Petition for Writ of Certiorari — SD Warren Co. v. Maine Bd. of Environmental Protection
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()) Supreme Court, U.S.
/ | FILED
No. _—_Q415 27 MAY 12 2005
OFFICE OF THE Class
In The |
Supreme Court of the Anited States
+
S.D. WARREN COMPANY,
Petitioner,
V.
MAINE DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondent.
*
On Petition For A Writ Of Certiorari
To The Maine Supreme Judicial Court
¢
PETITION FOR A WRIT OF CERTIORARI
+
MATTHEW D. MANAHAN
(Counsel of Record)
NICHOLAS D. LIVESAY
PIERCE ATWOOD LLP
One Monument Square
Portland, Maine 04101
(207) 791-1100
Counsel for Petitioner
S.D. Warren Company
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
IO lcs NR
QUESTIONS PRESENTED FOR REVIEW
Does the mere flow of water through an existing dam
constitute a “discharge” under Section 401, 33 U.S.C.
§ 1341, of the Clean Water Act, despite this Court’s
holding last year in Miccosukee that a discharge re-
quires the addition of water from a distinct body of
water?
Does the State of Maine’s expansive application of
Section 401 conflict with the Federal Energy Regula-
tory Commission’s comprehensive licensing authority
over hydroelectric generating projects under the Fed-
eral Power Act, 16 U.S.C. §§ 791a et seq.?
ii
CORPORATE DISCLOSURE STATEMENT
AND PARTIES BELOW
The parties to the appeal before the Maine Supreme
Judicial Court (“SJC”) were Petitioner S.D. Warren Com-
pany (“Warren”), Respondent Maine Department of Envi-
ronmental Protection (“DFP”), and Intervenors American
Rivers and Friends of the Presumpscot River.
Warren is a direct wholly-owned subsidiary of SDW
Holdings Corporation (a Delaware corporation), which is a
wholly-owned subsidiary of Sappi Papier Holding GmbH
(Austria), which is a wholly-owned subsidiary of Sappi
Holding GmbH (Austria), which is a wholly-owned sub-
sidiary of Sappi Limited. Therefore, S.D. Warren Company
is an indirect wholly-owed subsidiary of Sappi Limited.
Sappi Limited is a South African corporation that is
publicly traded on the Johannesberg, New York, Frank-
furt, and London stock exchanges, and has no publicly
traded subsidiaries.
Ot al a ne IOS Lee
ne ter
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW.................
CORPORATE DISCLOSURE STATEMENT AND
I. The operative facts are undisputed: Warren
owns and operates existing run-of-river hydro-
power projects and applied for water quality
certification, under protest, for the relicensing
by FERC of those projects .................ccccccccceeeees
Il. Agency Action: The Maine DEP requires
Warren to obtain water quality certification
and assumes a primary role in the relicensing
and ongoing regulation of the Projects..............
I. The Maine SJC’s decision in Warren conflicts
with this Court’s decision in Miccosukee...........
A. This Court’s Statements on What Consti-
tutes an “Addition” - The Mixing of Water
10
Il.
Il.
iv
TABLE OF CONTENTS - Continued
Page
B. The reasoning in Miccosukee applies to
ND Gi cccccqnnnsseneesesmsnesscmnmnenusssene 10
C. The Maine SJC in Warren applied the
wrong legal test and, as a result, reached
the wrong conclusion ..................:ccccccceeeeeees 11
What constitutes an “addition” under the CWA
is an important question of federal law war-
ranting clarification by this Court; without
regulatory agencies will persist.......................+. 13
A. An Overview of Pre-Miccosukee Case Law.. 13
B. The Post-Miccosukee Confusion ................. 16
The State of Maine’s expansive application of
Section 401 conflicts with FERC’s comprehen-
sive licensing authority over hydroelectric gen-
erating projects under the FPA.......................+. 17
A. The SJC impermissibly broadened the
scope of Section 401 .............sssssssscsssssssceeeees 18
1. Section 401 applies only if there may
be a discharge of a pollutant................. 19
2. Continued operation of the Projects
will not “result in” a discharge.............. 21
3. Section 401 does not authorize states
to include reopeners ...................::seeeeeees 21
B. The Warren court’s expansive interpreta-
tion of the scope of CWA Section 401 and
the powers it grants to the states is incon-
sistent with the FPA..................ssscscseeeseeees 23
Pen ee cn eae. a ted
v
TABLE OF CONTENTS - Continued
1. The FPA’s Grant of Power to FERC...... 23
2. The Interplay of the CWA andthe FPA. 25
CONCLUSION ..cccccccccssvcscsececoeoesosssssesesesseseseeeec-....... 27
vi
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Alabama Rivers Alliance v. FERC, 325 F.3d 290
SE, GEIR: SEITE instennecnsnenemecctsamantiinismmmmninesnemnins 15, 16
American Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir.
TTI rssntessssnincenceasinianiastinstetahieies lei pianasininaiainaegraninaabenienniets 9, 25
California v. FERC, 495 U.S. 490 (1990)...........ccccccceeeeeees 25
Catskill Mountains Chapter of Trout Unlimited,
Inc. v. City of New York, 273 F.3d 481 (2nd Cir.
I cscnnnnceiertenatnianseigiabeniagbttinmansigiitesaenmeilnmenennents 10, 14
Dubois v. Department of Agriculture, 102 F.3d 1273
Ne I ee 14
First Iowa Hydro-Electric Cooperative v. FPC, 328
SE, SEITE occeetensegesenseennmnneteemengemmmapineieets 24, 25
National Wildlife Fed’n v. Consumers Power Co.,
862 F.2d 580 (6th Cir. 1988) ................ccecceeeeeeeeeeeeeeeeeeees 14
National Wildlife Fed’n v. Gorsuch, 693 F.2d 156
I, GIR: Bit cansccsncsetncssnnenemnmienemnmmnnntenmesnanases 13, 14
North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir.
TIT UI coccnscsnuneseuninnmimmnnssinneammpuppentimnatintl 5, 11, 15, 20, 21
PUD #1 of Jefferson County v. Washington Dep't of
Ecology, 511 U.S. 700 (1994) .........cccccccesceeeeeeeeereeeeeeenees 20
South Florida Water Mgmt. Dist. v. Miccosukee
Tribe, 541 U.S. 95 (2004) ..........:ccccscceceeeeeeeeeseeeeeneees passim
STATE CASES
Bangor Hydro-Electric Co. v. Board of Environ-
mental Protection, 595 A.2d 438 (Me. 1991) ................. 26
de Rham v. Diamond, 295 N.E.2d 763 (N.Y. 1973)........... 26
ee
Vii
TABLE OF AUTHORITIES -— Continued
Page
Niagara Mohawk Power Corp. v. New York State
Dept. of Envtl. Conservation, 624 N.E.2d 146
SUE a Meresnscintinvcceesnbinitencncmicsiciiinmmunatiatieiiaiaiatiinel 18, 26
Power Auth. of New York v. Williams, 457 N.E.2d
Sees SITE crescsnenctsnensiecnentsccinntacsedsiiainitasiitmasilasiotas 26
S.D. Warren Co. v. Board of Environmental Protec-
SEs EINE ccincentrepnaniccsbicinsintniidiemsniincmniesiil passim
S.D. Warren Co. v. Maine Department of Environ-
mental Protection, No. AP-03-70 (Me. Super. Ct.,
I, Gh, I GB ccsersccststinncttccnctntevntcnsensiineciissiaann 1
AGENCY DECISIONS
City of Augusta, Georgia, 109 F.E.R.C. 4 61,210
(2004)........... plnasesadneutindindsenbenienieniamnenestiainiiien padbensousnsenens 16
FPL Energy Maine Hydro LLC, 111 FE.R.C.
TUTE irchinnichiieinitiiihceinsiiaiteinaeiinisuastiieiasiaiatdaaiiduaipaaiis 16
Great Northern Paper, Inc., 77 F.E.R.C. 4 61,066
Suaaae viceenscissinnnsnnctenintaicscnnungeintenitiiamenmataiiietnniiiinidenaseinsiii’s 22
FEDERAL STATUTES
Py ee I i ncciccrsihtnseiieetteiapiaritenineeaniainessil 2,9
CN eT OE TTT 23
a nt air a iicrnicretinsiinicitnisnbtebdiencininaeaiieiatiaaianaininitiiiaaiidll 2, 26
NT a NT 24
ey GE iitrrsicnncinenenitnaiicniatiete inten actieiaaieiniaii 25
STUY CITI Aihceecesctioniticehoniinielelideiniainiaieinaiaasiai 2, 23, 24
Se PMN cihiesinisniniiniaiinitiitiiiliiii innate ie aa 1
TABLE OF AUTHORITIES -— Continued
Page
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SG © BI secrcccsensntecetetnensictensnssensenernemenmmncsen 19
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GET, 6 BIR oceveccoccccccescnccsescscnsencanscccesstinencssnttennennens 19
BB UTGEG. © BEIGE en cccccceccccscscscccsscccsscssccsvesccsssscsenseeeees 20
BD UID, 8 BIIRIOD ccccrcccncscscccvsssccctncsccossccserscegnesnseneseeses 20
SD UBB. © BIG cccecccccccccccvcccnscescsccssesccosccccosesesesnatooesoeseces 2,5
BS U.S.C. § 1B41ANT) ...cccccccesccccesccccsscccccscvccsscocsesees 6, 11, 20
BSB U.B.C. § 1BEMANG) ...cccccccsccccccvcccccccccccccccccsocsessssessssosoess 22
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1 TIA, 6 I vscccccccresccepecnsccenesenesccensesctecsesesnssenmnmees 22
33 U.S.C. § 1342......... scbncienstanesitensiiiedinuemabiaiiainntniadmeniiti 2,7
BB UDG. © BBGBIRIED nncccocccsccccccsescsessccsssssseserscscssesescoosens 10
BD RI, 6 Be csccereccecsececenensessnccenssnssasessesennsessestocense 5
BB U.B.C. § 1BGBCUZ)....cccccccccccccecsvcccccvcccescosscssccecssoosessees 5, 11
SB UBL.G. § UBBBI RA) .cccccccecccresccsccccccscccceccccescosescscesesesecossess 20
BB UB.C. © RBBB IG) .cccccccccccesccccccccscsccccsccccsccccsessoe008 4, 11, 20
STATE STATUTES ©
ME. REV. STAT. ANN. tit. 5, § 1L001(1)............cccecceeeeeeeeeeeeeee 1
ME. REV. STAT. ANN. tit. 5, § 11008(1).............:cceececeeeeeeeeeees 1
MISCELLANEOUS
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1
PETITION FOR WRIT OF CERTIORARI
S.D. Warren Company petitions for a writ of certiorari
to review the decision of the SJC upholding the DEP’s
decision to require Warren to obtain state water quality
certification for the relicensing by the Federal Energy
Regulatory Commission (“FERC”) of five hydroelectric
dam projects, and allowing the DEP to subvert FERC’s
licensing authority.
¢
OPINIONS BELOW
The two DEP orders are unreported but are reprinted
in the Appendix (“App.”), the DEP Commissioner’s initial
certification order (the “Certification”) at App. A-74 and
the Board of Environmental Protection’s (“BEP’s”) order on
appeal of the Certification at App. A-35. The Maine Supe-
rior Court’s opinion, S.D. Warren Co. v. Maine Department
of Environmental Protection, No. AP-03-70 (Me. Super. Ct.,
Cum. Cty., May 4, 2004), is unreported but is reprinted in
the Appendix at A-19. The SJC’s opinion upholding the
Superior Court’s order, entered February 15, 2005, is
reported at S.D. Warren Co. v. Board of Environmental
Protection, 2005 ME 27, and is reprinted in the Appendix
at App. A-1.
¢
JURISDICTION
The SJC exercised jurisdiction over Warren’s appeal
pursuant to ME. Rev. Stat. ANN. tit. 5, §§ 11001(1) and
11008(1). The order of the SJC was entered on February
15, 2005. This Court’s jurisdiction rests upon 28 U.S.C.
§ 1257(a).
2
STATUTORY PROVISIONS
At issue in this case is the Federal Water Pollution
Control Act, 33 U.S.C. §§ 1251 et seg. (the “Clean Water
Act” or “CWA”), in particular Section 401, 33 U.S.C.
§ 1341, and the Federal Power Act (“FPA”), 16 U.S.C.
§§ 79la et seq. The Appendix contains the pertinent text
from 33 U.S.C. §§ 1341, 1342, and 1362 and 16 U.S.C.
§§ 797, 799, 803, and 821.
¢
STATEMENT OF THE CASE
I. The operative facts are undisputed: Warren
owns and operates existing run-of-river hydro-
power projects and applied for water quality
certification, under protest, for the relicensing
by FERC of those projects.
Warren owns and operates five hydroelectric generat-
ing dam projects (the “Projects”) located on the Presump-
scot River in Maine. Warren, 2005 ME, {7 2, App. at A-2,
Warren, AP-03-70 at 1, App. at A-19. All five of the Projects
were constructed in the early 1900s. Warren, 2005 ME,
¢ 3, App. at A-2. The Projects provide electricity to War-
ren’s Westbrook paper mill. Warren, 2005 ME, { 1, App. at
A-1.
The Projects are operated in run-of-river mode,
meaning that outflow from each dam is equal to inflow
during normal operating conditions. App. at A-120. The
Projects do not remove water from the river, and they do
not introduce any substance, pollutant or otherwise, into
the water. See App. at A-87 to A-88, A-106 to A-110, A-120
to A-121.
3
FERC licenses for the Projects expired on January 26,
2001. As part of the FERC relicensing process, on January
14, 1999, Warren submitted applications to the DEP for
CWA Section 401 certifications. Warren, 2005 ME, 4 3,
App. at A-2. In submitting these applications — which the
DEP instructed Warren to file — Warren stated that water
quality certification was not in fact needec, and expressly
reserved its rights to make this argument. SJC Appendix
(“SJC App.”) tab 11 at 133.
II. Agency Action: The Maine DEP requires
Warren to obtain water quality certification
and assumes a primary role in the relicensing
and ongoing regulation of the Projects.
In April 2003, the DEP Commissioner issued the
Certification, holding that, pursuant to Section 401 of the
CWA, water quality certification is required for the FERC
relicensing of the Projects. The Certification contains a
host of conditions relating to water levels and flows,
impoundment drawdowns and refill procedures, eel and
fish passage, reaeration measures, and recreational
facilities. Perhaps most significantly, the Certification also
includes “reopeners,” i.e., conditions that allow the DEP to
reopen the Certification by imposing additional or differ-
ent requirements in the future. App. at A-123, A-125 to A-
128, A-134 to A-137, A-139. .
Warren appealed the Certification to the BEP. Warren,
2005 ME, { 3, App. at A-2. The BEP affirmed after de novo
review. App. at A-37 to A-38, A-73.
Ill. Judicial Review
Warren timely filed a petition for review in the Maine
Superior Court. Warren argued, inter alia, that water
flowing through a dam — where nothing is added to the
water either by the dam or from outside the water body —
does not constitute a_“discharge into” the water that
—triggers Section 401 certification requirements. Warren
also argued that even if water passing through a dam
qualified as a discharge, only the discharge of a “pollutant”
requires certification. Further, Warren argued that even if
water without a pollutant qualified as a discharge, reli-
censing the Projects would not “result in” a discharge
because the relicensing of the existing Projects would
simply allow the preexisting discharge (assuming a dis-
charge existed) to continue. Finally, Warren challenged the
“reopener” provisions of the Certification.
The Superior Court denied Warren’s appeal. Warren
appealed to the SJC, which issued its decision denying
Warren’s appeal on February 15, 2005.
The SJC, addressing the issue of whether water
flowing through a dam constitutes a “discharge” under
Section 401 of the CWA, created an entirely new legal test
and concluded that, based on that test, all water passing
through a dam qualifies as a discharge. Warren, 2005 ME,
{4 12-13, App. at A-7 to A-8.
The SJC properly began its analysis by looking to the
statutory language. The SJC stated:
The term discharge is not expressly defined any-
where in the CWA, however, section 502(16), 33
U.S.C.A. § 1362(16) (West 2001), provides that,
“(t]he term ‘discharge when used without qualifi-
cation includes a discharge of a pollutant, and a
5
discharge of pollutants.” This statement of inclu-
sion provides “the nearest evidence we have of
definitional intent by Congress.”
Id. { 10, App. at A-6 (citing North Carolina v. FERC, 112
F.3d 1175, 1187 (D.C. Cir. 1997)). The definition of the
phrases “discharge of a pollutant” and “discharge of
pollutants” both mean:
(A) any addition of any pollutant to navigable
waters from any point source,
(B) any addition of any pollutant to the waters
of the contiguous zone or the ocean from any
point source other than a vessel or other
floating craft.
33 U.S.C. § 1362(12) (emphasis added). The SJC thus
reasoned that “[a]n ‘addition’ is the fundamental character-
istic of any discharge.” Warren, 2005 ME, { 11, App. at A-6.
In assessing whether water flowing through a dam
constitutes an “addition” the SJC then created a new legal
test, focusing on whether the water is subject to “private
control.” Id. {{ 12-13, App. at A-7 to A-8. The SJC rea-
soned that the moment water passes through a dam it is
subject to “private control” and thus temporarily loses its
status as waters of the United States.’ As a result of this
temporary change in status, the SJC reasoned that when
water “exiting” a dam “reconnects” with water that mo-
ments before followed the same path, but now once again ~
is classified as “waters of the United States,” this “reintro-
duction” of different water (i.e., non-waters of the United
* Section 401 of the CWA, 33 U.S.C. § 1341, applies to discharges
into navigable waters. Navigable waters are defined as the “waters of
the United States” at Section 502(7), 33 U.S.C. § 1362(7).
