permits should therefore be required for dam discharge. EPA, however, has refused to regulate dam discharge under NDPES, relying on a 1982 D.C. Circuit opinion, National Wildlife Federation v. Gorsuch. More recent court opinions, scientific studies, and EPA’s own water quality regulations have undermined Gorsuch. The time has come, therefore, to follow the statutory requirements of NPDES by regulating dam discharge accordingly.