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

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IN THE

Supreme Court of the United States

S.D. WARREN COMPANY,

Petitioner,

Vv.

MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

On Writ of Certiorari to the

Maine Supreme Judicial Court

BRIEF AMICUS CURIAE OF WATER QUALITY

AND RIVERINE SCIENTISTS IN SUPPORT OF

RESPONDENT MAINE DEPARTMENT OF

ENVIRONMENTAL PROTECTION

. <7 RICHARD ROOS-COLLINS

Counsel of Record

NATURAL HERITAGE INSTITUTE

100 Pine Street, Suite 1550

San Francisco, CA 94111

(415) 693-3000

STEVEN P. MALLOCH

10212 Belgrove Court, N.W.

Seattle, WA 98177

January 6, 2006 (206) 818-0482

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

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TABLE OF CONTENTS

THE DISCHARGE OF “MERE FLOW”

MAY HAVE SIGNIFICANT IMPACTS ON

STE EER Maa

A. Existing | Hydropower Development of

Ne CIE Micciincintncepnnicsenapninuisniianstcenuens

B. Design and Operation of Licensed Hydro-

TE FORD cccssnsccrictviinessnenianicinvitianenanene

Water Quality Standards.............. AERC

D. Impacts of Hydropower Projects on Attain-

ment of Water Quality Standards ................

Ds PRIS MUTI cnciciniuscnessnsccminsecennseneses

2. Chremaboal Integrity .........ccscccccessceesecsseess

| __ T aTEEEe

PETITIONER DISREGARDS THE PLAIN

MEANING OF SECTION 401 BY SEEKING

TO LIMIT IT TO A POINT SOURCE THAT

DISCHARGES POLLUTANTS .........scsscsssseeees

PETITIONER’S THEORY LARGELY NUL-

LIFIES SECTION 401 BY LIMITING IT

TO THE DISCHARGE OF ANY POL-

LUTANT WHICH IS ALREADY REGU-

LATED UNDER SECTION 402 ..........:cccscssce0s

(i)

TABLE OF CONTENTS—Continued

Page

TV. WARREN EFFECTIVELY SEEKS TO

EXEMPT EXISTING HYDROPOWER

PROJECTS FROM MANDATORY REGU-

LATION UNDER THE CLEAN WATER

TIPE ‘tintnitennstarsieniuchinbinnhiiidinbiatatepiniistitiiniains 24

V. PETITIONER’S THEORY WOULD DIS-

RUPT A FUNCTIONING SYSTEM OF

COOPERATIVE FEDERALISM IN THE

REGULATION OF HYDROPOWER .............. 24

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TABLE OF AUTHORITIES

FEDERAL CASES Page

American Rivers, Inc. v. FERC, 129 F.3d 102

NEE Gately: DUPED enntircncennansiuteestndesioubenminnpsitaddaaiediialiads 2

American Rivers et al. v. FERC, 187 F.3d 1007

TUE Es SIONS sacciccitvcshthivcmniehetdecinincebiesesiieidhicniibaibienitialé 28

California v. FERC, 495 U.S. 490 (1990).............. 3

Dubois v. U.S. Department of Agriculture, 102

fo greet 2s Be ene 13

Escondido Mutual Water Company v. La Jolla

Band of Mission Indians , 466 U.S. 765 (1984)... 28

First Iowa Hydro-Electric Cooperative v. Fed-

eral Power Commission, 328 U.S. 152 (1946).. 3

National Wildlife Federation v. Gorsuch, 693

Foe BW Geile GR. GE weivevttinceevneenenininiasaeiants 4, 24

PUD No. I of Jefferson County v. Washington

Department of Ecology, 511 U.S. 700 (1994) ... 2

Roosevelt Campobello International Park v. U.S.

Environmental Protection Agency, 604 F.2d

PGE CRUE Ge,. FR ccentcensvisncvnescninssnscigintadiaiibcntie 27

Sayles Hydro Association et al. v. State Water

Resources Control Board, 985 F.2d 451 (9th

ED TIED covssscoceisinssncnsbnishclisnectnnisnnncisielibsieanatintnnn 26

United States Department of the Interior v.

FERC, 952 F.2d 538 (D.C. Cir. 1992)............... 27

FEDERAL STATUTES

SP ere Ce VEE CGI, ccccissinicinchinendasisianiiintiilieniabindin 2

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ETC NE TESS: 3

TABLE OF AUTHORITIES—Continued

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TABLE OF AUTHORITIES—Continued

FEDERAL REGULATIONS

18 C.F.R. § 4.34(O)(S)(i) .ccccescsccccssscececccsseseesseseesen

8 ME, Net A

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FEDERAL ENERGY REGULATORY

COMMISSION ORDERS

Dominion Generation, 106 FERC 4 62,245

Pacific Gas and Electric Company, 97 FERC

Se Cee icniticnisieeinndinetiniantanbintetiamnensinne

S.D. Warren, 105 FERC 4 61,013 (2003)..............

Southern California Edison Company, 113 FERC

Seren ene

FEDERAL ENERGY REGULATORY

COMMISSION FILINGS

Alabama Power Company, Application for New

License (P. No. 2146) (2005) ............ccccceeceeeeeeees

California Department of Water Resources, Ap-

plication for New License (P. No. 2100)

New York Power Authority, Application for New

License (P. No. 2216) (2005) ..........cccsecceeceeseeeee

U.S. Fish & Wildlife Service, Comments on

License Application for P. No. 2146 (2005)......

STATE STATUTES

Me. Rev. Stat. Ann. tit. 38 §§ 464 — 470................

— NOAA 4

TABLE OF AUTHORITIES—Continued

STATE AGENCY CASES

NYSDEC, Office of Hearings and Mediation,

Niagara Mohawk Ruling (April 20, 1994)........

MISCELLANEOUS

R. Abell, San Juan River Basin Water Quality

and Contaminants Review (1994)..................-+-

E.D. Andrews, Sediment Transport in the Colo-

rado River Basin, in Colorado River Ecology

and Dam Management (1991) ............0eeeseeee

M.B. Bain et al., Streamflow Regulation and

Fish Community Structure, 69 Ecology 382

M. Collier et al., U.S. Geological Survey Circular

1126, Dams and Rivers: Primer on the Down-

stream Effects of Dams (1996) .............0-000000+

EPA, Dam Water Quality Study: Report To

GET Ge ccrnterreseectmessiieeneees

EPA, Guidance Specifying Management Meas-

ures for Sources of Nonpoint Pollution in

Coastal Waters (1993) .......c.ccccccecserseeeeeesserseenes

EPA, Impact Of Hydrologic Modifications On

Water Quality (1975) ......ccccvsessesssssesecesesssveesee 4, 13,14

EPA, Water Quality Standards Handbook: Sec-

| TE 12, 19, 23

FERC, Evaluation of Mitigation Effectiveness at

Hydropower Projects: Fish Passage (2004) .....

FERC, Handbook for Hydroelectric Project

Licensing and SMW Exemptions From Licens-

Ot GP encnsenencesneunsisecsnentsessemiegisesnmnmenenens

FERC, Hydroelectric Projects under Commis-

FERC, Outstanding Exemptions as of 07/08/05

vii

TABLE OF AUTHORITIES—Continued

FERC, Report on Hydroelectric Licensing Poli-

cies, Procedures, and Regulations: Compre-

hensive Review and Recommendations Pur-

suant to Section 603 of the Energy Act of 2000

FERC, Water Power—Present Development of

Conventional Hydropower Projects (2005) ...... 6

W.L. Graf, Damage Control: Dams and the

Physical Integrity of America’s Rivers, 91

Annals of the Association of American Geo-

SERINS BG tcctsbenctcsttintincsenennnicmnss 13

J. Gulliver & R.E.A. Arndt, Hydropower

Engineering Handbook (1991) .............000+ 8, 13-14, 21

G.M. Kondolf, Hungry Water: Effects of Dams

and Gravel Mining on River Channels, 21

Environmental Management 4 (1997)............... 16

T.E. Langford, Electricity Generation and the

Ecology of Natural Waters (1983).............00++ 10

P.J. Murphy et al., U.S. Bureau of Reclamation,

The Platte River Channel: History and Resto-

Se cnsectictsctintetibinisininanetinncigemimanen 20

National Marine Fisheries Service, Status of

Sacramento River Winter-+run Chinook Sal-

mon, 59 Fed. Reg. 440 (Jan. 4, 1994)................ 20

The Nature Conservancy, Precious Heritage:

The —tatus of Biodiversity in the United States

TEE ccstipastaniissinesaiaintiiadiamennmpenmmmemecigtiaiibeenes 18

D.K. Nickel et al., Factors Regulating Shasta

Lake (California) Cold Water Accumulation, A

Resource For Endangered Salmon Conser-

vation, 40 Water Resources Research W05204

Vili

TABLE OF AUTHORITIES—Continued

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

Why It Matters for the Emerging Science of

Dam Removal, 52 BioScience 659 (2002) .........

N.L. Poff et al., The Natural Flow Regime, 47

BioScience 769 (1997) ........c.cccscceercerseeseeereenseees

S.H. Pearsall et al., Adaptive Management of

Flows in the Lower Roanoke River, 35 Envi-

ronmental Management 353 (2005) ...............++

B.F. Richter et al, Ecologically Sustainable

Water Management: Managing River Flows

for Ecological Integrity, 13 Ecological

Applications 206 (2003) .........c.ccescesseeseeeeseeeeers

B.F. Richter, A Spatial Assessment of Hydrologic

Alteration within a River Network (1998).........

H. Rochester et al., Physical Impacts of Small-

Scale Hydroelectric Facilities and Their

Effects on Fish and Wildlife (1984).................

V.J. Santucci et al., Effects of Multiple Low-Head

Dams on Fish, Macroinvertebrates, Habitat

and Water Quality in the Fox River, Illinois,

25 North American Journal of Fisheries

Management 975 (2005)..........cccccsccesesererseeeeeeees

F. Senturk, Hydraulics of Dams and Reservoirs

D.B. Simons & F. Senturk, Sediment Transport

Technology: Water and Sediment Dynamics

U.S. Army Corps of Engineers, Hydropower:

Value To The Nation (2001) ............ccccccceceeseeeees

U.S. Geological Survey, Historical Backdrop to

tcticnntnertincniasitinniasennnennenines

U.S. Geological Survey, Lake Powell Animation:

FI IIE seestsintnenthannsnnnitesennne

Page

9, 13

14, 18

9, 13

TABLE OF AUTHORITIES—Continued

University of California, Sierra Nevada Eco-

system Project Report (1996) .......c.sccseeseeeerees

D.L. Vicher & W.H. Hager, Dam Hydraulics

G.T. Watters, Small Dams As Barriers To Fresh-

water Mussels And Their Hosts, 75 Biological

Conservation 79 (1996) ........cccccccescessseeeseeeseeeeeee

D.E. Weitkamp & M. Katz, A Review of

Dissolved-gas Supersaturation Literature, 109

Transactions of the American Fisheries

Ce cctensescnesimsncienresintntennbannenen

G.P. Williams & M.G. Wolman, U.S. Geological

Survey Professional Paper 1286, Downstream

Effects of Dams on Alluvial Rivers (1984) ........

J.G. Williams et al., Effects of the Federal

Columbia River Power System on Salmonid

INTERESTS OF AMICI CURIAE

Amici curiae are scientists specializing in the scientific

study and management of rivers and reservoirs. They have

professional interests in assuring that federally licensed dams

and other project works which generate electricity are de-

signed, operated, and maintained in a manner that contributes

to attainment of water quality standards for the affected

navigable waters.' Amici respectfully submit this brief to aid

in the Court’s understanding of two topics: first, how such

projects may adversely affect the physical, chemical, and

biological integrity of waters protected by water quality

standards; and second, how States use the unique authority

granted by Clean Water Act section 401 to prevent or

mitigate such adverse impacts, through mandatory conditions

in the licenses which the Federal Energy Regulatory Com-

mission issues for such hydropower projects under the

Federal Power Act Part I. Counsel of record for all parties

consented to the filing of this brief.’

SUMMARY OF ARGUMENT

Clean Water Act (CWA) section 401(a)(1), 33 U.S.C.

§ 1341(a)(1), applies to “any activity including, but not

limited to, the construction or operation of facilities, which

may result in any discharge into the navigable waters . . .”

and which is subject to federal permit or licensing. By plain

meaning, “any discharge” includes the mere discharge of

water, and “facilities” include existing hydropower projects

' The qualifications and positions held by Amici are set forth in

Appendix A, which is bound with this brief. Individual Amici appear here

in their individual capacities as scholars and scientists, not as repre-

sentatives of any institutions with which they are affiliated. This brief has

been financed by Amici, with support from the C.S. Mott Foundation. No

counsel for any party authored this brief, in whole or in part. No party

made a monetary contribution to the brief.

? Letters of consent have been filed with the Clerk.

licensed by the Federal Energy Regulatory Commission

(“FERC”).

Each hydropower project controls incoming flow of water

and directs such flow through a poweihouse. It thus affect

the physical volume and pattern of flow, both in the reservoir

and downstream; the chemistry of such water; and the

availability and suitability of habitat for aquatic life. Section

401(a)(1), 33 U.S.C. § 1341(a)(1), authorizes the State where

the discharge occurs to certify that the discharge will comply

with water quality standards which the State has adopted

under Section 303(c), 33 U.S.C. § 1313(c), for the affected

waters. Under Section 401(d), 33 U.S.C. § 1341(d), a certi-

fication sets forth conditions necessary to assure that the

facility as a whole attains the water quality standards.’ See

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

Ecology, 511 U.S. 700, 711 (1994). Such conditions are

incorporated into any license which FERC issues for a project

under Federal Power Act Part I (“FPA”), 16 U.S.C. §§ 791 et

seq. Jefferson PUD, 511 U.S. at 724; American Rivers, Inc.

v. FERC, 129 F.3d 102 (2nd Cir. 1997). |

The FPA otherwise preempts a State’s authority to con-

dition such a license.* First lowa Hydrv-Electric Coopera-

> “Section 401(d) provides that any certification shall set forth ‘any

effluent limitations and other limitations . . . necessary to assure that any

applicant’ will comply with various provisions of the Act and appropriate

state law requirements.” Jefferson PUD, 511 U.S. at 711 (quoiing 33

U.S.C. § 1341(d)) (emphasis added). Section 401(d) “author[izes] addi-

tional conditions and limitations on the activity as a whole once the

threshold condition [stated in Section 401(a)}, the existence of a dis-

charge, is satisfied.” /d. at 712. EPA's regulations implementing Section

401, 33 U.S.C. § 1341, expressly require a State to find that “there is

reasonable assurance that the activity will be conducted in a manner which

will not violate applicable water quality standards.” Jd. (quoting 40

C.F.R. § 121.2(a)(3)) (emphasis added).

* The FPA does not preempt a State’s authority to: (A) issue and regu-

late water rights as necessary for project operation and to prevent injury to

tive v. Federal Power Commission, 328 U.S. 152, 181 (1946)

(“The detailed provisions of the Act providing for the federal

plan of regulation leave no room or need for conflicting state

controls.”); California v. FERC, 495 U.S. 490, 506 (1990).

Section 401 is the States’ only authority to assure that exist-

ing projects that discharge water flow (and not pollutants)

will not cause violation of applicable water quality standards.

Since 1970, States have conditioned licenses in this manner,

thus assuring attainment of those standards consistent with

continued electricity generation and other beneficial uses.

