Slip Opinion — SD Warren Co. v. Maine Bd. of Environmental Protection

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible-a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter od Decisions 6 for the convemence of the reader.

See United Btoteey | Detroit Timber & Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

S. D. WARREN CO. v,. MAINE BOARD OF ENVIRON-

MENTAL PROTECTION BET AL.

CERTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE

No. 04-1527. Argued February 21, 2006—Decided May 15, 2006

Petitioner company (Warren) asked the Federal Energy Regulatory

Commission (FERC) to renew federal licenses for five of the hydroe-

lectric dams it operates on a Maine river to generate power for its

paper mill. Each dam impounds water, which is then run through

turbines and returned to the riverbed, passing around a section of the

river. Under protest, Warren applied for water quality certifications

from respondent Maine Board of Environmental Protection pursuant

to §401 of the Clean Water Act, which requires state approval of “any

activity” “which may result in any discharge into the [Nation's] navi-

gable waters.” FERC licensed the dams subject to compliance with

those certifications, which require Warren to maintain a minimum

stream flow and to allow passage for certain fish and eels. Aner los-

ing state administrative appeals, Warren filed suit in a state court,

which rejected Warren's claim that its dams do not result in a “dis-

charge” under §401. The State Supreme Judicial Court affirmed.

Held: Because a dam raises a potential for a discharge, §401 is trig-

gered and state certification is required. Pp. 3-15.

(a) The Clean Water Act does not define “discharge,” but provides

that the term “when used without qualification includes a discharge

of a pollutant, and a discharge of pollutants,” 33 U.S. C. §1362(16).

But “discharge” is presumably broader. else superfluous, and since it

is neither defined nor a term of art, it should be construed “in accor-

dance with its ordinary or natural meaning,” /D/IC vy. Meyer, 510

U.S. 471, 476. When applied to water, discharge commonly means

“flowing or issuing out,” Webster's New International Dictionary 742.

This Court has consistently intended that meaning in prior water

cases, including the only ease focused on §401, PUD No. 1 of Jefferson

Cly. v. Washington Dept. of Ecology, 511 U.S. 700. in which no one

2

S. D. WARREN CO. v. MAINE BD. OF ENVIRONMENTAL

PROTECTION

Syllabus

questioned that the discharge of water from a dam fell within §401's

ambit. The Environmental Protection Agency and FERC have also

regularly read “discharge” to cover releases from hydroelectric dams.

Pp. 3-6.

(b) Warren's three arguments for avoiding this common reading are

unavailing. The canon noscitur a sociis-—“a word is known by the

company it keeps,” Gustafson vy. Alloyd Co., 513 U.S. 561, 575—does

not apply here. Warren claims that since “discharge” is keeping

company with “discharge” defined as adding one or more pollutants.

see §1362(12), discharge standing alone must also require the addi-

tion of something foreign to the water. This argument seems to as-

sume that pairing a broad statutory term with a narrow one shrinks

the broad one, but there is no such general usage of language this

way. Warren also relies on South Fla. Water Management Dist. vy.

Miccosukee Tribe, 541 U.S. 95, but that case is not on point. It ad-

dressed §402, not §401, and the two sections are not interchangeable,

as they serve different purposes and use different language to reach

them. Thus, that something must be added in order to implicate

§402 does not explain what suffices for a discharge under §401. Fi-

nally, the Clean Water Act's legislative history, if it means anything,

goes against Warren's reading of “discharge.” Pp. 6—12.

(c) Warren's arguments against reading “discharge” in its common

sense also miss the forest for the trees. Congress passed the Clean

Water Act to “restore and maintain the chemical, physical, and bio-

logical integrity of the Nation's waters,” 33 U.S. C. §1251(a), the “na-

tional goal” being to achieve “water quality [providing] for the protec-

tion and propagation of fish ... and ... for recreation,” §1251(a)(2).

