Opposition Brief — Monongahela Power Co. v. Marsh

t

my

No. 86-1642 " JOSEPH F. Panton, ur

conacesiaseeunsiiiaiiaiiaiiiadiaiaipiilialiciaaen

In the Supreme Court of the United States

OCTOBER TERM, 1987

MONONGAHELA POWER COMPANY, ET AL.,

PETITIONERS

Vv.

JOHN O. MARSH, JR., SECRETARY OF THE ARMY,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

ANNE S. ALMY

JAMES C. KILBOURNE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether hydroelectric projects licensed under the

Federal Power Act, 16 U.S.C. 79la et seq., are ex-

empt from the requirements of Sections 301(a) and

404 of the Clean Water Act, 33 U.S.C. 1311(a) and

1344, which prohibit all discharges of dredged or fill

material into the navigable waters of the United

States except pursuant to permit issued by the Secre-

tary of the Army.

(1)

TABLE OF CONTENTS

(III)

Page

2 celeeeumcanansiibusione 1

SS EE Ee 1

EE a 2

Argument Te SN a EE eee See Ea 7

EE 19

TABLE OF AUTHORITIES

Cases :

City of Milwaukee v. Illinois, 451 U.S. 304

(1981) . . 13

Kremer V. ‘Chemical Construction Corp., “456 U. s.

I eemennenne 19

Ruckelshaus Vv. Monsanto Co., 467” U.S. 986

(1984) _ ; 19

Scenic Hudson Preservation ‘Conference ' Vv. - Calla-

way, 370 F. Supp. 162 (S.D.N.Y. 1973), aff'd,

499 F.2d 127 (2d Cir. 1974) _._ i200, 11, 14, 17

Train V. Colorado Public Interest Research Group,

426 U.S. 1 (1976) - - . 14-15

Udall v. FPC, 387 U.S. 428 (1967) _ = ; 8

United States v. Riverside Bayview ‘Homes, ‘Ine.

EL | er | ey

Statutes and regulations:

Clean Water Act, 33 U.S.C. (& Supp. III) 1251

SEE ae 2

§ 301(a),33 U.S.C. 1311(a)__ pe ee.

§ 404, 33 U.S.C. 1344 _ va passim

§ 404(b), 33 U.S.C. (& Supp. IIT) 1344 (b) 7

§ 404(b) (1), 33 U.S.C. (& — III) 1344

| Sa 2 ...6, 14, 17, 18

§ 404(c), 33 U.S.C. 1344(c) _ oman. A) Me ,

§ 404(e) (1), 33 U.S.C. 1344(e) (1) . 13

§ 404(f), 33 U.S.C. 1344(f) ______ eae,

§ 404 (f) (1), 33 U.S.C. 1344(f) (1) -~............. 13

IV

Statutes and regulations—Continued:

§ 404(f) (1) (C), 33 U.S.C. 1344(f) (1) (C) —

§ 404(f) (2), 33 U.S.C. 1344(f) (2) —

§ 404(g), 33 U.S.C. 13844(g) ESS

§ 404(h), 33 U.S.C. 1344(h) neti haneelentaiata

§ 404(i), 33 U.S.C. 1344(i) sctaietmiiaieaiaa

§ 404(r), 88 U.S.C. 13844(r) —_______.

Clean Water Act of 1977, Pub. L. No. 95-217,

fo 8 ee

Department of Energy Organization Act, Pub. L.

No. 95-91, 91 Stat. 565 A So EP NN Sct te

Electric Consumers Protection Act of 1986, Pub.

L. No. 99-495, 100 Stat. 1243 ___

§ 3, 100 Stat. 1243-1245 - eae

Federal Power Act, 16 U.S.C. 79la et seq. _

§ 10(a), 16 U.S.C. 803 (a) — edeadiass

Federal Water Pollution Control ‘Act “Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816 —...___

42 U.S.C. 7172 (a) (1) (A) —— acai dhiaibiaie

ER BR a aa eee ose none

40 C.F.R. Pt. 230

Section 230.5(b) (8) (i) (1980) _----

Section 230.5 (b) (8) (ii) (1980)

Section 230.10(a) - =

39 Fed. Reg. 12119 (codified at 33 C. F.R. 209.120

(c) (6) (1974))

Miscellaneous:

OD eG, Tee, BT Ge cicnttcecisccnsnnatincniicapnsinanienenen

H.R. Conf. Rep. 95-539, 95th Cong., Ist Sess.

