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

No. 04-1527 ‘ex

IN THE

Supreme Court of the United Bites

S.D.WARREN COMPANY,

Petitioner,

v.

MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

On Writ or CERTIORARI TO THE

MAINE SUPREME JUDICIAL COURT

Brief Or Tue States Or New York, WASHINGTON, ALASKA,

ARIZONA, CALIFORNIA, CONNECTICUT, DELAWARE, HAwall, ILLINOIS,

Iowa, KENTUCKY, LOUISIANA, MARYLAND, MASSACHUSETTS,

MICHIGAN, MINNESOTA, Missouri, MONTANA, NEVADA,

New Hampsuire, New Jersey, New Mexico, Nortu CAROLINA,

OKLAHOMA, OREGON, RHope IsLanp, SoutTH CAROLINA, SOUTH

DAKOTA, TENNESSEE, UTAH, VERMONT, WEsT VIRGINIA, WISCONSIN,

THE COMMONWEALTH OF PUERTO RICO, THE PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE

INTERNATIONAL ASSOCIATION OF FisH AND WILDLIFE AGENCIES AS

Amici CuriAE In Support OF RESPONDENT

ROB McKENNA ELIOT SPITZER

Attorney General of Washington Attorney General of the

1125 Washington Street State of New York

P.O. Box 40100 CAITLIN J. HALLIGAN*

Olympia, WA 98504 Solicitor General

(360) 753-6245 120 Broadway, 25" Floor

New York, NY 10271

* Counsel of Record (212) 416-8020

Attorneys for Amici Curiae

(Additional Attorneys Listed on Signature Page)

198796 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

TABLE OF CITEDAUTHORITIES ............

INTEREST OF AMICI CURIAE ...............

SUMMARY OF ARGUMENT .................

RENEE bese e ke cbeessacccetecionecensds

I.

HYDROELECTRIC DAM OPERATIONS

CONSTITUTE A “DISCHARGE” SUBJECT

TO STATE CERTIFICATION PURSUANT

TO SECTION 401 OF THE CLEAN WATER

fe rer errr rer eT rrr rir rrr se

A. The Plain Text of Section 401 Covers

“Discharges” From Hydroelectric Dams

B. Petitioner’s Interpretation of Section 401

Would Frustrate the Purposes of the Clean

WE 460 sen chcwcaceiwenieses

1. Section 401 Is Intended to Give the

States Broad Authority to Remedy

“Pollution” of Their Water Bodies,

Including Pollution Caused by

Hydroelectric Dams. ............

2. Section 401 Authorizes the States to

Protect and Enforce Their Water

Quality Standards Against the

Threats Posed by Hydroelectric

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10

13

ii

Contents

C. Section 401’s Legislative History

Demonstrates that Congress Specifically

Intended It to Apply to Hydroelectric

Dams Licensed by FERC. ...........

Il. THIS COURT’S ANALYSIS OF SECTION

401 IN PUD No. 1, NOT ITS DISCUSSION

OF SECTION 402 IN MICCOSUKEE,

IS RELEVANT TO WHETHER THE

OPERATION OF A HYDROELECTRIC

DAM MAY RESULT IN A DISCHARGE FOR

PURPOSES OF SECTION 401...........

A. PUD No. 1 Confirms that Hydroelectric

Dams Cause a Section 401 “Discharge.”

B. Miccosukee’s Analysis of Section 402’s

Narrower Standard, “Discharge of

Pollutants,” Is Not Relevant Here.

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Page

16

21

21

23

25

/

iii .

TABLE OF CITED AUTHORITIES

Page

CASES:

Alabama Rivers Alliance v. FERC,

Fee ee ee es A ESD cc kbccesccesccs 15

American Rivers, Inc., v. FERC,

129 F.3d 99 (2d Cir. 1997) ............0005. 12, 20

Barnhart v. Sigmon Coal Co.,

, § 2 RRR errere re rrr se 8

California v. FERC,

a SR ee rr eee 12, 22

California v. United States,

438 U.S. 645 (1978) .......... sah al area's deli i 13

Escondido Mutual Water Co. v. La Jolla

Band of Mission Indians,

466 U.S. 765 (1984) ............ teen eee ees 6

FPL Energy Maine Hydro LLC,

SUS Pees WOOP COU oc cicccescdéveces 20

Helvering v. Morgan's, Inc.,

PE ccivessoviannt set vesene 7

National Wildlife Federation v. Consumers

Power Company, 862 F.2d 580 (6th Cir.

Dn <clctevipeneed uses pie bohonkenekesss 11

iv

Cited Authorities

Page

National Wildlife Federation v. Gorsuch,

530 F. Supp. 1291 (D.D.C. 1982), rev’d, 693 F.2d

SSG GS. Ce POG nod viv sen vedatcavenie 10

National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) ............... 7, 10

New York v. United States,

es tk. a epee rere 13

Oregon Natural Desert Ass'n v. Dombeck,

172 F.3d 1092 (9 Cir. 1998) .............4.. 7

PUD No.1 v. Washington Department of Ecology,

SEE UL, FORCED ivsirsceveneedecuwien passim

Sayles Hydro Ass'n v. Maughan,

985 F.2d 451 (9th Cir. 1993) ................ 12

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

Protection, 2005 ME 27, 868 A.2d 210........ l

South Florida Water Management District v.

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

dks es bse e sée saan bee 5, 21, 23, 21

United States v. Riverside Bayview Homes, Inc.,

SFEUS. TRO CIGGS) ov cccetsseesnewepeuses 9

Watt v. Alaska,

GBt US. Fae Cee ca scceuneevinveseeewe 6

Vv

Cited Authorities

Page

STATUTES:

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

i coor ceo datbee veers sees passim

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 816 (codified at

33 U.S.C. §§ 1311(a), 1342(a), (b)) ........... 17

I, kbc sc cccedecsicecee 3, 12

33 U.S.C. DT Eteniudaeheteedadsecetesece passim

EE stoseceneccbeseese seedeveees 15

ih dick svnsecegececacesss 4, 13, 15, 16

DEEMED cdcccescoccccccceces 14

33 U.S.C. § 1314(f)(2)(F) .... 6... 6. eee 4,10, 12, 13

iE GU dog dh eds 6 4dsedeenesece se 15

I vee passim

POT TT CTT PCTTTT LTTE Te 3, 7, 15, 24

EE Rdok Web webedess dese dsscce passim

i 260 ceeecatsccéoscedsvecesecs 2, 13

vi

Cited Authorities

Page

FEDERAL REGULATIONS:

SPD PED cecccnesesceu eeasespedesces 15

Se GENE oie ce ccscgseuvevandecueeedes 15

SP OB PORE cd ccccccccccocvésocnecess 14

GE OMEN 6 cadbcccddccceuedactsnenes 4,14, 15

Sr BENE Beddiccesccacessccdasopeces 4,14

STATE REGULATIONS:

