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

Court, U.S.

FILED

OFFICE OF THE CLERK |

Cin O) he )

Supreme Court of the Cited States

+

S.D. WARREN CO.,

Petitioner,

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

+

ON WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF MAINE

+

BRIEF FOR AMICUS CURIAE AUGUSTA, GEORGIA,

IN SUPPORT OF THE PETITIONER

.

George A. Somerville

Counsel of Record

TROUTMAN SANDERS LLP

Post Office Box 1122

Richmond, Virginia 23218-1122

(804) 697-1200

James B. Wall

BURNSIDE WALL LLP

Post Office Box 2125

Augusta, Georgia 30903

(706) 722-0768

Counsel for Amicus Curiae

Augusta, Georgia

THE LEX GROUP®©© ¢ 1750 K Street, NW ¢ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 * (800) 815-3791 ¢ Fax: (202) 955-0022 ¢ www.thelexgroupdc.com

QUESTION PRESENTED

Does the mere flow of water through an existing

dam constitute a “discharge” under Section 401 of the

Clean Water Act, 33 U.S.C. § 1341, despite this Court’s

holding last year in Miccosukee that a discharge requires

the addition of water from a distinct body of water?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......cscssssssccsssssessessssssssoceseesescenee

Ps A eR Reem Nt ii

TABLE OF AUTHORITIES.......sscsscccsscsssscsssssessssseseseeee iii

INTEREST OF THE AMICUS ....ssssssesessssntsesressnevens 1

SUMMARY OF ARGUMENT...cs-seccccssssssssssssssseesssseceseeee 2

pS LT ROR eT 3

I. The flow of water through a dam is not a

“discharge” within the meaning of Section

401 of the Clean Water Act..........:ccccsesssseseseneseseeees 3

II. If the Court affirms the judgment below, it

should do so on the narrow ground stated by

the Maine Supreme Judicial Court...................... 10

SEG RNID lectntsiienes i nvitiidesipaiienustneineiteabonbiiiennnasiteeintih 13

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Catskill Mountains Chapter of Trout Unlimited,

Inc.v. New York, |

Fe ee GIN Ga. BD ececensensccerncsoneinsnonseresnnpnen 7

City of Augusta, Georgia,

109 F.E.R.C. 4 61,210 (2004).........cccceeeceseseeeees 1,8

Dubois v. United States Department

of Agriculture,

102 F.3d 1273 (1st Cir. 1996) .........cccc0 iii, passim

Gustafson v. Alloyd Co.,

BED TID SER COG ID cscs sevsservrsrsisverinsscinnsmsnanerisnesonens 4

IBP, Inc. v. Alvarez,

__US.__, No. 03-1238 (Nov. 8, 2005)............. 4

National Mining Association v. United States Army

Corps of Engineers,

BED FP BOP COA... Cae, TOF) weecsersesncsccvcesesvinicensees 6

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

Protection,

2005 ME 27, 868 A.2d 210 (2005)............. 7,8,9,11

S.D. Warren Co.,

Sets Te LEI yixsnias tipdniedadachiesbbidshabsionenimbvindel 11

iv

S.D. Warren Co.,

EE ne: Ge cxensininsinitninguciaientiaaaain 11

S.D. Warren Co., -

rs. IIE BE tnstrninnmatinitinncichiianaatinnials 10-11

S.D. Warren Co.,

EP WF ees Oy eae lcnicicniiscenectcniendinidiasiiichiaabaial 10

S.D. Warren. Co.,

Oe aire TF eee iwiscvsintoneniietieiiiaisiiiieatiiiciamiaaaiel 10

South Florida Water Management District v.

