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

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No. 04-1527 i

In the Supreme Court of the United States

S.D. WARREN COMPANY, PETITIONER

MAINE BOARD OF ENVIRONMENTAL PROTECTION

ON WRIT OF CERTIORARI

TO THE SUPREME Ji/DICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

. SUE ELLEN WOOLDRIDGE

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

GREER S. GOLDMAN

ELLEN J. DURKEE

JOHN L. SMELTZER

ANN R. KLEE

General Counsel Attorneys

Environmental Protection Department of Justice

Agency Washington, D.C. 20530-0001

Washington, D.C. 20460 (202) 514-2217

QUESTION PRESENTED

Section 401(a)(1) of the Clean Water Act, 33 U.S.C.

1341(a)(1), provides that an applicant for a federal license to

conduct any activity “which may result in any discharge into

the navigable waters” must obtain a certification from the

State in which the discharge originates stating that the

discharge will comply with applicable provisions of the Act

and other appropriate requirements of state law. The

question presented is whether petitioner’s operation of its

hydroelectric facilities, which are subject to Federal Energy

Regulatory Commission licensing requirements under Section

4(e) of the Federal Power Act, see 16 U.S.C. 797(e), may

result in a “discharge into the navigable waters” within the

meaning of Section 401(a) of the Clean Water Act.

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TABLE OF CONTENTS

Page

Interest of the United States ................0-20eeeeeeee 1

PEE dc técichdeatbdepidasees Hebectnndswentiesssse 2

A. FERC licensing requirements ..................... 2

is EE SUITED «sav ccc'ctcccvedevesesesecctes 4

C. The proceedings in this case .............2.00.eeeee 7

Summary of argument .............ccseccccccecccvceses 10

Argument:

Petitioner’s operation of its hydroelectric facilities

results in a “discharge into the navigable waters” for

purposes of Section 401(a) of the Clean Water Act ...... 11

A. The term “discharge” in Section 401(a) should be

interpreted in light of its ordinary meaning ........ 12

B. The ordinary meaning of discharge—“a flowing or

issuing out”—encompasses a hydroelectric

facility’s release of diverted water to a river

| Se Tae EEE AEE ere ie eked eunkecar 13

C. The term “discharge” does not require an

FEE nc. dint cheeend a eds eanhaasshs seu Kece ees 15

D. This Court’s decisions support interpreting the

term “discharge” according to its ordinary

EE hc ccccdntkédntndddseceiqetaeetwonsccese 23

E. The Clean Water Act’s purpose and legislative

history support the conclusion that petitioner’s

facilities result in a “discharge into the navigable

ET. urseouaushdeneeen 6v-ursdenensensdecccesss 25

ES YNTITTTALITIT ITIL TILLPT LLL LTA LELEL EL 30

TABLE OF AUTHORITIES

Cases:

Alabama Rivers Alliance «. FERC, 325 F.3d 290

EE kindnscsqksbdbeonustebeeaues rinses 26

Cases—Continued: Page

American Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir.

TUED enusuciinisds dieasnouasbebndasieseneeee 26

Arizona v. California, 373 U.S. 546 (1963) ............ 14

Barnhart v. Walton, 535 U.S. 212 (2002) .............. 22

Bates v. United States, 522 U.S. 23 (1997) ............. 21

California v. FERC, 495 U.S. 490 (1990) .............-. 26

Catskill Mountains Chapter of Trout Unlimited, Inc.

v. New York, 273 F.3d 481 (2d Cir. 2001) ..... Sudeune 24

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

GREE sovedccusccukesvatacsssieesetennan 13, 21

EPA v. California ex rel. State Water Res. Control

Bd., 426 U.S. 200 (1976) ...............: hs Genet 3, 4, 5, 19

Escondido Mut. Water Co. v. La Jolla Band of

Mission Indians, 466 U.S. 765 (1984) ............... 3

FDIC v. Meyer, 510 U.S. 47 (1994) .............2.. 13, 18

First Iowa Hydro-Elec. Coop. v. FPC,

SE UE Be 0 vevindacncevidenssicenncesebuee 26

Helvering v. Morgan’s Inc., 293 U.S. 121 (1934) ........ 13

National Wildlife Fed’n v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988) .................... 16, 17

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

GE GE 6c b04 ba seactodeneseusscanas 17, 24, 26 -

North Carolina v. FERC, 112 F.3d 1175

GED. GR BE ns 0 vdnnkacechacédadscevedsncnsel 18, 22

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ...... 21

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

Sot RR er rn 6, 11, 14, 21, 23

Cases—Continued: Page

S.D. Warren Co.:

105 F.E.R.C. 9 61,009-61,013 (Oct. 2, 2003) ........... 4

105 F.E.R.C. 161,011 (Oct. 2,2003) ................. 7

105 F.E.R.C. 1 61,013 (Oct. 2, 2008) ................. 9

105 F.E.R.C. 9 61,087 (Jan. 29, 2004) ................ 9

S.D. Warren Co. v. Federal Energy Regulatory

Comm'n, No. 04-1105 (D.C. Cir. May 6, 2005) ......... 9

Solid Waste Agency v. United States Army Corps

of Eng’rs, 581 U.S. 159 (2001) ...... 6. ee eee eee eee 4

South Fla.Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004)... 0... eee eee 11, 23, 24

United States v. Arizona, 295 U.S. 174 (1935) .......... 14

United States v. James, 478 U.S. 597 (1986) ............ 14

Wyoming v. Colorado, 259 U.S. 419 (1922), modified,

260 U.S. 1 (1922), vacated, 353 U.S. 953 (1959) ....... 14

Statutes and regulations:

Clean Water Act, 33 U.S.C. 125l et seg. ......... passim

§ 101 (a), 33 U.S.C. 1251(a) 2.2... cece e cece ween 4,la

§ 101(a)(1), 33 U.S.C. 1251 (ay) .... 66... eee eee 4, 25

§ 101(b), 33 U.S.C. 1251(b) ..... 4, 5, 11, 15, 24, 25, 27, la

§ 101(d), 33 U.S.C. 1251(d) .... 22... ccc cece eee eee 2

TE ED 656.66006es cesdctmescececcceees 5

MED occcocccseeocsoeseceooes 6, 19, 20

$ 301(a), 38 U.S.C. 181 1a) ... 0... cece c ew eeee 4,19

§ 301(aX(2), 33 U.S.C. 1311(a)(2) .... 2. ee ee eee eee 19

$§ 301-302, 33 U.S.C. 1311-1312 ................0008- 4

TT cp ddiueedcéeuseesesesooenseess 6

§ 302(a)(9), 33 U.S.C. 1312(a(9) .... 6. ee eee ee eee 19

Statutes and regulations—Continued: Page

hi ilies cic nacénncoscesteuss 6, 27

§ 303(c)(2)(A), 33 U.S.C. 1313(e)(2M A) .............6. 6

ED ktidvudcdsboceesccedéncdeesosne 5

§ 304(f)(2)(C), 33 U.S.C. 1314(f)(2)(C) ..... 2.2.22... 27

§ 304(f)(2)(F), 33 U.S.C. 1314(f)(2)(F) ...... 22.2.2... 27

EE ie le oes asa needesctsnabont 6

$§ 306-307, 33 U.S.C. 1316-1317 ..................... 4

PRET navcdecccdcudscceenivepessiens 6

DEENEEEE actecnccecdeccecossedencs passim

§ 401(a), 338 U.S.C. 1341(a) ............ ee eee passim

§ 401(a)(1), 33 U.S.C. 1341(a)(1) ............. 2, 4, 10, 3a

DERE Be Ge FREES ccc ccciccccccccsccsccccss 2

§ 401(d), 33 U.S.C. 1341(d) ................. 6, 9, 14, 3a

SGR TBUBC. 19D 2... ccccsccccces 4, 5, 19, 20, 24, 25

SEP EIS EEE occcccccossdceccceces 19, 24

§ 402(b), 3B U.S.C. 1B4B(D) ... 0... cece cece ccc ccceee 5

ED i dcdbbedcuedepeccegdiendonn' 4,5

§ 404(a), 33 U.S.C. 1344(a) ...... 6c cece cece eee e eee i

§ 404(g)-(h), 33 U.S.C. 1344(g)-(h) .. 0... eee eee eee eee 5

a i a i veces dcchawenin 12

§ 502(6), 33 U.S.C. 1362(6) ............. cee eee 5, 12, 4a

§ 502(7), $338 U.S.C. 19GB(T) .... 2. cece cecees 12, 16, 21

§ 502(12), 33 U.S.C. 1362(12) .. 7, 10, 12, 13, 18, 20, 24, 4a

§ 502(14), 33 U.S.C. 1362(14) ............... eee eee 12

§ 502(16), 33 U.S.C. 13862(16) ........ cece ccccees 6, 8,

10, 11, 12, 19, 20, 4a

§ 502(19), 33 U.S.C. 1362(19) ........... 5, 15, 24, 26, 4a

VII

Statutes and regulations—Continued: Page

i Cs eg 5, 11, 26, 5a

§ 511(c)(2), 33 U.S.C. 1371(e)(2) ... 2.2... eee eee ee eee 27

Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat.

Dll todhckiphreatidinbpiiexsemmlaadshandieesent 27

I ide cine elie eee sie cebu hanes 28

Federal Power Act, ch. 285, 41 Stat. 1063 (16 U.S.C.