N.Y. Comp. Codes R. & Regs. tit. 6, § 701.2 ..... 14

N.Y. Comp. Codes R. & Regs. tit. 6, § 701.5 ..... 14

N.Y. Comp. Codes R. & Regs. tit. 6, § 701.7 ..... 14

N.Y. Comp. Codes R. & Regs. tit.6,§ 701.9 ..... 14

CONGRESSIONAL DOCUMENTS & RECORD:

SE, Gey DED. TGS CEDAR cc cccccccccocceces 17

Dh, FE Des TSO GUOVED ccc ccctccsscccsctces 17

31S Cong. Rec. 26,971 (ISGP) on. cc cccccccscss 20

096 Come. Res. S.SO4 (IGTE) ...cccccsscccceess 19

jiye @ BE i eee Serer ir 20

vil

Cited Authorities

116 Cong. Rec. 9,332 (1970) ..........cceeeeee 19

MISCELLANEOUS:

California Energy Commission, Environmental

Performance Report of California’s

Electric Generation Facilities: A Report to the State

Legislature, Publication # 700-01-001 (July 2001),

available at http://www.energy.ca.gov/reports/

2001-06-28 700-01-001 pdf. ................ 1]

Webster’s Ninth New Collegiate Dictionary (1986)

l

INTEREST OF AMICI CURIAE

Amici curiae States, the Commonwealth of Puerto Rico,

the Pennsylvania Department of Environmental Protection

(“PADEP”), and the International Association of Fish and

Wildlife Agencies (“IAFWA”) respectfully urge affirmance

of the Maine Supreme Judicial Court’s decision in S.D.

Warren Co. v. Board of Environmental Protection, 2005 ME

27, 868 A.2d 210, holding that Section 401 of the Clean Water

Act (“Act”), 33 U.S.C. § 1341, authorizes the State of Maine

to issue a “certification” imposing conditions on the operation

of Petitioner S.D. Warren’s hydroelectric dam facilities as a

prerequisite to the issuance of any federal license or permit

to Petitioner by the Federal Energy Regulatory Commission

(“FERC”).'

There are over 1 ,500 federally licensed hydroelectric dam

facilities throughout the nation. Since the early 1970s, States

have used their Section 401 certification authority to limit

pollution caused by these facilities. Without state oversight

under Section 401, the operation of hydroelectric dams would

degrade significantly the chemical, biological, and physical

integrity of affected waters. For example, water released from

hydroelectric dam impoundments often has reduced levels

of dissolved oxygen, which can cause fish to suffocate. Such

water also may be significantly warmer or colder than natural

conditions, and cold-water fish such as salmon and trout

1. Under Rule 37.4 of this Court, amici States are not required

te obtain consent to the filing of this brief. The parties have consented

to the filing of this brief by PADEP, a state agency, and the IAFWA,

a not-for-profit corporation whose members include the fish and

wildlife agencies of all fifty States, the Commonwealth of Puerto

Rico, and seven Canadian provinces and territories, as well as federal

and dominion agencies having jurisdiction and responsibility for fish

and wildlife resources. This brief was not written in whole or part

by counsel for a party, and no one other than amici made a monetary

contribution to its preparation and submission.

2

cannot long survive in warm waters. A dam may permanently

impede the travel «” salmon, trout, and other species of fish

that regularly move between inland waters and the ocean,

leaving large stretches of river devoid of such fish.

Hydroelectric facilities that “fill and spill” in order to

optimize the generation of power during periods of peak

demand cause the surface level of waters to fluctuate, which

can erode exposed banks, and drain or flood adjacent

wetlands. The mechanical grind of hydroelectric turbines

often kills large numbers of fish that pass downstream.

Sediment with contaminants can build up behind dams,

harming bottom-dwelling organisms and causing the

accumulation of contaminants in higher-level aquatic species

that feed upon them. In short, the operation of a hydroelectric

dam can significantly impair recreational and commercial

fishing and boating, and destroy wetland and river areas

absent carefully designed conditions imposed to protect water

quality.’

Congress has left no doubt that the States are authorized

to regulate water pollution generally. Indeed, the Act

expressly recognizes the States’ primary role in ameliorating

such pollution. See 33 U.£.C. § 1251(b) (“It is the policy of

the Congress to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution . . . .”); see also id. § 1370 (providing

that the States are not precluded from enforcing any pollution

abatement requirement, so long as state standards meet or

exceed federal standards). The state oversight authorized by

Section 401 is especially critical to controlling the adverse

2. Amici recognize that hydroelectric facilities provide

renewable energy and other benefits, such as water supply and

recreation. These bene:its can coexist with protections against the

potential adverse water quality effects of these facilities. Indeed,

because of Section 401, States and hydropower licensees frequent: y

work together to develop such mutually beneficial solutions.

3

impacts that result directly from the operation of hydroelectric

dams because state regulation of such dams is otherwise

largely preempted by the Federal Power Act, see 16 U.S.C.

§ 791a et seq., and no other provision of the Clean Water

Act allows the States adequately to address dams’ effects.

Exempting the operation of hydroelectric dams from the reach

of Section 401 would seriously undermine the States’

authority under the Act to protect their citizens, economies,

and environment, and amici therefore have a strong interest

in affirmance of the decision below.

SUMMARY OF ARGUMENT

I. Petitioner’s contention that Section 401’s state

certification requirement does not apply to the operation of

hydroelectric dam facilities is incompatible with the plain

language of that provision. State certification is required for

any federally licensed or permitted activity that “may result

in any discharge into the navigable waters.” 33 U.S.C.

§ 1341(a)(1) (emphasis added). The term “any discharge,”

by its plain meaning, sweeps more broadly than the narrower

phrase “discharge of any pollutant” — language from Section

402 of the Act, id. § 1342, that Petitioner would import into

Section 401 to limit the grounds for state certification.

The Act’s definitional provision confirms Section 401’s

more expansive reach. It states that a “discharge,” as used

in Section 401, “includes a discharge of a pollutant.”

Id. § 1362(16) (emphasis added). In other words, every

“discharge of a pollutant” is a “discharge,” but not every

“discharge” is a “discharge of a pollutant.”

The purpose and structure of the Act as a whole confirm

this conclusion. Congress expressly recognized the need to

address “pollution resulting from ... changes in the

movement, flow, or circulation of any navigable waters... ,

4

including changes caused by the construction of dams.”

Id. § 1314(f)(2)(F). Importantly, such “pollution,” as defined

by the Act at 33 U.S.C. § 1362(19), may occur even in the

absence of any “pollutant,” such as where a hydroelectric

dam alters the water’s movement or flow, or otherwise affects

its physical, chemical, or biological integrity. State

certification under Section 401 is the most effective means

for the States to address the pollution caused by such

facilities, and that tool must remain available to accomplish

the Act’s objective of maintaining the integrity of the Nation’s

waters. See id. § 1251(a). Equally significant, Petitioner’s

reading of che Act would severely impair the States’ ability

to nreserve their water quality standards — standards that the

Act itself requires each State to develop and achieve for each

water body. Jd. § 1313(c)(2)(A); 40 C.F.R. §§ 131.10, 131.11.