(1977)

Senate Comm. on the Environment and Public

Works, 95th Cong., 2d Sess., 3 A Legislative

History of the Clean Water Act of 1977 (Comm.

Print 1978)

14

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1642

MONONGAHELA POWER COMPANY, ET AL.,

PETITIONERS

Vv.

JOHN O. MARSH, JR., SECRETARY OF THE ARMY,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A1-A26) is reported at 809 F.2d 41. The opinion

and order of the district court (Pet. App. B1-B15)

are reported at 507 F. Supp. 385.

JURISDICTION

The judgment of the court of appeais was entered

on January 13, 1987. The court of appeals denied

(1)

2

rehearing en banc on March 24, 1987 (Pet. App.

C1-C2). The petition for a writ of certiorari was

filed on April 13, 1987. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. 1254(1).

STATEMENT

This case concerns the application of two federal

statutes, the Federal Power Act, 16 U.S.C. 79la et

seq., and the Clean Water Act, 33 U.S.C. (& Supp.

III) 1251 et seqg., to the proposed construction of a

pumped storage hydroelectric facility project. The

Federal Power Commission (FPC), the predecessor

of the present Federal Energy Regulatory Commis-

sion (FERC),’ granted petitioners (a consortium of

electric power companies) a license under the Fed-

eral Power Act (Pet. App. A4). The Corps of Engi-

neers (Corps) denied petitioners a Section 404 per-

mit under the Clean Water Act, 33 U.S.C. 1344, on

the ground that the project would cause extensive

environmental harm (Pet. App. A4). The district

court held (id. at B1-B15) that the Section 404 per-

mit program did not apply to the project, which the

court concluded was subject to FERC’s exclusive

jurisdiction under the Federal Power Act. The court

of appeals reversed (Pet. App. Al-A26) and upheld

the Corps’ Section 404 jurisdiction.

1. In 1970, petitioners applied to the Commission

for a license to construct a 1,000-megawatt pumped

storage hydroelectric project on the Blackwater River

in the Canaan Valley of West Virginia. The project

would require construction of two reservoirs—a large

1 See 42 U.S.C. 7172(a) (1) (A). Like petitioners (see Pet.

4 n.1), we refer to the FPC and FERC interchangeably as

the “Commission” in this submission.

reservoir downstream and a smaller reservoir up-

stream. Water stored in the two reservoirs would

inundate more than 7,000 acres of freshwater wet-

lands. Pet. App. A3.

a. In 1976, the administrative law judge (ALJ)

in the Commission licensing proceeding denied peti-

tioners’ application for a license (Pet. App. A3).

The ALJ found that the project would devastate the

wetlands as a unique and diverse botanical and wild-

life habitat (id. at A3-A4). In particular, the proj-

ect would destroy one third of the wetlands, eighty

percent of the bog, muskeg, and swamp forest com-

munities, and one half of the wildlife habitat in the

Canaan Valley. In addition, the project would inun-

date fifty acres of beaver ponds and forty miles of

streams and rivers, which would decrease by sixty

percent the self-sustaining brown trout fisheries in

West Virginia. C.A. App. 214.

The ALJ further found (Pet. App. A4 n.8 (quot-

ing C.A. App. 216)) that “‘none of the proposed

mitigation plans appears reasonably appropriate or

feasible to effectively outweigh the negative aspects

inherent in the adoption of the proposed project, re-

quiring a flooding of a considerable part of the floor

of the Canaan Valley and radically changing its

whole interdependent environment.’” Finally, the

ALJ indicated (ibid.) approval of a modified project,

involving a much smaller lower reservoir, which

would have a much smaller adverse environmental

impact (inundating only 700 acres).

b. In 1977, the Commission reversed the ALJ’s

decision and issued 2 license for the project (Pet.

App. A4). The Commicsion described (C.A. App.

