Petitioners Brief — SD Warren Co. v. Maine Bd. of Environmental Protection

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Supreme Court of the Anited States

S.D. WARREN COMPANY,

Petitioner,

Vv.

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

On Writ Of Certiorari To The

Maine Supreme Judicial Court

BRIEF FOR PETITIONER

WILLIAM J. KAyatTTA, JR.

MATTHEW D. MANAHAN

(Counsel of Record)

NICHOLAS D. LIVESAY

PIERCE ATWoopD LLP

One Monument Square

Portland, Maine 04101

(207) 791-1100

(207) 791-1350 Fax

Counsel for Petitioner

S.D. Warren Company

COCKLE LAW BRIEF PRINTING CO (B00) 225-6964

OR CALL COLLECT (402) 342-2891

QUESTION PRESENTED

Does the mere flow of the Presumpscot River through

Warren’s existing dams constitute a “discharge into” the

Presumpscot River under section 401 of the Clean Water

Act?

CORPORATE DISCLOSURE STATEMENT

AND PARTIES BELOW

The parties to the appeal before the Maine Supreme

Judicial Court (the “SJC”) were Petitioner S.D. Warren

Company (“Warren”), Respondent Maine Department of

Environmental Protection (the “DEP”), and Intervenors

(now Respondents according to Supreme Court Rule 12.6)

American Rivers and Friends of the Presumpscot River.

Warren’s petition for a writ of certiorari (the “Peti-

tion”) contains Warren’s corporate disclosure statement.

Petition at ii.

TABLE OF CONTENTS

Page

QUESTION PRESENTED.................:ccccsesesccececsssssereees i

CORPORATE DISCLOSURE STATEMENT AND

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STATEMENT OF THE CASE.....................:sccccccesssseerees 3

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Ill. Maine Judicial Review...................cccccsecseeeeeeeeees 10

SUMMARY OF THE ARGUMENT ....00000.... ccc ceceeceeeeeee 12

ARGUMENT:

THE MERE FLOW OF THE PRESUMPSCOT

RIVER THROUGH WARREN’S EXISTING DAMS

DOES NOT CONSTITUTE A DISCHARGE INTO

THE PRESUMPSCOT RIVER UNDER SECTION

401 OF THE CLEAN WATER ACT.................0cccc0000 14

I. The Plain Language Of The Statute Makes

Clear That The Phrase “Discharge Into”

Means An Addition From A Point Source Of

Something To The Presumpscot River Other

Than The Presumpscot River Itself .................. 14

Il.

TABLE OF CONTENTS - Continued

Page

A. There Can Be No “Discharge” Under Sec-

tion 401 When There Is No Addition To

The River From A Point Source..................

B. The Flow Of The Presumpscot River

Through Warren’s Dams Is Not An “Addi-

tion” To The Presumpscot River.................

Miccosukee Supports The Conclusion That The

Mere Flow Of A River Through A Dam Is Not A

Discharge Of Anything Into The River .............

The EPA Has Opined That No “Addition”

Occurs As A Result Of Water Passing Through

Bi TOOT, ccescccnsestccsinsestcsnsrenscaspitistiemmumeiaaaaiadn

Clean Water Act Section 304(f)(2)(F) Evidences

That Congress Used Terms And Concepts

Other Than “Discharge” To Describe The

Mechanism Whereby Dams Can Affect Water

eR 000cencnccnsccescsesetvevscesssossannbuinesanasedinainastnnian

Consideration Of Clean Water Act Section

511(c)2) And The Legislative History Of Sec-

tions 401 And 402 Would Support Even A Nar-

rower Reading Of Section 401 Than Is

Necessary To Rule In Warren’s Favor...............

A. The Language Used In Section 511(c\2) To

Preclude Duplicative And Inconsistent

NEPA Review Of Activities Certified Un-

der Section 401 Would Be Facially Inade-

quate If Section 401 Were Applicable

When No Discharge Of A Pollutant Is In-

volved ......... eucitoccapibesietiscietaredanmmeisiaiiiaiiiadiimiiiaiaataas itil

TABLE OF CONTENTS - Continued

Page

B. The Legislative History Confirms That

The Term “Discharge” As Used In Section

401 Cannot Be Read So Broadly As To En-

compass The Flowing Of The Presumpscot

River Into The Presumpscot River............. 29

ee eeinpcirtniininesctnencconmstesihtemenertensmnemessetmenne 34

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

California v. Federal Energy Regulatory Commis-

SW Ue Ga 8

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2d Cir.

STII Cacti cicada tedieieaheiaialaaiaadlataidnasiliptiiai 21

Chickasaw Nation v. United States, 534 U.S. 84

ss ssiseatelntuclannnciependiaitigtinsesipainnanguncnteiniadiaieiivicitidmatiiatniietin 17

Oregon Natural Desert Association v. Dombeck, 172

OP En 24

Dubois v. Department of Agriculture, 102 F.3d 1273

CD, i hccenceradlbtiantetenentintliinnniidd 17, 18

Engine Manufacturers Association v. South Coast

Air Quality Management District, 541 U.S. 246

TTI ciconsailanesiegiesscchesigiinheniectieensiiaiilicabiihdiiieiidaadninaiiciedeliabiiieaion 14

First Iowa Hydro-Electric Cooperative v. Federal

Power Commission, 328 U.S. 152 (1946) ............ccccccceeees 8

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ............. 16, 21

Gutierrez v. Ada, 528 U.S. 250 (2000).................ccceccseeneees 16

John Hancock Mutual Life Insurance Co. v. Harris

Trust and Savings Bank, 510 U.S. 86 (1993)................ 28

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369

RSS SPR ee ee ere ta ROO ae 21

Kaiser Aetna v. United States, 444 U.S. 164 (1979).......... 19

National Wildlife Federation v. Consumers Power

Co., 862 F.2d 580 (6th Cir. 1988)...................0. 18, 23, 25

vii

TABLE OF AUTHORITIES — Continued

Page

National Wildlife Federation v. Gorsuch, 693 F.2d

ED Se aretecticsescninntenteiitibiicisdateinntiaied 18, 23, 25

North Carolina v. Federal Energy Regulatory

Commission, 112 F.3d 1175 (D.C. Cir. 1997)........... 11, 15

Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469

ee SE icncrinsocsnsicnsnnaiternnainianngpaininndimamibiaen 14

Phelps Dodge Corp. v. National Labor Relations

SL, GENE Gees EE GED cccmnseternensconsimmannnnmenaaes 17

PUD No. 1 of Jefferson County v. Washington

Department of Ecology, 511 U.S. 700 (1994)................. 22

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)................. 28

Rowland v. California Men’s Colony, 506 U.S. 194

So inicsubpinhiatsideniitinmmcenaipihiitigieelaisciahshiditintty inedible 17

Solid Waste Agency of Northern Cook County uv.

United States Army Corps of Engineers, 531 U.S.

UII cds en atenisceensuliedsivintoabinioiesbadetuianbibdasiiegestueeaaiiicts 19

South Florida Water Management Listrict v. Micco-

sukee Tribe of Indians, 541 U.S. 95 (2004)............. passim

Taylor v. United States, 495 U.S. 575 (1990).................... 17

STATE CASES

S.D. Warren Co. v. Board of Environmental Protec-

CTD EE TED cninicnscsentisiiiepmesenindidagellibimsciinidenielia passim

S.D. Warren Co. v. Maine Department of Environ-

mental Protection, No. AP-03-70 (Me. Super. Ct.,

hs Cte Ge, Se cccensueusvettuistpessmmianmetneubigitnwaeessce 1

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES

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A sitaisinraconineniisntideiagsdlienigasionitetssapcibbemnemmilaneibiaiiiil 8

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ERENT anne 3, 26, 27, 28

EEE TOTES 13, 27

STATE STATUTES

ME. REv. STAT. ANN. tit. 5, § 11001(1).................... cece eeeeeees 1

ME. REv. StaT. ANN. tit. 5, § 11008(1)....................c0eeeeeeeeees 1

TABLE OF AUTHORITIES - Continued

Page

RULES & REGULATIONS

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LEGISLATIVE HISTORY

Federal Water Pollution Control Act (amended

REET IRR EN RIES Ae ae ae: Oe 29

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972) .......... 32

H.R. 11896, 92d Cong. § 2 (1972) .............cceceees sees 30, 31, 32

House Consideration of the Report of the Conference

Committee, October 4, 1972 ........cccccccccccseserersseeeeeeees 27, 31

H.R. Conr. REP. NO. 99-507 (1986)..............:cccccccesseeseees 6,8

H.R. ConF. REP. NO. 99-934 (1986)..............::ccccccesssesseeeeeees 6

SE RR, CEP ITT ciinsicitindsitionnntcenccntenatiiiinidainiibabinnitied 24

S. 2770, 92d Cong. § 2 (1972)...........:cccseseerereseeeres 29, 30, 32

Senate Consideration of the Report of the Confer-

ence Committee, October 4, 1972 ..........cccccccceeeeeeceeceseeees 27

AGENCY DOCUMENTS

FERC Order, 9 FERC 7 62,063 (Oct. 31, 1979) .................. 5

FERC Order, 11 FERC {7 62,111 (May 14, 1980)................ 5

FERC Order, 11 FERC { 62,150 (May 28, 1980)................ 5

TABLE OF AUTHORITIES — Continued

Page

FERC Order, 12 FERC { 62,285 (Sept. 30, 1980)............... 5

FERC Order, 16 FERC {7 62,458 (Sept. 17, 1981)............... 5

Memorandum from Ann R. Klee, EPA General Coun-

sel, and Benjamin H. Grumbles, EPA Asst. Admin-

istrator for Water, to Regional Administrators,

regarding “Agency Interpretation on Applicability of

Section 402 of the Clean Water Act to Water Trans-

fers” (Aug. 5, 2005), available at http://www.epa.

gov/ogc/documents/water_transfers.pdf............. 12, 22, 23

OPINIONS AND ORDERS BELOW

The two unreported orders of Maine’s DEP are re-

printed in the Petition Appendix (“Pet. App.”); the DEP

Commissioner’s initial certification order (the “Certifica-

tion”) is at Pet. App. A-74; and the Maine Board of Envi-

ronmental Protection’s order on appeal of the Certification

is at Pet. App. A-35. The -mreported Maine Superior

Court’s order, S.D. Warren Co. v. Maine Department of

Environmental Protection, No. AP-03-70 (Me. Super. Ct.,

Cum. Cty., May 4, 2004), is reprinted in the Petition

Appendix at A-19. The opinion of Maine’s Supreme Judi-

cial Court, sitting as the “Law Court,” entered February

15, 2005, is reported at S.D. Warren Co. v. Board of Envi-

ronmental Protection, 2005 ME 27, and is reprinted in the

Petition Appendix at A-1.

JURISDICTION

The SJC exercised jurisdiction over Warren’s appeal

pursuant to Mg. REv. Stat. ANN. tit. 5, §§ 11001(1) and

11008(1) in order to decide, among other things, whether

and to what extent the State uf Maine was entitled to

issue a certification affecting Warren’s dams under 33

U.S.C. § 1341. The opinion of the SJC was entered on

February 15, 2005. Warren filed the Petition on May 12,

2005; on October 11, 2005, this Court granted certiorari.

This Court’s jurisdiction rests upon 28 U.S.C. § 1257(a).

