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

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No. 04-1527 ; oe qr ae fa

IN THE

Supreme Court of the Anited States

S.D. WARREN CO.,

Petitioner,

v.

MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

°

On Writ of Certiorari to the

Maine Supreme Judicial Court

°

BRIEF OF TROUT UNLIMITED,

IZAAK WALTON LEAGUE OF AMERICA,

ATLANTIC SALMON FEDERATION,

FEDERATION OF FLY FISHERS, INC.,

CALIFORNIA TROUT, OREGON TROUT,

WASHINGTON TROUT, AND

AMERICAN SPORTFISHING ASSOCIATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

e

LEON F. SZEPTYCKI, JAMES B. DOUGHERTY

General Counsel Counsel of Record

CHARLTON H. BONHAM, 709 Third St. SW

Senior Attorney Washington, D.C. 20024

Trout Unlimited (202) 488-1140

1300 N. 17" St., Suite 500

Arlington VA 22209

(703) 522-0200 January 6, 2006

TABLE OF CONTENTS

SAREE Ge ALTERS EID cocstecscscsensecicscveccosesenresvesensencens iii

INTERESTS OF AMICI CURIAE ...........ccceccessssssereserenseees l

CITE seumnpreniscsmsscsmninmertiereannncimmnnnniasieineimnen 5

| HYDROELECTRIC DAMS AND THEIR

DISCHARGES DAMAGE THE INTEGRITY OF THE .

NATION’S WATERS WHILE HARMING

NUMEROUS FISH POPULATIONS. ............-c:c0se0000 5

A. Hydroelectric Dams Have Numerous Adverse

Effects on Fish Habitat, Water Quality, and the

Health of Rivers and Streams. .................000++ 6

1. Elimination of River Habitat. .................. 6

2. Blocking Migration. .............:seeees 7

3. Alterations in Stream Flow

Downstream of Dams. ..............00:s0ee00e« 10

4. Temperature Changes. .................00000 12

5. Dissolved oxygen and other changes

in the chemical composition of the

SF ae I iciinitiidatidintainiapdininnsinnnore 13

B. The Impact of Hydroelectric Dams on Rivers

and Fish Can Be Catastrophic. ..............000000 14

Ii HYDROELECTRIC DAMS ALSO CAUSE

VIOLATIONS OF WATER QUALITY STANDARDS,

AND WITHOUT SECTION 401 AUTHORITY OVER

FERC-LICENSED DAMS, STATES WILL BE

UNABLE TO ADDRESS THESE VIOLATIONS. ... 17

Ili SECTION 401 CERTIFICATION AUTHORITY HAS

BEEN FREQUENTLY AND SUCCESSFULLY

EMPLOYED BY THE STATES TO PROTECT AND

RESTORE WATER QUALITY, FISH POPULATIONS

AND RIVER HIBALTHA., .....cccccsccocscsccscsesccssssosessesooseses 21

A. States Have Used Their Section 401

Authority Virtually Since the Clean

Water Act’s Passage. ...........:cccsceseeseessseeseeees 21

B. Recent Examples Show That States Use

Section 401 Certification Authority to

Protect and Restore Fish, Water Quality,

IE EDS ctennserniptecnntssenmnitncebsinccniepennien 23

Ne Siiacinictittiiniecinensiecsitibinnicicsaniiesininiairnesitainaai 27

iii

TABLE OF AUTHORITIES

Cases

American Rivers v. FERC, 372 F.3d 413 (D.C. Cir. 2004)

svinsnbannistecsesiienneneneoenendnagendinanasenensneumnsenasnecesncenesicenerenest 6, 22, 23

REPO OPA SAT A NOTE OE IN 22

CR: BIG) csccesccnscessstonsnnsnvensseseqnecasieanotsosoronseoeneanusescentonsotesvee 8

Northwest Resource Info. Ctr. v. Northwest Power Planning

Council, 35 F.3d 1371 (9th Cir. 1994), cert. denied, 516 U.S.

GIO cncccrscsnscctnnerteccetnasittinicieseocinnenmninademstgeracteesines 9, 15

PUD No. | of Jefferson County v. Washington Department of

Ecology, 511 U.S. 700 (1994) v.ccccccosssseesseeeersesees 17, 18, 22

S.D. Warren Co. v. Board of Environmental Protection, 2005

TDI 20 cennsectosessnenennjesisusmempuegpdntenasesncanenpaenennemianennnnpneibenasnen l

Udall v. FPC, 387 U.S. 428 (1967) .....ccccssceseesreereersees 7, 14

Statutory Provisions

Clean Water Act section 101, 33 U.S.C. § 1251 ................ 17

Clean Water Act section 303, 33 U.S.C. § 1313............ 3,17

Clean Water Act section 401, 33 U.S.C. § 1341 ................ 3

Clean Water Act section 518, 33 U.S.C. § 1377(€) ss... 17

iv

38 Me. Rev. Stat. Ann. § 467(9) ........cccccsssesseeceseneesessenees 20

38 Me. Rev. Stat. § 465 (2005) .....ccsccscsscssrseeseeeeeeerenes 19, 20

Other Legislative Materials

H.R. Rep. No. 96-976, pt. 1, at 46 (1 980), reprinted in 1980

WBA. FO GOOG ccensssscisecinibacsitansasissiuimiuiteiigiaaisie 10

Administrative Decisions

Alcoa Power Generating Co., 110 F.E.R.C. 4 61,056 (2005)

ssetpbcneshinsnebibensctnetiatictisiieitediinassiassidsmiiiaaiaiasiaiaiiailaaddlain 10, 23

Avista Corp., 90 F.E.R.C. 9 61,167 (2000) ..........:cceseeseeees 23

Brown Company, 59 F.P.C. 395 (1977) ...ccccccscesssrsserseeseees 21

Central Maine Power, 82 F.E.R.C. 4 61,187 (1998) ......... 24

FPL Energy Maine Hydro LLC, 101 F.E.R.C. 4 62,179

CRIED <cccccccconsssstinteniinatiintpiaituseninnsiiaidsititaniieaiiiaiaiuauiais 23

FPL Energy Maine Hydro, LLC, 106 F.E.R.C. 4 62,021

CRD AD. <icaccsciscorsshiiscacnssussicatinstinsmtiiatiiianipsasipmasiniaaaai 23

Georgia Power Co., 9 F.E.R.C. 4 62,205 (1979) ......c00csesee 21

Holyoke Water Power Co., 88 F.E.R.C. J 61,186 (1999)