236) the proceeding as a “conflict between those

favoring recreation and those favoring the environ-

ment in its present state.” The Commission stated

4

(C.A. App. 261) that its issuance of a license was

“motivated by the need * * * for pumped storage

capacity and the construction of a facility which will

provide substantial recreational opportunities.” The

Commission “recognize[d] that some botanical and

wildlife resources will be destroyed,” but concluded

that “this can be mitigated in various ways, particu-

larly by the dedication of additional land [by peti-

tioners]” (ibid.). Finally, pursuant to its statutory

mandate, the Commission concluded (C.A. App. 261,

262) that the project, as modified, would both be in

the “public interest” and “be best adapted to a com-

prehensive plan for improving or developing a water-

way or waterways for the use or benefit of interstate

commerce, for the improvement and utilization of

water power development, and for other beneficial

uses, including recreational purposes, within the

meaning of Section 10(a) of the Federal Power

Act.” *

2. Petitioners subsequently applied to the Corps

of Engineers for a permit under Section 404 of the

Clean Water Act, 33 U.S.C. 1344, to place dredged or

fill material into navigable waters of the United

States in connection with project construction (Pet.

App. A4). Section 301(a) of the Clean Water Act,

33 U.S.C. 1311(a), prohibits any discharge of pol-

lutants, including dredged and fill material, into

2? The Commission's decision is currently the subject of

three petitions for review, including one by the Secretary

of the Interior, pending in the Court of Appeals for the

District of Columbia Circuit. Sierra Club v. FERC, Nos.

77-1736, 77-1737, and 77-1845. The court of appeals has

heard oral argument in those consolidated appeals, but has

stayed further proceedings pending resolution of this case

see Pet. App. A4n.10).

5

navigable waters, except pursuant to a Section 404

permit issued by the Secretary of the Army. Peti-

tioners did not then object to the Corps’ jurisdiction

(Pet. App. A5).

After holding public hearings on petitioners’ per-

mit application and receiving written comments, the

Corps of Engineers denied the permit (Pet. App.

A4). The Corps concluded (C.A. App. 684; see Pet.

App. A4) that the project as proposed “would alter

and irreparably damage a significant natural re-

source, the Canaan Valley wetland complex.” The

Corps also concluded (C.A. App. 684) that “[t]here

are available alternate sites which would fulfill the

same electrical energy needs and which are far less

damaging to the natural environment.” The Corps

suggested (ibid.) that petitioners pursue one of those

alternatives.*

3. Petitioners filed this action in federal district

court against the Secretary of the Army and certain

Corps of Engineers officials. They sought declara-

tory and injunctive relief that hydroelectric projects

licensed by the Commission are exempt from Section

404 of the Clean Water Act and accordingly that the

Corps has no jurisdiction to require a permit for any

*The Environmental Protection Agency (C.A. App. 606-

608), the Department of the Interior (C.A. App. 441-446),

and the West Virginia Department of Natural Resources

(C.A. App. 686) each opposed issuance of the permit citing

the destructive impact of the project on the unique com-

bination of wetland resources in the Canaan Valley. The

Corps reviewed the environmental impact statement sub-

mitted as part of the hydroelectric licensing proceeding

(C.A. App. 336-440) and commissioned and received a re-

port by a wetlands biologist evaluating the effects of the

proposed project on the wetland and other resources of the

valley (C.A. App. 609-649).

6

dredge or fill activity related to construction of the

project. Pet. App. A5. The district court agreed and

granted petitioners’ motion for summary judgment

(id. at B1-B15).

4. The court of appeals reversed (Pet. App. Al-

A26). The court concluded (id. at All) that Com-

mission-licensed hydroelectric projects are neither ex-

pressly nor impliedly exempt from the terms of Sec-

tions 301(a) and 404 of the Clean Water Act. ‘che

court noted (Pet. App. All) first that the terms of

the Act “would seem to require a Corps permit for

such discharges unless some exemption is available”

and that the list of activities expressiy exempted

from the permit requirement by Section 404(f), 33

U.S.C. 1344(f), does not include Commission-licensed

projects. The court next ruled (Pet. App. A19-A26)

that such projects are not impliedly exempt from the

Clean Water Act’s requirements. The court reasoned

(id. at A21) that “fidelity to the legislative scheme’”’

of the Clean Water Act precludes any implied exemp-

tion for Commission-licensed projects because under

the Federal Power Act the Commission does not, and

need not, subject its license applicants to a “review

under substantive standards comparable to those es-

tablished pursuant to Section 404(b) (1) [of the Clean

Water Act].” The court stressed (Pet. App. A23-

A24 (footnote omitted)) that the Commission’s

guidelines, unlike the Section 404(b)(1) standards

employed by the Corps, “assigned no relative weights

to competing objectives.”