The relevant legislative history further affirms that

Section 401 applies to hydroelectric dam facilities.

Legislators instrumental to the enactment of Section 401

explicitly recognized that hydroelectric dams would be

subject to state certification. Moreover, Section 401’s

certification requirement was adopted in 1970, two years

before the enactment of Section 402’s National Pollutant

Discharge Elimination System (“NPDES”) permit program,

making clear that Section 402’s limitations should not be

read into Section 401.

II. Petitioner’s construction of Section 401 is contrary

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

700 (1994). There, the Court expressly concluded that state

certification was necessary to operate a hydroelectric dam

facility because the facility would “discharge” water after

using it to generate electricity. /d. at 709, 711. That

conclusion, which was necessary to the Court’s decision

approving the Section 401 certification challenged in PUD

No. 1, is sound and should be given stare decisis effect.

5

South Florida Water Management District v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004), upon which Petitioner

relies, is not to the contrary. That case did not construe

Section 401’s “any discharge” standard, but rather the distinct

“discharge of any pollutant” standard of Section 402. Because

the Act expressly defines “discharge of a pollutant” as an

“addition” of a pollutant to navigable waters from a point

source, see 33 U.S.C. § 1362(12), the Miccosukee Court

looked to whether any pollutant had been added, via a point

source, from a “meaningfully distinct” water body. 541 U.S.

at 109-112. But a “discharge” within the meaning of Section

401 may occur regardless of whether there has been any

addition to navigable waters, so Miccosukee’s reasoning is

not applicable to Section 401.

ARGUMENT

I. HYDROELECTRIC DAM OPERATIONS

CONSTITUTE A “DISCHARGE” SUBJECT TO

STATE CERTIFICATION PURSUANT TO SECTION

401 OF THE CLEAN WATER ACT.

The Supreme Judicial Court of Maine held that

Petitioner, as the operator of five federally-licensed

hydroelectric dams, must obtain a water quality certification

from the State of Maine pursuant to Section 401 of the Act.

That holding is cor:sistent with the plain text of Section 401,

the purpose and structure of the Act, and the legislative

history underlying Section 401 —- all of which demonstrate

that Congress intended that Section 401’s certification

requirement apply to the operation of hydroelectric dams.

Accordingly, the decision of Maine’s highest court should

be affirmed.

6

A. The Plain Text of Section 401 Covers “Discharges”

From Hydroelectric Dams.

Statutory construction begins with the plain text of the

statute. Wait v. Alaska, 451 U.S. 259, 265 (1981). Section

401(a)(1) directs that “[a]ny applicant for a Federal license

or permit to conduct any activity... which may result in any

discharge into the navigable waters, shall provide the

licensing or permitting agency a certification from the State

in which the discharge originates or will originate.” 33 U.S.C.

§ 1341(a)(1). Thus, “any discharge” associated with “any

activity” that requires a federal license or permit triggers the

State’s authority to: (i) issue or deny the required certification;

or (ii) place conditions or limitations on its certification to

assure that the activity does not violate certain of the Act’s

requirements or “any other appropriate requirement of State

law.” PUD No. 1, 511 U.S. at 711-14; 33 U.S.C. § 1341(d).

“Congress expresses its purposes through the ordinary

meaning of the words it uses,” Escondido Mut. Water Co. v.

La Jolla Band of Mission Indians, 466 U.S. 765, 772 (1984),

and the “ordinary” meaning of the word “discharge” in

Section 401 plainly encompasses water flowing from the dam

of a hydroelectric facility. See Webster’s Ninth New

Collegiate Dictionary 360 (1986) (defining the verb

“discharge” to mean “to let go,” “to release from

confinement,” “to give outlet or vent to,” and to “emit,” and

defining the noun “discharge” as “the act of . . . release,” “a

flowing out,” “a rate of flow,” and “something that is

emitted”).

Moreover, the Act’s definitional section makes clear that

the word “discharge,” as used in Section 401, is to be

construed broadly. It states that “[t]he term ‘discharge’ when

used without qualification includes a discharge of a pollutant”

or pollutants. 33 U.S.C. § 1362(16) (emphasis added).

7

Congress’ use of the word “includes” is significant. In contrast,

each of the other 23 definitions set forth in 33 U.S.C. § 1362 —

including the definition of “discharge of a pollutant” in 33 U.S.C.

§ 1362(12) — uses the more restrictive word “means.” As this

Court has observed, “where ‘means’ is employed, the term and

its definition are to be interchangeable equivalents”; by contrast,

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

particular instances are those specified in the definition.”

Helvering v. Morgan’, Inc., 293 U.S. 121, 125-26 n.1 (1934);

see also Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d

1092, 1098 (9" Cir. 1998) (“‘Discharge’ is the broader term [as

compared with ‘discharge of a pollutant’) because it includes

all releases from point sources, whether polluting or

nonpolluting.””); Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 16,

172 (D.C. Cir. 1982) (“As a general rule, . . . ‘means’... excludes

any meaning that is not stated,” “rather than the looser phrase

‘includes.’” (internal quotation marks omitted)).

Petitioner’s effort (Pet. Br. 16-17, 21-22) to incorporate

Section 402’s “discharge of any pollutant” standard into

Section 401 is counter to the Act’s plain language.’ By its

express terms, Section 401 is triggered not only by the

discharge of pollutants but, far more broadly, by “any

discharge.” 33 U.S.C. § 1341(a)(1) (emphasis added).

Moreover, by requiring an applicant for a federal license or

permit to obtain a certification for “any activity . . . which

may result in any discharge into the navigable waters,”

Section 401, unlike Section 402, is triggered not only by an

actual discharge, but by the mere possibility of any discharge

(whether of a pollutant or otherwise). /d. § 1341(a)(1)

(emphasis added). Had Congress intended to restrict Section

401’s reach to the actual discharge of pollutants, it easily

3. Section 402 of the Act establishes a NPDES permit

requirement for the “discharge of any pollutant” into navigable waters

from any “point source” (i.e., conveyance). See 33 U.S.C. § 1342.

8

could have done so. It chose instead to extend Section 401’s

coverage to activities that “may result in any discharge,” and

this Court should reject Petitioner’s invitation to equate the

disparate language in Sections 401 and 402.

Nor, contrary to Petitioner’s chief assertion (Pet. Br. 14-

20, 22-23), does the phrase “any discharge” mean the

“addition” of some foreign substance to navigable waters.

