# Petition for Writ of Certiorari — Simpson Paper (Vermont) Co. v. Department of Environmental Conservation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1796%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 970 ## Text sy STors | 92- 101 2 | DEC 1 4 1992 ——— IN THE , Supreme Court of the United States OCTOBER TERM, 1992 SIMPSON PAPER (VERMONT) COMPANY, . Petitioner DEPARTMENT OF ENVIRONMENTAL CONSERVATION and SIERRA CLUB Petition for a Writ of Certiorari to the Supreme Court of the State of Vermont PETITION FOR A WRIT OF CERTIORARI HOWARD E. SHAPIRO Counsel of Record GARY D. BACHMAN MICHAEL A. SWIGER VAN NESS, FELDMAN & CURTIS A Professional Corporation 1050 Thomas Jefferson St., N.W. JEANNE M. VERVILLE Seventh Floor Simpson Paper (Vermont) Washington, D.C. 20007 Company (202) 298-1800 1201 Third Avenue Attorneys for Petitioner Seattle, WA 98101-3009 Simpson Paper (Vermont) WILSON - Eras PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED 1. Whether the State of Vermont, through its Depart- ment of Environmental Conservation, has exceeded its authority under § 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1341, by conditioning a water quality cer- tification for a federally licensed hydroelectric project on scenic aesthetic and recreation requirements wholly unrelated to the protection of water quality. 2. Whether § 401 of the CWA allows the staves un- limited authority to condition the 0; *ation of projects subject to the Federal Power Act (“FPA”) on certifica- tion requirements not related to water quality, and thereby repeals by implication the comprehensive regu- latory scheme established by the FPA for federal licens- ing of hydroelectric projects. aE be tre ems Lis Rete Ee a ERT veut = ee TABLE OF CONTENTS Page i a seauhliaieesasdesbebcenane 1 I i, li i csingecbammetcnneemedsnesoes 2 EET WGA PIED icc cose ccctccccccccscseconsppvecasesorsecsnosoees 2 eS eebanseaupnoqoansinamences 2 A. Statutory and Regulatory Background ................. 4 1. Tee MeweeRs POWSF AC ................0..c000.02.....02.-- 4 WS ER 6 a. The § 401 Certification Requirement ......... 6 b. The EPA’s Role in Establishing Water Quality Standards for § 401 Certifica- Ne isidreibinhe Mica cilisicbmensameadaietivtsnmecicciscrowee 7 c. Vermont’s Role Under §§ 401 and 303... 9 B. The Gilman Hydroelectric Project ...................... 10 ds I ca cccccmes waneceees 12 D, PERRO ACTION... -....-0...cecccceeceeenees-s 12 2. Judicial Proceedings ...............................-<..-2--.. 15 REASONS FOR GRANTING THE PETITION .......... 16 A. This Court Should Resolve The Important Fed- eral Question Concerning The Scope Of A State’s Certification Authority Under § 401 Of po FETE ea ee 16 B. The Plain Language Of The Clean Water Act Makes Clear That Vermont Is Not Authorized To Impose Conditions On A § 401 Water Quality Certification Which Are Unrelated To A Dis- Gee ee ee 21 C. Vermont’s Expansive Reading Of § 401 Would Subvert the FPA’s Comprehensive Federal Li- NRE COE one a 25 Nee red aeataenieaninansouernsneitnsatnenéenstip 29 iv TABLE OF AUTHORITIES CASES Page Arnold Irrigation Dist. v. Department of Envitl. Quality, 717 P.2d 1274 (Or. App. 1986) .............. 19 Arkansas v. Oklahoma, —— U.S. ——, 112 S.Ct. BN I seseiciiccaiiaasanicitvasss aciasctbtidndntscussdiiedoinapnanatictiaunads 22, 23, 25 California v. FERC, 495 U.S. 490, reh’g denied, Be i IE III sis sascinsltennncinkaasidsitientinniighesdcineimins 3, 28 City of Tacoma v. Taxpayers of Tacoma, 357 U.S. Ss PRET EE ey rae ens Une eT 5 A a 27 Coleman v. Thompson, U.S. ——, 111 S.Ct. ARIE RRO eS RR Ne 17 deRham v. Diamond, 348 N.Y.S.2d 84, 295 N.E.2d RO AR a eS ee 20 First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. Be is 8, 5, 27, 28 FPC v. Oregon, 849 U.S. 485 (1955) -..................... 5, 28 Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991).. 19 Michigan v. Long, 463 U.S. 1082 (1988) _.............. 17 Morton v. Mancari, 417 U.S. 525 (1974) 0.00000... 27 National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 Gi RE I ached iene edidie tatininccastaetodamsennnins 23 New England Power Co. v. New Hampshire, 455 CR I i a 27 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190 (RE blitindiie titer oN 27 Pennsylvania Dept. Envtl. Resources v. Harris- burg, 183 Pa. Commw. 577 A.2d 568 (1990) .... 20 In re Power Auth. v. Williams, 457 N.E.2d, 60 a I A 20 Proffitt v. Rohm & Haas, 850 F.2d 1007 (8rd Cir. SRR RTP SRE Ae OA AE SRE SP 19 Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041 (ist Cir. 1982) .............................. 19 Summit Hydropower v. Commissioner of Envtl. Protection, 1992 Conn. Super. LEXIS 2177, 1992 WL 175241 (Superior Court of Connecticut SRE RIT RNIN teak TS) TY AE 2 ON 19 United States v. Marathon Dev. Corp., 867 F.2d 96 (ist Cir. 1989) oe 19 v ee et DL PR Ae TABLE OF AUTHORITIES—Continued Page Vermont v. New Hampshire, 289 U.S. 593 (1933).. 11 ; Watt v. Alaska, 451 U.S. 259 (1981) .........00000000...... 27 ADMINISTRATIVE DECISIONS Carex Hydro, 52 FERC 9 61,216 (1990) ............ 7,19 Central Maine Power Co., 52 FERC { 61,033 EB ERIE RE RMN a BAL Sc ay ga SE CO Le POI 7,17, 18,19 Georgia Pacific Corp., 59 FERC {| 62,350 (1992) .... 12 Gilman Paper Co., 33 F.P.C. 1021 (1965) .............. 11, 12 Gilman Paper Co., 40 F.P.C. 1021 (1970) -............. 12 Town of Summersville, 60 FERC {| 61,291 (1992)... 7,19 STATUTES Federal Power Act, 16 U.S.C. §§ 791-828 (1988) Sense oe Gee Oo eee ce? 4,5 § 10(a) (1), 16 U.S.C. § 803 (a) (1) --..020 5 Siete es oe Uae BOO) |... 6, 14, 28 Bee a a 4,12 § 15(a) (2)-(8), 16 U.S.C. § 808 (a) (2)-(8).... 5 $28(b), 16 US.C. § 897 (b) ................................ 4 Clean Water Act (“CWA”), 33 U.S.C. § 1251-2623 (1988) Fs Se &. : RIS as Sse 21 § 102(b) (6), 33 U.S.C. § 1252 (b) (6) 00000. 26, 27 ; scones 6, 7, 21, 22 FR eS Fo Ss | SRINIRR RR gear aie 6, 7, 31,22 § 808, 88 U.S.C. § 1818 ......................... 6, 7, 9, 21, 22, 24 § 303 (c) (2), 33 U.S.C. § 18138 (c) (2) -.00 8 ; 8 | 5A) einen: 6, 7, 21, 22 a II RMS gioco on sansa coccscbavcuccens 6, 7, 21, 22 | Fe cee 1S. ” : ee were ae eee passim § 401 (a), 88 U.S.C. § 1841 (a) ....... ee. 6, 7, 22 § 401 (a) (1), 38 U.S.C. § 1841 (a) (1) ~....... 6, 7, 21, 22 | § 401 (d)}, 88 U.S.C. § 1841 (d) o-oo eeceeeecseeeee passim Ie IT Tiina vce cece cocenscsareren 18, 23 tO git Seg) |e ; Eee 21, 23, 24 vi TABLE OF AUTHORITIES—Continued Page Vermont Water Pollution Control Act, Vt. Stat. Ann, tit. 10, Ch. 47 (Supp. 1992) ........................ 9 pS | Reena anne 9 Vt. Same. ae. See. 10, § TESLA) ............................... 9,24 \ Vs Mie i es Nr aco e ccc cstteesewens 9 Vt. Bees. Am. Ee 10, S ISEB (a) ................................. 9, 22 REGULATIONS ye EF Ee See ee ae cee 6 po Ee. ee 6 18 CFR Part 4 ....... i a tt a ar la 6 RC I a a nar 29 ET a I eS 6 TR eee aa ee eee Pere 29 ET RIMS ae ee REM RN ee a 9,24 IES Pa eT ee a aa 7,8, 22, 24 i 8 ERE Ea ea aE ee a ak 22, 24 SEER Peete er RPS eee a Se 22, 24 ETAT LI LS AL AER TE” 8 ERT ANT NN DAE EN MIE 8 40 CFR § 181.6(f) _.......... Rebs oe cele Ree Mee PII 8 RE Ae Re ee ee aa EE 22, 24 SN Bn 22, 24 Vermont Water Quality Standards IE ae a a 10 VES Section 8-01.10 —...............:.............-- 15 Wr «ss 10 VWs section 8-08 ....... nn. 10, 24, 25 eee HG on 10, 17, 24 MISCELLANEOUS Electric Consumers Protection Act, Pub. L. No. 99-495, 100 Stat. 1248 (1986) 0. . 28 Electric Power Research Institute, Lessons Learned in Hydro Relicensing (1984-1989): Trends, Costs, and Recommendations § 2-1 (May 1991) 4 et eo Rett ne Slur uel ERD A LAD OORT IS MIE ae i ata AE. elt, Re I pe Soni snsreaianssce 1 tara ON Rl PO a A ELE atte ee ARR maa ACRE A NONE AC ne OCCIIE LS Hei, Md an vii TABLE OF AUTHORITIES—Continued Federal Energy Regulatory Commission, Hydro- electric Project Relicensing Handbook 1 (April SN ina ata hata i tithe aatcaerttaatainers Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 66 Stat. 816 a eestor G. Douglas Essy, Hydroelectric Facilities Licens- ing—A FERC Jurisdictional Primer, 1 Energy SE ga SIDI TT ane Oca nO Hydropower Disputes: A Battle of the Endan- gered Salmon, Cogeneration & Resource Recov- Oly, Eee /eeee seek, Oe Oe ~................................