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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 370

## Text

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
I~ 5. dias vi-gs: ole deed aa aid aed

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
Boston, MA 02108
(617) 727-2200

MICHAEL A. COX
Michigan Attorney General
P.O. Box 30212

Lansing, MI 48909
(517) 373-1110

MIKE HATCH

Attorney General of Minnesota
102 State Capitol

St. Paul, MN 55155

(651) 297-4272

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Attorney General of Missouri
Supreme Court Building

207 West High Street
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Attorney General of Montana
P.O. Box 201401

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(406) 444-2026

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Attorney General of Nevada
Office of the

Attorney General
Nevada Department

of Justice
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(775) 684-1112

KELLY A. AYOTTE
Attorney General

of New Hampshire
33 Capitol Street
Concord, NH 03301
(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
(505) 827-6000 (717) 787-6835
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
Oklahoma City, OK 73105

(405) 521-3921

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0097%3A21. Public record. Not legal advice.