No addition is connoted by the ordinary meaning of

“discharge,” see supra, and the Act’s definition of

“discharge,” as used in Section 401, makes no mention of an

“addition.” See 33 U.S.C. § 1362(16). By contrast, “discharge

of a pollutant’ — as used in Section 402 — is expressly

defined as “any addition of any pollutant to navigable waters

from any point source.” /d. § 1362(12) (emphasis added). It

is a well-established principle of statutory construction that

“when Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Barnhart

v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (internal

quotation marks omitted). Thus, the term “any discharge,”

as used in Section 401, should not be interpreted to mean

the addition of a pollutant or other substance.

Because the hydroelectric dam facilities operated by

Petitioner “may result in any discharge,” Maine properly

imposed various operational and structural conditions on the

dams pursuant to Section 401 to address their adverse

impacts. See Pet. App. A25-A29. Indeed, Petitioner’s own

characterization of the activities of its hydroelectric dam

facilities leaves little doubt that their operations “result”

in “discharges” subject to Section 401 certification.

See 33 U.S.C. § 1341(a)(1). As Petitioner describes it, its

dams result in the channeling of water into a “*power canal,’

past the turbines, and then back into the riverbed through

9

the ‘tailrace channel,’” in a manner that “affect{s] the

movement and flow of the” river by “causing less dissolved

oxygen to be retained in the water,” “impacting habitat for

aquatic organisms,” and “chang[ing] the nature of the river’s

recreational uses” (Pet. Br. 3-4).* These activities qualify as

a “discharge” that triggers the Act’s certification requirement.

B. Petitioner’s Interpretation of Section 401 Would

Frustrate the Purposes of the Clean Water Act.

Petitioner wouid have this Court construe Section 401’s

certification requirement as reaching only activities that

involve the addition of a pollutant or similar substance. Not

only does that interpretation lack support from the text of

Section 401, but it would thwart the Act’s fundamental

“objective” of “restor[ing] and maintain{ing] the chemical,

physical, and biological integrity of the Nation’s waters.”

33 U.S.C. § 1251(a).

4. The hydroelectric dam facilities at issue here function

differently than the diversion dam and associated canal and mills

discussed by amicus curiae Augusta, Georgia. The Court’s decision

in this case should in no event exempt the Augusta project from

Section 401 certification, particularly since it spans two states,

impairs river navigation, degrades important spawning habitat,

impedes the migration of fish, and has other adverse impacts on

water quality.

5. Of course, where a State determines that the federally-

licensed facility or its discharge poses no possibility of impairing

water quality or causing “pollution,” the State may simply issue the

certification without conditions. See United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 135 n.9 (1985) (noting that where

the pollution-prevention purpose of an environmental program is

not genuinely implicated, the solution is “simply [to] issufe] a

permit”). Thus, Section 401 certification furthers the Act’s goals

without imposing undue burdens on applicants, the States, or

involved federal agencies.

10

1. Section 401 Is Intended to Give the States

Broad Authority to Remedy “Pollution” of

Their Water Bodies, Including Pollution

Caused by Hydroelectric Dams.

Congress expressly recognized the need to allow States

to remedy all “pollution resulting from . .. changes in the

movement, flow, or circulation of any navigable waters

..., including changes caused by the construction of dams,

levees, channels, causeways, or flow diversion facilities.”

Id. § 1314(f)(2)(F). The Act defines “pollution” broadly to

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

chemical, physical, [and] biological . . . integrity of water.”

Id. § 1362(19).

Hydroelectric dam facilities may cause pollution, as

defined by the Act, in several different ways. First, dams

may severely alter the “chemical integrity” of local waters.

In both waters upstream of dams (including reservoirs) and

waters downstream, dams often lower dissolved oxygen

levels, thus suffocating or driving off fish. Hydroelectric dam

facilities may discharge or, by changing the flow regime,

otherwise lead to high levels of dissolved minerals and

nutrients such as iron, manganese, and phosphates. Dams

also lead to water temperatures that are too high or too low

for affected fish species, as well as to the build-up and release

of sediment. Gorsuch, 693 F.2d at 161-64; Pet. App. A-51,

A-56, A-58; see also Nat’! Wildlife Fed’n v. Gorsuch, 530 F.

Supp. 1291, 1297-1303 (D.D.C. 1982), rev'd, 693 F.2d 156

(D.C. Cir. 1982).

Rather obviously, damming a river also changes its

“physical integrity.” Dams may create huge lakes, flooding

upstream areas and limiting downstream flow (Pet. App. A-

75 to A-77). Wetlands both upstream and downstream often

are harmed by the rapid draining and flooding of the river

11

(Pet. App. A-116 toA-117). Indeed, dams can reduce or eliminate

water in the “by-pass reach” — the stretch of river from which

water is diverted for use in the electric generators — essentially

destroying that portion of the water body (Pet. App. A-26 to A-

27, A-49, A-78, A-89).

Hydroelectric dams further can harm the “biological

integrity” of affected waters by changing conditions both

downstream and upstream.° Such facilities may bar the upstream

passage of fish, eels, and other aquatic organisms that move

from ocean to inland water to spawn (Pet. App. A-27 to A-28,

A-49, A-71, A-75 to A-77, A-89). Fish traveling downstream,

too, often are killed or injured by the hydroelectric turbines.

For example, one particularly large “pump-storage”

hydroelectric generation facility was found to destroy a

“substantial number” of fish and other organisms during normal

operations, to the extent that “[m]illions of pounds of live fish,

dead fish and fish remains [were] annually discharged into Lake

Michigan.” Nat’/ Wildlife Fed’n v. Consumers Power Co., 862

F.2d 580, 582-83 (6th Cir. 1988). ’

6. In fact, a recent report by the California Energy Commission

found that hydropower has a greater impact on California’s natural

resources than all other electricity generation sectors. See California

Energy Commission, Environmental! Performance Report of California’s

Electric Generation Facilities, Publication # 700-01-001 (July 2001),

available at http://www.energy.ca.gov/reports/2001-06-28 700-01-

001.pdf.

7. Petitioner attempts to minimize the serious harm caused by

hydroelectric dams by variously likening this activity to taking a “ladle

of soup from a pot, lift{ing] it above the pot, and pour[ing] it back into

the pot,” or characterizing it as “merely taking control over water in a

man-made facility to cause it to travel from one point to another”

(Pet. Br. 21). There is nothing “mere” about the adverse impacts on a

river system typically caused by hydroelectric dam facilities (e.g., lack

of fish passage, low dissolved oxygen, gaseous supersaturation of water,

reduced flow), and nothing akin to a “soup ladle” in the massive

structures, flow changes, sediment depositions, and water impoundments

associated with hydroelectric dams.

12

Any reading of Section 40! that deprives the States of

their authority to regulate the activities of facilities known

to seriously impair the chemical, physical, and biological

integrity of the Nation’s waters runs counter both to the Act’s

objective of addressing water pollution, and to the “primary”

authority the Act confers upon the States to achieve this goal.