-- National Environmental Policy Act of 1969, Pub. I. No. 92-100, GS Seat. SOR .................................... New Hampshire Water Quality Management Plan, Connecticut River Basin, New Hampshire Water Supply and Pollution Control Commission 3, SORE RN ARERR S ee ee Richard T. Hunt & Judith Mohsberg, Relicensing Entanglements, Independent Energy, January cada chiasininpinaninenee S. Rep. No. 1236, 92nd Cong., 2d Sess. 101 (1972).. Special Supplement 1992 Edition, Hydrowire, §§ 7- I a cupaowionabatnpennences The Gilman Project, FERC No. 2392, Application for New License, Major Water Power Project, Five Megawatts or Less, December 1988 _........... The Gilman Project, FERC No. 2392, Application for Section 401 Water Quality Certification, Au- GREER SECA SEPA ee Water Quality Certificate (Pursuant to Section 401 of The Clean Water Act): Gilman Project— FERC No. 2392, N.H. Dept. of Environmental RS Os UI UP ices ccsteeseercnrcneecin Page 28 IN THE Supreme Court of the United States OCTOBER TERM, 1992 No. SIMPSON PAPER (VERMONT) COMPANY, Petitioner Vv. DEPARTMENT OF ENVIRONMENTAL CONSERVATION and SIERRA CLUB Petition for a Writ of Certiorari to the Supreme Court of the State of Vermont PETITION FOR A WRIT OF CERTIORARI The Simpson Paper (Vermont) Company (hereinafter “Simpson”) respectfully petitions for a writ of certiorari to review the judgment of the Supreme Court of the State of Vermont in this case." OPINIONS BELOW The opinion of the Supreme Court of the State of Ver- mont (“Vermont Supreme Court”), No. 91-530, issued September 14, 1992 (App. la-4a); the opinion of the Vermont Superior Court, No. S473-89 WnCa, issued October 2, 1991 (App. 5a-18a); and the Water Quality Certification issued by the Vermont Department of En- 1Simpson Paper (Vermont) Company is a wholly owned sub- sidiary of Simpson Paper Company, which is a wholly owned sub- sidiary of Simpson Investment Company. 2 vironmental Conservation (“Vermont DEC”), issued July 28, 1989 (App. 19a-28a), are not officially reported. JURISDICTION The judgment of the Vermont Supreme Court was entered on September 14, 1992. App. la. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257. STATUTES INVOLVED Sections 301, 302, 303, 306, 307, 401 and 510 of the Clean Water Act, also known as the Federal Water Pollu- tion Control Act, 33 U.S.C. §§ 1811, 1312, 13138, 1316, 1317, 13841 and 1370; and §§ 4(e), 10(a) (1), 10(j) and 15(a)(2)-(3) of the Federal Power Act, 16 U.S.C. §§ 797(e), 803(a) (1), 803(j) and 808 (a) (2)-(3), are reproduced in Appendix D. STATEMENT This case involves an attempt by the State of Vermont to use its water quality certification authority, delegated to it pursuant to § 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1341, to impose far reaching operational con- ditions—unrelated to water quality—on the continued existence of a hydroelectric project licensed by the Federal Energy Regulatory Commission (“FERC”). State courts are in conflict on this issue. See infra pp. 19-21. The Vermont DEC issued a § 401 water quality cer- tification in connection with Simpson’s application to FERC for relicensing of its Gilman Hydroelectric Project (“Gilman Project”) on the Connecticut River. The proj- ect provides power to Simpson’s Centennial Paper Mill, located in Gilman, Vermont. The certification contained a number of conditions, including requirements for up- stream and downstream fish passage facilities and a requirement that a minimum flow of 210 cubic feet per second (“cfs”) be spilled over the dam continuously 3 from June 1 to October 15 each year. The Vermont DEC based the spill requirement both on purported water quality concerns and on a desire to enhance scenic aes- thetics for persons engaged in recreation at the site. The Vermont Supreme Court upheld the DEC’s spill condi- tion, solely on the ground that “aesthetics” and “recrea- tion”—in and of themselves—were appropriate grounds on which to justify the spill condition under § 401. Under § 401(d), a state water quality certification be- comes a condition to any FERC hydroelectric license (or other federal license or permit). FERC, and the federal courts, have no authority to review the certification’s requirements even if they exceed the scope of the state’s delegated authority under § 401. The licensee’s remedy lies only in the state courts and ultimately this Court. The Vermont Supreme Court’s holding is not within the scope of § 401. Its ruling is contradicted by the plain language and the purposes of that provision. Vermont’s broad construction completely undermines the Federal Power Act’s (“FPA’s”) scheme for federal licensing of hydroelectric projects. It would supplant FERC’s com- prehensive planning and licensing responsibilities with respect to new and existing projects, including the nearly 200 existing projects currently in the FERC relicensing process, by allowing the 50 states virtually unlimited authority to restrict operation of hydroelectric projects for reasons not directly linked to water quality. Congress did not intend § 401 to undo the basic scheme of the FPA by authorizing unrestrained intervention by the states into the licensing process. California v. FERC, 495 U.S. 490, reh’g denied, 110 S.Ct. 3304 (1990) ; First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152 (1946). 4 A. Statutory and Regulatory Background 1. The Federal Power Act Under the FPA, FERC has exclusive authority to issue licenses for the vast majority of new and existing hydro- electric projects. FPA §§ 4(e), 23(b), 16 U.S.C. 88 797 (e), 817 (1988).2 This authority includes original li- censes and license renewals, known as “new licenses,” which must be obtained when the original license term -expires. FPA § 15, 16 U.S.C. § 808 (1988). Between 1991 and the year 2000, FERC anticipates the relicensing of about 320 hydropower projects, or fully 17 percent of the facilities currently under its jurisdiction.* Between 1990 and 1993 alone, the licenses for nearly 200 hydro- power plants are due to expire, representing over 2,200 MW of electric generating capacity.* Most of these are the subject of applications now pending at FERC.° The FPA requires that projects licensed by FERC be “best adapted to a comprehensive plan” for improving or developing the waterway, taking into account such potentially competing factors as needed for the project’s power, energy conservation, navigation, irrigation, flood control, water supply, fish and wildlife protection, recrea- 2G. Douglas Essy, Hydroelectric Facilities Licensing—A FERC Jurisdictional Primer, 1 Energy L.J. 67, 67-68 (1980). 8 Federal Energy Regulatory Commission, Hydroelectric Project Relicensing Handbook 1 (April 1990); Hydropower Disputes: A Battle of the Endangered Salmon, Cogeneration & Resource Recov- ery, May/June 1991, at 22, 24 (“More than half of these licenses will expire in 1993.’’). 4 Electric Power Research Institute, Lessons Learned in Hydro Relicensing (1984-1989): Trends, Costs, and Recommendations 2-1 (May 1991); Richard T. Hunt & Judith Mohsberg, Relicensing Entanglements, Independent Energy, January 1991, at 48. 5 Special Supplement 1992 Edition, Hydrowire, §§ 7-9, August 1992. 5 tional opportunities, and other aspects of environmental quality. FPA §§ 4(e), 10(a) (1), 16 U.S.C. §§ 797(e), 803(a) (1) (1988). Section 15 of the FPA sets forth additional considera- tions which apply to existing licensed projects seeking a new license. These include the cost and availability of alternative sources of power, amcng others. They also include, in the case of an applicant such as Simpson (which uses the power for its own industrial facility), the effects of the project on the operation and efficiency of the industrial facility, its workers, and the community. FPA § 15(a) (2)-(3), 16 U.S.C. § 808 (a) (2)-(3) (1988). Congress’ intent in enacting the Federal Water Power Act of 1920, the FPA’s predecessor statute, was to secure “a comprehensive development of natural resources”. First lowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 181 (1946). The Court has observed that the key to that rational development is centralization of licensing authority in one federal administrative body which would exercise a consistent and comprehensive planning role. Id. at 164, 182. Absent express modification by federal legislation of this pervasive jurisdiction over licensing of hydro- electric projects, FERC’s jurisdiction is exclusive. FPC v. Oregon, 349 U.S. 435, 446 (1955). These principles recently were reconfirmed in California v. FERC, 495 U.S. 490 (1990). Before issuing a license under the FPA, FERC must weigh potential environmental impacts of a proposed project—or, in the case of a license renewal, impacts of continued operation. In addition, under its regulations implementing the National Environmental Policy Act of 1969,° FERC assesses potential impacts on water quality, fish, wildlife and botanical resources, historic and arche- ological resources, recreational resources, land manage- Pub. L. No. 91-190, 88 Stat. 852 (42 U.S.C. §§ 4321-4347 (1988) ). 