To do this, the Act deals with “pollution” generally, see §1251(b),

which it defines as “the man-made or man-induced alteration of the

|water’s] chemical, physical, biological, and radiological integrity,”

§1362(19). Because the alteration of water quality as thus defined is

a risk inherent in limiting river flow and releasing water through

turbines, changes in the river's flow. movement, and circulation fall

within a State's legitimate legislative business. State certifications

under §401 are essential in the scheme to preserve state authority to

address the broad range of pollution. Reading §401 to give “dis-

charge” its common and ordinary meaning preserves the state au-

thority apparently intended. Pp. 12-15.

2005 ME 27. 868 A. 2d 210, affirmed.

Souter, J.. delivered the opinion of the Court, in which ROBER’s,

C. J.. and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO,

JJ.. joined, and in which SCALIA, J., jouned as to all but Part [II—C.

Cite as: 547 U.S. (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

prehminary print of the United States —. Readers are requested to

notify the of Decisions, Supreme Court of the United States. Wash-

ington, D. C. 20543, of any Wweographical or other formal errors. in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 04-1527

S. D. WARREN COMPANY, PETITIONER v. MAINE

BOARD OF ENVIRONMENTAL PROTECTION ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT

OF MAINE

[May 15, 2006]

JUSTICE SOUTER delivered the opinion of the Court.*

The issue in this case is whether operating a dam to

produce hydroelectricity “may result in any discharge into

the navigable waters” of the United States. If so, a federal

license under §401 of the Clean Water Act requires state

certification that water protection laws will not be vio-

lated. We hold that a dam does raise a potential for a

discharge, and state approval is needed.

The Presumpscot River runs through southern Maine

from Sebago Lake to Casco Bay, and in the course of its 25

miles petitioner, S. D. Warren Company, operates several

hydropower dams to generate electricity for its paper mill.

ach dam creates a pond, from which water funnels into a

“power canal,” through turbines, and back to the riverbed,

passing around a section of the river just below the im-

poundment.

It is undisputed that since 1935, Warren has needed a

license to operate the dams, currently within the authority

* JUSTICE SCALIA joins all but Part II1I—C of this opinion.

2 S. D. WARREN CO. v, MAINE BD. OF ENVIRONMENTAL

. PROTECTION

Opinion of the Court

of the Federal Energy Regulatory Commission (ERC)

under the Federal Power Act. 16 U.S. C. §8817(1), 792;

see also Public Utility Act of 1935, §210, 49 Stat. 846.

FERC grants these licenses for periods up to 50 years, 16

U.S. C. §799, after a review that looks to environmental

issues as well as the rising demand for power, §797(e).

Over 30 years ago, Congress enacted a specific provision

for licensing an activity that could cause a “discharge” into

navigable waters; a license is conditioned on a certification

from the State in which the discharge may originate that

it will not violate certain water quality standards, includ-

ing those set by the State’s own laws. See Water Quality

Improvement Act of 1970, §103, 84 Stat. 108. Today, this

requirement can be found in §401 of the Clean Water Act,

86 Stat. 877, codified at 33 U.S. C. §1341: “Any applicant

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

which may result in any discharge into the navigable

water|s| shall provide the licensing or permitting agency a

certification from the State in which the discharge origi-

nates ....” §1341(a)(1).

“Any certification provided under this section shall

set forth any effluent limitations and other limita-

tions, and monitoring requirements necessary to as-

sure that any applicant for a Federal license or permit

will comply with [§§1311, 1812, 1316, and 1317] and

with any other appropriate requirement of State law

set. forth in such certification, and shall become a con-

dition on any Federal license or permit subject to the

provisions of this section.”' §1341(d).

'The statutes cross-referenced go to effluent limitations and other

limitations, 33 U.S. C. §§1311. 1312, standards of performance, §1316,

and toxic effluent standards, §1317. As we have explained before, “state

water quality standards adopted pursuant to §303 fof the Clean Water

Aet, 38 U.S.C. §1313,] are among the ‘other limitations with which a

State may ensure compliance through the §401 certification process.”