33 U.S.C. § 1251(a), (b). State authority over hydroelectric

dams is generally otherwise preempted by the Federal Power

Act, 16 U.S.C. § 791a et seq.,* and Section 401’s certification

process is the most effective means by which the States may

regulate the activities of such facilities. See, e.g., PUD No.

7, 511 U.S. at 719-20 (discussing 33 U.S.C. § 1251(g) and

33 U.S.C. § 1314(f) as a basis for finding that States may

impose a broad array of Section 401 controls on the entire

activity associated with a hydro-power facility).

It is highly implausible that Congress would grant the

States authority to address “pollution” resulting from a

federally licensed activity, but at the same time dramatically

limit the circumstances in which the States may exercise this

authority.’ Petitioner can identify no indication that Congress

8. See California v. FERC, 495 U.S. 490, 498 (1990); Sayles Hydro

Ass'n v. Maughan, 985 F.2d 451, 453 (9th Cir. 1993) (holding that the

Federal Power Act “occupie(s} the entire field”); American Rivers, Inc.,

v. FERC, 129 F.3d 99, 111 (2nd Cir. 1997) (noting that the Clean Water

Act has “diminished” the Federal Power Act's “preemptive reach by

expressly requiring [FERC] to incorporate into its licenses state-imposed

water-quality conditions”).

9. There is no merit to Petitioner’s suggestion that 33 U.S.C.

§ 1314(f)(2)F) demonstrates that Congress did not intend to allow States

to address dam-induced impairment to water quality through Section

401’s certification process (Pet. Br. 23-25). This Court has held that

Section 401 authorizes the States, through the certification process, to

regulate all “pollution” resulting from dam operations. See PUD No. /,

$11 U.S. at 719-20. And although § 1314(f)(2)(F) addresses nonpoint

sources of pollution resulting from the activities of “water flow diversion

facilities,” there is nothing in the statute to indicate that point source

(Cont'd)

13

intended to place activities that may result in significant water

pollution, such as the operation of hydroelectric dam facilities,

outside the purview of state regulatory authority. To the contrary,

except where it expressly provides otherwise, the Act does not

“preclude or deny the right of any State . . . to adopt or enforce

. . any requirement respecting control or abatement of

pollution,” so long as the State’s standards meet or exceed

minimum federal standards. 33 U.S.C. § 1370; see also generally

California v. United States, 438 U.S. 645, 653-63 (1978) (tracing

the States’ traditional powers over water resources). For these

reasons, the term “discharge” in Section 401 should be read

consistently with the broader objectives of the Act, to allow

States to address the “pollution” caused by hydroelectric dams.

2. Section 401 Authorizes the States to Protect and

Enforce Their Water Quality Standards Against

the Threats Posed by Hydroelectric Dams.

The Clean Water Act directs each State to develop and

achieve water quality standards for each of the water bodies

within its borders, and Section 401’s certification process

provides the States with the mechanism for enforcing those

standards.'® Excluding the activities of hydroelectric dam

(Cont'd)

discharges —— such as those from a dam, see 33 U.S.C. § 1362(14) —

are beyond the Act’s reach. See Miccosukee, 541 U.S. at 106-07 (noting

that § 1314(f)(2) “does not explicitly exempt nonpoint pollution sources

from the NPDES program [of Section 402] if they a/so fall within the

‘point source’ definition”).

10. The Act does not “commandeer” state regulatory authority.

Rather, it provides that unless a State adopts water quality standards

consistent with the Act’s requirements, the federal government

will determine the standards to be applied in the State. See 33 U.S.C.

§ 1313(b); of New York v. United States, 50S U.S. 144, 167 (1992)

(recognizing “Congress’ power to offer States the choice of regulating .

. . according to federal standards or having state law pre-empted by

federal regulation’’).

14

facilities from Section 401 certification would thus

compromise the effectiveness of the comprehensive programs

established by the States pursuant to the Act to achieve and

maintain water quality standards.

The Act directs each State to issue “water quality

standards” that generally consist of two major elements:

(i) “the designated uses of the navigable waters involved”;

and (ii) “the water quality criteria for such waters based upon

such uses.” 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. §§ 131.10,

131.11. To establish the designated use (or “classification’’)

of each body of water, States must take “into consideration

their use and value for public water supplies, propagation of

fish and wildlife, recreational purposes, and agricultural,

industrial, and other purposes, and also tak[e] into

consideration their use and value for navigation.” 33 U.S.C.

§ 1313(c)(2)(A); see also 40 C.F.R. § 131.10(a). This is a

tedious and labor-intensive process. Classifications vary

depending on the attributes and purposes served by the water

body. New York, for example, designates fresh waters as,

inter alia, “Class N” (water free of pollutants that may be

enjoyed in its “natural condition”), N.Y. Comp. Codes R. &

Regs. tit. 6, § 701.2; “Class AA” (water that may be used as

a drinking water source after simple disinfection), id. § 701.5;

“Class B” (water of sufficient quality to allow for contact

recreation and fishing), id. § 701.7; and “Class D” (water

that will allow for fish survival but not fish propagation),

id. § 701.9.

In addition to designating the uses of each specific water

body or stream segment, States are directed by the Act to

establish “water quality criteria.” 33 U.S.C. § 1313(c)(2)(A).

“Criteria are elements of State water quality standards,

expressed as constituent concentrations, levels, or narrative

statements, representing a quality of water that supports a

particular use.” 40 C.F.R. § 131.3(b). Like the development

15

of classifications for each body of water, the establishment

and continual updating of a State’s science-based water

quality criteria is a time-intensive undertaking.

After a State has designated the use and water quality

criteria applicable to particular bodies of water, it may issue

NPDES permits in particular circumstances pursuant to

Section 402 to address any discharges of pollutants from point

“sources into navigable waters. Such permits may impose

limitations intended to prevent violations of the water quality

standards applicable to the specific receiving water body

affected by the discharge. 33 U.S.C. §§ 1342(a)(1), (2),

1311(b)(1)(C); 40 C.F._R. § 122.44(d)(1)(i).

The Act further requires each State to assess its waters

and identify each water body that has not yet achieved

compliance with the State’s water quality standards.

33 U.S.C. §§ 1313(d)(1)(A), (B), 1315. For each non-

compliant body, States must develop water pollution budgets

and remedial pollutant loading allocations, known as “total

maximum daily loads” (“TMDLs”), to address both

channeled (“point”) and diffuse (“nonpoint”) sources of

pollutants in an effort to achieve compliance with applicable

water quality standards. Jd. § 1313(d)(1)(C), (D); 40 C.F.R.

§ 130.7. Once established, the loads assigned to point sources

in the TMDL process are incorporated into NPDES permits,

as necessary. 40 C.F.R. § 122.44(d)(1 (vii).