STATUTORY PROVISIONS

At issue in this case is the Federal Water Pollution

Control Act, 33 U.S.C. §§ 1251 et seq. (the “Clean Water

Act”), in particular section 401, 33 U.S.C. § 1341, and

pertinent statutory definitions contained in section

502(12) and (16), 33 U.S.C. § 1362(12) and (16).

Directly at issue is the first sentence of section

401(a)(1), which states as follows:

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 result in any discharge into the navigable

waters, shall provide the licensing or permitting

agency a certification from the State in which the

discharge originates or will originate, or, if ap-

propriate, from the interstate water pollution

control agency having jurisdiction over the navi-

gable waters at the point where the discharge

originates or will originate, that any such dis-

charge will comply with the applicable provisions

of sections 1311, 1312, 1313, 1316, and 1317 of

this title.

33 U.S.C. § 1341(a)(1).' The complete text of section 401 is

reprinted in the Appendix to this brief.

Also at issue are the definitions contained in section

502(12) and (16), which state as follows:

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any ad-

dition of any pollutant to the 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.

' “Navigable waters” are defined as the “waters of the United

States” at section 502(7), 33 U.S.C. § 1362(7).

The term ‘discharge’ when used without qualifi-

cation includes a discharge of a pollutant, and a

discharge of pollutants.

Id. § 1362(12) and (16).

Finally, also involved are Clean Water Act sections

304(f(2XF), 402, 502(7) and 511(c\(2), 33 U.S.C. §§ 1314(fX2XF),

1342, 1362(7) and 1371(cX2), copies of all of which are pro-

vided in the Appendix to this brief.

STATEMENT OF THE CASE

I. Background

Warren owns and operates five hydroelectric generat-

ing dams on the Presumpscot River in Maine. Pet. App. A-

2, A-19. All five of the dams were constructed in the early

1900s. Pet. App. A-2. These dams provide electricity to

Warren’s Westbrook paper mill. Pet. App. A-l. They

previously generated approximately 40,500,000 kilowatt-

hours of electricity annually, which is roughly the equiva-

lent of 67,500 barrels of oil. Pet. App. A-118.

The dams are operated in run-of-river mode, meaning

that the outflow of the projects is “approximately equal to

inflow on an instantaneous basis... .” Pet. App. A-77. In

the words of the SJC, “Warren is not adding more water to

the river.” A-8. Although they are not identical, all of

Warren’s dams operate in a generally similar fashion. See

Joint Appendix (“J.A.”) 11, 13-15, 17 (depicting each of

Warren’s hydropower projects). To generate power, water

is channeled into the “power canal,” past the turbines, and

then back into the riverbed through the “tailrace channel.”

The water flowing through the power canal bypasses a

short section of the riverbed immediately below the dam.

This section of the riverbed is the “bypass reach”; each of

Warren’s projects has such a bypass reach. Pet. App. A-75

to A-77. These bypass reaches receive the water not routed

past the turbines. Pet. App. A-78.

Above each dam is an impoundment, a portion of the

river through which the flow of water is slowed by the

dam. Warren continually operates its dams, maintaining

in each impoundment a relatively consistent water level

that fluctuates no more than one foot under normal

operating conditions.’ Pet. App. A-78.

All parties agree that Warren’s run-of-river dams do

not add any pollutants to the Presumpscot River. In the

DEP’s words, “[nJone of the dams add ‘pollutants’ as that

term is defined in section 502(6) of the Clean Water Act.”

DEP’s Brief In Opposition To Petition For Certiorari at 3;

see also id. at 9 n.6 (stating the “proposition that the dams

in question do not discharge ‘pollutants’ [is] a proposition

that [was] never contested in this case”). The dams never-

theless do affect the movement and flow of the Presump-

scot River, in several instances causing less dissolved

Oxygen tobe retained in the water, Petition Appendix A-

51, and impacting habitat for aquatic organisms by limit-

ing the flow of water in the bypass reach. Pet. App. A-78,

A-89. The dams also change the nature of the river’s

recreational uses. See, e.g., Pet. App. A-88 to A-89 (noting

the impact of the dams on the river’s fishery).

To operate the dams, Warren is required to obtain

licenses from the Federal Energy Regulatory Commission

* Hereinafter, Warren’s hydropower projects, described in the

paragraphs above, are referred to as Warren's dams.

(“FERC”). 16 U.S.C. § 817. Warren previously obtained

licenses for the five dams between 1979 and 1981. On each

such occasion, the issue posed in this case did not arise

because the State of Maine did not seek to issue a section

401 certification for these run-of-river dams. FERC Or-

ders, 9 FERC J 62,063 (Oct. 31, 1979); 11 FERC 4 62,111

(May 14, 1980); 11 FERC 4 62,150 (May 28, 1980); 12

FERC { 62,285 (Sept. 30, 1980); 16 FERC { 62,458 (Sept.

17, 1981) (licensing respectively: Saccarappa Project No.

2897, Mallison Falls Project No. 2932, Little Falls Project

No. 2941, Gambo Project No. 2931, and Dundee Project

No. 2942). Those licenses expired on January 26, 2001.

Warren filed its application for relicensing with FERC on

January 22, 1999.

FERC’s authority to issue such licenses is found in

section 4(e) of the Federal Power Act (“FPA”). 16 U.S.C.

§ 797(e). That section provides:

The Commission is authorized and empowered —

To issue licenses to citizens of the United States, or

to any association of such citizens, or to any corpo-

ration organized under the laws of the United

States or any State thereof, or to any State or mu-

nicipality for the purpose of constructing, operating

and maintaining dams, water conduits, reservoirs,

power houses, transmission lines, or other project

works necessary or convenient for the development

and improvement of navigation and for the devel-

opment, transmission, and utilization of power

across, along, from, or in any of the streams or

other bodies of water over which Congress has ju-

risdiction under its authority to regulate commerce

with foreign nations and among the several States,

6 :

or upon any part of the public lands and reserva-

tions of the United States (including the Territo-

ries), or for the purpose of utilizing the surplus

water or water power from any Government

dam.... In deciding whether to issue any license

under this subchapter for any project, the Commis-

sion, in addition to the power and development

purposes for which licenses are issued, shall give

equal consideration to the purpose of energy con-

servation, the protection, mitigation of damage to,

and enhancement of, fish and wildlife (including

related spawning grounds and habitat), the protec-

tion of recreational opportunities, and the preser-

vation of other aspects of environmental quality.

Id.

The goal of section 4 “is to assure a true multiple use

of water resources.” H.R. CONF. REP. No. 99-934, at 22

(1986), reprinted in 1986 U.S.C.C.A.N. 2537, 2538. To this

end, the law instructs FERC, as part of the licensing

process, to consider “the applicant’s plans for the im-

provement and broad, efficient and reliable utilization of

the power potential of the waterway or waterways to

which the project is related, together with other beneficial

uses, including navigation, flood control, irrigation, recrea-

tion, water quality, and fish and wildlife....” H.R. Rep.

No. 99-507, at 34 (1986), reprinted in 1986 U.S.C.C.A.N.

2496, 2521.

Section 10(a) of the FPA further provides that licenses

issued by FERC must be subject to the condition:

That the project adopted, including the maps,

plans, and specifications, shall be such as in the

judgment of the Commission will be best adapted

to a comprehensive plan for improving or devel-

oping a waterway or waterways for the use or

benefit of interstate or foreign commerce, for the

improvement and utilization of water-power de-

velopment, for the adequate protection, mitiga-

tion, and enhancement of fish and wildlife

(including related spawning grounds and habi-

tat), and for other beneficial public uses, includ-

ing irrigation, flood control, water supply, and

recreational and other purposes referred to in

section 797(e) of this title if necessary in order to

secure such plan the Commission shall have au-

thority to require the modification of any project

and of the plans and specifications of the project

works before approval.

16 U.S.C. § 803(a)(1).

Section 18 of the FPA, 16 U.S.C. §811, provides

additional protection for fish. This section establishes that

FERC “shall require the construction, maintenance, and

operation by a licensee ... of such fishways as may be

prescribed by the Secretary of the Interior or the Secretary

‘of Commerce, as appropriate.” Jd. § 811.

Finally, section 10(j) allows for broad input regarding

environmental protection by requiring FERC to consider

the recommendations furnished by federal and state

environmental agencies regarding a project’s impacts on

fish and wildlife. Jd. § 803). By requiring FERC to con-

sider but not be bound by the input of environmental

agencies, Congress “intended to stress the expertise of

these agencies and the need for FERC to rely on them...

without giving such agencies a veto or giving them manda-

tory authority such as provided in section 30(c) of the Act.”

H.R. REP. No. 99-507, at 32 (1986), reprinted in 1986

U.S.C.C.A.N. 3496, 2519.’

FERC’s ability to balance the nation’s energy needs

and environmental considerations is subject to a major

limitation imposed by the Clean Water Act. If the activity

that FERC proposes to license may involve any discharge

into the navigable waters, FERC may not grant a license

unless the license applicant first obtains a certification or

waiver from the state in which the discharge originates. 33

U.S.C. § 1341. The state that issues such a certification

need not take into consideration the nation’s energy needs

* Section 27 of the FPA establishes the role of states in the

licensing process. 16 U.S.C. § 821. This section provides:

Nothing contained in this chapter shall be construed as af-

fecting or intending to affect or in any way to interfere with

the laws of the respective States relating to the control, ap-

propriation, 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 prior to

the 1986 FPA amendments, the Court in First Iowa Hydro-Electric

Cooperative v. FPC, 328 U.S. 152 (1946), noted that the Federal Power

Commission (the predecessor to FERC), save for the specific exceptions

carved out in the FPA, is solely responsible for the licensing of hydro-

power 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. Jd. 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,

appropriation, use or distribution of water in irrigation or for municipal

or other uses of the same nature.” Id. at 175-76 (emphasis added).

Subsequent to the 1986 amendments, in California v. FERC, 495

U.S. 490 (1990), the Court reaffirmed its holding in First Iowa that the

FPA grants FERC exclusive jurisdiction over hydropower project

licensing.

and goals. See id. (identifying the scope of a state’s certifi-

cation authority and requiring evaluation only of envi-

ronmental issues).

II. Maine Agency Action

FERC’s rules and regulations require that “with

regard to certification requirements for a license applicant

under section 401(a)(1),” an applicant must file a copy of

the water quality certification, a request for such certifica-

tion, or evidence of waiver of such certification. 18 C.F.R.

§ 4.34(b)(5)(i). Warren filed a request for certification with

Maine’s DEP, and simultaneously took the position that

the dams cause no discharge into the river within the

meaning of section 401. The initial agency certification

process lasted over four years. During the process, there

was no suggestion that the dams add anything to the river.

See Pet. App. A-87 to A-88, A-106 to A-110, A-120 to A-121.

The DEP Commissioner nevertheless issued a Certifi-

cation imposing extensive restrictions on the operation of

the facilities, resulting in a projected loss of energy equiva-

lent to roughly one-seventh of the dams’ electric genera-

tion (10,000 barrels of oil per year). Pet. App. A-118 to A-

120. The restrictions included, among other things, condi-

tions relating to water levels and flows, impoundment

drawdowns and refill procedures, eel and fish passage,

reaeration measures, and recreational facilities. Pet. App.

A-121 to A-140 (containing the conditions of the Certifica-

tion).

- Warren appealed to Maine’s Board of Environmental

Protection. Warren argued, among other things, that the

Certification was not warranted by section 401 because

the dams do not result in any discharge into the river. See

Pet. App. A-118 to A-120 (comparing pre- and post-

Certification power generation); Pet. App. A-38 to A-39

(reciting Warren’s basis for its appeal).