Cite as: 547U.S.__ (2006) 3

Opinion of the Court

In 1999, Warren sought to renew federal licenses for five

of its hydroelectric dams. It applied for water quality

certifications from the Maine Department of Environ-

mental Pretection (the state agency responsible for what

have come to be known as “401 state certifications”), but it

filed its application under protest, claiming that its dams

do not result in any “discharge into” the river triggering

application of §401.

The Maine agency issued certifications that required

Warren to maintain a minimum stream flow in the by-

passed portions of the river and to allow passage for vari-

ous migratory fish and eels. When FERC eventually

licensed the five dams, it did so subject to the Maine con-

ditions, and Warren continued to deny any need of §401

state certification. After appealing unsuccessfully to

Maine’s administrative appeals tribunal, the Board of

Environmental Protection, Warren filed this suit in the

State’s Cumberland County Superior Court. That court

rejected Warren's argument that its dams do not result in

discharges, and the Supreme Judicial Court of Maine

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

Protection, 2005 ME 27, 868 A. 2d 210. We granted certio-

rari, 546 U.S. _— (2005), and now affirm as well.

The dispute turns on the meaning of the word “dis-

charge,” the key to the-state certification requirement

under §401.2. The Act. has no definition of the term, but

provides that “[t]he term ‘discharge’ when used without

qualification includes a discharge of a pollutant, and a

discharge of pollutants.”® 338 U.S.C. §1362(16). It does

PUD No. 1 of Jefferson Cty. v. Washington Dept. of ecology, 511 U.S. 700,

713 (1994).

*No one disputes that the Presumpscot River is a navigable water of

the United States.

“The term “pollutant” is defined in the Act to mean “dredged spoil,

4 §&.D. WARREN CO. v. MAINE BD. OF ENYJRONMENTAL

PROTECTION

Opinion of the Court

define “discharge of a pollutant” and “discharge of pollut-

ants,” as meaning “any addition of any pollutant to navi-

gable waters from any point source.” §1362(12). But

“discharge” presumably is broader, else superfluous, and

since it is neither defined in the statute nor a term of art,

we are left to construe it “in accordance with its ordinary

or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476

(1994).

When it applies to water, “discharge” commonly means

-a “flowing or issuing out,” Webster's New International

Dictionary 742 (2d ed. 1949); see also ibid. (“[t]o emit; to

give outlet to; to pour forth; as, the Hudson discharges its

waters into the bay”), and this ordinary sense has consis-

tently been the meaning intended when this Court has

used the term in prior water cases. See, e.g., Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 364

(1989) (describing a dam’s “‘multiport’ structure, which

will permit discharge of water from any of five levels”);

Arizona v. California, 373 U.S. 546, 619, n. 25 (1968)

(Harlan, J., dissenting in part) (quoting congressional

testimony regarding those who “‘take ... water out of the

stream which has been discharged from the reservoir’”);

United States vy. Arizona, 295 U.S. 174, 181 (1935)

(“Parker Dam will intercept waters discharged at Boulder

Dam”).

In fact, this understanding of the word “discharge” was

accepted by all Members of the Court sitting in our only

other case focused on §401 of the Clean Water Act, PUD

No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511

U.S. 700 (1994). At issue in PUD No. 1 was the State of

Washington's authority to impose minimum stream flow

_solid waste, incinerator residue, sewage, garbage, 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.”

33 U.S. C. §1362(6).

or

Cite as: 547U.S.____ (2006)

Opinion of the Court

rates on a hydroelectric dam, and .n posing the question

presented, the Court said this:

“There is no dispute that petitioners were required

to obtain a certification from the State pursuant to

§401. Petitioners concede that, at a minimum, the

project will result in two possible discharges—the re-

lease of dredged and fill material during the construc-

tion of the project, and the discharge of water at the

end of the tailrace after the water has been used to

generate electricity.” Id., at 711.