6
States) constitutes an “addition.” Such an “addition” of
clean water, the SJC concluded, is a “discharge” requiring
water quality certification pursuant to Section 401. Id.
The SJC also rejected Warren’s argument that Section
401 requires state certification only for discharges of
“pollutants.” Id. {J 14-16, App. at A-8 to A-10. The SJC
reasoned that the word “discharge” has been interpreted
broadly. Id. { 14, App. at A-8. Such an interpretation, said
the SJC, encompasses the discharge of anything — even
clean water — not just pollutants.
The SJC did not address Warren’s argument that the
statutory language of Section 401 establishes that certifi-
cation is required only for any discharge that may “result
in” a discharge into navigable waters, but that relicensing
the Projects merely authorized the continued presence of a
discharge, assuming one exists. See 33 U.S.C. § 1341(a)(1).
Finally, the SJC considered and rejected Warren's
argument that the DEP exceeded its authority by includ-
ing reopener conditions in the Certification. After ac-
knowledging that forcing FERC either to accept these
conditions or to deny the license altogether could produce
“harsh results,” the SJC nonetheless concluded that
nothing in federal law prohibits reopeners. Warren, 2005
ME, { 26, App. at A-14 to A-15.
S
REASONS FOR GRANTING THE WRIT
Dams such as those at issue here should not be
subject to the certification requirements of the CWA
because they add nothing to the water. The contrary
holding by the Maine SJC conflicts with established
7
precedent of this Court and with the approach of many
other courts, defies common sense, is an unsupportable
interpretation of the statute, and further confuses the law
in an area that urgently needs clarification by this Court.
Further, the SJC’s interpretation usurps FERC’s exclusive
regulatory authority over hydropower projects like those
in this case, thus undermining federal control over this
vitally important national energy sector. Warren respect-
fully petitions this Court to correct the SJC and add
clarity to this important area of law. Specifically, the Court
should grant the writ for three reasons.
1. The Maine SJC’s decision in Warren conflicts
with this Court’s decision in Miccosukee. First,
the issue of what constitutes an “addition” and thus a
“discharge” under the CWA is an important question
of federal law, which the SJC answered in a way that
directly conflicts with this Court’s decision in South
Florida Water Mgmt. Dist. v. Miccosukee Tribe, 541
U.S. 95 (2004). See S. Ct. Rule 10(c). The importance
of this question is difficult to overstate because the in-
terpretation of the word “discharge” determines the
scope of the CWA - the primary federal statute de-
signed to regulate activities that may impact water
quality throughout the United States. Not only does
the Section 401 certification requirement hinge on
whether there is a “discharge,” but so too does the
need for a Section 402 permit issued as part of the
CWA’s National Pollutant Discharge Elimination Sys-
tem (“NPDES”).’ It was in this latter context that this
Court, in Miccosukee, addressed the question of what
constitutes an “addition.” As discussed below, the
* Section 402, 33 U.S.C. § 1342, establishes the NPDES program
and authorizes the U.S. Environmental Protection Agency to require a
permit for the “discharge” of any pollutant into navigable waters.
8
SJC’s interpretation in Warren of the words “addition”
and “discharge,” and its application of those words to
Section 401, directly contradicts this Court’s decision
in Miccosukee.
What constitutes an “addition” under the CWA
is an important question of federal law war-
ranting clarification by this Court; without
clarification confusion among the courts and
regulatory agencies will persist. Second, a grant
of certiorari will give the Court the opportunity to set-
tle the confusion among the circuit and state courts,
and federal and state agencies, about what consti-
tutes an “addition” triggering Section 401 certification
requirements. How to interpret the Clean Water Act
is an important federal question worthy of this
Court’s attention even if the direct conflict noted in
the preceding paragraph did not exist. See S. Ct. Rule
10(c). Prior to Miccosukee, several of the U.S. Circuit
Courts of Appeals had addressed the issue of when
the mixing of water is considered an “addition” under
the CWA. As discussed below, the decisions reached
by the different circuits were inconsistent. While Mic-
cosukee should have settled this issue, the Maine
SJC’s decision in Warren illustrates that some courts
do not believe Miccosukee’s reasoning applies in the
context of Section 401. This Court should eliminate
this misunderstanding by clarifying that the test in
Miccosukee for determining whether an “addition” oc-
curs applies to both sections 402 and 401.
The State of Maine’s expansive application of
Section 401 conflicts with FERC’s comprehen-
sive licensing authority over hydroelectric gen-
erating projects under the FPA. Third, this case
demands the Court’s intervention because the SJC’s
opinion in Warren conflicts with the comprehensive
jurisdiction of FERC in hydropower licensing proceed-
ings. The State of Maine is using its CWA certification
9
authority effectively to displace FERC’s authority un-
der the Federal Power Act, 16 U.S.C. §§ 791a et seq.
(“FPA”). Pursuant to American Rivers, Inc. v. FERC,
129 F.3d 99 (2d Cir. 1997), FERC has no authority to
reject conditions imposed by states in their certifica-
tions; such conditions may only be rejected by state
courts in an appeal of the certifications through the
state’s appeal process. Because the Maine courts are
complicit in the State’s efforts to use its Section 401
authority to displace FERC’s FPA authority, only this
Court can correct the State of Maine’s power grab.
S. Ct. Rule 10(c). The SJC’s expansive interpretation
of a state’s authority under Section 401 is directly at
odds with the primary authority Congress, in the
FPA, granted to FERC to license hydropower projects.
Warren therefore asks this Court to clarify the rela-
tionship between FERC’s role and the states’ role in
the licensing of hydropower projects. See id.
I. The Maine SJC’s decision in Warren conflicts
with this Court’s decision in Miccosukee.
The SJC’s reasoning that a dam exercises private
control over water, that the water passing through a dam
thus temporarily loses its status as “waters of the United
Stat. >,” and that reintroduction of this water (now alleg-
edly non-waters of the United States) constitutes an
“addition,” is directly contrary to this Court’s decision in
Miccosukee. The appropriate test, as articulated in Micco-
sukee, is based not on private control but on whether the
waters being mixed are from “meaningfully distinct water
bodies.” See Miccosukee, 541 U.S. at 112.
10
A. This Court’s Statements on What Consti-
tutes an “Addition” - The Mixing of Water
From Meaningfully Distinct Water Bodies.
Last year in Miccosukee, this Court addressed the
question of what constitutes an “addition” (and thus a
“discharge”) under CWA Section 402. In Miccosukee, as
part of the Central and South Florida Flood Control
Project, water was pumped from a canal to a wetland area
sixty feet away. To determine whether this pumping of
water into the wetland was an “addition” this Court stated
that the dispositive question was whether the canal and
wetland are “meaningfully distinct water bodies.” Jd. If
they are, the pumping is an “addition.” If they are not, the
pumping of the water from one location to another did not
“add” anything to the navigable water: “If one takes a
ladle of soup from a pot, lifts it above the pot, and pours it
back into the pot, one has not ‘added’ soup or anything else
to the pot.” Jd. at 110 (quoting Catskill Mountains, 273
F.3d at 492).
Thus, for there to be an “addition” to the waters of the
United States, something must be added into the water
from outside the water. Taking water out of the water body
and then redepositing that same water back into the water
body is not an “addition.”
B. The reasoning in Miccosukee applies to
CWA Section 401.
CWA Section 402 authorizes the U.S. Environmental
Protection Agency (“EPA”) or a delegated state to “issue a
permit for the discharge of any pollutant.” 33 U.S.C.
§ 1342(a)(1). CWA Section 401 requires state water quality
certification for a federally-licensed activity that may
11
result in a “discharge.” Id. § 1341(a)(1). The word “dis-
charge,” as used in both sections 401 and 402, includes the
“discharge of a pollutant.” Jd. § 1362(16). As a result, the
word “discharge,” used in Section 401, must be read
consistently with the term “discharge of a pollutant,” used
in Section 402. North Carolina, 112 F.3d at 1187.
The CWA defines “discharge of a pollutant” to mean
“any addition of any pollutant to navigable waters from
any point source.” 33 U.S.C. § 1362(12) (emphasis added).
Thus, the meaning of “addition” is fundamental to inter-
preting both sections 401 and 402. See North Carolina, 112
F.3d at 1187 (interpreting Section 401 and stating, “the
nearest evidence we have of definitional intent by Con-
gress reflects, as might be expected, that the word ‘dis-
charge’ contemplates the addition ... of a substance or
substances”). Because the same key definitional phrase is
being interpreted, both Section 401 and Section 402 case
law are directly relevant to the issue of what qualifies as
an “addition.”
C. The Maine SJC in Warren applied the
wrong legal test and, as a result, reached
the wrong conclusion.
Although the SJC in Warren acknowledged that
Section 401 applies only when there has been an “addi-
tion” to navigable waters, the SJC improperly focused its
analysis on whether water flowing through a dam is
“privately controlled,” making the asserted change in
“control” the dispositive issue. Jd. {{ 12-13, App. at A-7 to
A-8. This Court in Miccosukee, however, established that
control of the water is not dispositive in determining
whether there has been an addition.
12
As noted above, the question in Miccosukee was
whether water pumped from a canal into a nearby wetland
constituted an “addition.” Although pumping water is an
example of private control, this Court stated that the
dispositive issue was whether the canal and wetland are
“meaningfully distinct water bodies,” not whether someone
or something has exercised private control over the water.
Miccosukee, 541 U.S. at 112. If water from distinct water
bodies is combined, the introduction of this foreign water
into the receiving water is an addition of something new
from the outside world. If the water being mixed is not
from two distinct water bodies, an addition does not occur.
Applying this reasoning from Miccosukee, the water
flowing through Warren’s Projects does not constitute an
addition. First, it is undisputed that the water above,
below, and momentarily within each dam is all part of the
same body of water — the Presumpscot River. Second, it is
undisputed that the dams do not introduce any pollutant,
such as oil, grease, or heat, into the water. Just as lifting a
ladle of soup from a pot and pouring the ladle’s contents
back into the pot does not constitute an addition, water
flowing through Warren’s dams similarly adds nothing
new to the Presumpscot River. See id. at 110. Absent such
an addition, the CWA does not require Section 401 certifi-
cation.
The test the SJC applied in Warren was the wrong
test and, for that reason, led to the opposite conclusion.
The Warren court’s decision directly conflicts with Micco-
sukee, and should be reversed.
13
Ii. What constitutes an “addition” under the
CWA is an important question of federal law
warranting clarification by this Court; with-
out clarification confusion among the courts
and regulatory agencies will persist.
Prior to Miccosukee, the U.S. Circuit Courts of Ap-
peals that addressed the issue of whether the mixing of
water constitutes an “addition” under the CWA reached
different conclusions. While Miccosukee addressed this
issue and resolved the previous conflicts, the Maine SJC’s
decision in Warren illustrates that uncertainty about how
to apply Section 401, and specifically how to identify what
qualifies as an “addition,” persists. It appears that the SJC
erroneously ignored Miccosukee because that case was
based on Section 402.
This Court can clarify this important issue of federal
law by expressly establishing that the test for determining
whether the mixing of water constitutes an addition — in
the context of both sections 401 and 402 — depends on
whether the receiving water and the water being intro-
duced are part of distinct water bodies.
The following summary and comparison of pre-
Miccosukee decisions and post-Miccosukee decisions,
including the SJC’s decision in Warren, reveals that,
absent clarification by this Court, the courts and regula-
tory agencies will continue to misinterpret the applicabil-
ity of Section 401.
A. An Overview of Pre-Miccosukee Case Law
Two of the earlier circuit court cases that addressed
the question of what constitutes an addition under the
CWA are National Wildlife Federation v. Gorsuch, 693 F.2d
14
156 (D.C. Cir. 1982), and National Wildlife Federation v.
Consumers Power Co., 862 F.2d 580 (6th Cir. 1988). At
issue in Gorsuch was whether water flowing from a
reservoir, through a dam, and into a river constituted an
addition. Gorsuch, 693 F.2d at 165. In Consumers Power
the issue was whether water withdrawn from Lake Michi-
gan and later returned to the lake after passing through
hydroelectric turbines was an addition. The “returned”
water contained both live fish and fish parts as a result of
fish that were entrained during withdrawal being chopped
up by the turbines when the water flowed back into the
lake. Consumers Power, 862 F.2d at 581-82.
In both cases the courts upheld EPA’s position that for
there to be an “addition” something must be introduced
into navigable water from the “outside world.” Consumers
Power, 862 F.2d at 584; Gorsuch. 693 F.2d at 165. Applying
this test, both the D.C. Circuit and the Sixth Circuit
concluded that the water flowing through the dam and
turbines, respectively, did not constitute an addition.
Consumers Power, 862 F.2d at 584-86; Gorsuch, 693 F.2d
at 174-75.
Since Gorsuch and Consumers Power, other courts
similarly have focused on whether the water being intro-
duced is from the outside world when assessing whether
an addition has occurred. Dubois v. Department of Agricul-
ture, 102 F.3d 1273, 1298-99 (1st Cir. 1996) (finding that a
river and pond were distinct water bodies and that the
pumping of water from the lower elevation river to the
higher elevation pond thus was an addition); Catskill
Mountains, 273 F.3d at 492 (finding that the diversion of
water from its natural course, through a tunnel, and into a
different creek was an addition, the court stated that no
one could reasonably argue that the water being diverted
15
and the receiving water “are in any sense the ‘same,’ such
that ‘addition’ of one to the other is a logical impossibil-
ity”).
In the most recent circuit court decision before Micco-
sukee, however, the D.C. Circuit Court of Appeals strayed
from the traditional “outside world” test and focused
instead on the rate at which water flows through a dam.
Initially, in North Carolina v. FERC, 112 F.3d 1175, 1187-
88 (D.C. Cir. 1997), the court found that a decrease in the
amount of water flowing through a dam was not an addi-
tion necessitating state certification. While the North
Carolina court discussed the rate of flow of water passing
through a dam, the D.C. Circuit’s decision in that case was
consistent with its earlier reasoning in Gorsuch, and the
reasoning of other Circuit Courts: because nothing was
introduced from the outside world, there was no “addition”
and hence no “discharge.”
In 2003, however, the D.C. Circuit abandoned the
outside world test. In Alabama Rivers Alliance v. FERC,
325 F.3d 290, 297-99 (D.C. Cir. 2003), the court found that
an increase in the flow of water through a dam is an
“addition” that may result in a discharge under Section
401. While the court stated that its holding was consistent
with North Carolina, the Alabama Rivers decision effec-
tively marked the end of the outside world test, at least in
the D.C. Circuit. Id. at 298. Although the proposed addi-
tion of new turbines to an existing project would not result
in the introduction of anything new into the river from the
outside world, the court found that a mere increase in flow
constituted an addition.
16
B. The Post-Miccosukee Confusion
Although Miccosukee should have put this issue to
rest by effectively overruling the “increased flow” test used
in Alabama Rivers, in fact the post-Miccosukee cases
demonstrate increased confusion. The two pre-Miccosukee
tests, as discussed above, were (1) the outside world test,
and (2) the increased flow test. In the wake of Miccosukee
two additional tests have been added: (1) Warren’s private
control test, and (2) a new ‘est, enunciated by FERC, that
considers whether there has been an “alteration” of the
water. FPL Energy Maine Hydro LLC, 111 FE.RC.
q¥ 61,104, 421 (2005); City of Augusta, Georgia, 109
F.E.R.C. 9 61,210, J 12 (2004).
Under FERC’s new test, even without an increase in
the rate of flow or an addition of something from outside
the water state certification may be required. Although it
applied its own reasoning, FERC joined the SJC in disre-
garding this Court’s Miccosukee decision.’ Under FERC’s
reasoning, all dams result in a “discharge” requiring
certification because all dams “alter” the water in some
way from its natural state. FPL Energy Maine Hydro LLC,
111 FE.R.C. 4 61,104, J 21 (2005) (“dams and the reser-
voirs they impound can result in a discharge of water that
is warmer or colder, more or less turbid, or containing
greater or lesser amounts of dissolved oxygen or sedi-
ments”). :
* In City of Augusta, Georgia, 109 F.E.R.C. 4 62,210, J 11, FERC
state. that it did not believe the reasoning in Miccosukee was relevant
in the context of Section 401. In FPL Energy Maine Hydro LLC, 111
F.E.R.C. 7 61,104, FERC ignored Miccosukee altogether and did not
discuss the case.
17
Thus, there are now four distinct interpretations of
what constitutes an “addition” under the CWA from a dam
that does not introduce any pollutant into the water:
1. This Court, as well as the First, Second, and Sixth
Circuits, ask whether something has been added to the
water from a different body of water, i.e., from the out-
side world.
2. The D.C. Circuit asks whether the rate of flow has
been increased.
3. The Maine SJC asks whether a dam exercises “private
control” over water.
4. FERC asks whether the water has been “altered” from
its natural state.
As discussed above in Section I, the test articulated by
this Court in Miccosukee — whether the water being mixed
is from meaningfully distinct water bodies — applies both
in the context of CWA sections 401 and 402. The First,
Second, and Sixth circuits’ outside world test is consistent
with Miccosukee, but the other three tests conflict with
this Court’s reasoning in that case. By clarifying that
Miccosukee controls in the case at bar, this Court can
prevent further confusion about the applicability of Sec-
tion 401 as it applies to water flowing through dams.
III. The State of Maine’s expansive application of
Section 401 conflicts with FERC’s compre-
hensive licensing authority over hydroelec-
tric generating projects under the FPA.
