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

No. 04-1527 JAN Sa 2006

Bn The |

Supreme Court of the Anited States

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S.D. WARREN COMPANY,

Petitioner,

Vv.

MAINE BOARD OF

ENVIRONMENTAL PROTECTION,

Respondent.

On Writ Of Certiorari To The

Maine Supreme Judicial Court

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BRIEF FOR AMICUS CURIAE BY

UNITED STATES SENATOR JAMES M. JEFFORDS

IN SUPPORT OF RESPONDENT

¢

JAMES M. JEFFORDS

United States Senator

Dirksen Senate Office Building

Washington, D.C. 20510

(202) 224-5141

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does this Court’s holding last year in South Florida

Water Management District v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004), alter the requirement that the flow of

water through an existing dam constitutes a “discharge”

under Section 401, 33 U.S.C. § 1341, of the Clean Water

Act?

i

LIST OF PARTIES AND

CORPORATE DISCLOSURE

The parties to the appeal are the Petitioner S.D.

Warren Company and the Respondent Maine Department

of Environmental Protection and Intervenors American

Rivers and Friends of the Presumpscot River.

Senator Jeffords represents the state of Vermont in

the United States Senate and is neither a for-profit nor a

not-for-profit non-governmental entity. Senator Jeffords

received assistance in the preparation and printing of this

brief from Jon Groveman, Esq., legal counsel for the

Vermont Natural Resources Council (VNRC). VNRC is a

501(c\(3) not for profit entity incorporated in Vermont.

ili

TABLE OF CONTENTS

3 Page

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LIST OF PARTIES AND CORPORATE DISCLOSURE... ii

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TABLE OF AUTHORITIES ...............0+.. senhaiaidibdetetiatagith v

- INTEREST OF AMICUS CURIAE......00.......cccceeseeeeeees 1

SUMMARY OF THE ARGUMENT ....0.0.......ccccseeeeseseees 7

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I. CONGRESS INTENDED THAT SECTION

401 OF THE ACT APPLY TO HYDROELEC-

TRIC DAMS AND INTENTIONALLY CRE-

ATED A BROADER MORE INCLUSIVE

DEFINITION OF DISCHARGE IN SECTION

401 THAN SECTION 402 OF THE ACT .......... 8

A. The Legislative History of Sections 401

and 402 Indicate that the Terms “Dis-

charge” and “Discharge of a Pollutant”

Have Distinct Meanings ...................:c:0000e+ 9

B. Changes in the Definition of “Discharge”

During Consideration of the Bill Prove

that Congress Intended “Discharge” to

Have a Broader Meaning than “Discharge

EE tadpecilicedavastiicsnatentanitebiceictasinenss 11

C. The Definitions of “Discharge” and “Dis-

charge of a Pollutant” Were Not Amended

Nor Were Amendments Proposed after

Case Law Found them to Have Distinct

iv

TABLE OF CONTENTS ~ Continued

Page

D. Section 402 Addresses Discharges that

Add Pollutants to the Nation’s Waters and

Section 401 Addresses Activities Harmful

to Water Quality that Do Not Involve the

Addition of Pollutants...............:cc0-ccececeereeee 13

Il. THE INTENT OF THE CLEAN WATER ACT

IS TO ENABLE STATES TO ENSURE COM-

PLIANCE WITH THEIR DULY ADOPTED

WATER QUALITY STANDARDS .............:000000 16

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

National Wildlife Federation v. Gorsuch, 693 F.2d

EE ce 9

Oregon Natural Desert Association v. Dombeck, 172

F.3d 1092 (9th Cir. 1998), cert. denied, 528 U.S.

EE Ee 12

PUD No. 1 of Jefferson County v. Washington Dep't

of Ecology, 511 U.S. 700 (1994) ..........cccccsseeeseeeeeeeeeeeeees 13

South Florida Water Management District uv.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004)............ 7

FEDERAL STATUTES

SS EE or ae 10

CS SALLE ATA 1

CE an 1,6

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EE EE EL 9

33 U.S.C. § 1362(16)................ccccesceee i dalieteligaiai ii alae 12

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STATE STATUTES

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vi

TABLE OF AUTHORITIES - Continued

Page

LEGISLATIVE HISTORY

Environmental Policy Division of the

Research Service of the Library of Congress, 93rd

Congress, A Legislative History of the Federal

Water Pollution Control Act of 1972 ..00...........ccccccceeeeeeees 3

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WEBSITES

EPA website, http//www.epa.gov/owow/wetlands/facts/

SENET carresibisstisenieinctianbediiaindlintebsasdemsittisineamnatenaaabibieits 13