The Board of Environmental Protection affirmed after

de novo review. Pet. App. A-37 to A-38, A-73.

Ill. Maine Judicial Review

Warren then timely filed a petition for review in the

Maine Superior Court. Warren argued, inter alia, that a

river flowing through a dam does not in and of itself

constitute a “discharge into” the river that triggers section

401 certification requirements. The Superior Court denied

Warren's appeal. Pet. App. A-34.

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, created

an entirely new legal test and concluded that, based on

that test, all water passing through a dam qualifies as a

discharge. Pet. App. A-7 to A-8.

The SJC began its analysis by looking to the statutory

language. The SJC stated:

The term discharge is not expressly defined any-

where in the (Clean Water Act], however, section

502(16), 33 U.S.C.A. § 1362(16) (West 2001), pro-

vides 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 evi-

dence we have of definitional intent by Con-

gress.

Pet. App. A-6 (citing North Carolina v. FERC, 112 F.3d

1175, 1187 (D.C. Cir. 1997)). The statute defines the

phrases “discharge of a pollutant” and “discharge of

pollutants” as follows:

(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

correctly reasoned that “{a)n ‘addition’ is the fundamental

characteristic of any discharge.” Pet. App. A-6.

In assessing whether water flowing through a dam

- constitutes an “addition” the SJC focused on whether the

water is subject to “private control.” Pet. App. A-7 to A-8.

The SJC reasoned that the moment water passes through

a dam it is subject to “private control” and thus temporar-

ily loses its status as waters of the United States. Pet.

App. A-7 to A-8. The “exiting” from the dam of this water

that is presumed to have momentarily ceased being waters

of the United States, reasoned the SJC, thus constituted

an “addition” of non-U.S. waters to waters of the United

States. Pet. App. A-8, A-10. Such an “addition,” the SJC

concluded, is a “discharge into” the river requiring water

quality certification pursuant to section 401. Pet. App. A-7

to A-8.

SUMMARY OF THE ARGUMENT

Warren’s argument begins with the language of the

statute. Under section 401, certification is required only

when an activity “may result in any discharge into navi-

gable waters.” Section 502(12) and (16), in turn, equate a

“discharge” with “an addition . . . from a point source.” On

the facts of this case, the question framed by this language

is whether a river flowing through a dam is an addition to

the river from a point source.

The SJC erred in answering this question. The waters

do not cease being navigable waters as they flow through

the dams; and, in any event, any momentary change in the

legal characterization of the river as it flows through the

dam is not an addition of anything to the river.

This Court’s recent decision in South Florida Water

Management District v. Miccosukee Tribe of Indians, 541

U.S. 95 (2004), supports Warren’s position. The Court in

that case adopted the straightforward reasoning that

polluted waters flowing into a reservoir from a canal add

nothing to the navigable waters if the reservoir and canal

are not meaningfully distinct water bodies. So, too, War-

ren’s dams add nothing to the Presumpscot River. In the

words of the U.S. Environmental Protection Agency

(“EPA”), “no ‘addition’” occurs merely as the result of

“movement of water through a dam.” Memorandum from

Ann R. Klee, EPA General Counsel, and Benjamin H.

Grumbles, EPA Asst. Administrator for Water, to Regional

Administrators, regarding “Agency Interpretation on

Applicability of Section 402 of the Clean Water Act to

Water Transfers,” at 18 n.18 (Aug. 5, 2005), available at

http://www.epa.gov/ogce/documents/water_transfers.pdf.

Section 304(f)(2)F) further reinforces the conclusion

that Warren’s dams cannot be described as resulting in a

discharge into the Presumpscot River within the meaning

of section 401. In section 304(f)(2F) Congress addressed

the effects that even clean, run-of-river dams might have

on water quality. In so doing, Congress employed entirely

different terminology than that used in section 401,

expressly recognizing that such potential water quality

effects result not from discharges into the river, but rather

from changes in the movement and flow of the water.

Expanding the analysis to consider both the Clean

Water Act as a whole, and Congress’s efforts in drafting

sections 401 and 402 in particular, strongly suggests that

the foregoing conclusions are modest and likely under-

stated. Section 511(c)(2) precludes redundant or inconsis-

tent review under the National Environmental Policy Act,

42 U.S.C. §§ 4321 et seg. (“NEPA”), of activities certified

under section 401. The language Congress used in section

511(c(2) to accomplish this result strongly suggests that

Congress presumed that all section 401 certifications

involved not only an addition to the water, but an addition

of a pollutant. Congress’s efforts in drafting sections 401

and 402 evidence the same presumption. To rule in favor

of Warren, the Court nevertheless need not conclude that

section 401 must be read as narrowly as context and

history suggest. The point, instead, is that context and

history provide no mandate for even trying to interpret the

plain language more broadly than it appears, and cer-

tainly not so broadly as to make it apply to any and all

activities that merely touch upon the navigable waters.

For all of these reasons, as more fully explained below,

the flow of the Presumpscot River through Warren’s dams

does not constitute a discharge into the Presumpscot

River, and the SJC therefore erred in ruling that section

401 granted to the State of Maine the authority to issue

the Certification.

ARGUMENT

THE MERE FLOW OF THE PRESUMPSCOT RIVER

THROUGH WARREN’S EXISTING DAMS DOES NOT

CONSTITUTE A DISCHARGE INTO THE PRE-

SUMPSCOT RIVER UNDER SECTION 401 OF THE

CLEAN WATER ACT.

I. The Plain Language Of The Statute Makes

Clear That The Phrase “Discharge Into” Means

An Addition From A Point Source Of Something

To The Presumpscot River Other Than The

Presumpscot River Itself.

In determining the scope of section 401, the starting

point necessarily is the language of the statute itself. See,

e.g., Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246, 252 (2004) (“‘Statutory construction

must begin with the language employed by Congress and

the assumption that the ordinary meaning of that lan-

guage accurately expresses the legislative purpose.’”)

(quoting Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469

U.S. 189, 194 (1985)). As explained below, the plain lan-

guage of the statute, including the interlocking definitions

supplied by Congress, makes clear that a “discharge into”

the navigable waters under section 401 requires, at a

minimum, the addition into the water from a point source

of something other than the water itself.

A. There Can Be No “Discharge” Under Sec-

tion 401 When There Is No Addition To The

River From A Point Source.

Congress defined in section 502(16) the bare word

“discharge.” Section 502(16) states that the word “‘dis-

charge’ when used without qualification includes a dis-

charge of a pollutant, and a discharge of pollutants.” Such

a definition, by itself, is partially tautological, with the

defined word “discharge” appearing on both sides of the

verb “includes.” In section 502(12), however, Congress

further specified that the term “discharge of pollutants”

means “any addition of any pollutant to the navigable

waters from any point source.” This definition makes clear,

at least as a matter of plain language and logic, that

Congress equated the notion of a “discharge” with the

notion of “any addition ... from any point source.” In the

words of the D.C. Circuit, “the nearest evidence we have of

definitional intent by Congress reflects, as might be

expected, that the word ‘discharge’ contemplates the

addition . . . of a substance or substances.” North Carolina

v. FERC, 112 F.3d 1175, 1187 (D.C. Cir. 1997); see also id.

n.4 (noting that “if ‘discharge of a pollutant’ requires

addition, then the inclusive understanding of ‘discharge’

also requires an addition”).

This Congressional intent to equate “discharge” with

“addition ... from a point source” is further confirmed by

the language of section 401 itself. The first sentence of

section 401 apporiions responsibility for certification

among interstate water pollution control agencies based

on which agency has “jurisdiction over the navigable

waters at the point where the discharge originates or will

originate....” This language confirms that the “dis-

charges” envisioned in section 401 were discharges from

point sources into the waters. In other words, the “from a

point source” portion of the section 502(12) definition clearly

carries over into section 401. There being nothing in the

language to suggest otherwise, the “addition” portion there-

fore clearly carries over as well, so that a section 401 dis-

charge is an “addition . . . from any point source.”

B. The Flow Of The Presumpscot River

Through Warren’s Dams Is Not An “Addi-

tion” To The Presumpscot River.

The SJC did not disagree with any of the foregoing

argument. To the contrary, the SJC expressly agreed that

“[aln addition is the fundamental characteristic of any

discharge.” Pet. App. 6. That agreement shouid have led to

a ruling that Warren’s dams cause no discharge at all

because they add nothing to the Presumpscot River.

Instead, the SJC opined, first, that the dams turn the river

into non-U.S. waters, and then that the dams “add” those

waters back to the river. The SJC then reasoned that, by

using the word “includes” rather than “means,” Congress

did not intend to limit to pollutants the universe of what it

is that need be added to the water to trigger section 401.

Pet. App. A-9 to A-10. Therefore, adding “non-U.S. waters”

to the “U.S. waters” was a “discharge into” the U.S. wa-

ters. This reasoning is thrice flawed.

First, as a matter of statutory construction, “a word is

known by the company it keeps.” Gustafson v. Alloyd Co.,

513 U.S. 561, 575 (1995); see Gutierrez v. Ada, 528 U.S. 250,

255 (2000° (discussing the “interpretive rule as familiar

outside the law as it is within, for words and people are

known by their companions”). By defining “discharge” as

including a “discharge of a pollutant, and a discharge of

pollutants,” which in turn are defined as “any addition of any

pollutant,” Congress associated a “discharge” with an “addi-

tion” into the water of a pollutant or at least something

similar to a pollutant. The mere fact that the definition of

“discharge” says that it “includes” a “discharge of a pollut-

ant,” instead of saying that it “means” a “discharge of a

pollutant,” does not give free rein to conclude that a “dis-

charge” is the addition of anything at all, much less the

water itself. See, e.g., Chickasaw Nation v. United States, 534

US. 84, 89 (2001) (holding that language following the term

“including” in a statutory provision “is meant simply to be

illustrative, hence redundant” of the scope of the statute’s

reach); Phelps Dodge Corp. v. Nat'l Labor Relations Bd., 313

U.S. 177, 189 (1941) (holding that language following the

phrase “including” in a statutory provision is intended to

serve as an “illustrative application” of the statute’s scope).

Second, section 401 uses not merely the word “dis-

charge,” but rather the term “discharge into.” It stretches

credulity to contend that Congress somehow envisioned a

river flowing through a dam as a river “discharging into”

itself. That the SJC’s reading of the statute would compel

such a contrived result means that its interpretation

should be rejected. See, e.g., Rowland v. California Men’s

Colony, 506 U.S. 194, 200 (1993) (noting “the common

mandate of statutory construction to avoid absurd re-

sults”); Taylor v. United States, 495 U.S. 575, 596 (1990)

(rejecting party’s “implausible interpretation of a statute”).

Third, the SJC’s conclusory statement that the Pre-

sumpscot River ceased being navigable waters, and thus no

longer waters of the United States as it flowed through the

dam, is simply wrong. The only support cited by the SJC for

this statement is the 1996 First Circuit decision in Dubois

v. Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996).

Pet. App. A-7 to A-8. Dubois held, among other things, that

a particular river and a particular pond were distinct water

bodies, and that pumping polluted water uphill from the

river to the pond through pipes was the discharge of a

pollutant into the pond. 102 F.3d at 1299. The Dubois court

further stated (without any cited authority) that when the

river water was removed and piped uphill, it lost its status

as waters of the United States. Jd. at 1297-98.

