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

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No. 04-1527: a —

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| OFFICE OF THE Gea -

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IN THE

Supreme Court of the

oe S.D. WARREN COMPANY,

Petitioner,

Vv.

MAINE BOARD OF ENVIRONMENTAL PROTECTION,

Respondent.

On Writ of Certiorari to the

Maine Supreme Judicial Court

AMICUS CURIAE BRIEF OF NATIONAL WILDLIFE

FEDERATION, ET AL.,

IN SUPPORT OF THE RESPONDENT

JAMES MURPHY DAVID K. MEARS

WETLANDS AND WATER ENVIRONMENTAL AND NATURAL

RESOURCES COUNSEL RESOURCES LAW CLINIC

NATIONAL WILDLIFE VERMONT LAW SCHOOL

FEDERATION PO Box 300

58 State Street South Royalton, Vermont 05068

Montpelier, Vermont 05602 (802) 831-1627

sags Aeneid Counsel of Record for Amici

Counsel for Amicus Curiae Curiae National Wildlife

National Wildlife Federation, et al.

Federation

[Other Amici Listed Inside Front Cover]

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

OTHER AMICI

Alabama Rivers Alliance ¢ American Whitewater ¢ Anglers

of the Au Sable @ Appalachian Mountain Club @ California

Sportfishing Protection Alliance # Carolina Canoe Club @

Catawba Riverkeeper Foundation ¢ Center for Environmental

Law and Policy # Connecticut River Watershed Council ¢

Conservation Law Foundation ¢ Deerfield River Watershed

Association ¢ Environment Maine ¢@ Foothill Conservancy

Friends of Butte Creek @ Friends of Hurricane Creek ¢@

Friends of Merrymeeting Bay ¢@ Friends of the Columbia

Gorge @ Friends of the Crooked River @ Friends of the Eel

River @ Friends of the River ¢ Georgia Canoeing Association

¢ Idaho Rivers United @ Maine Rivers ¢ Montana River ©

Action @ Mountain Meadows Conservancy ¢ Natural

_ Resources Council of Maine @ Natural Resources Defense

Council ¢ New Hampshire Rivers Council] ¢ New York

Rivers United @ Northwest Resource Information Center ¢

Ohio Greenways @ Oregon Natural Resources Council ¢

Pamlico-Tar Riverkeeper @ Patapsco Riverkeeper @ River

Alliance ¢ Rivers Alliance of Connecticut ¢ Rivers Unlimited

¢@ Saluda-Reedy Watershed Consortium @ Save Our Satilla

South Carolina Progressive Network @ South Yuba River

Citizens League @ Southern Environmental Law Center ¢

Tennessee Clean Water Network @ Upper Chattahoochee

Riverkeeper @ Upstate Forever ¢ Washington Kayak Club

¢ Water Stewards Network # Wateree Homeowners

Association # Waterkeeper Alliance ¢ West/Rhode River-

keeper @ West Virginia Rivers Coalition.

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ......ccccccocsossccsccscossnscsssossees

SUR EEEE GW SRG vrncececncestsncseesevepenccsnstacqenepensotnenten

SUMMARY OF ARGUMENT ..............:ccsssssseseeseeensees

FTE evistacssiniiniineveivntenitinatsnatninesensmiinnieiiein

Il.

DAMS CAUSE POLLUTION ..............:cccceceees

A. Federal And State Agencies Have Con-

cluded That Dams Cause Water Pollution...

1. Environmental Protection Agency And

State Water Pollution Control Agencies ..

2. Federal Energy Regulatory Commission..

B. Federal and State Courts Have Concluded

That Dams Cause Water Pollution ..............

C. $.D. Warren Does Not Dispute That Its

Dams Cause Water Pollution.......................

THE CLEAN WATER ACT AUTHORIZES

STATES TO PROTECT WATER QUALITY

FROM POLLUTION BY DAMS ...........00.000000

A. The Plain Language Of Section 401 Auth-

orizes State Water Quality Certifications

Pee NN wacisicasiddaieapoubenpetiapesbatebiinalaplngiiaants

B. The Clean Water Act Is Intended To

Address Water Pollution From Dams..........

1. Congress Expressed Its Intent To

Address Water Pollution From Dams

Through The Goals And Structure Of

SE cenincpibetebatinmatineniicmmnnnanieniedes

TABLE OF CONTENTS—Continued

Page

2. The Legislative History Of Section 401

Supports A Finding That Congress

Intended States To Have The Authority

To Address Water Pollution From

See pnctaitinesdeniiastihatatoniemnpidimetadinminapisoees 21

lil. STATE WATER QUALITY CERTIFICA-

TIONS ARE NECESSARY TO ADDRESS

POLLUTION FROM DAMG.........ccscccesseesseeees 22

A. Section 401 Authority Over Pollution From

Dams Is Critical To Siate Achievement Of

Water Quality Standards... .cccssesssseeeees 22

B. States Can Make Real Improvements In

Water Quality By Addressing The Pollu-

tion From Dams In Section 401 Water

Quality Certifications ..............cccceeeeseeeeees 25

UE AIIOY cncccencsesseninereessmastensncetsennnessesenenneesnneeqends 29

iii

TABLE OF AUTHORITIES

CASES Page

California v. FERC, 495 U.S. 490 (1990)............. 24

First Iowa Hydro-Electric Cooperative v. Fed-

eral Power Commission, 328 U.S. 152 (1946).. 24

Georgia Pacific Corp. v. Vermont Dept. of Envi.

Conservation, 35 E.R.C. 2046 (Vt. Super. Ct.

1991), aff'd 628 A.2d 944 (Vt. 1992), cert

den’d 511 U.S. 1141 (1994) oe 16

National Wildlife Federation v. Consumers Power

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

National Wildlife Federation v. Gorsuch, 693

Fe TSO GAL. Cae. Fie cvncsccstnnseciccnttiimsimaitiins 15

National Wildlife Federation v. Gorsuch, 530

F.Supp. 1291 (D.D.C. 1982).........sccsrccessseeses 14, 15, 16

Power Authority of State of N.Y. v. Williams, 101

A.D. 2d 659, 475 N.Y.S. 2d 901 (N.Y.A.D. 3d

GR. CIID nscncincstocovsnnesenvisinnidinmmasiabinipimumnaialll 16

Power Authority of State of N.Y. v. Flacke, 94

A.D. 2d 69, 464 N.Y.S.2d 252 (N.Y.A.D. 3d

IIR, TEI vcrunssnicescecicisrneiniintpicateeaiiaiianiauaiat 16

PUD No.1 of Jefferson County v. Washington

Department of Ecology, 511 U.S. 700

CRED nsecsernsesmsscsinianiarssesiaminintaadaal 4, 14, 19, 23

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

Protection, 868 A.2d 210 (Me. 2005) ............... 17

State of Missouri ex rel. Ashcroft v. Department

of the Army, 672 F.2d 1297 (8th Cir. 1982)...... 15

U.S. ex rel. Tennessee Valley Authority v.

Tennessee Water Quality Control Board, 717

FBG SOS RRs Cie. FD cccccsencrstsintiictasitimmaiundiiae 16

TABLE OF AUTHORITIES—Continued

ADMINISTRATIVE DECISIONS Page

California State Water Resources Control Board,

In the Matter of Water Quality Certification

for the Southern California Edison Company

Lower Tule River HydroelectricProject, FERC

Project No. 372 (March 5, 2004), available at

http://www. waterrights.ca.gov/FERC/LowerT

I iritinecetnendensnttipdntendenstneeentnemnteenenem 27

City of Augusta, Georgia, 109 FERC 61,210

nn Tr iaerseaieapetnntaesinaintmanpatannseanen 13

Federal Energy Regulatory Commission, Port-

land General Electric Company and Confed-

erated Tribes of the Warm Springs Reservation

of Oregon, Order Approving Settlement and

Issuing New License, Project No. 2030-036, at

23, 109-126, (June 21, 2005) available at http://

www.ferc.gov/whats-new/commmeetv/06 1 505/H-

Ian itariaccitlteinicnittatinetaieebnetenibapenncamatncttimmmnnsennes 27, 28

FPL Energy Maine Hydro LLC, 111 FERC

ee 13

Oregon Department of Environmental Quality,

Evaluation and Findings Report on the Appli-

cation for Certification Pursuant to Section

401 of the Federal Clean Water Act for The

Relicensing of Pelton Round Butte Hydro-

electric Project (FERC No. 2030) (June 19,

2002), available at http://www.deq.state.