1

INTEREST OF AMICUS CURIAE’

The Clean Water Act (Act), 33 U.S.C. § 1251 et seq., is

a landmark statute that was adopted during a period of

monumental change in our nation’s legal environmental

landscape. The National Environmental Policy Act, 42

U.S.C. § 4321 et seq., was passed in 1969 and the Clean

Water Act quickly followed in 1972. The Act’s objective is

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). To achieve this goal, the Act regulated the

discharge of pollutants into the waters of the United

States and gave the federal government, through the

Environmental Protection Agency (EPA), the authority to

implement pollution control programs for wastewater

treatment systems and to establish minimum standards

for contaminants in surface waters and to regulate the

impacts of federally licensed facilities on waters of the

United States.

To understand the significance of the Clean Water Act,

recall the contaminated state of our nation’s waterways in

the early 1970s. Our nation was faced with a water pollu-

tion crisis. The most vivid example was the Cuyahoga

River in Ohio, which became so polluted with chemicals

and industrial wastes that it burst into flames. Toxic

materials were routinely dumped into pristine water

bodies by industrial polluters. It was standard practice in

municipalities to have underground pipes deliver raw

’ The parties have consented to the filing of this brief.

Amicus Senator Jeffords received assistance in preparing the brief

from John Groveman, Esq. of the Vermont National Resources Counsel

(VNRC). In addition, VNRC paid for the printing of the brief.

2

sewage from homes directly into rivers and streams

without any intervening treatment.

In Vermont, the state’s growing support for environ-

mental conservation was embodied in the local opposition

to the planned construction of several large dams. Along

the Moose River in the Northeast Kingdom, the White

River at Gaysville, and the Saxtons River at Cambridge-

port in southern Vermont, loca] awareness of the effect of

large dams on native fish species, water quality, and

woodland habitat led Vermonters to question the wisdom

of constructing large flood control dams. During this

period, there was very little legal precedent to rely upon to

challenge the construction of dams for their effects on

water quality, habitat or species.’

In 1970, Vermont responded to that void and passed

Act 252, the toughest water pollution law in the country at

the time. Act 252 gave the citizens of Vermont the. basic

tools to protect Vermont’s waters at the state level. See 10

V.S.A. § 1263 et seq.

In 1972, the Congress passed the Federal Water

Pollution Control Act, or the Clean Water Act. The Federal

Water Pollution Control Act was originally adopted in

1948. The 1972 Clean Water Act, which was passed by

* Senator Jeffords was Vermont's Attorney General between 1968-

1974. In 1970, he worked to pass landmark environmental statutes in

Vermont such as Act 252, the state’s first water quality statute. As

Attorney General, Senator Jeffords championed clean water protection,

taking strong enforcement actions against large industry and munici-

palities to prevent the discharge of pulp and paper sludge, untreated

sewage, and warm water into Vermont's water resources. In addition,

as Attorney General, Senator Jeffords dealt with many of the legal

issues surrounding the construction of proposed dams in Vermont

without much legal history in this area to rely on.

3

wide margins’ in Congress to override a veto by President

Nixon, completely revised the existing statute and created

the clean water program that has been in place for 35

years.

Congress clearly intended the 1972 Clean Water Act to

be a comprehensive approach to solving our nation’s water

_ pollution problems. At that time, Senator Muskie (D-ME)*

stated:

Can we afford clean water? Can we afford rivers

and lakes and streams and oceans which con-

tinue to make life possible on this planet? Can we

afford life itself? The answers are the same. Those

questions were never asked as we destroyed the

waters of our Nation, and they deserve no an-

swers as we finally move to restore and renew

them.

118 Cong. Rec. 25, 33692 (1972), reprinted in Envtl. Policy

Div. Cong. Research Serv. Library of Cong., 93rd Cong., A

Legislative History of the Federal Water Pollution Control

Act of 1972, at 164 (1973.) (hereinafter, A Legislative

History.)

* Senate vote on S. 2770, November 2, 1971, 86-0; House vote on

H.R. 11896, March 29, 1972, 380-14; Senate vote on S. 2770 conference

report, October 4, 1972, 74-0; House vote on S. 2770 conference report,

October 4, 1972, 366-11; Senate vote to override President Nixon veto,

October 17, 1972, 52-12; House vote to override President Nixon veto,

October 18, 1972, 247-23.