See, e.g., Pacific Gas and Electric Company, 97 F.E.R.C. ¥

61,031 (2001) (new license for P. No. 137 subject to 1976

certification). Since 1995, 28 States have certified the

relicensing of 149 existing projects. See Appendix B.°

ARGUMENT

Petitioner $.D. Warren Company (“Warren”) owns and

operates hydropower projects on the Presumpscot River in

Maine. Petitioner’s Brief on Merits (“Pet. Br.”) at 3. The

original licenses for five of these projects expired on January

26, 2001. Warren filed timely applications with FERC for

new licenses. /d. Warren requested certifications from the

Maine Department of Environmental Protection (“Maine

prior water rights (FPA section 27, 16 U.S.C. § 821); (B) regulate retail

rates for electrical service (FPA section 19, 16 U.S.C. § 812); and (C)

authorize a State or municipal agency to take over any licensed project,

through a condemnation proceeding and on payment of fair market value

(FPA section 14(a), 16 U.S.C. § 807(a)).

* Amici compiled this appendix through Westlaw to identify all licenses

that FERC issued between November 30, 1995, and November 30, 2005.

In this appendix, and consistent with FERC’s terminology, “original” means

the initial license for a project. “New” means a license issued pursuant to

FPA section 15, 16 U.S.C. § 808, upon expiration of an original license.

“Subsequent” means a license issued upon expiration of an original license

in which FERC waived the applicability of FPA section 15, typically for a

minor project. The difference between a new or subsequent license is im-

material to this case.

DEP”’) under protest. /d. at 9. On April 30, 2003, Maine

DEP issued certifications which purport to regulate Warren’s

operations and recreational facilities. Jd. at 4; Petitioner’s

Appendix (“Pet. App.”) at A-74. On October 2, 2003, FERC

issued new licenses which incorporate the certifications. S.D.

Warren, 105 FERC 4 61,013 (2003). Warren now challenges

the authority of Maine DEP to certify these projects under

CWA section 401, 33 U.S.C. § 1341.

Warren interprets Section 401(a)(1), 33 U.S.C. § 1341(a)(1),

to apply to aii existing dam only if it adds pollutant from an

outside source, such as grease or debris from a construction

activity. Pet. Br. at 14-16. Under this interpretation, the section

would not apply to Warren’s or any other projects as a result of

the discharge of “mere flow” of water for electricity generation.

Id. at 15. Warren does not acknowledge the voluminous

scientific record—developed by the U.S. Environmental Protec-

tion Agency (“EPA”) since the early 1970s and submitted

to Congress—which unequivocally shows that existing dams

which discharge “mere flow” may impair the physical, chem-

ical, and biological integrity of the waters which the Clean

Water Act otherwise protects. See EPA, Impact Of Hydrologic

Modifications On Water Quality (1975) [hereinafter 1975 Dam

Report}; EPA, Dam Water Quality Study: Report To Congress

(1989) [hereinafter 1/989 Dam Report]; EPA, Guidance

Specifying Management Measures for Sources of Nonpoint

Pollution in Coastal Waters Ch. 6 (1993) [hereinafter 1993 Dam

Report). ° The fundamental question raised by this case is

whether the Clean Water Act permits States to protect water

quality, including designated beneficial uses of water supply as

well as fish and wildlife, from the adverse impacts of “any

discharge” by federally licensed hydropower projects.

These existing projects are not regulated under National

Pollutant Discharge Elimination System (“NPDES”) permits

® Amici follow the naming convention of National Wildlife Federation

v. Gorsuch, 693 F.2d 156, 163 n. 13 (D.C. Cir. 1983).

under Section 402, 33 U.S.C. § 1342. That section applies to

point sources that discharge pollutants, as defined in Section

502(12), 33 U.S.C. § 1362(12). The parties agree that these

projects, like many other existing hydropower projects, do not

discharge pollutants and thus are not subject to permitting

under Section 402 incident to relicensing. Section 304, 33

U.S.C. § 1314, and Section 208, 33 U.S.C. § 1288, which

Warren cites as applying to existing dams (Pet. Br. at 24-25),

also do not mandate permits or other limitations for dams

such as Warren’s that do not discharge pollutants.

On its face, Section 401 applies to any federally licensed

activity that may discharge into navigable waters. By plain

meaning, “any discharge” (33 U.S.C. § 1341(a)(1)) applies to

the discharge of flow by an existing hydropower project.

This is how the States, FERC, and EPA have interpreted the

section. Between November 1995 and November 2005,

States used this authority to certify 76% of the projects that

FERC relicensed, while waiving certifications for the remain-

der. See Appendix B.’ These certifications establish indi-

vidualized conditions for these existing projects, as neces-

sary to enhance baseline conditions permitted by the original

licenses and otherwise attain all water quality standards in the

affected waters.

I. THE DISCHARGE OF “MERE FLOW” MAY

HAVE SIGNIFICANT IMPACTS ON WATER

QUALITY.

Warren acknowledges that dams affect water quality. Pet.

Br. at 23-24. It claims that Congress addressed impacts from

dams as non-point sources via Clean Water Act section

304(f)(2)(F), 33 U.S.C. § 1314(f)(2)(F), which requires EPA

to develop information on procedures and methods to control

non-point pollution, and Section 208, 33 U.S.C. § 1288,

” States have not denied certifications for any such projects during this

period.

which requires areawide waste treatment plans in urban areas.

Id. at 25. Petitioner does not identify any Clean Water Act

authority, other than Section 401, whereby a State lawfully

may establish operational limitations and other mandatory

conditions in a federal license for an existing project that

results in discharge of “mere flow” but not pollutants (Pet. Br.

at 15) into navigable waters. It thus seeks to deregulate such

discharges under the Clean Water Act, on the implicit theory

that the statute establishes mandatory operational limitations .

only for point sources of pollutants. The record developed by

EPA, as well as other aquatic, riparian, and wetlands

scientists, shows that every hydropower project has the

potential to affect attainment of applicable water quality

standards. Amici discuss in order: the scope of existing

hydropower development; the design and operation of such

projects; water quality certifications; and the impacts of

hydropower projects on water quality.

A. Existing Hydropower Development of Nation’s

Waters

FERC regulates all operating non-federal dams that gen-

erate electrical energy anywhere in the U.S.* Its jurisdiction

extends to each hydropower project that meets at least one of

the following tests: (1) occupancy of federal public land; (2)

regulation of a navigable stream; (3) use of surplus water or

water power from a federal dam; or (4) if the dam was

constructed after August 26, 1935, any effect on interstate

commerce, including linkage of the project to the grid. See

* The U.S. Bureau of Reclamation, Army Corps of Engineers, Tennes-

see Valley Authority, and Bonneville Power Administration own and

operate federal dams which are not subject to FERC’s jurisdiction. These .

account for roughly 44% of the hydropower capacity in the nation; the

balance belongs to licensed projects. See FERC, Water Power—Present

Development of Conventional Hydropower Projects, available at www.

ferc.gov/industries/hydropower/gen-info/water-power/wp-present-dev.asp

(last updated May 31, 2005).

16 U.S.C. § 797. Its jurisdiction includes any project that, in

addition to electrical generation, serves other functions such

as water supp ly or flood control. Today, FERC regulates

1,016 | Projects through licenses and 617 through exemp-

tions. The licensed projects are located in forty-five states,

excluding only Delaware, Mississippi, North and South

Dakota, and Hawaii.’!

Each license has a term of 30 to 50 years. See 16 U.S.C.

§ 803; 18 C.F.R. § 5.18(b)(2). Before expiration, FERC

determines whether to issue or deny a new license. See 16

U.S.C. § 808. FERC issued 239 new or subsequent licenses

between November 1995 and November 2005. See Appendix

B. More than 125 licenses will expire over the next decade,

making those projects subject to relicensing and water qual-

ity certification. See Appendix C;'? see also 18 C.F.R.

§§ 4.34(b)(S)i), 5.23(b).

* A project may include more than one dam. For instance, Alabama

Power Company’s Coosa River Project currently includes five individual

dams. See Alabama Power Company, Application for New License (P.

No. 2146) A-1 (2005), available at http://www.ferc.gov/docs-filing/

elibrary.asp (eLibrary no. 2005728-4003). Thus, the number of dams

under FERC’s licenses substantially exceeds 1,016.

'° An exemption is a short form of license. It applies only to small

projects with capacity of five megawatts or less. 18 C.F.R. § 4.60.

Unlike a license, it has a perpetual term. This brief focuses on licenses,

since an exempt project is not subject to a relicensing proceeding.

'' See FERC, Hydroelectric Projects under Commission License

(2005), available at www.ferc.gov/industries/hydropower/gen-info/

licenses.xls; FERC, Outstanding Exemptions as of 07/08/05, available at

http://www. ferc.gov/industries/hydropower/gen-info/exemptions.xIs.

'? Amici compiled this appendix from FERC’s spreadsheet, Hydro-

electric Projects under Commission License, supra. The search logic

identified all projects whose licenses expire between January 1, 2006, and

January |, 2016.

B. Design and Operation of Licensed Hydropower

Projects

The projects at issue are 5 out of 1,016 existing projects

licensed by FERC. Their fundamental design and operation

are common, although the details (including scale) vary

significantly from project to project.

A hydropower project converts the energy of flowing water

into electricity. It consists of several common elements. A

dam, weir, or other facility diverts water from its natural

course in a river. The dam stores water in a reservoir or

pond. A spillway conveys flow over or through the dam

during periods of non-generation, or when the incoming flow

exceeds the combined generation capacity of the powerhouse

and available storage capacity of the reservoir. An intake

uses gravity to deliver the diverted water from the reservoir to

a powerhouse. It may tie located at the reservoir surface or

underwater. A powerhouse, which may be located in the dam

itself or downstream, consists of at least one turbine that

converts the kinetic energy of falling water into mechanical

energy. The spinning turbine drives a generator, which

converts mechanical energy to electricity. A bypass reach is

any length of river between the dam and a powerhouse. A

tailrace conveys discharged flow from a powerhouse back to

the river channel. A transmission line transports the elec-

tricity from the powerhouse to the grid or other point of use.

See J. Gulliver & R.E.A. Arndt, Hydropower Engineering

Handbook 1|.12-1.14 (1991). A license covers a “complete

unit of development,” 16 U.S.C. § 796(11), which consists of

those facilities and property rights in lands and waters

necessary for construction, operation, and maintenance of the

project, 16 U.S.C. § 802.

Because electricity cannot be stored in any conventional

manner, a hydropower project—like any generation source—

operates to supply grid demand on an instantaneous basis.

The licensee regulates the diversion of water from the dam to

the powerhouse on that same basis.

[T]he two basic functions of dams are to store water and

raise water levels. The storage ability of dams allows

runoff to be retained for subsequent controlled release,

whereas the ability to raise upstream water levels . . .

increases hydraulic head for hydropower generation . .. .

The most common classification of operational char-

acteristics divides dams into two groups, storage and

run-of-river, based in large part on these functional

differences.

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

for the Emerging Science of Dam Removal, 52 BioScience

659, 661-2 (2002).

A run-of-river project may modify flow pattern on a short-

term (for example, hourly or daily) basis—but not over a

longer term, due to limited physical storage capacity or oper-

ating rules that preclude storage. See H. Rochester et al.,

Physical Impacts of Small-Scale Hydroelectric Facilities and

Their Effects on Fish and Wildlife 141 (1984) (U.S. Fish and

Wildlife Service FWS/OBS-84/19); EPA, 1993 Dam Report,

supra, Ch. 6. Warren’s dams range from 14 to 50 feet in

height, store variously from 8 to 197 acre-feet'’ of water, and

operate in this manner.'* See Pet. App. at A-75-77.

A storage project allows the powerhouse to draft from its

reservoir upon demand rather than rely on incoming flow. It

typically stores flood or other high flows for use in drier

periods, or at night for use during the day. The effect of a

storage project is to “suppress the natyral extremes of spate

'? An acre-foot is the volume of water (325,851 gallons) which covers

an acre to one foot of depth.

'* Warren’s licenses allow impoundment levels to vary within one foot

of full pond under normal operating conditions. See Pet. App. A-78.

Warren has exclusive control over such variation.

and drought and make the annual flow patterns more

uniform. Short-term fluctuations may, however be quite

violent ....” T. E. Langford, Electricity Generation and the

Ecology of Natural Waters 26 (1983); U.S. Army Corps of

Engineers, Hydropower: Value To The Nation 5 (2001)

available at http://www.corpsresults.us/pdfs/Hydropower.pdf

[hereinafter Hydropower Value]. Because water supply is

limited, such a project typically operates during periods of

peak electricity demand, such as summer afternoons for air

conditioning, or when project power is otherwise cheaper to

dispatch than the next available generation source. Most

licensed projects use storage in this manner. See EPA, 1993

Dam Report, supra; Army Corps, Hydropower Value, supra,

at 5.

Licensed hydropower projects differ in design and oper-

ation. Variables such as flow pattern, weather, topography,

electricity demand, and even marketing strategy cause these

differences. For example, the generation capacities at

licensed projects vary by more than six orders of magnitude:

the smallest is 1 kilowatt (“KW”) at Spring Creek Project in

Washington State, while the largest is 2,515.5 megawatts

(“MW”) at the Niagara Falls Project. See FERC, Hydro-

electric Projects under Commission License, supra. Dam

heights range from a few feet to 750 feet at the Oroville

Project in California’s Central Valley. See California Depart-

ment of Water Resources, Application for New License (P.

No. 2100) (2005) (eLibrary no. 2005128-0067) [hereinafter,

P. No. 2100 License Application]. Bypass reaches range from

a few hundred feet to more 20 miles at the Coosa River

Project in Alabama. See Alabama Power Co., Application for

New License (P. No. 2146) A-2 (2005) (eLibrary no.

2005728-4003) [hereinafter, P. No. 2146 License Applica-

tion]. Reservoir sizes range from under 50 acre-feet to more

than 2 million acre-feet at the Oroville Project. See P. No.

2100 License Application, supra. Powerhouse discharges

range from a few cubic feet per second (“c.f.s.”) to more than

115,000 c.f.s. at the Niagara Falls Project. See, e.g., New

York Power Authority, Application for New License (P-2216)

A-15 (2005) (eLibrary no. 200508 19-0070).

C. Water Quality Standards

Warren secks to limit the application of Section 401 to a

point source which discharges a pollutant, defined to mean

“dredged spoil, solid waste, incinerator residue, sewage, gar-

bage, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into water.” CWA section

502(6), 33 U.S.C. § 1362(6). See Pet. Br. at 15. Leaving

aside the merits of its interpretation of Section 401, the

purpose and scope of water quality standards under the Clean

Water Act are plainly broader than such pollutant discharges.

The objective of the Clean Water Act, 33 U.S.C. §§ 1251

et seq., is “to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters.” /d., § 1251(a).

The goal is to achieve, “whenever attainable,” “water quality

which provides for the protection and propagation of fish,

shellfish, and wildlife.” /d. § 1251(a)(2). Pursuant to Section

303, 33 U.S.C. § 1313, each State adopts and implements

water quality standards applicable to navigable waters within

its borders, subject to EPA’s oversight and approval. Such

standards consist of designated beneficial uses, narrative and

numeric criteria (such as a dissolved oxygen leve_), and

an anti-degradation policy. 33 U.S.C. §§ 1313(c)(2)(A),

1313(d)(4)(B); 40 C.F.R. § 131.12. “Such standards shall be

established taking into consideration their use and value for

public water supplies, propagation of fish and wildlife,

recreational purposes, and agricultural, industrial, and other

purposes, and also taking into consideration their use and

value for navigation.” 33 U.S.C. § 1313(c)(2)(A). Such stan-

dards “play a central role in a State’s water quality manage-

ment program, which identifies the overall mechanism States

use to integrate the various Clean Water Act quality control

requirements into a coherent management framework.” EPA,

Water Quality Standards Handbook: Second Edition Int-13

(1994).