Miccosukee Tribe of Indians,

FOE UD, FB CED ccsteccocescecessansenidesosounions i, et passim

State of North Carolina v. FERC,

112 F.3d 1175 (D.C. Cir. 1997), cert. denied,

FES UD. THGD CHIP nccsecomnerevvscvsssiessninntesinatiloteh 5, 6, 7

Virginia Electric and Power Company,

TF PERC. F GRIGG wccoccsesecnsivsnszericreipsncnved 6-7

| STATUTES

SB UB. 8 TGR aceccccssscncivvsissovencsominisiistssetabitentinponinaaiia 5, 6

33 U.S.C. § 1362(16) snsoesesuibeseoedenssovconesandiiseinonniainanetiisiiniiiiinlll 5

Clean Water Act Section 401,

Fe CITA... BH TAU ccocrsnccnsecatesssnttnsiiinduidadaiimaaniines i, et passim

Clean Water Act Section 402, 33 U.S.C. § 1342

Clean Water Act Section 404, 33 U.S.C. § 1344

OTHER MATERIALS

58 Fed. Reg. 45008 (1993) ....cccccscvssssvsssssesesesessevee

U.S. Environmental Protection Agency,

Office of General Counsel Opinion 78-8 ..........

INTEREST OF THE AMICUS

Augusta, Georgia (Augusta), is the site of a pre-

Civil War dam that recently has become the subject of a

dispute under~Section 401 of the Clean Water Act

(CWA), the same federal law that is at issue in the case

at bar. Spanning the Savannah River between Georgia

and South Carolina, the Augusta Diversion Dam was

built in the 1840's, as was the Augusta Canal, a channel

that routes water from che River around the Dam and

back into the River again. Augusta uses this long-

established canal to furnish water to several mills

which, in turn, use the water to generate hydroelectric

power. Recent developments in the law place such

furnishing of water under the purview of the Federal

Energy Regulatory Commission (FERC) and,

accordingly, Augusta has applied for a license from

FERC (the Augusta Project).

Over the objections of Augusta, the FERC has

ordered Augusta to obtain a Section 401 certification -

from South Carolina, under the theory that water

flowing over the Dam constitutes a “discharge into the

navigable waters” in South Carolina. City of Augusta,

Georgia, 109 FERC ¥ 61,210 (2004) (cited in the petition

for certiorari in this case). Inasmuch as the license has

. Augusta, Georgia is the official name of the governmental

entity created by the consolidation of the former City of Augusta

and Richmond County, Georgia. No counsel for any party

authored this brief, either in whole or in part; and no person or

entity, other than Augusta, made any monetary contribution to

the preparation or submission of this brief. Pursuant to Rule 37,

letters of consent from the parties have been filed with the Clerk of

the Court.

not yet been issued, this FERC order is not yet final,

and the decision in the case at bar may provide

guidance on the ultimate resolution of the dispute

concerning that order.

Augusta’s arguments to the FERC are similar to

those presented by petitioner, the S.D. Warren

Company (Warren Company), in this case, and a

decision in the Warren Company’s favor almost

certainly would require the FERC to reverse its order

requiring Augusta to obtain a Section 401 certification

from South Carolina. Due to factual distinctions

between the Augusta Project and the project at issue in

this case, however, affirmance of the Maine Supreme

Judicial Court’s decision would not necessarily control

the disposition of Augusta’s case. Augusta submits

this brief to advocate reversal of the decision below.

Alternatively, if the Court affirms that decision,

Augusta urges the Court to do so on a narrow ground

that observes the distinction between Augusta's case

and this one.

SUMMARY OF ARGUMENT

Under this Court’s Miccosukee decision, a flow of

water from one place to another is not a “discharge,”

within the meaning of the CWA, unless the source and

the destination are “meaningfully distinct water

bodies.” If the two locations are “hydrologically

indistinguishable parts of a single water body,” then

the flow of water from one part co another is not an

“addition” to the navigable waters and hence it is not a

“discharge.” The waters of a river or stream, above

and below a dam, are not “meaningfully distinct.”

They are “hydrologically indistinguishable.” The flow

of water over or through a dam therefore is nota CWA

“discharge” and state certification under Section 401 is

not required.