6 ment, and aesthetics.7 FERC also must include in li- censes conditions for the protection and enhancement of fish and wildlife, and must adopt recommendations of federal and state fish and wildlife agencies, unless it ex- pressly finds them to be inconsistent with the purposes and requirements of the FPA. FPA §10(j), 16 U.S.C. § 803(j). 2. The Clean Water Act a. The § 401 Certification Requirement Section 401(a)(1) of the CWA, 33 U.S.C. § 1341 (a) (1) (1988), requires an applicant for a federal li- cense or permit for any activity which may result in a discharge into navigable waters of the United States to obtain a certification (or waiver thereof) from the state in which the discharge originates. The state must cer- tify that the discharge will comply with the sections of the CWA specifically enumerated in § 40i(a).§ Each of the enumerated sections addresses discharges of pol- lutants. Sections 301 and 302 set standards for effluent limitations. Section 303 governs state water quality stand- ards and implementation plans. Section 306 sets na- tional standards of performance for the, control of dis- charges. Section 307 sets effluent pretreatment standards and prohibits the discharge of certain effluents. Section 401(d) of the CWA, 33 U.S.C. 1341(d) (1988), confines a state certification issued pursuant to § 401 (a) (1) to water quality factors. It directs that state certifications shall impose limitations and monitoring re- quirements necessary to ensure compliance with: 718 CFR §§ 380.1-380.14 (1982). Th2 types of information FERC must consider are set forth in FERC’s regulations establish- ing requirements for license applications. 18 CFR Parts 4, 16. See 18 CFR § 380.3(c) (1). ® These are §§ 301, 302, 308, 306, and 307, codified respectively at 33 U.S.C. §§ 1311, 1812, 18138, 1816, and 1317. 7 any applicable effluent limitations and other limita- tions, under section [301] or [302] of this title, standard of performance under section [306] of this title, or prohibition, effluent standard, or pretreat- ment standard under section [307] of this title, and with any other appropriate requirement of State law set forth in such certification .... Under § 401(d), any such limitations and requirements then become conditions on the FERC license or other federal permit for the project. FERC has ruled that it has no authority to reject or even revise conditions in a state water quality certification even if they are outside the scope of § 401, and that only the state courts may review such certifications.’ b. The EPA’s Role in Establishing Water Quality Standards for § 401 Certifications One of § 401(a)’s specifically enumerated sections is section 303. Section 303 requires a state to establish water quality standards to be approved by the United States Environmental Protection Agency (“EPA”). EPA requires the state standards to meet the minimum ap- plicable requirements set forth in the CWA, including but not limited to §$§ 301, 302, 306 and 307. EPA’s parameters for state water quality standards have as their purpose “to protect public health or welfare, enhance the quality of water and serve the purposes of the Act... .?* 40 CFR $131.2 (1992). EPA’s definition ® Town of Summersville, 60 FERC 7 61,291 at 61,990 (1992), rehearing granted for purpose of further consideration; Carex Hydro, 52 FERC {61,216 at 61,770-771 (1990); Central Maine Power Co., 52 FERC { 61,033 at 61,172 (1990). 10 40 CFR § 131.2 (1992) also states EPA’s view of the purposes of the CWA: States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the pur- poses of the [CWA]. ‘Serve the purposes of the [CWA]’ (as 8 of a water quality standard states: “A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses.” 40 CFR 131.2 (1992). This definition results in a two-step format for state water quality standards. The first step requires the state to designate the uses desired for a particular body of water. The second step involves establishment of “criteria”—objec- tive, measurable standards—the implementation of which should ensure attainment of water quality sufficient to achieve and protect the designated uses. The first-step regulation, 40 CFR § 131.6(a) (1992), directs a state to submit for EPA approval water quality standards which establish “use designations” pursuant to CWA § 303(c) (2). The second-step regulation, 40 CFR § 131.6(c) (1992), directs that the state’s standards must include “[wl]later quality criteria sufficient to protect the designated uses.” The criteria are defined as “elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, represent- ing a quality of water that supports a particular use. When criteria are met, water quality will generally pro- tect the designated use.” 40 CFR 131.3(b) (1992). These criteria must be supported by information sufficient to ensure the “adequacy of the scientific basis of the stand- ards.” 40 CFR § 181.6(f) (1992). defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, pro- vide water quality for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water and take into consideration their [sic] use and value of public water supplies, propagation of fish, shellfish, and wildlife, rec- reation in and on the water, and agricultural, industrial, and other purposes including navigation. 9 c. Vermont’s Role Under §§ 401 and 303 The Vermont DEC determines whether to issue § 401 certifications in that state. Vt. Stat. Ann. tit. 10, § 1004 (Supp. 1992). In accordance with CWA § 303, Vermont’s Water Resources Control Board has established “Vermont Water Quality Standards” which were approved by the EPA and became effective January 8, 1987 7! pursuant to the Vermont Water Pollution Control Act, Vt. Stat. Ann. tit. 10, Chapter 47. This statute requires that Vermont’s water quality standards conform to EPA’s requirements concerning the scope and structure of state water quality standards under § 303 (i.e., 40 CFR Part 131).” In accordance with EPA’s requirements, the state clas- sifies its waters according to their suitability for particu- lar uses. Vt. Stat. Ann. tit. 10, § 1252 (Supp. 1992). Vermont’s Water Quality Standards (“VWQS”) provide 11 The 1987 Vermont Water Quality Standards were in effect at the time the Section 401 certification for the Gilman Project was issued. They subsequently have been revised. 12 Vt. Stat. Ann. tit. 10, §125la(a) (Supp. 1992) effectively requires that Vermont’s Water Quality Standards, as promulgated by the Water Resources Board, be “approvable” under Public Law 92-500 (the 1972 Amendments to the CWA) and thus approvable pursuant to CWA § 303. 7 18 Section 1252(a) provides: (a) The state adopts, for the purposes of classifying its waters, the following classes and definitions thereof : Class A. Suitable for public water supply with disinfection when necessary. Character uniformly excellent. Class B. Suitable for bathing and recreation, irrigation and agricultural uses; good fish habitat; good aesthetic value; ac- ceptable for public water supply with filtration and disinfection. Class C. Suitable for recreational boating, irrigation of crops not used for consumption without cooking; habitat for wildlife and for common food and game fishes indigenous to the region ; and such industrial uses as are consistent with other class “C”’ uses, 10 “management objectives” setting forth the State’s desired values and uses for the different classifications.” The VWQS further include water quality “criteria” required by EPA that provide objective standards for regulating levels of pollutant discharges in order to achieve the “uses” and “values” set forth in the Stand- ards. Vermont has adopted both general water quality criteria, which pertain to all waters, and specific criteria which vary depending on the classification of the waters.’® The criteria look to scientifically ascertainable elements. For example, for Class B and Class C waters (the types at issue here), they specify levels of pH (maintain be- tween values of 6.5 and 8.0); fecal coliform (not more than 200 organisms per 100 milliliters); and color (not more than 25 standard color units), among others, Aes- thetic factors linked to measurable water quality—such as “color,” or “taste and odor’—are included within the criteria. Non-water quality factors such as scenic aes- thetic values are not. B. The Gilman Hydroelectric Project The Gilman Project is 4.85 MW run-of-river** hydro- electric facility located at Gilman, Vermont on the Con- necticut River, the navigable interstate boundary water 14 See VWQS, Sections 3-02 to 3-04. 