Section 401’s certification requirement is intended in part

to aid in attaining compliance with these water quality

standards. See PUD No.1, 511 U.S. at 712-14; see also id. at

720 (observing that “concern with the flowage effects of dams

and other diversions is . .. embodied in the EPA regulations,

which expressly require existing dams to be operated to attain

designated uses” (citing 40 C.F.R. § 131.10(g)(4))); Alabama

Rivers Alliance v. FERC, 325 F.3d 290, 293 (D.C. Cir. 2003)

16

(“The required certification must provide that such discharge

will comply with the applicable water quality standards.”).

Indeed, the express language of Section 401 erases any doubt

about the importance Congress placed on the certification

requirement: 33 U.S.C. § 1341(a)(1), by reference to

33 U.S.C. § 1313, requires that any applicant for a federal

license or permit “shall” provide FERC with a certification

from the State that “any ... discharge will comply with”

state water quality standards.

To adopt a cramped reading of Section 401 that

effectively removes the activities of hydroelectric dam

facilities from the scope of the certification process would

subvert Congress’ intent to allow the States to assess for

themselves whether federally-licensed activities violate the

state water quality standards promulgated pursuant to the

Act. It would make little sense for the Act to direct States to

devise complex and costly water quality standards if, at the

same time, the Act were also to place a huge swath of

federally-licensed activities that adversely affect water quality

— those of hydroelectric dam facilities — beyond the reach of

effective state efforts to enforce those standards.

C. Section 401’s Legislative History Demonstrates

that Congress Specifically Intended It to Apply

to Hydroelectric Dams Licensed by FERC.

Despite the clear language of the statute, Petitioner insists

that Section 401’s use of the term “any discharge” is confined

to a “discharge of a pollutant,” and that Congress never

intended Section 401 to apply to hydroelectric dams

(Pet. Br. 25-33). The history of Section 401, however, belies

these assertions. Congress first provided in 1970 for state

certification where there is “any discharge” into navigable

waters. See Water Quality Improvement Act of 1970,

Pub. L. No. 91-224, § 102, sec. 21(b), 84 Stat. 91, 108

17

(amending the Federal Water Pollution Control Act) (the

“1970 Act”). But it was not until two years later, in 1972,

that Congress first required a NPDES permit of Section 402

for the “discharge of any pollutant.” Federal Water Pollution

Control Act Amendments of 1972, Pub. L. No. 92-500, § 2,

86 Stat. 816, 880 (codified at 33 U.S.C. §§ 1311(a), 1342(a),

(b)).'"' That Congress chose to use different statutory language

— “discharge of a pollutant,” rather than “any discharge” —

when later establishing the NPDES permit requirement

underscores that the variant terms are not to be given the

same meaning. See Barnhart, 534 U.S. at 452.

The claim that Congress did not intend Section 401 to

apply to hydroelectric dams is also irreconcilable with

additional aspects of the provision’s legislative history, which

demonstrate that the application of Section 401 to dams was

explicitly contemplated by the statute’s drafters. As noted,

the provision that ultimately became Section 401 was first

enacted in 1970 as Section 102 of the 1970 Act (amending

Section 21(b) of the Federal Water Pollution Control Act) to

assure that federally licensed or permitted activities did not

contravene state water quality standards.'? Using language

11. Indeed, nowhere in the entire text of the Water Quality

improvement Act of 1970 is the term “discharge of a pollutant” found.

Nor is there any language in that statute suggesting that the term

“any discharge” is circumscribed by the requirement that there be

an “addition” to the affected water body.

12. There is no dispute (see Pet. Br. 29) that Section 21(b) is

Section 401’s predecessor. Both the Senate and House Reports on

the 1972 Clean Water Act explained that “Section 401 is substantially

section 21(b) of the existing law amended to assure that it conforms

and is consistent with the new requirements of the Federal Water

Pollution Control Act.” H.R. Rep. No. 92-911 at 121 (1972); see S.

Rep. No. 92-414, at 69 (1971). The Senate Report describes the few

differences between Section 21(b) and its successor, Section 401(a),

but none is relevant here. In particular, there is no suggestion that

Section 401 applies a different trigger for certification or a narrower

definition of “discharge” than was applied by Section 21(b).

18

substantially the same as Section 401’s language at issue here,

the amended Section 21(b)(1) provided:

Any applicant for a Federal license or permit to

conduct any activity including, but not limited to,

the construction or operation of facilities, which

may result in any discharge into the navigable

waters of the United States, shall provide the

licensing or permitting agency a certification from

the State in which the discharge originates or will

originate . . . that there is reasonable assurance,

as determined by the State . . . that such activity

will be conducted in a manner which will not

violate applicable water quality standards.

Section 102, sec. 21(b), 84 Stat. at 108.

Senator Muskie, the Chairman of the Subcommittee on

Air and Water Pollution that developed the 1970 Act and

who served as floor manager of the legislation, at the outset

of the debate on the final legislation reported from the

Conference Committee and adopted into law, stated as

follows:

This provision may be the most important section

of this legislation. / call the Senate's attention to

section 2]. This section requires that any applicant

for a Federal license or permit obtain certification

of reasonable assurance of compliance with water

quality standards from a State before that applicant

can receive any license or permit.

Any new industry that intends to locate on

the navigable waters of the United States; that

needs a permit to buiid a dock, a discharge pipe,

a water-intake pipe, a bridge, or a road across

19

Federal lands; that requires a license from the

Atomic Energy Commission for a nuclear power

plant or a license from the Federal Power

Commission [FERC’s predecessor] to build a dam

will be required to obtain this certification of

compliance with water quality standards.

116 Cong. Rec. 8,984 (1970) (on H.R. 4148 after amendment

by the Conference Committee) (emphasis added)."*

Congressman Fallon, the Chairman of the Committee

on Public Works and floor manager of the 1970 Act, during

debate on the final legislation as reported from the

Conference Committee, likewise stated that the 1970 Act

would require that:

proper certification be received from those who

would use our Nation’s waters and in the process

must obtain a Federal license or permit, that they

give reasonable assurance of compliance with

water quality standards for a State or States before

that applicant can receive any license or permit.

This includes among others a license from the

Atomic Energy Commission for a nuclear

powerplant or for any new dam which requires a

license or [sic] from the Federal Power

Commission, as well as many other industries

which would require a permit to build a dock{,]

discharge pipe, a water intake pipe, or a bridge.

116 Cong. Rec. 9332 (1970) (on H.R. 4148 after amendment

by the Conference Committee) (emphasis added).

13. For purposes of Section 401, there is no basis to distinguish

between FERC’s licensing of new hydroelectric dams and the

licensing of existing dams. Section 401(a)(1) plainly applies to both;

(Cont'd)

20

Similarly, Senator Cooper, the ranking member of the

Committee on Public Works from which the 1970 Act originated,

with regard to S.7, the earlier Senate version of the 1970 Act,

stated:

Indirectly, the Federal Government contributes to

water pollution in its licensing activities over such

things as nuclear power plants, hydroelectric power

plants licenced by the Federal Power Commission

and dredge and fill permits issued by the Army Corps

of Engineers. . . . .