The SJC in Warren interpreted the applicability of
and powers granted to the states under Section 401 of the
CWA in a way that conflicts not only with the CWA, but
18
also with the primary authority granted to FERC to
regulate hydropower projects. The SJC’s broad interpreta-
tion of Section 401 effectively allows the State of Maine to
displace FERC as the exclusive authority that licenses
hydropower projects. See, e.g., Niagara Mohawk Power
Corp. v. New York State Dept. of Envtl. Conservation, 624
N.E.2d 146, 148 (N.Y. 1993) (the FPA establishes a com-
prehensive scheme for regulation of hydropower projects,
and a state’s role under Section 401 is limited to reviewing
whether the project meets water quality standards).
The SJC’s decision exceeded the scope of the CWA,
and hence subverted the FPA, in four ways, as discussed
below. Taken together, these four conclusions effectively
allow the State of Maine to displace FERC as the primary
regulator of hydroelectric facilities in Maine, contrary to
the FPA’s clear assignment to FERC of that responsibility.
A. The SJC impermissibly broadened the
scope of Section 401.
The SJC concluded that the relicensing of a project
that authorizes the continued flow of clean water through
a dam requires state certification, and the SJC also
allowed the inclusion of “reopener” provisions in a certifi-
cation. As a result, the Warren decision effectively opens
the door for state control of FERC relicensing proceedings
and allows for perpetual state involvement even after a
license is issued.
As discussed below, in addition to the impermissible
broadening of Section 401 to apply the word “discharge”
beyund the addition of something from outside the water
body, the SJC also wrongly held that (1) Section 401
requires certification even in the absence of a discharge of
eens.
19
a “pollutant,” (2) the continued operation of the Projects
will “result in” a discharge even though the discharge (if
there were one) already exists, and (3) Section 401(d)
authorizes “reopeners” that give the state ongoing regula-
tory control.
1. Section 401 applies only if there may
be a discharge of a pollutant.
The word “discharge” in Section 401 refers only to the
discharge of a pollutant, and no such discharge occurs
here.* The SJC incorrectly concluded that all water flowing
through a dam, no matter how clean, constitutes a dis-
charge.
Beginning with the title of the CWA — the “Federal
Water Pollution Control Act” — it is clear from the outset
that pollution is the raison d’etre for the statute. A review
of the major substantive provisions of the CWA further
demonstrates that the CWA focuses on eliminating or
controlling the discharge of pollutants, not on discharges
in the abstract.”
Section 401 is consistent with the rest of the CWA and
focuses on controlling pollutants. That section states that
certification is required when a project “may result in any
* The DEP conceded that the operation of these Projects does not
result in the discharge of any pollutants. SJC App. tab 25 at 218-228.
* See, e.g., 33 U.S.C. § 1251(a) (stating the “national goal” that the
discharge of pollutants be eliminated and containing numerous
references to the goal of controlling and eliminating pollution); id. at
§ 1252(a) (requiring the EPA to prepare comprehensive programs for
preventing, reducing, or eliminating the pollution of navigable waters);
id. §1311(a) (prohibiting the “discharge of pollutants” except in
compliance with specified provisions).
20
discharge into navigable waters.” 33 U.S.C. § 1341(a)(1).
Section 502(16), 33 U.S.C. § 1362(16), recites that “the
term ‘discharge’ when used without qualification includes
a discharge of a pollutant, and a discharge of pollutants.”
Reading these provisions together, Section 502(16) pro-
vides for the shorthand use of the word “discharge” in lieu
of the phrase “discharge of a pollutant” and “discharge of
pollutants” (which are separately defined in Section
502(12)).
In stating that the term discharge “includes” the
discharge of a pollutant, Congress meant that a discharge
requires the discharge of a pollutant. The word “discharge”
in Section 502(16) is not, despite the SJC’s view to the
contrary, without limitation. Elsewhere in the CWA, in
definitions of the word “discharge,” Congress used the
phrase “but is not limited to” after the word “includes”
when it intended the word “discharge” to encompass more
than merely what the statutory section listed. See, e.g., 33
U.S.C. §§ 1321(a)(1) (definition of “discharge” for purposes
of that CWA section “includes, but is not limited to”),
1322(a)(9) (same). Congress also used the phrase “but is
not limited to” after the word “includes” in another defini-
tion in the section of the CWA that applies to Section 401.
Id. § 1362(14). Congress did not do so, however, in the
Section 502(16) definition of “discharge.” This reflects an
indication of Congressional intent to use the word “in-
cludes” as a word of limitation, limiting the word “dis-
charge” to a discharge of a pollutant or pollutants.°
* This interpretation is supported by the statements of several
courts that Section 502 does not actually include a “definition” of the
word “discharge,” but, rather, “provides a statement of inclusion.” See
North Carolina, 112 F.3d at 1187 (D.C. Cir. 1997). See also PUD #1 of
(Continued on following page)
21
2. Continued operation of the Projects
will not “result in” a discharge.
Even if the Projects discharged a pollutant into
navigable waters, such a discharge would not “result” from
licensing authorizing the continued operation of the
Projects. These Projects, and the flow of water through
them in an “altered” state that is subject to “private
control,” have existed for many years. See Warren, 2005
ME, 4 3, App. at A-2. Thus, relicensing of these existing
Projects will not “result in” any new discharge. See North
Carolina, 112 F.3d at 1188 (holding that a water quality
certification is not required when a federally-licensed
action will not “result in” a new discharge but will only
alter a pre-existing discharge; “the word ‘result’ implies
causation. Obviously, a subsequent event cannot be the
cause of something that is already in existence” (citation
omitted)).
3. Section 401 does not authorize states
to include reopeners.
The Certification contains numerous conditions that
allow the DEP to “reopen” the FERC license and impose
additional or different requirements in the future. Such
reopeners exceed the permissible scope of state authority
in issuing water quality certifications, and tread on
FERC’s authority under the FPA.
Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 725
(1994) (Thomas, J., dissenting) (“The term ‘discharge’ is not defined in
the CWA”). Logically, a provision that does not “define” a word would
not use the word “means.”
22
A water quality certification addresses whether the
federally-permitted activity will meet state water quality
standards. Once the certification is issued, the state’s job
is done. Although CWA Section 401(d) allows states to
include conditions to ensure that the federally-permitted
activity will comply with state water quality standards,
those conditions are enforceable by the federal agency, not
by the state. See 33 U.S.C. § 1341(d), Great Northern
Paper, Inc., 77 F.E.R.C. | 61,066 (1996) (“[O]nce a state
has issued certification, the Clean Water Act contemplates
no further role for the state in the process of issuing, and
ensuring compliance with the terms of, a federal license,
except in specified circumstances where a new certification
is required”). |
The CWA does not allow states to reopen certifications
or impose additional or different conditions after the
federal agency has issued its permit. Indeed, Section
401(a)(5) provides that the federal license (in this case, the
FERC license) for which the certification was issued may
be suspended or revoked by the federal agency — not the
state — if a judgment is entered that the licensed activity
violates specified provisions of the CWA. 33 U.S.C.
§ 1341(a)(5). Similarly, Section 401(a)(3) allows states to
notify federal agencies that they may not rely on a prior
certification if circumstances have changed since the state
issued that prior certification. Id. § 1341(a)(3). This
provision does not, however, allow the states to alter or
amend the prior certification (and hence the prior federal
license).
Given these CWA provisions governing when the
license for the certified activity may be revoked, sus-
pended, or altered, and given the complete absence of any
provision in Section 401 authorizing states otherwise to
23
amend their certifications, it is clear that Section 401 was
not intended to authorize states to modify a certification
once given and once the federal license to which it relates
is issued. Nevertheless, the SJC asserted that nothing in
the federal law prohibits “reopeners.” Warren, 2005 ME,
{ 26, App. at A-14 to -15.
B. The Warren court’s expansive interpreta-
tion of the scope of CWA Section 401 and
the powers it grants to the states is incon-
sistent with the FPA.
The SJC’s broad interpretation of Section 401 effec-
tively allows the State of Maine to displace FERC as the
exclusive authority that licenses hydropower projects. By
interpreting Section 401 to apply to the discharge of clean
water that does not contain pollutants, and to the relicens-
ing of projects that already “discharge” that clean water,
the SJC has effectively removed all the limitations in
Section 401 on the need for hydropower projects to obtain
state water quality certification. Further, by allowing
“reopener” conditions in certifications the SJC effectively
has allowed the DEP to displace FERC as the licensing
authority for hydropower projects in Maine. This signifi-
cant, ongoing regulatory involvement by the State, and the
consequent marginalization of FERC’s role, conflicts with
the FPA and requires correction by this Court.
1. The FPA’s Grant of Power to FERC
Section 4(e) of the FPA empowers FERC to license
hydropower projects. 16 U.S.C. § 797(e). Section 27 of the
FPA establishes the role of states in the licensing process.
Id. § 821. This section provides:
24
Nothing contained in this chapter shall be con-
strued as affecting or intending to affect or in
any way to interfere with the laws of the respec-
tive States relating to the control, appropriation,
use or distribution of water used in irrigation or
for municipal or other uses, or any vested rights
acquired therein.
Id.
Focusing largely on the language in sections 4(e) and
27, this Court, in First lowa Hydro-Electric Cooperative v.
FPC, 328 U.S. 152 (1946), noted that the Federal Power
Commission (the predecessor to FERC, hereinafter re-
ferred to as FERC), save for the specific exceptions carved
out in the FPA, is solely responsible for the licensing of
hydro projects. Jd. at 168, 182. First Iowa then established
that, in general, under the FPA the authority of the federal
government supersedes that of state governments. Id. at
168. Section 27 saves some authority for the states, but
the effect of that section “in protecting state laws from
supersedure, is limited to laws as to the control, appro-
priation, use or distribution of water in irrigation or for
municipal or other uses of the same nature.” Id. at 175-76
(emphasis added). By establishing FERC as the licensing
authority, Congress avoided a system with simultaneous
state and federal oversight that would be duplicative and
“unworkable.” Id. at 168.
Since this Court’s decision in First Iowa, the FPA has
been amended to clarify both FERC’s and states’ roles in
the licensing of hydro projects. Specifically, in 1986 Con-
gress updated Section 10(a) of the FPA, the section author-
izing FERC to include in its hydropower licenses
conditions proposed by the states, to address a project’s
impacts on fish and wildlife. 16 U.S.C. § 803(a). At the
25
same time, Congress added Section 10(j), requiring FERC
to include in its consideration of a project’s imvacts on fish
and wildlife the recommendations furnished by federal
and state environmental agencies. Id. § 803(j). However,
under Section 10(j) FERC retains discretion with regard to
those recommendations.
These amendments reinforce that, even with in-
creased awareness of the significance of environmental
issues, FERC remains the sole licensing authority.
Subsequent to the 1986 amendments, in California v.
FERC, 495 U.S. 490 (1990), this Court reaffirmed its
holding in First Iowa that the FPA grants FERC exclusive
jurisdiction over hydropower project licensing. The SJC’s
decision in Warren, however, threatens FERC’s long
recognized primacy, creating the very system Congress
attempted to avoid and this Court characterized as dupli-
cative and “unworkable.” See First Iowa, 328 U.S. at 168.
2. The Interplay of the CWA and the FPA
Warren recognizes that in adopting Section 401 of
the CWA Congress intended to expand the scope of state
involvement in federal licensing proceedings. The SJC,
however, has overstepped the limited authority granted
to the states by Section 401. Not only did the SJC hold
that all dams require state certification, but the SJC
allowed the DEP to impose conditions with reopener
clauses that would enable the state unilaterally to amend
Warren’s FERC license and impose new conditions in the
future. To allow states the ability, after a FERC license is
issued, to make changes in the Section 401 certification,
and hence to the FERC license, American Rivers, Inc. v.
FERC, 129 F.3d 99 (2d Cir. 1997), would conflict with
26
FERC’s determinative role in hydropower licensing pro-
ceedings and in enforcing license provisions.’
In concluding that nothing in the FPA prohibits the
inclusion of reopeners in hydropower licenses the SJC
overlooked both the federal-state relationship established
by the FPA and the language of FPA Section 6. Section 6
provides in part that “[l]icenses may be ... altered or
surrendered only upon mutual agreement between the
licensee and [FERC] after thirty days’ public notice.” 16
U.S.C. § 799. This restriction on the alteration of a license
prevents the unilateral reopening of a license in order to
change or implement new license conditions. Nevertheless,
it is precisely this power, prohibited by Section 6, that the
Maine DEP has sought and that the SJC has wrongly
conferred.
In short, the SJC’s decision in Warren impermissibly
invades FERC’s exclusive authority to license hydropower
projects, expressly granted to FERC by the FPA. In this
" Niagara Mohawk Power Corp. v. New York State Dept. of Envtl.
Conservation, 624 N.E.2d 146, 148 (N.Y. 1993) (the FPA establishes a
comprehensive scheme for regulation of hydropower projects, and a
state’s role under Section 401 is limited to reviewing whether the
project meets water quality standards); Bangor Hydro-Electric Co. v.
Board of Environmental Protection, 595 A.2d 438, 443 (Me. 1991) (“In
the overlapping schemes of the Federal Power Act and the Federal
Water Pollution.Control Act, the [BEP]'s veto is confined to the narrow
question whether there is reasonable assurance that the Project will
comply with state water quality standards”) (citations omitted); Power
Auth. of New York v. Williams, 457 N.E.2d 726, 730 (N.Y. 1984) (certify-
ing agency is limited to determining whether applicable water quality
standards are met and is not authorized to engage in a comprehensive
environmental review and balancing of interests); de Rham v. Diamond,
295 N.E.2d 763, 767-78 (N.Y. i973) (certifying agency only has author-
ity to determine whether there is reasonable assurance that the activity
will not violate water quality standards).
27
regard, too, this Court’s intervention and correction of the
SJC’s erroneous holding is needed.
o
CONCLUSION
The Maine SJC’s opinion in Warren conflicts with this
Court’s decision in Miccosukee, illustrates the confusion
among federal and state courts and agencies about when
and how to apply Section 401 of the CWA, and expands the
states’ role so significantly that the State of Maine effec-
tively displaces FERC as the exclusive authority in the
licensing of hydropower projects. In reaching its conclu-
sion, the SJC ignored this Court’s precedent, misinter-
preted the language of the CWA, and failed to
acknowledge the conflict of its conclusions with the com-
prehensive hydropower licensing scheme Congress estab-
lished in the FPA. The result is confusion about the
application of Section 401 and the proper role of states
when issuing water quality certifications. Warren asks
this Court to grant certiorari so that the Court can clarify
this important area of federal law.
Respectfully submitted,
MATTHEW D. MANAHAN
(Counsel of Record)
NICHOLAS D. LIVESAY
PIERCE ATWOOD LLP
One Monument Square
Portland, Maine 04101
(207) 791-1100
Counsel for Petitioner
S.D. Warren Company
Reporter of Decisions
MAINE SUPREME JUDICIAL COURT
Decision: 2005 ME 27
Docket: Cum-04-314
Argued: November 16, 20uU4
Decided: February 15, 2005
Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN,
ALEXANDER, CALKINS, and LEVY, JJ.
S.D. WARREN COMPANY
V.
BOARD OF ENVIRONMENTAL PROTECTION
RUDMAN, J.
{{1] S.D. Warren Company appeals from a judgment
entered in the Superior Court (Cumberland County, Cole,
J.), affirming the decision of the Board of Environmental
Protection (BEP) approving Warren’s application for water
quality certification pursuant to section 401 of the Clean
Water Act (CWA) of 1972, 33 U.S.C.A. § 1341 (West 2001),
and 38 M.R.S.A. § 464 (2001 & Supp. 2004), subject to
certain conditions imposed by the BEP pursuant to section
401(d) of the CWA. 33 U.S.C.A. § 1341(d). Warren asserts
that the BEP’s order should be reviewed de novo without
deference to its legal interpretations; that the BEP ex-
ceeded its authority when it found that certification was
required under the CWA; and that the BEP exceeded its
authority when it imposed the specific conditions that it
did. We disagree and affirm the judgment of the Superior
Court.
A-2
I. BACKGROUND
(72) Warren owns and operates five contiguous
hydroelectric dam projects on the Presumpscot River in
Cumberland County. The waters involved in Warren’s
projects are variously classified as Class A (from the outlet
of Sebago Lake to its confluence with the Pleasant River,
excluding Dundee Pond), Class B (from its confluence with
the Pleasant River to Saccarappa Falls), Class C (from
Saccarappa Falls to tidewater), and Class GPA (Dundee
Pond). The projects have a combined generating capacity
of 7450 kW and provide electricity for Warren’s paper mill
in Westbrook. The projects operate in the run-of-river
mode.’
[13] All ef the projects were constructed in the
1900s. The projects were originally licensed separately
between 1979 and 1981. The licenses were to expire in
1999, but were modified in 1996 to continue until 2001.
Applications for certification were filed in 1999, subse-
quently withdrawn and refiled in 2000, 2001, and 2002. In
April of 2003 the Department of Environmental Protection
(DEP) approved water quality certification for the contin-
ued operation of Warren’s projects, subject to a number of
conditions. In May of 2003 Warren filed a timely appeal
from the DEP’s decision to the BEP. The BEP adopted the
findings of the DEP and affirmed the decision of the DEP
in October of 2003. Warren appealed from the decision of
the BEP to the Superior Court, which affirmed the deci-
sion of the BEP in May of 2004. Warren now appeals from
that judgment.
' The outflow of the project is approximately equal to the inflow on
an instantaneous basis.
A-3
II. DISCUSSION
A. Standard of Review
[74] We review decisions made by an administrative
agency for errors of law, abuse of discretion, or findings of
- fact not supported by the record.’ Melanson v. Sec’y of
State, 2004 ME 127, {7 7-8, 861 A.2d 641, 643-44. When
the Superior Court acts in an intermediate appellate
capacity pursuant to M.R. Civ. P. 80C, we review that
agency's decision directly. Id. “The administrative agency’s
interpretation of a statute administered by it, while not
conclusive or binding on this court, will be given great
deference and should be upheld unless the statute plainly
compels a contrary result.” Thacker v. Konover, 2003. ME
30, 7 14, 818 A.2d 1013, 1019 (citations and quotation
marks omitted).