or.us/wq/40 1 Cert/401 CertHom.htm ...............0+ 28

U.S. Environmental Protection Agency, EPA-

New England’s Review of Maine’s Salmon

Falls/Piscataqua River TMDLS, (November

1999), available at http://www.epa.gov/region |

/ecoAmdl/assets/pdfs/me/salmonfallsriver.pdf .. 12

TABLE OF AUTHORITIES—Continued

Page

U.S. Environmental Protection Agency, Wash-

ington Department of Ecology and Spokane

Tribe of Indians, Total Maximum Daily Load

for Total Dissolved Gas in Mid-Columbia

River and Lake Roosevelt (June 2004),

available at http://www.ecy.wa.gov.pubs/

III cdiiinsovcttilenssscictasiintintiindaginalittaalalnistienedi 12

STATUTES

OE i 9

Be ars ae ID venpctcgnccenennennsitnensnnnanscenianenin 4,23

TERETE BES: 4, 20

i te SE intnecendeccicminnensieemapenininiginnmutitii 20

I FIN TTT tari iatenassenneastiiniinsaiiinicniienas 20

is te SE ccciterscsntettireenremamnstttabimniatneaditied 4, 23,24

Ut CTI isccientnssnssiicssenetemmmemnianianti 11, 24, 26

es ie ni cinshirnnascenrdtinngeslibiiemsisbbisamemanies 24

er es ae HE tecicapencnnepenstiisnnattninaretapienennaii 14

33 U.S.C. § 1314(f)(1) & (2) part (F)................02.. 10

ied TE citi cnenrininneenerenetinnssnginenasiiniinintnieianie 20

en TT cicsienenisintenteevemnstiaaiannineanntennioeds 18

33 U.S.C. § 1341(a){1)............. eiinietsietiatiiaincenatials 2, 23

ee TEE ines seccninnsrcisniicensemnpmeeniianeeliiiiay 23

TTS ene Cn 15

Etc i cicincrecttnnhaninansimtaertepmntinmeninenitie 18

es ie I ciiciiccinctniicnncecscnsiennitpeninoneinneel 19

ee siniinicnereniniasticiabanserniiaitinintidie 18

le Oe ee ccecintnicrncescsneimnintannegatenis 2, 4, 19, 20

ETE 20

Federal Water Pollution Control Act Amend-

ments of 1987, Pub. L. No. 100-4, Title V,

Te 10

Water Quality Improvement Act of 1970, Pub. L.

No. 91-224, § 21(b), 84 Stat. 91 (1970) ............ 21

TABLE OF AUTHORITIES—Continued

REGULATIONS

ici iaibiciesiteintniishiitintiiin

ESR

40 C.F.R. § 130.5(0)(3) ..ccccccceccsssccsssssessesccsccessescees

40 C.F.R. § 130.6(C)(1), (6) .ccccsccccssssvecescsscssvesesesen

LEGISLATIVE HISTORY

117 Cong. Rec. 38,854 (1972) reprinted in A

Legislative History of the Water Pollution

Control Act Amendments of 1972. Vol. 2..........

H.R. Rep. No. 127 (1970), reprinted in 1970

RNS GENE cnicnsresnintrecmnstensinenenenennnton

COURT RULES

S. Ct. R. 37.3(a) and 37.6.............. raatnsiinesatinnnnebaniatiatn

OTHER REFERENCES

Abernathy, C.S., and B.G. Amidan, U.S. Depart-

ment of Energy, Laboratory Studies of the

Effects of Pressure and Dissolved Gas Super-

saturation on Turbine-Passed Fish, DOE/ID-

10853 (March 2001), available at http://

hydropower. id.doe.gov/turbines/pdfs/doeid-

ee ertceninnenciectgnnbicnnenieprscesmnnianteniitinies

American Heritage Dictionary 4h Edition,

available at http://www.bartleby.com/61/46/

A DE

American Rivers, American Rivers Dam

Removal Toolkit Bibliography available at

http://www.americanrivers.org/site/PageServe

r?pagename=AMR_content_2€1C. ....c0c0s00000000

Bednarek, A.T., Undamming Rivers: A Review of

the Ecological Impacts of Dam Removal, 27(6)

SO TRU, GUD crenrensencsssstemenssneessesssmanene

vii

TABLE OF AUTHORITIES—Continued

Bednarek, A.T. and D.D. Hart, Modifying Dam

Operations to Restore Rivers: Ecological

Responses to Tennessee River Dam Mitiga-

tion, 15(3) Ecological Applications (2005).......

Beiningen, K.T. and W.J. Ebel, Effect of John Day

Dam on Dissolved Nitrogen Concentration and

Salmon in the Columbia River 1968, 99

Transactions Am. Fish. Soc’y (1970)..............00++

Chelan Public Utility District, Chelan River

(Bypassed Reach) Comprehensive Manage-

ment Plan, Lake Chelan Hydroelectric Proj-

ect, FERC Project No. 637, (December 2001),

available at http://www.chelanpud.org/

relicense/study/reports/6149_6. pdf ...........00.00+

Collier, M., R.H. Webb and J.C. Schmidt, U.S.

Geological Survey, Dams and Rivers: Primer

on the Downstream Effects of Dams, USGS

Circular (1996), available at http://pubs.er.

Page

» USZS.ZOV/PUDS/Cir/Cir 1 1 26.........c00erseeeeeeeeees 6, 7, 8, 9, 25

Dynesius M. and C. Nilsson, Fragmentation and

Flow Regulation of River Systems in the

Northern Third of the World, 266 Science

oo een

Graf, W.L., Dam Nation: A geographic census

of American dams and their large-scale

hydrologic impacts, 35(4) Water Resources

BO, Ge ie ctcncnrnnerinenencsntamnepiativeries

H. John Heinz III Center for Science, Economics

and the Environment, Dam Removal: Science

and Decision Making, References (2002) avail-

able on-line at Attp://www.heinzctr.org/NEW_

WEB/PDF/Dam_removal_full_report.pdf ..........

2,7

Vili

TABLE OF AUTHORITIEs—Continued

Hayes, D.F. et. al., Enhancing Water Quality in

Hydropower System Operations, 34(3) Water

Resources Res. (March 1998)...............ccseeeeeee

John Crossman and Assoc., U.S. Environmental

Protection Agency, Evaluation of Hydro-

power Projects and Identification of Potential

Opportunities for Pollutant Trading, (2001),

available at http://www.epa.gov/msbasin/pdf/

hydropower _final. Pdf ........1...cssecssssesesseeersnsseners

Ligon, F.K., W.E. Dietrich, W.J.Trush, Down-

stream Ecological Effects of Dams, 45(3)

Bioscience (March 1995).............cccsssceeeeseeseeees

McCartney, M.P., C. Sullivan, and M.C.

Acreman, Center for Ecology and Hydrology,

UK, IUCN—The World Conservation Union,

Ecosystem Impacts of Large Dams, Contrib-

uting Paper to the World Commission on

Dams, further information available at http://

National Research Council, National Academy of

Sciences, New Strategies for America’s Water-

sheds, (1999), available at http://www.nap.

edu/books/0309064 17 [Mtl .........cccccceceseeeeereees

National Research Council, National Academy of

Sciences, Upstream: Salmon and Society in

the Pacific Northwest, (1996), available at

http://books.nap.edu/books/0309053250/html/

ROEDER cnnvcinscesssneresntsmsassiemainnegrimininns

Pauley, G.B. and R.E. Nakatani, Histopathology

of “Gas-bubble” Disease in Salmon Finger-

lings, 24 J. Fish. Res. Board Can.(1967)...........

Page

26, 27

6,7

7, 26

TABLE OF AUTHORITIES—Continued

Peterson, M.J. et. al., U.S. Department of Energy,

Regulatory Approaches for Addressing Dis-

solved Oxygen Concerns at Hydropower Fa-

cilities, DOE/ID-11071 (March 2003), Avail-

able at http://hydropower.id.doe.gov/turbines

MpAfs/doeid-1 1071. pdf. .........0sssssssersessessersorsesees

Poff, N.L. and D. D. Hart, How Dams Vary and

Why It Matters for the Emerging Science of

Dam Removal, 52(8) Bioscience (August

2002), available at http://rydberg.biology.

colostate.edu/poffpubs/Poff2002(BioScience_d

Poff, L. N. et. al., The Natural Flow Regime: A

Parndigm for River Conservation, 47(11) Bio-

science (December 1997), available at http://

rydberg. biology.colostate.edu/poffpubs/Poff19

97%28BioScience_NFRY%29. pdf .........0c00ecevse00ee

Tennessee Valley Authority, Water Quality,

available at http://www.tva.gov/environment/

I eccccntcrintoninntnsccsctnatissemnctetatinmcene

Tremolieres, M., et. al., Jmpact of river manage-

ment history on the community structure,

species composition and nutrient status in the

Rhine alluvial hardwood forest, 135 Plant

CRU cccnccctennssentcacsscitiangsieinensnecticeneees

U.S. Army Corps of Engineers, National Inven-

tory of Dams, available at http://crunch.tec.

army.mil/nid/webpages/nid.CfM ..........0..0.-00000++

U.S. Department of Energy, Hydropower: En-

vironmental Issues and Mitigation, avail-

able at http://www.eere.energy.gov/RE/hydro_

eo cate tttaaetcancterseccscinnsetpeniitintitadsiianin

Page

6, 26

5,9

TABLE OF AUTHORITIES—Continued

U.S. Environmental Protection Agency, 2002

National Assessment Database, available at

http://www. epa.gov/waters/305b/index. html .....