145 General water quality criteria are established for ‘Dissolved Oxygen,” “Temperature,” “Nutrients,” “Aquatic Habitat,” “Sludge deposits or solid refuse,” and “Settleable solids, floating solids, oil, grease, scum, or total suspended solids.” VWQS Section 3-01. Specific water quality criteria are established for “Ph,” “Turbidity,” “Fecal Coliform,” “Color,” and “Taste and Odor.” VWQS Sections 3-02 to 3-04. 16 “Run-of-river” facility means that the Project discharges water at the same rate that water enters the Project’s impoundment up- stream of the dam. Although the Project has a small dam and impoundment, it does not operate in a store-and-release cycle mode. App. 20a. 11 between Vermont and New Hampshire.” App. 19a-20a; Gilman Paper Co., 83 F.P.C. 1021 (1965). Vermont classifies the waters above the dam as “Class B,” which includes “good aesthetic value,” and the waters below the dam as “Class C,” which does not include aesthetic value. App. lla, 20a; see supra note 13. Simpson owns and operates the facility, which provides power for Simpson’s adjacent Centennial Paper Mill. The Project dam, which spans the river from the New Hampshire side to the power house and is about 300 feet wide, is located entirely in New Hampshire waters.” Spills are regulated by a hydraulic-controlled crest gate approximately 25 feet in width which is part of the dam. The powerhouse, which is next to the dam, straddles the Vermont-New Hampshire boundary. App. 19a. The paper mill is in Vermont.” The Gilman Project produces about 26 million kilowatt hours per year on an average annual basis,” which is about 41 percent of the paper mill’s electric require- ments.22 Any additional electric energy (not otherwise supplied by Simpson’s onsite wood-waste cogeneration facility) is purchased from the New England Power Company, which in turn purchases excess energy from the Gilman Project when Simpson’s mill is down for maintenance or repair.” Paper making is an energy intensive process. The electricity which the Project supplies to the mill is an 17 The boundary between Vermont and New Hampshire is set at the historic low water mark on the Vermont side. Vermont v. New Hampshire, 289 U.S. 593, 619 (1933). 18 See The Gilman Project, FERC No. 2392, Application for New License, Major Water Power Project, Five Megawatts or Less, December 1988 (“1988 Relicensing Application”), at A-1. 19 Jd. 20 Jd. at 1. 21 Jd. at 7. 22 Jd. at 4. 12 important factor enabling the mill to survive in the highly competitive paper industry.** The power produced by the Project results in substantial cost savings for the mill, which otherwise would have to purchase more elec- tricity from the local utility.* When the Project turbines are being used to full capacity, any water spilled over the crest gate is unavailable for power productions ex- cept at higher flows. Thus, the DEC’s spill requirement would limit power production and force Simpson to pur- chase additional commercial power. The Federal Power Commission issued an initial license for the Project to Simpson’s predecessor in 1965.% That license expired in 1990. In December 1988 Simpson’s predecessor applied to FERC for a new license under FPA §15.% FERC has deferred issuance of the new license pending Simpson’s appeal of the Vermont § 401 certification. C. Proceedings Below 1. Administrative Action In anticipation of the relicensing application to FERC, Simpson’s predecessor in August 1988 filed an application 23 Id, at 1-2. 4 Id, at 4. 25 Gilman Paper Co., 38 FPC 1021 (1965). The initial license was issued to the Gilman Paper Company in 1965, retroactively effective to 1941, although a dam and mill were first constructed at the site about 1900. It sold the project to Georgia-Pacific Corpora- tion, Gilman Paper Co., 43 FPC 189 (1970), which owned the Gilman Project when this litigation was initiated. Simpson subse- quently purchased the Project and FERC transferred the license to Simpson. Georgia-Pacific Corp., 59 FERC { 62,350 (1992). For purposes of this Petition, all further references to Simpson will include both Simpson and Georgia-Pacific Corporation. 26 See The Gilman Project, FERC No. 2892, Application for New License, Major Water Power Project, Five Megawatts or Less, December 1988, 13 for $401 certification with the Vermont DEC.” Prior to the filing, the DEC had advised Simpson’s predecessor that it intended to impose a continuous spill require- ment2* After a preliminary meeting with counsel for the licensee, the Commissioner of the Vermont DEC expressed concern in a memorandum to the DEC’s direc- tor that the scope of the state’s certification authority under 401 might limit the DEC’s ability to extract concessions : (T]he policy issue before us is how much to extract from Georgia Pacific [now Simpson} during relicens- ing. I think we have some leverage through the 401 certificate, but the law on the scope of that authority has not been settled. I would hope we could get what we want, or at least what we can fairly expect, without having to litigate that issue, which could be a major battle of national importance.” The DEC had indicated a concern over dissolved oxygen (“DO”) levels in the river reach below the dam during low flow periods. The licensee attempted to address this concern by conducting studies of DO above and below the dam and by drafting a water quality management plan for monitoring DO and responding to low levels through controlled spillage.” However, on July 28, 1989, 217 See The Gilman Project, FERC No. 2392, Application for Section 401 Water Quality Certification, August 1988. The Gilman Centennial Mill also received a renewal of its discharge permit under section 402 of the CWA from the Vermont Agency for Nat- ural Resources on March 15, 1989. The section 402 permit regulates wastewater discharges from the paper making process. 28 Letter of April 23, 1987 from Thomas Willard, Director of DEC, to William Ernst, then General Manager of Simpson’s prede- cessor. 29 Memorandum of April 25, 1988 from Patrick A. Parenteau, DEC Commissioner, to David L. Clough, Director, DEC Water Quality Division. 80 The first draft of a management plan was submitted to DEC by letter of January 16, 1987 from Mr. Ernst to Mr. Willard. The 14 before Simpson had finished and submitted a final man- agement plan, the DEC issued its § 401 certification. The certification contained several conditions. These included, among others, requirements for upstream and downstream fish passages,“ and a condition requiring the licensee to release 210 cubic feet per second (“cfs”) in a continuous flow over the dam from June 1 through October 15 of each year. The DEC maintained that dur- ing critical low flow conditions this 210 cfs continuous spill requirement was required to insure minimum levels of DO in the river at a potential DO “sag” some miles downstream. App. 21la-24a. The DEC also determined that the spill would enhance aesthetics and recreational use of the river reach. App. 25a-26a. It made no find- ing, however, that the Gilman Project affects any measur- able aesthetic properties of the water itself, or that the Project’s “discharge” contains pollutants which affect aesthetic values or recreational uses. In the meantime, New Hampshire, in whose waters the mandatory spill actually would occur (since the crest gate and dam are in that state), issued a § 401 certifica- tion finding that the Project met that state’s water quality standards in all respects. New Hampshire’s cer- tification did not contain a spill condition or any other operating restriction. At the time, New Hampshire’s DEC staied that it would not consider a water quality management plan. Letter of April 23, 1987 from Mr. Willard to Mr. Ernst. 81 While Simpson believed that the fish passage conditions imposed by the DEC also were beyond the scope of the DEC’s section 401 authority, it chose not to contest them because it had already pro- posed installation of a downstream fish passage in the FERC re- licensing proceeding in an attempt to anticipate FERC’s require- ments under § 10(j) of the FPA. 1988 Relicensing Application at E2-5 to E2-6. 82 Water Quality Certificate (Pursuant to Section 401 of The Clean Water Act): Gilman Project—FERC No. 2392, N.H. Dept. of Environmental Services, Oct. 22, 1988. 15 standards concerning DO in the reach below the dam were more stringent than Vermont’s.