Indiana & Michigan Electric Co., 58 F.P.C. 2,771 (1977) 21

Kennebec Water Power Company, 81 F.E.R.C. 4 61,254

ESS Se 24

Lower Valley Energy, Inc., 92 F.E.R.C. § 62,222 (2000) .. 10

Midwest Hydraulic Co., 79 F.E.R.C. 61,101 (1997) ssc... T

Nekoosa Edwards Paper Co., 52 F.P.C. 1,020 (1974) ..... 21

New York State Gas & Electric Corp., 57 F.E.R.C. § 62,138

i RA a a i]

sinensnensentipsesusmsensenesentenaoseceescteneeesesssnnennsesssseressocoecsssocessecsececcese 24

tin SELLA LT 14, 27

Povomac Edison Co., 56 F.P.C. 3,462 (1976) .....cc.cssservoon 21

Puget Sound Power and Light Co., 53 F.P.C. 1657 (1975) 21

Rochester Gas and Electric Corp., 81 F.E.R.C. 4 62,064

EE ee Te a 24

S.D. Warren Co., 58 F.E.R.C. ¥ 62,006 (1991) ........... 11,15

Sho-Me Power Corp., 53 F.P.C. 1999 (1975) ...........ccc000 21

vi

Regulations

29 Ge, Gate GERD DD cegeemensesmemeneninsninn 19

5 Colo. Code Reg. 1002-31.13(1)(C) (2005) ...........csceseeeees 19

Mich. Admin. Code R. 323.1100 (6)-(9) (2005) ............... 19

Dien. R. BTR cceetseeeteneseemneenee 19

N.H. Admin. Code R. [Env-Ws] 1703.19 (2005) ......-..00++. 19

N.J. Admin. Code 7:9B 1 .12(a)-(Q) .......-secccscssseseseseresnscnnees 19

Or. Admin. R. 340-041-0002 (2005) ..........scccsseveeeeseeereeees 19

Wis. Admin. Code § N.R. 102.04(3)(a)-(e) (2005) ........... 19

Other Administrative Materials

California Energy Commission (“CEC”), Environmental

Performance Report of California's Electric Generation

Facilities: A Report to the State Legislature (July 2001) .. 16

California Energy Commission, Staff Report, California

Hydropower System. Energy and Environment, Appendix D,

2003 Environmental Report (Oct. 2003) ..........c...ccsseeeeeecees 7

California Energy Commission, Staff Report, Roadmap For

PEIR Research on Fish Passage at California Hydropower

Pease Gia, Bee ccneemncmmnntsinnn 8

vii

Connecticut Department of Environmental Protection, 2004

List of Connecticut Waterbodies Not Meeting Water Quality

ED cnttcvccintratnncecnvegtaistttanntiniititbineatiinnt asin 24

FERC, Division of Hydropower Administration and

Compliance, Office of Energy Projects, Evaluation of

Mitigation Effectiveness At Hydro Power Projects: Fish

FREES GED cccssecsensscermscscssnmecscessssesemmpomnusssavesmsenensensense. 8

FERC, Report On Hydroelectric Licensing Policies,

Procedures, & Regulations, Comprehensive Review &

Recommendations Pursuant to Section 603 of the Energy Act

CE ED cccgnnemmnsintitememagneinencmings 5,21

National Research Council Committee on Atlantic Salmon in

Maine, Atlantic Salmon in Maine (2004) .................+- 6, 9, 15

U.S. Fish and Wildlife Service & National Marine Fisheries

Service, Biological Report on the Status of Atlantic Salmon

RE ne EE 14

Books, Articles & Studies

C. Coutant & R. Whitney, Hydroelectric System

Development: Effects on Juvenile and Adult Migration, in R.

Williams (ed.), Return to the River (2006) ............c...00-000 13

H. John Heinz Center, Dam Removal Science and

Decisionmaking (2002) .........c.sssecsserssserserseeseerenees 6, 7, 9-16

J. Stanford et. al., The Status of Freshwater Habitats, in R.

Williams (ed.), Return to the River (2006) ...........0:.-s000+ 12

Vili

Jolin B. Hamilton et al., Distribution of Anadromous Fishes

in the Upper Klamath River Watershed Prior to Hydropower

Dams—A Synthesis of the Historical Evidence, 3 Fisheries 4

DGD: TIRED carsscsszsssssssctecnmecscacmscsmemmascciininninabpenignneenean 16

Mark J. Peterson et al., Regulatory Approaches for

Addressing Dissolvec' Oxygen Concerns at Hydropower

FP RED Seevennennenstenrnnsementeniemmetagignnenen 13

University of California, Davis, Center for Water and

Wildiand Resources, Status of the Sierra Nevada: Summary

of the Sierra Nevada Ecosystem Project Report, Final Report

ee Se 6, 7, 9-16

Water Quality Control Plan (Basin Plan) For The Central

Valley Regional Water Quality Control Board, Central

Valley Region, 4” ed., The Sacramento River Basin and San

Joaquin River Basin (Sept. 1999) .........cccsssessverseseesreseeesnees 10

INTERESTS OF AMICI CURIAE

Amici curiae submit this brief in support of respondent

Maine Department of Environmental Protection, and ask the

Court to affirm S.D. Warren Co. v. Board of Environmental

Protection, 2005 Me. 27.”

Amici include fish conservation organizations and the

sportfishing industry’s primary trade association, all of

whom have a direct interest in safeguarding the health of

waters and fish populations in the United States. Amici are

filing this brief to highlight the effects of FERC-licensed

hydroelectric dams on the health of rivers and fish

populations, and the role that section 401 of the Clean Water

Act plays in protecting and restoring those valuable natural

resources.

Amicus Trout Unlimited (“TU”) is a not-for-profit

organization whose mission is to preserve, restore and protect

North America's trout and salmon fisheries and their

watersheds. TU has 145,000 members in the United States

Organized into more than 450 local chapters. Amicus the

Atlantic Salmon Federation (“ASF”) is an international not-

for-profit organization whose mission is to promote the

conservation of wild Atlantic salmon. ASF’s network of

seven regional councils represents more than 150

organizations and 40,000 volunteers. Amicus the Federation

of Fly Fishers, Inc. (“FFF”) is a not-for-profit organization

' Pursuant to Rule 37.6 of this Court, amici represent that counsel for

amici authored this brief in its entirety and that no person or entity other

than amici and their representatives made any monetary contribution to

the preparation or submission of this brief. Counsel for respondent and

intervenors have filed letters with the Clerk consenting to the filing of this

brief. Counsel for petitioner has consented to the filing of this brief, and a

letter reflecting that consent has been submitted to the Clerk.

whose mission is conserving, restoring and educating

through fly fishing. FFF has as one of its purposes the

protection and enhancement of river ecosystems. FFF has

over 400 chapters and 13,000 individual members.

Amici California Trout (“CalTrout”), Oregon Trout, and

Washington Trout are not-for-profit conservation

organizations dedicated to protecting and _ restoring

populations of resident trout, steelhead, Pacific salmon, and

the rivers in which they live, in their respective states.

Collectively, these organizations have over 9,000 individual

members and more than fifty affiliated angling clubs.

The Izaak Walton League of America (“IWL”) is a

national conservation organization with 50,000 members. Its

mission includes to conserve, maintain, protect and restore

the soil, forest, water, and other natural resources of the

United States. Members of the Izaak Walton League fish in

rivers affected by FERC-licensed hydroelectric dams.