TED Kdncedsnebddinedeecatedbédekcsinesaes 1,2

is i ii a el ike ad we ill 2

ee eel ee eead 2,3

Pe TEE dnbscondcnnctsessstecapncssess 2,9

§ 10(a)(1), 16 U.S.C. 808(a)(1) 2... eee eee eee eee 3

I a 3

§ 23(b)(1), 16 U.S.C. 817(1) ............... pemacise 2

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 816 ................ 3

Federal Water Pollution Control Act of 1948, ch. 758,

62 Stat. 1155 (33 U.S.C. 466 et seg. (1964)) ............ 3

ee eo dc eoucuuee 4

§ 3, 33 U.S.C. 466a (Supp. V 1969) ................ 18

§ 10(b), 33 U.S.C. 466g(b)(Supp. V 1969) ............ 3

§ 10(c), 33 U.S.C. 466g(c) (Supp. V 1969) ............ 3

es CE ED cc dendkcaketcsseescooeds 19

§ 11(a)(2), 33 U.S.C. 1161(a)(2) (1970) ............. 19

lien cence kuccscndes 19

§ 13(a)(9), 33 U.S.C. 1163(a)(9) (1970) .............. 19

§ 21(b), 33 U.S.C. 1171(b) (1970) .... 2.2.2... 3, 4, 18, 28

National Environmental Policy Act, 42 U.S.C. 4321

WOE, 066800 6006600essedetsbieenesescocoseousees 27

VIII

Statutes and regulations—Continued: Page

Public Utility Act of 1935, ch. 687, § 210, 49 Stat. 846 ..... 2

Rivers and Harbors Appropriation Act of 1899,

ch. 425, § 10, 30 Stat. 1151 (33 U.S.C. 408) ............ 1

Water Quality Act of 1965, Pub. L. No. 89-234,

SEED cede tn nad cousin sehueendakeuns 6

Water Quality Improvement Act of 1970, Pub. L. No.

SOE 6006 cn ccédssviccscisocese 3

ED Soncccedsduescscedediundvseuscbesus 9

18 C.F.R.:

IED -ccccccccbusucedasstescdaeeodeees 7

IED ccc ctdccddccddceseceuawesusias 7

Eran oe Se eee ye MN ERO 7

IED cdnccvesccectacsénéccncteonsss 7

40 C.F.R.:

Pt. 122:

TE weve cccndhnencsandabneseeensbaenes 16

NN on oe is chbesembenwiunell 17

De undacdaleancseecdcbebesnstuaebsnetcaseceness 5

Pi iad dccccencocéadesvdevepnsedecoiguedsisoues 6

DEEP cvinedacchusddoseebasspenesenncotbenc 4

Miscellaneous:

115 Cong. Ree. 28,971 (1969) ........... SF ea 27

EPA, Wetlands and 401 Certification: Opportunities

and Guidelines for States and Eligible Indian

POG TEED. dnc cccccnncvccsscaseseccenceses 22

Bryan A. Garner, A Dictionary of Modern Legal

PEGG EEE weccccsuccesveccestccesceccase 19

Miscellaneous—Continued: Page

H.R. Rep. No. 127, 9)- .Cong., ist Sess. (1969) ........ 28

H.R. Rep. No. 940, 91st Cong., 2d Sess. (1970) ......... 19

H.R. Rep. No. 830, 95th Cong.; ist Sess. (1977) ........ 28

Letter from David A. Fierra, EPA, to Dean Marriott,

Maine Dep’t of Envt’l Prot. (Jan. 24, 1991) .......... 22

Letier from Jonathan Z. Cannon, EPA, et al., to Hon.

Lois D. Cashell, FERC, re Virginia Electric and

~~ , § & & eS ee reer 22

Memorandum from Ann R. Klee, EPA, et al., to

Regional Administrators, Agency /nterpretation

on Applicability of Section 402 of the Clean Water

Act to Water Transfers (Aug. 5, 2005) <http://

www.epa.gov/oge/documents/water _

EE nceviscccseccses see ee 16, 17, 25

Random House Dictionary of the English Language

SR EEED. edirudecdscnkundsdnadavovecstesenyés 14

S. Rep. No. 414, 92d Cong., Ist Sess.(1971) ........... 28

S. Rep. No. 370, 95th Cong., lst Sess. (1977) .......... 28

4 The Oxford English Dictionary (2d ed. 1989) ........ 14

Webster's Ninth New Collegiate Dictionary (1991) ..... 14

Webster’s Second New International Dictionary

DEED sbncudndetsnddvkdndhidedddnctisnsonses 10, 12, 14

Webster’s Third New International Dictionary:

SEE dunoesescnscbedvesecssesadcdneeexcecessens 23

In the Supreme Court of the Uniter States

No. 04-1527

S.D. WARREN COMPANY, PETITIONER

Vv.

MAINE BOARD OF ENVIRONMENTAL

PROTECTION

ON WRIT OF CERTIORAP!

TO THE SUPREME JUDICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether Section 401(a) of

the Clean Water Act (CWA), 33 U.S.C. 1341(a), requires peti-

tioner to obtain, as a prerequisite to issuance of federal li-

censes for its five hydroelectric facilities, a state certification

that the water leaving those facilities complies with applicable

federal and state water pollution control requirements. The

Federal Energy Regulatory Commission (FERC), which li-

censes hydroelectric facilities under the Federal Power Act

(FPA), 16 U.S.C. 791la et seq., and the Department of the

Army, which administers permit programs respecting waters

of the United States, see CWA § 404(a), 33 U.S.C. 1344(a);

Rivers and Harbors Appropriation Act of 1899, ch. 425, § 10,

30 Stat. 1151 (33 U.S.C. 403), must imp!>oment and comply

with the requirements of Section 401(a) in conducting their

licensing and permitting programs. Section 401 also directs

(1)

the Environmental Protection Agency (EPA), which is gener-

ally responsible for administering the Clean Water Act, see 33

U.S.C. 1251(d), to provide the requisite water quality certifi-

cations when a State lacks authority to do so, 33 U.S.C.

1341(a)(1), and to provide compliance information upon re-

quest from any federal, state, or interstate department or

agency, 33 U.S.C. 1341(b). The federal government therefore

has a substantial regulatory interest in the resolution of the

question presented.

STATEMENT

A. FERC Licensing Requirements

Congress enacted the Federal Power Act in 1920 to en-

courage, among other things, the development of water

power. See ch. 285, 41 Stat. 1063. To promote the sound de-

velopment of water resources, federal law has provided since

1935 that “{i)t shall be unlawful for any person * * * for the

purpose of developing electric power * * * to construct,

operate, or maintain any dam, water conduit, reservoir, power

house, or other works incidental thereto across, along, or in

any of the navigable waters of the United States” without a

federal license granted pursuant to that Act. FPA § 23(b)(1),

16 U.S.C. 817(1); see Public Utility Act of 1935, ch. 687, § 210,

49 Stat. 846. Congress has authorized FERC, which has as-

sumed the responsibilities of the Federal Power Commission

(FPC), see FPA § 1, 16 U.S.C. 792, to grant such licenses for

periods up to, but not exceeding, 50 years, FPA §§ 4(e), 6, 16

U.S.C. 797(e), 799.

When FERC reviews a license application for any new or

existing project, the agency operates under a broad statutory

mandate to ensure that the project is “adapted to a compre-

hensive plan for improving or developing a waterway” for

multiple purposes, including: (a) “interstate or foreign com-

merce”; (b) “improvement and utilization of water power de-

velopment”; (c) “adequate protection, mitigation, and en-

hancement of fish and wildlife”; and (d) “other beneficial pub-

lic uses.” See FPA § 10(a)(1), 16 U.S.C. 803(a)(1). FERC’s

authority is tempered, however, by other statutory provisions

that mandate inclusion of terms prescribed by other agencies.

See FPA § 4(e), 16 U.S.C. 797(e); FPA § 18, 16 U.S.C. 811;

Escondido Mut. Water Co. v. La Jolla Band of Mission Indi-

ans, 466 U.S. 765, 772 (1984).

Beginning in 1970, Congress subjected federai licensing

proceedings, including Federal Power Act license proceed-

ings, to a new requirement originating in the Water Quality

Improvement Act of 1970, Pub. L. No. 91-224, § 103, 84 Stat.

107, which amended the Federa! Water Pollution Control Act

of 1948, ch. 758, 62 Stat. 1155. The 1948 Act, which had been

amended numerous times between 1948 and 1970, gave the

federal government only a limited role in water pollution con-

trol and encouraged States to develop and enforce “water

quality standards.” See 33 U.S.C. 466g(b) and (c) (Supp. V

1969); EPA v. California ex rel. State Water Res. Control Bd.,

426 U.S. 200, 202-203 (1976). The Water Quality Improve-

ment Act of 1970 added a new Section 21(b) to the Federal

Water Pollution Control Act. See § 103, 84 Stat. 108. Section

21(b) mandated that any applicant for a federal license to con-

duct an activity “which may result in a discharge into the nav-

igable waters of the United States” must provide the licensing

authority with a certification from the State in which the dis-

charge would originate certifying that the activity would be

conducted in a manner that would not violate the State’s wa-

ter quality standards. 33 U.S.C. 1171(b) (1970). Soon thereaf-

ter, Congress enacted the Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816,

which enlarged the federal government's role in water pollu-

tion control generally and established a framework for

federal-state cooperation that is a central feature of the cur-

rent Clean Water Act. See California, 426 U.S. at 202-208.

The 1972 Amendments incorporated the relevant terms of the

Water Quality Improvement Act of 1970, originally codified at

33 U.S.C. 1171(b) (1970), into Section 401(a)(1) of the current

Clean Water Act, 33 U.S.C. 1341(a)(1).

B. The Clean Water Act

The Clean Water Act seeks to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters,” CWA § 101(a), 33 U.S.C. 1251(a), through a compre-

hensive and multifaceted strategy that assigns distinct roles

to the federal government and the States. That Act declares

a “national goal” of eliminating “the discharge of pollutants

into the navigable waters,” CWA § 101(a)(1), 33 U.S.C.