* 2. Judicial Proceedings Simpson appealed the 210 efs continuous spill condi- tion to the Vermont Superior Court for Washington County, contending that the continuous spill condition was not needed to ensure water quality. Simpson also challenged the condition as being beyond the scope of state authority under CWA § 401. The Superior Court affirmed the continuous spill re- quirement on two grounds: in order to guarantee com- pliance with DO levels below the dam, and to maintain scenic aesthetics. App. 5a-18a. It deferred to the DEC’s conclusion that “the specified continuous flow was re- quired to safeguard aesthetic appeal of the river to the numerous persons who use the river for recreation dur- ing the specified time period.” According to the court, “Tt]he aesthetic determination forms a strong independ- ent basis upon which to uphold” the continuous spill requirement. App. 14a. However, the court did not cite any objective criteria or specific evidence related to the visual “aesthetic” qualities of the river which would be protected by the continuous spill condition, or even de- scribe what the actual scenic aesthetic impact of the spill might be. Its conclusion appeared to be predicated on the notion that general improvement of the scenic vista at the Project site, as opposed to the aesthetic quality of the water itself, was a permissible justification for the spill condition under CWA § 401. App. 3a-4a. Simpson appealed the Superior Court’s judgment to the Vermont Supreme Court, contending, inter alia, that it was beyond the DEC’s authority under CWA § 401 to base a spillage requirement on aesthetic and recreational 88 Compare, VWQS, Section 8-01.1.a (1987) and New Hampshire Water Quality Management Plan, Connecticut River Basin, New Hampshire Water Supply and Pollution Control Commission (1979). 16 goals unsupported by objective evidence. Appellant’s Brief, Docket No. 91-530, pp. 46-49, March 27, 1992. Simpson also appealed on the grounds that there was no foundation for the spill requirement in terms of DO- related water quality factors. Jd., pp. 33-46. Simpson Showed that the spill condition imposed substantial eco- nomic costs—estimated at $120,000 per year “—without any basis in objective water quality standards. The Vermont Supreme Court, in a per curiam entry order, affirmed the Superior Court’s decision. App. 1la- 4a. In so doing, it did not discuss whether the spill was necessary to maintain DO standards, or make a specific ruling on that issue. Thus, without even addressing the DO issue, the court affirmed on the sole ground that aesthetics and recreation were an appropriate basis for the spill condition under Vermont’s Water Quality Standards and CWA § 401." REASONS FOR GRANTING THE PETITION A. This Court Should Resolve The Important Federal Question Concerning The Scope Of A State’s Certifica- tion Authority Under § 401 Of The Clean Water Act As this case was decided by the Vermont Supreme Court, it squarely presents the issue whether § 401 of the Clean Water Act authorizes a state to impose condi- tions on a FERC license for a hydroelectric project based, not on ascertainable water quality criteria, but on broader state goals such as enhancing scenic aesthetics. The Vermont Supreme Court in this case did not deter- mine whether the DEC’s continuous spill condition was necessary to correct an alleged DO deficiency, nor did it ** The $120,000 figure is contained in a letter submitted to the Court after oral argument in response to a question from the bench. The letter was dated May 20, 1992. 86 The court also stated without explanation that the spill condi- tion would promote “ease of administration and monitoring.” App. 3a. 17 so much as mention DO. It affirmed solely on the basis that the Vermont Water Quality Standards expressly identify recreation and aesthetics as designated uses and values for Class B waters,®** and that the spill condition is therefore within the scope of the State’s regulatory authority under § 401." If § 401 is as broad as Vermont contends, then a state may impose any condition on a FERC licensed project which in any way promotes recreation, aesthetics, or other state designated “uses” or “values,” simply by incor- porating the condition in its water quality certification. Indeed, under Vermont’s reading, a state could effec- tively deny a § 401 certification on the basis of recrea- tional, aesthetic, fish and wildlife, or other concerns that do not involve actual water quality, simply by imposing conditions so onerous as to render continued operation of the project uneconomic.* The FERC has recognized that “[i]t is possible for a state certifying agency to, in effect, veto a project by denying a § 401 certification request and, if challenged, have that decision sustained by state courts.” * It has also asserted that it does not “believe that a state should 36 The decision is inaccurate in its reliance on Class B require- ments since the waters below the dam are Class C, which does not include “good aesthetic value” among its elements. See supra VWQS section 3-04; App. 11a, 20a. 87It must therefore be presumed that the Vermont Supreme Court’s decision does not rest on an independent alternative state ground based on the DO determinations of the lower state tribunals. Michigan v. Long, 463 U.S. 1032, 1042 (1983) ; Coleman v. Thomp- son, —— U.S. ——, 111 S.Ct. 2546, 2556-58 (1991). 38 Section 401(d) provides that the limitations and requirements in the state water quality certification “shall become a condition on any Federal license or permit subject to the provisions of this section.” 89 Central Maine Power Co., 52 FERC {61,033 at 61,172-73 (1990). 18 be permitted to use its water quality certification authority to impose conditions that are unrelated to water quality and that conflict with the Commission’s licensing deci- sions.” * Because “review of the appropriateness of water quality certification conditions is the purview of state courts,” *’ review by this Court is Simpson’s only remedy. If Vermont and other states are permitted to continue to abuse their § 401 authority, the economic and environ- mental consequences will be widespread and _ serious. There are almost 200 hydroelectric projects now in the FERC relicensing process, including at least 12 in Ver- mont alone,*? as well as scores of others that must be relicensed in this decade. Unnecessary operating restric- tions wili reduce power available from these existing projects. States could even force shutdown of projects by denying certification on non-water quality grounds, or imposing onerous conditions without comprehensively balancing such conditions against energy and other en- vironmental considerations. For industrial plants like the Gilman Centennial Mill, this will mean loss of profit- ability and, in some cases, could result in shutdown for economic reasons. In addition, clean, renewable hydro- power lost through misuse of § 401 will have to be re placed by other sources. In New England, and in most other areas of the country, this will likely be commercial power from polluting fossil fuel sources. In addition, new proposed projects may never be built, or their eco- nomic and environmental benefits never fully realized, because of the states’ use of their § 401 conditioning authority for purposes not directly related to water quality. # Td. at 61,173. 41 Td. at 61,172. “Special Supplement 1992 Edition, Hydrowire §§ 7-9, August 1992. 19 Vermont is not alone. Other states have attempted to use the § 401 certification process to encroach on FERC’s licensing jurisdiction. In recent licensing proceedings, the FERC has noted numerous conditions in state water quality certifications which are unrelated to water quality and which pose actual or potential conflicts with the Commission’s license, including subjecting project opera- tions to state approval;** requiring that a portion of project revenues be deposited in a special account for fish and wildlife enhancement and water quality man- agement; ** and ordering the project owner to build angler’s access paths and low-water stepping stone bridges that raise serious safety concerns.* The several state courts which have considered the scope of §401 are divided.*® Courts in Connecticut, Oregon, New York and Pennsylvania have properly inter- preted § 401 to preclude imposition of conditions, or outright denial of a certification, on non-water quality related grounds.*7 The Vermont Supreme Court has ruled to the contrary. 