TU, ASF, FFF, CalTrout, Oregon Trout, [WL and

Washington Trout have collectively participated in dozens of

Federal Energy Regulatory Commission (“FERC”) licensing

and relicensing” proceedings for hydroelectric dams with the

goal of protecting and restoring fish populations and river

health. All of these amici have members who fish for trout,

salmon, and other fish in rivers affected by FERC-licensed

hydroelectric dams.

? Amici use the terms “licensing” and “relicensing” in this brief.

Licensing generally refers to all FERC proceedings to license hydropower

projects, whether new projects or existing projects. Relicensing is the

more specific term, referring to proceedings for new licenses for existing

facilities, which owners of such facilities must undergo periodically under

the Federal Power Act (“FPA”).

<

The American Sportfishing Association (“ASA”) is the

sportfishing industry’s trade association. ASA’s members

are a variety of entities whose products, services or activities

are related to sportfishing, including manufacturers, resource

managers, conservation groups, the media, and those

involved in the sale and distribution of fishing tackle and

other sportfishing products. ASA safeguards and promotes

the enduring social, economic, and conservation values of

sportfishing and has members in all fifty states. ASA's

mission includes ensuring healthy and sustainable fisheries,

advocating for the interests of our members and the country’s

over 44 million anglers, and maintaining and enhancing the

growth of the sportfishing industry. The interests of ASA

and its members are directly affected by the health of

fisheries in rivers below FERC-licensed hydroelectric dams.

SUMMARY OF ARGUMENT

Hydroelectric dams cause profound damage to fish

populations and to the health of rivers. Hydroelectric dams

have been responsible for the destruction of numerous runs

of salmon and other migratory fish species on both coasts,

and have impaired populations of resident fish as well. This

brief explains the numerous mechanisms by which such

dams impair water quality, damage rivers, and ultimately

harm fish populations. Many of the adverse effects of

hydroelectric dams also cause violations of water quality

standards that states establish and administer under section

303 of the Clean Water Act (“CWA” or “the Act”), 33

U.S.C. § 1313.

The certification authority that Congress granted to the

states in section 401 of the Act, 33 U.S.C. § 1341, represents

the principal means by which states defend the integrity of

their waters from the damaging effects of FERC-licensed

hydroelectric dams and fulfill their role under the Act to

achieve water quality standards in rivers affected by those

dams. States have used their section 401 authority in FERC

hydroelectric licensings to protect and restore water quality

and the health of numerous fish populations around the

country for decades.

Petitioner’s argument would effectively eliminate

section 401 certification authority in FERC hydroelectric

relicensings, leaving states with no recourse to address the

serious violations of water quality standards caused by

FERC-licensed dams. This argument is contrary to the

language, structure, and intent of the CWA. Accepting

petitioner’s argument and reversing the judgment below

would also jeopardize the future of many fish populations

across the Nation in rivers with FERC-licensed dams.

ARGUMENT

I

HYDROELECTRIC DAMS AND THEIR

DISCHARGES DAMAGE THE INTEGRITY OF THE

NATION’S WATERS WHILE HARMING NUMEROUS

FISH POPULATIONS.

The purposes of this brief are to describe the impact of

hydroelectric dams on water quality, fish populations, and

rivers, and describe the critical role that section : 401

certifications of hydroelectric licenses play in protecting and

restoring fish populations. This brief will not discuss the

legal reasons why discharges from FERC-licensed

hydroelectric dams require certification under section 401.

However, petitioner’s argument that the State of Maine’s

authority under section 401 does not extend to its

hydroelectric dams has severe implications for water quality

and the health of fish populations in the Nation. The essence

of petitioner’s argument is that an existing hydroelectric dam

does not cause any discharge because it does not add

anything new into the river. On the contrary, hydroelectric

dams damage water quality and the overall health of the

rivers that they dam, and often discharge water that is

profoundly different (or new in character) than water that

would flow in the river naturally without the dam in place. If

accepted, petitioner’s argument would also have extremely

broad practical ramifications, given that “[FERC] currently

regulates over 1,600 hydroelectric projects at over 2,000

dams pursuant to Part I of the Federal Power Act.” FERC,

Report On Hydroelectric Licensing Policies, Procedures, &

Regulations, Comprehensive Review & Recommendations

Pursuant to Section 603 of the Energy Act of 2000 at 7 (May

2001) (hereinafter “FERC 603 Report”).”

A. Hydroelectric Dams Have Numerous Adverse Effects

on Fish Habitat, Water Quality, and the Health of

Rivers and Streams.

It is well accepted that hydroelectric dams, including

FERC-licensed dams, have done considerable damage to the

Nation’s rivers and their fish populations. See, e.g.,

American Rivers v. FERC, 372 F.3d 413, 416-17 (D.C. Cir.

2004) (“It is not disputed that hydropower projects have

contributed to declining populations of anadromous fish -

namely, salmon and steelhead trout species -- in the Snake

River and the Columbia River basin.”) (citations omitted);

National Research Council Committee on Atlantic Salmon in

Maine, Atlantic Salmon in Maine 70 (2004) (noting “[{d]ams

are a major cause of salmon declines worldwide”)

(hereinafter “Atlantic Salmon in Maine’’); L. Poff & D. Hart,

How Dams Vary and Why it Matters for the Emerging

Science of Dam Removal, 52 BioScience 659, 659-60 (2002)

(hereinafter “How Dams Vary”). As petitioner expressly

admits, the dams at issue in this case are no exception. See

Brief for Petitioner at 4.

1. Elimination of River Habitat.

Every hydroelectric dam that creates an impoundment

also destroys natural river habitat. See Atlantic Salmon in

Maine at 70; H. John Heinz Center, Dam Removal Science

and Decisionmaking 137-38 (2002) (hereinafter “Dam

> Available at <hitp://www.ferc.gov/legal/maj-ord-reg/land-

docs/ortc_final.pdf> (last visited Dec. 28, 2005). A FERC “project”

includes all dams, conveyances, facilities, and infrastructure or other

features under license.

Removal Science and Decisionmaking”); National Research

Council Committee on Protection and Management of

Pacific Northwest Anadromous Salmonids, Upstream:

Salmon and Society in the Pacific Northwest 9-10, 231

(1996) (hereinafter “Upstream: Salmon and Society in the

Pacific Northwest’). When a dam impounds a river, the

river’s features such as riffles, swiftly flowing water, rapids,

and pools disappear beneath the impoundment’s deep, slow-

moving water. The water body becomes an artificial lake

and ceases to be a natural river. This transforms the ecology

of the river by substituting a biological community more

tolerant of the new, lake-like conditions than the river’s

native biological community. See Dam Removal Science and

Decisionmaking at 137-38; see also Udall v. FPC, 387 U.S.