Correct or not, the Dubois holdings cannot be relied on

to imply that a dam or a pumping station on the same

body of water could be said to be adding or discharging

anything into the water merely by controlling the water.

To the contrary, the Dubois court expressly distinguished

the facilities before it from “a dam that merely accumu-

lates the same water ... or a pump storage facility that

stores water from one source in a different place.” Id. at

1299 (citing Nat? Wildlife Fed’n v. Gorsuch, 693 F.2d 156,

175 (D.C. Cir. 1982); Natl Wildlife Fed’n v. Consumers

Power Co., 862 F.2d 580, 589-90 (6th Cir. 1988)). The

Consumers Power decision cited by the First Circuit in

Dubois expressly held that water flowing through a pump

storage, hydroelectric generation facility “never loses its

status as water of the United States.” Consumers Power,

862 F.2d at 589. The Sixth Circuit stated in Consumers

Power: “[t)o the extent that no more has been shown than

that unclean water flows out of the dam, Congress clearly

displayed an intention to exempt dams from the Clean

Water Act.” Id. at 586.

In short, the SJC took an unnecessary and unsup-

ported dictum from Dubois, and then applied it to the very

situation that Dubois distinguished, in direct conflict with

one of the cases on which Dubois relied as demonstrating a

situation in which no “addition” occurred. In so doing, the

SJC calls into question the reach of federal authority over

the nation’s waters. If the exercise of momentary control

over navigable waters caused the waters to cease being

waters of the United States, stretches of water canals and

controlled waterways throughout the country would lose

their status as waters of the United States. That status is

the lynchpin for the exercise of Congressional authority

over those waters under the Commerce Clause. See, e.g.,

Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979)

(noting that this Court has used the term navigable

waters “in delimiting the boundaries of Congress’ regula-

tory authority under the Commerce Clause”).

The SJC’s view is also inconsistent with this Court’s

analysis in Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S. 159

(2001). In that case the Court reaffirmed that the actual

navigability of a water at every given moment is not

determinative of whether a water qualifies as “navigable

waters.” Jd. at 171-72. “The term ‘navigable’ has at least

the import of showing us what Congress had in mind as its

authority for enacting the [Clean Water Act]: its tradi-

tional jurisdiction over waters that were or had been

navigable in fact or which could reasonably be so made.”

Id. at 172. Applying this reasoning, if a river is a navigable

water in the absence of a dam, it does not lose its status as

such as it momentarily flows through a dam.

Finally, the SJC’s view ignores the fact that Warren’s

“control” of the river is not an assertion of ownership in

even the simplest sense. Warren routes the river water

through its dams pursuant to the express permission of

the United States, as manifest in the FERC license grant-

ing such permission. There is nothing in that license

suggesting that the waters somehow. lose their status as

waters of the United States. The SJC’s conclusion to the

contrary is simply a fictional construct that has no purpose

or significance other than serving as a basis for squeezing

into the language of section 401 certain conduct that, on

its face, is not encompassed by that language.

Il. Miccosukee Supports The Conclusion That The

Mere Flow Of A River Through A Dam Is Not A

Discharge Of Anything Into The River.

The conclusions that a discharge into the river re-

quires an addition of something to the river, and that

temporarily controlling and uncontrolling the river is not

an addition to the river, are directly supported by last

year’s decision in Miccosukee. Miccosukee concerned “a

pumping facility that transfers water from a canal into a

reservoir a short distance away.” 541 U.S. at 98-99. The

issue was whether “the pumping facility is required to

obtain a discharge permit under” section 402 of the Clean

Water Act. Jd. at 99. Absent certain exceptions, the Clean

Water Act requires such a discharge permit under section

402 for any facility that causes “the discharge of any

pollutant.” 33 U.S.C. § 1311(a). As noted above, the Clean

Water Act defines “the discharge of any pollutant” to mean

“any addition of any pollutant to navigable waters from

any point source.” Jd. § 1362(12).

The Court held that the pumping facility was a point

source. Miccosukee, 541 U.S. at 105. There was no dispute

that “phosphorous-laden water” flowed through that point

source from the canal into the reservoir. Jd. at 102. And it

was clear that the owner of the pump exercised control

over the water (by pumping it from the canal to the reser-

voir).

The Court nevertheless held that those facts were

insufficient to establish that the facility pumping polluted

waters into the reservoir from the canal was causing a

discharge into the navigable waters. Focusing on the

definitional requirement that there must be “an addition”

of pollutants to the navigable waters for there to be a

“discharge” of pollutants, the Court concluded that the

question whether a permit was required turned on

whether the waters in the canal and the waters in the

reservoir were “not meaningfully distinct water bodies.”

Id. at 112. Quoting the Second Circuit, the Court noted

that “[i)f 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 Chapter of Trout Unlimited, Inc. v.

New York, 273 F.3d 481, 492 (2nd Cir. 2001)).

Miccosukee thus holds that merely taking control over

water in a man-made facility to cause it to travel from one

point to another is not an addition of anything to the

water if the water at the entrance and the exit of the

facility are not meaningfully distinct water bodies. A

fortiori, causing the Presumpscot River to continue on its

way to the ocean through a dam, turning a turbine as it

passes, is not an activity that adds anything to the Pre-

sumpscot River. Just as the term “discharge” under section

402 requires an addition of something into the water to

qualify as a discharge at all, so too is an addition required

for there to be a discharge under section 401. See, e.g.,

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382

(2004) (holding that courts should avoid interpreting a

statutory provision “in such a way as to give the familiar

statutory language a meaning foreign to every other

context in which it is used”); Gustafson v. Alloyd Co., 513

U.S. 561, 573 (1995) (“[Wle cannot accept the conclusion

that this single operative word means one thing in one

section of the Act and something quite different in an-

other.”).*

Ill. The EPA Has Opined That No “Addition” Oc-

curs As A Result Of Water Passing Through A

Dam.

In the wake of Miccosukee, the EPA on August 5, 2005

issued a formal interpretation addressing the applicability

of section 402 of the Clean Water Act to water transfers.

Memorandum from Ann R. Klee, EPA General Counsel,

and Benjamin H. Grumbles, EPA Asst. Administrator for

Water, to Regional Administrators, regarding “Agency

Interpretation on Applicability of Section 402 of the Clean

Water Act to Water Transfers” (Aug. 5, 2005) (“EPA

Interp.”), available at http://www.epa.gov/ogce/documents/

water_transfers.pdf. The interpretation concluded that the

permit requirements of section 402 are “generally inappli-

cable” to water transfers, or to dams that do not add

pollutants to the water flowing through the dams. Id. at 9.

With regard to dams, the EPA noted in particular that “the

movement of water through a dam” does not require a

permit both because it does not transfer water between

two water bodies, and also “because no ‘addition’ has

occurred.” Id. at 18 n.18. As discussed above, the require-

ment that there be “an addition” is common to both section

402 and section 401.

* PUD No. 1 of Jefferson County v. Washington Dep't of Ecology,

511 U.S. 700, 711 (1994), is not to the contrary. In that case, the Court

simply observed that the proposed builder of a new dam conceded that

the new dam would involve at least two possible discharges, including

“the discharge of water at the end of the tailrace.” The case did not

present the issue of whether such a “discharge” is a discharge into the

waters under section 401.

The EPA’s conclusion regarding dums did not rest on

the absence of pollutants going through dams. To the

contrary, like the Court in Miccosukee, the EPA presumed

the water flowing in and out of the dam to be polluted.

Instead it focused on the fact that, polluted or not, the

water was not added to the river by the dam. The EPA

further cited with approval the opinion of the Sixth Circuit

in Consumers Power and the D.C. Circuit’s opinion in

Gorsuch that “generally water quality changes caused by

the existence of dams and other similar structures were

intended by Congress to be regulated under the ‘nonpoint

source’ category of pollution.” Jd. at 12 (quoting Consumers

Power, 862 F.2d at 588) and 13 (characterizing the reason-

ing in Gorsuch and Consumers Power as reflective of the

“better approach” for determining what constitutes an

“addition”). The EPA was correct in finding that the flow of

water through a dam involves no addition to the waters.

IV. Clean Water Act Section 304(f)(2)(F) Evidences

That Congress Used Terms And Concepts Other

Than “Discharge” To Describe The Mechanism

Whereby Dams Can Affect Water Quality.

None of the foregoing is intended to deny that the

operation of a dam affects a river. Depending on its opera-

tion, a dam can cause changes in the movement, flow, and

circulation of a river. Such changes can cause a river to

absorb less oxygen and to be less passable by boaters and

fish. A dammed river, by definition, is not a wild river, and

the Presumpscot River is not the same river it was before

dams were added 250 years ago. See, e.g., Pet. App. A-88 to

A-89 (comparing existing and historical fishery conditions

on the Presumpscot River).

Nor was Congress oblivious to the fact that dams

could affect rivers in ways that do not involve discharges

into the river from a point source. Notwithstanding the

1972 legislative refocusing of the Clean Water Act on

controlling point source pollution,’ Congress was not silent

on the matter of non-point source effects on water quality.

In section 304(f)(°\F) of the Clean Water Act, Congress

required the EPA to consult with state and federal agen-

cies and to issue “information including (1) guidelines for

identifying and evaluating the nature and extent of non-

point sources of pollution, and (2) processes, procedures,

and methods to control pollution resulting from ...

changes in the movement, flow or circulation of any

navigable waters or ground waters, including changes

caused by the construction of dams, levees, channels,

causeways, or flow diversion facilities.” 33 U.S.C.

§ 1314(f(2F).

* The Water Pollution Control Act Amendments of 1972 reshaped

federal water law and created the basic framework of the Clean Water

Act that exists today. Replacing both the general structure and ap-

proach of the prior law, these amendments “replac(ed)] water quality

standards with point source effluent limitation.” Oregon Natural Desert

Ass'n v. Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998). This change in

focus emerged from the finding that as of 1971 “the Federal water

pollution control program ... has been inadequate in every respect.” S.

REP. No. 92-414 (1971), at 7, reprinted in COMM. ON PUBLIC WorKS, 93D

CONG., 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL

AcT AMENDMENTS OF 1972, at 1699 (1973); see also id. at 69, reprinted

in 2 Lec. HIST., at 1487 (noting that the Senate Bill that evolved into

the 1972 amendments, S. 2770, changed the law's “emphasis from

water quality standards to effluent limitations based on the elimination

of any discharge of pollutants”).

Both the D.C. Circuit and Sixth Circuit have found

that section 304(f(2F) is evidence that Congress in-

tended to regulate water quality changes associated with

dams through the implementation of non-point source

controls. Gorsuch, 693 F.2d at 177; Consumers Power, 862

F.2d at 588. For present purposes, the simpler point is that

section 304(f)(2)(F) shows that Congress did not attempt to

use the term “discharge” in describing what it is that dams

can do to water quality. Instead, Congress employed very

different words and concepts (“changes in movement”)

when describing the effects of dams. Given this back-

ground, to equate a mere change in a river’s movement

with a “discharge into” the same river is simply too much.

V. Consideration Of Clean Water Act Section

511(c)(2) And The Legislative History Of Sec-

tions 401 And 402 Would Support Even A Nar-

rower Reading Of Section 401 Than Is

Necessary To Rule In Warren’s Favor.

