finding that because “plaintiff is in essence acting as a private attorney general in this matter, it probably is not subject to the doctrine of laches, at least absent a showing of some affirmative misconduct.” (citing Student Pub. Interest Research Group, 627 F.Supp. at 1085 and United States v. Amoco Oil Co., 580 F.Supp. 1042, 1050 (D.Mo.1984))
How later courts described this case
- finding that because “plaintiff is in essence acting as a private attorney general in this matter, it probably is not subject to the doctrine of laches, at least absent a showing of some affirmative misconduct.” (citing Student Pub. Interest Research Group, 627 F.Supp. at 1085 and United States v. Amoco Oil Co., 580 F.Supp. 1042, 1050 (D.Mo.1984))
- finding that “... live fish, dead fish and fish remains annually discharged into Lake Michigan by the... facility are pollutants within the meaning of the CWA, since they are ‘biological materials,’ ” but holding that because the fish were not “added,” a permit was not required
- noting that, as compared to point-source pollution, “pollution arising from nonpoint sources is to be dealt with differently, specifically through the device of areawide waste treatment management by the states” (quoting U.S. ex rel. Tenn. Valley Auth. v. Tenn. Water Quality Control Bd., 717 F.2d 992, 999 (6th Cir. 1983))
- recognizing that it was "Congress's intent ... that the term 'navigable waters' be given the broadest possible constitutional interpretation"
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring in part and dissenting in part.
While I agree with the majority’s conclusion that the district court was required to defer to the EPA’s stated policies concerning water quality changes, neither those policies nor any of the cases cited by the majority concern a facility which removes *591 water, discharges it and, in the process, adds a foreign pollutant. More importantly, because I disagree with the majority’s conclusion that the Ludington facility merely changes the movement, flow, or circulation of navigable waters, I cannot accept the majority’s reliance on Gorsuch. In my view, the district court properly concluded that the Ludington “facility’s turbines ... create the pollutant in the process of discharging the water into the Lake and generating electricity.” 657 F.Supp. at 1008 (emphasis added). Since I cannot sufficiently distinguish the facility’s discharge of dead fish and fish remains in its turbine generating water from its discharges of other pollutants, I would affirm the district court’s order requiring Consumers to apply for a permit authorizing the release of dead fish into Lake Michigan. For these reasons, I respectfully dissent.