428, 440 (1967) (“The ecology of river is different from the

ecology of a reservoir built behind a dam.”) (requiring

review of alternatives during licensing decision for new

project); California Energy Commission, Staff Report,

California Hydropower System: Energy and Environment,

Appendix D, 2003 Environmental Report, D-15 (Oct. 2003)

(“Dams and impoundments, including hydropower and

multiuse dams, have led to the loss of 90 percent of the

historic salmonid habitat in the Sierra Nevada.”).%

2. Blocking Migration.

All dams, including -hydroelectric dams, create a

migration barrier for fish, which is particularly damaging to

fish attempting to migrate upstream from the ocean to spawn

in freshwater rivers. See, e.g., Upstream: Salmon and

Society in the Pacific Northwest at 226 (“Dams have been

constructed across the migration routes of most Pacific

Northwest salmon runs.”). Many dams create completely

* Available at <http://www.energy.ca.gov/reports/2003-10-30_100-03-

018.PDF> (last visited Dec. 15, 2005).

insurmountable barriers to upstream migration: “[t]he effect

of dams without fish-passage facilities on salmon is clear: the

upstream habitat is lost.” Jd. at 231. Blocked fish passage is

one of the most prevalent impacts of hydroelectric dams. See

FERC, Division of Hydropower Administration and

Compliance, Office of Energy Projects, Evaluation of

Mitigation Effectiveness At Hydro Power Projects: Fish

Passage | (2004).2

Although the most obvious barrier is for fish migrating

upstream, hydroelectric dams also obstruct fish attempting to

migrate downstream. The two most common ways for fish to

migrate downstream past a hydroelectric dam are (1) with the

flow of water moving through turbines and (2) with flows

spilling over the top of the dam. Passing through turbines

causes an extremely high level of mortality for migrating

fish. National Wildlife Federation v. NMFS, 422 F.3d 782,

789 (9th Cir. 2005) (describing downstream passage options

and concluding “ . . . passage through turbines

unquestionably causes the highest mortality rate”). Passing

over the top of the dam is considered less damaging than

passing through a turbine, but if not managed very carefully

can also harm fish. Jd. Even if fish survive passage over a

dam or through a turbine, subsequent mortality rates are still

high because either route disorients the fish and makes them

very vulnerable to predators. See California Energy

Commission, Staff Report, Roadmap For PEIR Research on

Fish Passage at California Hydropower Facilities 9 (Sept.

2005) (citing literature). Passing through a turbine or over a

> Available at

<http://www. ferc.gov/EventCalendar/F iles/2004 1018094218 -fish-pass-

final-report.pdf> (last visited Dec. 15, 2005). rs

* Available at <http://www.energy.ca.gov/200Spublications/CEC-500-

2005-137/CEC-500-2005-137.PDF> (last visited Dec. 15, 2005).

dam is extremely stressful for fish and may produce other

adverse effects including descaling, impingement, and

bruising. See Upstream: Salmon and Society in the Pacific

Northwest at 232 (citing literature).

Slow-moving water in impoundments also impedes

downstream migration. Species of fish that move

downstream when they are juveniles, most notably Atlantic

and Pacific salmon that migrate to the ocean, have evolved to

do so with natural river currents to conserve energy, and

often have adapted to move downstream during periods of

high water. The slow water in dammed impoundments

requires such fish to expend far greater energy swimming

downstream than an undammed river would. See Atlantic

Salmon in Maine at 70; Northwest Resource Info. Ctr. vy.

Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th

Cir. 1994), cert. denied, 516 U.S. 806 (1995) (“The river no ©

longer has the strong, swift current needed to carry the smolts

rapidly downstream and out to sea.”) (quoting H.R. Rep. No.

96-976, pt. 1, at 46 (1980), reprinted in 1980 U.S.C.C.A.N.

5989, 6044). The trip downstream can double in time

because of hydroelectric dams. Northwest Resource Info.

Ctr., 35 F.3d at 1376. The extent to which hydroelectric

dams obstruct migration is not limited to fish that migrate

between freshwater rivers and the ocean — resident trout

species are also affected. See, e.g., Peter B. Moyle, /nland

Fishes of California 51 (2002) (“Even blockage of within-

river migrations may create problems.”) (noting dams on

McCloud River could be the cause of extirpation of bull trout

in California) (hereinafter “Jnland Fishes of California’).

10

3. Alterations in Stream Flow Downstream of

Dams.

A hydroelectric dam’s essential purpose is to control

river flow in order to generate electricity. Hydroelectric

dams change water flows in the downstream portion of the

river in a variety of ways that harm habitat and fish

populations. See, e.g., Jeffery F. Mount, California Rivers

and Streams: The Conflict Between Fluvial Process And

Land Use 329 (1995) (hereinafter “California Rivers and

Streams’’) (“The timing of releases may also work against the

migratory and spawning habits of anadromous fishes.”);

University of California, Davis, Center for Water and

Wildland Resources, Status of the Sierra Nevada: Summary

of the Sierra Nevada Ecosystem Project Report, Final Report

to Congress, Executive Summary 8 (1996) (concluding that

“(djams and diversions . . . have profoundly altered

streamflow patterns (timing and amount of water) . . . , with

significant impacts to aquatic biodiversity”).”

Many hydroelectric dams (including the dams involved

in the present Presumpscot River case) run the river’s water

through a power canal or tunnel that bypasses the actual river

channel, depriving that portion of the river of the water flows

it would naturally receive. The portion of the natural river

channel that is bypassed, often called the “bypass reach,” can

be a few hundred yards or many miles long. See Alcoa

Power Generating Co., 110 F.E.R.C. 4 61,056 (2005)

(relicensing of multi-dam project, one of which created a

bypass reach of 9.1 miles). Except during periods of very.

high flow when water goes over the top of the dam, the

bypass reach receives only a fraction of normal flows. See,

e.g., Lower Valley Energy, Inc., 92 F.E.R.C. 9 62,222, 64,322

” Available at <hitp://ceres.ca.gov/snep/pubs/es.htmi> (last visited Dec.

15, 2005).

il

(2000) (bypass reach for project on Strawberry Creek in

Wyoming largely devoid of water approximately 200 days a

year); S.D. Warren Co., 58 F.E.R.C. § 62,006, 63,007-09

(1991) (ordering minimum flows in 6,700 foot bypass reach

of the Eel Weir project on the Presumpscot River that had

previously received minimal leakage flows from the dam).

Low flows in the bypass reach severely limit or destroy the

river’s ability to serve as habitat for fish and other aquatic

life. See, e.g, New York State Gas & Electric Corp., 57

F.E.R.C. | 62,138, 63,205-06 (1996) (project previously had

eliminated all flows to .8 mile stretch of river causing an

absence of all aquatic life); Midwest Hydraulic Co., 79

F.E.R.C. J 61,101, 64,286 (1997) (relicensing of project that

had previously dewatered three miles of river bed).

Many hydroelectric dams alter the timing of the release

of stored water to generate electricity when demand and

prices are highest and thereby maximize the value of

generation. See How Dams Vary at 660, 661; R.M.

Cushman, Review of the Effects of Rapidly Varying Flows

Downstream from Hydroelectric Facilities, 5 North

American Journal of Fisheries Management 330, 330 (1985)

(hereinafter “Effects of Rapidly Varying Flows”). This

pattern of generation is most commonly referred to as

“peaking” generation. It produces extreme fluctuations in

flows that are dramatically different from the natural flow

patterns to which native aquatic organisms have adapted.