Alternatively, if the Court affirms the decision

below it should do so on the narrow ground articulated

by the Maine Supreme Judicial Court and by the First

Circuit’s Dubois decision -- that water which is

removed from its natural course, subjected to private

control (e.g., passed through a snowmaking machine),

and then returned to the river below constitutes a

“discharge” to the waters below the point of diversion.

This case does not present the same factual situation as

Augusta’s case, which involves a low-lying diversion

structure which acts passively to allow water to flow

downstream, impelled by gravity and not affected by

any sort of control mechanism. This Court should not

render a decision that predetermines the result of cases

such as Augusta’s, without allowing interested parties

the opportunity to provide full briefing and argument

on an adequate record that properly presents those

questions for decision.

ARGUMENT

I. The flow of water through a dam is not a

“discharge” within the meaning of Section 401

of the Clean Water Act.

This case tests the implications of South Florida

Water Management District v. Miccosukee Tribe of Indians,

941 U.S. 95 (2004). Miccosukee dealt with the question

whether a discharge permit, under the National

Pollutant Discharge Elimination System (NPDES)

created by Section 402 of the CWA, 33 U.S.C. § 1342,

was required for a pumping facility in the Florida

Everglades that transfers water from a canal into a

wetland impoundment. The Court held that the—

dispositive question was whether the canal and the

wetland are “meaningfully distinct water bodies” or

“two hydrologically indistinguishable parts of a single

water body,” and it remanded for further development

‘of that factual question. Miccosukee, 541 US. at 112,

109. If they are not meaningfully distinct water bodies,

then there is no discharge into the navigable waters

and the pump station will not need an NPDES permit.

Id. at 112.

Application of the Miccosukee precedent to the

Warren Company (or Augusta Project) FERC license

proceedings should be simple and straightforward.

The only legal distinction between Miccosukee and this

case is that Miccosukee arose under Section 402 and this

case arose under Section 401 of the same federal Act.

The issue in both cases is the meaning of the statutory

term “discharge”; and “the normal rule of statutory

interpretation [is] that identical words used in different

parts of the same statute are generally presumed to

have the same meaning.” IBP, Inc. v. Alvarez, ___ US.

__, No. 03-1238, slip op. at 11 (Nov. 8, 2005). See also,

e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995),

and cases cited therein.

The only substantive difference between

Sections 401 and 402 is that the former applies to “any

activity ... which may result in a discharge,” while the

latter is limited to activities that result in a “discharge

of a pollutant.” In Miccosukee, however, there was no

dispute that the water transferred from the canal into

the wetland contained a pollutant (phosphorous). See

Miccosukee, 541 U.S. at 102-03. The only issue was

whether the transfer of polluted water from the canal

into the wetland was a “discharge” within the meaning

of the CWA.? The Court held that the answer to that

question turned on whether the canal and the wetland

are “meaningfully distinct water bodies” or “two

hydrologically indistinguishable parts of a single water

body.” Id. at 112, 109.

The CWA does not define the term “discharge”

but describes it as “includ[ing] a discharge of a

pollutant, and a discharge of pollutants.” 33 U.S.C.

§ 1362(16). It does define “discharge of a pollutant,” as

“any addition of any pollutant to navigable waters from

any point source.” 33 U.S.C. § 1362(12); Miccosukee, 541

US. at 102 (emphasis added). Thus “the word

‘discharge’ contemplates the addition ... of a substance

or substances” to the “navigable waters”; and that is

true under both Section 401 and Section 402. That is a

specific holding of State of North Carolina v. FERC, 112

F.3d 1175, 1187 (D.C. Cir. 1997), cert. denied, 522 U.S.

1188 (1998)3 See also, e.g, US. Environmental

. “The District does not dispute that phosphorous is a

pollutant, or that [the canal] and [the wetland] are ‘navigable

waters’ within the meaning of the Act. The question, it contends,

is whether the operation of the S9 pump constitutes the

‘discharge of [a] pollutant’ within the meaning of the Act.”

. “Granted, the congressional instruction of ‘discharge’ in 33

U.S.C. § 1362(16) does not define discharge, but rather describes it

as including ‘discharge of a pollutant’ which Congress has

(footnote continued ...)