Maine has adopted water quality standards for rivers, with

additional sub-classifications according to: geography; lakes

and ponds; marine and estuarine waters; and groundwater.

Me. Rev. Stat. Ann. tit. 38 §§ 464—470; Pet. App. at A-83—

A-87. Designated beneficial uses for the affected reaches of

the Presumpscot River include drinking water after disinfec-

tion, recreation in and on the water, fishing, industrial process

and cooling water supply, hydroelectric power generation,

navigation, and habitat for fish and other aquatic species. See

Pet. App. at A-84.

D. Impacts of Hydropower Projects on Attain-

ment of Water Quality Standards

Maine DEP found, and Warren did not dispute, that

Warren’s projects have affected attainment of these water

quality standards on the Presumpscot. Each dam diverts most

available flow out of the river channel between the dam and

powerhouse. Under the original licenses, these bypass reaches,

which range from 300 to 1,075 feet in length (see Pet. App. at

A-94), were dry whenever the dams did not spill or leak water

(see id. at A-78). The absence of water flow in these bypass

reaches impaired habitat for fish and other aquatic species,

one of the river’s designated beneficial uses. See id. at A-89.

Discharges from certain powerhouses in summer months

caused exceedances of the dissolved oxygen criteria. See id.

at A-111—A-112. The projects (as well as other facilities)

blocked upstream passage of Atlantic salmon, American

shad, alewife, and other anadromous fish. /d. at A-89. These

impacts on Maine’s water quality were the basis for the

certifications at issue.

The impacts of Warren’s projects on the physical, chem-

ical, and biological integrity «f the Presumpscot River fall

within the wide range caused by the 1,106 licensed projects

potentially affected by this case. The impacts of a given

project are a function of the setting, design, the plan of opera-

tion including period of storage, the volume of discharge, as

well as other variables. See EPA, 1975 Dam Report, supra,

at 40-41; 1989 Dam Report, supra, at viii; N.L. Poff, How

Dams Vary, supra, at 660. Any impact may cause compound

or secondary effects. EPA, 1/975 Dam Report, supra, at 10-

11; 1989 Dam Report, supra, at iii-ix; 1993 Dam Report,

supra, Ch. 6. For example, storage, which reduces flow, may

alter the downstream water temperature, reduce dissolved

oxygen.levels, diminish sediment load, or increase dissolved

nutrients and toxic chemicals. Rochester et al., Physical

Impacts of Small-Scale Hydroelectricity, supra, at 61-62.

Amici now address how hydropower projects may affect

the physical, chemical, and biological integrity of waters. As

directed in Section 101(a), the Clean Water Act seeks to

protect such integrity, which is a “condition in which the

natural structure and function of ecosystems [are] main-

tained.” Dubois v. U.S. Dep't of Agriculture, 102 F.3d 1273,

1294 (Ist Cir. 1996). Amici underscore that, while such

impacts may be beneficial or adverse, EPA, /989 Dam

Report, supra, at iii, this brief highlights the adverse impacts

which are the focus of any certification under Section 401.

1. Physical Integrity

A hydropower project, which controls. flow to generate

electricity, affects the physical integrity'’ of the occupied

river as a result. Gulliver & Arndt, Hydropower Engineering

' Physical integrity is the dynamic equilibrium of the flow pattern and

landscape (channel, beaches, bars, and flood plain) of a river. W.L. Graf,

Damage Control: Dams and the Physical Integrity of America’s Rivers,

91 Annals of the Association of American Geographers 1, at 6 (2001).

Handbook, supra, at 1.10. Every dam or diversion reduces

the velocity of flow in the upstream river. In turn, the

discharge from the powerhouse typically changes the volume

and Velocity of flow downstream. Every diversion which

routes water to a remote powerhouse, including each of

Warren’s dams, reduces the flow in the bypass reach to spill,

leakage, or any minimum flow discharge required by the

applicable license. The original licenses for Warren’s proj-

ects, like many outstanding licenses elsewhere, do not require

discharges into the bypass reaches, which often dry up as a

result. In sum, a dam changes the “hydraulics of a stream .. .

and may upset the natural hydrologic equilibria... .” EPA,

1975 Dam Report, supra, at 40.

Water flows in a river in a pattern (also called flow regime)

consisting of volume, frequency, and duration.'® The flow

pattern varies by day, season (such as spring snowmelt), and

year (such as flood or drought). Low and high volumes—and

when and how frequently they occur—directly affect the

entire ecosystem, including fish, wildlife, and plant species.

The flow pattern is a “master variable” that drives other

physical, chemical, and biological resources. B.F. Richter et

al., Ecologically Sustainable Water Management: Managing

River Flows for Ecological Integrity, 13 Ecological Appli-

cations 206, 207 (2003).

Storage by a hydropower project alters the natural varia-

bility of flow in order to attain controlled generation, water

supply, and other developmental benefits. Storage allows the

discharge of a higher flow during a dry period, or a lower

flow when a river would naturally be full, shifting flow in

time and magnitude. This alters the natural pattern of wet and

dry periods to which aquatic and riparian species are adapted.

See Richter et al., Ecologically Sustainable Water Manage-

'© Hydrographs, which are plots of discharge versus time, describe

these patterns.

ment, supra, at 207. Natural variability may be altogether

eliminated in a bypass reach that is dependent on occasional

spill, leakage, or a uniform minimum flow discharge. Con-

versely, the powerhouse discharge may exceed natural vari-

ability by causing large and frequent fluctuations in flow. For

example, under its new license, the Roanoke River Project in

North Carolina discharges a minimum flow of 1,500 c.f.s. to

2,800 c.f.s., depending on the season, for the protection of the

downstream aquatic resources; while the powerhouse may

discharge 0 c.f.s. up to 19,000 c.f.s. Thus, the regulated flow

(inclusive of minimum flow and powerhouse discharges)

ranges from 1,500 c.f.s. to more than 20,000 c.f.s. in any

given day during non-flood season. By contrast, the intra-day

variability of historical flows rarely exceeded 5,000 c.f.s.

during that season. While many species are accustomed to

periodic floods and droughts, such variation within the span

of a single day may be beyond the capacity of some to adapt.

See S.H. Pearsall et al., Adaptive Management of Flows in the

Lower Roanoke River, 35 Environmental Managemeni 353

(2005).

The discharge directly controls the depth, width, and veloc-

ity of water at any given point in a channel. See B.F. Richter,

A Spatial Assessment of Hydrologic Alteration within a River

Network (1998), available at http://www. freshwaters.org/pub/

pdf/hydroalt.pdf; U.S. Geological Survey, Historical Back-

drop to IFIM (2003), available at http://www. fort.usgs.gov/

products/software/ifim/history.asp. These variables in turn

control the availability of habitat for any aquatic resource at a

given time.’” Id.

In addition to the flow of water, a hydropower project also

affects the flow of sediment, including sand and gravel, in a

'” Licensees use IFIM and similar scientific methods in relicensing pro-

ceedings to predict how incremental changes in the regulated flow

discharge will affect the availability of habitat for a specific species of fish.

river. Moving water carries sediment. Upon entering a reser-

voir, flow loses velocity, and sediment tends to drop to the

reservoir bottom. D.L. Vicher & W.H. Hager, Dam Hydrau-

lics 235-252 (1998); see EPA, 1989 Dam Report, supra, at II-

7. Glen Canyon Dam, which traps an estimated 44 million

tons per year of sediment in Lake Powell, is a dramatic exam-

ple of this process. See E.D. Andrews, Sediment Transport in

the Colorado River Basin, in Colorado River Ecology and

Dam Management, at 68 (1991). Water discharged from the

tailrace again has energy needed to transport sediment, but

the natural load remains trapped in the reservoir. D.B.

Simons & F. Senturk, Sediment Transport Technology: Water

and Sediment Dynamics 775-803 (1992). It becomes “hungry

water,” scouring the riverbed below for sediment. G.M.

Kondolf, Hungry Water: Effects of Dams and Gravel Mining

on River Channels, in 21 Environmental Management, at

533-551 (1997). In some circumstances, the “hungry water”

may strip fine sediment and gravel and erode beaches and

bars for hundreds of kilometers downstream of the power-

house, and in the process leave only very coarse cobbles and

boulders armoring the channel bottom. G.P. Williams &

M.G. Wolman, U.S. Geological Survey Professional Paper

1286, Downstream Effects of Dams on Alluvial Rivers 60

(1984); F. Senturk, Hydraulics of Dams and Reservoirs

641-667 (1994).

2. Chemical Integrity

A hydropower project affects the chemical integrity of the

water through four main processes: thermal stratification,

eutrophication, gas supersaturation, and discharge volume.

Thermal stratification occurs in a reservoir when water

warmed by solar radiation and exposure to air floats on top of

cold, denser water. This process—familiar to summertime

swimmers—occurs as a function of seasonal warming, depth

of reservoir, and length of storage time.'® EPA, 1989 Dam

Report, supra, at Il-2; 1993 Dam Report, supra, Ch. 6.

Stratification occurs in at least 40% of the large reservoirs

surveyed by EPA. EPA, /989 Dam Report, supra, at iv.

Thermal stratification has many secondary effects. In the

deep, cold layer (hypolimnion) these include: reduction in the

dissolved oxygen level as a result of organic matter decom-

position; increased nutrient concentrations (both phosphorus

and nitrogen); increased dissolved metals; and production of

toxic hydrogen sulfide. Jd. The downstream impacts of

discharges from a stratified reservoir depend on where the

intake is located. For instance, a deep intake will likely

release cold water which is low in dissolved oxygen and

elevated in dissolved nutrients and metals. Discharges from

up to 50% of large hydropower reservoirs reduce dissolved

oxygen in downstream receiving waters. /d. at v.

Eutrophication occurs when nutrients from upstream lands

or activities, such as agriculture, are added to a reservoir.

Sunlight, increased surface area, and slow water movement

then stimulate growth of aquatic plants. This process results

in the growth of algae (potentially including toxic forms and

those which affect odor and taste of water), depletion of

dissolved oxygen in deeper parts of the reservoir, and

increased concentrations of dissolved iron, manganese, and

“hydrogen sulfide. EPA, 1989 Dam Report, supra, at iii-iv, ix,

IIl-S—II-6; EPA, 1/993 Dam Report, supra, Ch. 6. As a result

of algae blooms and other secondary effects, eutrophication

degrades the suitability of water for the designated uses of

drinking supply, recreation, *.d fish and wildlife habitat.

Eutrophication occurs in 78% of large hydropower reservoirs.

EPA, 1/989 Dam Report, supra, at v.

'® A USGS animation graphically depicts density stratification in Lake

Powell on the Colorado River. U.S. Geological Survey, Lake Powell

Animation: 1965 to 2001, available at http://www.gcmrc.gov/products/

water_quality/Ip_animation/Ip_animation.htm.

Gas supersaturation occurs when air is entrained into

water by structural design of the intake, or when the flow is

discharged over a spillway into a deep plunge pool. While

entrained oxygen may have a beneficial effect, nitrogen is not

biologically reactive and may cause gas bubbles (similar to

divers’ bends) to form in the tissue of vertebrates, including

fish, downstream of the discharge. EPA, 1989 Dam Report,

supra, at II-6; D.E. Weitkamp & M. Katz, A Review of

_Dissolved-gas Supersaturation Literature, in 109 Transac-

‘tions of the American Fisheries Society, at 659-702 (1980).

Discharge volume affects the chemistry of receiving

waters, as well. Discharge that is reduced relative to the

natural hydrograph may result in elevated water temperature

downstream during summer months, since temperature is a

function of flow volume as well as ambient air temperature.

EPA, 1989 Dam Report, supra, at Il-7—II]-8. It may also

reduce the capacity of the river to assimilate and dilute down-

stream discharges of pollutants from other sources. High

discharge may increase channel scour and bank erosion. /d.

3. Biological Integrity

Hydropower projects may impair the biological integrity of

the rivers they occupy. Along with non-point pollution and

invasive species, dams are a main cause for the substantial

decline in aquatic, riparian, and wetlands biodiversity. See

B.F. Richter et al., Ecologically Sustainable Water Manage-

ment, supra, at 206. Today, more than 50% of freshwater

mussels are at risk of extinction, as are more than 40% of

freshwater fishes and amphibians. See The Nature Conserv-

ancy, Precious Heritage: The Status of Biodiversity in the

United States (2005), available at http://nature.org/initiatives/

freshwater/about/.

Flow alteration by dams is a substantial cause of this de-

cline in species populations. Many aquatic and riparian

species have habitat requirements that vary seasonally, and

their life histories (for example, reproduction and rearing) are

linked to specific flow patterns to which they have adapted

over time. N.L. Poff et al., The Natural Flow Regime, 47

BioScience 769 (1997). For instance, higher flows during

spawning season may cue upstream migration of anadromous

fish and also, as they recede, create riparian wetlands suitable

for amphibians. /d. Pursuant to CWA section 303(d), 33

U.S.C. § 1313(d), EPA instructs the States to consider flow,

water depth, and velocity to attain designated beneficial uses

such as propagation and protection of aquatic species. EPA,

Water Quality Handbook, supra, at 2-10—2-11. Alteration

of flow variability to meet electricity demand even in the

absence of associated change in the water chemistry—may

reduce availability of suitable habitat and thus impair distri-

bution and population of aquatic species. M.B. Bain et al.,

Streamflow Regulation and Fish Community Structure, in 69

Ecology, at 382-392 (1998).

Hydropower projects affect biological integrity through

alteration of other physical or chemical conditions of waters.

For instance, decreased dissolved oxygen or altered water

temperature may exceed the physiological tolerances of na-

tive species.'? A reservoir turns riverine habitat into lake

habitat suitable for native or exotic fish adapted to still or

warm water. Discharge of cold and nutrient rich water from

the hypolimnion of a reservoir may convert downstream

warm-water fish habitat into cold-water.” For example, the

discharge of cold water from the hypolimnion of large dams

is a significant contributing factor to the threatened and en-

dangered status of several Colorado River Basin fish listed

under the federal Endangered Species Act, because cold water

'? Temperature and dis:olved oxygen are inversely related: warm water

is capable of holding less dissolved oxygen than cold water. Fish, such as

trout and salmon, adapted to cold oxygenated water cannot survive in

warm water with its lower maximum oxygen levels.

below large dams.

impairs fish reproduction and rearing. R. Abell, San Juan

River Basin Water Quality and Contaminants Review 78-

79 (1994), available at http://www.fws.gov/southwest/sjrip/

Documents/DocumentsandReports/waterqualityreviewvol | .pdf.

Or discharge of warmed water may adversely affect cold-

water fish downstream. Warm-water discharges, following

seasonal depletion of available cold water in reservoirs, are a

contributing factor to the endangered status of the winter-run

Chinook salmon in California’s Sacramento Valley. National

Marine Fisheries Service, Status of Sacramento River Winter-

run Chinook Salmon, 59 Fed. Reg. 440 (Jan. 4, 1994); D.K.

Nickel et al., Factors Regulating Shasta Lake (California)

Cold Water Accumulation, A Resource For Endangered

Salmon Conservation, 40 Water Resources Research W05204

(2004). Impacts of a given project depend on the timing,

volume, and chemistry of discharges relative to critical life

stages of the specific fish and invertebrate species in the

affected waters.