See, e.g., How Dams Vary at 660; Dam Removal Science and

Decisionmaking at 107; Effects of Rapidly Varying Flows at

330-31.

Peaking generation transforms the river on a daily basis.

The river flows at unnaturally low levels while the turbines

are off, suddenly surges to unnaturally high levels when the

turbines go online, and then quickly recedes again when they

12

are turned off. These rapid and frequent fluctuations impair

the ecological health of the river. The documented effects of

peaking flows include the following: death and injury to

aquatic organisms when they are buffeted by high flows or

stranded when flows drop and the river is rapidly dewatered;

impairment of rearing habitat for young fish and other

species; disruption of the natural life-cycles of many species;

and replacement of species specialized to rivers and streams

by other species more tolerant of the flow fluctuations. N.L.

Poff et al., The Natural Flow Regime, 47 BioScience 769,

777 (1997) (citing literature); Effects of Rapidly Varying

Flows at 331-335 (discussing mechanics of how rapid flow

changes affect aquatic life and citing extensive literature).

4. Temperature Changes.

Hydroelectric dams may discharge unnaturally warm or

cold water. When a dam creates a shallow impoundment, it

unnaturally raises water temperatures in the impoundment

because the water slows down. and is exposed longer to the

sun’s warming rays. When a dam converts a river into a

deep lake, the water can become “stratified,” meaning that

the slow moving water near the surface is heated by the sun

and becomes unnaturally warm, while deep water becomes

unnaturally cold. If the dam discharges water from near the

surface, the river downstream will be warmer than it should

be naturally; if the dam releases water from deeper in the

reservoir, the river will be unnaturally cold. See Dam

Removal Science and Decisionmaking at 127-28; How Dams

Vary at 660. In general, the discharge of warmer-than-

natural water can impair native cold- and cool-water species,

while the discharge of unnaturally cold water can impair

native warm-water species. Jd; see also J. Stanford et ai.,

The Status of Freshwater Habitats, in R. Williams (ed.),

Return to the River 214 (2006).

13

Urnatural temperature alterations can have a variety of

effects on fish. For trout and salmon, increased temperature

may adversely influence spawning behavior, delay upstream

migration, decrease growth, and indeed cause death. /nland

Fishés of California at 255; id. at 252 (“In some regulated

streams, a small change in temperature regime can result in a

major change in fish fauna.”) (describing effects of FERC-

licensed project on the North Fork Feather River). “Thermal

alterations potentially affect the survival and growth of

virtually every stage of the freshwater life cycle.” Upstream:

Salmon and Society in. the Pacific Northwest at 192

(emphasis added).

5. Dissolved oxygen and other changes in the

chemical composition of the river's water.

A hydroelectric dam can alter the chemical composition

of a river’s water in a number of ways. For example,

“[mJany hydropower projects are uiable to meet state water

quality standards for [dissolved oxygen].” Mark J. Peterson

et al., Regulatory Approaches for Addressing Dissolved

Oxygen Concerns at Hydropower Facilities iv (2003)

(prepared for U.S. Department of Energy)” Hydroelectric

dams, especially those with deep impoundments, often

discharge water with artificially reduced levels of dissolved

oxygen, in part because water deep in a reservoir does not

mix and interact with air like water flowing down a river.

See, e.g., Dam Removal Science and Decisionmaking at 127

(deep water in impoundments may be oxygen-poor and even

anaerobic); How Dams Vary at 660. The discharge of water

with little or no dissolved oxygen has an immediate impact

on aquatic organisms, which of course rely on dissolved

oxygen in water to breathe. See, e.g., C. Coutant & R.

* Available at <http://ny dropower.id.doe.gov/turbines/pdfs/doeid-

11071.pdf> (last visited Dec. 18, 2005).

14

Whitney, Hydroelectric System Development: Effects on

Juvenile and Adult Migration, in R. Williams (ed.), Return to

the River 249, 265 (2006) (noting survival of salmon eggs

depends on suitable oxygen content).

Although the preceding discussion sets forth the most

prevalent and harmful effects of hydroelectric dams on water

quality and fish habitat, such dams cause a variety of other

adverse effects, including the trapping of all of a river’s

sediment, the collection and concentration of nutrient

pollution, blooms of plankton and algae, and the production

of high concentrations of certain dissolved gasses.

California Rivers and Streams at 316-20; Dam Removal

Science and Decisionmaking at 126-30; Portland General

Electric Co., 111 F.E.R.C. § 61,450, slip op. at 85-97 (2005)

(section 401 certification in multi-dam relicensing addressing

a variety of water quality problems caused by dams).

B. The Impact of Hydroelectric Dams on Rivers and

Fish Can Be Catastrophic.

The damage that hydroelectric dams have done to the

Nation’s fish populations has not escaped the Court’s notice.

“The destruction of anadromous fish in our western waters is

so notorious that we cannot believe that Congress through the

[Federal Power Act] authorized their ultimate demise.”

Udall, 387 U.S. at 437-38 (citations and references omitted).

Although healthy fish communities exist below some

hydroelectric dams, the overall effect of these dams on native

fish populations has been destructive and, in some cases,

catastrophic.

The rivers of New England, including the Presumpscot,

are good examples. Hundreds of thousands of Atlantic

salmon once returned from the ocean to spawn in New

15

England’s rivers from the Connecticut River to the Canadian

border and sustained robust recreational and commercial

fisheries. See U.S. Fish and Wildlife Service & National

Marine Fisheries Service, Biological Report on the Status of

Atlantic Salmon §§ 4.1.1, 4.1.2 (1999).2” When the era of

dam building began in the 19" century, salmon populations

began disappearing from these rivers, until they were a tiny

fraction of historic numbers. /d.; see also Atlantic Salmon in

Maine at 71-74 (listing 19 New England rivers where dam

brilding was followed by significant drops in salmon

populations). The Presumpscot River shared this fate: before

it was dammed, it hosted healthy runs of Atlantic salmon and

other anadromous fish, and the building of dams on the river

produced a precipitous collapse of those runs. See Atlantic

Salmon in Maine at 73; S.D. Warren Co., 58 F.E.R.C. § at

63,009.

Hydroelectric dams have also played a leading role in

the steep decline of Pacific salmon populations. Salmon

populations in the Columbia Basin have been decimated

since the extensive damming of the river. Prior to the dam

building era, more than six million — and perhaps as many as

sixteen million — salmon swam up the Columbia River during

their annual migration from the sea. Upstream: Salmon and

Society in the Pacific Northwest at 90. Current populations

in the basin are estimated to be approximately one-eighth of

historical abundance. Jd. The Columbia River federal

hydroelectric system causes about eighty percent of the

annual loss of salmon from their once historically robust

population numbers in the basin. Northwest Resource Info.

Ctr. v. Northwest Power Planning Council, 35 F.3d 1371,

1376 (9th Cir. 1994). Construction of dams has utterly

eliminated salmon from thirty one percent of their historical

* Available at <hitp:/Nibrary.fws.gov/salmon/index.htm|> (last visited

Dec. 19, 2005).

16

habitat (measured in stream miles) .in. the Columbia Basin.