With respect to Federal licensing activity, the

bill S.7 requires that, as a part of the license activity,

applicants must furnish certification from the State

and affected States that the activity will comply with

applicable water quality standards.

115 Cong. Rec. 28,971 (1969) (emphasis added); see also 116

Cong. Rec. 9,005 (1970) (statement of Senator Cooper

concerning “significant risks to water quality” associated with

“most licenses issued by . . . the Federal Power Commission”).

The statements of Senators Muskie and Cooper, as well as

that of Congressman Fallon, establish that Congress clearly

intended that the inclusion of the term “any discharge” in Section

401 of the Act would encompass the activities of hydroelectric

dam facilities. ;

(Cont'd)

it reaches the “construction or operation of facilities.” 33 U.S.C.

§ 1341(a)(1) (emphasis added). Moreover, “refusing to relicense a

hydroelectric project would result in the disassembly of the project,”

as opposed to the preservation of the status quo. American Rivers,

Inc. v. FERC, 129 F.3d 99, 111 (2d Cir. 1997); see also 33 U.S.C.

§ 1341(a)(6) (pre-existing facilities are not exempt from Section

401’s certification requirement); FPL Energy Maine Hydro LLC, 111

F.E.R.C. P61,104, 9 25 (2005) (“relicensing is an activity that may

result in a discharge because, without a new license, the discharge

will not be authorized to continue”).

21 ;

Il. THIS COURT’S ANALYSIS OF SECTION 401

IN PUD No. 1, NOT ITS DISCUSSION OF

SECTION 402 IN MICCOSUKEE, IS RELEVANT

TO WHETHER THE OPERATION OF A

HYDROELECTRIC DAM MAY RESULT INA

DISCHARGE FOR PURPOSES OF SECTION 401.

This Court’s decision in PUD No./ makes clear that the

operation of the hydroelectric dams presently under review

results in a “discharge” within the meaning of Section 401

of the Act. Petitioner’s effort to draw the Court’s attention

instead to South Florida Water Management District v.

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

misplaced because that case concerns a different provision

of the Act, Section 402.

A. PUD No. I Confirms that Hydroelectric Dams

Cause a Section 401 “Discharge.”

Like this case, PUD No. / involved a state certification

for a hydroelectric dam issued pursuant to Section 401. See

511 U.S. at 708-09. Addressing the need for state

certification, the Court observed that operation of the dam

would result in “the discharge of water at the end of the

tailrace after the water has been used to generate electricity.”

Id. at 711. In the Court’s view, such “discharge” — the same

as that which results from the operation of Petitioner’s dams

in the present case (see Pet. Br. 3-4) — warranted the

conclusion that the operators of the dam “were required to

obtain a certification from the State pursuant to § 401.” 511

U.S. at 711. That reasoning should control here.

The petitioners in PUD No. / did not dispute that the

discharge of water from the tailrace constituted “any

discharge” for purposes of Section 401. See id. at 711

22

(“Petitioners concede that, at a minimum, the project will

result in two possible discharges ... .”). Significantly,

however, the Court did not assume arguendo that a

hydroelectric dam required state certification under Section

401. Rather, it stated unequivocally — and, in the first

instance, without reference to the petitioners’ concession of

the point — that “because the [hydroelectric dam] project

may result in discharges into the Dosewallips River,

petitioners are .. . required to obtain state certification of

the project pursuant to § 401.” Jd. at 709. Only when the

Court later reiterated the need for state certification did it

observe that there was “no dispute” as to that need. /d. at

711.

The Court’s conclusion that the activity of a hydroelectric

dam facility results in a Section 401 “discharge” cannot

reasonably be dismissed as dicta (cf. Pet. Br. 22 n.4). As the

Court held in PUD No. 1, the existence of a “discharge” is a

necessary predicate to a State’s exercise of certification

authority under Section 401: “Section 401(a)(1) identifies

the category of activities subject to certification — namely,

those with discharges. And § 401(d) is most reasonably read

as authorizing additional conditions and limitations on the

activity as a whole once the threshold condition, the existence

of a discharge, is satisfied.” 511 U.S. at 711-12. Thus, the

Court’s determination that a discharge was indeed present

was a necessary “threshold condition” to PUD No. I’s

ultimate conclusion that the certification challenged there

was permissible. The Court’s construction of Section 401 as

including discharges from hydroelectric dams should be

given stare decisis effect. See, e.g., California v. FERC, 495

U.S. 490, 499-501 (1990) (adhering to precedent where

23

Court’s previous “limited reading” of statute was “necessary

for, and integral to” its prior conclusion)."*

B. Miccosukee’s Analysis of Section 402’s Narrower

Standard, “Discharge of Pollutants,” Is Not

Relevant Here.

Petitioner’s reliance (Pet. Br. 20-21) on Miccosukee is

misplaced. Miccosukee did not involve the certification

requirement of Section 401 implicated by “any discharge,”

but rather Section 402’s NPDES permit requirement for point

source “discharges of pollutants,” a term more narrowly

drawn than the open-ended “discharge” referenced in Section

401.

Because the statutory definition of “discharge of

pollutants” under Section 402 expressly requires some

“addition” to navigable waters, see 33 U.S.C. § 1362(12),

this Court in Miccosukee inquired whether the “pollutants”

at issue there were already within the subject water body, or

whether they were added, via a point source, from a

“meaningfully distinct” water body. 541 U.S. at 109-112. But

that inquiry is not relevant to the Section 401 analysis

required here, because as discussed in Point I.A., supra,

Section 401’s use of the term “any discharge” does not require

that there be an “addition” to any navigable waters. Thus,

state certification may be required under Section 401 even

14. The dissenting opinion in PUD No. / also construed the

statutory term “discharge” in a manner that encompasses the

discharge of water from a dam. See 511 U.S. at 725 (Thomas, J.,

dissenting) (“The term ‘discharge’ is not defined in the CWA, but its

plain and ordinary meaning suggests ‘a flowing or issuing out,’ or

‘something that is emitted.’”(quoting Webster’s Ninth Collegiate

Dictionary 360 (1991))). Nowhere did the dissenting opinion suggest

that an “addition” is a necessary element of any “discharge,” or that

the definition of “discharge of a pollutant” somehow circumscribes

the full extent of the term “discharge.”

24

where there has been no addition of a pollutant — or anything

else — from a distinct water body.'*

Instead of looking to Miccosukee for guidance, this Court

should adhere to the understanding of Section 401 developed

in PUD No. 1. Had Congress intended, as Petitioner contends,

to define Section 401’s use of the term “any discharge” to

require some addition to a water body, it easily could have

done so, as it in fact did in defining “discharge of pollutants”

for purposes of Section 402. See 33 U.S.C. § 1362(12). But

Congress placed no such limitation on Section 401’s

threshold condition for state certification, and with good

reason. As explained in Point I.B.2, supra, the state water

quality standards safeguarded by Section 401 are jeopardized

not only by “additions” but by “any activity” — such as the

operation of hydroelectric dam — that may degrade the

chemical, biological, and physical integrity of affected

waters. Petitioner’s effort to import Miccosukee’s

construction of Section 402 to the distinct and more

expansive language of Section 401 misses this critical point.