* Senator Ed Muskie (D-ME) served as a state legislator and

governor of Maine before coming to the U.S. Senate in 1959. He served

on the Public Works Committee, where he chaired the Air and Water

Pollution Subcommittee, which was created in 1963 at his request. In

1972, Senator Muskie was the primary sponsor of the Water Quality

Improvement Act in the Senate, which became the Federal Water

Pollution Control Act of 1972.

4

Representative Blatnik (D-MN),’ stated during floor

debate:

In this measure, we are totally restructuring the

water pollution control program and making a

far-reaching national commitment to clean water

118 Cong. Rec. 8, 10204 (1972), reprinted in A Legislative

History, at 350.

Representative Dingell (D-MI).° stated during the

same floor debate: |

The legislation we are considering today ~ H.R.

11896 - is by far the most far-reaching and com-

prehensive bill of them all [of the 1965, 1966, and

1970 water pollution control statutes] It is a

complete revision of the Federal Water Pollution

Control Act which was first enacted under the

leadership of our distinguished colleague from

Minnesota, Congressman John A. Blatnik.

118 Cong. Rec. 8, 10248 (1972), reprinted in A Legislative

History, at 467.

In addition, the 1972 Clean Water Act represented a

“first of its kind” statute that created a federal regulatory

* Representative John Blatnik (D-MN) served in Congress from

1947 to 1974. He was chairman of the Committee on Public Works from

1971-1974, and the Clean Water Act was passed under his leadership.

* Representative John Dingell (D-MI) served in the House of

Representatives from 1955 to the present. In 1972, he participated

actively in the floor debate on the Clean Water Act. Currently, he is the

ranking member of the House Energy and Commerce Committee,

where he served as chairman from 1981-1994.

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program that relied on significant implementation respon-

sibilities delegated to the states. The Committee report

accompanying S. 2770, the Senate version of the Water

Quality Improvement Act which became the Federal Water

Pollution Control Act of 1972, states that:

For more than two decades, Federal legislation in

the field of water pollution control has been keyed

primarily to an important principle of public pol-

icy: the States shall lead the national effort to

prevent, control, and abate water pollution.

S. Rep. No. 92-414, at 146 (1971), reprinted in A Legisla-

tive History, at 1679. :

Throughout the legislative history, there is a clear

tension between efforts to increase the Federal role and a

desire to remain loyal to the principle of state implementa-

tion of the Act. During floor debate, Representative Jones

(D-AL)’ summarized this issue, stating:

All the weight of the evidence submitted to the

committee during our extensive hearings con-

firmed our velief that an effective Federal-State

partnership is absolutely indispensable to the

" Representative Robert “Bob” E. Jones, Jr. (D-AL) served in

Congress from 1947 to 1977. Jones served in the House Committee of

Public Works from his first term in office in 1946 and for 30 years was

either an active member or chairman of each of its subcommittees. In

1972, he was a principal sponsor of the Federa] Water Pollution Control

Act of 1972. In 1975, he was elected to Chairmanship of the newly

renamed Committee of Public Works and Transportation, with added

jurisdiction over civil aviation and the regulatory agencies for air,

highway, and water transportation. In recognition of his work on water

quality issues, he was named vice chairmun of the National Commis-

sion of Water Pollution, which produced the 1976 Report to Congress on

the state of efforts to improve U.S, water resources.

6

success of this program .. . this legislation places

the primary responsibility for administering the

water pollution controi program within the sepa-

rate States, with the firm stipulation that each

State must comply with the overriding Federal

guidelines. .. .

118 Cong. Rec. 8, 10207 (1972), reprinted in A Legislative

History, at 358-359.

Amicus Senator Jeffords, as the former Chair and

current Ranking Member of the Senate Environment and

Public Works Committee (EPW), has a strong interest in

ensuring that the intent of the Clean Water Act as re-

flected in the above quotations is upheld by the Supreme

Court. Simply put, if the Petitioner's arguments are

adopted by the Supreme Court, the Clean Water Act would

be turned on its head. The Petitioner, through this appeal,

seeks to rewrite Section 401 of the Act by altering the

definition of discharge and by limiting the vital role of

states in implementing the Act that my colleagues so

articulately -discussed above. Amicus Senator Jeffords

submits this amicus curiae brief to provide assistance to

the Supreme Court in understanding why supporting the

Petitioner’s claims runs counter to the legislative history

of the Act, and to protect Congress's interest in ensuring

that the goal of the Act — to restore the chemical, physical

and biological integrity of our nation’s waters — is

achieved. 33 U.S.C. § 1251(a). All parties provided consent,

including S.D. Warren Co., Maine Board of Environmental

Protection, and American Rivers. Appendix 1.