Upstream: Salmon and Society in the Pacific Northwest at

63.

Farther south, the picture is equally bleak for salmon.

On the Klamath River in Oregon and California, FERC-

hydroelectric dams have eliminated salmon and steelhead

from approximately 600 miles of historical habitat since

1918. John B. Hamilton et al., Distribution of Anadromous

Fishes in the Upper Klamath River Watershed Prior to

Hydropower Dams—A Synthesis of the Historical Evidence,

3 Fisheries 4, at 10-11 (Apr. 2005); see also Inland Fishes of

California at 50. Hydroelectric dams have also proliferated

in California. For example, “[h]ydro projects are installed on

all but one of the Sierra Nevada’s major river systems.”

California Energy Commission (“CEC”), Environmental

Performance Report of California's Electric Generation

Facilities: A Report to the State Legislature 32 (July 2001)

(emphasis added)” In California, the widespread building

of hydroelectric dams has caused widespread ecological

damiage. The CEC has compared the effects of different

electrical generation sources upon the state’s biological

resources and concluded that the effects from hydroelectric

power are greater than those from any other source. Jd. at

31-44 (comparing sources of power generation and

discussing substantia! impacts of hydropower).

" Available at <http://www.energy.ca/gpv/reports/2001-1!1-20_700-01-

001.PDF> (last visited Dec. 15, 2005).

17

II

HYDROELECTRIC DAMS ALSO CAUSE

VIOLATIONS OF WATER QUALITY STANDARDS,

AND WITHOUT SECTION 401 AUTHORITY OVER

FERC-LICENSED DAMS, STATES WILL BE UNABLE

TO ADDRESS THESE VIOLATIONS.

The various impacts of hydroelectric dams discussed

above not only damage fish populations; they also violate

state water quality standards promulgated under section 303

of the CWA. See 33 U.S.C. § 1313. Elimination of section

401 authority will make it more difficult or even impossible

for states to achieve these standards and to achieve the

overall goals of the Act.”

Among the explicit goals of the Act is to achieve (by

1983) “water quality which provides for the protection and

propagation of fish, shellfish, and wildlife and provides for

recreation in and on the water.” Clean Water Act section 101,

33 U.S.C. § 1251(a)(2). As the Court discussed in PUD No.

1 of Jefferson County v. Washington Department of Ecology,

511 U.S. 700, 714 (1994) (hereinafter “Jefferson County

PUD”), one of the primary mechanisms established by the

CWA to achieve this goal is the requirement that states

promulgate and implement water quality standards applicable

to every water body in the state.

The biological, physical, and chemical effects of

hydroelectric dams can cause violations of the provisions of

most states’ water quality standards. As the Jefferson County

PUD opinion described in detail, state water quality

standards are made up of designated uses that specific

'' Under certain circumstances, Indian Tribes also have section 401

certification authority. See Clean Water Act section 518, 33 U.S.C. §

1377(e).

18

segments of water bodies must support, and criteria (both

numeric and narrative) for specific forms of pollution

applicable to each designated use. See Jefferson County

PUD, 511°U.S. at 714. The designated uses usually include

requirements that the water be usable for activities such as

swimming, fishing, and water supply, and also can include

requirements that particular water bodies be usable as habitat

for certain categories of fish and other aquatic life. Jd. at

714, 716. States must strive to achieve full compliance with

all aspects of their water quality standards. See 33 U.S.C.

§1313(d); Jefferson County PUD, 511 U.S. at 715.

The Court explicitly held in Jefferson County PUD that

ensuring compliance with state water quality standards is “a

proper function of the § 401 certification,” id. at 712-13, and

that a state’s section 401 certification may require

compliance with “both the designated uses and the water

quality criteria of the state standards.” Jd. at 715; see also id.

at 716. The Court ultimately held that the state of

Washington could use its section 401 authority to ensure

compliance with use designations of the Dosewallips River

as habitat for salmon and include certification terms

requiring the release of specific flows from the dam to

protect that designated use. See id. at 714-15.

The Court was correct to note that Washington’s

standards are “typical” in their use designation and criteria.

Jefferson County PUD, 511 U.S. at 716 (“Washington’s

Class AA water quality standards are typical in that they

contain several open-ended criteria which, like the use

designation of the river as a fishery, must be translated into

specific limitations for individual projects.”). Most states

have fisheries-related designations and criteria in their

standards, and those aspects of their standards can be

violated by the numerous effects of hydroelectric dams

19

discussed in Section I of this brief’ Numeric criteria for

specific pollutants do not receive more weight than use

designations and criteria, and states must achieve both. See

id. at 715.

Maine’s water quality standards require the state to

classify all of its waters into categories reflecting differing

levels of designated uses. The state classifies rivers in four

classes from Class AA (the highest quality) down to Class C.

See 38 Me. Rev. Stat. § 465 (2005). All of the classes have

designated uses, which for each class includes fishing and

“habitat for fish and other aquatic life.’ Jd. Each

classification also includes an aquatic life standard, which in

the case of the two highest categories, requires that “{t}he

aquatic life content . . . shall be as naturally occurs.” Jd.

12 See, e.g., 5 Colo. Code Reg. 1002-31.13(1 (c) (2005) (establishing

four aquatic life use designations including two for “waters capable of

sustaining a wide variety of [cold/warm] water biota”); Mich. Admin.

Code R. 323.1100 (6)-(9) (2005) (designated uses require protection of

certain waters as trout fisheries and of others as migratory salmonid

habitat); Minn. R. § 7050.0222 (2005) (water's aquatic life and recreation

use designation must be “such as to permit the propagation and maintenance

of a healthy community of cold water sport or commercial fish and associated

aquatic life, and their habitats”); N.H. Admin. Code R. [Env-Ws] 1703.19

(2005) (requiring surface waters to support community of aquatic organisms

comparable to that of natura! habitats, and that differences with naturally

occurring conditions shall be limited); N.J. Admin. Code 7:9B1.12(a)-(g)

(establishing six aquatic life use designations, including waters that must be

suitable for “maintenance, migration, and propagution of natural and

established biota”); Or. Admin. R. 340-041-0002 (2005) (defining uses and

referencing specific basin designations where uses include “Core Cold-

Water Habitat Use,” “Salmon and Stee|head Spawning Use,” and

“Salmon and Trout Rearing and Migration Use”); 25 Pa. Code § 93.3

(2005) (establishes four aquatic life uses including cold water fishes and

migratory fishes); Wis. Admin. Code § N.R. 102.04(3)a)-(e) (2005)

(classification into five different aquatic life uses, including “cold water

communities” and “warm water sport fish communities”).

20

Most of the segments of the Presumpscot River that the

discharges from petitioner’s dams affect are class B waters,

for which Maine’s standards require that “{a]quatic life in the

receiving waters must be of sufficient quality to support all

aquatic species indigenous to the receiving water without

detrimental changes in the resident biological community.”