Protection Agency, Office of General Counsel Opinion

78-8, at 2-4 (April 19, 1978)*; 58 Fed. Reg. 45008, 45011

(1993)5; Virginia Electric and Power Company, 77 FERC

(footnote continued:)

heretofore defined in § 1362(12) as ‘meaning ... any addition of any

pollutant ....’ (emphasis added). It would seem to us apparent that

since Congress’ meant ‘discharge’ to include ‘discharge of a

pollutant’ then Congress intended the word ‘discharge’ to be

defined in the inclusive use consistently with the included use.

Therefore, if ‘discharge of a pollutant’ requires addition, then the

inclusive understanding of ‘discharge’ also requires an addition.”

North Carolina v. FERC, 112 F.3d at 1187 n.4.

‘ “Section 401(a)(1) grants certification to the State ‘in which

the discharge originates or will originate.’ Under Section 502(12)

the discharge of the pollutant is defined as ‘any addition of any

pollutant to navigable waters from any point source.’ Thus, there

is no discharge until the pollutants enter navigable waters. For the

purposes of Section 401, at least, the discharge thus originates at

the point at which it enters the navigable waters.”

s “EPA and the Corps agree ... that the presence of a

‘discharge’ into waters of the U.S. is an absolute prerequisite to an

assertion of regulatory jurisdiction under Section 404 [of the CWA,

33 U.S.C. § 1344, which applies only when there is a ‘discharge of

dredged or fill material into the navigable waters’) .... [T]his has

been the agencies’ long-standing position, and we are not altering

that view in this rulemaking. For the reasons explained in this

preamble, the agencies believe that addition or redeposition of

dredged material in the course of activities such as mechanized

landclearing, ditching, channelization and other excavation meets

the discharge requirement ....” Cf. National Mining Ass’n v. United

States Army Corps of Engineers, 145 F.3d 1399, 1404 (D.C. Cir. 1998)

(invalidating the specific regulation announced in the cited

Federal Register notice, on the ground “that the straightforward

statutory term ‘addition’ cannot reasonably be said to encompass

the situation in which material is removed from the waters of the

United States and a small portion of it happens to fall back”).

7

4 61138 (1996), affd, North Carolina v. FERC, 112 F.3d

1175 (D.C. Cir. 1997) (“We believe that Congress

intended the word ‘discharge’ to include only

substances that are added to the water in some manner

..."). Even the court below agreed, in this case, that

“fa]n ‘addition’ is the fundamental characteristic of any

discharge.” S.D. Warren Co. v. Board of Environmental

Protection, 2005 ME 27, ¥ 11, 868 A.2d 210, 215 (2005).

That legal conclusion is virtually compelled by the

definitional language of the CWA, and to the best of

our knowledge it has never been disputed or

questioned by any credible authority.

In Miccosukee, the Court noted with approval the

Miccosukee Tribe’s concession “that if [the canal] and

[the wetland impoundment] are simply two parts of the

same water body, pumping water from one into the other

cannot constitute an ‘addition’ of pollutants.” 541 U.S.

at 109 (emphasis added). Continuing, the Court quoted

from Catskill Mountains Chapter of Trout Unlimited, Inc.

v. New York, 273 F.3d 481, 492 (2d Cir. 2001), as follows:

““Ti]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.” The

dispositive question therefore was whether the canal

and the wetland are “two pots of soup” or one.

Miccosukee, 541 U.S. at 110.6 That likewise is the

dispositive question here.

‘ Cf. Catskill Mountains Chapter, 273 F.3d at 493, discussing

Dubois v. United States Dep’t of Agriculture, 102 F.3d 1273 (1st Cir.

1996) (“The court held that the transfer of polluted water from one

water body [a river] to a distinct water body {a pond upstream of

the river] constitutes an ‘addition’ of pollutants to the destination

(footnote continued ...)