The Pud No. 1 petitioners claimed that a state condition

imposing a stream flow requirement on discharges of

water from a dam exceeded the State’s §401 authority to

prevent degradation of water quality, but neither the

parties nor the Court questioned that the “discharge of

water” from the dam was a discharge within the ambit of

$401. J/bid. And although the Court’s opinion made no

mention of the dam as adding anything to the water, the

majority's use of the phrase “discharge of water” drew no

criticism from the dissent, which specifically noted that

- “[t]he term ‘discharge’ is not defined in the [Clean Water

Act] but its plain and ordinary meaning suggests ‘a flow-

ing or issuing out,’ or ‘something that is emitted.” /d., at.

725 (opinion of THOMAS, J.) (quoting Webster's Ninth New

Collegiate Dictionary 360 (1991)).

In resort to common usage under §401, this Court has

not been alone, for the Environmental Protection Agency

(EPA) and FERC have each regularly read “discharge” as

having its plain meaning and thus covering releases from

hydroelectric dams. See, e.g., EPA, Water Quality Stan- -

dards Handbook §7.6.3, p. 7-10 (2d ed. 1994) CEPA has

identified five Federal permits and/or licenses that author-

ize activities that may result in a discharge to the waters,

including] licenses required for hydroelectric projects

issued under the Federal Power Act”): FPL Energy Maine

6 S. D. WARREN CO. v. MAINE BD. OF ENVIRONMENTAL

PROTECTION

Opinion of the Court

Hydro LLC, 111 FERC *61,104, P. 61,505 (2005) (reject-

ing, in a recent adjudication, the argument that Congress

“used the term ‘discharge’ as nothing more than a short-

hand expression for ‘discharge of a pollutant or pollut-

ants’”).4 Warren is, of course, entirely correct in caution-

ing us that because neither the EPA nor FERC has

formally settled the definition, or even set out agency

reasoning, these expressions of agency understanding do

not command deference from this Court. See Gonzales v.

Oregon, 546 U.S. ___, ___ (2006) (slip op., at 11) “Chevron

deference . . . is not accorded merely because the statute is

ambiguous and an administrative official is involved’);

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But

even so, the administrative usage of “discharge” in this

way confirms our understanding of the everyday sense of

the term.

Il

Warren makes three principal arguments for reading

the term “discharge” differently from the ordinary way.

We find none availing.

A

The first involves an interpretive canon we think is out

of place here. The canon, noscitur a sociis, reminds us

‘Warren relies on a document from the EPA as a counterexample of

the EPA's position in this regard. See Memorandum from Ann R. Klee.

EPA General Counsel et al., to Regional Administrators, regarding

“Agency Interpretation on Applicability of Section 402 of the Clean

Water Act to Water Transfers’ (Aug. 5. 2005). available at

http://www.epa.gov/oge/documents/water_transters.pdf (as visited Apr.

13, 2006, and available in Clerk of Court's case file). The memorandum

does not help Warren, however: it interprets §402 of the Clean Water

Act, not §401, and construes the statutory phrase “discharge of a

pollutant.” which, as explained below, imphes a meaning different

under the statute from the word “discharge” used alone. The memo-

randum, in fact. declares that “ijt does not address any ... terms

under the statute other than ‘addition.”” /d., at 18.

Cite as: 547U.S.__- (2006) 7

- Opinion of the Court

that “a word is known by the company it-keeps,” Gustafson

v. Alloyd Co,, 513 U.S. 561, 575 (1995), and is invoked when

a string of statutory terms raises the implication that the

“words grouped in a list should be given related mean_ng,”

Dole vy. Steelworkers, 494 U.S. 26, 36 (1990) (internal quota-

tion marks omitted); see also Beecham v. United States, 511

U.S. 368, 371 (1994) (“That several items in a list share an

attribute counsels in favor of interpreting the other items as

possessing that attribute as well”).