Alteration in sediment transport, and specifically “hungry

water” downstream of a hydropower project, may eliminate

spawning gravels or erode beach and bar habitat needed for

fish spawning and rearing. M. Collier et al., U.S. Geological

Survey Circular 1126, Dams and Rivers: Primer on the Down-

stream Effects of Dams (1996). Altered flows of water and

sediment also reduce floodplains and shrink channels down-

stream from dams, resulting in significant impacts on fish and

birds that rely on the wetlands and other areas at the margin

of channel. P.J. Murphy et al., U.S. Bureau of Reclamation,

The Platte River Channel: History and Restoration (2005).

As shown on the Columbia River, “hungry water” may also

reduce cover for fish that depend on turbidity for protection

from predators. J.G. Williams et al., Effects of the Federal

Columbia River Power System on Salmonid Populations

(2005).

Hydropower projects may block passage for fish and other

aquatic species seeking to migrate to spawn or feed.”! War-

ren’s projects, along with other downstream facilities on the

Presumpscot River, block upstream passage of anadromous

fish (Atlantic salmon, American shad, alewife, and blue-black

herring) to historic spawning habitat. See Pet. App. at A-89.

In California, dams at the rim of the Central Valley block

70% of the historic spawning habitat for salmon, steelhead,

and other anadromous fish in the Sierra mountains. See Uni-

versity of California, Sierra Nevada Ecosystem Project Report

125 (1996). Even a small dam of less than one meter in

height may block passage for fish with limited leaping capac-

ity and reduce the number of species living in a river. See

V.J. Santucci et al., Effects of Multiple Low-Head Dams on

Fish, Macroinvertebrates, Habitat and Water Quality in the

Fox River, Illinois, 25 North American Journal of Fisheries

Management, at 975-992 (2005). A dam of any height blocks

the movement of mussels and may block movement of fish

upon which some mussels depend for transport during part of

their life cycle. See G.T. Watters, Small Dams As Barriers

To Freshwater Mussels And Their Hosts, 75 Biological

Conservation, at 79-85 (1996). For example, licensed

projects are a leading cause for extinction of mussels and

snails in the Coosa River tributary to Mobile Bay in Alabama.

See U.S. Fish & Wildlife Service, Comments on License

Application for P. No. 2146 (2005) (eLibrary no. 20050311-

0135). Fish moving downstream, often juveniles for ana-

dromous fish, may also be entrained when they are sucked

into the turbines, resulting in injury or death. FERC, Eval-

uation of Mitigation Effectiveness at Hydropower Projects:

Fish Passage (2004).

?! This impact on fish migration has been recognized for more than a

century. Since the 1870s, dams in England, Scotland, and Wales have

been built with fish passages to protect salmon and trout populations.

Gulliver & Arndt, Hydropower Engineering Handbook, supra, at 8.2.

II. PETITIONER DISREGARDS THE PLAIN

MEANING OF SECTION 401 BY SEEKING TO

LIMIT IT TO A POINT SOURCE THAT

DISCHARGES POLLUTANTS.

Section 401(a)(1) of the Clean Water Act provides:

Any applicant for a Federal license or permit to conduct

any activity including, but not limited to, the construc-

tion or operation of facilities, which may result in any

discharge into the navigable waters, shall provide the

licensing or permitting agency a certification from the

State in which the discharge originates or will originate,

or, if appropriate, from the interstate water pollution

control agency having jurisdiction over the navigable

waters at the point where the discharge originates or will

originate, that any such discharge will comply with the

applicable provisions of sections 1311, 1312, 1313,

1316, and 1317 of this title.

33 U.S.C. § 1341(a)(1) (emphasis added). Warren argues that

“any discharge” means “any discharge of pollutant from a

point source” (Pet. Br. at 16), relying on inferences from Sec-

tion 502(16), 33 U.S.C. § 1362(16),which defines discharge;

Section 502(12), 33 U.S.C. § 1362(12), which defines “dis-

charge of pollutant”; Section 502(14), 33 U.S.C. § 1362(14),

which defines “point sources”; Section 402(a), 33 U.S.C.

§ 1342(a), which refers to “discharge of any pollutant”; and

the structure of the statute and the legislative history of the

1970, 1972, and 1977 Clean Water Act amendments. Amici

will leave the parsing of these complex arguments to Respon-

dent and others. Warren’s inferences do have a fatal flaw.

Section 401, 33 U.S.C. § 1341(a)(1), reads: “any discharge,”

not “any discharge of a pollutant.” It says: “any facility,”

inclusive of point and other sources of discharge, not “any

point source.” Plain meaning is just that, not a daisy-chain of

inferences.

According to plain meaning, each licensee for an existing

project must apply to the appropriate State for certification as

a condition of relicensing. EPA interprets Section 401 to

apply to such projects, without distinction as to whether they

are existing or as yet unbuilt. See EPA, Water Quality

Handbook, supra, at 7-10.

Ill. PETITIONER’S THEORY LARGELY NULLI-

FIES SECTION 401, BY LIMITING IT TO THE

DISCHARGE OF ANY POLLUTANT WHICH IS

ALREADY REGULATED UNDER SECTION

402.

Warren argues that Section 401 applies only to a discharge

of pollutants from a point source. Pet. Br. at 15. If that is so,

Section 401 applies only to a discharge already regulated by

an NPDES permit under Section 402.

Section 301(a) prohibits the discharge of pollutants except

as permitted by Section 302 (effluent limitations), 306 (na-

tional standards of performance), 307 (toxic and pre-treat-

ment standards), 318 (aquaculture), 402 (NPDES permits),

and 404 (dredge-and-fill permits), which all concern point

sources. 33 U.S.C. §§ 131 1(a), 1312, 1316, 1317, 1328, 1342,

1344. Section 402(a)(1), 33 U.S.C. § 1342(a)(1), is the pri-

mar’ Sermitting authority for a discharge of pollutants from a

point source. If Section 401 applies only to the discharge of

pollutants from a point source, then it duplicates Section

402(a)(2), which applies to any federally licensed or other

point source. This theory effectively nullifies the independ-

ent effect of Section 401. Further, Warren cannot explain

why Section 301(a}—which prohibits the discharge of a

pollutant from a point source except as permitted in Sections

302, 306, 307, 328, 402, and 404—omits Section 401, if

indeed Section 401 only applies to such discharge.

IV. WARREN EFFECTIVELY SEEKS TO EXEMPT

EXISTING HYDROPOWER PROJECTS FROM

MANDATORY REGULATION UNDER THE

CLEAN WATER ACT.

Section 402 applies to a point source that discharges pollut-

ants from the outside world. It does not apply to an existing

hydropower project which does not discharge pollutants. If,

as Warren argues, Section 401 applies conterminously, then

existing licensed projects that do not discharge pollutants are

not subject to regulation under either Section 401 or 402, re-

gardless of their impacts on the physical, chemical, and bio-

logical integrity of a river.

Warren relegates the discharge of “mere flow” (Pet. Br. at

15) to Section 304(f)(2)(F). See Pet Br. at 25. But Section

304(f(2)(F) only requires EPA to develop “information” on

the nature and extent of nonpoint sources of pollution and

methods and processes for control. 33 U.S.C. § 1314(f)(2).

By reference to National Wildlife Federation v. Gorsuch,

693 F.2d 156, 174-5 (D.C. Cir. 1983) (cited in Pet. Br. at 18,

23, 25), Warren also invokes Section 208, which provides

for the adoption of areawide waste treatment plans for areas

with “urban-industrial concentrations . . . .” 33 U.S.C.

§ 1288(a). As provided in Section 208(b)(2)(C), 33. U.S.C.

§ 1288(b\(2)(C), such plans do not expressly address the

discharge of flow from any facility, and they may not even

apply to hydropower projects located in rural areas. Warren

argues that licensed projects which discharge flow but not

pollutants would be exempt from mandatory regulation under

the Clean Water Act.

V. PETITIONER’S THEORY DISRUPTS A FUNC-

TIONING SYSTEM OF COOPERATIVE FED-

ERALISM IN THE REGULATION OF HYDRO-

POWER.

Section 401, as federal law, is the States’ only non-pre-

empted authority to assure that existing hydropower projects

that merely discharge flow attain water quality standards.

Warren seeks to strip the States of this authority, on the basis

of its non-plain reading of Section 401 and the fear that States

will disregard the electricity generation benefits of such pro-

jects. See Pet. Br. at 15-16. Warren’s theory would disrupt a

system of cooperative federalism which functions effectively

today to assure that electricity generation, water supply, flood

control, and other developmental benefits are achieved in a

manner that also protects water quality and other non-devei-

opmental uses. This system consists of scientific study, set-

tlement, and other forms of cooperation in the development of

conditions under the CWA and FPA.

A scientific record is cooperatively developed in each reli-

censing proceeding as the basis for the new or subsequent

license. Not less than five years before expiration of the

current license, the licensee must provide public notice of its

intent to seek a new license. 16 U.S.C. § 808(b)(1). In con-

sultation with FERC, other agencies, and stakeholders, it

develops and implements a plan of study of the affected waters

and lands.” Under the Integrated Licensing Process adopted

in 2003, 16 C.F.R. Part 5, FERC and other agencies cooperate

to identify what information they need in the record for their

respective decisions. Under State law implementing Section

401(a\(1),” the State may compel the licensee to correct

2 Among other things, the study assesses the current operatior.3 of the

project, baseline conditions of each natural resource affected by the pro-

ject, and the potential impacts of alternative operations (such as an in-

crease in minimum flow discharge) and other mitigation measures. FERC,

Handbook for Hydroelectric Project Licensing and SMW Exemptions

From Licensing 2-7 — 2-10 (2004).

3 As provided in Section 401(a)(1), each “[sJuch State . . . shall estab-

lish procedures for public notice in the case of all applications for certi-

fication by it and, to the extent it deems appropriate, procedures for public

hearings in connection with specific applications.” 33 U.S.C. §1341(a)(1).

For example, a State may adopt implementing procedures which permit

deficiencies in the record as necessary for its certification

decision on the new license application.“* FERC, the State,

and other agencies also cooperate to develop the environmental

documentation required by the National Environmental Policy

Act (“NEPA”), 42 U.S.C. §§ 4321 ef seq., and State law

applicable to the certification decision.”* They further coor-

dinate the development and public comment on draft condi-

tions under their respective authorities. See FERC, Handbook

for Hydroelectric Project Licensing, supra note 22. That coop-

eration makes a virtue of necessity: FERC and the State each

have a legal obligation to have an environmental document and

other record as the basis for their respective decisions.

In most disputed relicensing proceedings in the past dec-

ade, the licensee and other parties have eventually reached

settlement to propose conditions of the new license. Such

settlement is submitted for approval as the basis of certifica-

tion, mandatory conditions under FPA sections 4(e) and 18

(16 U.S.C. §§ 797(e), 811), and the license itself. The State

will typically participate in the negotiation and help structure

the settlement so as to provide an approvable basis for

dismissal of a certification request in the absence of adequate information

submitted by the applicant, here the licensee.

* The licensee submits its new license application, incorporating the

study results and its recommendations for a new license, at least two years

before expiration of the original license. See 16 U.S.C. § 808(c).

> Since Section 401 vests the State with exclusive authority to adopt

certification conditions which must be incorporated into a license, the

State must have whatever environmental documents and records required

by State law to support such a binding decision in resource allocation. By

contrast, the State may not use State law to require a licensee to provide

information, and may not prepare its own environmental document, for

any recommended condition submitted under FPA section 10(a) or 10(j),

16 U.S.C. § 803(a), (j); it ss not actually making a binding decision, and

the FPA preempts State law which might otherwise result in duplicative

process for such conditions. See Sayles Hydro Association et al. v. State

Water Resources Control Board, 985 F.2d 451 (9th Cir. 1993).

certification.”° It is highly unusual that a challenge to a

certification is not settled or is otherwise litigated beyond the

state forum that has original jurisdiction for such challenge.

See United States Dep't of the Interior v. FERC, 952 F.2d

538, 548 (D.C. Cir. 1992); Roosevelt Campobello Int'l Park

v. U.S. Environmental Protection Agency, 604 F.2d 1041,

1056 (ist Cir. 1982).

Each new license includes conditions for protection, miti-

gation, and enhancement of environmental quality to comply

with current laws, including the Clean Water Act. A certi-

fication expresses the State’s judgment, based on the scien-

tific record developed in the relicensing proceeding, of how

best to attain all designated beneficial uses in the river

reaches affected by an individual project. The certifications

at issue in this case will assure that these projects correct their

original non-attainment of the designated beneficial uses of

the Presumpscot as well as the established dissolved oxygen

standard (see Pet. App. at A-22). Unlike an NPDES permit,

which reflects “technology-based limitations” for an entire

category of point source, see 33 U.S.C. § 1342, these certi-

fications reflect the idiosyncratic design, operation, and envi-

ronmental conditions of the projects. Certifications for pro-

2° For example, in the relicensing proceedings for hydropower projects

on the Raquette, Hudson, Mohawk, Sacandaga, Hoosic, Black, and Oswego

Rivers in upstate New York, licensee Niagara Mohawk applied to the

New York State Department of Environmental Conservation (“NYSDEC”)

fer certifications. Niagara Mohawk and a conservation group, New York

Rivers United, sought administrative rehearing before NYSDEC of the

initial certification decisions. See NYSDEC, Office of Hearings and

Mediation, Niagara Mohawk Ruling (April 20, 1994), available at www.

dec. state.ny.us/website/ohms/decis/nimor.him. The licensee, NYSDEC

staff, and other parties subsequently reached settlements for all projects.

NYSDEC incorporated these settlements into amended certifications. With

the exception of one pending settlement reached in 2004, FERC has is-

sued new licenses that incorporate the certifications and other conditions

provided in the settlements.

jects elsewhere may use different measures to correct the

same type of water quality impact. Thus, with respect to

dissolved oxygen, projects in the Southeast—where summer-

time conditions typically cause stratification—may be re-

quired to make minimum flow discharges, like Warren, and

also to use mechanical devices for reaeration of the flow

discharged from the powerhouse. See, e.g., P. No. 2146

License Application, supra, 3-34. ~

States under Section 401, and FERC and other agencies

with conditioning authorities under the FPA,”’ have adopted

conditions that protect generation capacity of existing pro-

——~jects in a manner that also protects other beneficial uses of

these waters. While Warren argues that certifications for its

projects will reduce generation by 14% (Pet. Br. at 9), this

27 Under FPA section 10(a)(1), 16 U.S.C. § 803(a), the license must

assure that a project is best adapted to a comprehensive plan of develop-

ment of the affected waters for all beneficial uses, including electricity

generation, water supply, flood control, recreation, and fish and wildlife.

FERC adopts conditions under this authority, taking into account the rec-

ommendations of public agencies and other parties in the proceeding.

Under FPA section 10(j), 16 U.S.C. § 803(j), FERC adopts recommenda-

tions submitted by fish and wildlife agencies for the protection, mitiga-

tion, and enhancement of fish and wildlife resources, unless it finds that

the recommendations are inconsistent with FPA purposes. FPA section

10(a) and 10(j) are commonly known as “discretionary conditioning au-

thorities,” insofar as FERC has discretion what conditions to adopt. See

American Rivers v. FERC, 201 F.3d 1186, 1204-05 (9th Cir. 2000).