The foregoing examination of how the word “dis-

charge” is used in the Clean Water Act, together with the

reasoning adopted by this Court in Miccosukee and by the

EPA in its official pronouncement, all lead to the conclu-

sions that section 401 is inapplicable when nothing is

added to the water from a point source, and that the mere

flow of a river through a dam is not an addition of any-

thing to the river. Those conclusions based on the lan-

guage of the statute should be sufficient to warrant

reversal of the SJC’s decision. Simply put, to the extent

that there is any ambiguity in the plain language of the

Clean Water Act that might otherwise be clarified by

widening the scope of inquiry, there is no ambiguity on the

basic points at issue here: There must be an addition of at

least something to the river from a point source; and the

river flowing through a dam is not the addition of anything.

That being said, Warren’s position is fortified by

considering how section 401 was understood by Congress

in writing other sections of the Clean Water Act, and in

the drafting of section 401 itself. While Warren need only

establish that section 401 requires something more than

the mere flow of a river through a dam in order for there

to be a discharge into the river, Congress viewed section

401 even less broadly, and as requiring the addition of a

pollutant from a point source in order for there to be a

discharge into the river.

A. The Language Used In Section 511(c)(2) To

Preclude Duplicative And Inconsistent

NEPA Review Of Activities Certified Under

Section 401 Would Be Facially Inadequate

If Section 401 Were Applicable When No

Discharge Of A Pollutant Is Involved.

Clean Water Act section 511(c)(2), 33 U.S.C. § 1371(c)\(2),

evinces that Congress presumed that all activities certified

under section 401 would in fact involve the discharge of

pollutants. Section 511(c)(2) provides:

Nothing in the National Environmental Policy

Act of 1969 (83 Stat. 852) shall be deemed to — (a)

authorize any federal agency authorized to li-

cense or permit the conduct of any activity which

may result in the discharge of a pollutant into

the navigable waters to review any effluent limi-

tation or other requirement established pursuant

to this chapter or the adequacy of any certifica-

tion under Section 1341 of this title; or (b) au-

thorize any such agency to impose, as a condition

precedent to the issuance of any license or per-

mit, any effluent limitation other than any such

limitation established pursuant to this chapter.

The purpose of section 511(c)(2) is to prevent duplica-

tive, and potentially inconsistent, review under NEPA of

activities that have already been permitted or certified

under sections 401 and 402. House Consideration of the

Report of the Conference Committee, October 4, 1972 (“H.R.

Consid. of Conf. Rpt.”) (statement of Congressman Jones),

reprinted in 1 A LEGISLATIVE HISTORY OF THE WATER

POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 236

(1973) (“1 Lec. Hist.”) (stating that “[sJection 511(c)(2) is

intended to obviate the need for other Federal agencies to

duplicate the determinations of the States and EPA as to

water quality considerations”); see also Senate Considera-

tion of the Report of the Conference Committee, October 4,

1972, reprinted in 1 LEG. HIsT., at 183 (noting that other

Federal agencies “shall accept as dispositive the determi-

nations of EPA and the States (under section 401 and its

predecessor, section 21(b) of the [Federal Water Pollution

Control Act] prior to the 1972 amendments)”).

If section 401 is interpreted to be inapplicable when

the federally licensed activity involves no discharge of a

pollutant, then the language Congress used in section

511(c)(2) achieves the stated purpose: NEPA review of the

* NEPA directs the federal government to integrate environmental

values into their decision-making process by considering the environ-

mental! impacts of their proposed actions and reasenable alternatives to

those actions. 42 U.S.C. §§ 4321 et seq.

adequacy of section 401 certifications is precluded. If,

however, section 401 is interpreted to require certifications .

even of activities that will not result in a discharge of a

pollutant, then section 511(c)(2) would fall peculiarly and

inexplicably short of achieving its purpose. It would

preclude duplicative and inconsistent NEPA review of

certifications involving the discharge of pollutants, yet

allow such duplicative and inconsistent review when

something other than a pollutant, and presumably less

harmful, is added to the water.

In sum, section 511(c)(2) offers an answer to the

question of what must be added to a river in order for

there to be a “discharge” under section 401. The answer is

that, notwithstanding the use of the term “includes” in

defining discharges, Congress presumed that discharges

under section 401 would necessarily include the addition

of pollutants. See, e.g., Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997) (in construing statutes, courts should look

to “the broader context of the statute as a whole”); John

Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank,

510 U.S. 86, 94 (1993) (statutory language should be

interpreted consonant with “the provisions of the whole

law”) (internal quotation marks omitted). Whether or not

this Court were ultimately so to conclude, the fact that

there is substantial evidence to suggest that section 401

discharges are no more than discharges of a pollutant or

pollutants renders it entirely Unreasonable to go so far in

the other direction as to find that the flowing of a river

through a dam is, in and of itself, a discharge into the

river under section 401.

B. The Legislative History Confirms That The

Term “Discharge” As Used In Section 401

Cannot Be Read So Broadly As To Encom-

pass The Flowing Of The Presumpscot

River Into The Presumpscot River.

The legislative history of sections 401 and 402 sug-

gests an explanation for why Congress used the word

“includes” in defining “discharge” even though it otherwise

appears that Congress conceived of all discharges as

involving the discharge of pollutants. The original Senate

Bill in 1972 setting forth what became sections 401 and

402 employed in section 401 the term “discharge” precisely

as it appears in the statute as enacted:

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 result in any discharge into the navigable

waters, shall provide the licensing or permitting

agency a certification from the State. .. .

S. 2770, 92d Cong. § 2 (1972) (proposing section 401(a)(1)),

reprinted in 2 A LEGISLATIVE HISTORY OF THE WATER

POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 1679

(1973) (“2 Lec. HisT.”). This language was the same

language that had appeared in section 21(b) of the prior

law. Federal Water Pollution Control Act, § 21(b)(1)

(amended 1970), reprinted in HOUSE COMM. ON PUB.

WoRKS, LAWS OF THE UNITED STATES RELATING TO WATER

POLLUTION CONTROL AND ENVIRONMENTAL QUALITY 47-48

(1970).

Section 402 in the Senate Bill, in turn, granted the

EPA the ability to issue NPDES permits “for the discharge

of any pollutant, or combination of pollutants, into the

navigable waters... .” S. 2770, 92d Cong. § 2 (proposing

section 402), reprinted in 2 LEG. HIST., at 1685. Thus, the

Senate Bill contained the same use of different language

in sections 401 and 402 that is in the statute as enacted

and from which the reader infers different meanings.

At the same time, though, the Senate Bill made clear

that no difference in meaning was intended. The Bill did

this by defining “discharge” as follows:

The term ‘discharge’ means (1) any addition of

any pollutant to navigable waters from any point

source, (2) 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, or (3) any addition of any pollution

to publicly owned treatment works (as defined in

section 210 of this Act) by any industrial user (as

defined in section 210 of this Act).

Id. (proposing section 502(n)), reprinted in 2 LEG. HISsT., at

1699.

In short, notwithstanding the use of “discharge” in

section 401 and “discharge of pollutants” in section 402,

the Senate Bill made clear that the former simply encom-

passes two forms of the latter (plus the discharge of

pollution into publicly owned treatment works).

Several months later, the House responded with an

alternative. A principal thrust of the competing House Bill

was to provide a different permitting scheme for a form of

heat pollutant that the House Bill defined as “thermal

discharge.” Specifically, the House Bill created a definition

of “thermal discharge.” H.R. 11896, 92d Cong. § 2(1972)

(proposing section 502(17)), reprinted in 1 LEG. HIST., at

1043-45. Through this special treatment of the permitting

of thermal discharges, the House intended to allow for less

stringent regulation of such discharges. See id. (proposing

section 316, which provided for development of regulations

specific to thermal discharges), reprinted in 1 LEG. HIST.,

at 1043-49; H.R. Consid. of Conf: Rpt. (statement of

Congressman Clark noting that section 316 in the House

Bill “recognizes that heat is less harmful than most

‘pollutants’ and that consideration should be given to the

dissipative capacities of the receiving waters”), reprinted

in 1 LEG. HIst., at 273.

While creating a different permitting approach for

thermal discharges than the discharge of other pollutants

under section 402, the House did not seek to exclude

thermal discharges from the certification requirements of

section 401. To achieve this result, the House Bill proposed

the following two part approach to defining discharges and

discharges of pollutants:

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-

ants to the waters of the contiguous zone or the

ocean from any point source other than a vessel

or other floating craft.

The term ‘discharge’ when used without qualifi-

cation includes a discharge of a pollutant, a dis-

charge of pollutants, and a thermal discharge.

H.R. 11896, §2 (proposing sections 502(13), 502(18)),

reprinted in 1 LEG. HIsT., at 1069-71.’

Fairly read, the competing House Bill proposed to

narrow the reach of section 402 in the Senate Bill by

eliminating reference to publicly owned treatment works

and by softefiing section 402 permitting requirements for

thermal discharges. The House’s proposed definition of

“discharge” simply made clear that “thermal discharges”

were not to be excluded from section 401. There is cer-

tainly no evidence that the House Bill sought to broaden

the ambit of the Senate Bill so that it addressed activities

not addressed in the Senate draft, other than activities

resulting in thermal discharges.

The final language that emerged from conference

eliminated reference to publicly owned treatment works,

retained the House’s definition of “discharge of a pollut-

ant,” but modified its definition of “discharge” to eliminate

reference to “thermal discharges,” reflected as follows:

The term ‘discharge’ when used without qualifi-

cation includes a discharge of a pollutant, and a

discharge of pollutants;end-ethermaldiseharge.

Federal Water Pollution Control Act Amendments of 1972,

Pub. L. No. 92-500, § 502(16), 86 Stat. 816, 887 (1972)

" In both S. 2770 and H.R. 11896 the term “pollutant” was defined

as “not limited to” dredged spoil, solid waste, heat, etc. S. 2770, § 2

(proposing section 502(f)), reprinted in 2 LEG. HIST., at 1697; H.R.

11896, § 2 (proposing section 502(6)), reprinted in 1 LEG. HIST., at 1068.

(codified as 33 U.S.C. 1362(16) (stricken language reflects

language deleted from House Bill).

In light of this drafting history, it would be reasonable

to conclude that the present definition of “discharge” is not

intended to imply any materially greater scope for section

401 than for section 402. The definition was initially

drafted simply to reflect that the House proposed separate

treatment for thermal discharges than for discharges of

pollutants under the section 402 permitting scheme.

Hence it created a definition of “discharge” that would

preserve that proposed distinction. When that distinction

was dropped, the conferees simply struck “thermal dis-

charge” from the definition. To argue now that these

partially successful efforts by the House to narrow the.

scope of section 402 in the Senate Bill somehow were

intended to substantially widen the scope of section 401

finds no support in this history. The pertinent language of

section 401 itself as contained in both Bills never changed,

and no one suggested that either the House or the Senate

envisioned any broader regulatory mandate than that

federal agencies may not license discharges of pollutants

into the navigable waters without state certification.

For present purposes, though, the point is not that

section 401 should be limited to discharges of pollutants in

order to comport with this drafting history. Rather, the

simpler point is that, however one parses this history, one

certainly finds no support for reading the term “discharge

into” so broadly as to include an activity that adds nothing

at all to the waters.

CONCLUSION

The Clean Water Act unambiguously requires, at the

very least, that something be added into the navigable

waters from a point source before one can begin to say that

there is any discharge into the waters under section 401.

The language of the statute does not specify with equal

clarity what it is that needs to be added to the waters in

order to have a discharge into the waters. Canons of

statutory interpretation counsel that the substance added

must be something like a pollutant, although the use of

the word “includes” in the definition of “discharge” implies

that what must be added need not actually be a pollutant.