7

ARGUMENT

The petition for a writ of certiorari should be de-

nied. The petition presents no important issue of

legal or practical significance, and the decision of the

court of appeals does not conflict with any decision

of this Court and is in accord with the only other

court of appeals decision addressing the issue. For

these reasons, the Commission acquiesces in the re-

sult of the court of appeals’ decision and believes the

petition should be denied. The Corps of Engineers

believes that further review is not warranted for the

additional reason that the decision of the court of

appeals is correct.*

1. Petitioners’ argument (Pet. 21-25) that the

issue presented by the petition is important misap-

prehends the decision of the court of appeals. Con-

trary to petitioners’ contention (Pet. 10), the court

of appeals did not “strip[] the Commission of its

established and substantive environmental role.” The

court of appeals merely concluded that the Commis-

sion does not possess exclusive jurisdiction over the

environmental consequences of hydroelectric projects.

The exclusivity ruling, moreover, does not involve an

issue of broad legal or practical importance.

a. First, petitioners are mistaken in claiming that

the court of appeals ruled that the Commission has

no substantive authority or obligation to consider en-

vironmental factors in determining whether issuance

*The Environmental Protection Agency (EPA) also has

programmatic authority in the implementation of Section 404

(see 33 U.S.C. (& Supp. III) 1344(b), (c), (gz), (h), and (i);

Pet. App. A10-A11), as well as an overall responsibility for

administering the Clean Water Act. The EPA is not a party

to this case, but shares the Corps’ view of the correctness

of the decision below.

8

of a license would be in the “public interest,” as re-

quired by the Federal Power Act. Certainly, neither

the Corps of Engineers nor, more importantly, the

Commission reads the court of appeals’ decision as

adopting that view. The decision instead simply rests

on the court’s conclusion that the respective substan-

tive environmental roles of the Commission (under

the Federal Power Act) and of the Corps of Engi-

neers (under the Clean Water Act) are sufficiently

distinct that the Commission’s substantive jurisdic-

tion should not be read as precluding that of the

Corps of Engineers.

The court of appeals’ decision does not therefore

disturb the well-settled proposition that the Commis-

sion has the authority, indeed the duty, both to con-

sider environmental factors in deciding whether to

issue a license under the Federal Power Act’s “pub-

lic interest” standard (16 U.S.C. 8038(a); see Udall

v. FPC, 387 U.S. 428, 482-444 (1967)) and to deny

a license whenever those factors tip the balance

against its issuance. Petitioners’ contrary suggestion

rings especially hollow given that neither the agency

(the Commission) whose substantive environmental

mandate petitioners are purporting to protect nor

the environmental organizations whose conservation

interests petitioners are claiming to safeguard share

petitioners’ tortured reading of the court of appeals’

decision.® Petitioners’ characterization of the impor-

5 The Sierra Club, West Virginia Highlands Conservancy,

National Wildlife Federation, Environmental Defense Fund,

and National Audubon Society were parties below and have

filed with this Court a joint opposition to the petition in

which they similarly refute petitioners’ reading of the court

of appeals’ decision. See Br. in Opp. 21-24.

9

tance of this case therefore challenges a ruling that

is simply not presented by the decision below.

b. The court of appeals’ ruling on exclusivity

does not, moreover, present an important issue that

warrants this Court’s review. As a practical matter,

agencies, such as the Commission and the Corps of

Engineers in this case, work out their overlapping

programmatic interests through memoranda of un-

derstanding that allow each agency a substantial

role in the decisionmaking process. Indeed, the Com-

mission and the Corps have entered into just such

an understanding regarding their respective jurisdic-

tions over non-federal hydropower development,

which is why the Commission believes that the exclu-

sivity issue (while wrongly decided in its view) is of

little practical moment. For both agencies, this case

is the infrequent instance when the fact that the two

agencies had independent permitting authority to im-

plement their distinct substantive environmental

roles made a difference in the outcome to a permit

applicant. It is no mere happenstance that the issue

raised by the petition—whether a Corps Section 404

permit is required of Commission-licensed hydroelec-

tric facilities—has arisen in only one other reported

case during the past fifteen years in which the Fed-

eral Power Act and the Clean Water Act have co-

existed.° Hence, although the exclusivity issue is no

6 Petitioners mistakenly state (Pet. 7) that the Corps did

not assert Section 404 jurisdiction generally over hydroelec-

tric projects until 1977. From the time the Federal Water

Pollution Control Act Amendments of 1972, Pub. L. No.