48 Central Maine Power Co., 52 FERC { 61,033 at 61,172 (1990). 44 Carex Hydro, 52 FERC { 61,216 at 61,768 (1990). 45 Town of Summersville, 60 FERC { 61,291 at 61,990-91 (1992), rehearing granted for further consideration. 46 The lower federal courts have not addressed state conditioning authority under § 401, because they have consistently held that the CWA requires challenges to 401 certifications to be made in the state courts. E.g., Roosevelt Campobello Int’l. Park Comm'n. v. EPA, 684 F.2d 1941, 1056 (1st Cir. 1982); Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991); United States v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir. 1989) ; Proffitt v. Rohm & Haas, 850 F.2d 1007, 1009 (3rd Cir. 1988). 47 Summit Hydropower v. Commissioner of Envtl. Protection, CV91-050-26-43, 1992 Conn. Super. LEXIS 2177, 1992 WL 175241 (Conn. Sup. July 20, 1992) (minimum spill requirement based on subjective aesthetic impact beyond the seope of state agency’s sec- tion 401 authority), Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274 (Or. App. 1986) (denial of certification on | : : M : : i } : : 20 This Court should settle this important federal ques- tion. If the issue is not resolved now, other states will join besides Vermont, Maine,** and West Virginia ® in using the CWA § 401 process to encroach on FERC’s licensing authority during this critical decade, during which hundreds of the nation’s project licenses must be considered for renewal. To postpone resolution of the problem while non-water quality conditions are tested in numerous state courts can only reduce the economic use and environmental benefits of hydroelectric power. A uniform interpretation of § 401 is essential to achieve the water quality purposes of the state certification re- quirement, without undermining FERC’s mandate under the FPA to evaluate and balance all aspects of a project prior to licensing or relicensing. the basis of failure to show compliance with state and county land use requirements was error where the certifying agency did not consider whether land use provisions related to water quality), Pennsylvania Dept. of Envtl. Resources v. City of Harrisburg, 133 Pa. Commw. 577, 578 A.2d 563 (1990) (state water quality agency exceeded its authority under section 401 by examining the impact of physical changes in the river on aquatic resources resulting from construction of a hydroelectric project and the project’s effect on wetlands and fish migration), Jn re Power Auth. v. Williams, 60 N.Y.2d 315, 457 N.E.2d 726 (N.Y. 1983) (state certificating agency limited to determining whether hydroelectric project would meet applicable water quality standards, and was not empowered to base its decision on a balancing of need for the project against adverse environmental impacts under state energy law and master plan) ; see also deRham v. Diamond, 343 N.Y.S.2d 84, 295 N.E.2d 763 (N.Y. 1973) (New York’s high court interpreting section 401’s precessor provision). 48 See supra notes 438-44. 4° See supra note 45. ‘ 21 B. The Plain Language Of The Clean Water Act Makes Clear That Vermont Is Not Authorized To Impose Conditions On A § 401 Water Quality Certification Which Are Unrelated To A Discharge Of Pollutants The purpose of the Clean Water Act is to “restore and maintain the chemical, physical, and biological in- tegrity of the Nation’s waters.” 33 U.S.C. § 1251. As the terms “chemical, physical and biological’ imply, that purpose is to be achieved by the abatement and control of scientifically ascertainable pollutants found in facility discharges. Id. The Vermont Supreme Court’s holding, that a water quality standard need not be related to a scientifically ascertainable discharge of pollutants, is con- trary both to this underlying principle and to the plain language of § 401. That language restricts state conditioning authority under § 401(d) to the imposition of requirements neces- sary to ensure that the project’s discharge complies with Objective water quality standards. Under § 401(a) (1) states must certify that facilities which “discharge” into navigable waters are in compliance with CWA §§ 301, 302, 303, 306 and 307. 33 U.S.C. § 1341(a) (1). Each of the referenced sections pertains to the abatement or control of pollution.” Moreover, a “discharge,” as that term is used in § 401, is defined as “a discharge of a pollutant, and a discharge of pollutants.” 33 U.S.C. § 1862(16). Thus, under the plain meaning of § 401, the requirements in a water quality certification can pertain only to compliance with applicable standards governing a discharge of a pollutant or pollutants. Section 401(d) prescribes specific requirements that limit the conditions a state may include in a certifica- % Sections 301 and 302 set standards for effluent limitations. Section 303 governs State water quality standards and implementa- tion plans. Section 306 sets national standards of performance for the control of discharges. Finally, § 307 sets effluent pre- treatment standards and prohibits the discharge of certain effluents. 22 tion. The certification must set forth effluent limitations and other limitations and monitoring requirements to assure compliance with pretreatment standards under §§ 301, 302, 306 and 307 of the CWA, “and with any other appropriate requirement of State law set forth in such certification. . . .” The “other appropriate require- ment” clause is not open-ended, as the Vermont Supreme Court held. Its context requires that it be confined to the abatement or control of the discharge of pollutants in accordance with the other sections of the CWA spe- cifically enumerated in §§ 401(a) and (d). This interpretation is supported by the EPA’s regu- lations governing approval of state water quality stand- ards under section 303, which is specifically enumerated in §401(a). Management goals such as promotion of aesthetic “values” and recreational “uses” are to be achieved through implementation of specific, quantifiable “criteria.” See 40 CFR §§ 181.2, 181.5, 131.6, 131.10, 131.11. These criteria provide objective standards for abating and controlling the discharge of pollutants. The management goals are not themselves enforceable water quality requirements, but rather are expressions of the ends to be promoted by specific water quality criteria. The goals of aesthetics, fish and wildlife protection, and recreation may appropriately be promoted through specific state water quality criteria for the control of pollutant discharges. This is illustrated by this Court’s decision in Arkansas v. Oklahoma, —— U.S. ——, 112 S. Ct. 1046 (1992). In that case, the issue was whether a direct discharge permit granted by EPA should be invalidated because the discharge violated the water quality standards, including an aesthetics criterion, of a downstream state. The Court ruled that there was no violation, in part because the EPA had determined that the discharge had not resulted in any measurable impacts on the levels of relevant criteria pollutants in the waters of the downstream state. Jd. at 1059-60. 23 Significantly, EPA’s findings concerning “aesthetics” re- lated solely to the visual quality of the water itself, as affected by a measurable pollutant (phosphorus). Jd. at 1059 n.16. Thus, for a water quality violation to occur, there must be a pollutant discharge which has an objec- tive, measurable effect on the water quality criteria which relate to the more general water quality manage- ment goal. The Vermont tribunals in this case made no finding that visual aesthetics of the water itself were affected by pollutants being discharged from the turbines of the Gilman Project. Indeed, at no stage of the case have those tribunals linked aesthetics or recreation to the quality of water in the Connecticut River. The Superior Court advanced aesthetics and recreation as an “inde- pendent” justification for the spill requirement, but offered no evidentiary basis for this finding related to any of Vermont’s objective water quality criteria. The Vermont Supreme Court affirmed the Superior Court, but only on the basis of the lower court’s finding that “aesthetics” and “recreation” were relevant and sufficient justifications for the spill requirement.” The Vermont Supreme Court never alluded to any evidentiary or tech- nical basis in the record to support its conclusion, or to objective criteria relating to aesthetics and recreation. There is nothing in the record of the case to support such a finding. It is evident that the only concern of the 51 Since the Vermont Supreme Court did not base its affirmance of the § 401 certification spill requirement on the Superior Court’s findings on the DO issue, those findings do not provide an inde- pendent alternative ground for the Vermont Supreme Court’s affirm- ance. Nor is it necessary here to discuss whether the purportedly reduced DO levels are actually attributable to the Gilman Project, or whether such an effect (even if it existed) would fall within the meaning of a “discharge of a pollutant or pollutants.” 