Warren claims that the canon applies to §502(16) of the

Clean Water Act, which provides that “[t}]he term ‘dis-

charge’ when used without qualification includes a dis-

charge of a pollutant, and a discharge of pollutants.” 33

U.S.C. §1362(16). Warren emphasizes that the “in-

clude[d]” terms, pollutant discharges, are themselves

defined to require an “addition” of pollutants to water.

§1362(12). Since “discharge” pure and simple is keeping

company with “discharge” defined as adding one or more

pollutants, Warren says “discharge” standing alone must

require the addition of something foreign to the water into

which the discharge flows. And because the release of

water from the dams adds nothing to the river that was

not there above the dams, Warren concludes that water

flowing out of the turbines cannot be a discharge into the

river.°

5We note that the Supreme Judicial Court of Maine accepted the

assertion that “[ajn ‘addition is the fundamental characteristic of any

discharge.” 2005 Me 27, 411, 868 A. 2d 210, 215. It then held that

Warren's dams add to the Presumpscot River because the water “los|es

its] status as waters of the United States” when diverted from its

natural course, and becomes an addition to the waters of the United

States when redeposited into the river. 868 A. 2d, at 216 (emphasis

deleted). We disagree that an addition is fundamental to any dis-

charge. nor can we agree that one can denationalize national waters by

exerting private control over them. Cf. Uniled Stales v. Chandler-

Dunbar Water Power Co., 229 U.S. 53. 69 (1913) C[T]hat the running

water in a great navigable stream is capable of private ownership is

8 S. D. WARREN ©O. v. MAINE BD. OF ENVIRONMENTAL

PROTECTION

Opinion of the Court

The problem with Warren’s argument is that it purports

to extrapolate a common feature from what amounts to a

single item (discharge of a pollutant plus the plural vari-

ant involving more than one pollutant). See Beecham,

supra, at 371. The argument seems to assume that. pair-

ing a broad statutory term with a narrow one shrinks the

broad one, but there is no such general usage; giving one

example does not convert express inclusion into restrictive

equation, and noscitur a sociis is no help absent some sort

of gathering with a common feature to extrapolate. It

should also go without saying that uncritical use of inter-

pretive rules is especially risky in making sense of a com-

plicated statute like the Clean Water Act, where technical

definitions are worked out with great effort in the legisla-

tive process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) C {I]t

is extremely important to an understanding of |[§402] to

know the definition of the various terms used and a

careful reading of the definitions ... is recommended.

Of particular significance |are] the words ‘discharge of

pollutants’”).

B

Regardless, Warren says the statute should, and even

must, be read its way, on the authority of South Fla. Water

Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004).

But that case is not on point. Miccosukee addressed §402 of

the Clean Water Act, not §401, and the two sections are

not interchangeable, as they serve different purposes and

use different language to reach them. Section 401 recast

pre-existing law and was meant to “continule] the author-

ity of the State ... to act to deny a permit and thereby

prevent a Federal license or permit from issuing to a

discharge source within such State.” S. Rep. No. 92-414,

inconceivable”). Thus, though we affirm the Maine judgment. we do so

on different reasoning.

Cite as: 547 U.S. (2006) 9

Opinion of the Court

p. 69 (1971). Its terms have a broad reach, requiring state

approval any time a federally licensed activity “may”

result in a discharge (“discharge” of course being without

any qualifiers here), 33 U.S. C. §1341(a)(1), and its object

comprehends maintaining state water quality standards,

see n. 1, supra.

- Section 402 has a historical parallel with §401, for the

legislative record suggests that it, too, was enacted to

consolidate and ease the administration of some predeces-

sor regulatory schemes, see H. R. Rep. No. 92-911, at 124—

125. But it contrasts with §401 in its more specific focus.

It establishes what Congress called the National Pollutant

Discharge Flimination System, requiring a permit for the

“discharge of any pollutant” into the navigable waters of

the United States, 33 U.S.C. §1342(a). The triggering

statutory term here is not the word “discharge” alone, but

“discharge of a pollutant,” a phrase made narrower by its

specific definition requiring an “addition” of a pollutant to

the water. §1362(12).