B. Deference to BEP
{{5] Warren asserts that the BEP is not entitled to
deference when it interprets the CWA because it is inter-
preting federal law. We disagree. The BEP is accorded
substantial deference when it interprets certain federal
statutes. The rationale underlying our deference to BEP
interpretations is that the BEP has greater expertise in
matters of environmental concern and greater experience
? Title 38 M.R.S.A. § 341-D(4)(A) (2001) provides that the BEP is
not bound by the findings of fact or conclusions of law made by the DEP,
but may adopt, modify, or reverse those findings. In this case, all
findings of fact and conclusions of law were initially made by the DEP
and subsequently adopted by the BEP. Throughout the rest of this
opinion, where findings of fact and conclusions of law are referenced,
the reference pertains to the findings of fact and conclusions of law
made or adopted by the BEP.
A-4
administering and interpreting those particular statutes.
See Maritime Energy v. Fund Ins. Review Bd., 2001 ME
45, 1 9, 767 A.2d 812, 814. The CWA, 33 U.S.C.A. §, 1251-
1387 (West 2001 & Supp. 2004), concerns the environment
and it is an act that the BEP has experience administer-
ing. In addition, both state and federal law contemplate
that the BEP will administer and interpret section 401 for
purposes of water quality certification.°
{{6] Additionally, Warren argues that the BEP is a
“lay board” and therefore not entitled to deference. We
disagree. We have specifically rejected the proposition that
a volunteer board is not entitled to deference. The stan-
dard is whether the subject matter is beyond the scope of
* Maine law provides:
(1-A) The department may only issue a waste discharge
license pursuant to section 414-A, or approve a water qual-
ity certification pursuant to the United States Ciean Water
Act, Section 401....
38 M.R.S.A. § 464(4)(F) (2001) (emphasis added).
Federal law provides:
(a) Compliance with applicable requirements; application;
procedures; license suspension
(1) Any applicant for a Federal License or permit to
conduct any activity including, but not limited to, the
construction or operation of facilities, which may re-
sult in any discharge into the navigable waters, shall
provide the licensing or permitting agency a certifica-
tion from the State in which the discharge originates
or will originate, or, if appropriate, from the interstate
water pollution control agency having jurisdiction over
the navigable waters at the point where the discharge
originates or will originate, that any such discharge
will comply with the applicable provisions of sections
1311, 1312, 1313, 1316, and 1317 of this title.
33 U.S.C.A. § 1341(a)(1) (West 2001) (emphasis added).
A-5
the BEP’s expertise. Maritime, 2001 ME 45, {9 n.2, 767
A.2d at 814. In Maritime, we concluded that because the
BEP relied on its expertise interpreting the statute it was
charged with administering and relied upon its expertise
in a field of environmental concern, the BEP’s interpreta-
tion was entitled to deference. Id.
{{7] In the present case, because the statutes in-
volved are administered regularly by the BEP and because
the subject matter is well within the BEP’s expertise, the
BEP’s interpretations, although not conclusive or binding
upon us, are entitled to great deference.
C. State Certification
({8] It is the responsibility of the Federal Energy
Regulatory Commission (FERC), pursuant to the Federal
Power Act (FPA), to issue licenses for the construction,
operation, and maintenance of hydroelectric dams located
in any body of water over which Congress has jurisdiction
pursuant to the Commerce Clause of the United States
Constitution.‘ 16 U.S.C.A. § 797(e) (West 2000). Section
401(a)(1) of the CWA, 33 U.S.C.A. § 1341(a)(1), requires an
applicant for a federal license or permit to conduct any
activity that “may result in any discharge into the naviga-
ble waters,” to provide the licensing or permitting agency
with a certification from the state in which that discharge
may occur. The purpose of the certification is to confirm
that the contemplated discharge will comply with the
water quality standards of the CWA and the effected state.
In addition, section 401(d) of the CWA, 33 U.S.C.A.
§ 1341(d), expressly requires the FERC to incorporate “any
* U.S. Const. art. I, § 8, cl. 3.
A-6
other appropriate requirement of State law set forth in
such certification” into the license.
{{9] Warren posits that certification authority has
not vested because the operation of its dams does not
result in a discharge. We disagree. Certification rights
under section 401(a)(1), 33 U.S.C.A. § 1341(a)(1), vest in a
state if an activity “‘may result in’ a discharge.” North
Carolina v. FERC, 112 F.3d 1175, 1188 (D.C. Cir. 1997).
Once these certification rights have vested in the state,
any conditions that the state imposes become conditions
on the federal license. Alabama Rivers Alliance v. FERC,
325 F.3d 290, 293 (D.C. Cir. 2003).
{{10] The term discharge is not expressly defined
anywhere in the CWA, however, section 502(16), 33
U.S.C.A. § 1362(16) (West 2001), provides that, “[t]he term
‘discharge’ when used without qualification includes a
discharge of a pollutant, and a discharge of pollutants.”
This statement of inclusion provides “the nearest evidence
we have of definitional intent by Congress.” North Caro-
lina, 112 F.3d at 1187. The phrases “discharge of pollut-
ant” and “discharge of pollutants” are defined by section
502(12):
The term “discharge of a pollutant” and the term
“discharge of pollutants” each means (A) any ad-
dition of any pollutant to navigable waters from
any point source, (B) any addition of any pollut-
ant to the waters of the contiguous zone or the
ocean from any point source other than a vessel
or other floating craft.
33 U.S.C.A. § 1362(12) (emphasis added).
[¥11] An “addition” is the fundamental characteristic
of any discharge. See North Carolina, 112 F.3d at 1188 (a
A-7
decrease in the volume of water passing through a dam’s
turbines adds nothing and therefore cannot be a dis-
charge); Alabama Rivers Alliance, 325 F.3d at 299 (in-
creased flow resulting from the replacement of dam
turbines is an addition and therefore a discharge).
{{¥12] The operation of Warren’s dams does result in
an addition to the waters of the Presumpscot River and
therefore a discharge occurs. When a substance is removed
from a navigable body of water and then redeposited into
that same body of water it constitutes a discharge pursu-
ant to section 502(12), 33 U.S.C.A. § 1362(12). See
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897,
923 (5th Cir. 1983) (“The word ‘addition’ as used in the
definition of the term, ‘discharge,’ may reasonably be
understood to include ‘redeposit.’”), see also Greenfield
Mills, Inc. v. Macklin, 361 F.3d 934, 947-49 (7th Cir. 2004).
Avoyelles involved a dispute about whether the removal
and redeposit of fill materials in a wetland was a dis-
charge.” Avoyelles Sportsmen’s League, Inc., 715 F.2d at
900. The court dismissed the idea that the substance
discharged must come from the outside world. Id. at 924
n.43. “This reading of the definition is consistent with both
the purposes and legislative history of the statute. The
CWA was designed to restore and maintain the chemical,
physical and biological integrity of the Nation’s waters.”
Id. at 923. When “water leaves the domain of nature and
is subject to private control rather than purely natural
processes ... it has lost its status as waters of the United
* The present case does not involve fill material, but it does involve
the identical statute defining discharge. 33 U.S.C.A. § 1362(12) (West
2001).
A-8
States.” Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1297
(1st Cir. 1996). Because these waters have lost their status
as waters of the United States, when they are redeposited
into the natural course of the river it results in an addition
to the waters of the United States. See id.
({13] Warren is not adding more water to the river.
However, a discharge results because Warren’s dams
remove the water of the river from its natural course,
exercise private control over the water and then add the
water back into the river. This is a discharge pursuant to
section 401(a)(1). 33 U.S.C.A. § 1341(a)(1).
[{14] Warren argues the word “discharge” is limited
to “discharge of pollutant” or “discharge of pollutants.” We
disagree. “Discharge” has been interpreted broadly. See
Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092,
1098 (9th Cir. 1998) (“‘Discharge’ is the broader term
because it includes all releases from point sources,
whether polluting or nonpolluting.”). It is generally ac-
cepted that a dam is a point source. See Greenfield Mills,
Inc., 361 F.3d at 947 n.16 (“Here, the artificial mechanism
of the dam was used to convey pollutants into the Fawn
River, a navigable waterway. Consequently, we believe
that the dam constitutes a ‘point source.’”). We agree with
the holding of Oregon Natural Desert Ass’n, 172 F.3d at
1098, that any discharge from a dam, whether polluting or
not, is a “discharge” for purposes of section 401(a)(1), 33
U.S.C.A. § 1341(a)(1).
* Section 401 of the CWA, 33 U.S.C.A. § 1341, applies to discharges
into navigable waters. Navigable waters are defined as the “waters of
the United States” at section 502(7), 33 U.S.C.A. § 1362(7).
A-9
{{15] The term “discharge” has been broadly inter-
preted in the case law because the plain language of
section 502, 33 U.S.C.A. § 1362, mandates such an inter-
pretation.
[W]e look first to the plain meaning of statutory
language as a means of effecting legislative in-
tent. Unless the statute itself discloses a con-
trary intent, words in a statute must be given
their plain, common, and ordinary meaning, such
as people of common intelligence would usually
ascribe to them.
Butterfield v. Norfolk & Dedham Mut. Fire Ins. Co., 2004
ME 124, 7 4, 860 A.2d 861, 862 (citations and quotation
marks omitted).
[416] “Includes” in section 502(16) must be given its
plain meaning. The common definition of the word in-
cludes does not suggest it is a word of limitation. In order
for. includes to operate as a word of limitation it would
have to be treated as a synonym for the word means.’
Section 502, 33 U.S.C.A. § 1362, contains the definition of
twenty-three different terms and phrases occurring within
the CWA. Of those twenty-three definitions, twenty-two of
them use the word means; only one of them, “discharge,”
uses includes.
" The U.S. Supreme Court considered the distinction between the
words includes and means, outside of the CWA context, in Helvering v.
Morgan’s, Inc., 293 U.S. 121, 125-26 n.1 (1934):
[T]he natural distinction would be that where “means” is
employed, the term and its definition are to be interchange-
able equivalents, and that the verb “includes” imports a
general class, some of whose particular instances are those
specified in the definition.
A-10
The argument goes that unless we presume that
Congress’s use of the term “includes” was the re-
sult of careless drafting, it seems that Congress
intentionally left the definition of discharge
open.... Arguably, to give “includes” the same
meaning as “means” not only confuses the Eng-
lish language, but also makes a mockery of care-
ful legislative drafting.
Alia S. Miles, Comment, Searching For The Definition Of
“Discharge”: Section 401 Of The Clean Water Act, 28
ENVTL. L. 191, 213 (1998).
({17] Accordingly, water that has left its natural
state and has been subjected to man-made control consti-
tutes an “addition” upon its return to the same navigable
waterway. Any addition to water is fundamental to the
definition of the term “discharge.” Therefore, the water
that leaves the river and runs through the dam before
returning to the river constitutes a discharge for the
purposes of section 1341.
D. BEP’s Authority Under Maine and Federal Law
[418] Warren argues that the BEP exceeded its
authority under federal and state law because it imposed
conditions that seek to enhance water quality, conditions
that were not properly adopted through rule-making,
conditions that require an unauthorized dissolved oxygen
criterion, and conditions that are subject to reopening. We
disagree.
(419) The conditions do not exceed BEP authority.
Because water quality standards are not presently being
met, the BEP may impose any conditions necessary to
ensure compliance with those standards. See PUD 1 of
A-11
Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700,
715 (1994); Bangor Hydro-Elec. Co. v. Bd. of Envtl. Prot.,
595 A.2d 438, 442 (Me. 1991); 38 M.R.S.A § 464(1) (2001).
[¥20] States are authorized to establish water
quality standards pursuant to section 303. 33 U.S.C.A.
§ 1313 (West 2001). “Those standards shall consist of the
designated uses of the navigable waters involved and the
water quality criteria for such waters based upon such
uses.” PUD 1, 511 U.S. at 714. Pursuant to section 401(d),
33 U.S.C.A. § 1341(d), a state may require that applicants
for federal permits or licenses comply with both the
designated uses and water quality criteria of the state
standards established under section 303. 33 U.S.C.A.
§ 1313." PUD 1, 511 U.S. at 715. A state may, in its certifi-
cation, include conditions necessary to ensure that the
applicant will comply with state water quality standards
established pursuant to section 303, 33 U.S.C.A. § 1313,
and any other appropriate requirement of state law.” Jd.
{{21] Maine’s law is settled in this area. In Bangor
Hydro-Electric Co., 595 A.2d at 442 n.4, we concluded that
narrative criteria at 38 M.R.S.A. § 465 (2001 & Supp.
* Even though section 303, 33 U.S.C.A. § 1313, is not specifically
mentioned in section 401(d), 33 U.S.C.A. § 1341(d), it is incorporated by
reference in section 301, 33 U.S.C.A. § 1311 (West 2001), which is
specifically mentioned. “Section 303 is always included by reference
where section 301 is listed.” PUD 1 of Jefferson County v. Wash. Dep't of
Ecology, 511 U.S. 700, 713 (1994) (citations omitted).
* Justice Stevens, in his brief concurrence, was particularly
persuaded that states were not restricted in their regulation pursuant
to section 401(d), 33 U.S.C.A. § 1341(d), “[nJot a single sentence, phrase,
or word in the Clean Water Act purports to place any constraint on a
State’s power to regulate the quality of its own waters more stringently
than federal law might require.” PUD 1, 511 U.S. at 723.
A-12
2004), which requires waters “of sufficient quality to
support all indigenous fish species,” was intended to be an
integral part of the water quality standards for the BEP to
consider. We also concluded, based upon the specificity of
the designated uses at 38 M.R.S.A. § 465, that the Legisla-
ture’s purpose for the language “suitable for the desig-
nated uses” was “that the designated uses actually be
present.” Jd. at 442. We stated that when those uses are
not presently being achieved, the Legislature intended the
quality of the water be enhanced so that the uses are
achieved. Id.
[{22]} Whether compliance has been achieved arid
whether the conditions imposed are necessary to ensure
future compliance are factual determinations to be made
by the BEP. The BEP found that the involved waters were
not presently in compliance with the state water quality
standards, and that the conditions imposed were neces-
sary to ensure future compliance with Maine’s water
quality standards. Warren has not sufficiently challenged
those factual determinations.”
{{23] Warren argues that the BEP exceeded its
authority by including “reopeners” in its certification. We
*° Warren repeatedly asserts that alternative conclusions could be
drawn from certain portions of the record. However, because the Board’s
findings of fact are reviewed for clear error, whether alternative
’ conclusions could be drawn is not determinative. We do not substitute
our judgment for that of an agency on questions of fact provided that
the record substantially supports those facts. See Int'l Paper Co. v. Bd.
of Envtl. Prot., 1999 ME 135, 4 29, 737 A.2d 1047, 1054; 5 M.R.S.A.
§ 11007(3) (2002). The Board’s findings of fact must be upheld, unless
Warren can show that those findings are clearly erroneous. See Bangor
Hydro-Elec. Co. v. Pub. Utils. Comm’n, 589 A.2d 38, 40 (Me. 1991).
Warren has not argued on appeal that the record does not substantially
support the BEP’s factual determinations.
A-13
disagree. The BEP included conditions in its certification
that permit the certification to be reopened and the
conditions amended following notice and hearing. The
inclusion of these “reopeners” is permissible under both
state and federal law.
[424] The U.S. Supreme Court has interpreted
section 401(d), 33 U.S.C.A. § 1341(d), broadly to mean that
a state may attach any conditions that are necessary to
ensure compliance with section 303, 33 U.S.C.A. § 1313,
limitations and are appropriate under state law. PUD 1,
511 U.S. at 713. The “reopeners” were included as a
precaution in case the conditions instituted are not suffi-
cient to ensure compliance with state water quality stan-
dards and section 303, 33 U.S.C.A. § 1313, limitations.
These “reopeners” fit within both the literal language of
section 401(d), 33 U.S.C.A. § 1341(d), and the statutory
interpretation of the U.S. Supreme Court. See PUD 1, 511
US. at 713.
({25] In PUD 1, the court addressed certification
conditions generally and not “reopeners” specifically. In
American Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997)
“reopeners” were specifically addressed. The position of
the FERC, opposing the inclusion of “reopeners,” was
recited in the court’s opinion:
The Commission primarily fears that “to accept
the conditions proposed would give the state the
kind of governance and enforcement authority
that is critical and exclusive to the Commission’s
responsibility to administer a license under the
Federal Power Act, a power the Courts have re-
peatedly concluded belongs exclusively to the
Commission.”
Am. Rivers, 129 F.3d at 111 (quoting FERC’s brief).
A-14
In response, building upon the holding in PUD 1, the.
court held:
We have no quarrel with the Commission’s asser-
tion that the FPA represents a congressional in-
tention to establish a broad federal role in the
development and licensing of hydroelectric
power. Nor do we dispute that the FPA has a
wide preemptive reach. The CWA, however, has
diminished this preemptive reach by expressly
requiring the Commission to incorporate into its
licenses state-imposed water-quality conditions.
Am. Rivers, 129 F.3d at 111 (citations and quotation marks
omitted).
[126] The court explained that, even thuugh this
result seems to subject the FPA to .ne whims of the states,
the FERC always has the power not to grant the licenses
at all. Id. While this may occasionally produce harsh
results, particularly if construction has already begun,
there is no federal statutory authority supporting FERC’s
position that the FPA prohibits the inclusion of “reopen-
ers.” Id.