33 U.S.C. § 1362(16). See National Wildlife Fed’n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) (holding that reduction of dissolved oxygen levels caused by a dam is not a discharge of a pollutant or pollutants within the meaning of CWA § 402, 33 U.S.C. § 1342). 24 Vermont tribunals regarding aesthetics and recreation was for the scenic vista which supposedly would be pre- sented by water spilling over the Project crest gate to recreating tourists. In basing its conclusion on aesthetics and recreation, the Vermont Supreme Court relied on the “any other appropriate requirement of state law” language of § 401(d). App. 3a. The court apparently was referring to the designated values and uses within Vermont’s Water Quality Standards as an “other appropriate requirement of State law.” However, those Standards, which were approved by the EPA pursuant to CWA § 303 and the EPA regulations at 40 CFR Part 131, refer to aesthetics only as a management objective or “value” to be pursued, and to recreation only as a designated “use” to be pro- tected. VWQS Section 3-03. The EPA regulations un- der which Vermont’s Standards were approved clearly indicate that such values and uses are goals which can be attained only through implementation of objective, measurable water quality “criteria.” See 40 CFR §§ 131.2, 131.5, 131.6, 131.10, 131.11. Vermont’s Standards, as required by Vt. Stat. Ann. tit. 10, §125la(a) (Supp. 1992), conform to the for- mat imposed by the EPA regulations. The Stand- ards contain objective criteria which (in the case of Class B waters) are presumably related to maintaining appropriate water quality related to aesthetic values and recreational uses. These include measurable factors such as “Turbidity,” “Color,” and “Taste and Odor.” VWQS Section 3-03. Nowhere in the record is there any indi- cation that any of these objective criteria relating to aesthetics or recreation was at issue. There was no sug- gestion in the Vermont courts, for example, that the spill condition is necessary to maintain the color or reduce 52 Class C waters, which include the waters below the Gilman dam, do not include aesthetics and recreation as values or uses. VWQS Section 3-04. See supra note 36, 25 the turbidity of the water, and there is no finding by any tribunal to that effect. Cf. Arkansas v. Oklahoma, supra. The only objective criteria invoked by the DEC were the levels of DO present in the reach below the impoundment. The DEC never proved or even claimed that DO levels affect aesthetics or recreation. Before the Vermont Supreme Court, respondents con- tended that aesthetics and recreation are expressly in- cluded as “values” in Vermont’s Water Quality Stand- ards. This led that court to leap to the erroneous con- clusion that the aesthetic and recreational aspects of viewing a spill over a dam constitute a “water quality” issue, and therefore an appropriate basis for imposition of a §401(d) certification condition. The Vermont Su- preme Court’s holding leaves no effective limitation on state conditioning authority under § 401 (d). Without a nexus to water quality in the form of objective measure- ments of pollutant discharges, subjective aesthetic and recreational values are an improper basis for state cer- tifications, because they are disconnected from the CWA’s carefully balanced requirements. C. Vermont’s Expansive Reading Of § 401 Would Subvert the FPA’s Comprehensive Federal Licensing Scheme Vermont’s expansive reading of § 401 would allow states to subvert the federal licensing scheme set forth | in the FPA. State aesthetic or recreational conditions unrelated to water quality could frustrate FERC’s role as the exclusive forum for comprehensive licensing of hydroelectric uses of navigable waterways. The error of such an approach is magnified when ap- plied to a project like Gilman, which is located on inter- state boundary waters. Vermont’s spill condition in this case is directly contrary to New Hampshire’s § 401 cer- tification that the project is in full compliance with that state’s water quality standards. New Hampshire did not " sis sini cael iil 26 impose a spill requirement even though the Project’s dam is located entirely in its waters, the Vermont- required spill would actually take place in New Hamp- shire, and New Hampshire DO standards were more stringent than Vermont’s. In the FPA, Congress vested exclusive licensing au- thority in a single federal agency in order to avoid such inconsistencies. Congress expressly preserved this au- thority in § 102(b) (6) of the CWA, 88 U.S.C. § 1252 (b) (6), which for the purpose of water quality control, assigned to the Administrator of the EPA the responsi- bility for determining the need for storage and low flow augmentation at hydroelectric projects licensed by FERC, but left undisturbed FERC’s authority under the FPA to decide whether to include spillage conditions for other purposes.®* These purposes include energy conservation, navigation, irrigation, flood control, water supply, fish and wildlife protection, recreational opportunities and other aspects of environmental quality. See supra pp. 4-6. Vermont’s broad reading of § 401 as applied to hydro- electric projects amounts to a partial repeal of the FPA ———— ———_ 53 Section 102(b) (6) provides: No license granted by the Federal Energy Regultaory Commis- sion for a hydroelectric power project shall include storage for regulation of streamflow for the purpose of water quality control unless the Administrator shall recommend its inclusion and such reservoir storage capacity shall not exceed such proportion of the total storage required for the water quality control plan as the drainage area of such reservoir bears to the drainage area of the river basin or basins involved in such water quality control plan. [Emphasis added]. Section 102(b)(2) contains a similar allocation of authority for Federal water reservoirs. It provides that “‘the need for and the value of storage for regulation of streamflow (other than for water quality) including but not limited to navigation, salt water intru- sion, recreation, aesthetics, and fish and wildlife, shall be determined by the Corps of Engineers, Bureau of Reclamation, or other Federal agencies.” See S. Rep. No. 1236, 92nd Cong., 2d Sess. 101 (1972). ———— \ haenanenanataal 27 by implication. Repeals by implication are disfavored. To the maximum extent possible, courts must read re- lated statutes together in order to give effect to each; only when the sense and purpose of each cannot be pre- served by such a reading is implied repeal recognized. Watt v. Alaska, 451 U.S. 259, 267 (1981) (citing Morton vy. Mancari, 417 U.S. 525, 549 (1974)). The limited authority given to the states by the CWA to prescribe water quality standards and, through the § 401 process, to certify compliance with those standards, was not in- tended to defeat the comprehensive planning authority vested in FERC by the FPA. The Court has made it abundantly clear that in Part I of the FPA Congress vested in FERC (and its prede cessor agencies) exclusive authority comprehensively to evaluate and balance the multi-faceted aspects of the public interest affected by hydroelectric projects. Over 40 years ago the Court in First Iowa rejected a state’s attempt to impose a broad state permitting requirement on a hydroelectric project under the jurisdiction of the FPC. The Court stated that requiring the applicant to secure a state permit would “vest in [state authorities] a veto power over the federal project” that could “destroy the effectiveness of the Federal Act” and “subordinate to the control of the State the ‘comprehensive’ planning” with which the FPC was charged. First Iowa Hydro- Elec. Coop. v. FPC, 328 US. 152, 164 (1946). The validity of the First Iowa holding has been reaffirmed by the Court on numerous occasions.” This Court recently rejected an attempt by a state to undermine FERC’s primary role by applying an expan- sive reading of FPA section 27, which reserves certain &4 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190, 223 n.34 (1983); New England Power Co. v. New Hampshire, 455 U.S. 331, 338-39 n.6 (1982) ; City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 334 (1958); FPC v. Oregon, 349 U.S. 435, 444-45 (1955). : q ; b Nd t | i i t if Hut 28 authority to the states regarding proprietary water rights. California v. FERC, 495 U.S. 490, reh’g denied, 110 S.Ct. 3304 (1990). The Court pointed out that Con- gress, in its 1986 amendments to the FPA,” had the opportunity to alter FERC’s role vis a vis the states, but chose instead “to elaborate and reaffirm First Iowa’s un- derstanding that the FPA establishes a broad and para- mount federal regulatory role.” 495 U.S. at 499. In 1986, Congress added subsection (j) to FPA § 10, 16 U.S.C. § 803(j). It requires FERC to implement state fish and wildlife recommendations unless it finds suffi- cient grounds for rejecting them. Congress would not have added this provision if it believed that the states already had the authority to impose mandatory fish and wildlife conditions in a § 401 certification. Moreover, the reaffirmation of FERC’s primary role would have made no sense if Congress had already transferred it to the states in § 401 of the CWA.