But the legislative history and the language of section

511(cX2) suggest the contrary, indicating that Congress

actually presumed that it would be a pollutant.

What is nevertheless clear, though, is that the mere

flow of the river itself through the dam does not constitute

a discharge into the river of anything at all. For this

simple reason alone, the decision of the SJC should be

reversed.

Respectfully submitted,

WILLIAM J. KAYATTA, JR.

MATTHEW D. MANAHAN

(Counsel of Record)

NICHOLAS D. LIVESAY

PIERCE ATWOOD LLP

One Monument Square

Portland, ME 04101

(207) 791-1100

Counsel for Petitioner

S.D. Warren Company

A-l

APPENDIX:

STATUTORY PROVISIONS INVOLVED

Clean Water Act

33 U.S.C. § 1314. Information and guidelines

(f) Identification and evaluation of nonpoint

sources of pollution; processes, procedures, and

methods to control pollution

The Administrator, after consultation with appropri- .

ate Federal and State agencies and other interested

persons, shall issue to appropriate Federal agencies,

the States, water pollution control agencies, and

agencies designated under section 1288 of this title,

within one year after October 18, 1972 (and from time

to time thereafter) information including

(1) guidelines for identifying and evaluating

the nature and extent of nonpoint sources of pol-

lutants, and

(2) processes, procedures, and methods to con- |

trol pollution resulting from —

(A) agricultural and silvicultural activi-

ties, including runoff from fields and crop

and forest lands;

(B) mining activities, including runoff and

siltation from new, currently operating, and

abandoned surface and underground mines;

off from the facilities resulting from such

construction; '

(D) the disposal of pollutants in wells or in

subsurface excavations;

A-2

(E) salt water intrusion resulting from re-

ductions of fresh water flow from any cause,

including extraction of ground water, irriga-

tion, obstruction, and diversion; and

(F) changes in the movement, flow, or cir-

culation of any navigable waters or ground

waters, including changes caused by the

construction of dams, levees, channels,

causeways, or flow diversion facilities.

Such information and revisions thereof shall be pub-

lished in the Federal -Register and otherwise made

available to the public.

33 U.S.C. § 13841. Certification

(a) Compliance with applicable requirements;

application; procedures; license suspension

(1) Any applicant for a Federal license or per-

mit to conduct any activity including, but not

limited to, the construction or operation of facili-

ties, which may result in any discharge into the

navigable waters, shall provide the licensing or

permitting agency a certification from the State

in which the discharge originates or will origi-

nate, or, if appropriate, from the interstate water

pollution control agency having jurisdiction over

the navigable waters at the point where the dis-

charge originates or will originate, that any such

discharge will comply with the applicable provi-

sions of sections 1311, 1312, 1313, 1316, and

1317 of this title. In the case of any such activity

for which there is not an applicable effluent limi-

tation or other limitation under sections 1311(b)

A-3

and 1312 of this title, and there is not an appli-

cable standard under sections 1316 and 1317 of

this title, the State shall so certify, except that

any such certification shall not be deemed to sat-

isfy section 1371(c) of this title. Such State or in-

terstate agency shall establish procedures for

public notice in the case of all applications for

certification by it and, to the extent it deems ap-

propriate, procedures for public hearings in con-

nection with specific applications. In any case

where a State or interstate agency has no au-

thority to give such a certification, such certifica-

tion shall be from the Administrator. If the State,

interstate agency, or Administrator, as the case

may be, fails or refuses to act on a request for

certification, within a reasonable period of time

(which shall not exceed one year) after receipt of

such request, the certification requirements of

this subsection shall be waived with respect to

such Federal application. No license or permit

shall be granted until the certification required

by this section has been obtained or has been

waived as provided in the preceding sentence. No

license or permit shall be granted if certification

has been denied by the State, interstate agency,

or the Administrator, as the case may be.

(2) Upon receipt of such application and certifi-

cation the licensing or permitting agency shall

immediately notify the Administrator of such ap-

plication and certification. Whenever such a dis-

charge may affect, as determined by the

Administrator, the quality of the waters of any

other State, the Administrator within thirty days

of the date of notice of application for such Fed-

eral license or permit shall so notify such other

State, the licensing or permitting agency, and the

applicant. If, within sixty days after receipt of

A-4

such notification, such other State determines

that such discharge will affect the quality of its

waters sé as to violate any water quality re-

quirements in such State, and within such sixty-

day period notifies the Administrator and the li-

censing or permitting agency in writing of its ob-

jection to the issuance of such license or permit

and requests a public hearing on such objection,

the licensing or permitting agency shall hold

such a hearing. The Administrator shall at such

hearing submit his evaluation and recommenda-

tions with respect to any such objection to the li-

censing or permitting agency. Such agency, based

upon the recommendations of such State, the

Administrator, and upon any additional evi-

dence, if any, presented to the agency at the

hearing, shall condition such license or permit in

such manner as may be necessary to insure com-

pliance with applicable water quality require-

ments. If the imposition of conditions cannot

insure such compliance such agency shall not is-

sue such license or permit.

(3) The certification obtained pursuant to para-

graph (1) of this subsection with respect to the

construction of any facility shall fulfill the re-

quirements of this subsection with respect to cer-

tification in connection with any other Federal

license or permit required for the operation of

such facility unless, after notice to the certifying

State, agency, or Administrator, as the case may

be, which shall be given by the Federal agency to

whom application is made for such operating li-

cense or permit, the State, or if appropriate, the

interstate agency or the Administrator, notifies

such agency within sixty days after receipt of

such notice that there is no longer reasonable as-

surance that there will be compliance with the

A-5

applicable provisions of sections 1311, 1312,

1313, 1316, and 1317 of this title because of

changes since the construction license or permit

certification was issued in

(A) the construction or operation of the fa-

cility,

(B) the characteristics of the waters into

which such discharge is made,

such waters or

(D) applicable effluent limitations or other

requirements. This paragraph shall be in-

applicable in any case where the applicant

for such operating license or permit has

failed to provide the certifying State, or, if

appropriate, the interstate agency or the

Administrator, with notice of any proposed

changes in the construction or operation of

the facility with respect to which a construc-

tion license or permit has been granted,

which changes may result in violation of sec-

tion 1311, 1312, 1313, 1316, or 1317 of this

title.

(4) Prior to the initial operation of any federally

licensed or permitted facility or activity which

may result in any discharge into the navigable

waters and with respect to which a certification

has been obtained pursuant to paragraph (1) of

this subsection, which facility or activity is not

subject to a Federal operating licens. or permit,

the licensee or permittee shall provide an oppor-

tunity for such certifying State, or, if appropriate,

the interstate agency or the Administrator to re-

view the manner in which the facility or activity

shall be operated or conducted for the purposes of

A-6

assuring that applicable effluent limitations or

other limitations or other applicable water qual-

ity requirements will not be violated. Upon noti-

fication by the certifying State, or if appropriate,

the interstate agency or the Administrator that

the operation of any such federally licensed or

permitted facility or activity will violate applica-

ble effluent limitations or other limitations or

other water quality requirements such Federal

agency may, after public hearing, suspend such

license or permit. If such license or permit is

suspended, it shall remain suspended until noti-

fication is received from the certifying State,

agency, or Administrator, as the case may be,

that there is reasonable assurance that such fa-

cility or activity will not violate the applicable

provisions of section 1311, 1312, 1313, 1316, or

1317 of this title.

(5) Any Federal license or permit with respect

to which a certification has been obtained under

paragraph (1) of this subsection may be sus-

pended or revoked by the Federal agency issuing

such license or permit upon the entering of a

judgment under this chapter that such facility or

activity has been operated in violation of the ap-

plicable provisions of section 1311, 1312, 1313,

1316, or 1317 of this title.

(6) Except with respect to a permit issued un-

der section 1342 of this title, in any case where

actual construction of a facility has been lawfully

commenced prior to April 3, 1970, no certification

shall be required under this subsection for a li-

cense or permit issued after April 3, 1970, to op-

erate such facility, except that any such license

or permit issued without certification shall ter-

minate April 3, 1973, unless prior to such termi-

nation date the person having such license or

A-7

permit submits to the Federal agency which is-

sued such license or permit a certification and

otherwise meets the requirements of this section.

(b) Compliance with other provisions of law

setting applicable water quality requirements

Nothing in this section shall be construed to limit the

authority of any department or agency pursuant to

any other provision of law to require compliance with

any applicable water quality requirements. The Ad-

ministrator shall, upon the request of any Federal de-

partment or agency, or State or interstate agency, or

applicant, provide, for the purpose of this section, any

relevant information on applicable effluent limita-

tions, or other limitations, standards, regulations, or

requirements, or water quality criteria, and shall,

when requested by any such department or agency or

State or interstate agency, or applicant, comment on

any methods to comply with such limitations, stan-

dards, regulations, requirements, or criteria.

mit use of spoil disposal areas by Federal licen-

sees or permittees

In order to implement the provisions of this section,

the Secretary of the Army, acting through the Chief of

Engineers, is authorized, if he deems it to be in the

public interest, to permit the use of spoil disposal ar-

eas under his jurisdiction by Federal licensees or

permittees, and to make an appropriate charge for

such use. Moneys received from such licensees or

permittees shali be deposited in the Treasury as mis-

cellaneous receipts.

A-8

(d) Limitations and monitoring requirements

of certification

Any certification provided under this section 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 any applicable effluent limitations and

other limitations, under section 1311 or 1312 of this

title, standard of performance under section 1316 of

this title, or prohibition, effluent standard, or pre-

treatment standard under section 1317 of this title,

and with any other appropriate requirement of State

law set forth in such certification, and shall become a

condition on any Federal license or permit subject to

the provisions of this section.

33 U.S.C. § 1342. National pollutant discharge elimina-

tion system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and

1344 of this title, the Administrator may, after

opportunity for public hearing issue a permit for

the discharge of any pollutant, or combination of

pollutants, notwithstanding section 131l(a) of

this title, upon condition that such discharge will

meet either

(A) all applicable requirements under sec-

tions 1311, 1312, 1316, 1317, 1318, and 1343

of this title, or

(B) prior to the taking of necessary imple-

menting actions relating to all such require-

ments, such conditions as the Administrator

A-9

determines are necessary to carry out the

provisions of this chapter.

(2) The Administrator shall prescribe con-

ditions for such permits to assure compli-

ance with the requirements of paragraph (1)

of this subsection, including conditions on

data and information collection, reporting,

and such other requirements as he deems

appropriate.

(3) The permit program of the Administrator

under paragraph (1) of this subsection, and per-

mits issued thereunder, shall be subject to the

same terms, conditions, and requirements as ap-

ply to a State permit program and permits issued

thereunder under subsection (b) of this section.

(4) All permits for discharges into the naviga-

ble waters issued pursuant to section 407 of this

title shall be deemed to be permits issued under

this subchapter, and permits issued under this

subchapter shall be deemed to be permits issued

under section 407 of this title, and shall continue

in force and effect for their term unless revoked,

modified, or suspended in accordance with the

provisions of this chapter.