U.S. Environmental Protection Agency, TMDL

Website, available at http://www.epa.gov/

CIE ccccctvtatetemevtiemtecansenesenenneietnenn

U.S. Environmental Protection Agency, Colum-

bia/Snake River Problem Assessment for

Temperature, EPA Region 10 Fact Sheet No. 6

(Fall 2001), available at http://yosemite.

epa.gov/R10/WATER.NSF/840aSde5d0a8d141

8825650007 1 5a27/a2d0d5ba536f136288256a

94006304a4/$FILE/cr%20tmdl%20fs%20%23

ee iiiictinistapcanistadiaetanetiiitamincsdcseangieien

U.S. Environmental Protection Agency, Control

of Pollution from Hydrographic Modifications,

EPA 403/9-73-O17 (1973) .......ccccccscesseeseeseeeseees

U.S. Environmental Protection Agency, Guid-

ance Specifying Management Measures for

Sources of Nonpoint Pollution in Coastal

Waters, Chapter 6, Section VI.B. available at

http://vww.epa.gov/nps/MMGI/Chapter6/ch6-

U.S. Environmental Protection Agency, Report

to Congress: Dam Water Quality Study, EPA

506/2-89/002 (Match 1989)..........:ccsccereseereers

U.S. Fish and Wildlife, Hydropower: Environ-

mental Issues, available at http://www.fws.

gov/habitatconservation/hydro_issues.pdf........

U.S. National Park Service, River and Water

Facts, available at http://www.nps.gov/rivers/

STATI TIIIEE scrrercscotenteccsssesenininmecenaetnmnenes

Page

10, 15

11, 25

TABLE OF AUTHORITIES—Continued

Page

Westgard, R.L., Physical and Biological Aspects

of Gas-bubble Disease in Impounded Adult

Chinook at McNarv Spawning Channel, 93

Transactions Am. Fish. Soc’y 306 (1964)......... 9

World Commission on Dams, Dams and Devel-

opment: A New Framework for Decision-

Making, (November 2000) available at http://

INTEREST OF AMICI

The amici curiae listed above are a broad array of national,

regional, state and local organizations with a strong and

demonstrated interest in protecting our Nation’s waters and

ensuring the proper implementation of the Clean Water Act

(CWA or Act). Throughout the history of the Act, these

organizations have collectively pursued this interest at the

state and federal levels through testimony before legislatures,

participation in administrative actions, and litigation in the

courts. These organizations’ members seek to protect their

use of the Nation’s waters for a wide array of purposes

including swimming, boating, fishing, hunting, scientific

study, drinking water and food supply.’

SUMMARY OF ARGUMENT

Dams cause pollution. While they provide many benefits,

dams have a significant impact on the water quality of

hundreds of thousands of stream and river miles across the

United States.* In this country, we have built over seventy-

nine thousand 'arge dams.? Dams are located in every major

watershed in the United States and are one of the most

' Pursuant to S. Ct. R. 37.3(a) and 37.6, the undersigned represents that

(1) all parties consented to the filing of this brief, (2) no counsel for any

party authored this brief in whole or part, and (3) no person or entity other

than the above-named amici curiae and their counsel made a monetary

contnbution to the preparation or submission of this brief.

? U.S. National Park Service, River and Water Facts, available at

http://www.nps.gov/rivers/waterfacts.html (“Currently, 600,000 miles of

our rivers lie behind an estimated 60,000 to 80,000 dams.”).

> The U.S. Army Corps of Engineers (Corps) has compiled data on

approximately 79,000 large dams (dams are defined by the Corps as

“large” if (1) over six feet high with more than fifty acre-feet of storage,

(2) over twenty-five feet high with more than fifteen acre-feet of storage,

and (3) any dam that poses a significant downstream threat to human lives

or property). U.S. Army Corps of Engineers, National Inventory of Dams,

available at http://crunch.tec.army.mil/nid/webpages/nid.cfm.

significant factors affecting the ecological health of the

Nation’s river systems.* The water quality impacts of dams

include changes to the physical, chemical and biological

characteristics of waters both upstream and downstream of

the dams. These changes, defined as “pollution”’ under the

Clean Water Act, are a major obstacle to the maintenance and

recovery of the many uses, from recreation to subsistence, the

American public makes of our nation’s rivers and streams.

For this reason, Congress gave states, tribes and the federal

government the authority to address the kinds of water quality

impacts created by dams through the Clean Water Act. One

of the Act’s tools for controlling such impacts is the authority

given to states under Section 401(a)(1) to issue or withhold

water quality certifications as a pre-condition to the issuance

of federal licenses for activities which involve “any

discharge” into navigable waters. 33 U.S.C. § 1341(a)(1).°

The Act does not require the “addition of pollutants” in order

to trigger Section 401; the flow of water through a dam is

sufficient. A plain reading of the Clean Water Act makes

clear that the term “discharge” as used in Section 401 is

intentionally broad enough to authorize state water quality

certifications for the relicensing of dams like S.D. Warren’s.

* Dynesius M.-and C. Nilsson, Fragmentation and Flow Regulation of

River Systems In The Northern Third Of The World, 266 Science 753-762

(November 4, 1994); Graf, W.L., Dam Nation: A geographic census of

American dams and their large-scale hydrologic impacts, 35(4) Water

Resources Research 1305-1311 (April 1999).

* “The term ‘pollution’ means the man-made or man-induced alteration

of the chemical, physical, biological, and radiological integrity of water.”

33 U.S.C. § 1362(19).

° Section 401(a)(1) refers to states as the primary implementers of the

water quality certification provision. 33 U.S.C. § 1341(a)(1). In some

cases, the United States Environmental Protection Agency (EPA), inter-

state agencies, and Tribes are authorized to issue water quality certifi-

cations. For ease of reference, this brief will refer to “state” authority as a

substitute for “federal, tribal and state” authority.

Y ce

Such dams interfere with the achievement of uses designated

in state water quality standards and thereby cause “pollution.”

S.D. Warren argues that this Court should ignore Section

401’s plain language and instead import new language that

creates a gaping hole in the ability of states to protect and

restore the water quality of their rivers and streams. To

accept S.D. Warren’s argument that Section 401 of the Act

should not apply to the discharge of water through dams

unless there is a “discharge of pollutants” would not only

require this Court to misconstrue the language, structure and

goals of the Clean Water Act, but to ignore a wealth of

widely-accepted scientific literature and federal agency,

judicial and legislative findings.

Through the application of Section 401, states are making

real progress in protecting and restoring the biological,

physical and chemical integrity of those of the Nation’s

waters impacted by dam pollution. States will, however, be

unable to fulfill their congressionally authorized respons-

ibility to protect water quality in the absence of authority to

issue water quality certifications. For this reason, this Court

should summarily reject S.D. Warren’s reading of the Act and

affirm the Maine Supreme Judicial Court’s decision.

ARGUMENT

The issue before this Court as framed by S.D. Warren is

whether Section 401 state water quality certification authority

is tiggered only where a dam results in a “discharge of a

pollutarit.” The real issue, however, is much broader:

whether states have the authority under Section 401 to protect

the full range of uses designated under federally approved

state water quality standards which are impacted by hydro-

power dams.

A good starting point for addressing this issue is to ask

what Congress meant by its policy “to recognize, preserve

and protect the primary responsibilities and rights of States

to prevent, reduce and eliminate pollution.” 33 U.S.C.

§ 1251(b). Looking to the Act, “pollution” is defined as

encompassing all human activities that alter the chemical,

physical and biological integrity of water. 33 U.S.C.

§ 1362(19). Consistent with this broad definition and in order

to achieve the Act’s ambitious policy, Congress authorized

states to protect and restore beneficial uses of rivers and

streams through the adoption and achievement of water

quality standards. 33 U.S.C. § 1313. These standards are a

powerful tool for combating pollution because they include

not only numerical criteria, but designated uses adopted

pursuant to the Act’s goal to provide for “the protection and

propagation of fish, shellfish and wildlife” and “for recreation

in and on the water.” 33 U.S.C. §1251(a)(2). As this Court

has decided previously, it is the protection of these uses that

is at the core of the Act’s purpose and goals. PUD No. | of

Jefferson County v. Washington Department of Ecology, 511

U.S. 700, 716-719 (1994) (PUD No. 1).

In recognition that federally licensed activities like hydro-

power dams may impair designated uses, Congress authorized

state water quality certifications through Section 401 in order

to protect these uses and achieve water quality standards.

Congress used the inclusive term “discharge” in Section 401

to ensure that states would have the opportunity to address the

water quality impacts of a wide array of federally licensed

activities, including hydropower dams. This Court has

already concluded that state water quality certifications issued

for dams may include conditions “as necessary to enforce a

designated use contained in a state water quality standard.”