The question in Miccosukee was whether a pump be-

tween a canal and an impoundment produced a “discharge

of a pollutant” within the meaning of §402, see 541 U.S.,

at, 102-103, and the Court. accepted the shared view of the

parties that if two identified volumes of water are “simply

two parts of the same water body, pumping water from

one into the other cannot constitute an ‘addition’ of pollut-

ants,” id., at 109. Miccosukee was thus concerned only

with whether an “addition” had been made (phosphorous

being the substance in issue) as required by the definition

of the phrase “discharge of a pollutant”; it did uot matter

under §402 whether pumping the water produced a dis-

charge without any addition. In sum, the understanding

that. something must be added in order to implicate §402

dloes not explain what suffices for a discharge under §401.°

®The fact that the parties in Miccosukee conceded that the water

10 S D. WARREN CO. v, MAINE BD. OF ENVIRONMENTAL

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Opinion of the Court

C

Warren's third argument for avoiding the common

meaning of “discharge” relies on the Act's legislative his-

tory, but we think that if the history means anything it

actually goes against Warren's position. Warren suggests

that the word “includes” in the definition of “discharge”

_ should not be read with any spacious connotation, because

the word was simply left on the books inadvertently after

a failed attempt to deal specifically with “thermal dis-

charges.” As Warren describes it, several Members of

Congress recognized that “heat is not as harmful as what

most of us view as ‘pollutants,’ because it dissipates

quickly in most bodies of receiving waters,” | Legislative

History of the Water Pollution Control Act Amendments of

1972 (Committee Print compiled for the Senate Committee

on Public Works by the Library of Congress), Ser. No. 93-

1, p. 272 (1973) (remarks of Cong. Clark), and they pro-

being pumped was polluted does not transform the Court's analysis

from one centered on the word “addition” to one centered on the word

“discharge.” Before Miccosukee, one could have argued that transfer-

ring polluted water from a canal to a connected impoundment consti-

tuted an “addition.” Miccosukee is at odds with that construction of the

statute, but it says nothing about whether the transfer of polluted

water from the canal to the impoundment constitutes a “discharge.”

Likewise, we are not persuaded by Warren's claim that the word

“into” somehow changes the meaning of the word “discharge” so as to

require an addition. See Reply Brief for Petitioner 1—2 (“However one

might read the lone word ‘discharge’ by itself, the complete statutory

phrase ‘discharge into the navigable waters’ entails the introduction of

something into the waters’). The force of this argument escapes us,

since one can easily refer to water being poured or discharged out of one

place into another without implying that an addition of some hitherto ~

unencountered mixture or quality of water is made. Indeed, the prepo-

sition “into” was used without connoting an addition in the / ‘'ccosukee

analogy cited by Warren, See 541. U.S., at 110 ([T]fone takes a ladle of

soup from a pot... and pours it back mto the pot, one has not ‘added’

soup or anything else to the pot” (internal quotation marks and_brack-

ets omitted)).

Cite as: 547U.S. (2006) ll

Opinion of the Court

posed to regulate thermal discharges less stringently than

others. They offered an amendment to exclude thermal

discharges from the requirements under §402, but they

also wanted to ensure that thermal discharges remained

within the scope of §401 and so sought to include them

expressly in the general provision covering “discharge.”

See id., at 1069-1070, 1071. The proposed definition read,

“[t]he term ‘discharge’ when used without qualif-cation

includes a discharge of a pollutant, a discharge of pollut-

ants, and a thermal discharge.” /d., at 1071.

Of course, Congress omitted the reference to “thermal

discharge,” and settled on the definition we have today.

See Federal Water Pollution Control Act Amendments of

1972, §502(16), 86 Stat. 887. Warren reasons that once

Congress abandoned the special treatment for thermal

pollutants, it merely struck the words “thermal discharge”

from 33 U.S. C. §1362(16) and carelessly left in the word

“includes.” Thus, Warren argues, there is no reason to

assume that describing “discharge” as including certain

acts was meant to extend the reach of §401 beyond acts of

the kind specifically mentioned;’ the terminology of §401

simply reflects a failed effort to narrow the scope of §402.