°

7

SUMMARY OF ARGUMENT

I. The Petitioner’s argument that Section 401 of the

Act does not apply to hydroelectric dams because dams

allegedly do not cause a discharge is contrary to the

legislative history and the plain meaning of the Act. The

meaning of the phrase “any discharge” as provided in

Section 401 is distinguishable from the phrase “discharge

of a pollutant” as provided in Section 402 of the Act. The

Section 401 provision related to “any discharge” was

intended by Congress to be broader and more inclusive

than the Section 402 standard of a “discharge of a pollut-

ant.” Accordingly, the Court’s decision in South Florida

Water Management District v. Miccosukee Tribe of Indians,

541 U.S. 95 (2004) that addressed the meaning of “dis-

charge of pollutant” under Section 402 has no bearing on

the application of Section 401 of the Act to hydroelectric

facilities as the Petitioner argues.

Il. The Petitioner seeks to rewrite Section 401 of the

Act in a manner that would severely limit, if not remove

completely, the authority of individual states to assure

that federally licensed facilities comply with state water

quality standards. Such an intrusion into the authority of

states is in direct contravention of the intent and plain

meaning of the Clean Water Act.

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8

ARGUMENT

I. CONGRESS INTENDED THAT SECTION 401

OF THE ACT APPLY TO HYDROELECTRIC

DAMS AND INTENTIONALLY CREATED A

BROADER MORE INCLUSIVE DEFINITION

OF DISCHARGE IN SECTION 401 THAN

SECTION 402 OF THE ACT.

Sections 401 and 402 of the Act were clearly intended

by Congress to serve different purposes. While Section 402

was intended to reduce pollution of the waters of the United

States by establishing the National Pollution Discharge

Elimination System (NPDES) permitting program for point

sources that discharge pollutants, Section 401 was intended

to address the impact that federally licensed facilities may

have on water quality. To this end, Section 401 requires

that certain facilities obtain state certifications assuring

compliance with state water quality standards as a pre-

requisite to obtaining a federal permit or license.

Congress expressed the distinction between Section

401-and 402 in the manner that the term discharge is used

in each Section of the Act. Section 401(a)(1) of the Clean

Water Act (Certification) states “[A]ny applicant for a

Federal license or permit to conduct any activity including,

but not limited to, the construction or operation of facili-

ties, 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 origi-

nates ... that any such discharge will comply with the

applicable provisions . . . of this Act.” 33 U.S.C. § 1341(a)(1)

(emphasis added). In contrast, Section 402(a)(1) of the

Clean Water Act states “[E]xcept as provided in Sections

318 and 404 of this Act, the Administrator may, after

opportunity for public hearing, issue a permit for the

9

discharge of any pollutant, or combination of pollutants .. .

upon condition that such discharge will meet ... such

conditions as the Administrator determines are necessary to

carry out the provisions of this Act.” 33 U.S.C. § 1342(a)(1)

(emphasis added).

Congress used the terms “any discharge” in Section

401 of the Act to convey a different meaning than the term

“discharge of any pollutant” in Section 402 of the Act. The

rules of statutory interpretation hold that the use of two

different terms in the same statute is presumed inten-

tional. National Wildlife Federation v. Gorsuch, 693 F.2d

156 (D.C. Cir. 1982).

A. The Legislative History of Sections 401 and

402 Indicate that the Terms “Discharge”

and “Discharge of a Pollutant” Have Dis-

tinct Meanings.

Sections 401 and 402 of the Clean Water Act evolved

from two separate and distinct pieces of legislation that

were designed to address separate and distinct problems

within the broader context of water pollution. Section

401’s predecessor was Section 21(b) of the pre-1972

Amendments to the Federal Water Pollution Contro] Act,

while Section 402 was an expansion and continuation of

the permit program begun under the Refuse Act of 1899.