PUD No. I! at 723. The validity of this conclusion, apparent

from the language of the Act, becomes even clearer in the

light of the consensus among scientists, government agencies

and the courts that dams such as S.D. Warren’s cause

pollution and impact designated uses.

I. DAMS CAUSE POLLUTION

As established by well-accepted scientific literature,’

hydro-

power dams such as S.D. Warren’s present a variety of water

quality impacts to river and stream ecosystems as well as to

the ponds, lakes, wetlands, estuaries and bays interconnected

with the impounded rivers ‘and streams. The type and degree

of impact varies for each hydropower project depending upon

the type of dam, its manner of operation and the nature of the

river or stream system where it is located.* The fact that a

dam is a “run of the river” dam in which the discharge from

the dam is generally equivalent to the inflow into the

reservoir above the dam does not eliminate these harms.’

When free flowing rivers are impounded behind hydro-

power dams, they frequently stratify into layers of warmer

waters on top and colder, oxygen-deprived waters below,

with neither temperature reflecting the natural condition of

’ For three compilations of studies and research papers regarding the

environmental impacts of dams, see (1) U.S. Environmental Protection

Agency, EPA's Guidance Specifying Management Measures for Sources

of Nonpoint Pollution in Coastal Waters, Chapter 6, Section VIB.

available at http://www.epa.gov/nps/MMGI/Chapter6/ch6-6.html, (2) H.

John Heinz III Center for Science, Economics and the Environment, Dam

Removal: Science and Decision Making, References, 207-221 (2002)

available on-line at Attp://www.heinzctr.org/NEW_WEB/PDF/Dam_

removal_full_report.pdf, and (3) American Rivers, American Rivers Dam

Removal Toolkit Bibliography, available at http:/www.americanrivers.

org/site/PageServer? pagename=AMR_content_2dIc.

* Poff, N.L. and D. D. Hart, How Dams Vary and Why It Matters for

the Emerging Science of Dam Removal, 52(8) Bioscience 659-668

(August 2002), available at http://rydberg.biology.colostate.edu/

poffpubs/Poff2002(BioScience_dams).pdf (How Dams Vary).

° Id at 661-662 (noting that distinctions between the various

operational classes of dams are imprecise and recommending the use of

ecological classifications as providing a more useful tool for evaluating

the environmental impacts of dams).

the river system. The temperature levels also impact the

levels of oxygen in the water below the dam. The amount of

oxygen in the water column, in turn, has a dramatic impact on

the kinds of organisms that can survive below the dam.'' The

varying temperatures and oxygen levels in the reservoir also

affect the water chemistry of the entire system and can cause

toxic chemicals such as hydrogen sulfide and ammonia to be

released in harmful concentrations. 7

Another water chemistry impact associated with hydro-

power dams involves the entrainment or supersaturation of

atmospheric gases into the water column occurring when air

and water are mixed in a turbine or at a spillway. These

gases, such as nitrogen, can remain dissolved in the water

downstream from the dam. In their dissolved form, these

gases are taken into the circulatory systems of fish and other

organisms with gills. As the fish move to dif‘erent levels of

the river, those gases come out of solution, forming bubbles

'© Peterson, M.J. et. al., US. Department of Energy, Regulatory Ap-

proaches for Addressing Dissolved Oxygen Concerns at Hydropower Facil-

ities, DOE/ID-11071 (March 2003) at 1-5, available at http://hydro

power.id.doe.gov/turbines/pdfs/doeid-11071 (Regulatory Approaches);

How Dams Vary at p. 660; McCartney, M.P., C. Sullivan, M.C. Acreman,

Center for Ecology and Hydrology, UK, IUCN -— The World Conservation

Union, Ecosystem Impacts of Large Dams, Contributing Paper to the

World Commission on Dams, at 21 further information available at

hitp://www.dams.org (Ecosystem Impacts of Large Dams); Collier, M.,

R.H. Webb and J.C. Schmidt, U.S. Geological Survey, Davis and Rivers:

Primer on the Downstream Effects of Dams, USGS Circular 1126 (1996)

at 58, available at http://pubs.er.usgs.gov/pubs/cir/cir]126 (describing

the effect of temperature on fish below the Flaming Gorge dam on the

Green River)(USGS Primer).

" Id.

2 Regulatory Approaches at 1.

that can cause a potentially lethal effect similar to the “bends”

in scuba divers. ' .

The impoundment of water in reservoirs behind hydro-

power dams may result in changes to the flow regimes of

rivers with significant impacts to downstream aquatic eco-

systems.'* Dams also affect the total volume of water in the

river systems below the dams through evaporation and

seepage.'* In addition to reducing habitat for fish and wild-

life, ev ion can also affect water quality by increasing

salinity.° Further, hydropower dams frequently divert water

from its natural course to produce power, creating a “bypass

reach” just below the dams in which a stretch of the entire

stream or river is dewatered, creating even more dramatic

reductions in habitat and losses of use.

' Abernathy, C.S., B.G. Amidan, U.S. Department of Energy,

Laboratory Studies of the Effects of Pressure and Dissolved Gas

Supersaturation on Turbine-Passed Fish, DOE/ID-10853 (March 2001) at

2.3-2.5, available at http://hydropower.id.doe.gov/turbines/pdfs/doeid-

10853 pdf, National Research Council, National Academy of Sciences,

Upstream: Salmon and Society in the Pacific Northwest, (1996), at 229,

available at http://books.nap.edu/books/0309053250/html/index.htmi

(Upstream).

'* Poff, L.N. et. al., The Natural Flow Regime: A Paradigm for River

Conservation, 47(11) Bioscience 769-784 (December 1997), available at

http://rydberg. biology .colostate.edu/poffpubs/Poffl 997%28BioScience_N

FR%29.pdf; World Commission on Dams, Dams and Development: A

New Framework for Decision-Making, (November 2000) at 78-81

available at http://www.dams.org/ (Dams and Development).

'S Ecosystem Impacts of Large Dams at 14, 19-20 (noting estimates

that one third of the Colorado River’s flow is evaporated from behind

dams); Dam Nation, at 1308.

'® Ecosystem Impacts of Large Dams at 14; USGS Primer at 43.

'’ National Research Council, National Academy of Sciences, New

Strategies for America's Watersheds, (1999), at 24, available at http://

www.nap.edu/books/0309064171/html/, for one particularly dramatic

example, see discussion of the restoration of the bypass reach below Lake

In addition to these impacts, hydropower dams without fish

ladders serve as a physical barrier to migrating fish seeking to

spawn upstream.'* Further, fluctuations in river or stream

levels can impair fish reproduction by interfering with the

spawning habits of fish.'” Another physical impact of dams

is the damage to riparian habitat resulting from the

diminished connectivity between the river and adjoining

forest. This leads to reduced overbank flooding and the loss

of the associated nutrient and sediment input that is essential

to the native plant and animal life adapted to floodplain

habitats.” Conversely, when not impaired by dam

operations, the connectivity between the river and forest leads

to a direct improvement of water quality due to the utilization

of nutrients by plant communities.*'

In some river systems, the releases from dams of low

sediment water may cause channel incision, significantly

Chelan in Washington by Chelan Public Utility District, Chelan River

(Bypassed Reach) Comprehensive Management Plan, Lake Chelan

Hydroelectric Project, FERC Project No. 637 (December 2001) at

2-4 available at http://www.chelanpud org/relicense/study/reports/

6149_6_ pdf.

'* Upstream at 231; Dams and Development at 82-83; USGS Primer at

22 (Snake River dams block salmon migration).

'? Bednarek, A.T., Undamming Rivers: A Review of the Ecological

Impacts of Dam Removal, 27(6) Environmental Management 803-814

(June 2001)(concluding that the restoration of an unregulated flow regime

by dam removal enhances preferred spawning grounds); Upstream at 229

(fluctuations in flow and depth can lead salmon to construct nests in

unsuitable places and strand juvenile salmon).

Effects of Dams, 45(3) Bioscience 183-192 (March 1995); Dams and

Development at 83-84; USGS Primer at 46-53 (sedimentation of the Platte

River has dramatically diminished sandhill crane habitat).

”! Tremolieres, M. , et. al., Jmpact of river management history on the

community structure, species composition and nutrient status in the Rhine

alluvial hardwood forest. 135 Plant Ecology 59-78 (1998).

changing river bed composition and riparian habitat.” The

retention of sediment behind dams also has major impacts on

downstream estuaries and wetlands.”’ Finally, the dramatic

changes by hydropower projects to the ordinary flow regime

of rivers can also make it dangerous or even impossible for

people to use the rivers below dams for swimming or boating.