92-500, 86 Stat. 816, were enacted, the Corps has consistently

interpreted that provision as applying to hydroelectric proj-

ects. Shortly after passage of the Amendments, the Corps

proposed regulations to implement its Section 404 authority.

10

doubt of some financial interest to petitioners in this

particular case, it is not an important legal issue

that warrants this Court’s review—at least in the

absence of a conflict in the circuits.

2. By omission, petitioners concede that the deci-

sion of the court of appeals does not conflict with

any decision of any other court of appeals. Indeed,

petitioners are unable to cite even to a district court

decision in another case that reached a different re-

sult. In fact, there appears to be only one other case

that has raised the issue presented here, Scenic Hud-

son Preservation Conference v. Callaway, 370 F.

Supp. 162 (S.D.N.Y. 1973), aff’d per curiam, 499

F.2d 127 (2d Cir. 1974), and the decision of the

court of appeals here agrees with the rulings of both

the district court and the court of appeals in that

case.

In Scenic Hudson, the district court, like the court

of appeals here, rejected (370 F. Supp. at 170) the

arguments that application of Section 404 to Com-

—__ —_—____—

38 Fed.Reg. 12217 (1973). The regulations, as proposed and

adopted, expressly required a Section 404 permit for any

hydroelectric project that involved the discharge of dredged

or fill material into navigable waters. 39 Fed. Reg. 12119

(codified at 33 C.F.R. 209.120(c) (6) (1974)). The Corps has

consistently maintained this interpretation. See 33 C.F.R.

320.3 (f). Scenic Hudson Preservation Conference V. Callaway,

370 F. Supp. 162, 164 (S.D.N.Y. 1973), relied upon by peti-

tioners for their contrary assertion, states that the Corps

initially took the position that Section 404 did not apply to

the “Storm King project,” the particular project involved in

that case, but that the Corps subsequently changed position.

This recital of the procedural history of the case, without

further elucidation, is entitled to no weight given the Corps’

otherwise consistent interpretation that Section 404 does

apply to hydroelectric projects.

11

mission-licensed hydroelectric projects is inconsistent

with the Commission’s regulatory authority under

the Federal Power Act and that the Commission per-

forms the functional equivalent of a review by the

Corps of Engineers (and the Administrator of the

Environmental Protection Agency, see 33 U.S.C.

1344(c)) under Section 404. Like the court of ap-

peals here, the district-court also concluded (370

F. Supp. 170) that Congress did not intend to make

an exception from the sweeping prohibitions and per-

mit requirements of the Clean Water Act for Com-

mission-licensed projects. The district court was

similarly of the view (ibid.) that the substantive

environmental mandates conferred on the Corps by

Section 404 and on the Commission by the Federal

Power Act are sufficiently distinct that the latter

should not be read as precluding application of the

former. The Second Circuit in Scenic Hudson af-

firmed (499 F.2d at 127) in a per curiam opinion

based on the district court’s “well-considered opin-

ion.”

3. Finally, the Corps of Engineers believes that

further review is not warranted for the additional

reason that the decision of the court of appeals is

correct. While the Commission acquiesces in the de-

cision below, it continues to believe the decision is

incorrect and therefore opposes review only for the

reasons set forth above.’

In the Corps of Engineers’ view, petitioners’ con-

tention that Sections 301(a) and 404(b) of the

7™On the merits, the Commission agrees with much of the

legal arguments advanced by petitioners, which are set out

in their petition. For this reason, we do not separately

repeat the Commission’s merits argument here and we in-

stead detail the views of the Corps of Engineers in response

to the petition.