1251(a)(1), and it specifically prohibits the “discharge of any

pollutant by any person” except in compliance with prescribed

statutory requirements, CWA § 301(a), 33 U.S.C. 1311(a).

Those requirements include federal effluent limitations, CWA

§§ 301-302, 33 U.S.C. 1311-1312, and federal standards of per-

formance, CWA §§ 306-307, 33 U.S.C. 1316-1317, which place

restrictions on the discharge of pollutants. See generally 40

C.F.R. Pts. 401-471. Those requirements also include two

federal permit programs applicable to the discharge of pollut-

ants: (1) the “National Pollutant Discharge Elimination Sys-

tem” (NPDES) program, CWA § 402, 33 U.S.C. 1342; and (2)

a separate permit program for the discharge of “dredged or

fill material,” CWA § 404, 33 U.S.C. 1344.

While Congress has established specific federal controls

on the “discharge of pollutants,” it also has continued the pol-

icy, reflected in the Federal Water Pollution Control Act

of 1948, to “recognize, preserve, and protect the primary re-

sponsibilities and rights of States to prevent, reduce, and

eliminate pollution” and to “plan the development and

use * * * of * * * water resources.” CWA § 101(b),

33 U.S.C. 1251(b); see 33 U.S.C. 466 (1964); see, e.g., Solid

Waste Agency v. United States Army Corps of Eng’rs, 531

U.S. 159, 166-167 (2001). Congress made explicit its under-

Standing that the States retain authority to regulate water

“pollution” that extends beyond the Clean Water Act’s more

precisely targeted federal restrictions on the “discharge of

pollutants.” Compare CWA § 502(6), 33 U.S.C. 1362(6) (defin-

ing “pollutant” to mean specific substances), with CWA

§ 502(19), 33 U.S.C. 1362(19) (defining “pollution” more

broadly to encompass any “man-made or man-induced alter-

ation of the chemical, physical, biological, and radiological

integrity of water”).

Congress also recognized the need to coordinate federal

and state efforts based on principles of cooperative federal-

ism. See CWA § 101(b), 33 U.S.C. 1251(b). The Clean Water

Act provides for federal funding of state initiatives, federal-

state consultation on a variety of issues, and state enforce-

ment of federal standards. See, e.g., CWA §§ 106, 304, 510, 33

U.S.C. 1256, 1314, 1370. The Act expressly allows States to

impose “standard[s] or limitation[s] respecting disch»rges of ~

pollutants” or “abatement of pollution” that are more strin-

gent than, or in addition to, those federal standards set out

under the Act. See CWA § 510, 33 U.S.C. 1370. It also allows

EPA to authorize States to administer portions of the federal

permitting programs set out in Sections 402 and 404. See

CWA §8§ 101(b), 402(b), 404(g)-(h), 33 U.S.C. 1251(b), 1342(b),

1344(g)-(h); 40 C.F.R. Pt. 123; see generally California, 426

U.S. at 206-209.

As one important element of this strategy for federai-state

cooperation, Congress retained, through Section 401 of the

Clean Water Act, the state water quality certification pro-

gram that Congress had initiated in the Water Quality Im-

provement Act of 1970. Section 401(a) provides, in pertinent

part, that “[a]ny applicant for a Federal license or permit to

conduct any activity * * * which may result in any discharge

into the navigable waters, shall provide the licensing or per-

mitting agency a certification from the State in which the

discharge originates or will originate * * * that any such

discharge will comply with the applicable provisions” of desig-

nated sections of the Act. 33 U.S.C. 1341(a).'

Section 401 ensures that, before federal licensing and per-

mitting agencies authorize activities that “may result in any

discharge” into the waters of the United States, the State in

which the discharge originates will have the opportunity to

determine whether the discharge would comply with applica-

ble provisions of the Act, including Section 303 state water

quality standards and other appropriate requirements of

State law. See PUD No. 1 v. Washington Dep't of Ecology,

511 U.S. 700, 704-708 (1994). The potential for “any dis-

charge” into navigable waters triggers the requirements of

Section 401, thereby allowing the State to impose appropriate

conditions to ensure that the activity, and not just the dis-

charge, complies with state water quality standards. See id.

at 711-712. Under Section 401(d), any such state-specified,

water-quality-related conditions “shall become” part of the

federal license. 33 U.S.C. 1341(d). See PUD No. 1, 511 US.

at 708, 711-713.

The Clean Water Act does not contain a delimited defini-

tion of the critical triggering term “discharge,” but makes

clear that “(t]he term ‘discharge’ when used without qualifica-

tion includes a discharge of a pollutant, and a discharge of

pollutants,” CWA § 502(16), 33 U.S.C. 1362(16) (emphasis

' The designated provisions include Sections 301 and 302, which establish

federal effluent limitations, see 33 U.S.C. 1311, 1312, and Section. 306 and 307,

which establish federal standards of performance, see 33 U.S.C. 1316, 1317.

The designated provisions also include Section 303, which requires States to

establish water quality standards. 33 U.S.C. 1313. Congress first introduced

the concept of water quality standards through the 1965 amendments to the

Federal Water Pollution Control Act of 1948. See Water Quality Act of 1965,

Pub. L. No. 89-234, § 5(a), 79 Stat. 907. Under the current provisions of the

Clean Water Act, water quality standards “consist of the designated uses of the

navigable waters involved and the water quality criteria for such waters based

upon such uses,” CWA § 303(c2)(A), 33 U.S.C. 1313(c)(2)(A), and also require

an “antidegradation policy,” PUD No. 1 v. Washington Dep't of Ecology, 511

U.S. 700, 704-705 (1994); see generally 40 C.F.R. Pt. 131.

added). The Act does contain a definition of those included

activities: “{t]he term ‘discharge of a pollutant’ and the term

‘discharge of pollutants’ each means * * * any addition of any

pollutant to navigable waters from any point source,” CWA

§ 502(12), 33 U.S.C. 1362(12).

C. The Proceedings In This Case

Petitioner owns and operates six hydroelectric facilities on

the Presumpscot River in southern Maine. The facilities pro-

vide power for petitioner’s paper mill in Westbrook, Maine.

Pet. App. A2. Anticipating the expiration of existing federal

licenses for five of the projects, petitioner submitted coordi-

nated applications to FERC in 1999 for a new license for each

project. See S.D. Warren Co., 105 F.E.R.C. 9 61,011, at

61,084 (Oct. 2, 2003). FERC regulations required petitioner,

as an applicant for a new license, to consult with Maine’s

DEP, the state agency responsible for Section 401 certifica-

tions, see 18 C.F.R. 4.30(a)(2), 5.1(d), and to file with the State

“a request for a water quality certification * * * as required

by Section 401 of the Clean Water Act,” 18 C.F.R.

4.34(b)(5)(i), 5.18(b)(3)(i).

As petitioner explains, its hydroelectric facilities generate

power by diverting water from the channel of the

Presumpscot River into a “power canal,” through the generat-

ing turbines, and then back into the river channel through a

“tailrace channel,” thereby bypassing a section of the river

channel where water not routed through the turbines contin-

ues to flow. Pet. Br. 3-4; see Pet. App. A75-A78; J.A. 9-17. In

the course of the state certification proceedings, petitioner

did not dispute that the Presumpscot River is part of the

“navigable waters” subject to the requirements of Section

401(a) of the Clean Water Act. See Pet. Br. 9-10. Petitioner

urged, however, that Section 401(a) does not apply to its oper-

ations because the facilities do not result in “any discharge

into” the Presumpscot River. See ibid.; Pet. App. A6, A22,

A38.

After considering extensive submissions, DEP issued a

Section 401 certification. Pet. App. A74-A140. The certifica-

tion included, among other things, conditions requiring peti-

tioner to maintain minimum stream flows in the portions of

the river bypassed by the projects and conditions requiring

Warren to take measures to allow passage for various species

of migratory fish. Jd. at Al21-A140. Petitioner appealed

DEP’s Section 401 certification to the state administrative

appeals tribunal, the Maine Board of Environmental Protec-

tion (BEP), which affirmed the decision of DEP, id. at A35-

A73, and rejected petitioner’s contention that the facilities do

not result in a discharge, id. at A40-A42. Petitioner then

sought judicial review of the state agency action by initiating

a state suit in the Cumberland County Superior Court, which

affirmed the BEP determination, id. at A19-A34, including its

conclusion that petitioner’s facilities result in a discharge, id.

at A22-A25. Petitioner appealed the superior court’s decision

to the Maine Supreme Judicial Court, which affirmed the su-

perior court’s judgment, id. at Al-A18, including its conclu-

sion that petitioner’s facilities result in a discharge that trig-

gers Section 401’s state certification requirement, id. at A6-

Alo.

The Maine Supreme Judicial Court examined the Clean

Water Act’s description of the term “discharge,” CWA

§ 502(16), 33 U.S.C. 1362(16), and observed that the Act does

not “expressly define” the term. The court nevertheless ex-

pressed the view that an “addition” is a “fundamental charac-

teristic of any discharge.” Pet. App. A6. The court then de-

termined that petitioner’s hydroelectric generating facilities

result in an “addition” because they “remove the water of the

river from its natural course, exercise private control over the

water and then add the water back into the river.” Jd. at A8.

The court rejected petitioner’s contention that the term “dis-

charge” under Section 401 is limited to the “discharge of a

pollutant” or “discharge of pollutants,” observing that the

Clean Water Act defines “discharge” expansively to “in-

clude[}” those more limited phrases. /d. at A8-A10.