Id. at § 465(3)(c). The health of indigenous aquatic species

found in the Presumpscot River such as eels, salmon, shad,

and herring requires fish passage, flows in the bypass

reaches, and sufficient water quality. The state’s section 401

certification of petitioner’s hydroelectric dams addressed all

of those issues, and without certification authority the state

would have been powerless to ensure compliance with its

water quality standards.

When a FERC-licensed hydroelectric dam causes or

threatens violations of state water quality standards, a state

like Maine has limited options with which to address those

violations. Indeed, section 401 is the only tool Congress

gave to states in this predicament, and it deliberately

designed this authority to be a cornerstone of the CWA’s

Statutory scheme. Accepting petitioner’s argument and

reversing the ruling below would strip states of one of the

primary tools Congress gave them to meet their obligation to

achieve water quality standards under the CWA.

'? A short portion of the river below Dundee (the upstream most dam

involved) is class A, and the river below Saccarapa (the downstream-

most) is class C. See 38 Me. Rev. Stat. Ann. § 467(9).

21

Ill

SECTION 401 CERTIFICATION AUTHORITY HAS

BEEN FREQUENTLY AND SUCCESSFULLY

EMPLOYED BY THE STATES TO PROTECT AND

RESTORE WATER QUALITY, FISH POPULATIONS

AND RIVER HEALTH. .

A. States Have Used Their Section 401 Authority

Virtually Since the Clean Water Act’s Passage.

Section 401 of the CWA provides that “[a]ny applicant

for a Federal license or permit to conduct any activity .. .

which may result in any discharge into the navigable waters”

must obtain, from the state in which the discharge would

occur, a certification that the activity will comply with a

variety of provisions of the CWA, including state water

quality standards promulgated under section 303 of the Act.

33 U.S.C. § 1341(a). Pursuant to the plain language of this

provision, section 401 certifications have been a part of

FERC licensings and relicensings of hydroelectric dams

since the CWA was passed in 1972.

Review of reported FERC decisions shows that

hydroelectric license applicants began seeking, and states

began issuing, section 40! certifications of their dams very

soon after passage of the CWA.“ Over time, application of

the authority has become more sophisticated, and some states

'* See, e.g., Georgia Power Co., 9 F.E.R.C. 4 62,205, 63,238 n.3 (1979);

Indiana & Michigan Electric Co., 58 F.P.C. 2,771, 2,772 (1977); Brown

Company, 59 F.P.C. 395, 396 (1977); Potomac Edison Co., 56 F.P.C.

3,462, 3,463 (1976); Idaho Power Company, 53 F.P.C. 1,004, 1,008

(1975); Nekoosa Edwards Paper Co., 52 F.P.C. 1,020, 1,021 (1974); Sho-

Me Power Corp., 53 F.P.C. 1999, 2000-01 (1975); Puget Sound Power

and Light Co., 53 F.P.C. 1657 (1975).

22

have included more conditions in their section 401

certifications designed to help assure compliance with

specific state water quality standards. See infra at note 17

(citing numerous examples of section 401 certifications of

FERC hydroelectric licenses). Although a number of court

decisions over the last thirty years have fleshed out the

precise contours of section 401, courts, FERC, and other

agencies have never questioned the basic requirement of a

section 401 certification for a FERC hydroelectric license.

See, e.g., Jefferson County PUD, 511 U.S. 700 (defining

scope of water quality standards a state may seek to enforce

in a section 401 certification); see also American Rivers v.

FERC, 129 F.2d 99 (2d Cir. 1997) (FERC has no authority to

reject certain section 401 certification terms); City of

Fredericksburg v. FERC, 876 F.2d 1109 (4th Cir. 1989)

(FERC cannot issue license for hydroelectric project if state

denies certification). Petitioner’s argument, if sustained,

would reverse thirty years of accepted practice in FERC

licensings of hydroelectric dams, and would eliminate a

critical piece of a complex, interrelated, and well-honed

regulatory scheme.

Contrary to claims by several amici on behalf of

petitioner that section 401 certification conditions are so

onerous that they jeopardize our energy security;*” FERC

itself, after taking into account not just 401 certifications but

the entire relicensing process has determined that relicensing

of hydroelectric dams (which occurs once every thirty to fifty

'* See Brief for Edison Electric Institute, The American Forest & Paper

Ass’n, The American Public Power Ass'n, The Nationa] Hydropower

Ass’n, and The Utility Water Act Group as Amici Curiae In Support Of

Petitioner.

23

years) has led to negligible reductions in electric generating

capacity.”

B. Recent Examples Show That States Use Section 401

Certification Authority to Protect and Restore Fish,

Water Quality, and River Health.

In numerous FERC hydroelectric relicensings, states

have used section 401 authority to require fish passage,

changes in flow regime, and other changes in the operation of

hydroelectric dams to ensure compliance with water quality

standards and to protect and restore fish populations.” Many

'® See FERC 603 Report at 50 (finding that after relicensing “the average -

annual generation loss, attributed largely to increased flows to protect

aquatic resources, was 1.59 percent, while average installed capacity

increased 4.06 percent”).

'” See, e.g., American Rivers v. FERC, 129 F.3d 99, 103-04 n.3 (2d Cir.

1997) (three licensings for projects in Vermont where the state issued

section 401 certifications with conditions relating to fish passage and

minimum flows below dams); Alcoa Power Generating, 110 F.E.R.C. |

61,056 (2005) (settlement of multi-dam relicensing in which North

Carolina issued section 401 certifications requiring minimum flows and

periodic high flows in the Little Tennessee River and one of its principal

tributaries in order to restore aquatic life and recreational uses); FPL

Energy Maine Hydro, LLC, 106 F.E.R.C. 4 62,021 (2004) (as part of

settlement of relicensing of Indian Pond dam on the Kennebec River in

Maine, state issued section 401 certification with conditions related to

minimum flows, fish habitat restoration, and fishing flows to protect

existing use as brook trout and landlocked salmon fishery); FPL Energy

Maine Hydro LLC, 101 F.E.R.C. § 62,179 (2002) (settlement of licensing

of dams on Rapid River in Maine in which Maine isswed a section 401

certification designed to protect high quality brook trout and landlocked

salmon fishery, and including conditions related to minimum flows,

reservoir levels, and other aspects of fish habitat); Avista Corp., 90

F.E.R.C. J 61,167 (2000) (settlement of complex relicensing of large,

multi-dam project in which Montana and Idaho issued section 401

certifications implementing the settlement and addressing a variety of fish

habitat and water quality issues, including flows, fish passage, gas

24

of the amici who have submitted this brief have participated

in relicensings where a state’s use of its section 401 authority

has protected or enhanced critical fish populations. In some

cases, the state issued the certification over the hydroelectric

dam owner’s objection. In others, the states issued their

section 401 certifications as part of comprehensive

relicensing settlements, and consistent with terms parties

developed collaboratively. See supra note 17.

In addition to the relicensings described in note 17, three

examples are particularly illustrative. Trout Unlimited and

other angling groups were active participants in FERC’s

relicensing of five dams on the Housatonic River in

Connecticut. See Northeast Generation Services, 107

F.E.R.C. ¥ 61,305 (2004). In that case, two of the dams

(Falls Village and Bulls Bridge) controlled virtually all of the

remaining free-flowing sections of the river in Connecticut.