The U.S. Geological Survey “Primer” on the downstream

effects of dams notes that anglers in the Chattahoochee River

are swept downstream every year in spite of warning signs

and sirens.”*

Collectively, even in the absence of a discrete discharge of

pollutants, the harm attributable to hydropower dams covers

the full range of water quality impacts that the Act defines as

“pollution.” It was this range of impacts that Congress

authorized states to address through Section 401 as an

important tool for restoring and protecting the chemical,

physical and biological integrity of the Nations’s waters. 33

U.S.C. § 1251(a). The conclusion that dams harm rivers is

not one reached only recently,”* nor is it a conclusion shared

2 Dams and Development at 81; How Dams Vary at 660; USGS

Primer at 38-45 (heavy downstream erosion of the Chattahoochee River

below Buford Dam as a result of dam releases).

3 Upstream at 234-35 (noting the loss of over 20,000 acres of tidal

swamps, 10,000 acres of tidal marshes, and 3,000 acres of tidal flats in the

past century from the Columbia River estuary as a result of the

accumulation of sediment behind dams).

** USGS Primer at 42.

° A review of bibliographies and reference lists relating to the

environmental impacts of dams reveals scientific articles that pre-date the

Clean Water Act. See e.g. Beiningen, K.T. and WJ. Ebel, Effect of John

Day Dam on dissolved nitrogen concentration and salmon in the

Columbia River, 1968, 99 Transactions Am. Fish. Soc’y 664-67! (1970);

Pauley, G.B. and R.E. Nakatani. Histopathology of “gas bubble” disease

in salmon fingerlings. 24 J. Fish. Res. Board Can. 867-871 (1967); and

Westgard, R.L. Physical and biological aspects of gas-bubble disease in

only among academics and researchers. This conclusion is

one shared by state and federal agencies and by the Courts.

A. Federal and State Agencies Have Concluded

That Dams Cause Water Pollution

1. Environmental Protection Agency And State

Water Pollution Control Agencies

The U.S. Environmental Protection Agency (EPA)

and state water pollution control agencies have developed

significant expertise in the measurement and evaluation of

pollution impacts over the history of the Federal Water Pollu-

tion Control Act. These agencies have repeatedly evaluated

the impacts of dams and determined that dams impact water

quality.

In the 1972 Federal Water Pollution Control Act Amend-

ments, Congress directed EPA to develop guidelines and

methods to control pollution from “changes in the movement,

flow, or circulation of any navigable waters or ground waters,

including changes caused by the construction of dams.” 33

U.S.C. § 1314(f(1) & (2) part (F). One year later, in

response to this directive, EPA published a report entitled

“Control of Pollution from Hydrographic Modifications,”

EPA Doc. No. 4 03/9 -73-017 (1973). In this report, EPA

described the water quality problems caused by dams includ-

ing lowered dissolved oxygen levels and other impacts. /d.

Again indicating Congressional awareness of the pollution

created by dams, the 1987 Amendments to the Federal Water

Pollution Control Act required EPA to conduct a study of the

water quality impacts of dams. Pub.L. No. 100-4, Title V,

§524, 101 Stat. 89 (1987). EPA submitted this report to

Congress in 1989 and provided an updated account of the

substantial adverse water quality impacts from stratification

impounded adult chinook at McNary spawning channel. 93 Transactions

Am. Fish. Soc’y 306-309 (1964).

of impounded water behind dams including “low hypo-

limnetic dissolved oxygen, increased iron and manganese,

eutrophication, hydrogen sulfide, sediment movement, flow

regulation, thermal changes, and reaeration denial.” U.S.

Environmental Protection Agency, Report to Congress: Dam

Water Quality Studv, EPA 506/2-89/002 (March 1989) at v.

EPA concludes in this report that “[ijmpoundments can

modify the physical, chemical, and biological characteristics

of the free-flowing aquatic ecosystem.” /d. at VII-2.

At the state level, reference to individual state water quality

plans submitted to EPA as required under the Act provides

additional insights into the kinds of water quality impacts

seen by state water pollution control agencies as they evaluate

watersheds affected by dams. The plans are developed

pursuant to the CWA Section 303 requirement that states

develop “Total Maximum Daily Loads” (TMDLs). In these

TMDL reports, states must evaluate the sources and levels

of pollution into water quality impaired waters. 33 U.S.C.

§ 1313(d).

A recent TMDL report prepared by the State of Wash-

ington and EPA in cooperation with the Spokane Tribe

describes the water quality impacts of seven hydropower

dams on a segment of the Columbia River. Specifically, the

report concludes that these dams are causing violations of the

water quality standard for dissolved gas. The implementation

pian in the report relies heavily on Section 401 as an impor-

tant tool for the achievement of the dissolved gas standard

through its application to the federally licensed hydropower

dams operated by public utility districts:

The only significant sources of [total dissolved gas]

within the TMDL area are the hydroelectric projects.

The details of implementation of this TMDL will be

developed as the [public utility district] projects on the

Mid-Columbia reapply for [Federal Energy Regulatory

Commission (FERC)] licenses and water quality

certifications under Clean Water Act Section 401.

U.S. Environmental Protection Agency, Washington Depart-

ment of Ecology and Spokane Tribe of Indians, Total

Maximum Daily Load for Total Dissolved Gas in the Mid-

Columbia River and Lake Roosevelt, (June 2004) at x-xi,

available at hitp://www.ecy.wa.gov/pubs/0403002.pdf.

In a related TMDL being developed by EPA in conjunction

with the States of Idaho, Oregon and Washington, and the

Spokane and Colville Tribes, EPA has concluded that

hydropower dams are the major cause of water temperature

standard violations in the Columbia/Snake River basin. U.S.

Environmental Protection Agency, EPA Region 10 Fact Sheet

No. 6, Columbia/Snake River Problem Assessment for Tem-

perature, Fall 2001, available at http://yosemite.epa.gov/R10/

WATER. NSF/840aSde5d0a8d 1 4 18825650f007 1 5a27/a2d0d5

ba536f1 36288256a94006304a4/$FIL=/cr%20tmdl%20fs%20

%233%209-10.pdf. As is true for state efforts to address

violations of the dissolved gas standard in the Columbia

River, the affected states and tribes will need CWA Section

401 authority in order to address the contributions to tempera-

ture violations by FERC licensed dams.

On the other coast, the State of Maine has identified the

“presence of many dams” as a major cause of water quality

impairment in the Salmon Falls River watershed. U.S. Envi-

ronmental Protection Agency, EPA-New England's Review of

Maine’s Salmon Falls/Piscataqua River TMDLs, November

1999, at 6, available at http://www.epa.gov/region !/eco/tmdl/

assets/pdfs/me/salmonfallsriver.pdf. In this report, EPA notes

its approval of Maine’s conclusion that changes to dam

operations are necessary in order to achieve water quality

standards for dissolved oxygen. /d at 7.

The information compiled and developed by these admin-

istrative agencies tasked with protecting the nation’s water

quality clearly and unequivocally demonstrates that dams,

particularly hydropower dams, cause pollution.

2. Federal Energy Regulatory Commission

The Federal Energy Regulatory Commission (FERC), which

has the primar; responsibility for licensing hydropower fa-

cilities under the Federal Power Act, has considered the water

quality impacts of many dams and likewise has concluded

that dams cause pollution. For instance, in holding that the

City of Augusta, Georgia was required to seek a Section 401

certification for an existing diver .ion dam, FERC stated,

[W]e cannot conclude vased on the record here that the

operation of the project does not in any way alter the

characteristics of the water that flows over the diversion

dam. Water passing through the project impoundment

may be changed in temperature or in chemical composi-

tion. Also, the act of flowing over the dam may alter

certain characteristics »f the water, such as its dissolved

oxygen content.

City of Augusta, Georgia, 109 FERC 4 61,210, 62,006-62,007

(November 2004) (Order on Reconsideraticn). In another

decision with an extensive discussion of the applicability of

Section 401 to a dam in Maine, FERC noted the potential

water pollution from dams:

Depending on how they are operated, dams and the

reservoirs they impound can result in a discharge of

water that is warmer or colder, more or less turbid, or

containing greater or lesser amounts of dissolved gases

or sediments, including various contaminants, than would

otherwise be the case for the body of water receiving the

discharge.

FPL Energy Maine Hydro LLC, 111 FERC ¥ 61,104 (April

2005) (Order Denying Rehearing).

These FERC decisions confirm an understanding shared by

other federal agenc‘es with a role in evaluating or managing

the environmental impacts of dams. See e.g. U.S. Fish and

Wildlife Service, Hydropower: Environmental Issues, at

http://www fws. gov/habitatconservation/hydro_issues.pdf (de-

scribing impacts of dams on temperature, dissolved oxygen,

dissolved nitrogen, fish passage, and riparian habitat);

Tennessee Valiey Authority, Water Quality at http://www.

tva.gov/environment/water/index.htm (discussing efforts of

the Authority to address low dissolved oxygen and inadequate

flows); and U.S. Department of Energy, Hydropower:

Environmental Issues and Mitigation, at http://www.

eere.energy.gov/RE/hydro_enviro.html (noting problems with

hydropower dams including fish passage, low dissolved

oxygen and inadequate flows).