H.R. Rep. No. 92-911, at 121 (1972), reprinted in A Legis-

lative History of The Water Pollution Control Act Amend-

ments of 1972, at 808; S. Rep. No. 92-1236, at 138 (1972),

reprinted in A Legislative History, at 321.

The distinct purposes of these prior acts are reflected

in the clearly and significantly different use and qualifica-

tion of the term “discharge.” In 1972 Section 21(b) read

10

“[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...”, while the

Refuse Act of 1899 prohibited the discharge of refuse into

any navigable water without a permit H.R. Rep. No. 92-

911, at 121 (1972), reprinted in A Legislative History, at

808; 33 U.S.C. § 407. It is clear from the language above

that these statutes were designed to address separate

means of discharging into the nation’s waters.

Congress continued to distinguish between general

discharges and discharges of refuse or pollutants when

drafting Sections 401 and 402 of the Clean Water Act.

Section 401 adopted the language of Section 21(b) verba-

tim (continuing to use “any discharge”), while the relevant

part of Section 402 changed ‘discharge of refuse’ to the

more modern “discharge of a pollutant.” S. 2770, 92nd

Cong. (1971), at 146, 152, reprinted in A Legislative

History, at 1679, 1685. The use of these terms in these

sections remained unchanged through both houses. See S.

2770, 92nd Cong. (1971), at 146, 152, reprinted in A

Legislative History, at 1679, 1685; H.R. 11896, 92nd Cong.

(1972), at 350, 356, reprinted in A Legislative History, at

1046, 1052. It is therefore clear that Congress intended

“discharge” and “discharge of a pollutant” to remain

distinct and separate terms when it replaced these prior

acts with the more comprehensive Clean Water Act.

The following statement by Senator Muskie, the

principal sponsor of the Senate version of the Water

Quality Improvement Act which became the 1972 Federal

Water Pollution Control Act, regarding Section 402 during

the Senate Debate supports this conclusion:

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This bill does not prohibit the discharge; it pro-

hibits the discharge of any pollutant.

117 Cong. Rec. 30, 38839 (1971), reprinted in A Legislative

History, at 1348. A closer look at the context of this state-

ment makes it even more clear that Congress considered

“discherge” and “discharge of a pollutant” to be distinct

concepts. The discharge Senator Muskie referred to was

the dumping of fish entrails into the ocean from a vessel,

and the issue was whether a permit was necessary for this

practice under Section 402. See A Legislative History, at

1346-1348. As Senator Muskie indicated, the answer

depends on whether the entrails constitute a pollutant. Jd.

at 1348. If the debris associated with the cleaning of fish is

considered a pollutant then the activity is a “discharge of a

pollutant” and Section 402 applies. If not, then in Senator

Muskie’s own words, there is simply a “discharge” which

Section 402 does not address. Clearly the term “discharge”

was intended to have broader meaning than “discharge of

pollutant.”

B. Changes in the Definition of “Discharge”

During Consideration of the Bill Prove

that Congress Intended “Discharge” to

Have a Broader Meaning than “Discharge

of Pollutants.”

The original Senate bill defined “discharge” as mean-

ing “(1) any addition of any pollutant to navigable waters

from any point source.” S. 2770, 92nd Cong. (1971), re-

printed in A Legislative History, at 1699. “Discharge of a

pollutant” was not defined in the Senate bill. The later

House version of the bill broadened the definition of

“discharge” and added a definition of “discharge of a

pollutant”. Section 502(18) of the House bill stated, “The

12

term discharge when used without qualification includes a

discharge of a pollutant, a discharge of pollutants, and a

thermal discharge.” H.R. 11896, 92nd Cong. (1971), re-

printed in A Legislative History, at 1071. “Discharge of a

pollutant” was defined as “any addition of any pollutant to

navigable waters from any point source.” See A Legislative

History, at 1069-1070. Clearly the term “discharge” was

intended to have broader meaning than “discharge of

pollutant”.

C. The Definitions of “Discharge” and “Dis-

charge of a Pollutant” Were Not Amended

Nor Were Amendments Proposed af-er

Case Law Found them to Have Distinct

Meanings.