The FPA includes two “mandatory conditioning authorities,” Sections

4(e) and 18. Under Section 4e), 16 U.S.C. § 797(e), the Interior or Agri-

culture Department may establish conditions for the protection and utiliza-

tion of any federal reservation, such as a National Forest, occupied by a

project. Under Section 18, 16 U.S.C. § 811, the U.S. Department of

Interior or Commerce may prescribe (or reserve authority to subsequently

prescribe) a fish ladder or other facility for passage of fish. FERC must

incorporate any such conditions into a license. See Escondido Mutual

Water Company v. La Jolla Band of Mission Indians, 466 U.S. 765

(1984); American Rivers et al. v. FERC, 187 F.3d 1007 (9th Cir. 1999).

impact reflects original design and operation whereby the

dams frequently diverted all flow and dried up the bypass

reaches of the Presumpscot. For all new licenses issued from

1986 to 2001, the conditions required under all CWA and

FPA authorities reduced generation by an average of only

1.59%, while increasing generation capacity by 4.06%. FERC,

Report on Hydroelectric Licensing Policies, Procedures, and

Regulations: Comprehensive Review and Recommendations

Pursuant to Section 603 of the Energy Act of 2000 50 (2001).

In exchange for this “modest” impact on electricity benefit,

these projects—mostly designed and built generations ago—

have been brought into compliance with water quality

standards and other current requirements for protection and

enhancement of environmental quality. /d.

Warren’s theory, by exempting existing projects from Sec-

tion 401, would impair this system of cooperative federalism.

While a State would submit recommendations for protection

of water quality or other beneficial uses under FPA section

10(a)(1) or 10(j), FERC would have discretion not to adopt

such recommendations. Even today, if a State waives Section

401 in a particular proceeding by failing to act timely within

one year of request, see 33 U.S.C. § 1341(a)(1), FERC be-

lieves that it does not have any obligation to assure attainment

of water quality standards, or more specifically, to assure that

the comprehensive plan it adopts under Section 10(a)(1) is

consistent with those standards. See Gustavus Electric Com-

pany, 109 FERC 4 61,105, 61,461 (2004) (P. No. 11659);

Southern California Edison Company, 113 FERC 4 61,063

(2005) (P. No. 1934). FERC has modified or rejected settle-

ments that propose conditions under these discretionary authori-

ties. See, e.g., Dominion Generation, 106 FERC 4 62,245

(2004) (P. No. 2009). If Warren’s theory prevails, a typical

licensec and FERC would probably cooperate less with the

State in the study plan and the development of conditions for

protection of water quality; neither would have an obligation

to cooperate in the same manner as today.

Section 401, as interpreted by Jefferson County PUD, has

motivated the cooperative regulation of hydropower projects

to protect all beneficial uses, including electricity generation. -

While FERC has exclusive authority to issue licenses, Section

401 is the States’ non-preempted authority to set minimum

flow discharges or other operational conditions necessary for

attainment of water quality standards. Given that check-and-

balance, FERC and the States have developed procedures an¢

practices, reflected in part in the Integrated Licensing Proc-

ess, to cooperate effectively in the regulation of such projects.

CONCLUSION

Amici respectfully request that the Court affirm that the

discharge of flow from an existing hydropower project is a

“discharge” for the purpose of certification under Clean

Water Act section 401(a)(1).

Respectfully submitted,

RICHARD ROOS-COLLINS

Counsel of Record

NATURAL HERITAGE INSTITUTE

100 Pine Street, Suite 1550

San Francisco, CA 94111

(415) 693-3000

STEVEN P. MALLOCH

10212 Belgrove Court, N.W.

Seattle, WA 98177

January 6, 2006 (206) 818-0482

APPENDIX A

Amici Curiae

J. David Allan received his Ph.D. (1971) from the University

of Michigan. Following a post-doctoral year at the University

of Chicago, he served on the Zoology faculty of the Univer-

sity of Maryland until 1990, when he moved to the University

of Michigan, and where he is currently Professor of Conserv-

ation Biology and Ecosystem Management in the School of

Natural Resources and Environment. Allan has served on

study panels of the National Science Foundation and National

Research Council, and on committees of the North American

Benthological Society, Ecological Society of America, and

American Society of Limnology and Oceanography. During

2004 he was a Smith Conservation Fellow with The Nature

Conservancy, and he now serves on the Board of Trustees of

the Michigan Chapter of TNC. Dr. Allan specializes in the

ecology and conservation of rivers. He is the author of Stream

Ecology and co-author (with C.E. Cushing) of Streams::

Their Ecology & Life. He has published extensively on topics

in community ecology and the influence of land-use on the

ecological integrity of rivers. Dr. Allan’s current research

investigates landscape influences on river ecosystems at loca-

tions in Michigan and elsewhere, the factors affecting success

of stream restoration, and the effects of altered flow regimes

on rivers of the Great Lakes basin.

Michael T. Brett is an associate professor in the Department

of Civil and Environmental Engineering at the University of

Washington. His research focuses on the limnology of lakes

and streams, anthropogenic impacts of nutrient loading on

aquatic systems, food web interactions, and reservoir man-

agement. He is a member of the American Society of Lim-

nology and Oceanography and the North American Lake

Management Society. Michael Brett has published over 40

articles on lake and stream ecology. He received his doc-

torate in limnology from Uppsala University in Uppsala,

Sweden.

William L. Graf is Foundation University Professor and Pro-

fessor of Geography at the University of South Carolina. His

specialties include fluvial geomorphology and hydrology, as —

well as policy for public land and water. His Ph.D. is from

the University of Wisconsin, Madison, with a major in

physical geography and a minor in water resources manage-

ment. His research and teaching have focused on river-

channel change and human impacts on river processes,

including the downstream effects of large dams. He has

authored or edited 9 books, more than 130 scientific papers,

book chapters, and reports, more than 60 successful grant

proposals, and more than 100 public presentations. He is past

President of the Association of American Geographers and is a

National Associate of the National Academy of Science. He

has chaired numerous National Research Council committees

dealing with river science and policy. President Clinton

appointed him to the Presidential Commission on American

Heritage Rivers.

Thomas Meixner is Professor of Hydrochemistry in the De-

partment of Hydrology and Water Resources at the University

of Arizona. With a doctoral degree in Hydrology and Water

Resources and six years of experience as a professor of

Watershed Biogeochemistry at the University of California,

Riverside and more recently the University of Arizona, Dr. -

~~ Meixner’s research has focused on the hydrologic controls on

water quality, and in particular on how the movement and

transport of water affects nutrient availability and ecosystem

productivity. Dr. Meixner has overseen over $1 million of

research on these processes and published over 20 scientific

articles on this topic. He has also served as an adviser to state

water quality agencies in Arizona and California on matters

of hydrologic controls on water quality and meeting proposed

non-point source water quality standards.

Judy L. Meyer is Distinguished Research Professor of

Ecology in the Institute of Ecology at the University of

Georgia (UGA), Athens, Georgia. She holds a B.S. in Zool-

ogy from the University of Michigan, a M.S. in Zoology from

the University of Hawaii, and a Ph.D. in Ecology from

Cornell University. She has been on the faculty at UGA since

1977. She is an established leader in the field of aquatic

ecology who has published over 150 scientific papers on her

research on rivers and streams. Her research has focused on

ecological processes that maintain water quality, on river and

stream food webs, and on the impact of watershed distur-

bance, urban development, and riparian zone management on

river and stream ecosystems. She has served as President of

the Ecological Society of America and is a Fellow of the

American Association for the Advancement of Science. She

is currently a member of the Board on Environmental Studies

and Toxicology and has served on the Water Science and

Technology Board, both of which are boards of the National

Academy of Sciences/National Research Council. She is a

member of the Ecological Processes and Effects Committee

of the Science Advisory Board of the Environmental Protec-

tion Agency. She is the recipient of the 2003 Award of

Excellence in Benthic Science from the North American

Benthological Society, a scientific society whose members

study rivers and streams. Her current research is on urban

streams, nitrogen cycling in streams, impacts of excessive

sedimentation on aquatic biota, importance of decaying

leaves and woody debris in stream ecosystems, impacts of

changes in riparian buffer widths on trout streams, and effec-

tiveness of stream restoration practices.

Peter B. Moyle has been studying the ecology and conserva-

tion of freshwater and estuarine fishes in California since

1969, including the impacts of dams and diversions. He has

documented the declining status of many native species in

California, such as coho and Chinook salmon, and has been

active in developing conservation strategies for aquatic spe-

cies and ecosystems. He also studies the invasions of alien

species and works on strategies for reducing their impacts.

He was head of the Delta Native Fishes Recovery Team, a

member of the National Research Council’s Committee on

Endangered and Threatened Fishes in the Klamath River

Basin, and a member of the Science Board for the CALFED

Ecosystem Restoration Program. He is author/coauthor of

over 160 scientific papers and 5 books. His books include

Inland Fishes of California (2002), the definitive tome on

California’s freshwater fishes, and the nation’s leading ich-

thyology text (Sth edition, 2004). He is a professor of fish

biology in the Department of Wildlife, Fish, and Conser-

vation Biology, University of California, Davis, where he

teaches basic courses in ichthyology, watershed ecology, and

wildlife conservation. He is also associate director of the

Center for Watershed Sciences. He currently shares the Presi-

dent’s Chair in Undergraduate Education with Jeffrey Mount,

Geology.

Sam Pearsall is Director of Science and Roanoke River Pro-

ject Director for the North Carolina Chapter of The Nature

Conservancy, adjunct professor of geography and ecology at

the University of North Carolina at Chapel Hill, and adjunct

professor at the Duke University Nicholas School of the

Environment and Earth Sciences. He was The Nature Con-

servancy’s chief negotiator in the relicensing of FERC Project

2009 owned by Virginia Electric and Power Company. Dr.

Pearsall holds advanced degrees in landscape ecology

(Geography Department, University of Hawaii, East-West

Center fellow) and natural resources policy and planning

(Cornell University). He is author of more than 30 technical

journal articles and book chapters and a member of several

professionai associations and societies. His expertise in-

cludes the impacts of altered hydrological regimes on south-

eastern floodplain ecosystems. Dr. Pearsall joins this brief in

his capacity as an expert and not in his capacity as an em-

ployee or representative of The Nature Conservancy.

N. LeRoy Poff is Associate Professor of Biology at Colorado

State University. Dr. Poff is an international leader in the

field of “hydro-ecology,” the science that examines how

_ streamflow dynamics dictate the structure, function and resil-

jence of stream and river ecosystems. His 70-plus peer-

reviewed publications are mostly in this area, and he has

given invited Plenary presentations on the subject at several

international meetings and workshops in the last four years,

including in England, Spain, Australia, South Korea and the

United States. Most notably, Dr. Poff was lead author on the

highly influential 1997 paper, The Natural Flow Regime,

which has been cited on average 50 times a year in the peer-

reviewed scientific literature and is viewed as a conceptual

foundation for river restoration around the world. Dr. Poff is

a Fellow of the Aldo Leopold Leadership Society (Ecological

Society of America), and he is President-elect of the North

American Benthological Society, the leading international

science society in stream and river ecology. He has served as

a member of the National Research Council Committee on

Water Resources that evaluates the scientific programs of the

U.S. Gedlogical Society.

S. Geoffrey Schladow is professor of Civil and Environ-

mental Engineering at UC Davis, and Director of the UC

Davis Tahoe Environmental Research Center. His research

interests include mixing and transport processes in aquatic

systems, water quality modeling, and the linkages between

fluid mechanics and the determinants of water quality and

ecological well-being. He has published widely in the area

of the thermal regime of reservoirs and lakes. Professor

Schladow is a member of the American Society of Civil

Engineers, the American Society for Limnology and Ocean-

ography, and the American Geophysical Union, and is Asso-

ciate Editor of Water Resources Research. He earned his

Bachelor of Engineering in Civil Engineering at the Univer-

sity of Western Australia, his Masters of Engineering in

Hydraulic Engineering at the University of California, Berke-

ley, and his Ph.D. in Civil Engineering at the University of

Western Australia. ;

The Association of State Wetland Managers is a 501(c)(3),

not-for-profit corporation formed to build the capacity of

states in cooperation with the efforts of local governments,

not-for-profits, federal agencies, and others to protect and

restore wetland and related ecosystems. It conducts “applied

science” research and training programs pertaining to wet-

lancs and related floodplain, riparian, and river ecosystems.

It has conducted over 50 workshops, symposia, and training

sessions over the last 22 years and published more than 30

reports and books. It has conducted national symposia on

wetland restoration, workshops on stream restoration, and

over a dozen workshops on wetlands and watershed manage-

ment. Clear Water Act section 401 certification and dam

issues have been included in special sessions in a number of

these symposia and workshops including a workshop and

white paper that focused specifically on scientific issues

related to dam removal activities in the Northeast.

APPENDIX B

Projects Licensed between November 30, 1995 and

November 30, 2005

Licensing Order

Type Of

License

Louisville Gas and Electric

Company, 113 FERC §

62,078, 2005 WL 2800096

(2005) (P. No. 289-013)

New

Ene Boulevard

Hydropower, L.P., 113

FERC 4 62,079, 2005 WL

2800097 (2005) (P. No.

7387-019)

Yes

Coxlake Carbonton

Associates, LLC, 113 FERC

4] 62,004, 2005 WL 2437745

(2005) (P. No. 3155-027, -

028)

Yes

Fox Paper Company and

N.E.W. Hydro, Inc., 11°

FERC 4] 62,187, 2005 WL

2129126 (2005) (P. No.

7264-010)

Yes

Flambeau Hydro LLC, 112

FERC 4 62,130, 2005 WL

1926933 (2005) (P. No.

2064-004)

New

Yes

Price Dam Partnership,

Limited, 112 FERC 4

62,090, 2005 WL 1794070

(2005) (P. No. 12187-000)

Original

Yes

Licensing Order

Public Utility District No. |

of Pend Oreille County, 112

FERC 4 61,055, 2005 WL

1609337 (2005) (P. No.

2042-013)

PPL Holtwood, LLC, 112

FERC 4 62,012, 2005 WL

1596690 (2005) (P. No.

487-034)

New

Yes

Portland General Electric

Company and Confederated

Tribes of the Warm Springs

Reservation of Oregon, | 11

FERC § 61,450, 2005 WL

1459997 (2005) (P. No.

2030-036)

New

Yes

10.

Central Vermont Public

Service Corporation, 111

FERC 4 62,313, 2005 WL

1428792 (2005) (P. No.

2205-006)

Waived

11.

Monroe City, 111 FERC P

62,247, 2005 WL 1315043

(2005) (P. No. 632-009)

quent

Yes

12.

Midwest Hydro, Inc., 111

FERC 4 61,327, 2005 WL

1301790 (2005).{P. No.

287-009)

New

Waived

13.

Northern States Power

Company, 111 FERC 4

62,212, 2005 WL 1233222

(2005) (P. No. 2181-014)

Yes

Licensing Order

14.

Norther States Power

Company, 111 FERC 4

62,123, 2005 WL 1031393

(2005) (P. No. 2697-014)

| FE

15.

Neshkoro Power Associates,

LLC, 111 FERC 4 62,099,

2005 WL 951212 (2005) (P.

No. 12449-000)

Original

Waived

16.

Mosinee Paper Corporation,

111 FERC 4 62,033, 2005

WL 778750 (2005) (P. No.

2207-009)

Yes

17.

Idaho Power Company, 110

FERC 4 61,345, 2005 WL

681940 (2005) (P. No 2726-

012)

Yes

18.

International Paper

Company, 110 FERC 4

62,239, 2005 WL 556012

(2005) (P. No. 4914-010)

Yes

19.