(6) No permit for a discharge into the navigable

waters shall be issued under section 407 of this

title after October 18, 1972. Each application for

a permit under section 407 of this title, pending

on October 18, 1972, shall be deemed to be an

application for a permit under this section. The

Administrator shall authorize a State, which he

determines has the capability of administering a

permit program which will carry out the objectives

of this chapter to issue permits for discharges into

the navigable waters within the jurisdiction of

A-10

such State. The Administrator may exercise the

authority granted him by the preceding sentence

only during the period which begins on October

18, 1972, and ends either on the ninetieth day af-

ter the date of the first promulgation of guide-

lines required by section 1314(i)(2) of this title, or

the date of approval by the Administrator of a

permit program for such State under subsection

(b) of this section, whichever date first occurs,

and no such authorization to a State shall extend

beyond the last day of such period. Each such

permit shall be subject to such cond .ons as the

Administrator determines are necessary to carry

out the provisions of this chapter. No such permit

shall issue if the Administrator objects to such

issuance.

(b) State permit programs

At any time after the promulgation of the guidelines

required by subsection (i)(2) of section 1314 of this ti-

tle, the Governor of each State desiring to administer

its own permit program for discharges into navigable

waters within its jurisdiction may submit to the Ad-

ministrator a full and complete description of the pro-

gram it proposes to establish and administer under

State law or under an interstate compact. In addition,

such State shall submit a statement from the attor-

ney general (or the attorney for those State water pol-

lution control agencies which have independent legal

counsel), or from the chief legal officer in the case of an

interstate agency, that the laws of such State, or the in-

terstate compact, as the case may be, provide adequate

authority to carry out the described program. The Ad-

ministrator shall approve each submitted program

unless he determines that adequate authority does

not exist: ;

(1) To issue permits which —

(2)

(3)

A-11

(A) apply, and insure compliance with, any

applicable requirements of sections 1311,

1312, 1316, 1317, anu 1343 of this title;

(B) are for fixed terms not exceeding five

years; and

cause including, but not limited to, the fol-

lowing:

(i) violation of any condition of the

permit;

(ii) obtaining a permit by misrepre-

sentation, or failure to disclose fully all

relevant facts;

(iii) change in any condition that re-

quires either a temporary or permanent:

reduction or elimination of the permit-

ted discharge;

(D) control the disposal of pollutants into

wells;

(A) To issue permits which apply, and in-

sure compliance with, all applicable re-

quirements of section 1318 of this title; or

(B) To inspect, monitor, enter, and require

reports to at least the same extent as re-

quired in section 1318 of this title;

To insure that the public, and any other

State the waters of which may be affected, re-

ceive notice of each application for a permit and

to provide an opportunity for public hearing be-

fore a ruling on each such application;

A-12

(4) To insure that the Administrator receives

notice of each application (including a copy

thereof) for a permit;

(5) To insure that any State (other than the

permitting State), whose waters may be affected

by the issuance of a permit may submit written

recommendations to the permitting State (and

the Administrator) with respect to any permit

application and, if any part of such written rec-

ommendations are not accepted by the permit-

ting State, that the permitting State will notify

such affected State (and the Administrator) in

writing of its failure to so accept such recom-

mendations together with its reasons for so do-

ing;

(6) To insure that no permit will be issued if, in

the judgment of the Secretary of the Army acting

through the Chief-of Engineers, after consulta-

tion with the Secretary of the department in

which the Coast Guard is operating, anchorage

and navigation of any of the navigable waters

would be substantially impaired thereby;

(7) To abate violations of the permit or the

permit program, including civil and criminal

penalties and other ways and means of enforce-

ment;

(8) To insure that any permit for a discharge

from a publicly owned treatment works includes

conditions to require the identification in terms

of character and volume of pollutants of any sig-

nificant source introducing pollutants subject to

pretreatment standards under section 1317(b) of

this title into such works and a program to assure

compliance with such pretreatment standards by

A-13

each such source, in addition to adequate notice

to the permitting agency of

(A) new introductions into such works of

pollutants from any source which would be a

new source as defined in section 1316 of this

title if such source were discharging pollut-

ants,

(B) new introductions of pollutants into

such works from a source which would be

subject to section 1311 of this title if it were

discharging such pollutants, or

character of pollutants being introduced into

such works by a source introducing pollut-

ants into such works at the time of issuance

of the permit. Such notice shall include in-

formation on the quality and quantity of ef-

fluent to be introduced into such treatment

works and any anticipated impact of such

change in the quantity or quality of effluent

to be discharged from such publicly owned

treatment works; and

(9) To insure that any industrial user of any

publicly owned treatment works will comply with

sections 1284(b), 1317, and 1318 of this title.

mission of State program; withdrawal of approval

of State program; return of State program to Ad-

ministrator

(1) Not later than ninety days after the date on

which a State has submitted a program (or revi-

sion thereof) pursuant to subsection (b) of this

section, the Administrator shall suspend the is-

suance of permits under subsection (a) of this

A-14

section as to those discharges subject to such

program unless he determines that the State

permit program does not meet the requirements

of subsection (b) of this section or does not con-

form to the guidelines issued under section

1314(i)(2) of this title. If the Administrator so de-

termines, he shall notify the State of any revi-

sions or modifications necessary to conform to

such requirements or guidelines.

(2) Any State permit program under this sec-

tion shall at all times be in accordance with this

section and guidelines promulgated pursuant to

section 1314(i)(2) of this title.

(3) Whenever the Administrator determines af-

ter public hearing that a State is not administer-

ing a program approved under this section in

accordance with requirements of this section, he

shall so notify the State and, if appropriate cor-

rective action is not taken within a reasonable

time, not to exceed ninety days, the Administra-

tor shall withdraw approval of such program.

The Administrator shall not withdraw approval

of any such program unless he shall first have

notified the State, and made public, in writing,

the reasons for such withdrawal.

(4) Limitations on partial permit program re-

turns and withdrawals. — A State may return to

the Administrator administration, and the Ad-

ministrator may withdraw under paragraph (3)

of this subsection approval, of —

(A) a State partial permit program ap-

proved under subsection (n)(3) of this section

only if the entire permit program being ad-

ministered by the State department or agency

at the time is returned or withdrawn; and ~

A-15

(B) a State partial permit program ap-

proved under subsection (n)(4) of this section

only if an entire phased component of the

permit program being administered by the

State at the time is returned or withdrawn.

(d) Notification of Administrator

(1) Each State shall transmit to the Adminis-

trator a copy of each permit application received

by such State and provide notice to the Adminis-

trator of every action related to the consideration

of such permit application, including each permit

proposed to be issued by such State.

(2) No permit shall issue

(A) if the Administrator within ninety

days of the date of his notification under

subsection (b)(5) of this section objects in

writing to the issuance of such permit, or

(B) if the Administrator within ninety

days of the date of transmittal of the pro-

posed permit by the State objects in writing

to the issuance of such permit as being out-

side the guidelines and requirements of this

chapter. Whenever the Administrator objects

to the issuance of a permit under this para-

graph such written objection shall contain a

statement of the reasons for such objection

and the effluent limitations and conditions

which such permit would include if it were

issued by the Administrator.

(3) The Administrator may, as to any permit

application, waive paragraph (2) of this subsec-

tion.

(4) In any case where, after December 27, 1977,

the Administrator, pursuant to paragraph (2) of

A-16

this subsection, objects to the issuance of a per-

mit, on request of the State, a public hearing

shall be held by the Administrator on such objec-

tion. If the State does not resubmit such permit

revised to meet such objection within 30 days af-

ter completion of the hearing, or, if-no hearing is

requested within 90 days after the date of such

objection, the Administrator may issue the per-

mit pursuant to subsection (a) of this section for

such source in accordance with the guidelines

and requirements of this chapter.

(e) Waiver of notification requirement

In accordance with guidelines promulgated pursuant

to subsection (i)(2) of section 1314 of this title, the

Administrator is authorized to waive the require-

ments of subsection (d) of this section at the time he

approves a program pursuant to subsection (b) of this

section for any category (including any class, type, or

size within such category) of point sources within the

State submitting such program.

(f) Point source categories

The Administrator shall promulgate regulations es-

tablishing categories of point sources which he deter-

mines shall not be subject to the requirements of

subsection (d) of this section in any State with a pro-

gram approved pursuant to subsection (b) of this sec-

tion. The Administrator may distinguish among

classes, types, and sizes within any category of point

sources.

(g) Other regulations for safe transportation,

handling, carriage, storage, and stowage of pol-

lutants

Any permit issued under this section for the dis-

charge of pollutants into the navigable waters from a

A-17

vessel or other floating craft shall be subject to any

applicable regulations promulgated by the Secretary

of the department in which the Coast Guard is oper-

ating, establishing specifications for safe transporta-

tion, handling, carriage, storage, and stowage of

pollutants.

(h) Violation of permit conditions; restriction

or prohibition upon introduction of pollutant

by source not previously utilizing treatment

works

In the event any condition of a permit for discharges

from a treatment works (as defined in section 1292 of

this title) which is publicly owned is violated, a State

with a program approved under subsection (b) of this

section or the Administrator, where no State program

is approved or where the Administrator determines

pursuant to section 1319(a) of this title that a State

with an approved program has not commenced ap-

propriate enforcement action with respect to such

permit, may proceed in a court of competent jurisdic-

tion to restrict or prohibit the introduction of any pol-

lutant into such treatment works by a source not

utilizing such treatment works prior to the finding

that such condition was violated.

(i) Federal enforcement not limited

Nothing in this section shall be construed to limit the

authority of the Administrator to take action pursu-

ant to section 1319 of this title.

(j) Public information

A copy of each permit application and each permit is-

sued under this section shall be available to the pub-

lic. Such permit application or permit, or portion

thereof, shall further be available on request for the

purpose of reproduction.

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(k) Compliance with permits

Compliance with a permit issued pursuant to this sec-

tion shall be deemed compliance, for purposes of sec-

tions 1319 and 1365 of this title, with sections 1311,

1312, 1316, 1317, and 1343 of this title, except any

standard imposed under section 1317 of this title for a

toxic pollutant injurious to human health. Until De-

cember 31, 1974, in any case where a permit for dis-

charge has been applied for pursuant to this section,

but final administrative disposition of such applica-

tion has not been made, such discharge shall not be a

violation of

(1) section 1311, 1316, or 1342 of this title, or

(2) section 407 of this title, unless the Adminis-

trator or other plaintiff proves that final admin-

istrative disposition of such application has not

been made because of the failure of the applicant

‘o furnish information reasonably required or re-

quested in order to process the application. For

the 180-day period beginning on October 18,

1972, in the case of any point source discharging

any pollutant or combination of pollutants im-

mediately prior to such date which source is not

subject to section 407 of this title, the discharge

by such source shall not be a violation of this

chapter if such a source applies for a permit for

discharge pursuant to this section within such

180-day period.

() Limitation on permit requirement

(1) Agricultural return flows

The Administrator shal] not require a permit un-

der this section for discharges composed entirely

of return flows from irrigated agriculture, nor

A-19

shall the Administrator directly or indirectly, re-

quire any State to require such a permit.

(2) Stormwater runoff from oil, gas, and mining

operations

The Administrator shall not require a permit un-

der this section, nor shall the Administrator di-

rectly or indirectly require any State to require a

permit, for discharges of stormwatei runoff from

mining operations or oil and gas exploration,

production, processing, or treatment operations

or transmission facilities, composed entirely of

flows which are from conveyances or systems of

conveyances (including but not limited to pipes,

conduits, ditches, and channels) used for collect-

ing and conveying precipitation runoff and which

are not contaminated by contact with, or do not

come into contact with, any overburden, raw ma-

terial, intermediate products, finished product,

byproduct, or waste products located on the site

of such operations.

