# Petition for Writ of Certiorari — SD Warren Co. v. Maine Bd. of Environmental Protection > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0097%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 - **Citation:** 547 U.S. 370 ## Text ()) 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 BB UBC. GB BBGE 60 Bi iirccecccccccccsccccscvscccsscccesensccscesevesossvesesee 2 SG © BI secrcccsensntecetetnensictensnssensenernemenmmncsen 19 BD TG, 6 BID ccccccocecsescescnececscevsevecsccsecssecsesscessseseneness 19 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 BB UDG. 8 BBGRGAIIID cncccecccccccccesescssceseccsvscssscecscesesasescosses 22 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 OD, Ge Cie BR a cecccccccnnteccesnsccnnsttensnstonncimanemensconmeniant 9 = a 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 S [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0097%3A02. Public record. Not legal advice.