Petitioner proceeded with the FERC license proceedings

while it pursued its state appeals. While the superior court

action was pending, FERC issued new licenses for all five

projects. See S.D. Warren Co., 105 F.E.R.C. 99 61,009-61,013

(Oct. 2, 2003). In each license order, FERC stated that the

license was “subject to the water quality certification condi-

tions” that DEP had imposed, which were attached to each

order. See, e.g., 105 F.E.R.C. 161,013, at 61,144. Petitioner

sought administrative rehearing, which FERC denied. S.D.

Warren Co., 106 F.E.R.C. 161,087 (Jan. 29, 2004). Petitioner

then sought judicial review of FERC’s license orders in the

United States Court of Appeals for the D.C. Circuit. Peti-

tioner did not pursue its present claim—that its dams do not

result in discharges for Section 401 purposes—in either the

proceedings before FERC or in the court of appeals. The

court of appeals affirmed FERC’s orders in an unpublished

per curiam opinion. S.D. Warren Co. v. FERC, No. 04-1105

(D.C. Cir. May 6, 2005).

* The completion of the federal licensing and judicial review proceedings

does not appear to pose a significant obstacle to this Court’s review of the

federal question. The Maine Supreme Judicial Court’s resolution of that

question is final, see 28 U.S.C. 1257(a), and the issue was not litigated or

decided in the now-completed federal proceedings. Although Section 401(d)

envisions that FERC shall incorporate DEP’s state water quality certification

in its licensing order, 33 U.S.C. 1341(d), and FERC did precisely that in issuing

licenses for petitioner’s facilities, that fact does not render this Court’s review

of the state court’s decision merely advisory or otherwise render the federal

issue moot. FERC has discretion to consider new developments even after it

issues a license; it may reopen and amend its license orders “upon mutual

agreement between the licensee and [FERC] after thirty days’ public notice.”

FPA § 6, 16 U.S.C. 799. Accordingly, if this Court were to accept petitioner’s

contention that its facilities do not result in any discharge triggering Section

401's state certification requirement, petitioner could petition FERC for

appropriate relief.

SUMMARY OF ARGUMENT

The Clean Water Act requires an applicant for a federal

license to obtain a state water quality certification if the li-

censed activity “may result in any discharge into the naviga-

ble waters.” CWA § 401(a)(1), 33 U.S.C. 1341(a)(1). The piv-

otal issue in this case is whether petitioner’s hydroelectric

generating facilities, which require FERC licensing, may

result in such a “discharge.” Congress made clear that the

term “discharge” includes but is not limited to a “discharge

of pollutants”—a statutory term of art—but otherwise left the

term “discharge” undefined. See CWA §§ 502(12) and (16), 33

U.S.C. 1362(12) and (16). Congress thereby indicated its in-

tent that the ordinary meaning of the word discharge—“a

flowing or issuing out” (Webster’s Third New International

Dictionary 644 (1993) (Webster’s Third); Webster’s Second

New International Dictionary 742 (1958) (Webster’s Sec-

ond))—would determine the reach of that term.

Petitioner’s hydroelectric generating facilities necessarily

result in a “discharge” within the ordinary meaning of that

term. It is common parlance to speak of a release of water

from a dam and reservoir as a “discharge,” and that usage

accurately describes the water releases at issue here. Peti-

tioner’s facilities divert and impound Presumpscot River wa-

ter for purposes of power generation, and then return the

water into a different portion of the river channel. The im-

pounded water, upon release, “flow[s} or issue[{s] out” of the

facility and into the concededly navigable river channel. Con-

trary to petitioner’s primary contention (Pet. Br. 17), the

Clean Water Act imposes no requirement that a “discharge”

must result in the “addition” of “a pollutant or at least some-

thing similar to a pollutant.” By providing that the term “dis-

charge” “includes,” as opposed to “means,” the “discharge of

a pollutant”—.e., “any addition of any pollutant to navigable

waters from any point source,” CWA § 502(12), 33 U.S.C.

1362(12)—Congress necessarily rejected the narrow interpre-

tation proffered by petitioner, and instead manifested its in-

tent that the term “discharge” would have its normal mean-

ing, ie., any “flowing or issuing out” of water from the facility

into the river channel, without regard to whether that “dis-

charge” also results in an “addition” of pollutants or of any-

thing else.

That conclusion is consistent with this Court’s decision in

PUD No. 1 v. Washington Department of Ecology, 511 U.S.

700 (1994), which correctly assumed that a similar hydroelec-

trie facility would result in a discharge for Section 401 pur-

poses. It is also consistent with the Court’s decision in South

Florida Water Management District v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004), which did not address the re-

quirements of Section 401 but nevertheless suggests that

there is a distinction between a “discharge” and an “addition.”

Construing the term “discharge” according to its ordinary

meaning provides a clear rule and fulfills Congress’s express

objective of ensuring that federal licensing authorities are

attentive to the rights that each State retains under the Clean

Water Act to regulate not only the “discharge of pollutants,”

but also any “discharges” that may result in “pollution.” See

CWA §§ 101(b), 510, 33 U.S.C. 1251(b), 1370.

ARGUMENT

PETITIONER’S OPERATION OF ITS HYDROELECTRIC FA-

CILITIES RESULTS IN A “DISCHARGE INTO THE NAVIGA-

BLE WATERS” FOR PURPOSES OF SECTION 401(a) OF THE

CLEAN WATER ACT

An applicant for a FERC license must obtain a state water

quality certification if the licensed activity “may result in any

discharge into the navigable waters.” CWA § 401(a), 33

U.S.C. 1341(a). Congress expansively defined the crucial

term “discharge” by inclusion, CWA § 502(16), 33 U.S.C.

1362(16), not limitation, manifesting its intent that the term

should be construed in light of its ordinary meaning—“a flow-

ing or issuing out.” Webster’s Third 644; Webster’s Second

742. Under that definition, the hydroelectric facilities at issue

here, which release impounded water back into a river chan-

nel, clearly result in a discharge for purposes of Section 401.

Contrary to petitioner’s central submission, the discharge

need not “add” pollutants, or anything else, to the river. This

Court’s decisions, as well as the structure and purposes of the

Clean Water Act and its legislative history, all support inter-

preting the term “discharge” according to its ordinary mean-

ing, which provides a clear administrative rule to guide fed-

eral and state agency proceedings.

A. The Term “Discharge” In Section 401(a) Should Be In-

terpreted In Light Of Its Ordinary Meaning

The Clean Water Act provides a series of carefully crafted

definitions for purposes of applying the Act’s complex, and in

some cases highly technical, provisions. See CWA § 502, 33

U.S.C. 1362. Nearly all of the 23 definitions set forth precise

meanings, and many are terms of art. The Clean Water Act’s

definition of “discharge” is distinctive, because that term is

not comprehensively delineated but instead is defined only by

inclusion: “The term ‘discharge’ when used without qualifica-

tion includes a discharge of a pollutant, and a discharge of

pollutants.” CWA § 502(16), 33 U.S.C. 1362(16) (emphasis

added).

That distinctive characteristic stands in sharp relief to the

Act’s more circumscribed definitions of the subsidiary terms:

“The term ‘discharge of a pollutant’ and the term ‘discharge

of pollutants’ each means * * * any addition of any pollutant

to navigable waters from any point source.” CWA § 502(12),

33 U.S.C. 1362(12) (emphasis added). The Act similarly de-

fines the key terms “pollutant,” “navigable waters,” and

“point source” to “mean” particular things. See CWA

§ 502(6), (7), and (14), 33 U.S.C. 1362(6), (7), and (14).

The Clean Water Act’s inclusive definition of “discharge”

indicates that the term is not limited to—i.e., does not “mean”

—the discharge of one or more pollutants. See, e.g., Chicka-

saw Nation v. United States, 534 U.S. 84, 89 (2001) (“To ‘in-

clude’ is to ‘contain’ or ‘comprise as part of a whole.’”) (cita-

tion omitted). That singular and distinctive use of the word

“includes” rather than “means” among the Act’s 23 definitions

demonstrates in bold relief Congress’s unmistakable intent

and understanding that the term “discharge” would encom-

pass “discharges” beyond those that qualify as the “addition

of any pollutant to navigable waters from any point source.”

CWA § 502(12), 33 U.S.C. 1362(12). See Helvering v. Mor-

gan’s Inc., 293 U.S. 121, 125 n.1 (1934) (“The natural distine-

tion would be that where ‘means’ is employed, the term and

its definition are to be interchangeable equivalents, and that

the verb ‘includes’ imports a general class, some of whose

particular instances are those specified in the definition.”).

The Clean Water Act’s inclusive definition is also reveal-

ing in another central respect. That formulation expresses

Congress’s intention that the term “discharge” should be con-

strued according to its ordinary meaning and not as a statu-

tory term of art. Congress made clear that the term “dis-

charge” describes a class of activities that “includes” two such

statutory terms of art—the synonymous terms “discharge of

a pollutant” and “discharge of pollutants”—but it otherwise

left the membership of the class undefined. By so doing, Con-

gress expressed its intention that the ordinary meaning of the

term “discharge” would delimit the scope of that term. See,

e.g., FDIC v. Meyer, 510 U.S. 471, 476 (1994) (an undefined

statutory term is construed “in accordance with its ordinary

or natural meaning”).

B. The Ordinary Meaning Of Discharge—“A Flowing Or

Issuing Out”—Encompasses A Hydroelectric Facility’s

Release Of Diverted Water To A River Channel

The term “discharge” can have a variety of meanings de-

pending on the context. But when the term “discharge” is

used in the water-related context that Section 40l(a) de-

scribes, it means “a flowing or issuing out.” Webster’s Third

644; Webster’s Second 742. See, e.g., 4 The Oxford English

Dictionary 732 (2d ed. 1989) (“The act of sending out or pour-

ing forth.”); Random House Dictionary of the English Lan-

guage 561-562 (2d ed. 1987) (“a sending or coming forth, as of

water from a pipe”); PUD No. 1,511 U.S. at 725 (Thomas, J.,

dissenting) (“The term ‘discharge’ is not defined in the [Clean

Water Act,]| but its plain and ordinary meaning suggests ‘a

flowing or issuing out,’ or ‘something that is emitted.””) (quot-

ing Webster’s Ninth New Collegiate Dictionary 360 (1991)).