The Second Circuit’s decision, unanimously
vacating FERC’s orders, is significant for several
reasons. First, the decision denied FERC’s au-
thority to review or reject Section 401 conditions
and required the agency to include conditions in
its licenses, thereby enabling states to influence
the content of the licenses. Second, it ullowed
states to affect licenses already issued by FERC
by recognizing the validity of state certification
conditions requiring ongoing state review and
approval of project changes. Third, and most im-
portant, American Rivers I implemented Con-
gress’ intent in the CWA to diminish FERC’s role
A-15
as an exclusive hydropower decision-maker by
authorizing other resource agencies to condition
FERC licenses through statutory provisions like
Section 401.
Michael C. Blumm & Viki A. Nadol, The Decline of the
Hydropower Czar and the Rise of Agency Pluralism, 26
Cou. J. ENVTL. L. 81, 106 (2001) (emphasis added).
[427] Nor does the inclusion of “reopeners” violate
Maine law. Under Maine law the BEP has the authority to
do that which it is granted authority to do, either ex-
pressly or by implication when that authority is essential
to the full exercise of its powers specifically granted.
[P]ublic bodies ... may exercise only that power
which is conferred upon them by law. The source
of that authority must be found in the enabling
statute either expressly or by necessary inference
as an incidence essential to the full exercise of
powers specifically granted.
Hallissey v. Sch. Admin. Dist. No. 77, 2000 ME 143, { 11,
755 A.2d 1068, 1072.
{{28] The BEP is expressly granted the authority to
issue section 401(a)(1), 33 U.S.C.A. § 1341(a)(1), certifica-
tions pursuant to 38 M.R.S.A. § 464(4)(F)(1-A). Consider-
ing the purpose of Maine’s water quality standards, stated
at 38 M.R.S.A. § 464(1),” the authority to include “reopen-
ers” is “essential to the full exercise of powers specifically
granted” to the BEP. See Hallissey, 2000 ME 143, { 11, 755
A.2d at 1072. This authority is essential because if the
" It is the State’s objective to “restore and maintain the chemical,
physical and biological integrity of the State’s waters ...” 38 M.R.S.A.
§ 464(1).
A-16
conditions are not as effective as planned, the water
quality standards will not be met and the BEP’s goal to
“restore and maintain the chemical, physical and biologi-
cal integrity of the State’s waters . . . ” will not be achieved
during the forty-year term of the FERC license.” The
Board’s interpretation of 38 M.R.S.A. § 464 as implicitly
authorizing the inclusion of “reopeners” is reasonable and
the statute does not plainly compel a contrary result.”
({29] Warren argues that the BEP applied an
impermissible dissolved oxygen criteria to its certification.
We disagree. This is purely an issue of statutory interpre-
tation. The water quality standards at 38 M.R.S.A.
§ 465(3)(B) are regularly administered by the BEP and as
stated previously are entitled to great deference. See
Thacker, 2003 ME 30, 4 14, 818 A.2d at 1019. The water
quality standards at 38 M.R.S.A. § 465(3)(B) are ambigu-
ous as to whether an instantaneous standard is required.
If the statute is ambiguous, courts review whether the
agency's construction is reasonable. Courts do not “second-
guess” an agency on issues within its area of expertise;
rather, courts review only to ascertain whether its conclu-
sions are “unreasonable, unjust, or unlawful.” See Town of
Eagle Lake v. Comm’r, Dep’t of Educ., 2003 ME 37, 4 5, 818
A.2d 1034, 1037. It dees not matter whether an alternative
interpretation would also have been reasonable, only that
* The FERC license sought by Warren is to last forty years.
* As stated previously,
[t]he administrative agency’s interpretation of a statute
administered by it, while not conclusive or binding on this
court, will be given great deference and should be upheld
unless the statute plainly compels a contrary result.
Thacker v. Konover, 2003 ME 30, 4 14, 818 A.2d 1013, 1019 (citations
and quotation marks omitted).
A-17
the interpretation adopted by the BEP was not unreason-
able, unjust or unlawful. Given the purpose of Maine’s
water quality standards, the BEP’s interpretation does not
appear unreasonable, unjust, or unlawful.
{{30] Finally, Warren argues that the BEP adopted a
policy that constituted impermissible rule-making. We
disagree. The BEP based its determinations of flow levels
in the bypass reach sections on a case-by-case basis. The
case-by-case determinations made by the BEP do not
constitute impermissible rule-making. Not every decision
made by an agency constitutes “rule making” despite the
fact that many decisions seem, to some extent, legislative
in character. See Fryeburg Health Care Ctr. v. Dep’t of
Human Servs., 1999 ME 122, 79, 734 A.2d 1141, 1144
(“[A]n agency is not required to use the formal rule mak-
ing procedures every time it makes a decision interpreting
an existing rule.”); Mitchell v. Me. Harness Racing Com-
m’n, 662 A.2d 924, 926-27 (Me. 1995) (an agency’s inter-
pretation of the statutes it is charged with enforcing does
not amount to rule-making).
E. Conclusion
({31] In conclusion, the BEP’s interpretation of
statutes regularly administered by it are entitled to great
deference; the BEP’s determination that CWA certification
rights had vested in the state was not unreasonable; and
A-18
finally, the BEP did not exceed its authority under federal
or Maine law.
The entry is:
Judgment affirmed.
Attorneys for plaintiff:
Matthew D. Manahan, Esq. (orally)
Catherine R. Connors, Esq.
Pierce Atwood, LLP
One Monument Square
Portland, ME 04101
Attorneys for defendant:
G. Steven Rowe, Attorney General
Carol A. Blasi, Asst. Atty. Gen. (orally)
6 State House Station
Augusta, ME 04333-0006
Attorneys for intervenors American Rivers and
Friends of the Presumscot River:
Sean Mahoney, Esq. (orally)
Verrill & Dana, LLP
One Portland Square
Portland, ME 04112-0586
and
Ronald A. Kreisman, Esq.
25 Page Street
Hallowell, ME 04347
A-19
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
CUMBERLAND, ss. DOCKET NO. AP-03-70
S.D. WARREN COMPANY,
Petitioner
v ORDER
MAINE DEPARTMENT
OF ENVIRONMENTAL
PROTECTION,
Respondent
Before this court is Petitioner, S.D. Warren Company’s
(“Warren”) appeal from the October 2, 2003, decision of
Respondent, Maine Board of Environmental Protection
(“BEP”), pursuant to M.R. Civ. P. 80C.
FACTS
Petitioner Warren owns and operates the Dundee,
Gambo, Little Falls, Mallison Falls and Saccarappa
hydroelectric generating dam projects (the “Projects”)
located on the Presumpscot River. “The Projects have a
combined generating capacity of 7,450 kW and are oper-
ated to provide electricity to Petitioner Warren’s West-
brook paper mill.” (R. 278 at 1.) The Projects are operated
in the “run-of-river” mode, meaning that outflow from each
Project is approximately equal to inflow on an instantane-
ous basis during normal operating conditions. (R. 259 at
3.)
All of the Projects were constructed in the 1900s and
were originally licensed by the Federal Energy Regulatory
A-20
Commission (“FERC”) in separate actions between October
31, 1979 and September 17, 1981. Jd. The original expira-
tion dates for these licenses ranged from October 1, 1999
to September 1, 2001. Accordingly, in 1996, at Petitioner
Warren’s request, the licenses were modified to all expire
on January 26, 2001.
On January 14, 1999, Petitioner Warren field [sic]
applications for the continued operation of each of the
Projects. Certification was also requested in conjunction
with ™ titioner Warren’s Application with FERC for each
of the Projects. The applications for certification were
subsequently withdrawn and submitted again on January
12, 2000, January 11, 2001, and December 20, 2002. (R.
178-181.)
The Department of Environmental Protection (“DEP”)
issued its Order in April 2003, approving the applications
of Petitioner Warren and granting certification subject
to several conditions.’ Consequently, Petitioner Warren
appealed the Order to the BEP on May 29, 2003. Five
months later, the BEP denied Petitioner Warren’s appeal.
Therefore, on October 31, 2003, Petitioner Warren filed
this appeal with the Cumberland County Superior Court,
* These conditions included restrictions on water levels and flows,
requirements that Petitioner Warren avoid maintenance drawdowns of
project impoundments during May and June, install upstream eel
passage facilities within two years following the issuance of the FERC
license, institute operation measures to provide downstream eel
passage, install and operate upstream and downstream anadromous
fish passage facilities, institute spillage of 50 cfs at the Dundee Dam
and 100 cfs at the Gambo Dam in order to meet Class B dissolved
oxygen (“DO”) standards in the river, and develop and implement a
recreational facility enhancement plan for each project. (R. 278.)
A-21
pursuant to M.R. Civ. P. 80C.’ Subsequently, on January
26, 2004, this court granted American Rivers and Friends
of the Presumpscot River’s Motion to Intervene.
DISCUSSION
A. Standard of Review
Petitioner Warren argues that this court should
review the decision of the BEP de novo. Conversely, how-
ever, the BEP asserts that its decision should be given
deference appropriate to its professional and technical
expertise.
When a decision of an administrative agency is
appealed pursuant to M.R. Civ. P. 80C, this court reviews
“the agency’s decision directly for abuse of discretion,
errors of law, or findings not supported by the evidence.”
Centamore v. Dep’t of Human Services, 664 A.2d 369, 370
(Me. 1995) (citation omitted). The focus of the appeal is not
whether the court would have reached the same conclu-
sion as the agency, but whether the record contains compe-
tent and substantial evidence, which supports the result,
reached by the agency. CWCO, Inc. v. Superintendent of
Ins., 1997 ME 226, 1 6, 703 A.2d 1258, 1261. Deferential
* In footnote three in Petitioner Warren's reply brief, it requests
that this court modify the record to include the audiotape of this
hearing, pursuant to M.R. Civ. P. 80C(f). The tapes in question,
however, are not required to be kept and contain thoughts of BEP
members that would not be necessary to complete the record in this
case. Therefore, this court denies Petitioner Warren’s motion to modify
and grants the BEP’s motion to strike footnote 3. See Murphy v. Board
of Environmental Protection, 615 A.2d 255, 260 (holding that [t]he
Administrative Procedure Act leaves it to the discretion of the trial
court to determine whether additional evidence is necessary to complete
the record.”).
A-22
review requires this court to uphold the orders of the BEP
if they are based on “such relevant evidence as a reason-
able mind might accept as adequate to support a conclu-
sion.” In re Maine Clean Fuels, Inc., 310 A.2d 736, 741
(Me. 1973).
Here, the BEP is a volunteer board. Despite this,
however, the DEP and the BEP regularly administer the
laws in question. Consequently, this court will not “at-
tempt to second-guess the agency on matters falling
within its realm of expertise and [instead will] limit our
review to determining whether the agency’s conclusions
are unreasonable, unjust or unlawful in light of the re-
cord.” Imagineering v. Department of Professional &
Financial Regulation, 593 A.2d 1050, 1053 (Me. 1991); Isis
Development, LLC. V. Town of Wells, 2003 ME 149, { 3, n.
4, 836 A.2d 1285. Accordingly, it is necessary for this court
to deferentially review the BEP’s decision in this case.
B. Does the Clean Water Act Require Certification?
Petitioner Warren contends that the BEP’s decision,
holding that the Projects require water quality certifica-
tion under the Clean Water Act (“CWA”), was in error.
The CWA provides, in par* that “[a]ny applicant for a
Federal license or permit to conduct any activity . .. which
may result in any discharge into the navigable waters,
shall provide the licensing or permitting agency a certifi-
cation from the State in which the discharge originate or
will originate ... ” 33 U.S.C. § 1341(a)(1) (2004). “The
term ‘discharge’ when used without qualification includes
a discharge of a pollutant, and a discharge of pollutants.
Id. at § 1362(16).
A-23
The D.C. Circuit has determined that the term “dis-
charge” contemplates the addition of something to the
water source. North Carolina v. FERC, 112 F.3d 1175,
1187 (D.C. Cir. 1997);° Alabama Rivers Alliance v. FERC,
325 F.3d 290 (D.C. Cir. 2003) (holding that certification
was required when replacement of several turbines re-
sulted in an increased flow of water through a dam.) In
addition, the Supreme Court has held that once the
certification requirement is triggered by a “discharge” then
the certification conditions are not limited to addressing
merely the physical quality of the water, but can also
require implementation of state water quality standards
under the expansive language of § 401(d). PUD No. 1 of
Jefferson County v. Washington Department of Ecology, 511
U.S. 700, 711 (1994).
In the case at bar, the “run-of-river” operation wili be
maintained at each Project site. (R. 277 at 91-93.) The
Projects, however, will require the rerouting of the natural
flow of the river. This court finds that this rerouting of the
water constitutes a “discharge” under the CWA. See PUD
No. 1, 511 U.S. at 711.
Next, Petitioner Warren argues that even if a “dis-
charge” does occur it will not contain pollutants, therefore
no certification is required under the CWA. Although not
binding on this court, this court finds the decisions of
sister states on this issue to be instructive and, in this
case, persuasive.
* This court notes that the D.C. Circuit Court addressed whether a
mid-term license amendment request triggered Section 401 certification
by a bordering state, which is an entirely different issue than the one
presented in this case. See North Carolina, 112 F.3d at 1176.
A-24
The Ninth Circuit Court of Appeals has held that:
[djischarge is the broader term because it in-
cludes all releases from point sources, whether
polluting or nonpolluting. The D.C. Circuit
reached this conclusion in National Wildlife
Fed’n v. Gorusch, 224 U.S. App. D.C. 41, 693 F.2d
156 (D.C. Cir. 1982). There the court interpreted
discharge in section 1362(16) of the Act to in-
clude the release from a point source of turbid
water that did not contain any pollutant. This is
the logical interpretation of § 1362(16) that com-
ports with the structure and lexicon of the Clean
Water Act.
Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092,
1098 (9th Cir. 1998), cert. denied, 528 U.S. 964 (1999). In
addition, the Supreme Court of New York has held that:
[t}his broad definition of the word “discharge”
and its application to “any discharge” in section
401 of the FWPCA requires that we reject peti-
tioner’s fundamental argument, i.e., that for sec-
tion 401 to apply, a discharge must contain a
specific and identifiable pollutant. In rejecting
that argument, we further note that such an in-
terpretation advances the FWPCA’s purpose of
insuring the rights of States to eliminate condi-
tions of pollution (see U.S. Code, tit 33, § 1251,
subd [b]), including pollution arising from causes
other than specific discharges of identifiable pol-
lutants (see US Code, tit 33, § 1314, subd [f], par
[2]). para.)
Power Auth. v. Williams, 475 N.Y.S.2d 901, 904 (1984).
Therefore, this court finds that certification is required by
the CWA, despite the possible nonexistence of pollutants
in the “discharge.”
A-25
Finally, Petitioner Warren opines that even if the
Projects will result in a discharge of a pollutant, the
“discharge” will not result from the continued operation of
the Projects, so certification is not required. The CWA,
however, provides that any applicant for a license, which
would result in “any discharge,” needs to obtain water
quality certification. Here, a “discharge” will occur, despite
the continued operation of the Projects. Hence, this court
finds the BEP’s decision, requiring Petitioner Warren to
obtain water quality certification, correct as a matter of
law.
C. Certification Conditions
The water quality certification in question requires
that the Projects maintain seasonally varied minimum
flows, install upstream and downstream eel passage,
install fish passage facilities, and develop and implement
a recreational facility enhancement plan for each project.
Petitioner Warren asserts that all of these requirements
are void, because the BEP cannot impose conditions to
enhance or expand the size of the aquatic habitat. Peti-
tioner Warren also contends that as long as some part of
the water attains or supports the designated uses, the
water quality standard is being met.
The CWA requires States that issue water quality
certifications to impose “limitations” necessary to assure
compliance with the State’s water quality standards. 33
U.S.C. § 1341(d) (2003). The Law Court has held that
when issuing a water quality certification, the State must
determine whether all three parts of . the Maine water
quality standards are met; the designated uses, the
numerical criteria for water chemistry and the narrative
A-26
criteria. Bangor Hydro-Electric Co. v. Board of Environ-
mental Protection, 595 A.2d 438, 442 (Me. 1991). Where
water quality standards are not being met, the designated
uses “provide goals for states management of its classified
waters.” Jd. Furthermore, conditions requiring fish pas-
sage and recreational facilities to be installed “clearly bear
on the attainment of the designated uses of fishing,
recreation, and fish habitat.” Jd. at 433.
1. Bypass Reach Minimum Flows
The Maine Water Classification Program provides
that “[t]he Legislature intends by passage of this article to
establish a water quality classification system which will
allow the State to manage its surface waters so as to
protect the quality of those waters and, where water
quality standards are not being achieved, to enhance water
quality.” 38 M.R.S. § 464(1) (2003) (emphasis added).
Here, the BEP held that increased flows in the bypass
reach are necessary to provide reasonable assurance that
the waters will be of sufficient quality to support all
aquatic species indigenous to these waters without detri-
mental changes in the resident biological community. (R.
278 at 6-7.) There is ample evidence in the record to
support the BEP’s finding that the DEP had authority to
restore the previously expired fish species and increase the
population and habitat of the existing species. (R. 259); (R.
136 at 70.) Accordingly, based on a totality of the circum-
stances, this court finds that the BEP’s conclusions regard-
ing minimum flows are not clearly erroneous. See Bangor
Hydro-Electric Co., 595 A.2d at 442-43 (holding that “[t]he
designated uses provide goals for the state’s management of
its classified waters. We hold that it is proper for the Board
A-27
to consider such goals in reviewing a forty year license for
compliance with the classification standards ... ”); PUD
No. 1, 511 U.S. 700 (upholding state water quality certifi-
cation requirement that a dam owner provide minimum
flows to protect fish in the bypass).