Wisconsin Public Service

Corporation, 110 FERC §

62,215, 2005 WL 510778

(2005) (P. No. 1979-012)

Yes

Merimil Limited

Partnership, 110 FERC 4

61,240, 2005 WL 510785

(2005) (P. No. 2574-032)

Yes

21.

PCA Hydro Inc., 110 FERC

4 62,010, 2005 WL 23971

(2005) (P. No. 2180-007)

Yes

10a

Licensing Order

22.

City of Norway, Michigan,

110 FERC § 62,011, 2005

WL 23975 (2005) (P. No.

2720-036)

23.

Georgia Power Company,

109 FERC 4] 62,246, 2004

WL 2980839 (2004) (P. No.

2177-053)

Yes

24.

Great Lakes Hydro

American, LLC, 109 FERC

§ 62,230, 2004 WL 2967009

(2004) (P. No. 2634-007)

Yes

25.

Ene Boulevard

Hydropower, L.P., 109

FERC 4 62,141, 2004 WL

2714028 (2004) (P. No.

2474-004)

New

Yes

26.

Ford Motor Company, 109

FERC 4 62,102, 2004 WL

2619908 (2004) (P. No.

362-004)

Waived

27.

Fall River Rural Electric

Cooperative, Inc., 109

FERC 4 62,077, 2004 WL

2491824 (2004) (P. No.

1413-032)

Waived

28.

Gustavus Electric Company,

109 FERC 4 61,105, 2004

WL 2430246 (2004) (P. No

11659-002)

New

Waived

29.

Reliant Energy Mid-Atlantic

Holdings, LLC, 108 FERC 4

62,216, 2004 WL 1955415

(2004) (P. No. 309-036)

New

Yes

lla

Southern California Edison

Company, 108 FERC 4

62,217, 2004 WL 1955416

(2004) (P. No. 372-008)

31.

New York State Electric &

Gas Company New York,

108 FERC 4 62,168, 2004

WL 1843303 (2004) (P. No.

2835-005)

New

32.

Idaho Power Company, 108

FERC 4 61,129, 2004 WL

“1740092 (2004) (P. No.

2055-010)

New

Yes

33.

Idaho Power Company, 108

FERC 4 61,127, 2004 WL

1740093 (2004) (P. No.

2061-004) "

New

Yes

Idaho Power Company, 108

FERC 4 61,126, 2004 WL

1740094 (2004) (P. No.

2777-007)

New

Yes

35.

Idaho Power Company, 108

FERC 4 61,125, 2004 WL

1740095 (2004) (P. No.

2778-005)

New

Yes

36.

Idaho Power Company, 108

FERC 4 61,128, 2004 WL

1760005 (2004) (P. No.

1975-014)

Yes

12a

Licensing Order

37.

| Puget Sound Enerpy. Inc.,

107 FERC 4 61,331, 2004

WI. 1472554 (2004) (P. No.

2493-006)

New

Yes

38.

Northeast Generation

Services Company, 107

FERC 4 61,305, 2004 WL

1400148 (2004) (P. No.

2576-022, 2597-019)

Yes

39.

Barton Village, Inc., 107

FERC 4 62,217, 2004 WL

1260992 (2004) (P. No.

7725-005)

Subse-

quent

Yes

Trinity Conservancy,

Incorporated, 107 FERC 4

62,188, 2004 WL 1174508

(2004) (P. No. 719-007)

Subse-

quent

Yes

41.

Allegheny Energy Supply

Company, LLC, 107 FERC

4 62,130, 2004 WL 1060693

(2004) (P. No. 2517-012)

Subse-

quent

Yes

42.

Allegheny Energy Suppty

Company, LLC, 107 FERC

4 62,131, 2004 WL 1060694

(2004) (P. No. 2516-026)

New

Yes

43.

Dairyland Power

Cooperative, 107 FERC

62,043, 2004 WL 821524

(2004) (P. No. 1960-002)

New

Yes

ALLETE, Inc., 107 FERC 4

62,036, 2004 WL 821518

(2004) (P. No. 469-013)

Waived

13a

Licensing Order

4S.

Ridgewood Maine Hydro

Partners, L.P., 107 FERC 4

62,006, 2004 WL 757862

(2004) (P. No. 11472-000)

Virginia Electric and Power

Company, dba Dominion

Virginia Power/Dominion

North Carolina Power, 106

FERC 4 62,245, 2004 WL

715833 (2004) (P. No.

2009-018)

Waived

47.

FPL Energy Maine Hydro

LLC, 106 FERC 4 62,232,

2004 WL 628683 (2004) (P.

No. 2612-005)

Yes

Village of Lyndonville

Electric Department, 106

FERC 4 62,187, 2004 WL

473235 (2004) (P. No.

3090-008)

Subse-

quent

Yes

49.

Northern States Power

Company, t06 FERC §

62,185, 2004 WL 424019

(2004) (P. No. 2056-016)

New

Yes

50.

FPL Energy Maine Hydro,

LLC, 106 FERC 4 62,021,

2004 WL 64€89 (2004) (P.

No. 2142-031)

Yes

SI.

New York State Electnc &

Gas Corporation, 105 FERC

49 61,381, 2003 WL

23011910 (2003) (P. No.

2852-015)

New

Yes

I4a

Licensing Order

52.

Lake Dorothy Hydro, Inc.,

105 FERC 4 62,223, 2003

WL 23634173 (2003) (P.

No. 12379-000)

Original

Yes

53.

PacifiCorp, 105 FERC 4

62,207, 2003 WL 22999473

(2003) (P. No. 20-019,

2401-007, 472-017)

New

Yes

Ridgewood Maine Hydro

Partners, L.P., 105 FERC §

62,137, 2003 WL 22867429

(2003) (P. No. 11566-000)

Onginal

Yes

55.

Southern California Edison

Company, 105 FERC 4

62,146, 2003 WL 22867437

2003) (P. No. 2017-011)

New

Yes

56.

City of Sturgis, Michigan,

105 FERC 4 62,132, 2003

WL 22815315 (2003) (P.

No. 2964-006)

New

Yes

57.

Marseilles Hydro Power,

LLC Marseilles Land and

Water Company, 105 FERC

4 62,131, 2003 WL

22815316 (2003) (P. No.

12020-000, 11863-000)

Original

Waived

58.

Citizens Utilities Company,

105 FERC 4 62,119, 2003

WL 22758081 (2003) (P.

No. 2306-008, -024)

New

Yes

lSa

Licensing Order

59.

PacifiCorp, 105 FERC 4

61,237, 2003 WL 22812428

(2003) (P. No. 1927-008)

Yes

60.

Parowan City, 105 FERC 4

62,090, 2003 WL 23634169

(2003) (P. No. 1273-009)

Yes

61.

New York Power Authority

Massachusetts Municipal

Wholesale Electric

Company v. Power

Authority of the State of

New York, 105 FERC 4

61,102, 2003 WL 22422346

(2003) (P. No. 2000-036,

EL03-224-000)

Yes

62.

Charter Township of

Ypsilanti, Michigan, 105

FERC 4 62,019, 2003 WL

22351633 (2003) (P. No.

5334-019)

New

Yes

63.

City of Hart, Michigan, 105

FERC 4 62,004, 2003 WL

22273226 (2003) (P. No.

3516-008) -

Yes

S.D. Warren Company, 105

FERC 4 61,012, 2003 WL

22273231 (2003) (P. No.

2941-002) SEE, S.D.

Warren Company, 105

FERC 4 61,013, 2003 WL

22279522 (2003) (P. No.

2897-003, 2932-003, 2941-

002, 2931-002, 2942-005)

quent

Yes

16a

Licensing Order

65.

S.D. Warren Company, 105

FERC 4 61,010, 2003 WL

22279523 (2003) (P. No.

2931-002)

S.D. Warren Company, 105

FERC 4 61,011, 2003 WL

22279524 (2003) (P. No.

2932-003)

Yes

67.

S.D. Warren Company, 105

FERC 4 61,009, 2003 WL

22279525 (2003) (P. No.

2942-005)

New

Yes

68.

American Falls Reservoir

District No. 2 Big Wood

Canal Company, 104 FERC

§ 62,216, 2003 WL

22222703 (2003) (P. No.

12423-000)

Onginal

Yes

69.

Grande Pointe Power

Corporation, 104 FERC 4

62,213, 2003 WL 22207024

(2003) (P. No. 11797-000)

Original

Yes

70.

Pacific Gas & Electric

Company, 104 FERC 4

62,198, 2003 WL 22147514

(2003) (P. No. 1354-005)

New

71.

Utica Power Authority, 104

FERC § 62,160, 2003 WL

22054283 (2003) (P. No.

2699-001)

Subse-

quent

Yes

17a

Licensing Order

72.

Utica Power Authority, 104

FERC § 62,162, 2003 WL

22054284 (2003) (P. No.

2019-017, 2019-023)

73.

Northern California Power

Agency, 104 FERC 4

62,163, 2003 WL 22054285

(2003) (P. No. 11563-002)

New

Yes

74.

City of Petersburg, Alaska,

104 FERC 4 62,151, 2003

WL 22018592 (2003) (P.

No. 201-014)

New

Waived

75.

Rhinelander Paper

Company, 104 FERC 4

62,134, 2003 WL 21979859

(2003) (P. No. 2161-006)

New

Yes.

76.

Upper Peninsula Power

Company, 104 FERC §

62,135, 2003 WL 21979860

(2003) (P. No. 1864-005)

New

Waived

77.

Orion Power New York GP

II, Inc., 104 FERC 4 62,118,

2003 WL 21954213 (2003)

(P. No. 7000-015)

Yes

78.

Consolidated Water Power

Company, 104 FERC 4

62,070, 2003 WL 21757460

(2003) (P. No. 2110-003)

New

Waived

79.

Consolidated Water Power

Company, 104 FERC 4

62,071, 2003 WL 21757461

(2003) (P. No. 2192-008)

New

Waived

Licensing Order

PacifiCorp, 104 FERC

62,059, 2003 WL 21725991

(2003) (P. No. 2652-007)

Madison Paper Industries,

Inc., 104 FERC 4 62,061,

2003 WL 21725997 (2003)

(P. No. 2364-013)

New

Yes

82.

Madison Paper Industries,

Inc., 104 FERC 4 62,060,

2003 WL 21725996 (2003)

(P. No. 2365-024)

New

Yes

83.

Southern California Edison

Company, 104 FERC 4

62,048, 2003 WL 21696019

(2003) (P. No. 1934-010)

Waived

Southern California Edison

Company, 104 FERC 4

62,011, 2003 WL 21536024

(2003) (P. No. 1933-010)

New

Yes

85.

Southern California Edison

Company, 103 FERC 4

62,183, 2003 WL 22208048

(2003) (P. No. 1932-004)

New

Waived

ALLETE, Inc., 103 FERC 4

62,114, 2003 WL 21236618

(2003) (P. No. 346-037)

New

Waived

87.

Indiana Michigan Power

Company, 103 FERC 4

62,025, 2003 WL 1900897

(2003) (P. No. 401-027)

New

Yes

19a

State | Licensing Order Type Of | WO

License | Certifi-

cation _

88. UT Parowan City, 103 FERC 4 | Subse- Yes

, 62,015, 2003 WL 1866388 quent

(2003) (P. No. 2782-006)

89. CA Pacific Gas and Electric New Yes

Company, 102 FERC 4

61,309, 2003 WL 1384039

(2003) (P. No. 2687-014)

90. WI Oconto Electric New Yes

Cooperative, 102 FERC 4

62,129, 2003 WL 21436783

(2003) (P. No. 1981-010)

91. co Woods Lake Hydro, 102 Subse- Yes

FERC 4 62,120,.2003 WL quent

732888 (2003) (P. No.

3410-009)

92. co Judith A. Burford, 102 Subse- Yes

FERC 4 62,004, 2003 WL quent

42433 (2003) (P. No. 6418-

007)

93. WI ‘Norther States Power New Yes

Company, 101 FERC 4

62,211, 2002 WL 31926422

(2002) (P. No. 2567-009)

94. Wi Northern States Power New Yes

Company and the City of

Eau Claire, Wisconsin, 101

FERC 4 62,212, 2002 WL

31926423 (2002) (P. No.

2670-014)

20a

Licensing Order

95.

Northern States Power

Company Wisconsin, 101

FERC 4 62,213, 2002 WL

31926424 (2002) (P. No.

1982-017)

Yes

96.

Entergy Arkansas, Inc., 101

FERC 4 62,201, 2002 WL

31926418 (2002) (P. No.

271-062) ‘

New

Yes

97.

FPL Energy Maine Hydro

LLC, 101 FERC 4 62,179,

2002 WL 31889943 (2002)

(P. No. 11834-000)

Original

Yes

98.

City of Springville, 101

FERC 4 62,160, 2002 WL

31947868 (2002) (P. No.

2031-046)

New

Yes

Erie Boulevard Hydropower

L.P., 101 FERC 4 62,090,

2002 WL 31989020 (2002)

(P. No. 2616-004, -022)

New

Yes

100.

Pacific Gas and Electric

Company, 101 FERC 4

61,165, 2002 WL 31973959

(2002) (P. No. 2661-012)

New

Yes

101.

Hydro Development Group,

Inc., 101 FERC 4 61,097,

2002 WL 31974177 (2002)

(P. No. 6058-005)

quent

Yes

2la

Licensing Order

102.

Hydro Development Group,

Inc., 101 FERC 4 61,100,

2002 WL 31975584 (2002)

(P. No. 6059-006)

103.

Alaska Power and

Telephone Company, 101

FERC 4 62,030, 2002 WL

31342026 (2002) (P. No.

11588)

Waived

104.

Upper Peninsula Power

Company, 101 FERC 4

62,013, 2002 WL 31974418

(2002) (P. No. 10855-002)

Original

Yes

105.

Marquette Board of Light

and Power7101 FERC 4

62,014, 2002 WL 31989018

(2002) (P. No. 2589-024, -

026)

Yes

106.

Ene Boulevard Hydropower

L.P., 100 FERC 4 62,208,

2002 WL 31993492 (2002)

(P. No. 10461-002, 10462-

002)

Yes

107.

Hudson River-Black River

Regulating District, 100

FERC 4 61,319, 2002 WL

31975704 (2002) (P. No.

12252-000)

New

Yes

108.

Ene Boulevard

Hydropower, L.P., 100

FERC 4 61,320, 2002 WL

31975705 (2002) (P. No.

2554-003, 2554-012)

New

Yes

22a

Licensing Order

109.

zi .

Erie Boulevard

Hydropower, L.P., 100

FERC 4 61,322, 2002 WL

31975708 (2002) (P. No.

2318-002, 2318-011)

110.

Erie Boulevard

Hydropower, L.P., 100

FERC 4 61,318, 2002 WL

31119053 (2002) (P. No.

2047-004, 2047-011)

New

Yes

Erie Boulevard

Hydropower, L.P., 100

FERC 4 61,317, 2002 WL

31119052 (2002) (P. No.

2482-014, 2482-029)

Yes

112.

Wisconsin Power and Light

Company, 99 FERC 4

62,225, 2002 WL 1393969

(2002) (P. No. 11162-002)

Original

Waived

113.

South Carolina Electric &

Gas Company, 99 FERC 4

62,152, 2002 WL 1072297

(2002) (P. No. 1895-007)

Yes

114.

Atlanta Power Company, 99

FERC 4 62,104, 2002 WL

938911 (2002) (P. No.

11541-001)

Original

Yes

115.

Woronoco Hydro, LLC, 99

FERC 4 62,075, 2002 WL

789781 (2002) (P. No.

2631-007)

New

Yes

23a

Licensing Order

116.