B. Federal And State Courts Have Concluded

That Dams Cause Water Pollution

This Court’s decision in PUD No. | of Jefferson County v.

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

recognizes the impacts of dams on water quality. Discussing

the proposed hydropower dam on the Dosewallips River, the

Court noted,

[A] sufficient lowering of the water quantity in a body of

water could desiroy all of its designated uses, be it for

drinking water, recreation, navigation or, as here, as a

fishery.

Id. at 719. In finding that the proposed dam’s impacts on

flows were within the purview of state regulation under

Section 401, the Court described Congress’ “broad concep-

tion of pollution” as evincing a concern with the “physical

and biological integrity of water.” Jd. Further, the Court

cited Section 304(f) of the Act, 33 U.S.C. § 1314(f), as an

express recognition by Congress that “water ‘pollution’ may

result from ‘changes in the movement, flow, or circulation of

any navigable waters . . . , including changes caused by the

construction of dams.” /d. at 720.

After reviewing considerable evidence and scientific testi-

mony in National Wildlife Federation v. Gorsuch, 530 F.Supp.

1291, 1295 (D.D.C. 1982), 693 F.2d 156, 161 (D.C. Cir.

1982), a federal district court and court of appeals both

concluded that dams have significant water quality impacts.

While dealing with the applicability of Section 402, 33 U.S.C.

§ 1342, not Section 401,°° the Gorsuch decisions are highly

relevant to this Court’s evaluation of whether Section 401

applies because of the courts’ thorough description of the

water quality impacts of dams. In its decision, the D.C.

Circuit summarizes several of the major impacts dams can

have on water quality: (1) low dissolved oxygen; (2) dis-

solved minerals and nutrients; (3) temperature changes;

(4) sediment; (5) supersaturation (dissolved gas); and (6) a

variety of other water quality impacts inciuding indirect nega-

tive impacts on groundwater and reductions in stream flow

and waste assimilation capacity. 693 F.2d at 161-165. Both

courts’ observations were carefully supported by a detailed

record developed over the course of a three-day trial,

including testimony by experts and EPA documents such as

the 1973 EPA report “Control of Pollution from Hydrographic

Modifications,” EPA Doc. No. 4 03/9 -73-017 (1973).

Other circuits have endorsed the legal and factual analysis

of the Gorsuch holding that a Section 402 NPDES permit is

not required when there is no “discharge of pollutants” from a

dam, but these courts have also implicitly acknowledged the

water quality impact of dams. See e.g. State of Missouri ex

rel. Ashcroft v. Department of the Army, 672 F.2d 1297, 1304

(8th Cir. 1982) (not questioning that the operation of the dam

*® The Gorsuch case dealt with an issue not presented in this case:

whether dams can be regulated under CWA Section 402 as a point source

discharge requiring a National Pollutant Discharge Elimination System

(NPDES) permit. Section 402, by its express terms, applies only to “dis-

charges of poilutants.” 33 U.S.C. § 1342. In Gorsuch, the D.C. Circuit

deferred to EPA’s decision not to regulate dams under Section 402 but

expressly left open the question of whether water pollution from could be

addressed by states through other provisions of the Act. Gorsuch, 693 at

182-183.

caused “soil erosion and reduction of oxygen”); U.S. ex rel.

Tennessee Valley Authority v. Tennessee Water Quality Con-

trol Board, 717 F. 2d 992, 1000 (6th Cir. 1983) (acknowledg-

ing that dams might be subject to state or local regulation as

nonpoint sources of pollution); National Wildlife Federation

v. Consumers Power Co., 862 F.2d 580, 586 (6th Cir. 1988)

(noting that “any resulting pollution in the form of entrained

fish is, as in Gorsuch, an inherent result of dam operation.”’).

Many state courts have also concluded that dams im-

pact water quality. In Power Authority of State of N.Y. v.

Williams, after reviewing a voluminous record, the New York

Supreme Court, Appellate Division, upheld a state Section

401 certification on the basis that the hydropower dam at

issue would violate state water quality standards. 101 A.D.2d

659, 475 N.Y.S. 2d 901 (N.Y.A.D. 3d Dept. 1984). This

conclusion was supported by the record developed in a prior

decision in which the court provided a thorough discussion of

the water quality impacts of the dam’s operation. The court

found these impacts included increased turbidity, variations in

flow resulting in disruption to fish spawning and food supply,

and increased temperature. Power Authority of State of N.Y.

v. Flacke, 94 A.D.2d 69, 73-75, 464 N.Y.S.2d 252, 255-257

(N.Y.A.D. 3d Dept. 1983).

Similarly, in Georgia Pacific Corp. v. Vermont Dept. of

Envtl. Conservation, 35 E.R.C. 2046, 2050-51 (Vt. Super. Ct.

1991) aff'd 628 A.2d 944 (Vt. 1992) cert den’d 511 USS.

1141 (1994), a Vermont Superior Court judge upheld a Sec-

tion 401 certification issued by the state water pollution

control agency for the relicensing of an existing hydropower

dam on the basis that the certification conditions were

necessary to protect the aesthetic and recreational value of the

river. Specifically, the court upheld the state’s water quality

certification as necessary to maintain dissolved oxygen levels,

to “restore and preserve the Connecticut River as a fish

habitat,” and to “safeguard the aesthetic appeal of the river to

the numerous persons who use the river for recreation.” Jd.

C. S.D. Warren Does Not Dispute That Its Dams

Cause Water Pollution

There is ample evidence in the record to support the con-

clusion that the operation of S.D. Warren’s dams results in

the pollution of the Presumpscot River as defined by the Act.

The Maine Board of Environmental Protection determined

that:

The record in this case demonstrates that Warren’s dams

have caused long stretches of the natural river bed to be

essentially dry and thus unavailable as habitat for

indigenous populations of fish and other aquatic organ-

isms; that the dams have blocked the passage of eels and

sea-run fish to their natural spawning and nursery

waters; that the dams have eliminated the opportunity for

fishing in long stretches of river; and that the dams have

prevented recreational access to and use of the river.

Joint Appendix (JA) at A-49.

The Board also found that,

[T]he Dundee and Gambo dams clearly cause or con-

tribute to the current violation of dissolved oxygen

standards in several parts of the Presumpscot River.

Were these dams not in place and operating in such a

way as to reduce natural reaeration, to increase time of

travel, to increase water temperature, and to create

settling basins for sediments and nutrients, dissolved

oxygen standards would be met in the Gambo, Little

Falls, and Sacarappa impoundments, particularly under

dry weather conditions when the effect of non-point

source pollution on dissolved oxygen levels is minimal.

JA at A-51. S.D. Warren did not challenge these findings below

nor does it do so here. JA at A-12; S.D. Warren Co. v. Board

of Environmental Protection, 868 A.2d 210, 218 (Me. 2005).

The State of Maine’s findings are consistent with the broad

consensus of the scientific community, government agencies

and the courts that dams impact water quality.

Il. THE CLEAN WATER ACT AUTHORIZES

STATES TO PROTECT WATER QUALITY

FROM POLLUTION BY DAMS

A. The Plain Language Of Section 401 Authorizes

State Water Quality Certifications For Dams

The language of Section 401 is intentionally broad, apply-

ing the requirement for an applicant for a federal license to

obtain a water quality certification in order to “conduct any

activity including, but not limited to, the construction or

operation of facilities, which may result in any discharge into

the navigable waters.” 33 U.S.C. § 1341 (emphasis added).

Each of the emphasized terms demonstrates Congress’

deliberate intent to craft a statute that would reach the widest

possible set of federally licensed activities.

Further, when defining this provision’s critical term, “dis-

charge,” Congress again used broad language: “The term

‘discharge’ when used without qualification includes a dis-

charge of a pollutant, and a discharge of pollutants.” 33

U.S.C. § 1362(16). The use of the term “includes” makes

plain that Congress intended the term “discharge,” when used

“without qualification,” as it is in Section 401, to reach a

wider set of activities than just those simply introducing or

reintroducing pollutants. Each of the other definitions in

Section 502 uses the term “means;” the term “discharge”

stands alone as the only term defined using the broader term

“includes.” 33 U.S.C. § 1362.

Contrary to $.D. Warren’s position, the term “discharge”

does not require the “addition” of a pollutant in order to

trigger Section 401. .'S.D. Warren incorrectly argues that the

Act requires “at a minimum, the addition into the water from

a point source of something other than the water itself.”

Petitioners Brief at 14. The Act’s definition of “discharge”

however, in contrast to the definition of “discharge of

pollutants,” makes no reference to the term “addition.” 33

U.S.C. § 1362(12), (19).. Under an ordinary dictionary defi-

nition, “discharge” in the context of dams is best understood

to mean “[{a] flowing out or pouring forth,” and “something

that is discharged [or] released.” American Heritage

Dictionary 4th Edition, available at http://www. bartleby.com/

61/46/D0254600.html. Nothing in this definition suggests

that something must be added to the flow of water out of a

dam before it can be considered a “discharge.” The operation

of dams causes water to flow out of the dams; the dams

release impounded water. Accordingly, S.D. Warren’s dams

discharge into waters of the U.S. and must obtain a water

quality certification from the State of Maine pursuant to

CWA Section 401.”’