This is what might be called a lawyer's argument. We

will assume that Warren is entirely correct about the

impetus behind the failed attempt to rework the scope of

pollutant diseharge under §402. It is simply speculation,

though, to say that the word “includes” was left in the

description of a “discharge” by mere inattention, and for

reasons given in Part IV of this opinion it is implausible

speculation at that. But if we confine our view for a mo-

ment strictly to the drafting history, the one thing clear is

that if Congress had left “thermal discharge” as an in-

"Warren is hesitant to follow its own logic to completion by simply

claiming that §101 covers nothing but what §502(16) mentions, the

discharge of a pollutant or pollutants.

12. S.D. WARREN CO. v. MAINE BD. OF ENVIRONMENTAL

PROTECTION

Opinion of the Court

cluded subclass of a “discharge” under §502(16), Warren

would have a stronger noscitur a sociis argument. For a

thermal discharge adds something, the pollutant heat, see

n. 3, supra. Had the list of examples of discharge been

lengthened to include thermal discharges, there would

have been at least a short series with the common feature

of addition. As it stands, however, the only thing the

legislative history cited by Warren demonstrates is the

congressional rejection of language that would have cre-

ated a short series of terms with a common implication of

an addition.

Warren's theory, moreover, has the unintended conse-

quence of underscoring that Congress probably distin-

guished the terms “discharge” and “discharge of pollut-

ants” deliberately, in order to use them in separate places

anc to separate ends. Warren hypothesizes that Congress

attempted to tinker with the definition of “discharge”

-because it wanted to subject thermal discharges to the

requirements of §401, but not §402. But this assumption

about Congress’s motives only confirms the point that

when Congress fine-tunes its statutory definitions, it

tends to do so with a purpose in mind. See Bates v. United

States, 522 U.S. 23, 29-80 (1997) (if “Congress includes

particular language in one section of a statute but omits it

in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the

(disparate inclusion or exclusion” (internal quotation marks

omitted)). .

IV

Warren’s arguments against reading the word “dis-

charge” in its common sense fail on their own terms. ®

*Warren briefly makes another argument for disregarding the plain

meaning of the word “discharge.” relying on §511(c)(2) of the Clean

Water Act, 33 U.S. C. §1371(c)(2). This section addresses the intersec-

tion of the Act with another statute, the National Environmental Policy

—

Cite as: 547 U.S. (2006) 13

Opinion of the Court

They also miss the forest for the trees.

Congress passed the Clean Water Act to “restore_and

maintain the chemical, physical, and biological integrity of

the Nation’s waters,” 33 U.S.C. § 1251 (a): see also PUD

No. 1, 511 U.S., at 714, the “national goal” being to achieve

“water quality which provides for the protection and propa-

gation of fish, shellfish, and wildlife and provides for recrea-

tion in and on the water.” 33 U.S.C. §1251(a)(2). To do

this, the Act does not stop at controlling the “addition of

pollutants,” but deals with “pollution” generally, see

§1251(b), which Congress defined to mean “the man-made

or man-induced alteration of the chemical, physical, biologi-

cal, and radiological integrity of water.” §1362(19).

Act of 1969 (NEPA), 42 U.S. C. §4321 ef seg. NEPA “imposes only

procedural requirements on federal agencies with a particular focus on

requiring agencies to undertake analyses of the environmental impact

of their proposals and actions.” Department of Transportation v. Public

Citizen, 541 U.S. 752, 756-757 (2004). Section 511(c)(2) makes the point

that nothing in NEPA authorizes any federal agency “authorized to

license or permit the conduct of any activity which may result in the

discharge of a pollutant” to review “any effluent limitation or other

requirement established pursuart to this chapter or the adequacy of

any certification under [§401] of this title.” 33 U.S.C. §1371(e)(2).