USGen New England, Inc.,

99 FERC 4 62,025, 2002

WL 529393 (2002) (P. No.

2077-016)

Yes

117.

Aquenergy Systems, Inc.,

99 FERC 4 62,019, 2002

WL 505900 (2002) (P. No.

2416-009)

New

Yes

118.

Nantahala Power and Light,

98 FERC 4 62,214, 2002

WL 471193 (2002) (P. No.

2694-002)

Yes

119.

wil

City of Black River Falls,

Wisconsin, 98 FERC 4

62,209, 2002 WL 471194

(2002) (P. No. 3052-003)

Yes

120.

Commonwealth Power

Company, 98 FERC 4

62,212, 2002 WL 467226

(2002) (P. No. 11300-000)

New

Yes

121.

Commonwealth Power

Company, 98 FERC 4

62,211, 2002 WL 467227

(2002) (P. No. 11120-002)

New

Yes

122.

Commonwealth Power

Company, 98 FERC 4

62,210, 2002 WL 467229

(2002) (P. No. 11516-000)

New

Yes

123.

City of Tacoma,

Washington, 98 FERC 4

61,274, 2002 WL 398311

(2002) (P. No. 2016-044)

New

Yes

24a

Licensing Order

124.

Erie Boulevard

Hydropower, L.P., 98 FERC

§ 61,146, 2002 WL 226233

(2002) (P. No. 2060-005,

002)

Yes

125.

Erie Boulevard

Hydropower, L.P., 98 FERC

4 61,145, 2002 WL 226235

(2002) (P. No. 2084-020,

006)

New

Yes

126.

Erie Boulevard

Hydropower, L.P., 98 FERC

4 61,149, 2002 WL 226237

(2002) (P. No. 2320-005,

012)

Yes

127.

Erie Boulevard

Hydropower, L.P., 98 FERC

§ 61,143, 2002 WL 226241

(2002) (P. No. 2330-007,

2330-033, 2320-012, 2084-

006, 2060-002)

New

Yes

128.

City of Hamilton, Ohio, 97

FERC 4 62,267, 2001 WL

1638772 (2001) (P. No.

2724-023)

Yes

129.

Wisconsin River Power

Company, 97 FERC 4

62,205, 2001 WL 1559007

(2001) (P. No. 1984-056)

New

Waived

130.

Black River Limited

Partnership, 97 FERC 4

62,194, 2001 WL 1538052

(2001) (P. No. 11730-00)

Original

Yes

25a

State | Licensing Order Type Of | WO

License | Certifi-

sation _

131. | MI City ot _t. Louis, Michigan, | Original | Waived

97 FERC 4 62,184, 2001

WL 1512943 (2001) (P. No.

i 1428-00)

132. | NY Finch, Pruyn and Company, | New Yes

Inc., 97 FERC 4 62,170,

2001 WL 1476147 (2001)

(P. No. 2385-002)

133. | CA Pacific Gas & Electric New Waived

Company, 97 FERC 4

61,084, 2001 WL 1297750

(2001) (P. No. 1962-000,

028)

134. | VA Nekoosa Packaging Subse- Waived

Corporation, 97 FERC 4 quent

62,032, 2001 WL 1215943

(2001) (P. No. 2902-009)

135. | VA Nekoosa Packaging New Waived

Corporation, 97 FERC 4 o

62,033, 2001 WL 1215944

(2001) (P. No. 2901-008)

136. | CA Pacific Gas and Electric New Yes

Company, 97 FERC 4

61,031, 2001 WL 1522250

(2001) (P. No. 137-002)

137. | MI Cameron Gas and Electric Original | Waived

Company, 96 FERC 4

62,182, 2001 WL 959561

(2001) (P. No. 11150-000)

26a

Licensing Order

138.

Central Vermont Public

Service Corporation, 96

FERC 4 62,097, 2001 WL

870115 (2001) (P. No.

2731-020)

New

Yes

139.

Central Vermont P»iblic

Service Corporation, 96

FERC P 62,098, 2001 WL

870116 (2001) (P. No.

2737-002)

New

Yes

140.

Fall Line Hydro Company,

Inc., 96 FERC 4 62,091,

2001 WL 864315 (2001) (P.

No. 11301-001)

New

Yes

141.

Fall Line Hydro Company,

Inc., 96 FERC 4 62,091

(2001) (P. No. 11301-001)

New

Yes

142.

Consumers Energy

Company, 95 FERC 4

62,246, 2001 WL 700769

(2001) (P. No. 2566-010)

New

Yes

143.

City of Portland, Michigan,

95 FERC 4 62,245, 2001

WL 34077127 (2001) (P.

No. 11616-000)

Original

Waived

144.

City and County of Denver,

Colorado, 94 FERC 4

61,313, 2001 WL 1834126

(2001) (P. No. 2035-006)

New

Yes

27a

Licensing Order

145.

Pacific Gas and Electric

Company California, 94

FERC 4 62,188, 2001 WL

1834141 (2001) (P. No.

1988-007)

146.

Aquamac Corporation, 94

FERC 4 62,182, 2001 WL

1842444 (2001) (P. No.

2927-004)

Subse-

quent

Waived

147.

Merrimac Paper Company,

Inc., 94 FERC 4] 62,183,

2001 WL 1842445 (2001)

(P. No. 2928-004)

Subse- _

quent

Waived

148.

Summit Hydropower, 94

FERC 4 61,203, 2001 WL

275412 (2001) (P. No.

10822-000)

Original

Yes

149.

Summit Hydropower, 94

FERC 4 61,193, 2001 WL

1439696 (2001) (P. No.

10823-000)

Onginal

Yes

150.

Wisconsin Electric Power

Company, 94 FERC 4

61,039, 2001 WL 40!24

(2001) (P. No. 11831-000)

New

Yes

151.

Wisconsin Electric Power

Company, 94 FERC 4

61,040, 2001 WL 40125

(2001) (P. No. 11830-000)

New

Yes

152.

Wisconsin Electric Power

Company, 94 FERC 4

61,037, 2001 WL 40126

(2001) (P. No. 1759-036,

New

Yes

28a

Licensing Order

1980-009, 2072-008, 2073-

008, 2074-007, 2131-020,

2471-005, 11830-000,

SA98- 10-000)

153.

Wisconsin Electric Power

Company, 94 FERC 4

61,029, 2001 WL 40127

(2001) (P. No. 1980-009)

Yes

154.

Wisconsin Electric Power

Company, 94 FERC 4

61,041, 2001 WL 40128

(2001) (P. No. 2072-008)

New

Yes

15S.

Wisconsin Electric Power

Company, 94 FERC 4

61,035, 2001 WL 40129

(2001) (P. No. 2073-008)

New

Yes

156.

Wisconsin Electric Power

Company, 94 FERC 4

61,036, 2001 WL 40132

(2001) (P. No. 2074-007)

Yes

157.

Wisconsin Electric Power

Company, 94 FERC 4

61,028, 2001 WL 40133

(2001) (P. No. 2131-020)

New

Yes

158.

Indiana Michigan Power

Compaay, 94 FERC 4

62,035, 2001 WL 1819357

(2001) (P. No. 184-074)

New

Yes

29a

Licensing Order

}

159.

Alaska Village Electric

Cooperative, 93 FERC 4

62,190, 2000 WL 1816883

(2000) (P. No. 11690-001)

Waived

160.

Stockport Mill Country Inn

Universal Electric Power

Corporation, 93 FERC 4

62,180, 2000 WL 1791662

(2000) (P. No. 11685-001,

1648-000)

Original

Yes

161.

Metropolitan Water

Reclamation District of

Greater Chicago Illinois, 93

FERC 4 62,080, 2000 WL

1649527 (2000) (P. No.

2866-008)

New

Waived

162.

Haida Corporation, 93 ~

FERC 4 62,055, 2000 WL

1594410 (2000) (P. No.

11480-001)

Original

Waived

163.

PP&L Montana, LLC, 92

FERC 4 61,261, 2000 WL

1429681 (2000) (P. No.

2188-030)

New

Yes

164.

Lower Valley Energy, Inc.,

92 FERC 4 62,222, 2000

WL 1310687 (2000) (P. No.

2032-001)

New

Yes

16S.

City of Ketchikan, Alaska,

92 FERC 4 62,183, 2000

WL 33730159 (2000) (P.

No. 420-009)

New

Waived

30a

Licensing Order

166.

PacifiCorp, 91 FERC 4

62,143, 2000 WL 681966

(2000) (P. No. 2722-008)

Yes

167.

John M. Skorupski, 91

FERC 4 62,070, 2000 WL

523163 (2000) (P. No.

2487-006)

Yes

168.

Curtis/Palmer Hydroelectric

Company LP International

Paper Company, 91 FERC 4

61,112, 2000 WL 502754

(2000) (P. No. 2609-013)

New

Yes

169.

John H. Bigelow, 91 FERC

4] 62,022, 2000 WL 366448

(2000) (P. No. 11512-000)

Original

Yes

170.

City of Kaukauna, 91 FERC

§ 62,029, 2000 WL 366450

(2000) (P. No. 2588-004)

New

Yes

171.

Avista Corporation, 90

FERC 4 61,167, 2000 WL

216309 (2000) (P. No.

2058-014)

New

Yes

PacifiCorp, 88 FERC §

62,300, 1999 WL 774537

(1999) (P. No. 597-003)

Subse-

quent

Yes

3la

173.

Lockhart Power Company,

88 FERC ¥ 62,301, 1999

WL 774538 (1999) (P. No.

2620-005)

New

Yes

174.

Georgia Power Company,

88 FERC 4 62,314, 1999

WL 774553 (1999) (P. No.

1218-014)

New

Yes

175.

Summit Hydropower

Incorporated, 88 FERC 4

62,298, 1999 WL 768875

(1999) (P. No. 11282-001)

Waived

176.

City of Norwich,

Department of Public

Utilities, 88 FERC 4 62,299,

1999 WL 768874 (1999) (P.

No. 11574-000)

Onginal

Yes

177.

Holyoke Water Power

Company Holyoke Gas &

Electric Department,

Ashburnham Municipal

Light Plant, and

Massachusetts Municipal

Wholesale Electric

Company, 88 FERC 4

61,186, 1999 WL 637628

(1999) (P. No. 2004-073,

11607-000)

New

Yes

178.

Green Mountain Power

Corporation, 88 FERC 4

62,095, 1999 WL 553846

(1999) (P. No. 2674-003)

New

Yes

32a

Licensing Order

179.

Kennebec Water District, 88

FERC ¢ 61,117, 1999 WL

549656 (1999) (P. No.

2555-001)

Yes

180.

FPL Energy Maine Hydro

LLC, 88 FERC 4 61,122,

1999 WL 549658 (1999) (P.

No. 2556-004, 2557-004,

2559-003)

New

Yes

181.

City of Bonners Ferry,

Idaho, 87 FERC 4 62,262,

1999 WL 371938 (1999) (P.

No. 1991-009)

New

Yes

182.

Heber Light and Power

Company, 87 FERC 4

62,155, 1999 WL 281330

(1999) (P. No. 1994-004)

New

Yes

183.

Bangor Hydroelectric

Company, 86 FERC 4

62,242, 1999 WL 167743

(1999) (P. No. 2666-007)

New

Yes

184.

Crown Hydro Company, 86

FERC 4 62,209, 1999 WL

148450 (1999) (P. No.

11175-002)

New

Yes

185.

Southern California Edison

Company, 86 FERC 4

61,230, 1999 WL 105632

(1999) (P. No. 1390-001)

Waived

33a

Licensing Order

186.

J.M. Miller, Enterprises,

Inc., 86 FERC 4 62,121,

1999 WL 65057 (1999) (P.

No. 11060-001)

Waived

187.

Thunder Bay Power

Company, 85 FERC 4

62,160, 1998 WL 855083

(1998) (P. No. 2404-017,

2419-007)

New

Yes

188.

City of Albany, Oregon, 85

FERC 4 62,046, 1998 WL

804391 (1998) (P. No.

11509-000)

Original

Yes

189.

Wolverine Power

Corporation, 85 FERC 4

61,063, 1998 WL 721604

(1998) (P. No. 10808-000)

Waived

190.

Wolverine Power

Corporation, 85 FERC 4

61,064, 1998 WL 721605

(1998) (P. No. 10809-000)

Onginal

Waived

191,

Wolverine Power

Corporation, 85 FERC 4

61,065, 1998 WL 721606

_1998) (P. No. 10810-000)

Onginal

Waived

192.

Otis Hydroelectric

Company, 84 FERC 4

62,234, 1998 WL 631144

(1998) (P. No. 8277-008)

New

Yes

34a

Licensing Order

193.

International Paper

Company, 84 FERC 4

62,235, 1998 WL 631146

(1998) (P. No. 2375-013)

Yes

194.

City of Thief River Falls

Municipal Utilities, 84

FERC 4 62,233, 1998 WL

631142 (1998) (P. No.

11546-000)

Original

Yes

195.

Idaho Water Resource

Board, 84 FERC 4 61,146,

1998 WL 765455 (1998) (P.

No. 10819-002)

Original

Yes

196.

City of Tacoma,

Washington, 84 FERC 4

61,107, 1998 WL 608611

(1998) (P. No. 460-001, -

009)

Yes

197.

Nebraska Public Power

District, 84 FERC 4 61,078,

1998 WL 608590 (1998) (P.

No. 1835-013)

New

Yes

198.

Central Nebraska Public

Power and Irrigation

District, 84 FERC § 61,079,

1998 WL 608591 (1998) (P.

No. 1417-001)

New

Yes

199.

Southern California Edison,

83 FERC 4 62,241, 1998

WL 319259 (1998) (P. No.

1930-014)

New

Yes

35a

Licensing Order

200.

Minnesota Power and Light

Company, Minnesota, 83

FERC 4 62,073, 1998 WL

292791 (1998) (P. No.

2663-004)

201.

Bangor Hydro-Electric

Company, 83 FERC 4

61,037, 1998 WL 292768

(1998) (P. No. 2534-005)

New

Yes

202.

Bangor Hydro-Electric

Company, 83 FERC 4

61,038, 1998 WL 292769

(1998) (P. No. 2712-004)

New

Yes

203.

Bangor Hydro-Electric

Company, 83 FERC 4

61,040, 1998 WL 292771

(1998) (P. No. 2403-006,

1098 1-000)

New

Yes

204.

Central Maine Power

Company, 82 FERC 4

61,187, 1998 WL 86787

(1998) (P. No. 2529-005)

New

Yes

205.

Central Maine Power

Company, 82 FERC 4

61,190, 1998 WL 86788

(1998) (P. No. 2527-002)

New

Yes

206.

City of Saxman, Alaska, 82

FERC 4 62,041, 1998 WL

20036 (1998) (P. No.

11393-001)

Onginal

Waived

36a

Licensing Order

207.

Whitewater Engineering

Corporation, Inc., 81 FERC

§ 62,230, 1997 WL 790491

(1997) (P. No. 11243-002)

208.

City of Abbeville, 81 FERC

4 62,229, 1997 WL 790492

(1997) (P. No. 11286-000)

Onginal

209.

Swift Creek Power

Company, Inc., 81 FERC 4

61,347, 1997 WL 840790

(1997) (P. No. 1651-013)

New

Yes

210.

Puget Sound Energy, Inc.,

81 FERC § 61,354, 1997

WL 840792 (1997) (P. No.

2494-002)

Waived

211.

Consolidated Hydro Maine,

Inc., 81 FERC 4 62,172,

1997 WL 755606 (1997) (P.

No. 11163-000)

Original

Yes

212.