B. The Clean Water Act Is Intended To Address

Water Pollution From Dams

Reading the term “discharge” within the broader context of

the Act provides confirmation that Congress intended the term

“discharge” in Section 401 to reach activities, such as the

operation of S.D. Warren’s dams, which impact water quality.

1. Congress Expressed Its Intent To Address

Water Pollution From Dams Through The

Goals And Structure Of The Act

Congress intended that states have broad authority under

the Act to address water “pollution.” The term “pollution” is

used extensively throughout the Act and is defined as “the

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

cal, biological and radiological integrity of water.” 33 U.S.C.

7 It is also notable that, in PUD No. 1, there was no dispute that the

Elkhorn Project at issue would result in two possible discharges including

“the discharge of water at the end of the tailrace after the water has been

used to generate electricity.” PUD No. / at 711.

§ 1362(19). In light of the discussion of the water quality

impacts of hydropower dams above, there can be no question

that dams alter the chemical, physical and biological integrity

of water and thus cause “pollution” within the meaning of the

Clean Water Act.

In addition to including an expansive definition of “pollu-

tion” in the Act, Congress also left numerous indications

throughout the statute that it intended the Act’s coverage to

reach broadly. In the “Goals and Policy” section of the Act,

Congress recognized the “responsibilities and rights of states

to prevent, reduce and eliminate pollution” and specifically

stated that federal policy is to support state efforts toward this

end through research, technical services and financial aid. 33

U.S.C. § 1251(b)(emphasis added). See also 33 U.S.C.

1252(a) (directing EPA to “develop comprehensive programs

for preventing, reducing, or eliminating the pollution of the

navigable waters”); 33 U.S.C. § 1256(a)(authorizing grants to

states “for the prevention, reduction, and elimination of

pollution”), 33 U.S.C. § 1370 (authorizing states to adopt

“any requirement respecting control or abatement of pollution

more stringent than the federal standard.”); and 33 U.S.C. §

1323 (requiring federal agencies to meet state require-

ments for the “control and abatement of water pollution.”)

(emphasis added).

With the Act’s heavy emphasis on controlling “pollution”

in these provisions, it would be remarkable if Congress had

intended to exempt a major source of pollution such as

hydropower dams from the state water quality certification

requirement of Section 401. Collectively, these provisions

demonstrate Congressional intent to capture all sources of

pollution within the ambit of the Act. Nothing in the Act

suggests that state regulation is limited to only the subset of

polluting activities that add discrete particles of contami-

nation to a body of water. In fact, Congress intended the

opposite result. The control of “pollution” is a broader task

than just regulating “pollutants.” Similarly, the term “dis-

charge” reaches a broader set of activities than the term

“discharge of pollutants.”

Section 402 covers the subset of polluting activities that

involve only the “discharge of pollutants.” In order to ensure

state authority to address “pollution,” Section 401 covers fed-

erally licensed activities, otherwise exempt from state regula-

tion, that may cause “any discharge.” Only when Section 401

is read in this manner is it possible for states to fulfill the

responsibility given to them by Congress “to prevent, reduce

and eliminate pollution” through setting and achieving water

quality standards.

2. The Legislative History Of Section 401

Supports A Finding That Congress Intended

States To Have The Authority To Require

Water Quality Certifications To Address

Pollution From Dams

In light of the plain language of the Act, a review of the

legislative history of Section 401 and its precursor, Section

21(b) of the Water Quality Improvement Act of 1970, Pub. L.

No. 91-224, 84 Stat. 91 (1970), should be unnecessary. With

that said, the legislative history of both laws confirms that

Congress was concerned with protecting state authority to

address a broad array of potential water quality impacts from

federally licensed discharges, not just the addition of pollut-

ants. For instance, the House Report discussing Section 21(b)

notes that,

A wide variety of licenses and permits (construction,

operating and otherwise) are issued by various federal

agencies. Many of them involve activities or operations

potentially affecting water quality. The purpose of

subsection 11(b) is to provide reasonable assurance (as

determined by the affected State, States, or the Secretary

of the Interior) that no license or permit will be issued by

a federal agency for an activity that through inadequate

planning or otherwise could in fact become a source

of pollution.

H.R. Rep. No. 127, 91st Cong., 2d Sess. 1970, reprinted in

1970 U.S.C.C.A.N. at 2697 (emphasis added). Nothing in

this statement suggests any intent to limit the application of

Section 21(b) to just those activities that added discrete

pollutants to the water. Instead, the mention of activities

“potentially affecting water quality” and that could “become a

source of pollution” indicate the broad reach Congress in-

tended this provision to have.

Later, in the debate over the Federal Water Pollution Con-

trol Act Amendments of 1972, one of the main authors of the

Act, Senator Edmund Muskie, argued in support of Section

401 by stating, “[ajll we ask is that activities that threaten to

pollute the environment be subjected to the examination of

the environmental improvement agency of the state for an

evaluation.” 117 Cong. Rec. 38,854 (1971), reprinted in A

Legislative History of the Water Pollution Control Act

Amendments of 1972, volume 2 at 1388 (emphasis added).

Section 401 of the Clean Water Act thus represents nothing

less than a clear reflection of Congressional intent that states

be given the opportunity to certify whether or not federally

licensed projects such as hydropower dams will meet state

water quality standards.

Ill, STATE WATER QUALITY CERTIFICATIONS

ARE NECESSARY TO ADDRESS POLLUTION

FROM DAMS

A. Section 401 Authority Over Pollution From

Dams Is Critical To Achievement Of Water

Quality Standards

Recognizing the authority of states to address the water

quality impacts of dams through Section 401 is essential to

fulfilling the ultimate goal set by Congress and defined by

EPA for the states: the protection of the full array of uses

by the public, including recreation in and on the water and

the propagation of fish, shellfish and wildlife. 33 U.S.C.

§ 1251(a)(2); 40 C.F.R. § 131.10. In furtherance of this goal,

Congress provided for state adoption of water quality

standards and implementation of pians in Section 303 to

ensure that this broad range of uses is protected. 33 U.S.C.

§ 1313. Section 303 can thus be viewed as the foundation

upon which much of the Act stands. It is the achievement of

the water quality standards toward which all efforts are

directed, and against which all efforts are measured.

For this reason, in PUD No. J, 511 U.S. at 712-713, this

Court appropriately discussed Section 303 at some length.

The Court rejected the dam operator’s argument that the State

of Washington was not authorized to condition issuance of a

Section 401 certification on the protection of designated uses,

aS opposed to specific numerical criteria, in the state’s water

quality standards. Looking to “the literal terms of the

statute,” the Court held in PUD No. / that “a project that does

not comply with a designated use of the water does not

comply with the applicable water quality standards.” 511

U.S. at 714-715. Of particular significance to the Court was

the specific requirement in Section 401(a)(1) that states

certify, inter alia, that the discharge will comply with Section

303. 33 U.S.C. § 1341(a)(1). The Court thus held that states

may use Section 401 certifications to protect water quality

standards promulgated under Section 303.

For further support, the PUD No. ] Court looked to Section

401(d) which authorizes “other limitations” in water quality

certifications as necessary to ensure that the activity complies

with “any other appropriate requirement of State law” includ-

ing uses designated in the standards. 33 U.S.C. § 1341(d);

PUD No. I at 711-12. This determination, that the Act .

protects uses, not just numerical criteria, is consistent with the

conclusion that Section 401 is intended to give states signifi-

cant authority to address a broad spectrum of harms to waters

of the United States such as those caused by hydropower dams.

Reading further into Section 303 demonstrates the impor-

tance of viewing state water quality certification authority

under Section 401 as an integral part of the Clean Water Act’s

comprehensive net for capturing sources of pollution. Section

303 requires that states develop and implement plans for

recovering any river or stream segments that are not meeting

water quality standards. 33 U.S.C. § 1313. Subsection (d)

requires states to account for all of the sources of pollution into

any such impaired waters through Total Maximum Daily

Loads (TMDLs), and subsection (e) requires states to develop

plans for addressing those sources. 33 U.S.C. §§ 1313(d), (e);

40 C.F.R. §§ 130.2, 130.5(6\(3), 130.6(c)(1), (6). In order to

develop effective plans, states must have authority to address

all significant sources of pollution including the water quality

impacts of hydropower dams. Recognition of states’ Section

401 authority in this kind of case is thus critical to achieving

water quality standards.