2. Upstream and Downstream Eel Passage
The Law Court has held that fish passage measures
contained in a certification for the relicensing of a hydroe-
lectric project, “clearly bear on the attainment of the
designated uses of fishing, recreation, and fish habitat.”
Bangor Hydro-Electric Co., 595 A .2d at 443.
In this case, the BEP found that the upstream and
downstream eel passage conditions were “necessary to
ensure that the project waters will be suitable for the
designated uses of fishing and habitat for fish, and that
the project waters will be of sufficient quality to support
all species of fish indigenous to these waters, subject to the
other provisions of the order.” (R. 278 at 7.) This court
finds that the upstream and downstream eel requirements
are supported by substantial evidence in the record.
Specifically, the DEP found that while there is evidence
that “eel migration and thus overall eel populations would
benefit from the installation of upstream passage facilities
at each dam, because more eels will successfully pass the
dams to reach Sebago Lake with fishways in place than
without fishways.” (R. 259 at 17-18.) Also, there exists
substantial evidence in the record that the dams are
affecting the downstream eel passage as well. (R. 174 at
94-98.) Therefore, this court concludes that the BEP’s
conclusions are based on adequate evidence and are not an
abuse of discretion.
A-28
3. Fish Passage
—The Legislature declares that it is the State’s objec-
tive to restore and maintain the chemical, physical and
biological integrity of the State’s waters and to preserve
certain pristine state waters.” 38 M.R.S. § 464(1) (2003).
“The Legislature further declares that in order to achieve
this objective the State’s goals are: [t]hat water quality be
sufficient to provide for the protection and propagation of
fish, shellfish and wildlife and provide for recreation in
and on the water.” Jd. at § 464(1)(C). In addition, Class B
and C waters are required to be of such quality that they
are suitable “as a habitat for fish and other aquatic life.”
Id. at §§ 465(3)(A) and (4)(A). Class B and C waters also
must “be of sufficient quality to support all aquatic species
indigenous to the receiving water without detrimental
changes in the resident Liological community.” Id. at
$§ 465(3)(C) and 4(C).
Here, the record supports the BEP’s finding that
“phased installation of upstream and downstream ana-
dromous fish passage facilities at each of the project dams
is necessary to ensure that the project waters will be
suitable for the designated uses of fishing and habitat for
fish, and that the project waters will be of sufficient
quality to support all species of fish indigenous to these
waters ...” (R. 278 at 7); (R. 259 at 10-11.) Consequently,
this court finds that the BEP’s condition regarding fish
passage was not clearly erroneous, since “all aquatic
species indigenous to the receiving water” should be
supported. 38 M.R.S.A. § 465(3)(C) (2003); Bangor Hydro-
Electric Co., 595 A.2d at 433.
A-29
~ 4 Recreational Facilities
- Class B and C waters “shall be of such quality that
they are suitable for the designated uses of . . . recreation
in and on the water.” 38 M.R.S. §§ 465(3)(A) and (4)(A)
(2003). In this case, the record adequately supports this
determination. (R. 259 at 24-25.) More specifically, the
BEP correctly found that Petitioner Warren’s dams have
eliminated the opportunity for fishing and prevented
recreational access in the areas of the river. (R. 278 at 7-9.)
Accordingly, this court concludes that the BEP’s decision —
was not erroneous or an abuse of discretion. See Bangor
Hydro-Electric Co., 595 A.2d at 442.
D. Antidegradation Policy
Next, Petitioner Warren asserts that the BEP violated
the State’s antidegradation policy by failing to consider
and address the impact of these above conditions on the
use of hydroelectric power generation.
“Existing in-stream water uses and the level of water
quality necessary to protect those existing uses must be
maintained and protected.” 38 M.R.S. § 464(4)F)(1)
(2003). The BEP has broad latitude to place restrictions on
Warren’s licensed activity to assure compliance with state
water quality standards and any other appropriate re-
quirement of state law. PUD No. 1, 511 U.S. at 715; 33
U.S.C. § 1341(d) (2003).
In the case at bar, the Order provides that the mini-
mum bypass flows, spillage flows and fish passage facili-
ties required by the Order will reduce average annual
generation from 40.5 million to 34.5 million kWh. (R. 259
at 27.) Even though hydropower generation will be
A-30
reduced, this court finds that it will still be “maintained
and protected” as required by the state’s antidegradation
policy. Furthermore, this court notes that hydropower is
just one of the many designated and existing uses that
must be protected in the subject waters. 38 M.RS.
§ 464(4)(F) (2003). Thus, this court finds that this slight
reduction in the average generation will not violate the
state’s antidegradation policy.
E. Rulemaking
Petitioner Warren also asserts that the BEP’s reliance
on the Bureau of Land and Water Quality’s Hydropower
Project Flow and Water Level Policy, absent rulemaking
(“Water Level Policy”) was inappropriate. )
Rule means the whole or any part of eve -
lation, standard, code, statement of pee Aer
other agency statement of general applicability,
including the amendment, suspension or repeal
of any prior rule, that is or is intended to be judi-
cially enforceable and implements, interprets or
makes specific the law administered by the
agency, or describes the procedures or practices
of the agency.
5 M.R.S. § 8002(9) (2003). “The term does not include [aJny
form, instruction or explanatory statement of policy which
in itself is not judicial enforceable, and which is intended
solely as advice to assist persons in determining, exercis-
ing or complying with their legal rights, duties or privi-
leges.” Id. at § 8002(9B)(4). The Law Court has held that
“[a]n agency may provide guidance for its employees and
the public without adopting the guiding materials as rules,
as long as those materials are not intended to have, and
are not given, the force and effect of law. Downeast Energy
A-31
Corporation v. Fund Insurance Review Board, 2000 ME
151, { 23, 756 A.2d 948, 953.
Here, the policy provides that:
In determining flows and water levels at hydro-
power projects, the Bureau of Land and Water
Quality will operate under the rebuttable pre-
sumption that a flow providing wetted conditions
in a weighted average of 3/4ths of the cross-
sectional area of the affected river or stream, as
measured from bank full conditions, or a water
level that provides wetted conditions for 3/4ths of
the littoral zone of a lake or pond, as measured
from full pond conditions, will be needed to meet
aquatic life and habitat standards.
(R. 218.) Although the DEP may have used this presump-
tion in making its conclusions, the BEP determined that
“the Department did not base its minimum flow determi-
nations on meeting a wetted width requirement ... ” (R.
278 at 12.) This analysis is supported by substantial
evidence in the record, because the DEP did not require
the rewatering of 3/4ths of the width of the bypass chan-
nels in its decision. (R. 259 at 19-21.) Instead, the DEP
considered many circumstances and established minimum
flows for each project on a “case-by-case basis.” Id. at 19;
(R. 278 at 12.) Consequently, based on this analysis as well
as 5 M.RS.A. § 8002(9)(B\(4), this court finds that the
BEP’s decision was not clearly erroneous.
F. Dissolved Oxygen Criterion
Petitioner Warren further argues that the BEP erred
in upholding the instantaneous dissolved oxygen (“DO”)
criterion. Specifically, Petitioner Warren contends the
A-32
numeric water quality standard for DO contained in 38
M.R.S.A. § 465(3)(B) should be interpreted as requiring a
calculation based on a daily average not an instantaneous
measurement.
“To determine the intent of the Legislature, we look
first to the statute’s plain meaning and, if there is ambigu-
ity, we look beyond that language to the legislative his-
tory....” Town of Eagle Lake v. Commissioner, Department
of Education, 2003 ME 37, 47, 818 A.2d 1034, 1037
(citation and quotations omitted). “When interpreting
statutes, the Court seeks to discern from the plain lan-
guage the real purpose of the legislation, avoiding results
that are absurd, inconsistent, unreasonable, or illogical.”
Id. (quotations and citations omitted). “Further, we con-
sider the whole statutory scheme for which the section at
issue forms a part so that a harmonious result, presuma-
bly the intent of the Legislature, may be achieved.” Jd.
(citations and quotations omitted).
In the present case, the statute provides, that the DO
content “shall not be less than 7 parts per million or 75% of
saturation, whichever is higher ... ” 38 M.R.S. § 465(3)(B)
(2003). This court finds that this language is ambiguous as
to whether or not this standard applies instantaneously or
based on an average through out any given day. Accord-
ingly, it is necessary to review the legislative history of
this section.
Before 1973, the Maine Water Quality Law required
that the DO content in Class B waters be not less than
75% of saturation and not less than 5 parts per million “at
any time.” (P.L. 1967, c. 475 § 4.) In 1973, however, the
Legislature removed the words “at any time” from the
standard. (P.L. 1973, c. 450 § 5.)
A-33
Despite this, however, reading the statute as requir-
ing an “average” standard would lead to an unreasonable
result. This is because, as the BEP found, “oxygen levels
could in fact fall below the instantaneous minimum
threshold of 5 parts per million needed to sustain fish for
substantial periods of time during a given day, so long as
the daily average DO level was 7 parts per million.” (R.
278 at 114.); Town of Eagle Lake, 2003 ME 37, 47, 818
A.2d at 1037 (holding that the court should avoid absurd,
inconsistent, unreasonable as well as illogical results.)
Consequently, this court finds that the BEP’s decision
regarding the DO content was correct as a matter of law.
G. Re-Opener Provisions
Petitioner Warren argues that the re-opener provi-
sions contained in the BEP’s decision are void.
The CWA provides that any certification “shall set
forth any effluent limitations and other limitations, and
monitoring requirements necessary to assure that any
applicant for a Federal license or permit will comply” with
the State’s water quality standards. 33 U.S.C. § 1341(d)
(2003). Moreover, the Second Circuit Court of Appeals has
held that FERC did not have authority to reject state-
imposed water quality certification conditions, including a
broadly worded re-opener clause. American Rivers v.
FERC, 129 F.3d 99, 111 (2nd Cir. 1997). In fact, FERC
itself has taken the position that based on American
Rivers, “a state may modify a water quality certification
when the state has reserved such authority in the certifi-
cation.” Central Maine Power Co., 82 FERC 61,191 at
61,733 (February 26, 1998).
A-34
In the case at bar, the re-opener provisions contained
in the DEP’s decision are specific and are necessary to
ensure that the state’s water quality standards are met. In
addition, the re-opener provisions allow for Petitioner
Warren to receive notice and a hearing regarding any
project modifications as well as an opportunity to appeal
the final decision to the courts. (R. 278 at 19.) In sum, this
court finds that the BEP’s inclusion of these specific re-
opener provisions was not clearly erroneous.
WHEREFORE, this court DENIES Petitioner War-
ren’s appeal and AFFIRMS the decision of the BEP,
pursuant to MLR. Civ. P. 80C.
Dated: May 4, 2004
/s/ Roland A. Col
Roland A. Cole
Justice, Superior Court
A-35
[LOGO] STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE HOUSE STATION 17 AUGUSTA, MAINE 04333
BOARD ORDER
IN THE MATTER OF
S.D. WARREN COMPANY ) WATER QUALITY
Gorham, Windham, and Westbrook) CERTIFICATION
Cumberland County )
PRESUMPSCOT RIVER )
HYDRO PROJECTS )
#L-19713-33-E-N (Dundee) )
#L-19714-33-E-N (Gambo) )
#L-19715-33-E-N (Little Falls) ) FINDINGS OF FACT
#L-19716-33-E-N (Mallison Falls) ) AND ORDER
#L-19717-33-E-N (Saccarappa) ) ON APPEAL
Pursuant to the provisions of 38 MRSA Section 341-D and
06-096 CMR Chapter 2 (Rules Concerning the Processing
of Applications and Other Administrative Matters), the
Board of Environmental Protection has considered the
appeal of S.D. WARREN COMPANY of the Department’s
approval of Warren’s application for water quality certifi-
cation for the continued operation of the Presumpscot
River Hydro Projects. Based on a review of the materials
submitted by the appellant and other interested parties,
and a review of the application with its supportive data,
agency review comments, and other related materials on
file, the Board FINDS THE FOLLOWING FACTS:
1. PROCEDURAL HISTORY
The Dundee, Gambo, Little Falls, Mallison Falls, and
Saccarappa Hydroelectric Projects (collectively, the
Presumpscot River Projects) consist of five contiguous
dams, impoundments, powerhouses, and appurtenant
A-36
facilities located on the Presumpscot River in the
Towns of Gorham and Windham and the City of West-
brook, Cumberland County, Maine. The projects have
a combined generating capacity of 7,450 kW and are
operated to provide electricity to S.D. Warren’s West-
brook paper mill.
The projects were originally licensed by the Federal
Energy Regulatory Commission (FERC) in separate
actions between October 31, 1979 and September 17,
1981. The original expiration dates for these licenses
ranged from October 1, 1999 to September 1, 2001. In
1996, at S.D. Warren’s request, the licenses were
modified to all expire on January 26, 2001, in order to
facilitate a coordinated review at relicensing.
On January 14, 1999, S.D. Warren filed applications
with the Department for Water Quality Certification
for the continued operation of each of the Presump-
scot River Projects. Certification was requested in
conjunction with S.D. Warren’s Application for Subse-
quent License with the FERC for each of the projects.
The applications for certification were subsequently
withdrawn and refiled on January 12, 2000, January
11, 2001, and December 20, 2002.
By Order #L-19713-33-E-N, #L-19714-33-E-N, #L-
19715-33-E-N, #L-19716-33-E-N, and #L-19717-33-E-
N dated April 30, 2003, the Department approved wa-
ter quality certification for the continued operation of
the Presumpscot River Projects subject to a number of
conditions. In brief, these conditions require that:
¢ All projects will be operated in a run-of-river
mode with maximum 1-foot impoundment fluc-
tuations and with specified minimum flows into
the bypass reach at each dam;
¢ Maintenance drawdowns will be avoided during
May and June;
A-37
¢ Upstream eel passage facilities will be installed
at all projects within 2 years of issuance of a new
FERC license;
¢ Upon license issuance, operational measures (in-
cluding generation shutdown for at least 4 hours
per night for at least 4 weeks each year) will be
instituted at all projects to provide downstream
eel passage;
¢ Specified upstream and downstream anadromous
fish passage facilities will be installed and opera-
tional at all projects in phases, beginning with
the installation of passage facilities at the Sac-
carappa Project, to be operational no later than 2
years after passage is available at the down-
stream Cumberland Falls Dam;
¢ Upon license issuance, spillage of water or other
equivalent measures will be instituted at Dundee
Dam and Gambo Dam in order to meet Class B
dissolved oxygen standards in the river; and
¢ A Recreational Facility Enhancement Plan will
be developed and implemented for each project.
On May 30, 2003, S.D. Warren filed a timely appeal of
the Department’s action.
On June 30, 2003, timely responses to the appeal
were filed by Friends of Sebago Lake, American Riv-
ers and Friends of the Presumpscot River.
APPLICABLE STANDARDS FOR APPEAL
38 MRSA Section 341-D(4) provides that the Board is
not bound by the Commissioner’s findings of fact or
conclusions of law but may adopt, modify or reserve
findings of fact or conclusions of law established by
the Commissioner. Any changes made by the Board
must be based upon the Board’s review of the record,
A-38
any supplemental evidence admitted by the Board
and any hearing held by the Board.
Section 24.B(2) of the Department’s Chapter 2 Rules
provides that the written notice of appeal must in-
clude, but need not be limited to, evidence demon-
strating the appellant’s standing as an aggrieved
person, the findings, conclusions or conditions ob-
jected to or believed to be in error, the basis of the ob-
jections or challenge, and the remedy sought. If the
appellant is requesting that supplemental evidence be
included in the record and considered by the Board,
such a request, with the proposed supplemental evi-
dence, must be submitted with the appeal.
The appellant has not requested that any supplemen-
tal information be included in the record.
STANDING
The appellant is the licensee and owner of the dams
that are subject to the Department’s April 30, 2003
certification decision. The appellant is thus an ag-
grieved person as defined by the Department’s Chap-
ter 2 Rules and has standing to bring an appeal.
BASIS OF APPEAL
The appellant claims that the Department’s April 30,
2003 certification decision suffers from substantial le-
gal and factual infirmities. Specifically, the appellant
contends that:
(1) Water quality certification is not required for the
FERLC relicensing of the existing Presumpscot River
Projects because the relicensing will not result in a
discharge into navigable waters, the threshold for re-
quiring certification under Section 401 of the federal
Clean Water Act;
?
A-39
(2) Even if certification is required, the Depart-
ment’s authority is limited to ensuring that the activ-
ity will comply with State water quality standards,
and conditions in the certification regarding bypass
reach minimum flows, upstream and downstream eel
passage, anadromous fish passage, reaeration, and
recreational facilities do not relate to water quality
standards;
(3) The certification conditions regarding bypass
reach minimum flows are improperly based on a 3/4
wetted width policy that has not been adopted
through rulemaking;
(4) The certification decision incorrectly applies an
instantaneous, rather than a daily average, dissolved
oxygen standard, and fails to properly account for
non-point sources of pollution that impact dissolved
oxygen levels in the Presumpscot River;
(5) The certification contains numerous conditions
requiring that S.D. Warren submit plans for Depart-
ment approval without providing standards by which
the Department will judge the adequacy of these
plans, making all such conditions invalid;
(6) The certification contains several conditions that
impermissibly allow the Department to “reopen” the
certification to impose additional or different re-
quirements in the future;
(7) The certification would mandate non-attainment
of the designated use of hydroelectric power genera-
tion, in violation of State water quality standards and
antidegradation requirements;
(8) The operational restrictions imposed in the certi-
fication for downstream eel passage are not consistent
with the US Department of Interior’s Section 18 fish-
way prescription; and
A-40
(9) The certification improperly, relies on a draft
fishery management plan that has not been subject to
public notice and comment or finalized in the appro-
priate manner by the State’s fishery resource agen-
cies.