Central Maine Power

Company, 81 FERC 4

61,249, 1997 WL 835137

(1997) (P. No. 2552-007)

quent

Yes

213.

Central Maine Power

Company, 81 FERC 4

61,251, 1997 WL 835138

(1997) (P. No. 2325-007)

Yes

214.

Town of Madison,

Department of Electric

Works, 81 FERC 4 61,252,

1997 WL 732416 (1997) (P.

No. 1 1433-000)

Original

Yes

37a

Licensing Order

215.

Kennebec Water Power

Company, 81 FERC 4

61,254, 1997 WL 835139

(1997) (P. No. 2671-002)

216.

Central Maine Power

Company, 81 FERC 4

61,256, 1997 WL 835140

(1997) (P. No. 2329-005)

Yes

217.

N.E.W. Hydro, Inc. City of

Oconto Falls, Wisconsin, 81

FERC 4 61,238, 1997 WL

723283 (1997) (P. No.

2523-007, 1 1496-000)

Subse-

Waived

218.

Summut Hydropower

Putnam Hydropower Inc.,

81 FERC 4 62,089, 1997

WL, 663445 (1997) (P. No.

11547-000, 11501-000)

Onginal

Yes

219.

Rochester Gas and Electric

Corporation, 81 FERC 4

62,064, 1997 WL 833005

(1997) (P. No. 2584-003)

| Yes

220.

Monroe City Corporation,

80 FERC 4 62,193, 1997

WL 531252 (1997) (P. No.

1517-008)

Waived

221.

Felts Mills Energy Partners,

L.P., 80 FERC 4 61,075,

1997 WL 564546 (1997) (P.

No. 4715-006)

Yes

38a

Licensing Order

222.

Ridgewood Maine Hydro

Partners, L.P., 80 FERC 4

62,038, 1997 WL 564557

(1997) (P. No. 11482-000)

223.

Wisconsin Valley

Improvement Company,

Tomahawk Power and Pulp

Company, Wisconsin Public

Service Corporation,

Weyerhaeuser Company,

Consolidated Water Power

Company, Nekoosa Papers,

Inc., 80 FERC ¥ 61,054,

1997 WL 404237 (1997) (P.

No. 2113-041, 042, 047,

2239-009, 2476-003, 1999-

006, 2212-003, 2590-004,

2256-004)

Waived

224.

Hydro Matrix Partnership,

Ltd, 79 FERC 4 62,213,

1997 WL 445907 (1997) (P.

No. 11437-001)

Onginal

Yes

225.

Wisconsin Public Service

Corporation, 79 FERC 4

62,220, 1997 WL 457991

(1997) (P. No. 2581-002)

Waived

226.

Upper Peninsula Power

Company, 79 FERC 4

62,217, 1997 WL 619694

(1997) (P. No. 10856-002)

Waived

227.

Southwestern Electric

Cooperative, Inc., 79 FERC

4 62,214, 1997 WL 449932

(1997) (P. No. 11214-001)

Onginal

Waived

39a

Licensing Order

228.

Wisconsin Public Service

Corporation, 79 FERC 4

62,218, 1997 WL 457989

(1997) (P. No. 2560-001)

229.

Wisconsin Public Service

Corporation, 79 FERC 4

62,219, 1997 WL 457990

(1997) (P. No. 2525-004)

New

Waived

230.

Wisconsin Public Service

Corporation, 79 FERC

62,222, 1997 WL 457994

(1997) (P. No. 2522-002)

New

Waived

231.

Wisconsin Public Service

Corporation, 79 FERC 4

62,223, 1997 WL 457995

(1997) (P. No. 2595-005)

New

Waived

232.

Wisconsin Public Service

Corporation, 79 FERC 4

62,221, 1997 WL 457992

(1997) (P. No. 2546-001)

New

Waived

233.

Star Mill, Inc., 79 FERC 4

62,211, 1997 WL 445906

(1997) (P. No. 11291-001)

Original

Yes

234.

Blue Diamond South

Pumped Storage Power

Company, Inc. and Blue

Diamond Power Partners

Limited Partnership, 79

FERC 4 62,184, 1997 WL

445868 (1997) (P. No.

10756-001)

Original

Waived

40a

Licensing Order

235.

Continental Hydro

Corporation, 79 FERC 4

61,292, 1997 WL 438899

(1997) (P. No, 3574-004)

HL:

236.

Wisconsin Power and Light

Company, 79 FERC 4

61,181, 1997 WL 254324

(1997) (P. No. 710-009)

New

Waived

237.

Midwest Hydraulic

Company, Inc., 79 FERC 4

62,101, 1997 WL 230213

(1997) (P. No. 10805-002)

Original

Yes

238.

Public Service Company of

Colorado, 79 FERC 4

61,148, 1997 WL 230203

(1997) (P. No. 2275-001)

Subse-

quent

Yes

239.

Wisconsin Public Serv'ce

Corporation, 79 FERC ¥

62,098, 1997 WL 375650

(1997) (P. No. 2433-004)

New

Waived

| 240.

Corporation, 79 FERC 4

62,095, 1997 WL 233924

(1997) (P. No. 2536-009)

Niagara of Wisconsin Paper

New

Waived

241.

Wisconsin Electric Power

Company, 79 FERC 4

|. 62,096, 1997 WL 375648

(1997) (P. No. 2357-003)

New

Yes

242.

Wisconsin Electric Power

Company, 79 FERC 4

62,097, 1997 WL 375649

(1997) (P. No. 2394-006)

New

Yes

4la

243.

Western Massachusetts

Electric Company, 79 FERC

4] 61,007, 1997 WL 164332

(1997) (P. No. 2334-001)

Yes

244.

New England Power

Company, 79 FERC 4

61,006, 1997 WL 164333

(1997) (P. No. 2323-012)

New

Yes

245.

Eugene Water & Electric

Board, 78 FERC 4 62,207,

1997 WL 129430 (1997) (P.

No. 2496-002)

New

Waived

246.

City of Tacoma,

Washington, 78 FERC 4

62,170, 1997 WL 340217

(1997) (P. No. 1862-009)

New

Yes

247.

City of Centralia Light

Departrrent, 78 FERC 4

62,171, 1997 WL 99829

(1997) (P. No. 10703-001)

Original

Yes

248.

Seneca Falls Power

Corporation, 78 FERC 4

62,113, 1997 WL 61518

(1997) (P. No. 2438-007)

New

Yes

249.

Seattle City Ligh’, 78 FERC

4 62,097, 1997 WL 48326

(1997) (P. No. 2705-003)

New

Yes

250.

Upper Peninsula Power

Company, 78 FERC 4

62,100, 1997 WL 276525

(1997) (P. No. 10854-002)

Onginal

Waived

42a

Licensing Order

251.

Fraser Papers, Inc., 78

FERC 4 62,083, 1997 WL

45991 (1997) (P. No. 2395-

003)

Waived

252.

Fraser Papers, Inc., 78

FERC § 62,082, 1997 WL

45992 (1997) (P. No. 2421-

003)

Waived

253.

Fraser Papers, Inc., 78

FERC § 62,084, 1997 WL

45993 (1997) (P. No. 2473-

002)

quent

Waived

254.

WI!

Northern States Power

Company of Wisconsin, 78

FERC § 62,087, 1997 WL

45990 (1997) (P. No. 2390-

003)

Waived

255.

Northern States Power

Company of Wisconsin, 78

FERC § 62,086, 1997 WL

45994 (1997) (P. No. 2475-

006)

Subse-

quent

Waived

256.

Fraser Papers, Inc., 78

FERC 4 62,085, 1997 WL

45997 (1997) (P. No. 2640-

010)

Subse-

quent

Waived

257.

Southern California Edison

Company, 78 FERC 4

61,110, 1997 WL 43876

(1997) (P. No. 1388-00!)

New

Waived

43a

Licensing Order

258.

Southern California Edison

Company, 78 FERC 4

61,109, 1997 WL 43877

(1997) (P. No. 1389-001)

259.

Indiana Michigan Power

Company, 77 FERC 4

62,207, 1996 WL 768589

(1996) (P. No. 2551-004)

New

Waived

240.

Mitchell County

Conservation Board, 77

FERC 4 62,202, 1996 WL

879343 (1996) (P. No.

11530-000)

Onginal

Yes

261.

N.E.W. Hydro, Inc., 77

FERC 4 62,200, 1996 WL

879341 (1996) (P. No.

2550-002)

quent

Waived

262.

Ridgewood Maine Hydro

Partners, L.P, 77 FERC 4

62,201, 1996 WL 879342

(1996) (P. No. 1 1132-000)

Yes

263.

Beebee Island Corporation,

77 FERC 4 61,305, 1996

WL 859373 (1996) (P. No.

2538-001)

New

Yes

264.

Niagara Mohawk Power

Corporation, 77 FERC 4

61,306, 1996 WL 876071

(1996) (P. No. 2569-004)

New

Yes

265.

Southern California Edison

Company, 77 FERC 4

61,313, 1996 WL 876078

(1996) (P. No. 2290-006)

New

Yes

— 44a

Licensing Order

266.

Indiana Michigan Power

Company, 77 FERC 4

62,183, 1996 WL 876092

(1996) (P. No. 2579-010)

Waived

267.

Great Northern Paper, Inc.,

77 FERC 4 61,066, 1996

WL 605218 (1996) (P. No.

2572-005)

New

Yes

268.

Great Northern Paper, Inc.,

77 FERC 4 61,068, 1996

WL 808134 (1996) (P. No.

2458-009)

New

Yes

269.

Georgia Power Company,

77 FERC 4 62,002, 1996

WL 560790 (1996) (P. No.

2354-018)

New

Yes

270.

Public Utility District No. |

of Okanogan County,

Washington, 76 FERC 4

61,271, 1996 WL 521436

(1996) (P. No. 10536-001)

Original

Yes

271.

Niagara Mohawk Power

Corporation, 76 FERC 4

61,152, 1996 WL 436594

(1996) (P. No. 2645-029)

New

Yes

272.

Consolidated Water Power

Company, 76 FERC 4

61,049, 1996 WL 404055

(1996) (P. No. 2590-001)

New

Waived

273.

Wisconsin Valley

Improvement Company, 76

FERC 4 61,050, 1996 WL

404056 (1996) (P. No.

2113-022)

New

Waived

45a

Licensing Order

274.

Nekoosa Papers, Inc., 76

FERC 4 61,051, 1996 WL

404057 (1996) (P. No.

2292-001)

New

275.

Nekoosa Papers, Inc., 76

FERC 4 61,052, 1996 WL

404049 (1996) (P. No.

2291-001)

New

Waived

276.

Nekoosa Papers, Inc., 76

FERC 4 61,053, 1996 WL

411923 (1996) (P. No.

2255-003)

New

Waived

277.

Tomahawk Power and Pulp

Company, 76 FERC {

61,055, 1996 WL 404058

(1996) (P. No. 2239-004)

New

Waived

278.

Weyerhaeuser Company, 76

FERC 4 61,057, 1996 WL

404050 (1996) (P. No.

2212-001)

Waived

279.

Wisconsin Public Service

Corporation, 76 FERC 4

61,058, 1996 WL 411922

(1996) (P. No. 2476-001)

Waived

280.

Consolidated Water Power

Company, 76 FERC 4

61,059, 1996 WL 404051

(1996) (P. No. 2256-001)

New

Waived

281.

Wisconsin Public Service

Corporation, 76 FERC 4

61,056, 1996 WL 404048

(1996) (P. No. 1999-004)

New

Waived

46a

Licensing Order

282.

Alaska Power and

Telephone Company, 76

FERC 4 62,032, 1996 WL

401612 (1996) (P. No.

11077-001)

283.

South Carolina Electric &

Gas Company, 75 FERC 4

61,308, 1996 WL 331236

(1996) (P. No. 2315-002)

New

284.

Duke Power Company, 75

FERC § 61,307, 1996 WL

331235 (1996) (P. No.

2331-002)

New

Yes

285.

Duke Power Company, 75

FERC 4 61,267, 1996 WL

323743 (1996) (P. No.

2332-003)

New

286.

Public Service Company of

New Hampshire, 75 FERC 4

61,111, 1996 WL 208844

(1996) (P. No. 2456-009)

New

Waived

287.

Georgia Power Company,

74 FERC 4 62,146, 1996

WL 157949 (1996) (P. No.

1951-037)

New

288.

Niagara Mohawk Power

, 74 FERC 4

62,138, 1996 WL 127293

(1996) (P. No. 5984-000)

Original

Waived

47a

Licensing Order

289.

Public Service Company of

Colorado, 74 FERC

62,097, 1996 WL 745106

(1996) (P. No. 2187-002)

Rochester Gas and Electric

Corporation, 74 FERC 4

62,091, 1996 WL 108383

(1996) (P. No. 2583-004)

New

291.

Rochester Gas and Electric

Corporation, 74 FERC 4

62,090, 1996 WL 118603

(1996) (P. No. 2582-002)

New

Yes

292.

Niagara Mohawk Power

Corporation, 74 FERC 4

62,087, 1996 WL 92718

(1996) (P. No. 11408-000)

Yes

293.

Wisconsin Electric Power

Company, 73 FERC 4

61,346, 1995 WL 752015

(1995) (P. No. 2486-002)

Waived

294.

Duke Power Company, 73

FERC 4 61,330, 1995 WL

902458 (1995) (P. No.

2406)

New

Yes

295.

Duke Power Company, 73

FERC 4 61,335, 1995 WL

902463 (1995) (P. No.

2465)

New

Yes

Greenwood County, South

Carolina, 73 FERC 4

61,336, 1995 WL 902464

(1995) (P. No. 1267)

New

Yes

48a

York Power Authority

APPENDIX C

Project Licenses Expiring between January 1, 2006 and

January 1, 2016

| 1 Power est Fork u

4. INC [Duke Power 06

5. R__|Paci

A i ! 31-Mar-06 _

—{i2-Anr06 __|

A ficorp 35 06

A_|Paci wift No. | Lit [30-Apr-06

A 20-Apr-06 __

20-Apr-06

12. WA_|PUD No. | of Chelan County Reach 145

13. JOR [Portland General Electric River 195 31

4. ;

16. & County Of Denver ilti 1-Dec-06

17_KCA fornia Of Water 100 -Jan 07

20. 1 Hydro River 185 1-Mar-07

L_|AK ron 170

24. Power | -Jul07

25. jAL Power 18 1 -Jul-07

pi jul-O7

Bi JulO7

28. ICA Gas and LSS _E

A - Aug 07

1051

ls2 Y 16 3

49a

197

Power Commussion_

50a

[71 1 i |

iu pO-Ape-t!__|

| ai-May-li |

74. WA Power Company _ un-li

[75. Gas and Electric Company 106 i-Jub it

“4 = |

BO-Nov-li___j

78.

79.

Central Power & Yards Creek -13

_ [Tx River eledo Bend -13

175 4

Us] U

Gas and Electric Falls 7 14

of ! -14

i0l. of Traverse Brown i 14

105. PA ork Haven Power Company ork Haven ! ! 4

106.|GA _|Georgia Power Company __|paruens Ferry 14.Dee-14

Sla

1107.

114.

im County 1Dec-14

of Morrisville ~1$

30-Jun-15

jlAug. 5 4

Boulevard 518 1s

j 4

1-Mar-16

-16

Yuba County Water Agency 31-Mar-16 _|

Terteck levignsion Diane n0-Ape-i6

I : Mills No | 2 I 16

Aug l6 |

F Ward Mull 31-Aug-16 |

Wisconsin Public Service C 1-Dec-I6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.