If Petitioner’s arguments are accepted, the States will be left

with no means to confront potentially devastating threats to

water quality standards, and Congress’ express policy

recognizing the States’ “primary responsibilities and rights”

of preventing water “pollution” will be thwarted. 33 U.S.C.

§ 1251(b).

15. For this reason, Consumers Power and Gorsuch are

inapposite, contrary to Petitioner’s assertion. See Pet. Br. 23, 25.

Those cases grappled with the application of Section 402’s permit

requirement to dams, where an “addition” is required by the text of

the statute setting forth the NPDES permit requirement for point

sources of pollutants. See 33 U.S.C. §§ 1342, 1362(12). However,

no “addition” is necessary to trigger the certification process of

Section 401. See supra, Point LA.

25

CONCLUSION

For the foregoing reasons, the judgment of the Maine

Supreme Judicial Court should be affirmed.

ROB McKENNA

Attorney General

of Washington

BRIAN FALLER

Assistant Attorney General

RON LAVIGNE

Assistant Attorney General

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504

(360) 753-6245

* Counsel of Record

Respectfully submitted,

ELIOT SPITZER

Attorney General of the

State of New York

120 Broadway, 25" Floor

New York, NY 10271

(212) 416-8020

CAITLIN J. HALLIGAN*

Solicitor General .

ROBERT H. EASTON

Deputy Solicitor General

PETER H. LEHNER

Chief, Environmental

Protection Bureau

GREGORY SILBERT

Assistant Solicitor General

JAMES M. TIERNEY

Assistant Attorney General

26

DAVID W. MARQUEZ CARL C. DANBERG

Attorney General Attorney General

State of Alaska State of Delaware

P.O. Box 110300 820 N. French Street

Juneau, AK 99811 Wilmington, DE 19801

(907) 465-2133 (302) 577-8400

TERRY GODDARD MARK J. BENNETT

Attorney General Attorney General of Hawaii

State of Arizona 425 Queen St.

1275 West Washington Street Honolulu, HI 96813

Phoenix, AZ 85007 (808) 586-1500

(602) 542-4266

LISA MADIGAN

BILL LOCKYER Attorney General of Illinois

Attorney General Office of the Illinois

State of California Attorney General

1300 I Street, Suite 125 100 West Randolph Street,

P.O. Box 944255 12th Floor

Sacramento, CA 94244 Chicago, IL 60601

(916) 323-1996 (312) 814-3000

RICHARD BLUMENTHAL THOMAS J. MILLER

Attorney General lowa Attorney General

of Connecticut 1305 E. Walnut Street

Office of the Attorney General Des Moines, IA 50319

55 Elm Street (515) 281-8373

Hartford, CT 06106

(860) 808-5318 GREGORY D. STUMBO

Attorney General

Commonwealth of Kentucky

1024 Capital Center Drive

Frankfort, KY 40601

(502) 696-5300

27

CHARLES C. FOTI, Jr.

Attorney General

Louisiana Department

of Justice

P.O. Box 94005

Baton Rouge, LA 70804

(225) 326-6705

J. JOSEPH CURRAN, Jr.

Attorney General of Maryland

200 St. Paul Place

Baltimore, MD 21202

(410) 576-6300

THOMAS F. REILLY

Attorney General

of Massachusetts

Office of the Attorney General

One Ashburton Place

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Michigan Attorney General

P.O. Box 30212

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(517) 373-1110

MIKE HATCH

Attorney General of Minnesota

102 State Capitol

St. Paul, MN 55155

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Attorney General of Missouri

Supreme Court Building

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Attorney General of Montana

P.O. Box 201401

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Attorney General of Nevada

Office of the

Attorney General

Nevada Department

of Justice

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Attorney General

of New Hampshire

33 Capitol Street

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(603) 271-3658

28

PETER C. HARVEY HARDY MYERS

Attorney General Attorney General

of New Jersey State of Oregon

R.J. Hughes Justice 1162 Court St. N.E.

Complex Salem, OR 97301

25 Market Street (503) 378-6002

P.O. Box 080 -

Trenton, NJ 08625 SUSAN SHINKMAN

(609) 292-8576 Chief Counsel

WILLIAM S. CUMINGS, Jr.

PATRICIA A. MADRID Assistant Counsel

Attorney General Pennsylvania Department of

of New Mexico Environmental Protection

P.O. Drawer 1508 400 Market Street

Santa Fe, NM 87504-1508 Harrisburg, PA 17101-2301

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ROY COOPER ROBERTO J. SANCHEZ RAMOS

Attorney General Secretary of Justice

of North Carolina Commonwealth of Puerto Rico

North Carolina Department P.O. Box 9020192

of Justice San Juan, PR 00902-0192

PO Box 629 (787) 721-2900

Raleigh, NC 27602

(919) 716-6400 PATRICK C. LYNCH

Attorney General

W.A. DREW EDMONDSON =e Rhode Island

Attorney General of Oklahoma 150 South Main Street

2300 N. Lincoln Boulevard, Providence, RI 02903

Suite 112 (401) 274-4400

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29

HENRY McMASTER WILLIAM H. SORRELL

Attorney General Attorney General of Vermont

of South Carolina Office of the

Robert C. Dennis Attorney General

Office Building 109 State Street

Post Office Box 11549 Montpelier, VT 05609

Columbia, SC 29211-1549 (802) 828-3173

(803) 724-3970

DARRELL V. McGRAW, Jr.

LAWRENCE E. LONG Attorney General

Attorney General of West Virginia

of South Dakota Office of the Attorney General

1302 East Highway 14, Suite 1State Capitol, Room 26-E

Pierre, SD 57501 Charleston, WV 25305

(605) 773-3215 (304) 558-2021

PATRICK C. LYNCH

Attorney General of PEGGY A. LAUTENSCHLAGER

Rhode Island Attorney General of Wisconsin

150 South Main Street Wisconsin Department of Justice

Providence, RI 02903 17 West Main Street

(401) 274-4400 Madison, WI 53707

(608) 266-1221

PAUL G. SUMMERS

Attorney General of the M. CAROL BAMBERY

State of Tennessee Association Counsel

P.O. Box 20207 International Ass'n of Fish

Nashville, TN 37202 and Wildlife Agencies

(615) 741-3491 444 N. Capitol Street, NW

Suite 725

MARK L. SHURTLEFF Washington, DC 20001

Utah Attorney General (202) 624-3687

Utah State Capitol Complex

East Office Bidg., Suite 320

Salt Lake City, UT 84114

(801) 538-9600