Hydroelectric dams, which typically impound water for

power production, necessarily produce “a flowing or issuing

out” of water when they return the diverted water to the river

channel. Indeed, releases of water from dams and reservoirs

are characteristically and routinely described as “discharges.”

See, e.g., United States v. James, 478 U.S. 597, 599 (1986)

(“Enormous underwater portals set within the Millwood Dam,

called ‘tainter gates,’ allow the discharge of water from the

Reservoir into a spilling basin below.”); Arizona v. California,

373 U.S. 546, 619. n.25 (1963) (Harlan, J., dissenting in part)

(referring to persons who may “take water out of the stream

which has been discharged from the reservoir”); United

States v. Arizona, 295 U.S. 174, 181 (1935) (“Parker Dam will

intercept waters discharged at Boulder Dam.”); Wyoming v.

Colorado, 259 U.S. 419, 482 (table showing “Discharge of

Laramie River at Pioneer Dam”), modified, 260 U.S. 1 (1922),

vacated, 353 U.S. 953 (1957).°

* Indeed, in the Court's only previous case involving Section 401, the

petitioner, a prospective owner-operator of a proposed hydroelectric facility,

readily conceded that the facility would result in a “discharge” for purposes of

that Section because the facility would release “water at the end of the tailrace

lof the proposed dam) after the water has been used to generate electricity.”

See PUD No. 1, 511 US. at 711; note 10, infra. The Court embraced that

incontestably reasonabie concession, and held that the State of Washington

could impose conditions under Section 401(d) that were not strictly tied to such

project “discharges.” /d. at 712. The Court expressed no doubt that, when a

Petitioner’s hydroelectric generating facilities, which con-

sist of a familiar arrangement of dams, impoundments, a

“power” canal, turbines, and a by-pass channel, see J.A. 10-17,

necessarily release impounded water into the channel of the

Presumpscot River and therefore result in a “flowing or issu-

ing out” of that water. As a matter of ordinary usage, the

operation of petitioner’s hydroelectric generating facilities

results in a “discharge” of diverted water, used to power tur-

bines, when the water is returned to the river channel. That

discharge, in turn, triggers Section 401’s state certification

requirement, which ensures that the feceral licensing authori-

ties properly take account of the impact of those water re-

leases on the State’s “primary responsibilities” to regulate

“the man-made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of water.”

CWA §§ 101(b), 502(19), 33 U.S.C. 1251(b), 1362(19).

C. The Term “Discharge” Does Not Require An “Addition”

The Maine Supreme Judicial Court correctly concluded

that petitioner’s hydroelectric generating facilities result in

a “discharge” for purposes of Section 401, but it did so on a

mistaken rationale. The supreme judicial court asserted,

without lexicographical reference, that “[a]n ‘addition’ is the

fundamental characteristic of any discharge.” Pet. App. A6.

Applying that incorrect understanding, it then concluded that

the release of water constituted a “discharge” because the

waters impounded by petitioner’s dams “have lost their status

as waters of the United States” and thus an “addition” to navi-

gable waters occurs when they are “redeposited into the natu-

ral course of the river.” Jd. at A8; see id. at A6-A8, Al0. The

court’s reasoning was erroneous, but its ultimate conclusion

was sound.

dam releases impounded water through a tailrace, head-gate, sluice-gate, or

other structure, a “discharge” oecurs within the plain meaning of the term.

1. As an initial matter, the supreme judicial court erred

in holding that the water impounded by petitioner’s dams

loses its status as navigable waters and is then “added” back

to those waters after it passes through the dams. EPA has

consistently construed the phrase “navigable waters” (i.e.,

“the waters of the United States,” CWA § 502(7), 33 U.S.C.

1362(7)) to include “impoundments of waters otherwise de-

fined as waters of the United States.” 40 C.F.R. 122.2. Ac-

cordingly, water impounded by and passing through a dam

generally does not lose its character as “waters of the United

States.” See, e.g., National Wildlife Fed’n v. Consumers

Power Co., 862 F.2d 580, 586, 589 (6th Cir. 1988). That conclu-

sion is supported by longstanding agency interpretation and

is entitled to substantial deference.‘

The supreme judicial court thus erred in concluding that

water passing through a dam is “added” to the waters of the

United States when it reenters the natural channel of the

river. That error warrants correction, because the lower

court’s analysis of that issue is irreconcilable with the settled

understanding, adopted by EPA in 1973 and consistently

maintained thereafter, that dams generally do not “add{]”

pollutants to the navigable waters “from the outside world”

and are therefore not subject to NPDES permitting require-

ments, even though the water passing through the dams may

* See, ¢.g., Memorandum from Ann R. Klee, EPA, et al., to Regional Admi-

nistrators, Agency Interpretation on Applicability of Section 402 of the Clean

Water Act to Water Transfers 10 (Aug. 5, 2005) (Agency Interp.) <http/

www.epa.gov/oge/documents/water_transfers.pdf.> (“EPA's longstanding

position has been that dams and hydropower facilities do not ‘add’ pollutants

when they are merely moving water from one location to another within the

same waterbody.”); id. at 18 n.18 (“the dam merely conveys water from one

location to another within the same waterbody”); U.S. Br. as Amicus Curiae

at 28, 31, National Wildlife Fed'n v. Consumers Power Co., No. 87-1441 (6th

Cir.) (filed Sept. 1987) (“waters do not change their character as waters of the

United States merely as a result uf their manipulation” by a hydroelectric dam;

“(t]he mere change in their movement, flow, or circulation does not change the

character of these waters as waters of the United States”).

itself contain pollutants. See Consumers Power Co., 862 F.2d

at 584-588; National Wildlife Fed’n v. Gorsuch, 693 F.2d 156,

165, 168-169 & nn.39-40, 174-177 (D.C. Cir. 1982).°

2. More fundamentally, the supreme judicial court also

erred in assuming that an “addition” is necessary in order for

a “discharge” to occur for purposes of Section 401(a). When

“discharge” is construed in light of its ordinary meaning, as

it must be, an “addition” is not a fundamental characteristic

of that term. The term “discharge,” in the relevant context of

water, refers to the physical release of the water from some

confining source or location, viz., “a flowing or issuing out.”

As demonstrated above, dictionaries uniformly define a “dis-

charge” of water based on the characteristic of physical re-

lease from confinement and not on the basis of an “addition.”

See pp. 13-14, supra. A discharge may commonly result in an

addition of some sort, but the ordinary meaning of “dis-

charge” denotes the “flowing or issuing out” and not any con-

sequent “addition,” no matter how common that result may

be.

3. Petitioner, consistent with the reasoning of the court

below, does not suggest that the ordinary meaning of “dis-

charge” requires an “addition.” Rather, it derives that gloss

from other provisions of the Clean Water Act. Petitioner

* See also Agency Interp. 10 (“EPA's longstanding position has been that

dams and hydropower facilities do not ‘add’ pollutants when they are merely

moving water from one location to another within the same waterbody.”); Reply

Br. for Fed. Appellant at 4 n.2, National Wildlife Federation v. Gorsuch,

Admin., EPA, Nos. 82-1335 et al. (D.C. Cir.) (filed July 1982) (“EPA does not

require an NPDES permit for discharges into navigable waters from navigable

waters.”); id. at 14 (“Since 1973, EPA has consistently maintained that the

dam-induced water quality changes at issue here do not involve the discharge

of pollutants from a point source.”). Of course, when dams or other water

diversion facilities add pollutants such as oil and grease to water passing

through the diversion structure into the downstream water, or when water is

removed from the waters of the United States and utilized for cooling or other

industrial purposes before being returned, NPDES permits are required.

Consumers Power, 362 F.2d at 588; Gorsuch, 698 F 2d at 165 n.22; Agency

Interp. 10 n.12; see 40 C.F.R. 122.45(g4).

asserts that the Act’s inclusive definition of “discharge” does

not adequately identify the limits of that term. See Pet. App.

A6; Pet. Br. 15; see also North Carolina v. FERC, 112 F.3d

_ 1175, 1188 (D.C. Cir. 1997), cert. denied, 522 U.S. 1108 (1998).

But instead of following the normal course of statutory con-

struction and consulting a dictionary, see, e.g., FDIC, 510 U.S.

at 476, it extracts a limiting principle from the Clean Water

Act’s definition of a different term—“discharge of a pollut-

ant.” See CWA § 502(12), 33 U.S.C. 1362(12) (defining the

term in relevant part as “any addition of any pollutant to navi-

gable waters from any point source”).

According to petitioner, the definition of “discharge of a

pollutant” indicates that “Congress equated the notion of a

‘discharge’ with the notion of ‘any addition . . . from any point

source.’” Pet. Br. 15. See id. at 16-17 (“Congress associated

a ‘discharge’ with an ‘addition’ into the water of a pollutant or

at least something like a pollutant.”). That reasoning, how-

ever, does not withstand scrutiny. The Clean Water Act de-

fines “discharge of a pollutant” as a statutory term of art.

Congress’s specification that the general term “discharge”

includes that term of art makes clear that the latter is encom-

passed within the former, but it says nothing about the outer

reach of the general term, which therefore must be construed

according to its ordinary meaning.