Conversely, limiting state authority to address dams under

Section 401 would remove an important tool from the Act

and prevent states from protecting the broad array of uses

designated in state water quality standards for the rivers and

streams that are impaired as a result of hydropower dam

operations. Without authority to address the impact of these

dams, states cannot achieve water quality standards though

their Section 303(e) water quality plans. States are preempted

from regulating FERC licensed hydropower dams indepen-

dent of federal law.** Absent the authority to place condi-

tions on dams through Section 401, states will thus be

constrained in their efforts to protect the numeric criteria and

78 First Iowa Hydro-Electric Cooperative v. Federal Power Commis-

sion, 328 U.S. 152, 181 (1946) (“The detailed provisions of the [Federal

Power] Act providing for the federal plan of regulation leave no room or

need for conflicting state controls.”); California v. FERC, 495 U.S. 490,

506-507 (1990). ;

designated uses in state water quality standards promulgated

pursuant to Section 303.

B. States Can Make Real Improvements In Water

Quality By Addressing The Pollution From

Dams In Section 401 Water Quality

Certifications

As noted in the first section of this brief, the issue pre-

sented to this Court is not a theoretical exercise in statutory

construction. States can make real improvements to water

quality through the regulation of dams. EPA concluded, in its

1989 report to Congress regarding the water quality impacts ~

of dams, that these impacts can be mitigated through a mix of

physical and operational measures and structural changes to

dams. EPA suggests a range of measures that can be taken

from selective withdrawal of reservoir water, to changes in

the flow regime, to altering the structure of the dam to change

the depth or manner of withdrawal. Report to Congress:

Dam Water Quality Study at v-vi.

Further support for the idea that states can make a dif-

ference through the regulation of dams can be found in the

USGS “Primer” on dams in which.USGS concludes that the

negative ecological impacts of dams can be better managed

through the use of scientific knowledge. USGS Primer at 1-9.

Similarly, based upon a detailed review of modifications to

hydropower dams made by the Tennessee Valley Authority,

researchers have concluded that “changes to dam operations

can improve the ecological integrity of rivers.” Bednarek,

A.T. and D.D. Hart, Modifying Dam Operations To Restore

Rivers: Ecological Responses to Tennessee River Dam Miti-

gation, 15(3) Ecological Applications at 997-1008 (2005); see

also Hayes, D.F. et. al. Enhancing Water Quality In Hydro-

power System Operations, 34(3) Water Resources Research at

471-483 (March 1998)(concluding that operational changes in

dam projects can increase dissolved oxygen levels without

substantially impacting project purposes).

These kinds of water quality improvements resulting from

modifications to dam operations offer significant potential for

restoring entire watersheds. In a report recommending a

watershed approach to improving water quality, the National

Research Council recommends that the water quality impacts

of dams be considered in watershed planning. New Strategies

for America’s Watersheds at 21-28.” The NRC report de-

scribes, as an illustration of a successful watershed approach,

how the regulation of dams is contributing significantly to the

protection of water quality in the Flathead River Basin. /d.

at p. 22.

EPA and state water pollution control agencies are increas-

ingly seeking to evaluate the potential for improving water

quality through innovative regulation of dams. A review of

state data submitted to EPA illustrates that there are many

river and stream segments listed in states’ Section 303(d), 33

U.S.C. § 1313(d), reports to EPA which are water quality

impaired as a result of dams.”’ For instance, drawing from

this data, researchers compiled a list of fifty-five hydropower

projects in the Mississippi River basin associated with water

quality impaired waters. John Crossman and Associates,

Evaluation of Hydropower Projects and Identification of

Potential Opportunities for Pollutant Trading, (2001) avail-

able at http://www.epa.gov/msbasin/pdf/hydropower_final.

pdf. In this report, prepared on behalf of EPA, the research-

ers concluded that:

[T]hese projects have the potential to make a significant

contribution to national water quality objectives if tech-

nological advances to improve water quality in reservoirs,

?° See also Regulatory Approaches, at 15-18.

*° Summaries of this data, not specific to dams but noting impacts from

sources such as hydrologic modifications and flow impairments generally

associated with dams, can be found on EPA’s TMDL Website, available at

http://www.epa.gov/owow/tmdl/ and EPA’s 2002 National Assessment

Database, available at http://www.epa.gov/waters/305b/index.htmI.

downstream tailwaters, and hydro-turbine releases are

employed in a watershed based trading program.

Id. at p. 1.

Based on this kind of reasoning, states are requiring dam

operators to employ technological advances and improved

understandings of ways in which dam operations can be

modified to reduce or minimize impacts on water quality.

One typical example of state efforts in this regard can be

found in the water quality certification issued by the State of

California Water Resources Control Board pursuant to CWA

Section 401 for the relicensing of the Lower Tule River

Hydroelectric Project. California State Water Resources

Control Board, Jn the Matter of Water Quality Ceriification

for the Southern California Edison Company Lower Tule

River Hydroelectric Project, FERC Project No. 372 (March

5, 2004), available at http://www. waterrights.ca.gov/FERC/

LowerTule401%20.pdf. Southern California Edison Com-

pany operates this project which is a run-of-the-river dam that

has historically impacted downstream water quality and

aquatic habitat. Among the conditions in the water quality

certification are minimum instream flow requirements and the

development of a “Native Aquatic Species Management

Plan.” The purpose of this plan is to require the dam operator

to monitor the impacts of flows through the dam and .o

ensure that the minimum stream flows protect several species

of special concern impacted by the dam including certain

species of fish and amphibians. The certification also re-

quires Southern California Edison to monitor and develop

actions such as further managing flows in order to minimize

temperatures affecting those species.

Another example of the kinds of conditions that states can

use in order to achieve water quality improvements can be

found in the certification issued by the State of Oregon

Department of Environmental Quality for the Pelton Round

Butte Hydroelectric Project. FERC, Portland General

Electric Company and Confederated Tribes of the Warm

Springs Reservation of Oregon, Order Approving Settlement

and Issuing New License, Project No. 2030-036, at 23, 109-

126, (June 21, 2005) available at http://www ferc.gov/whats-

new/comm-meet/061505/H-5.pdf. The project, operated ‘vy

Portland General Electric Conipany and the Confederated

Tribes of the Warm Spring Reservation of Oregon, includes

three dams operated collectively in a modified run-of-the-

river mode. Oregon determined that the project blocks fish

passage to historic habitat, affects stream flows and thus fish

habitat, temperature, and dissolved oxygen in the lower

Deschutes River. The Section 401 certification therefore in-

cludes a range of conditions to address these problems

ranging from fish passage requirements to specific conditions

relating to achieving water quality standards for parameters

such as temperature, dissolved oxygen, dissolved gas and tur-

bidity. Oregon Department of Environmental Quality, Evalua-

tion and Findings Report On The Application For Certifica-

tion Pursuant To Section 401 of the Federal Clean Water Act

For the Relicensing of Pelton Round Butte Hydroelectric Pro-

ject (FERC No. 2030) (June 19, 2002) available at http://

www.deq. state.or.us/wq/401Cert/401CertHome.htm.

A brief discussion of the requirements in the Pelton Round

Butte certification related to achieving the standards for

temperature and dissolved oxygen illustrates the kind of

changes that can be made to a dam project without interfering

with the project purpose. The Pelton Round Butte certifi-

cation requires the dam operators to comply with temperature

and dissolved oxygen monitoring and management plans.

Demonstrating the importance of looking at dam impacts in

the context of the entire watershed, Oregon feserves its

authority to reevaluate these management plans at the

conclusion of TMDLs being developed for both parameters.

Further, in order to ensure that the dam can meet the water

quality standards, the Pelton Round Butte certification also

includes a requirement that the dam operators use a “selective

water withdrawal” facility to draw water from various points

within the water column impounded behind the dam. This

facility will consist of a tower built into the dam with two

gates, one at the surface and one at depth. Through managing

the discharge of water through these gates, the dam operators

will better be able to meet water quality criteria for tempera-

ture and dissolved oxygen criteria. /d.

By taking advantage of this kind of approach and using the

authority of Section 401, states can lead dam operators to make

meaningful improvements in water quality. Continued author-

ity under Section 401 to require and issue water quality certifi-

cations is a critical precursor to doing so. Congress clearly

intended that states have this authority, and promised, in the

Clean Water Act, that government would use its authority to

prevent, reduce and eliminate pollution. States and authorized

tribes require CWA Section 401 authority over discharges

from hydropower dams in order to fulfill this promise.

CONCLUSION

The Court should affirm the decision of the Maine Su-

preme Judicial Court.

Respectfully Submitted,

JAMES MURPHY DAVID K. MEARS

WETLANDS AND WATER ENVIRONMENTAL AND NATURAL

RESOURCES COUNSEL RESOURCES LAW CLINIC

NATIONAL WILDLIFE VERMONT LAW SCHOOL

FEDERATION PO Box 300

58 State Street South Royalton, Vermont 05068

Montpelier, Vermont 05602 (802) 831-1627

(802) 229-0650 Counsel of Record for Amici

Counsel for Amicus Curiae Curiae National Wildlife

National Wildlife Federation, et al.

Federation

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.