Warren argues that reading §401 to cover discharges generally would

preclude duplicative NEPA review of certifications involving pollutant

discharges. but allow such review of those involving nonpollutant

discharges. .

But Warren overlooks the fact that “discharge of a pollutant” is used

in §511(c)(2) in the course of identifying the agency, not the activity to

be certified. Whether a §401 certification involves an activity that

discharges pollutants or one that simply discharges, FERC (as an

agency that may be described, always, as one with “authorlity] to

license or permit the conduct of any activity which may result in the

discharge of a pollutant.” ibid.) may not review it. Thus, nothing in

§511(c)(2) is disturbed by our holding that hydroelectric dams require

§401 state certifications. It is still the case that. when a State has

issued a certification covering a discharge that adds no pollutant, no

federal agency will be deemed to have authority under NEPA to “re-

view” any limitations or the adequacy of the §401 certification.

14. S.D. WARKEN CO. v. MAINE BD. OF ENVIRONMENTAL

PROTECTION

Opinion of the Court

_ The alteration of water quality as thus defined is a risk

inherent in limiting river flow and releasing water

through turbines. Warren itself admits that its dams “can

cause changes in the movement, flow, and circulation of a

river ... caus[ing] a river to absorb less oxygen and to be

less passable by boaters and fish.” Brief for Petitioner 23.

And several amici alert us to the chemical modification

caused by the dams, with “immediate impact on aquatic

organisms, which of course rely on dissolved oxygen in

water to breathe.” Brief for Trout Unlimited et al. as

Amici Curiae 13; see also, e.g., Brief for National Wildlife

Federation et al. as Amici Curiae 6 (explaining that when

air and water mix in a turbine, nitrogen dissolves in the

water and can be potentially lethal to fish). Then there

are the findings of the Maine Department of Environ-

mental Protection that led to this appeal:

ur

"he record in this case demonstrates that Warren's

dams have caused long stretches of the natural river

bed to be essentially dry and thus unavailable as

habitat for indigenous populations of fish and other

aquatic organisms; that the dams have blocked the

passage of eels and sea-run fish to their natural

spawning and nursery waters; that the dams have

eliminated the opportunity for fishing in long

stretches of river, and that the dams have prevented

recreational access to and use of the river.” In re S. D.

Warren Co., Maine Board of Environmental Protection

(2003), in App. to Pet. for Cert. A—49.

Changes in the river like these fall within a State’s

legitimate legislative business, and the Clean Water Act

provides for a system that respects the States’ concerns.

See 33 U.S. C. §1251(b) (“It is the policy of the Congress to

recognize, preserve, and protect. the primary responsibilities

and rights of States to prevent, reduce, and eliminate pollu-

tion”); §1256(a) (federal funds for state efforts to prevent

Cite as: 547 U.S. 2006) 15

Opinion of the Court

pollution); see also §1370 (States may impose standards on

the discharge of pollutants that are stricter than federal

ones).

State certifications under §401 are essential in the

scheme to preserve state authority to address the broad

range of pollution, as Senator Muskie explained on the

floor when what is now §401 was first proposed:

“No polluter will be able to hide behind a Federal li-

cense or permit as an excuse for a violation of water

quality standard[s]. No polluter will be able to make

major investments in facilities under a Federal license

or permit without providing assurance that the facil-

ity will comply with water quality standards. No

State water pollution control agency will be con-

fronted with a fait accompli by an industry that has

built a plant without consideration of water quality

requirements.” 116 Cong. Rec. 8984 (1970).

These are the very reasons that. Congress provided the

States with power to enforce “any other appropriate re-

quirement of State law,” 33 U.S. C. §1341(d), by imposing

conditions on federal licenses for activities that may result

in a discharge, ibid.

Reading §401 to give “discharge” its common and ordi-

nary meaning preserves the state authority apparently ~

intended. The judgment of the Supreme Judicial Court of

Maine is therefore affirmed.

It is so ordered.