The appellant requests that the Board either revoke
the Department’s April 30, 2003 decision and declare
that no water quality certification is required for the
Presumpscot River Hydro Projects, or amend the de-
cision to correct the errors as identified in the appeal.
RESPONSE TO APPEAL
(1) Certification Jurisdiction.
Section 401 of the Clean Water Act (CWA) (33
USC 1251 et seq.) provides that “[a]ny applicant
for a Federal license or permit to conduct any ac-
tivity including, but not limited to, the construc-
tion or operation of facilities, which may result in
any discharge into the navigable waters (of the
United States), shall provide the licensing or
permitting agency a certification from the State
in which the discharge originates or will origi-
nate ... that any such discharge will comply
with the applicable provisions . . . of this Act.”
The appellant urges the Board to adopt a reading
of the language of Section 401 that is not consis-
tent with the broad language of the statute.
Section 401 does not, as appellants suggest,
state that in order to trigger the requirement for
a water quality certification, a discharge must
contain pollutants or some other substance; or
that it be different in kind or volume from a dis-
charge that was permitted under an older, ex-
pired license. Rather, it requires a water quality
certification for an activity for which a federal
A-41
license is necessary that “may result in any
discharge into the navigable waters” (emphasis
added). This includes releases of water from a
dam that contain no pollutants. In fact, under
the CWA, the term “discharge” is defined more
broadly than the term “discharge of pollutants.”
Section 502 of the CWA states that “[t]he term
‘discharge’ when used without qualification in-
cludes a discharge of a pollutant, and a discharge
of pollutants,” thus indicating that it includes
more than simply the discharge of pollutants.
This reading of Section 401 is consistent with the
Congressional policy of recognizing the “primary
responsibilities and rights of States to prevent,
reduce and eliminate pollution,” 33 U.S.C. Sec-
tion 1251 (emphasis added), which is defined as
the “man-made or man-induced alteration of the
chemical, physical, biological and radiological in-
tegrity of water,” 33 U.S.C. Section 1362. See also
PUD No. 1 v. Washington Dep't of Ecology, 511
U.S. 700, 710 (1994) (noting “[t]here is no dispute
that petitioners were required to obtain a certifi-
cation from the State pursuant to [section] 401”
because petitioners “concede that, at a minimum,
the project will result in two possible discharges,”
including “the discharge of water at the end of
the tailrace after the water has been used to gen-
erate electricity”).
The Environmental Protection Agency (EPA),
which is responsible for implementing the Clean
Water Act, has taken the position that “any dis-
charge” as used in Section 401(a) is broader than
“discharge of pollutants.” Additionally, FERC has
consistently taken the position that applicants
for hydropower project licensing or relicensing
are subject to Section 401 certification, and has
adopted regulations (18 CFR Sections 4.38 and
(2)
A-42
16.8) requiring that any application for licensing
or relicensing must include either (A) a copy of a
certification, (B) a copy of a request for certifica-
tion, including proof of the date on which the cer-
tifying agency received the request in accordance
with applicable law governing filings with that
agency, or (C) evidence of a waiver of certification.
Finally, by Executive Order No. FY 96/97, the
Governor of the State of Maine has designated
the Department of Environmental Protection as
the agency responsible for certifying compliance
with applicable water quality standards, pursu-
ant to Section 401 of the Clean Water Act, for all
activities within the state not subject to Land
Use Regulation Commission permitting review
and approval, “including, but not limited to, the
licensing and relicensing of all existing hydro-
power projects.”
In its April 30, 2003 Order, the Department de-
termined that the proposed continued operation
of the Presumpscot River Projects qualifies as an
activity that is subject to Section 401 certifica-
tion. The appellant has not presented any per-
suasive arguments or supplemental evidence
calling into question the Department’s determi-
nation that Section 401 certification is required
for the relicersing of the Presumpscot River Pro-
jects. Specifically, the appellant has not identi-
fied any controlling legal precedent to support its
theory that Section 401 certification is not re-
quired for the relicensing of these or any other
hydropower projects.
Conditions of Certification.
Under Maine’s Water Classification Program,
38 MRSA Sections 464-469, there are four
A-43
classifications (Class AA, A, B, and C) of fresh
surface waters and one classification (Class GPA)
of great ponds. Each classification sets forth the
designated uses, numeric standards, and narra-
tive standards applicable to that class of waters.
The waters of the Presumpscot River that are or
may be affected by the Presumpscot River Pro-
jects are variously classified as Class A (from the
outlet of Sebago Lake ~ > its confluence with the
Pleasant River, excluding Dundee Pond), Class B
(from its confluence with the Pleasant River to
Saccarappa Falls), Class C (from Saccarappa
Falls to tidewater), and Class GPA (Dundee
Pond).
Under the State’s antidegradation policy; which
is included in the Water Classification Program
at 38 MRSA Section 464(4)(F), the Department
may only approve water quality certification if
the standards of classification of the waterbody
and the requirements of the antidegradation pol-
icy are met The antidegradation policy further
provides that the Department may approve wa-
ter quality certification for a project affecting a
waterbody in which the standards of classifica-
tion are not met if the project does not cause or
contribute to the failure of the waterbody to meet
the standards of classification.
With respect to minimum flows at the Dundee
Project, in its April 30, 2003 Order, the Depart-
ment determined that the applicant’s proposals
for providing seasonally varied minimum flow re-
leases (57 cfs from May 1 through September 30,
30 cfs in .\pril and October, and 20 cfs from No-
vember 1 through March 31) in the 1,075-foot-
long Dundee bypass reach Will be adequate to
ensure that these waters will be suitable for the
A-44
designated uses of habitat for fish and for fish-
ing, subject to the other provisions of the Order.
The Department further determined that mini-
mum flows of 60 cfs from May 1 through October
31 and 40 cfs from November 1 through April 30
are necessary to ensure that the waters in the
Dundee bypass reach will be suitable for the des-
ignated use of habitat for fish and aquatic life
and that the identified waters will be of sufficient
quality to support all aquatic species indigenous
to these waters without detrimental changes in
the resident biological community.
With respect to minimum flows at the Gambo
Project, in its April 30, 2003 Order, the Depart-
ment determined that a year-round minimum
flow of 40 cfs in the 300-foot-long Gambo bypass
reach is necessary to ensure that these waters
will be suitable for the designated uses of habitat
for fish and for fishing, and that the identified
waters will be of sufficient quality to support all
species of fish indigenous to these waters, subject
to the other provisions of the order. The Depart-
ment further determined that a year-round
minimum flow of 60 cfs is necessary to ensure
that the waters in the Gambo bypass reach will
be suitable for the designated use of habitat for
aquatic life and that the identified waters will be
of sufficient quality to support all aquatic species
indigenous to these waters without detrimental
changes in the resident biological community,
subject to the other provisions of the order.
With respect to minimum flows at the Mallison
Falls Project, in its April 30, 2003 Order, the De-
partment determined that seasonally varied
minimum flows (60 cfs from May 1 through Sep-
tember 30 and 40 cfs from October 1 through
April 30) in the 675-foot-long Mallison Falls
A-45
bypass reach are necessary to ensure that these
waters will be suitable for the designated uses of
habitat for fish and for fishing, and that the
identified waters will be of sufficient quality to
support all species of fish indigenous to these wa-
ters, subject to the other provisions of the order.
The Department further determined that mini-
mum flows of 60 cfs from May 1 through October
31 and 40 cfs from November 1 through April 30
are necessary to ensure that the identified wa-
ters will be suitable for the designated use of
habitat for aquatic life and that the waters in the
Mallison Falls bypass reach will be of sufficient
quality to support all aquatic species indigenous
to these waters without detrimental changes in
the resident biological community, subject to the
other provisions of the order.
With respect to upstream eel passage, in its April
30, 2003 Order, the Department determined that
the installation of upstream eel passage facilities
at all five project dams is necessary to ensure
that the project waters will be suitable for the
designated uses of fishing and habitat for fish,
and that the project waters will be of sufficient
quality to support all species of fish indigenous to
these waters, subject to the other provisions of
the order.
With respect to downstream eel passage, in its
April 30, 2003 Order, the Department deter-
mined that the applicant’s proposals for down-
stream eel passage (suspending generation at all
five projects for 4 hours per night for four one-
week periods during the downstream eel migra-
tion season, and conducting a 3-year study to de-
termine the exact timing of the generation
shutdown) will be adequate to ensure that the
project waters wiil be suitable for the designated
ee —_
A-46
uses of fishing and habitat for fish, and that the
project waters will be of sufficient quality to sup-
port all species of fish indigenous to these wa-
ters, subject to the other provisions of the order.
With respect to anadromous fish passage, in its
April 30, 2003 Order, the Department deter-
mined that the phased installation of’ upstream
and downstream anadromous fish passage facili-
ties at each of the project dams is necessary to
ensure that the project waters will be suitable for
the designated uses of fishing and habitat for
fish, and that the project waters will be of suffi-
cient quality to support all species of fish indige-
nous to these waters, subject to the other
provisions of the order.
With respect to reaeration, in its April 30, 2003
Order, the Department determined that the
spillage of 50 cfs at the Dundee Project and 100
cfs at the Gambo Project under specified river
temperature conditions, or other equivalent
measures, are necessary to meet Class B dis-
solved oxygen standards in the river under dry
weather conditions.
With respect to recreational facilities, in its April
30, 2003 Order, the Department determined that
the applicant’s proposals to develop a Recrea-
tional Facility Enhancement Plan for each of the
five projects, consisting of various measures in-
tended to maintain and/or enhance recreational
access and use in the project areas, will be ade-
quate to ensure that the project waters are suit-
able for the designated use of recreation in and
on the water, subject to the other provisions of
the order.
A-47
The appellant has not presented any persuasive
arguments or supplemental evidence calling into
question the Department’s determinations that
the conditions in the Section 401 certification re-
garding bypass reach minimum flows, upstream
and downstream eel passage, anadromous fish
passage, reaeration, and recreational facilities
are necessary to ensure that the operation of the
Presumpscot River Projects will comply with
State water quality standards.
Warren argues that the Department has no au-
thority to condition its Section 401 certification
for these projects (and, by extension, for any
other hydropower projects) to impose minimum
flow, fish passage, or recreational facilities re-
quirements (dissolved oxygen is discussed below).
Warren’s position is that, as long as the desig-
nated uses of fish, fishing, and aquatic habitat
are present to any degree in any portion of the
river, then water quality standards are being at-
tained. We note that the appellant has not ap-
pealed minimum flow requirements for Little
Falls and Sacarrappa, given that these were pro-
posed by Warren in its application. See Appeal of
S.D. Warren at 10.
Generally, when issuing a water quality certifica-
tion, the State must determine whether all three
parts of Maine water quality standards will be
met; the designated uses, the numerical criteria
for water chemistry, and the narrative criteria.
Bangor Hydro-Electric Company, et al. v. Board
of Environmental Protection, 595 A 2d. 438, 442
(Me. 1991). In determining whether the project
will comply with the designated uses for the wa-
ter body, it is not enough that the quality of the
water is such that it may potentially support
i a ee me
A-48
the use. Rather the Department must decide
whether “the designated uses actually were
achieved in a particular river.” Jd. Moreover, the
“classification statute recognizes that all water
quality standards may not be achieved at a given
time.” Jd. Where water quality standards are not
being met, the designated uses “provide goals for
the state’s management of its classified waters.”
Id. In the Bangor Hydro case, the Supreme Judi-
cial Court held that it was proper for the Board
to consider such goals in reviewing a new license
for an existing hydropower project. Jd. at 443.
See also PUD No. 1 of Jefferson County v. Wash-
ington Department of Ecology, 511 U.S. 700
(1994) (a minimum flow requirement imposed by
the State of Washington was appropriate and
necessary to meet the designated use of fish
habitat).
More specifically, water quality standards for the
waters in question require that the waters be
suitable for the designated uses of fishing, rec-
reation and as habitat for fish and other aquatic
life; and that the habitat be characterized, for
Class A and Class B waters, respectively, as
“natural” or “unimpaired.” 38 MRSA Section 465.
“Unimpaired” is defined as “without diminished
capacity to support aquatic life.” 38 MRSA Sec-
tion 466(11). “Natural” is defined as “a state of
nature not measurably affected by human activ-
ity.” 38 MRSA Section 466(9). The statute also
provides that for Class B waters, “the receiving
waters shall be of sufficient quality to support all
aquatic species indigenous to the receiving water
without detrimental changes in the resident bio-
logical community.” 38 MRSA Section 465(3).
“Without detrimental changes in the resident
biological community” means “no significant loss
A-49
of species or excessive dominance by any species
or group of species attributable to human activ-
ity.” 38 MRSA Section 466(12), Nowhere, as ap-
pellant suggests, does the statute state that
“some” of the waters be suitable for the desig-
nated uses; that “some” of the aquatic species in-
digenous to the waters be supported; or that
“some” of the habitat must be unimpaired or
natural. On the contrary the terms “receiving
waters” and “habitat” are unqualified and the
statute specifically states that the water quality
must be such as to support “all” indigenous
aquatic species.
The record in this case demonstrates that War-
ren’s dams have caused long stretches of the
natural river bed to be essentially dry and thus
unavailable as habitat for indigenous popula-
tions of fish and other aquatic organisms; that
the dams have blocked the passage of eels and
sea-run fish to their natural spawning and nurs-
ery waters; that the dams have eliminated the
opportunity for fishing in long stretches of river,
and that the dams have prevented recreational
access to and use of the river. Appellant’s conten-
tion that water quality standards are being at-
tained as long as the designated uses of fish,
fishing, and aquatic habitat are present to any
degree in any portion of the river is thus contrary
to the language of the statute and to the Legisla-
ture’s stated objective “to restore and maintain
the chemical, physical and biological integrity of
the State’s waters.” 38 MRSA Section 464(1).
Warren further contends that fish passage con-
ditions in the certification go beyond the De-
partment’s authority to issue water quality
certification because they address fisheries man-
agement issues under the jurisdiction of other
A-50
State and federal agencies. The Maine Suprem,
Judicial Court, however, has found that mitiga
tion measures, specifically, fish passage and rec
reation facilities, “clearly bear on the attainmem
of the designated uses of fishing, recreation, an4
fish habitat” Bangor Hydro-Electric Co., et al.
Board of Environmental Protection, 595 A.2d 43€,
443 (Me. 1991). In that case, the Board denieq
Bangor Hydro-Electric’s application for wate,
quality certification when it failed to produce in.
formation regarding its planned mitigatioy
measures, including fish passage and recres
tional facilities. The Court held that the Boar4
was within its authority under the water quality
laws to request information regarding fish pas.
sage as part of the water quality certification re.
view. See also, PUD No. 1, 511 U.S. 700, 715
(1994) (state water quality certification require.
ment that a dam owner provide minimum flow ty
protect fishery in the by-pass reach consistent
with the designated use of fish habitat was ar-
propriate under Section 401).
Finally, Warren contends that the DEP’s 2002 In.
tegrated Water Quality Monitoring and Assess.
ment Report does not list the Presumpscot River
as being impaired for any reason other than dis.
solved oxygen, and therefore the conditions i,
the certification relating to minimum flows, fis)
apssage [sic] and recreational facilities are ur-
justified. However, the report cited by Warren ig
a draft, not a final, report to EPA on the water
quality attainment status of all of the state’s wé-
ters. It is anticipated that the final report will re-
flect the status of attainment of the Presumpsc¢t
River as discussed in the DEP’s April 30, 2003
certification Order.
A-51
With respect to dissolved oxygen, Warren’s ar-
gument is that the Department has no authority
to condition its Section 401 certification for the
Dundee and Gambo Projects to impose reaera-
tion requirements. Warren’s position is that the
dams pre-date water quality standards and that
the operation of the projects does not result in a
violation of dissolved oxygen standards.
However, this argument ignores the fact that,
based on the evidence in the record, the Dundee
and Gambo Dams clearly cause or contribute to
the current violation of dissolved oxygen stan-
dards in several parts of the Presumpscot River.
Were these dams not in place and operating in
such a way as to reduce natural reaeration, to in-
crease time of travel, to increase water tempera-
ture, and to create settling basins for sediments
and nutrients, dissolved oxygen standards would
be met in the Gambo, Little Falls, and Sac-
carappa impoundments, particularly under dry
weather conditions when the effect of non-point
source pollution on dissolved oxygen levels is
minimal. Under these circumstances, it is neces-
sary and appropriate to condition fire operation
of the Dundee. and Gambo Dams to require such
changes as will eliminate the dams’ contribution
to the violation of dissolved oxygen standards. To
do otherwise would be to condemn the river to its
current condition, with the survival, growth and
reproduction of fish and other aquatic animals
being compromised by these dams, and with dis-
solved oxygen standards continuing to be vio-
lated, due in part to these dams and their
current operation.
Warren’s argument also ignores the fact that wa-
ter quality standards apply to all activities, in-
cluding those that pre-date the enactment of the
A-52
standards. Water quality standards have been
applied since their adoption to many pre-existing
activities, including the discharge of waste water
from Warren’s own Westbrook paper mill. It is
largely through the application of water quality
standards to existing waste water discharges and
to the operation of existing dams that the water
quality of Maine’s rivers and streams has been
improved over the last 30-plus years. To argue
that Warren’s dams are not subject to water
quality standards is to argue the Presumpscot
River is somehow exempt from meeting the stan-
dards that apply to all other rivers in the State,
or that the Presumpscot River dams are some-
how exempt from the kind of regulation that has
been applied for over 20 years to all other dams
in the State. There is no basis in law or regula-
tion for such an exemption.
(3) Minimum Flow Policy.
The waters of the Presumpscot River in the by-
pass reaches below the Dundee, Gambo and
Mallison Falls Dams are variously classified as
Class A and B waters.