Petitioner’s error is especially evident when considered in

light of the history of the Clean Water Act. Congress em-

ployed the undefined term “discharge” in the pre-1970 Fed-

eral Water Pollution Control Act and, by leaving that term

completely undefined, necessarily used it in its ordinary -

sense. See 33 U.S.C. 466a (Supp. V. 1969) (authorizing joint

investigations of “discharges of any sewage, industrial wastes,

or substance which may adversely affect such waters”). Con-

gress also employed the undefined term “discharge” in provi-

sions of the 1970 version of the Federal Water Pollution Con-

trol Act, including the provision that later became Section

401(a) (see pp. 3-4, supra), again necessarily employing that

term in its ordinary sense. See 33 U.S.C. 1171(b) (1970).°

When Congress enacted the Federal Water Pollution Con-

trol Act Amendments of 1972, it continued to employ the un-

adorned term “discharge” in Section 40l(a). 33 U.S.C.

1341(a). But at the same time, Congress defined the phrase

“discharge of a pollutant” as a statutory term of art for use in

new provisions of the Act, where the specific and technical

meaning of that defined term plays a crucial role in determin-

ing the reach of those provisions. See, e.g., CWA § 301(a), 33

U.S.C. 1311(a) (“the discharge of any pollutant by any person

shall be unlawful”); CWA § 402(a), 33 U.S.C. 1342(a) (EPA

- may “issue a permit for the discharge of any pollutant”). By

so doing, Congress carefully limited the reach of those provi-

sions to “discharges” that result in the “addition” to “naviga-

ble waters” of “pollutants” from a “point source.” See, e.g,

California, 426 U.S. at 203-205 (describing the operation of

_ Section 301 and 402 with reference to the statutory defini-

tions).

* Congress did set out a specific definition of “discharge” for limited use in

two other sections of the 1970 Act, those dealing with “Control of pollution by

. oil,” 33 U.S.C. 1161 (1970), and “Control of sewage from vessels,” 33 U.S.C.

1163 (1970). In each instance, Congress extended the term “discharge” to the

limits of, and perhaps beyond, its ordinary meaning, stating that the term

“includes, but is not limited to, any spilling, leaking, pumping, pouring,

emitting, emptying, or dumping.” 33 U.S.C. 1161(a\(2), 1163(aX(9) (1970). See

H.R. Rep. No. 940, 91st Cong., 2d Sess. 33 (1970) (“[t}he definition of ‘discharge’

is designed to cover by its broad terms all] possible means of fouling the waters

with oil”). That definition includes, for example, even the unanticipated passive

seepage from an abandoned tank or drum. The Clean Water Act has retained

those limited-use definitions. See CWA §§ 311(a)(2), 312(aX9), 33 U.S.C.

1321(aX2), 1322(a)(9). The inclusion of the phrase “not limited to” is, of course

the draftsman’s device to avoid any implication that canons such as inclusio

unius est exclusio alterius, noscitur a sociis, and eyusdem generis should apply

in light of the enumeration of seven related items. See Bryan A. Garner, A

Dictionary of Modern Legal Usage 432 (2d ed. 1995). Those canons are not an

issue in the case of Section 502(16), which “includes” only a single term and its

synonymous plural form. 33 U.S.C. 1362(16).

Congress specifically clarified the relationship between

the terms “discharge” and “discharge of a pollutant,” thereby

eliminating any confusion that might otherwise have arisen

from its use of “discharge” in its ordinary sense in some Clean

Water Act provisions and its use of “discharge of a pollutant”

as a statutory term of art in the Act’s other provisions. In

particular, Congress made clear that the broader and more

expansive term “discharge” includes the more circumscribed

term “discharge of a pollutant” as well as its synonymous

plural “discharge of pollutants.” CWA § 502(16), 33 U.S.C.

1362(16). That congressional determination is entirely consis-

tent with the ordinary meaning of discharge—“a flowing or

issuing out”—which necessarily includes “any addition of any

pollutant to navigable waters from any point source.” CWA

§ 502(12), 33 U.S.C. 1362(12).

It would be irrational, especially in light of the statutory

evolution of those terms, to conclude that, because Congress

clarified that a general term “includes” a more circumscribed

term of art, the general term is somehow confined by the

same limitations. If Congress had meant to say that a “dis-

charge” is an “addition . . . from a point source” (Pet. Br. 15)

or an “addition” of a “pollutant” or “something similar” (id. at

17), it could have, and would have, simply said so. Instead,

Congress preserved the general term “discharge” for use in

statutory provisions, such as Section 401, when it intended to

convey the ordinary meaning of that term, and defined the

term of art “discharge of a pollutant” for use in other provi-

sions, such as Sections 301 and 402, when it intended to con-

vey the more circumscribed meaning. “{WJjhere Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Bates v. United States,

522 U.S. 23, 29 (1997) (citation omitted).’

4. Petitioner further argues that “(i]t stretches credulity

to contend that Congress somehow envisioned a river flowing

through a dam as a river ‘discharging into’ itself.” Pet. Br. 17.

But that argument ignores the role of the dam. A “flowing or

issuing out” will always be “out” of something and “into”

something, and this Court’s own decisions confirm that it is

common usage to say that a dam or reservoir “discharges

into” the very river that it impounds. See PUD No. 1, 511

U.S. at 709 (the proposed Elkhorn Hydroelectric Project

“may result in discharges into the Dosewallips River”). That

usage accurately describes what physically takes place: The

hydroelectric facility diverts water from the river channel,

passes the water through turbines to generate power, and

“then return{s] the water to the river below the bypass

reach.” Ibid. The facility thereby returns the water by “dis-

charge into” the same river channel from which it was with-

drawn. CWA § 401(a), 33 U.S.C. 1341(a).

” Petitioner obtains no support for a contrary conclusion from Chickasaw

Nation, supra, or Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). See Pet.

Br. 17. Chickasaw Nation recognizes, unhelpfully for petitioner, that to

“include” is to “comprise as part of the whole,” 534 U.S. at 89 (emphasis added),

and goes on to hold that a provision that “included” an illustrative list did not

extend, by virtue of one of the listed items, the reach of that provision further

than its otherwise plain meaning would allow, id. at 89-91. Here, no such

question is presented because the term “discharge” is obviously broader than

the “discharge of a pollutant,” and there is no illustrative list. In Phelps Dodge

Corp., the Court rejected the notion that Congress intended to limit a broad

statutory phrase by “including” an illustration of its use, stating that such a

construction would “shrivel a versatile principie to an illustrative application.”

313 U.S. at 189. As the Court observed, “[t}he word ‘including’ does not lend

itself to such destructive significance.” /bid.; see Garner, supra, at 431

(“including” should not “be used to introduce an exhaustive list, for it implies

that the list is only partial”).

® Section 401(a)’s reference to “navigable waters,” which means “the waters

of the United States,” CWA § 502(7), 33 U.S.C. 1362(7), denotes that Section

401 applies only if the discharge flows into waters that are subject to federal

Even if there were any room for doubt about the applica-

bility of Section 401(a) to hydroelectric facilities, such doubt

would have to be resolved in favor of EPA’s interpretation.

EPA has consistently maintained that the licensing of hydro-

electric facilities under the Federal Power Act is subject to

the requirements of Section 401(a). EPA has taken that posi-

tion in an agency guidance document, in communications with

FERC, and in construing its own authority to issue certifica-

tions under Section 401(a) when no state agency has authority

todo so.° That longstanding administrative construction of

the Act is entitled to deference. See, e.g., Barnhart v. Walton,

535 U.S. 212, 221-222 (2002).

regulation. For example, Section 401 would not apply if a federally licensed

facility withdrew water from a river and then discharged all of that water into

a municipal water system. In this case, petitioner’s facilities discharge water

“into,” as opposed to diverting water away from, the Presumpscot River, which

are waters subject to federal regulation. Cf. North Carolina, 112 F.3d at 1189

(holding that a withdrawal “resulting in a decrease in the volume of a

preexisting discharge is not an activity that ‘resultsin any discharge”). The

fact that the diverted water remains, for purposes of federal regulation, part

of “the waters of the United States,” see note 4, supra, has no bearing on

whether the release of the water from the facility is a “discharge into the

navigable waters.” Section 401 focuses on the potential of a “discharge” and

not on what is being discharged.

* See, eg., EPA, Wetlands and 401 Certification: Opportunities and

Guidelines for States and Eligible Indian Tribes 20 (Apr. 1989) (EPA “has

identified five federal permits and/or licenses which authorize activities which

may result in a discharge to the waters,” including “licenses required for

hydroelectric projects issued under the Federal Power Act”), Letter from

Jonathan Z. Cannon, EPA, et al., to Hon. Lois D. Cashell, FERC, re: Virginia

Electric and Power Co., at 4 (Oct. 24, 1996) (operation of hydroelectric dam

“‘may result,’ and indeed, does result, in a ‘discharge’ of water over and

through the dam” and thus “trigger{s) the requirement of a Section 401

certification from” the relevant State); Letter from David A. Fierra, EPA, to

Dean Marriott, Maine Dep’t of Envtl. Prot. at 1 (Jan. 24, 1991) (“it is the

Region’s position that EPA is the Section 401 certifying body for purposes of

the hydro project relicensing”).

D. This Court’s Decisions Support Interpreting The Term

“Discharge” According To Its Ordinary Meaning

Petitioner gives scant attention to this Court’s decision in

PUD No. 1, which held, in circumstances strikingly similar to

this case, that a state-issued Section 401 certification for a

hydroelectric project may properly impose conditions on the

project as a whole—and not just its discharges. See 511 U.S.

at 710-723. In that case, as here, the state-imposed conditions

included minimum stream flows to ensure compliance with

state water quality standards. See ibid. To be sure, the peti-

tioner in that case did not dispute that the project resulted in

a “discharge,” see note 3, supra, but the petitioner also did

not overlook that point.’ The Court, in its “thorough analy-

sis” (511 U.S. at 723 (Stevens, J. concurring)), expressed no

doubt that the project resulted in a “discharge.” The two

dissenting Justices disagreed on the appropriateness of the

minimum stream flow condition, but expressly recognized that

the term “discharge” should be construed in light of its ordi-

nary meaning as “a flowing or issuing out,” id. at 725

(Thomas, J., dissenting). Against that backdrop, PUD No. 1

stands as a substantial obstacle to any conclusion that a hy-

- droelectric project does not result in a “discharge.”