In 1998 the Ninth Circuit Court of Appeals found that

the definition of “discharge” was broader than “discharge

of a pollutant” because “discharge” was defined as “includ-

ing” “discharge of a pollutant.” 33 U.S.C. § 1362(16);

Oregon Natural Desert Association v. Dombeck, 172 F.3d

1092, 1098 (9th Cir. 1998), cert. denied, 528 U.S. 964

(1999). Essentially the court found that every “discharge of

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

“discharge of a pollutant.” To date, Congress has not

amended the Clean Water Act to reverse this Ninth Circuit

decision with regard to hydroelectric dams.

13

D. Section 402 Addresses Discharges that

Add Pollutants to the Nation’s Waters and

Section 401 Addresses Activities Harmful

to Water Quality that Do Not Involve the

Addition of Pollutants.

The rationale behind the distinctions in the definition

of the term “discharge” in Sections 401 and 402 of the Act

is that different types of activities have varying impacts on

water quality. For example, facilities that add pollutants

to the nation’s waters through a pipe or conveyance are

covered by Section 402 of the Act through the NPDES

permit program. Section 401 is written more broadly than

Section 402 in order to address water pollution that

results not only from an addition of pollutants but also

from “changes in movement, flow, or circulation of any

navigable waters, ... includes changes caused by the

construction of dams.” 33 U.S.C. § 1314(f(F); See gener-

ally PUD No. 1 v. Washington Dep't of Ecology, 511 U.S.

700 (1994) (Water flows released through a dam, which

may not involve the addition of pollutants, are “dis-

charges” subject to Section 401 certification). According to

the U.S. Environmental Protection Agency, these impacts

can be extremely serious and include chemical, physical

and biologica] impacts such as low dissolved oxygen levels,

turbidity, inundation of habitat, stream volumes and

fluctuations, filling of habitat, impacts on fish migration,

loss or degradation of wetlands, and loss of aquatic species

as a result of habitat alterations."

The legislative history of the Act demonstrates the

intent of Congress to address the type of impacts associated

* EPA website, http://www.epa.gov/owow/wetlands/facts/fact24 html.

14

with federally licensed facilities, such as hydroelectric

dams. The House Report on the bill that led to Section 401

stated:

A wide variety of licenses and permits (construc-

tion operating and otherwise) are issued by vari-

ous federal agencies. Many of them involve

activities or operations potentially affecting water

quality. The purpose of subsection 11(b) is to pro-

vide reasonable assurance (as determined by the

affected State, States, or the Secretary of the Inte-

rior) that no license or permit will be issued by a

federal agency for an activity that through inade-

quate planning or otherwise could in fact become

a source of pollution.

H.R. Rep. No. 91-127 (1970), reprinted in 1970 U.S.C.C_AN.

2691, RBA 6.

The House Report goes on to explain that Section 401

is intended to address the water quality impacts of all

types of electric generating facilities:

The Chairman of the Joint Committee ... was

fearful that an undesirable competitive factor

would be developed by virtue of the possibility

that a significant fraction of all new electrical

generating capacity (other than nuclear) would

not be covered by subsection 11(b). The Committee

believes that this concern ts met by the fact that a

federal license or permit of some kind is required

for almost all electric generating plants, and a

federal agency granting the relevant license can

and should condition the grant upon compliance

with applicable water quality standards.

Id.

15

When Section 401’s state certification was first en-

acted (as Section 21(b)), Senator Muskie, the primary

sponsor of the Senate version of the Water Quality Im-

provement Act which became the 1972 Federal Water

Pollution Control Act, called it “the most important sec-

tion” of the Act.

He then said:

No polluter will be able to hide behind a Federal

license or permit as an excuse for a violation of

water quality standards. No polluter will be able

to make major investments in facilities under a

Federal license or permit without providing as-

surance that the facility will comply with water

quality standards.

116 Cong. Rec. 7, 8984 (1970).

Likewise, Senator Cooper (R-KY),’ described Section

401’s predecessor as follows:

Indirectly, the Federal Government contributes to

water pollution in its licensirg activities over

such things as nuclear power plants, hydroelec-

tric power plants licensed by the Federal Power

Commission [now FERC] and dredge and fill

permits issued by the Army Corps of Engineers.

S.7 will require, without exception, that all Fed-

eral activities that have any effect on water qual-

ity be conducted so that water quality standards

will be maintained.

115 Cong. Rec. 21, 28970 (1969).

* Senator Cooper (R-KY) served in the U.S. Senate from 1947 to

1973. In 1972, he was the Ranking Member of the Senate Public Works

Committee.