Under Maine’s Water Classification Program, 38
MRSA Sections 464-469, Class A and B waters
shall be of such quality that they are suitable for
the designated use of, among other things, habi-
tat for fish and other aquatic life, and shall be of
sufficient quality to support all aquatic species
indigenous to the receiving water without detri-
mental changes in the resident biological com-
munity.
In its April 30, 2003 Order, the Department
stated that it has found that, generally, flows.
A-53
providing wetted conditions in a weighted aver-
age of 3/4ths of the cross-sectional area of a river
or stream, as measured from bank full condi-
tions, are sufficient to meet aquatic life and habi-
tat standards. The Department further stated
that each waterway is different in terms of the
value of various flows in providing habitat for
aquatic life, and that conflicts may exist between
the habitat needs of various resident aquatic or-
ganisms. Finally, the Department stated that, as
a result, on a case-by-case basis, it often, estab-
lishes alternative flows based on identified site-
specific conditions and data, where those alter-
native flows can be shown to meet all water qual-
ity standards.
In its April 30, 2003 Order, the Department then
presented the case-by-case analysis of the bypass
flows needed to meet aquatic life standards at
the Presumpscot River Projects that was done in
this case. Based on this analysis, the Department
determined that:
¢ The applicant’s proposals for maintaining
existing leakage flows at the Little Falls and
Saccarappa Projects were adequate to en-
sure that the waters of these bypass reaches
will be suitable for the designated use of
habitat for aquatic life and that all applica-
ble numeric and narrative water quality
standards for these waters will be satisfied;
¢ A-year-round minimum flow of 60 cfs at the
Gambo Project was necessary to ensure
that the waters of this bypass reach will be
suitable for the designated use of habitat
for aquatic life and that these waters will
be of sufficient quality to support all
aquatic species indigenous to these waters
a ee
A-54
without detrimental changes in the resident
biological community; and
¢ Seasonally varied minimum flows (60 cfs
from May 1 through October 31 and 40 cfs
from November 1 through April 30) at the
Dundee and Mallison Falls Projects were
necessary to ensure that the waters of these
bypass reaches will be suitable for the des-
ignated use of habitat for aquatic life and
that these waters will be of sufficient quality
to support all aquatic species indigenous to
these waters without detrimental changes in
the resident biological community.
The appellant has not presented any persuasive
arguments or supplemental evidence calling into
question the basis for the Department’s determi-
nation regarding the minimum flows needed to
meet water quality standards in the Dundee,
Gambo, and Mallison Falls bypass reaches.
Warren argues that, in determining bypass reach
minimum flows, the Department improperly ap-
plied an internal Department policy that has not
been adopted through rulemaking. Warren’s posi-
tion is that, because the policy is in effect a rule,
the Department may not use the policy to impose
a *%% wetted width requirement for bypass reach
minimum flows.
However, it is clear that, in its April 30, 2003
Order, the Department did not base its mini-
mum flow determinations on meeting a wetted
width requirement that has not been adopted by
rule. Rather, the evidence in the record clearly
demonstrates that the Department made a case-
by-case determination of the habitat value of
various bypass reach minimum flows based on a
(4)
A-55
substantial body of substrate and habitat suit-
ability data, much of which was derived from
studies conducted by Warren. Further, none of
the minimum flow requirements imposed by the
Department actually requires maintenance of */
wetted width conditions, and only one flow (60
cfs in the Mallison Falls bypass reach from May
1 through October 31) exceeds % wetted width
conditions. Indeed, for the Little Falls and Sac-
carappa bypass reaches, the Department deter-
mined that, based on the limited habitat value of
the predominant ledge substrate, existing leak-
age flows would be sufficient to meet water qual-
ity standards, and wetted width conditions were
not even calculated for these bypasses.
Finally, it should be noted that the bypass flow
conditions for the Dundee and Mallison Falls
Projects imposed by the Department’s April 30,
2003 Order are very similar to the proposals
made by Warren in its application. Warren has
provided no reason why, if these proposals were
acceptable at the time of the application, they
have beconie less so now.
Dissolved Oxygen Standard.
The waters of the Presumpscot River are classi-
fied as Class B waters from its confluence with
the Pleasant River (located at about the half-way
point along the Gambo impoundment) to Sac-
carappa Falls (at the location of the Saccarappa
Dam).
Under Maine’s Water Classification Program, 38_.
MRSA Section 464-469, the dissolved oxygen con-
tent of Class B waters shall be not less than 7
parts per million or 75% of saturation, whichever
is higher, except that for the period from October
A-56
lst to May 14th, in order to ensure spawning and
egg incubation of indigeuous fish species, the 7-
day mean dissolved oxygen concentration shall
not be less than 9.5 parts per million and the 1-
day minimum dissolved oxygen concentration
shall not be less than 9.5 parts per million in
identified fish spawning areas.
In its April 30, 2003 Order, the Department de-
termined that water quality modeling predicted
non-attainment of Class B dissolved oxygen (DO)
_ under critical water quality conditions (summer
low flow/high temperature conditions) in portions
of the Little Falls, -Mallison Falls, and Sac-
carappa impoundments. The Department also
determined that actual in-stream monitoring
showed non-attainment of Class B DO standards
in the lower Gambo, Little Falls, and Saccarappa
impoundments during the summers from 1997
through 2002.
In its April 30, 2003 Order, the Department fur-
ther determined that the non-attainment of dis-
solved oxygen standards in the Presumpscot
River is the result of (1) the existence of multiple
impoundments in close proximity to one another,
(2) the lack of natural reaeration below the dams,
(3) the over-night respiration of bottom attached
algae, and (4) the impacts of non-point sources of
pollution (e.g., agricultural runoff and sedimen-
tation from land use activities). The Department
also determined that, were it not for the pres-
ence of the project dams, the Presumpscot River
would meet Class B DO standards, particularly
under dry weather conditions when the effect of
non-point source pollution on dissolved oxygen lev-
els is minimal. Finally, the Department determined
that the project dams cause or contribute to the
A-57
violation of dissolved oxygen standards in the
river.
In its April 30, 2003 Order, the Department spe-
cifically noted that Warren, as the owner of the
Presumpscot River Projects, should not be re-
sponsible for the abatement of non-point source
pollution or for mitigating the effects of such pol-
lution on dissolved oxygen concentrations under
wet weather conditions.
The appellant has not presented any persuasive
arguments or supplemental evidence calling into
question the Department’s decision to apply an
instantaneous dissolved oxygen standard. In ad-
dition, the appellant has not presented any per-
suasive arguments or supplemental evidence
demonstrating that the Department failed to
properly account for non-point sources of pollu-
tion that impact dissolved oxygen levels in the
Presumpscot River.
Warren’s arguments are (1) that the current dis-
solved oxygen standard should be measured on a
daily average, rather than an instantaneous, ba-
sis and (2) that, contrary to its statements, the
Department has made Warren responsible for
the impact of non-point source pollution during
dry periods.
With respect to the dissolved oxygen standard,
the Department has consistently interpreted and
applied the Class B dissolved oxygen standard of
7 parts per million as an instantaneous mini-
mum standard in all of its licensing, permitting
and certification actions. The Department has
also consistently developed water quality models
and conducted water quality monitoring to de-
termine instantaneous DO levels, in keeping
A-58
with EPA program guidance and protocols. In-
deed, EPA water quality criteria for ambient dis-
solved oxygen concentration (1986 “Gold Book”)
specify that the 5.0 milligram per liter (which is
equivalent to parts per million) minimum crite-
rion for early life stages of coldwater and warm-
water fish should be considered as instantaneous
concentrations to be achieved at all timer. This
criterion has been applied as an instantaneous
standard in all of the Department’s licensing,
permitting and certification actions, including
the licensing of the waste water discharge from
Warren’s Westbrook paper mill.
Applying Warren’s reasoning, oxygen levels could
in fact fall below the instantaneous minimum
threshold of 5 parts per million needed to sustain
fish for substantial periods of time during a given
day, so long as the daily average DO level was 7
parts per million. This could result in the out-
come that fish would be dead or dying due to
oxygen deprivation while dissolved oxygen stan-
dards, designed to protect fish, were still being
met.
There is nothing in the law to suggest that
minimum DO levels only need be met on a daily
average basis, and there is nothing in biology to
suggest that fish and other aquatic organisms
can survive with minimum DO levels provided
only on a daily average basis.
With respect to the impact of non-point source
pollution, the evidence in the record clearly dem-
onstrates that, under summer low flow condi-
tions, the impact of tributary flows on the
dissolved oxygen levels in the Presumpscot River
is so small as to be within measurement error.
Therefore, there is no impact of non-point source
(5)
A-59
pollution on DO levels in the river during dry pe-
riods, and Warren is not being held responsible,
for mitigating the impact of non-point source pol-
lution. The only impact Warren is being held re-
sponsible for mitigating is the impact of its dams
on DO levels in the river.
Finally, the water in the Presumpscot River, es-
pecially under low flow conditions, is basically
Sebago Lake water, which is of such purity that
it is distributed to the customers of the Portland
Water District virtually without treatment. Were
it not for the presence of Warren’s dams, it is ex-
pected that the Presumpscot River would meet
applicable dissolved oxygen standards through-
out its length from Sebago Lake to the ocean.
Condition Compliance Approvals.
As noted on page 2 above, the Department’s April
30, 2003 Order included a number of conditions
deemed necessary to assure that the continued
operation of the Presumpscot River Projects
would meet water quality standards. These con-
ditions included requirements for run-of-river
operation with maximum impoundment fluctua-
tions and specified minimum bypass flow re-
leases at each project; installation and operation
of upstream eel passage facilities at each project;
implementation of operational measures to pro-
vide downstream eel passage at each project; the
phased installation and operation of specified
upstream and downstream anadromous fish pas-
sage facilities, beginning at the Saccarappa Pro-
ject; implementation of specified reaeration
measures at Dundee Dam and Gambo Dam; and
development and implementation of a Recrea-
tional Facility Enhancement Plan for each pro-
ject.
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In its April 30, 2003 Order, the Department also
included a number of conditions requiring that
Warren submit various plans to assure compli-
ance with the conditions noted above. These
compliance conditions included requirements for
Warren to submit the following plans:
¢ Plans for providing and monitoring run-of-
river operations, impoundment levels, and
minimum bypass flows as required by Parts
A and B of Condition 1;
¢ Plans for a study to evaluate the effective-
ness of minimum bypass flows required by
Part B of Condition 1 in providing habitat
for Atlantic salmon;
e Final design and operational plans for the
upstream eel passage facilities required by
Part A of Condition 3;
¢ Plans for a study or studies to determine the
effectiveness of the upstream eel passage fa-
cilities required by Part A of Condition 3;
¢ Plans for a study to determine the exact tim-
ing of the operational measures (i.e., genera-
tion shutdown) to provide downstream eel
passage as required by Part B of Condition
4;
¢ Final design and operational plans for the
upstream and downstream anadromous fish
passage facilities required by Parts A and B
of Condition 5;
¢ Plans for a study or studies to determine the
effectiveness of the upstream and down-
stream anadromous fish passage facilities
required by Parts A and B of Condition 5;
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¢ Plans for providing and monitoring spillage
or other approved reaeration measures at
the Dundee Dam and Gambo Dam as re-
quired by Part A of Condition 6;
¢ Plans for a study or studies to determine the
effectiveness of the spillage or other meas-
ures taken pursuant to Part A of Condition 6
in meeting Class B dissolved oxygen stan-
dards; and
¢ A Recreational Facility Enhancement Plan
for each project as required by Part A of
Condition 7.
Finally, in its April 30, 2003 Order, the Depart-
ment required that all condition compliance
plans be reviewed and approved by the DEP.
The appellant has not presented any persuasive
arguments or supplemental evidence calling into
question the validity of the Department’s condi-
tions requiring that Warren submit various con-
dition compliance plans for DEP review and
approval.
Warren instead argues that the plans required
by the Department are illegal, because the Order
does not include the standards that the Depart-
ment will use to judge the adequacy of the plans,
and that, as a consequence, these plans should
not be required.
Contrary to Warren’s argument, however, the
Department’s conditions requiring the submittal,
review and approval of plans are both legal and
appropriate mechanisms for ensuring that water
quality standards are met. The purpose of the
required condition compliance plans is to provide
assurance that Warren will in fact undertake
i el ee
A-62
sufficient actions to satisfy its obligations to com-
ply with the requirements of the water quality
certification. And these condition compliance
plans are then reviewed and approved based on
the requirements of the certification.
For example, Warren’s design and operational
plans for Phase I upstream anadromous fish pas-
sage facilities at the Saccarappa Dam will be re-
viewed by the Department to determine whether
the proposed facilities constitute a Denil fish
ladder, or other passage facilities of comparable
efficiency in passing the target species, designed
to pass at least 18,000 American shad, 109,000
blueback herring, and 273 Atlantic salmon an-
nually, and that these facilities, which shall in-
clude a counting, trapping and sorting facility,
will be operational no later than 2 years after
passage is available at the downstream Cumber-
land Mill Dam, as required by Condition 5(A) of
the Department’s April 30, 2003 Order. In re-
viewing Warren’s plans, the Department will
consider the recommendations of the Atlantic
Salmon Commission and the Department of Ma-
rine Resources, the state agencies with manage-
ment responsibility for various anadromous fish
species and with experience in fish passage de-
sign and operation. While varying in form, other
conditions requiring the submittal of plans are
similarly clear with regard to Warren’s compli-
ance obligations.
DEP, FERC and numerous other regulatory agen-
cies have long required the submittal, review and
approval of plans intended to demonstrate com-
pliance with permit, license and certification
conditions. These have worked well both for regu-
latory agencies and the regulated community. If
plans are submitted that are sufficient to satisfy
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the relevant condition of the license, permit or
certification, the plans are approved. If plans are
submitted that are not sufficient to satisfy the
relevant regulatory condition, the plans are ei-
ther (a) denied and returned for revision and re-
submittal or (b) approved with appropriate modi-
fications.
In the absence of employing condition compliance
requirements, the Department’s only option for
ensuring that its water quality certification re-
quirements would be satisfied would be to deny
certification, pending the submittal, review and
approval of all compliance plans. This option
would be much more inefficient and costly for
both the Department and the applicant, espe-
cially in cases where compliance is not due for
some time and where plans reviewed and ap-
proved now may be subject to revision and the
need for further review and approval in the fu-
ture.
Further, any decision by the Department to ap-
prove, deny or modify Warren’s compliance plans
constitutes a final agency action that is subject to
administrative and judicial appeal. Any objection
that Warren has to the Department’s decision re-
garding the adequacy of Warren’s compliance
plans may be raised through appeals of these
compliance decisions.
Finally, Warren has not objected to the require-
ments that it submit plans for providing and
monitoring run-of-river operations, impound-
ment levels, and minimum bypass flows and for a
study to evaluate the effectiveness of minimum
bypass flows in providing habitat for Atlantic
salmon. These requirements are not fundamen-
tally different in kind from those objected to by
“~~ .;— i—_
(6)
A-64
Warren. If these requirements are acceptable,
then all other requirements in the Department’s
April 30, 2003 Order for the filing of condition
compliance plans should also be acceptable.
Reopeners.
In its April 30, 2603 Order, the Department de-
termined that various follow-up studies should
be conducted to evaluate the effectiveness of the
facilities and other measures required under the
terms of the Order to meet water quality stan-
dards. Among the required studies were: a study
or studies to determine the effectiveness of the
upstream eel passage facilities required by Con-
dition 3; a study to determine the exact timing of
the operational measures (i.e., generation shut-
down) to provide downstream eel passage as re-
quired by Condition 4; a study or studies to
determine the effectiveness of the upstream and
downstream anadromous fish passage facilities
required by Condition 5; and a study or studies
to determine the effectiveness of the spillage or,
other measures required by Condition 6.
In its April 30, 2003 Order, the Department also
included conditions regarding review and action
by the Department based on the results of the
required studies. Specifically, the April 30, 2003
Order provides that, after reviewing the appropri-
ate study results, and after notice to the applicant
and opportunity for hearing, the Department re-
serves the right to:
¢ Require reasonable changes in the design
and/or operation of the upstream eel passage
facilities installed pursuant to Condition 3
as may be deemed necessary to effectively
pass eels upstream through the projects;
A-65
¢ Require changes in the timing of the opera-
tional shutdowns required by Condition 4 as
may be deemed necessary to effectively pass
eels downstream through the projects;
¢ Require reasonable changes in the design
and/or operation of the upstream and down-
stream anadromous fish passage facilities
installed pursuant to Condition 5 as may be
deemed necessary to effectively pass ana-
dromous fish upstream and downstream
through the projects; and
¢ Reopen and modify the terms of the certifi-
cation to require reasonable changes in the
design and/or operation of the projects as
may be deemed necessary to meet Class B
dissolved oxygen standards in the river from
Dundee Dam to Sacarrappa [sic] Dam under ©
dry weather conditions.
The appellant has not presented any persuasive
arguments or supplemental evidence calling into
question the permissibility of the Department’s
“reopener” conditions.
Warren essentially argues that the Department
has no authority to unilaterally modify the terms
of its certification following the issuance of a
FERC license.
However, as Warren has acknowledged, the
terms and conditions of a state’s 401 certification
are binding on FERC and must become condi-
tions of any FERC license, pursuant to Section
401(d) of the Clean Water Act. This includes cer-
tification conditions that allow for future modifi-
cation of the terms of the certification based on
the results of required effectiveness studies.
Therefore, there is no conflict between FERC’s
A-66
licensing authority and the Department’s author-
ity to issue conditional certifications. FERC has
issued numerous licenses incorporating similar
conditions imposed in water quality c
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