12

Clean Water Act do not apply to Commission-licensed

hydroelectric projects fails in three fundamental re-

spects. First, it ignores the language, structure, and

legislative history of the Clean Water Act, which

make plain that Congress intends for Section

301(a)’s discharge prohibition and Section 404’s per-

mit requirement to apply to those projects. Second,

it misapplies and misstates congressional purpose in

enacting the Federal Power Act in 1970. Finally, it

misapprehends the nature of the Corps’ responsibili-

ties under Section 404, when it equates the Corps’

substantial environmental mandate with that of the

Commission under the Federal Power Act.

a. Contrary to petitioners’ assertion (Pet. 15),

the decision of the court of appeais does not rely on

a “naked presumption” that Section 404 applies to

Commission-licensed projects. The court of appeals’

construction of Sections 301(a) and 404 was well

clothed in the plain meaning of the Clean Water Act,

as evidenced by its language, structure, and legisla-

tive history. As noted by the court of appeals (Pet.

App. All), the relevant statutory language nowhere

suggests an exception for Commission-licensed hydro-

electric projects. Sections 301(a) and 404 provide

in no uncertain terms that “any discharge of dredged

or fill materials into navigable waters * * * is for-

bidden unless authorized by a permit issued by the

Corps of Engineers pursuant to [Section] 404’

(United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 123 (1985) ).

As the court of appeals also pointed out (Pet. App.

A19-A20), the structure of the Clean Water Act sim-

ilarly refutes petitioners’ proffered exemption. In

Section 404(f), Congress has carefully delineated

the particular activities that are exempt from Sec-

13

tion 404.* Congress’s failure to include Commission-

licensed hydroelectric projects, or even any compar-

able activity, in that list is well-nigh dispositive.

The legislative history of the Clean Water Act con-

firms, moreover, what the statutory language and

structure make plain.’ As the court of appeals re-

counts (Pet. App. A9-A10), the legislative history

shows that Congress “recognized that some other leg-

islative objectives would have to be reconciled with

the new pollution-control efforts,” and that Congress

made no effort to exempt the adverse environmental

consequences of hydroelectric projects from its “ef-

® Section 404(f) (1) and (2) expressly exempt from Sec-

tion 404’s permit requirement certain minor discharges

which do not bring navigable waters into a use to which

they were not previously subject (33 U.S.C. 1344(f) (1) and

(2)). In addition, Congress has provided for issuance of

general permits in specified circumstances in lieu of indi-

vidual applications (Section 404(e) (1), 33 U.S.C. 1344(e)

(1)), for transfer of portions of the federal program to

states (Section 404(g), 33 U.S.C. 1344(g)), and for ex-

emptions of federal projects specifically identified by Con-

gress (Section 404(r), 33 U.S.C. 1344(r)).

®* Contrary to petitioners’ assertion (Pet. 15), the relevant

legislative history does not show that Section 404 is “in-

tended merely to preserve some of the Corps’ former juris-

diction.” As recently described by this Court in United

States v. Riverside Bayview Homes, Inc., 474 U.S. at 133,

Congress intended in the Clean Water Act, including in

Section 404, “to repudiate limits that had been placed on

federal regulation by earlier water pollution control stat-

utes.” See City of Milwaukee v. Illinois, 451 U.S. 304, 317-

318 (1981) (“The 1972 Amendments to the Federal Water

Pollution Control Act * * * were viewed by Congress as a

‘total restructuring’ and ‘complete rewriting’ of the exist-

ing water pollution legislation * * *. Congress’ intent * * *

was clearly to establish an all-encompassing program of

water pollution regulation.’’)

14

fort to halt the systematic destruction of the nation’s

wetlands.” ”

Finally, even if the meaning of the Clean Wa-

ter Act were ambiguous in this context (which it is

not), the decision below would still be correct because

“Tajn agency’s construction of a statute it is charged

with enforcing is entitled to deference if it is reason-

able and not in conflict with the expressed intent of

Congress” (United States v. Riverside Bayview

Homes, Inc., 474 U.S. at 131). The Corps’ con-

10 Significantly, in 1977, Congress amended Section 404 to

include two exemptions to the permitting process (Ciean

Water Act of 1977, Pub. L. No. 95-217, § 67(b), 91 Stat.

1600), but it took no action to nullify the Scenic Hudson

decision. Congress exempted, inter alia, “maintenance” of

currently serviceable structures such as dikes and dams (33

U.S.C. 1344(f) (1) (C)), but pointedly did not exempt new

construction of such structures. It also added the exemp-

tion for federal projects specifically authorized by Congress,

but only if such projects were subjected to an environ-

mental review which included the Section 404(b) (1) guide-

lines. 33 U.S.C. 1344(r). The legislative history of the

1977 amendment demonstrates the exceedingly narrow ex-

ceptions Congress intended to the scope of Section 404. See

Senate Comm. on the Environment and Public Works, 95th

Cong., 2d Sess., 3 A Legislative History of the Clean Water

Act of 1977, at 347-350, 416-417, 420, 470-475 (Comm. Print

1978).