See id. at 62,419-20. The Falls Village and Bulls Bridge

saturation, and sediment); Holyoke Water Power Co., 88 F.E.R.C. 4

61,186 (1999) (relicensing of Holyoke dam on the Connecticut River in

Massachusetts in which the section 401 certification included conditions

related to flows below dam, fish passage, and run-of-river operation to

promote recovery of anadromous fish); Central Maine Power, 82

F.E.R.C. ¥ 61,187 (1998) (section 401 certification of relicensing of

project on the Saco River in Maine incorporated comprehensive

settlement of fish passage and flows issues for projects on that river, and

included conditions related to minimum flows and fish passage in order to

promote restoration of salmon, shad, and river herring); Summit

Hydropower, 81 F.E.R.C. ¥ 62,089 (1997) (section 401 certification of

relicensing of a project on the Quinebaug River in Connecticut requiring

fish passage, minimum flows below the dam, and run-of-river operation);

Rochester Gas and Electric Corp., 81 F.E.R.C. | 62,064 (1997) (section

40! certification of relicensing included 20 conditions, including run-of-

river operation, restrictions on impoundment draw-down, and minimum

flows); Kennebec Water Power Company, 81 F.E.R.C. J 61,254 (1997)

(section 401 certification of relicensing of Moosehead project on upper

Kennebec River in Maine included conditions related to minimum flows,

ramping rates, and flows during salmonid spawning).

25

hydroelectric dams were peaking dams and released large

amounts of water during the day in the summer, which in

turn caused a variety of negative biological effects. See id.

The dams caused such dramatic biological effects that

the state had listed these sections of the river under section

303(d) of the CWA as impaired because they failed to meet

aquatic life standards. See Connecticut Department of

Environmental Protection, 2004 List of Connecticut

Waterbodies Not Meeting Water Quality Standards at B-26,

B-27 (2004).” The state issued a section 401 certification

for the project that included a variety of conditions for all

five dams, among which was the requirement that the Falls

Village and Bulls Bridge hydroelectric dams cease peaking

generation and be operated as “run-of-river,” meaning that

flows below the dams would closely resemble flows that

would naturally occur in the river. See Northeast Generation

Services, 107 F.E.R.C. at 4 62,441-42. The certification also

provided for higher flows in the portions of the river

bypassed by the power canals of both dams, in an effort to

improve aquatic communities. See id The certification

sought to bring these waters into compliance with aquatic life -

standards and to improve the recreational fishery in the river.

FERC had explicitly indicated that, absent the state’s section

401 certification, FERC would have allowed continued

peaking generation, with some modification, in the new

license. See id. at 62,422.

On the west coast, several of the amici on this brief

participated in the relicensing of Pacific Gas & Electric

Company’s hydroelectric dams on Hat Creek, in northeastern

California. See Pacific Gas & Electric Co., 101 F.E.R.C. 4

'* Available at <http://www.dep.state.ct.us/wtr/wq/2004_303d_final.pdf>

(last visited Dec. 9, 2005).

26

61,165 (2002). Hat Creek is unquestionably one of the state’s

most treasured and renowned wild trout recreational

fisheries. See id. at 61,668 n.22. The project is comprised of

two hydroelectric dams that operate in run-of-river mode,

like the dams at issue in this case. See id. at 61,664.

California had given Hat Creek a use designation of

“cold fresh water habitat.” See Water Quality Control Plan

(Basin Plan) For The Central Valley Regional Water Quality

Control Board, Central Valley Region, 4° ed, The

Sacramento River Basin and San Joaquin River Basin 1|-5.00

(Sept. 1999) (table of waters and designations, Table [I-1).”

“Cold fresh water habitat” means “uses of water that support

cold water ecosystems including, but not limited to,

preservation or enhancement of aquatic habitats, vegetation,

fish, or wildlife, including invertebrates.” Jd. at [1-2.00.

The state of California issued a section 401 certification

for the Hat Creek Project that protects and enhances this vital

fishery. Among other things, the certification requires

continued run-of-river operation, development of an erosion

and sediment control plan, continuous minimum instream

flow below the dams, and development of a flow gauging

program, fish monitoring program, and herbicide-use plan.

Id. at 61,664-65. As a package, the section 401 certification

requirements ensure protection and enhancement of Hat

Creek’s fish populations and compliance with the state’s

designated uses.

In Oregon, the Confederated Tribes of the Warm Springs

Reservation and the state of Oregon both issued section 401

'" Available at

<http://www.waterboards.ca.gov/centralvalley/available_documents/basi

n_plans/SacSJR.pdf> (last visited Dec. 15, 2005).

27

certifications for a relicensing of three hydroelectric dams on

the Deschutes River. See Portland General Electric Co., 111

F.E.R.C. ¥ 61,450 (2005). Both certifications were issued as

part of a comprehensive settlement of a very complex

relicensing, and were focused on protecting and restoring

populations of anadromous salmon and steelhead, and

resident trout. The terms and conditions of the state’s

certification addressed many of the habitat and water quality

problems associated with the dams, including elevated water

temperature, id. slip op. at 85-86; low levels of dissolved

oxygen in waters discharged from the dams, id. at 87-88; pH

of waters discharged from the dams, id. at 88-90; ramping

rates associated with changes in flows discharged from the

dams, id. at 92; minimum streamflow levels, id. at 93; fish

passage, id; and levels of dissolved gases in water

discharged from the dams, id at 95. Many of these

provisions serve the added purpose of addressing certain

water quality impairments, which the state is also required to

address pursuant to section 303(d) of the CWA. This

certification demonstrates in considerable detail the close

link between hydroelectric dam operations, the health of

fisheries, and potential violations of state water quality

standards. Jd at 85-86 (temperature), 87-88 (dissolved

oxygen), 89 (pH), and 90-91 (phytoplankton growth).

All three of these examples, as well as the examples

listed in note 17, supra, illustrate the proper functioning of

section 401 in FERC hydroelectric relicensings: helping

states achieve a variety of components of their water quality

standards, particularly those related to the health of fish

populations and the river’s biological community generally.

28

CONCLUSION

In this case the State of Maine used section 401 as

Congress intended and as other states have used it around the

country for years — namely, to ensure that FERC-licensed

hydroelectric dams comply with water quality standards,

including fish-related designated uses. Without section 401

certification authority over FERC-licensed dams, states will

be unable to meet their obligation under the CWA to achieve

compliance with those standards in the thousands of water

bodies affected by these dams. If this were to happen, our

Nation’s fish populations and rivers would suffer greatly.

Respectfully submitted,

LEON F. SZEPTYCKI, General Counsel

CHARLTON H. BONHAM, Senior Attorney

Trout Unlimited

1300 N..17™ St., Suite 500

Arlington VA 22209

(703) 522-0200

JAMES B. DOUGHERTY

Counsel of Record

709 Third St. SW

Washington, D.C. 20024

(202) 488-1140

Counsel for Amici Curiae

January 6, 2006