Rather than confronting PUD No. 1, petitioner focuses on

this Court’s decision in South Florida Water Management

District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004),

which did not address Section 401 and its use of the general

charge” undefined and that it should therefore be interpreted in light of ‘ts

“standard dictionary definition” of “to give outlet to: pour forth: emit (the river

(discharges) its waters into the bay).” 92-1911 Pet. Br. at 22-23 (quoting

Webster's Third New International Dictionary 649 (1971)). The United States

advised in its brief amicus curiae that “when the operator of 4 dam releases

water through [a release structure] it has caused a discharge within the

meaning of Section 401,” noting that “Congress employed the term ‘discharge’

* * * more broadly than the term ‘discharge of a pollutant.’” 92-1911 U.S. Br.

at 14-15 & n.4.

term “discharge,” but instead addressed Section 402, which

uses the more circumscribed term “discharge of a pollutant.”

The Court’s decision in Miccosukee is relevant here only in

two limited respects, neither of which is helpful to petitioner.

First, Miccosukee illustrates why Congress drew its defi-

nitional distinction. Section 401, which uses the broader term

“discharge,” directs that, whenever federal authorities license

an activity that may result in any “flowing or issuing out” of

anything into navigable waters, they obtain input from the

State where the release takes place to ensure that the release

will not interfere with the State’s broad retained authority to

regulate “the man-made or man-induced alteration of the

chemical, physical, biological, or radiological integrity of wa-

ter.” CWA §§ 101(b), 502(19), 33 U.S.C. 1251(b), 1362(19). By

contrast, Section 402—the provision at issue in Miccosukee

—involves only the issuance of federally mandated NPDES

permits for the “addition of [a] pollutant to navigable waters

from [a] point source.” CWA §§ 402(a), 502(12), 33 U.S.C.

1342(a), 1362(12). Section 401’s broad and inclusive reach,

requiring examination of any “discharge” that might lead to

“pollution,” thus ensures that federally licensed projects will

comply with state water quality standards even when the

more targeted and specific requirements of the NPDES pro-

gram are not applicable."

Second, the Court’s decision in Miccosukee usefully illumi-

nates the difference between a “discharge” and an “addition.”

In discussing “additions,” the Court noted by analogy that

" As has been explained, EPA does not require NPDES permits for

hydroelectric dams that merely discharge diverted water back into a navigable

river channel, unless that discharge also involves the addition of a pollutant

from the outside world. See note 5, supra. Section 401’s state water quality

certification process provides the appropriate means for addressing the

broader problems associated with any “man-made or man-induced alteration

of the chemical, physical, biological, or radiological integrity of water,” CWA

§ 502(19), 33 U.S.C. 1362(19), that might result from the impoundment and

release of diverted water. See Gorsuch, 693 F.2d at 161-174.

[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.

541 U.S. at 110 (quoting Catskill Mountains Chapter of Trout

Unlimited, Inc. v. New York, 273 F.3d 481, 492 (2d Cir.

2001)). Though not an “addition,” the act of “pourfing the

soup] back into the pot” is plainly a “discharge” within the

ordinary meaning of that term.'*

E. The Clean Water Act’s Purpose and Legislative History

Support The Conclusion That Petitioner’s Facilities

Result In A “Discharge Into the Navigable Waters”

Section 401 is one part of the Clean Water Act’s compre-

hensive water pollution control program, which seeks to coor-

dinate federal and state efforts to ensure clean water. The

Act places federal limitations on the “discharge of pollut-

ants,” while continuing a policy recognizing “the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution.” See CWA § 101(a)(1) and (b), 33 U.S.C.

1251(a)(1) and (b) (emphasis added). The Act preserves the

broad power of a State to develop its own more stringent

standards and limitations, stating that nothing in the Act’s

provisions shall preclude or deny the right of any State “to

adopt or enforce (A) any standard or limitation respecting

discharges of pollutants, or (B) any requirement respecting

control or abatement of pollution,” in addition to or more

? Petitioner's reference to EPA's regulatory guidance document respecting

water transfers (Pet. Br. 22-23) is inapposite because that document does not

address the scope of Section 401. Rather, that document explains EPA's view

that Section 402’s NPDES permitting program is not applicable to water

control facilities that merely convey or connect navigable waters but do not

involve an addition of any pollutants from a point source. See Agency I nterp.,

supra. That view is consistent with EPA's position on dams and its position

here. See id. at 8, 10-12; notes 4-5, supra. —

stringent than what the federal law requires. See CWA § 510,

33 U.S.C. 1370 (emphasis added).

Congress clearly understood that activities that do not

result in discharges of pollutants may nevertheless contribute

to pollution. Congress also knew that, in the absence of con-

gressional direction, principles of federal preemption might

well exempt many federally licensed activities—including the

generation of hydroelectric power—from state environmental

regulation. See California v. FERC, 495 U.S. 490, 506-507

(1990); First lowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152,

175-176 (1946). Congress accordingly adopted Section 401 to

ensure that federally licensed activities would not escape

state regulation. Section 401 expressly enables a State to

apply its federally mandated water-pollution-control program

to those activities. See Alabama Rivers Alliance v. FERC,

325 F.3d 290, 292-293 (D.C. Cir. 2003); American Rivers, Inc.

v. FERC, 129 F.3d 99, 111 (2d Cir. 1997).

As petitioner appears to acknowledge (Pet. Br. 4, 23), even

if a hydroelectric generating facility does not add pollutants

to navigable waters, the discharge of diverted or impounded

water may cause “pollution” by producing a “man-made or

man-induced alteration” of water quality. CWA § 502(19), 33

U.S.C. 1362(19). See generally Gorsuch, 693 F.2d at 161-174.

Among other things, the diversion and impoundment of water

“can lower dissolved oxygen concentrations by reducing natu-

ral reaeration, increasing time of travel, increasing water

temperature, and creating settling basins for sediment and

nutrients.” Pet. App. All4 (DEP findings). In the present

case, it is undisputed that reaches of Presumpscot River do

not meet Maine’s dissolved-oxygen standards and that peti-

tioner’s facilities “cause or contribute to the violation[s}.” /d.

at All4-A115 (DEP findings); id. at A56-A57 (BEP findings).

Section 401 squarely addresses the need for federal licens-

ing authorities to take account of a State’s important interest

in abating pollution that might arise in exactly these circum-

stances. If petitioner’s facilities are not subject to Section

401, the State would be without an important mechanism to

regulate the pollution caused by those facilities and their dis-

charges. That result would be contrary to Congress’s express

policy “to recognize, preserve, and protect” the rights of each

State “to prevent, reduce, and eliminate pollution.” CWA

§ 101(b), 33 U.S.C. 1251(b).”

The legislative history of the Clean Water Act fully sup-

ports Congress’s textually evident objectives. Senator Coo-

per, a principal sponsor of the initial legislation that imposed

the requirement now included in Section 401(a), spoke of the

need for state certification during the floor debate. He ob-

served that “the Federal Government contributes to water

pollution in its licensing activities over such things as nuclear

power plants, [and] hydroelectric power plants licensed by the

Federal Power Commission.” See 115 Cong. Ree. 28,971

(1969) (emphasis added). Senator Cooper stated that the leg-

islation would require, “without exception, that all Federal

activities that have any effect on water quality be conducted

" Contrary to petitioner's suggestions (Pet. Br. 23-28), neither Section

304(f)(2MF) nor Section 511(cX2) of the Clean Water Act, 33 U.S.C.

1314(f\(2\F ), 1371(c)(2), suggests anything to the contrary. Section 304(f)

directs EPA to provide guidance for “identifying and evaluating the nature and

extent of nonpoint sources of pollutants, and * * * processes, procedures, and

methods to contro} pollution resulting from,” among other activities, “the

construction of dams.” 33 U.S.C. 1314(f). The fact that the “construction of

dams,” as well as “al) construction activity” (33 U.S.C. 1314(f)(2MC) anc (F )),

may result in nonpoint source pollution provides no basis for exempting the

operation of those dams from Section 401’s express requirements. Section

511(e)(2) provides that nothing in the National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. 4321 et seq., authorizes federal licensing agencies to:

(a) review the “adequacy” of state water quality certifications or other require-

ments established under the Act; or (b) impose effluent limitations beyond

those established in the Act as a condition of licensing. See 33 U.S.C.

1371(cX2). A determination that Section 401 applies to discharges from

federally licensed dams in no way suggests that NEPA authorizea or requires

FERC to evaluate the “adequacy” of state-imposed water quality conditions or

to second-guess applicable effluent imitations.

so that water quality standards will be maintained.” J/bid.

(emphasis added). Those remarks do not stand alone."

When Congress recast the former Section 21(b) as Section

401 of the Federa] Water Pollution Control] Act in 1972, the

Senate Report on the new legislation again confirmed Con-

gress’s intent that the state certification requirement would

apply to Federal Power Act licenses. See S. Rep. No. 414, 92d

Cong., lst Sess. 69 (1971). The Senate Report states that

Section 401 “continues the authority of the State * * * to act

to deny a permit and thereby prevent a Federal license or

permit from issuing to a discharge source within such State or

jurisdiction of the interstate agency” and that “(sJhould such

an affirmative denial occur no license or permit could be is-

sued by such Federal agencies as the * * * Federal Power

Commission * * * unless the State action was overturned

in the appropriate courts of jurisdiction.” /bid. (emphasis

added).