(m) Additional pretreatment of conventional

pollutants not required

To the extent a treatment works (as defined in section

1292 of this title) which is publicly owned is not meet-

ing the requirements of a permit issued under this sec-

tion for such treatment works as a result of inadequate

design or operation of such treatment works, the Ad-

ministrator, in issuing a permit under this section,

shall not require pretreatment by a person introducing

conventional pollutants identified pursuant to section

1314(a)(4) of this title into such treatment works other

than pretreatment required to assure compliance with

pretreatment standards under subsection (b)(8) of this

section and section 1317(b)(1) of this title. Nothing

in this subsection shall affect the Administrator’s

A-20

authority under sections 1317 and 1319 of this title,

affect State and local authority under sections

1317(bX4) and 1370 of this title, relieve such treat-

ment works of its obligations to meet requirements

established under this chapter, or otherwise preclude

such works from pursuing whatever feasible options

are available to meet its responsibility to comply with

its permit under this section.

(n)

Partial permit program

(1) State submission

The Governor of a State may submit under sub-

section (b) of this section a permit program for a

portion of the discharges into the navigable wa-

ters in such State.

(2) Minimum coverage

A partial permit program under this subsection

shall cover, at a minimum, administration of a

major category of the discharges into the naviga-

ble waters of the State or a major component of

the permit program required by subsection (b) of

this section.

(3) Approval of major category partial permit

programs

The Administrator may approve a partial permit

program covering administration of a major cate-

gory of discharges under this subsection if —

(A) such program represents a complete

permit program and covers all of the dis-

charges under the jurisdiction of a depart-

ment or agency of the State; and

(B) the Administratur determines that the

“partial program represents a significant and

(o)

A-21

identifiable part of the State program re-

quired by subsection (b) of this section.

(4) Approval of major component partial permit

programs

The Administrator may approve under this sub-

section a partial and phased permit program

covering administration of a major component

(including discharge categories) of a State permit

program required by subsection (b) of this section

if —

(A) the Administrator determines that the

partial program represents a signifi:ant and

identifiable part of the State program re-

quired by subsection (b) of this section; and

(B) the State submits, and the Administra-

tor approves, a plan for the State to assume

administration by phases of the remainder

of the State program required by subsection

(b) of this section by a specified date not

more than 5 years after submission of the

partial program under this subsection and

agrees to make all reasonable efforts to as-

sume such administration by such date.

Anti-backsliding

(1) General prohibition

In the case of effluent limitations established on

the basis of subsection (a)(1)(B) of this section, a

permit may not be renewed, reissued, or modified

on the basis of effluent guidelines promulgated

under section 1314(b) of this title subsequent to

the original issuance of such permit, to contain

effluent limitations which are less stringent than

the comparable effluent limitations in the previ-

ous permit. In the case of effluent limitations

A-22

established on the basis of section 1311(b)(1)(C)

or section 1313(d) or (e) of this title, a permit

may not be renewed, reissued, or modified to con-

tain effluent limitations which are less stringent

than the comparable effluent limitations in the

previous permit-except in compliance with sec-

tion 1313(d)(4) of this title.

(2) &xceptions

A permit with respect to which paragraph (1) ap-

plies may be renewed, reissued, or modified to

contain a less stringent effluent limitation appli-

cable to a pollutant if -

(A) material and substantial alterations or

additions to the permitted facility occurred

after permit issuance which justify the ap-

plication of a less stringent effluent limita-

tion;

(B)

(i) information is available which was

not available at the time of permit issu-

ance (other than revised regulations,

guidance, or test methods) and which

would have justified the application of a

less stringent effluent limitation at the

time of permit issuance; or

(ii) the Administrator determines that

technical mistakes or mistaken inter-

pretations of law were made in issuing

the permit under subsection (a)(1)B) of

this section;

necessary because of events over which the

permittee has no control and for which there

is no reasonably available remedy;

(3)

A-23

(D) the permittee has received a permit

modification under section 1311(c), 1311(g),

1311(h), 1311), 1311(k), 1311(n), or 1326(a)

of this title; or

(2) the permittee has installed the treat-

ment facilities required to meet the effluent

limitations in the previous permit and has

properly operated and maintained the facili-

ties but has nevertheless been unable to

achieve the previous effluent limitations, in

which case the limitations in the reviewed,

reissued, or modified permit may reflect the

level of poliutant control actually achieved

(but shall not be less stringent than re-

quired by effluent guidelines in effect at the

time of permit renewal, reissuance, or modi-

fication).

Subparagraph (B) shall not apply to any re-

vised waste load allocations or any alterna-

tive grounds for translating water quality

standards into effluent limitations, except

where the cumulative effect of such revised

allocations results in a decrease in the

amount of pollutants discharged into the

concerned waters, and such revised alloca-

tions are not the result of a discharger

eliminating or substantially reducing its

discharge of pollutants duc to complying

with the requirements of this chapter or for

reasons otherwise unrelated to water qual-

ity.

Limitations

In no event may a permit with respect to which

paragraph (1) applies be renewed, reissued, or

modified to contain an effluent limitation which

A-24

is less stringent than required by effluent guide-

lines in effect at the time the permit is renewed,

reissued, or modified. In no event may such a

permit to discharge into waters be renewed, reis-

sued, or modified to contain a less stringent ef-

fluent limitation if the implementation of such

limitation would result in a violation of a water

quality standard under section 1313 of this title

applicable to such waters.

(p) Municipal and industrial stormwater dis-

charges

(1) General rule

Prior to October 1, 1994, the Administrator or the

State (in the case of a permit program approved

under this section) shall not require a permit under

this section for discharges composed entirely of

stormwater.

(2) Exceptions

Paragraph (1) shall not apply with respect to the

following stormwater discharges:

(A) A discharge with respect to which a

permit has been issued under this section

before February 4, 1987.

(B) A discharge associated with industrial

activity.

storm sewer system serving a population of

250,000 or more.

(D) A discharge from a municipal separate

storm sewer system serving a population of

100,000 or more but less than 250,000.

A-25

(E) A discharge for which the Administra-

tor or the State, as the case may be, deter-

mines that the stormwater discharge

contributes to a violation of a water quality

standard or is a significant contributor of

pollutants to waters of the United States.

(3) Permit requirements

(A) Industrial discharges

Permits for discharges associated with in-

dustrial activity shall meet all applicable

provisions of this section and section 1311 of

this title.

(B) Municipal discharge

Permits for discharges from municipal storm

sewers —

(i) may be issued on a system- or ju-

risdiction-wide basis;

(ii) shall include a requirement to ef-

fectively prohibit non-stormwater dis-

charges into the storm sewers; and

(iii) shall require controls to reduce

the discharge of pollutants to the

maximum extent practicable, including

management practices, control tech-

niques and system, design and engi-

neering methods, and such other

provisions as the Administrator or the

State determines appropriate for the

control of such pollutants.

(4) Permit application requirements

(A) Industrial and large municipal dis-

charges

A-26

Not later than 2 years after February 4,

1987, the Administrator shall establish

regulations setting forth-the permit applica-

tion requirements for stormwater discharges

described in paragraphs (2)(B) and (2)(C).

Applications for permits for such discharges

shall be filed no later than 3 years after

February 4, 1987. Not later than 4 years af-

ter February 4, 1987, the Administrator or

the State, as the case may be, shall issue or

deny each such permit. Any such permit

shall provide for compliance as expeditiously

as practicable, but in no event later than 3

years after the date of issuance of such per-

mit.

(B) Other municipal discharges

Not later than 4 years after February 4,

1987, the Administrator shall establish

regulations setting forth the permit applica-

tion requirements for stormwater discharges

described in paragraph (2)(D). Applications

for permits for such discharges shall be filed

no later than 5 years after February 4, 1987.

Not later than 6 years after February 4,

1987, the Administrator or the State, as the

case may be, shall issue or deny each such

permit. Any such permit shall provide for

compliance as expeditiously as practicable,

but in no event later than 3 years after the

date of issuance of such permit.

(5) Studies

The Administrator, in consultation with the

States, shall conduct a study for the purposes of —

(A) identifying those stormwater dis-

charges or classes of stormweter discharges

A-27

for which permits are not required pursuant

to paragraphs (1) and (2) of this subsection;

(B) determining, to the maximum extent

practicable, the nature and extent of pollut-

ants in such discharges; and

to control stormwater discharges to the ex-

tent necessary to mitigate impacts on water

quality.

Not later than October 1, 1988, the Adminis-

trator shall submit to Congress a report on

the results of the study described in sub-

paragraphs (A) and (B). Not later than Oc-

tober 1, 1989, the Administrator shall

submit to Congress a report on the results of

the study described in subparagraph (C).

(6) Regulations

Not later than October 1, 1993, the Administra-

tor, in consultation with State and local officials,

shall issue regulations (based on the results of

the studies conducted under paragraph (5))

which designate stormwater discharges, other

than those discharges described in paragraph (2),

to be regulated to protect water quality and shall

establish a comprehensive program to regulate

such designated sources. The program shall, at a

minimum,

(A) establish priorities,

(B) establish requirements for State storm-

water management programs, and

program may include performance standards,

A-28

guidelines, guidance, and management prac-

tices and treatment requirements, as appro-

priate.

(q) Combined sewer overflows

(1) Requirement for permits, orders, and de-

crees

Each permit, order, or decree issued pursu-

ant to this chapter after December 21, 2000,

for a discharge from a municipal combined

storm and sanitary sewer shall conform to

the Combined Sewer Overflow Control Pol-

icy signed by the Administrator on April 11,

1994 (in this subsection referred to as the

“CSO control policy”).

(2) Water quality and designated use review

guidance

Not later than July 31, 2001, and after providing

notice and opportunity for public comment, the

Administrator shall issue guidance to facilitate

the conduct of water quality and designated use

reviews for municipal combined sewer overflow

receiving waters.

(3) Report

Not later than September 1, 2001, the Adminis-

trator shall transmit to Congress a report on the

progress made by the Environmental Protection

Agency, States, and municipalities in implement-

ing and enforcing the CSO control policy.

A-29

33 U.S.C. § 1362. Definitions

Except as otherwise specifically provided, when used

in this chapter:

(7) The term “navigable waters” means the wa-

ters of the United States, including the territo-

rial seas.

33 U.S.C. § 1371. Authority under other laws and

regulations

Federal action; construction of the National

Environmental Policy Act of 1969

(1) Except for the provision of Federal financial

assistance for the purpose of assisting the con-

struction of publicly owned treatment works as

authorized by section 1281 of this title, and the

issuance of a permit under section 1342 of this ti-

tle for the discharge of any pollutant by a new

source as defined in section 1316 of this title, no

action of the Administrator taken pursuant to

this chapter shall be deemed a major Federal ac-

tion significantly affecting the quality of the hu-

man environment within the meaning of the

National Environmental Policy Act of 1969 (83

Stat. 852) [42 U.S.C. 4321 et seq.]; and

A-30

(2) Nothing in the National Environmental Pol-

icy Act of 1969 (83 Stat. 852) shall be deemed to —

(A) authorize any Federal agency author-

ized to license or permit the conduct of any

activity which may result in the discharge of

a pollutant into the navigable waters to re-

view any effluent limitation or other re-

quirement established pursuant to this

chapter or the adequacy of any certification

under section 1341 of this title; or

(B) authorize any such agency to impose,

as a condition precedent to the issuance of

any license or permit, any effluent limita-

tion other than any such limitation estab-

lished pursuant to this chapter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.