The Maine Supreme Judicial Court apparently

was unwilling to follow the logical implications of the

Miccosukee decision, however.” It held instead that the

operation of the Warren Company’s dams “does result

in an addition to the waters of the Presumpscot River”

because the dams “remove the water of the river from

its natural course, exercise private control over the

water and then add the water back into the river.” 2005

ME 27, 94 12, 13, 868 A.2d at 215, 216 (emphasis in

(footnote continued.)

water body. The court emphasized that the two bodies of water,

for all relevant purposes, were distinct: although water naturally

flowed from the pond into the river, water would never naturally

flow from river to pond. “That difference made the pumping an

‘addition’”) (emphasis added).

’ The FERC was similarly unwilling to follow Miccosukee in its

decision in Augusta’s case. It stated that Augusta’s argument

“reads too much into Miccosukee,” because “that case involved the

necessity for obtaining an NPDES permit under CWA section 402,

which is not the case here.” City of Augusta, Georgia, 109 FERC 4

61,210 at P 11. It also reasoned that “[w]Jater passing through the

project impoundment may be changed in temperature or in

chemical composition. Also, the act of flowing over the dam may

alter certain characteristics of the water, such as its dissolved

oxygen content.” I[d., P 12 (footnote omitted).

That analysis misses the point. A discharge is an addition,

whether under Section 402 or Section 401. If there were a

discharge, a finding of changes in temperature or chemical

composition might lead to a conclusion that there is a discharge of

pollutants; but that does not address the question whether there is

a discharge, which is the only appropriate question under Section

401. Im Miccosukee the presence of pollutants in the water

transferred from the canal to the wetland impoundment was

acknowledged by all parties and by the Court; but that fact did not

affect the critical question, in that case as in this one, whether there

was a discharge at all.

original). “[W]ater that has left its natural state and has

been subjected to man-made control constitutes an

‘addition’ upon its return to the same navigable

waterway.... Therefore, water that leaves the river and

runs through the dam before returning to the river

constitutes a discharge for the purposes of Section

[401].” Id. at § 17, 868 A.2d at 217.

The Maine Supreme Judicial Court erred.

Application of its reasoning to the Miccosukee case

would have led to a different result. Miccosukee turned

on the hydrologic relationship between the canal and

the- wetland impoundment. As described in that

decision, “a large pump station known as ‘S-9’” pumps

water out of the canal and into the wetland, sixty feet

away. 541 US. at 100. The S-9 pump station

undeniably subjects the water to “man-made control,”

in the words of the decision below in this case. “The

District Court certainly was correct to characterize the

flow through the S-9 pump station as a non-natural

one, propelled as it is by diesel-fired motors against the

pull of gravity.” Miccosukee, 541 U.S. at 111. Under the

Maine Supreme Judicial Court’s reasoning, therefore,

pumping the water from the canal into the wetland is a

“discharge” as a matter of law. This Court did not see

the matter that way, however. The dispositive issue to

be addressed on the remand in Miccosukee had nothing

to do with the pumping or “man-made control” of the

water, but whether the canal and the wetland are

“meaningfully distinct water bodies”; and if they are

not, “then the S-9 pump station will not need an

NPDES permit.” Id. at 112.

10

The portions of a river above and below a dam

which temporarily interrupts the river’s flow are not

“meaningfully distinct water bodies.” Id. They are

“two hydrologically indistinguishable parts of a single

water body.” Id. at 109. Water flowing over the dam

therefore is not added to the “navigable waters” below

the dam, and there is no “discharge into the navigable

waters” below that dam. CWA § 401(a)(1) (emphasis

added). The logic employed in Miccosukee compels the

conclusion that Section 401 does not apply.

That is the case with the Augusta Diversion

Dam. Water flows continuously downstream, over the

dam, and it would continue to flow downstream if the

dam were removed. There is no disputing the fact that

the sections of the Savannah River above and below the

dam are simply two parts of the same water body.

Water flowing over the dam therefore is not added to

the “navigable waters” below the Dam, there is no

“discharge into the navigable waters,” and Section 401

does not apply.