11 For this reason, petitioners err in claiming (Pet. 19-

20) that the court of appeals’ decision is contrary to Train

v. Colorado Public Interest Research Group, 426 U.S. 1

(1976). At issue in Train was whether the EPA’s authority

under the Federal Water Pollution Control Act to control the

disposal of nuclear waste encompassed materials subject to

regulation by the Atomic Energy Commission under the

Atomic Energy Act (Pet. App. A15). This Court upheld the

federal agency’s (EPA’s) construction of the Act, which was

based upon a “rather explicit statement of [congressional]

15

struction of the scope of Section 404 is longstanding

(see note 6, supra) and reasonable “in light of the

language, policies, and legislative history of the

[Clean Water] Act” (474 U.S. at 131). In contrast,

petitioners’ proposed construction of the Act—which

would “read into the [Act] a double barreled exemp-

tion, enabling them to sidestep the anti-discharge

mandate of Section 301(a) and simultaneously escape

the permit requirement of Section 404(a)” (Pet.

App. A19)— is plainly unreasonable.

b. Petitioners make several attempts to overcome

the plain meaning of the Clean Water Act and the

deference due the Corps’ reasonable construction of

the Act. None is persuasive.

First, petitioners’ reliance on congressional intent

in enacting the Federal Power Act in 1920 is both

misdirected and erroneous. The dispositive inquiry

in this case is what Congress intended when it en-

acted the Clean Water Act in 1972, not what Con-

gress intended in enacting the Federal Power Act in

1920. In any event, as the court of appeals pointed

out (Pet. App. A8), the legislative history of the

Federal Power Act suggests that Congress intended

that the Commission’s authority would be “compre-

hensive” only in the sense of “a consolidation of ex-

tant responsibilities.” There was “certainly no pre-

emption of subsequently-enacted legislation” (ibid. ).

intent to exclude AEA-regulated materials from the FWPCA”

(426 U.S. at 22). Here, the responsible federal agency

(Corps) has concluded that Section 404 does apply and its

construction is similarly consistent with all expressions of

congressional intent in the Clean Water Act. There is no

comparable statement of congressional intent either on the

face of the Act or in its legislative history to exclude cate-

gorically Commission-licensed hydroelectric projects from

the strictures of Section 404.

16

Petitioners’ contrary claim rests on the proposition

that the application to Commission-licensees of the

requirements of any subsequently-enacted federal

law, administered by another federal agency, neces-

sarily constitutes a “repeal” of the Federal Power

Act. Under that theory, the Clean Water Act, and

presumably any other federal environmental, health,

safety, or welfare statutory requirements, would not

apply to Commission-licensed hydroelectric projects.

Like the court of appeals, we can not suppose that

Congress intended such an extreme result in 1920.

Nor is there any basis for it either in the Federal

Power Act itself or in those subsequent congressional

enactments, such as the Clean Water Act, in which

Congress has since sought to address pressing na-

tional problems.”

12 Neither the Department of Energy Organization Act,

Pub. L. No. 95-91, 91 Stat. 565, nor the Electric Consumers

Protection Act of 1986 (ECPA), Pub. L. No. 99-495, 100

Stat. 1243, upon which petitioners rely (Pet. 12-14), pro-

vides any meaningful support for petitioners’ claim. The

former created the Department of Energy, replaced the

FPC with FERC, and made FERC an adjunct of the Depart-

ment of Energy. Read in context, the reference in the Con-

ference Report (which accompanied that legislation) to

FERC’s “exclusive jurisdiction” (see H.R. Conf. Rep. 95-539,

95th Cong., Ist Sess. 75 (1977)), addresses only the finality

of FERC’s jurisdiction within the bureaucratic structure of

the new Energy Department and indicates that FERC, rather

than the new Secretary of Energy, will have sole (or “exclu-

sive”) responsibility for the functions transferred from the

FPC. The report does not purport to address the wholly dis-

tinct issue, raised in this case, whether Commission-licensed

projects are subject to environmental statutory requirements

administered by other federal agencies. ECPA is likewise

heside the point. ECPA simply increases FERC’s obligation

17

Second, petitioners misapprehend the nature of the

Corps of Engineers’ statutory responsibilities under

Section 404 by assuming (Pet. 17-18, 22, 25) that

they are merely duplicative of the Commission’s en-

vironmental review under the Federal Power Act.