16

Petitioner seeks to rewrite Section 401 of the Act by

limiting its application to only discharges covered by

Section 402. Such a rewrite of the Act would reverse the

protections that Congress put in place when the Clean

Water Act was adopted to address the impacts of facilities

like hydroelectric dams. Congress put these protections in

place by distinguishing between the definition of “dis-

charge” in Sections 401 and 402 of the Act.

Only Congress can change the distinct meaning of

Section 401 and Section 402.

II. THE INTENT OF THE CLEAN WATER ACT IS

TO ENABLE SATES TO ASSURE COMPLI.

ANCE WITH THEIR DULY ADOPTED WATER

QUALITY STANDARDS.

One of the bedrock principles of the Clean Water Act

is that it vests significant responsibility in each individual

state to implement the Act and to take action to enforce

state water quality standards. The Committee report

accompanying S. 2770 states that:

For more than two decades, Federal legislation in

the field of water pollution control has been keyed

primarily to an important principle of public pol-

icy: the States shall lead the national effort to

prevent, control, and abate water pollution.

S. Rep. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N.

3668, RBA 2.

Throughout the legislative history, there is a clear

tension between efforts to increase the Federal role and a

desire to remain loyal to the principle that states should lead

the effort to prevent, control, and abate water pollution.

17

During floor debate in the House on March 27, 1972,

Representative Jones echoed this summary, stating: -

All the weight of the evidence submitted to the

committee during our extensive hearings con-

firmed our belief that an effective Federal-State

partnership is absolutely indispensable to the

success of this program .. . this legislation places

the primary responsibility for administering the

water pollution control program within the sepa-

rate States, with the firm stipulation that each

State must comply with the overriding Federal

guidelines .. .

118 Cong. Rec. 8, 10207 (1972), reprinted in A Legislative

History, at 358-359.

The 1972 Clean Water Act consisted of three major

parts — regulations on point sources of pollution designed

to reach a goal of zero discharge, the authorization of

federal financial] assistance for wastewater treatment, and

the establishment of water quality standards by the

states. The states were provided the opportunity to obtain

authority from the U.S. Environmental Protection Agency

to operate their own Clean Water Act program, taking

responsibility in most cases for the issuance of National

Pollutant Discharge Elimination System (NPDES) per-

mits. This approach has since been modeled in environ-

mental statutes such as the Safe Drinking Water Act and

the Clean Air Act.

Section 401 of the Clean Water Act, providing for state

certification of Federal permits and licenses, embodies the

intent of the Clean Water Act to delegate significant

responsibilities to the states and rely on their expertise to

implement clean water requirements. It is the primary

18

means by which states ensure that federally permitted

activities comply with state-sc. water quality standards.

Congress clearly intended Section 401 to be a broad

tool for use by the states, addressing all types of dis-

charges into waters of the United States that occur within

a state’s boundaries. In the Committee report accompany-

ing S. 2770, the Committee provides:

It should also be noted that the Committee con-

tinues the authority of the State or interstate

agency to act to deny a permit and thereby pre-

vent a Federal license or permit from issuing to a

discharge source within such State or jurisdiction

of the interstate agency.

S. Rep. No. 92-414 (1972), reprinted in 1972 U.S.C.C.AN.

3668, RBA 2.

The authority that the Committee report is referring

to is found solely within Section 401 of the Clean Water

Act. Petitioner’s position, that Section 401 does not apply

to federal licenses for hydroelectric dams, would strip the

very authority and responsibility that the Committee

report was highlighting as being vested in each individual

state.

More fundamentally, the Petitioner’s argument runs

counter to the principle of state implementation of the Act

cited above. Congress intended to continue to allow states

to review the impact of certain federally licensed facilities

for compliance with their water quality standards. If the

Supreme Court were to deny states this right, vested in

them by Congress, it would create an entire class of

discharges that impact compliance with state water

quality standards that states would have no independent

authority to address. Specifically, it is conceivable that a

19

federally licensed facility could preclude a state from

meeting its water quality standards if such facilities were

exempt from Section 401. If Congress had intended such

activities to be excluded from the determination as to

whether water quality standards are met, Congress would

have stated such an exclusion in the Act. No such exclu-

sion appears in the Clean Water Act.

¢

CONCLUSION

For the foregoing reasons, the judgment of the Maine

Supreme Judicial Court should be affirmed.

Respectfully submitted,

JAMES M. JEFFORDS

United States Senator

State of Vermont