Il. If the Court affirms the judgment below, it

should do so on the narrow ground stated by

the Maine Supreme Judicial Court

The Warren Company’s hydroelectric dams, at

issue in this case, include intake structures,

powerhouses, and river bypasses that convey water

from the project dams to the downstream end of their

tailrace channels. See S.D. Warren Co., 105 FERC

4 61,013 at P10 (2003) (Saccarappa Project); S.D.

Warren Co., 105 FERC 61,012 at P13 (2003) (Little

Falls Project); S.D. Warren Co., 105 FERC { 61,011 at

11

P 14 (2003) (Mallison Falls Project); $.D. Warren Co., 105

FERC {61,010 at P13 (2003) (Gambo Project); S.D.

Warren Co., 105 FERC 4 61,009 at P 13 (2003) (Dundee

Project).

As discussed above, the Maine Supreme Judicial

Court held that the operations of those dams result in

an addition to the waters of the Presumpscot River on

the ground that “water that has left its natural state

and has been subjected to man-made control

constitutes an ‘addition’ upon its return to the same

navigable waterway.... Therefore, water that leaves

the river and runs through the dam before returning to

the river constitutes a discharge for the purposes of

Section [401].” 2005 ME 27, 4 17, 868 A.2d at 217. It

relied in part on Dubois v. United States Dep’t of

Agriculture, 102 F.3d 1273, 1297 (1st Cir. 1996), which

held that water passing through snowmaking pipes

“leaves the domain of nature and is subject to private

control rather than purely natural processes. As such,

it has lost its status as waters of the United States.”

That reasoning does not apply to Augusta’s

case. The Augusta Diversion Dam has no intake or

powerhouse. It has no gates, flashboards, spillway or

valves which release water into the River, and no

Operator triggers any such releases. It is a low-lying

diversion structure with no significant impoundment,

little more than a weir. It acts passively to allow water

to flow downstream, impelled by gravity and not

affected by any sort of control mechanism. Augusta’s

case thus does not present the question of application

of Section 401 to a facility in which water is diverted

12

through a powerhouse and bypasses some portion of

the stream.

The Augusta Canal headgates are located

adjacent to the Augusta Diversion Dam and control the

flow of water through the canal, which parallels an

approximately seven-mile reach of the Savannah River.

The reasoning of the Dubois decision and the decision

below therefore might be applied to the water flowing

from the Augusta Canal through the mill powerhouses,

but not to the water that flows over the Augusta

Diversion Dam. No part of the Augusta Canal is

located in South Carolina. Application of the reasoning

employed by Dubois and the Maine Supreme Judicial

Court therefore would require Augusta to obtain a

Section 401 certification from Georgia but not from

South Carolina, contrary to the FERC’s decision in its

case.

If the Court determines to affirm the decision

below, Augusta urges it to do so on the narrow ground

stated in Dubois and the decision below. We

respectfully submit that the Court should not announce

a broadly worded decision that would lead the FERC

and the lower courts to conclude that all water that

flows over or through a dam necessarily constitutes a

“discharge” within the meaning of the CWA.

Questions arising from cases such as Augusta’s are not

presented in this case, and therefore the Court should

be careful not to predetermine the result of such cases

without allowing interested parties the opportunity to

provide full briefing and argument, on an adequate

record that properly presents those questions for

decision.

13

CONCLUSION

For the foregoing reasons, the decision of the

Maine Supreme Judicial Court should be reversed or,

in the alternative, affirmed on the narrow grounds

stated in that decision.

Respectfully submitted,

AUGUSTA, GEORGIA

George A. Somerville (Counsel of Record)

Troutman Sanders LLP

P.O. Box 1122

Richmond, Virginia 23218-1122

(804) 697-1200 (Phone)

(804) 698-5149 (Fax)

George.Somerville@troutmansanders.com

James B. Wall

Burnside Wall LLP

P.O. Box 2125

Augusta, Georgia 30903

(706) 722-0768 (Phone)

(706) 722-5984 (Fax)

jbwall@burnsidewall.com