The Commission is required to take into account en-

vironmental considerations in its licensing proceed-

ings, but, as Congress recently made clear in the

Electric Consumers Protection Act of 1986, Pub. L.

No. 99-495, 100 Stat. 1243 (see note 12, supra),

the Commission need only give them “equal consid-

eration” with other licensing issues. In contrast,

Congress has struck the balance quite differently in

the Clean Water Act. The Corps must follow guide-

lines prornulgated under Section 404(b)(1), which

impose substantially more stringent substantive lim-

itations upon the Corps’ exercise of its permitting

authority.”

to give “equal consideration” to environmental quality con-

cerns in licensing proceedings (see § 3, 100 Stat. 1243-1245).

Nowhere in ECPA or its legislative history did Congress in-

dicate that ECPA’s provisions were premised, as petitioners

suggest, on the notion that Commission-licensed projects are

categorically exempt from all other environmental statutory

requirements, such as those imposed by the Clean Water Act.

Significantly, moreover, in neither the Department of Energy

Organization Act or ECPA did Congress suggest an intent

to overrule the Second Circuit’s 1974 decision in Scenic Hud-

son, which held that Commission-licensed hydroelectric proj-

ects were covered by Section 404 (see page 10, supra).

8 In addition, under Section 404(c) the Administrator of

the EPA may prohibit outright the use of a specific disposal

site if he determines that the discharge of dredged or fill

material at that site will “have an unacceptable adverse effect

on municipal water supplies, shellfish beds and fishery areas

* * *, wildlife, or recreational areas” (see 33 U.S.C. 1844

(c)).

iil

18

The administrative proceedings in this case illus-

trate the difference. The Section 404(b)(1) guide-

lines in effect when petitioners’ permit application

was pending provided that discharges of dredged

material would be permitted “only when it can be

demonstrated that the site selected is the least envi-

ronmentally damaging alternative” (40 C.F.R. 230.5

(b) (8) (i) (1980)). In the absence of practicable

alternative sites, disposal was permitted only if it

would not have “an unacceptable adverse impact on

the aquatic resources” (ibid.). Even more stringent

restrictions applied to the discharge of fill material

in wetlands (40 C.F.R. 230.5(b) (8) (ii) (1980) ).**

No counterpart to the Section 404(b)(1) guide-

lines exists (or existed) under the Federal Power

Act. Hence, although the Commission recognized

that devastation to the wildlife and vegetation would

result from petitioners’ project (see C.A. App. 244),

it concluded that the loss could be offset by various

mitigation measures and by fulfilling a desire for

flat water recreation in the Canaan Valley (C.A.

App. 246-253, 261). Likewise, although the Com-

mission did not dispute that the Glade Run alterna-

tive was environmentally less damaging, the Com-

mission rejected that alternative on the ground that

it would be without comparable value for fish, wild-

life, or recreational uses (see C.A. App. 256). The

Commission’s licensing determinations accordingly

% The current guidelines are at least as stringent. See 40

C.F.R. Pt. 230. See, e.¢., 40 C.F.R. 230.10(a) (“[Nlo dis-

charge of dredged or fill material shall be permitted if there

is a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem, so

long as the alternative does not have other significant adverse

environmental consequences.”’).

19

cannot be regarded as the functional equivalent of

compliance with Section 404, as the different results

in the Commission’s and Corps’ licensing and per-

mitting proceedings in this case so conclusively dem-

onstrate.

In sum, the court of appeals correctly determined

that where, as here, two statutes are eminently capa-

ble of coexistence, it is the duty of the courts, absent

clearly expressed congressional intent to the contrary,

to preserve the effectiveness of each of these statutes.

See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1018 (1984); Kremer v. Chemical Construction

Corp., 456 U.S. 461, 468 (1982).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY HABIcut IT

Assistant Attorney General

ANNE §S. ALMY

JAMES C. KILBOURNE

Attorneys

JULY 1987

fw os SCOVERNMENT PRINTING Office, 1907 181483 40430