When Congress enacted the Clean Water Act of 1977, Pub.

L. No. 95-217, 91 Stat. 1566, it also reaffirmed its desire for a

broad reading of Section 401. As part of those amendments,

Congress modified Section 401 to add a reference to Section

303 and state water quality standards, which had been inad-

vertently left out of the original version. See § 64, 91 Stat.

1599. The Senate Report explains that the “amendment fol-

lows the original congressional intent and clarifies

that * * * Section 303 was intended to be part of the control

mechanism available to the States for protection of State wa-

ter quality.” S. Rep. No. 370, 95th Cong., lst Sess. 72-73

(1977); see H.R. Rep. No. 830, 95th Cong., Ist Sess. 96 (1977).

That history confirms that Congress enacted Section 401 not

“ For example, the House Report responded to a concern that the provision

would apply selectively to nuclear power plants and thereby place nuclear

power at an “undesirable” competitive disadvantage. The report stated that

“this concern is met by the fact that a Federal license or permit of some kind

is required for almost all electric generating plants.” See H.R. Rep. No. 127,

9ist Cong., Ist Sess. 7 (1969).

as an adjunct to the new federal controls on the “discharge of

pollutants,” but to continue the existing program to empower

States to regulate any “discharge.” from federally licensed

facilities that cause pollution."

In sum, the Clean Water Act’s specific text, this Court’s

decisions, and the purposes that Congress sought to achieve

are all in alignment. Petitioner’s operation of its hydroelec-

tric facilities results in a “discharge” for purposes of Section

401(a) of the Clean Water Act.

'® Petitioner ignores those straightforward statements of congressional

intent, and instead proposes a convoluted and unsatisfying explanation for

Congress's use of the term “includes.” See Pet. Br. 29-33. Petitioner observes

that the original, but not enacted, Senate bill defined “discharge” to “mean,”

among other things, the “addition” of pollutants to navigable waters, see id. at

29-30 (citing S. 2770, 92d Cong., Ist Sess. § 2 (1971) (proposed § 502(n)).

Petitioner posits that Congress substituted the word “includes” in the final

definition, enacted in Section 502(16), in conjunction with an abandoned

legislative effort to include a “thermal discharge” as a type of discharge for

purposes of Section 401, but not for Section 402’s NPDES permitting require-

ments. Petitioner speculates that Congress used the term “includes” inadver-

tently, ie., as a vestige of the failed legislative proposal, and not deliherately

to give Section 401 broader scope than Section 402. See Pet. Br. 32. But such

speculation about Congress’s “true” intent notwithstanding, i.advertent, but

duly enacted, text is not a proper basis for interpreting a statute and is

inconclusive in any event. Congress did not need to use the verb “includes” in

defining “discharge” to achieve the proposed, but ultimately abandoned, result

for “thermal” discharges. The House bill could have achieved that result by

defining “discharge” to “mean” the “discharge of pollutants” and “thermal dis-

charges.” Accordingly, the legislative history cited by petitioner provides no

explanation for Cor-sress’s choice of the word “includes” rather than “means”

in defining “discharge.” The only reasonable conclusion is that Congress meant

what it said and employed “includes” to ensure that the term “discharge” would

be given a broad construction in keeping with its ordinary meaning.

CONCLUSION

The judgment of the Supreme Judicial Court of Maine

should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

THOMAS G. HUNGAR

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

ANN R. KLEE GREER S. GOLDMAN

General Counsel ELLEN J. DURKEE

Environmental Protection JOHN L. SMELTZER

Agency Attorneys

JANUARY 2006

APPENDIX

1. Section 101(a) and (b) of the Clean Water Act, 33

U.S.C. 1251(a) and (b), provides:

Congressional declaration of goals and policy

(a) Restoration and maintenance of chemical, physical and bio-

logical integrity of Nation’s waters; national goals for

achievement of objective

The objective of this chapter is to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters. In order to achieve this objective it is hereby de-

clared that, consistent with the provisions of this chapter—

(1) it is the national goal that the discharge of pollut-

ants into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an

interim goal of water quality which provides for the pro-

tection and propagation of fish, shellfish, and wildlife and

provides for recreation in and on the water be achieved by

July 1, 1983;

(3) it 1s the national policy tnat the discharge of toxic

pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial as-

sistance be provided to construct publicly owned waste

treatment works; ’

(5) it is the national policy that areawide waste treat-

ment management planning processes be developed and

implemented to assure adequate control of sources of pol-

lutants in each State;

(la)

(6) itis the national policy that a major research and

demonstration effort be made to develop technology nec-

essary to eliminate the discharge of pollutants into the

navigable waters, waters of the contiguous zone, and the

oceans; and

(7) itis the national pclicy that programs for the con-

trol of nonpoint sources of pollution be developed and im-

plemented in an expeditious manner so as to enable the

goals of this chapter to be met through the control of both

point and nonpointsources of pollution.

(b) Congressional recognition, preservation, and protection of

primary responsibilities and rights of States

It is the policy of the Congress to recognize, preserve, and

protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, to plan the develop-

ment and use (including restoration, preservation, and en-

hancement) of land and water resources, and to consult with

the Administrator in the exercise of his authority under this

chapter. It is the policy of Congress that the States manage

the construction grant program under this chapter and imple-

ment the permit programs under sections 1342 and 1344 of

this title. It is further the policy of the Congress to support

and aid research relating to the prevention, reduction, and

elimination of pollution and to provide Federal technical ser-

vices and financial aid to State and interstate agencies and

municipalities in connection with the prevention, reduction,

and elimination of pollution.

2. Section 401(a)(1) and (d) of the Clean Water Act, 33

U.S.C. 1341(a)(1) and (d), provides:

Certification

(a) Compliance with applicable requirements; application; pro-

cedures; license suspension

(1) Any applicant for a Federal license or permit to con-

duct any activity including, but not limited to, the construc-

tion or operation of facilities, which may result in any dis-

charge 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 appropriate,

from the interstate water pollution control agency having

jurisdiction over the navigable waters at the point where the

discharge originates or will originate, that any such discharge

will comply with the applicable provisions of sections 1311,

1312, 1313, 1316, and 1317 of this title. In the case of any such

activity for which there is not an applicable effluent limitation

or other limitation under sections 1311(b) and 1312 of this

title, and there is not an applicable standard under sections

1316 and 1317 of this title, the State shall so certify, except

that any such certification shall not be deemed to satisfy sec-

tion 1371(c) of this title. Such State or interstate agency shall

establish procedures for public notice in the case of all appli-

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

propriate, procedures for public hearings in connection with

specific applications. In any case where a State or interstate

agency has no authority to give such a certification, such cer-

tification shall be from the Administrator. If the State, inter-

state agency, or Administrator, as the case may be, fails or

refuses to act on a request for certification, within a reason-

able 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 appli-

cation. No license or permit shall be granted until the certifi-

cation 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.

set @ * ©

(d) Limitations and monitoring requirements of certification

Any certification provided under this section shall set

forth any effluent limitations and other limitations, and moni-

toring requirements necessary to assure that any applicant

for a Federal license or permit will comply with any applica-

ble effluent limitations and other limitations, under section

1311 or 1312 of this title, standard of performance under sec-

tion 1316 of this title, or prohibition, effluent standard, or

pretreatment 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 Fed-

eral license or permit subject to the provisions of this section.

3. Section 502(6), (12), (16), and (19) of the Clean Water

Act, 33 U.S.C. 1362(6), (12), (16), and (19), provides:

Definitions

Except as otherwise specifically provided, when used in

this chapter:

*_ *+ *&*& & &

(6) The term “pollutant” means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, muni-

tions, chemical wastes, biological materials, radioactive mate-

rials, heat, wrecked or discarded equipment, rock, sand, cellar

dirt and industrial, municipal, and agricultural waste dis-

charged into water. This term does not mean (A) “sewage

from vessels or a discharge incidental to the normal operation

of a vessel of the Armed Forces” within the meaning of sec-

tion 1322 of this title; or (B) water, gas, or other material

which is injected into a well to facilitate production of oil or

gas, or water derived in association with oil or gas production

and disposed of in a well, if the well used either to facilitate

production or for disposal purposes is approved by authority

of the State in which the well is located, and if such State de-

termines that such injection or disposal will not result in the

degradation of ground or surface water resources.

* *¢ © & &

(12) The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (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.

**¢ © © &

(16) The term “discharge” when used without qualification

includes a discharge of a pollutant, and a discharge of pollut-

ants.

wa i

(19) The term “pollution” means the man-made or man-

induced alteration of the chemical, physical, biological, and

radiological integrity of water.

4. Section 510 of the Clean Water Act, 33 U.S.C. 1370,

provides:

State authority

Except as expressly provided in this chapter, nothing in

this chapter shall (1) preclude or deny the right of any State

or political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement respecting con-

trol or abatement of pollution; except that if an effluent limi-

tation, or other limitation, effluent standard, prohibition, pre-

treatment standard, or standard of performance is in effect

z 6a

under this chapter, such State or political subdivision or inter-

state agency may not adopt or enforce any effluent limitation,

or other limitation, effluent standard, prohibition, pretreat-

ment standard, or standard of performance which is less

stringent than the effluent limitation, or other limitation, ef-

fluent standard, prohibition, pretreatment standard, or stan-

dard of performance under this chapter; or (2) be construed

as impairing or in any manner affecting any right or jurisdic-

tion of the States with respect to the waters (including bound-

ary waters) of such States.

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.