™ Through §10(j) and through FERC’s pre-filing con- sultation process, 18 CFR §§ 4.38, 16.8, the states can make recommendations to FERC relating to recreation, aesthetics, fish and wildlife, and other aspects of a proj- ect.. However, a state may not impose mandatory condi- tions, or veto the construction or continued operation of a project, based on such matters. That is FERC’s role. The limited authority granted to state water quality agencies by § 401 should not be interpreted so as to per- mit states to subvert both the FPA and the CWA by including certification conditions unrelated to water quality. The FERC has a statutory mandate to balance care- fully various power and non-power values, including 55 Electric Consumers Protection Act, Pub. L. No. 99-495, 100 Stat. 1243 (1986). 5 Section 401 is part of the Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, approved October 11, 1972, 86 Stat. 816 (1972). 29 aesthetics and recreational concerns. The states typically have no equivalent obligation. The present case is a clear example of the consequences of allowing a state water quality agency, with a relatively narrow focus and agenda, to usurp FERC’s comprehensive planning role by imposing an unreasonable and burdensome § 401 con- dition which FERC and the federal courts are powerless to revise. The Vermont DEC would impose a costly spill condition on an existing project dam, which is located in another state that imposed no such requirement. Moreover, the DEC engaged in no apparent analysis of the economic or broader environmental impacts of the spill requirement. Congrzss could hardly have intended such a result in enacting § 401. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, HOWARD E. SHAPIRO Counsel of Record GARY D. BACHMAN MICHAEL A. SWIGER VAN NESS, FELDMAN & CURTIS A Professional Corporation 1050 Thomas Jefferson St., N.W. Seventh Floor Washington, D.C. 20007 (202) 298-1800 Attorneys for Petitioner Simpson Paper (Vermont) Company JEANNE M. VERVILLE Simpson Paper (Vermont) Company 1201 Third Avenue Seattle, WA 98101-3009 (206) 224-5046 December 1992 a APPENDICES la APPENDIX A VERMONT SUPREME COURT Supreme Court Docket No. 91-530 MAY TERM, 1992 GEORGIA-PACIFIC CORPORATION and SIMPSON PAPER (VERMONT) Co., INC. V. DEPARTMENT OF ENVIRONMENTAL CONSERVATION and SIERRA CLUB Appealed From: Washington Superior Court Docket No. S473-89 WnCa ENTRY ORDER In the above entitled cause the Clerk will enter: Plaintiffs appeal a Washington Superior Court judg- ment affirming a decision of the Vermont Department of Environmental Conservation (DEC). They seek to set aside continuous spillage conditions in a § 401 water qual- ity certification, or, alternatively, seek a remand to the DEC for consideration of additional evidence, or a re- mand to superior court for de novo review. We affirm. Plaintiffs’ contention that the court’s denial of their request to remand to the DEC for additional evidence and Qa reconsideration was an abuse of discretion is without merit. A remand to an administrative agency is meant only as a “safety valve” to be used if justice so requires. In re Maple Tree Place, 156 Vt. 494, 499 (1991) (quot- | ing State ex rel. Gunstone v. Washington State Highway Commission, 72 Wash. 2d 673, 674, 434 P.2d 734, 735 (1967) ). The court found that plaintiffs had the oppor- tunity, which they did not take, to present evidence of | their management proposal to the DEC. Further, the court found that the additional proceedings would be a waste of time and expense and would most likely not | change the result. These findings are not clearly erroneous | and amply support the court’s discretionary ruling. Plaintiffs argue they were entitled to a de novo hearing on the merits in superior court. Plaintiffs, however, waived any opportunity for a de novo hearing with the court, as illustrated by the following exchange at a pending motions hearing: The Court: ... It is your position that this is not a de novo hearing? Mr. Pearson: My position today is—and if my feet were held to the fire, I don’t think it is—but I think on the other hand, an argument could be made that the Rule 75 does not preclude a de novo hear- ing. It leaves it to other applicable law to decide what the hearing is. I think if we really want to work at it, we could make an argument that in this context a de novo hearing would be appropriate. I’ve yet to convince Washington ceunse) and my client one way or the other on that issue. My personal feeling is I think it probably is not a de novo hear- ing, although, as I say, I think an argument could be made, and I just haven’t convinced them to forget about that little argument we could make and get on with the business of just having this heard on the administrative record. Oe CANE OE aaa mw I Oe 35 OT f i 3a The Court: [I]t would appear that the only issue is whether the plaintiff has almost agreed that it’s not going to be a de novo hearing. The State agrees that it’s not going to be a de novo hearing? Yes. The Court: Do you [Sierra Club]—is it your position that this is a de novo hearing or is this not? Mr. Smith: It’s the Club’s position that this is a review of the administrative record. The Court: Right. I think maybe we have an agreement. At no further time was there consideration of whether review would be de novo. The court was never asked to rule, nor did it rule, on the de novo issue raised here. Plaintiffs also argue for the first time on appeal that denial of a remand to the DEC violated their constitu- tional rights. These challenges are likewise waived. In re Quechee Lakes Corp., 154 Vt. 548, 552, 580 A.2d 957, 962 (1990). Plaintiffs lastly contend that the spillage requirement was not supported by the evidence and that it was beyond the DEC’s authority under federal law to consider aes- thetic and recreational factors as grounds for a spillage requirement. The Clean Water Act allows the state to impose conditions in a § 401 certification to ensure ap- plicant’s compliance with certain criteria, including “any other appropriate requirement of State law.” 83 U.S.C. § 1341 (d). Vermont’s water quality standards promul- gated in accordance with this Act require that the Con- necticut River be managed for “water of a quality which consistently exhibits good aesthetic value . . . and recrea- tion.” Vermont Water Quality Standards § 3-03. The DEC spillage requirement was amply supported by the evidence. Not only were aesthetics and recreation con- sidered relevant, ease of administration and monitoring were fostered by the requirement. See Jn re Sherburne, PNG I ALA a MONT NE SD ANG MRL AICS Amr codes FAY se A A METUR Chet OAT = OW A PI nc II OO OLY 4a 154 Vt. 596, 607, 581 A.2d 274, 280 (1990) (added def- erence afforded agency determinations in highly technical fields). Affirmed. By THE CouRT: /s/ Frederic W. Allen FREDERIC W. ALLEN Chief Justice /s/ Ernest W. Gibson ITI ERNEST W. GIBSON III Associate Justice /s/ John A. Dooley JOHN A. DOOLEY Associate Justice /s/ James L. Morse JAMES L. MORSE Associate Justice /s/ Denise R. JOHNSON DENISE R. JOHNSON Associate Justice 5a APPENDIX B STATE OF VERMONT WASHINGTON COUNTY, ss. VERMONT SUPERIOR COURT Docket No. S473-89 WnCa GEORGIA-PACIFIC CORPORATION and SIMPSON PAPER (VERMONT) INC., Plaintiffs, vs. VERMONT DEPARTMENT OF ENVIRONMENTAL CONSERVATION and THE SIERRA CLUB, Defendants. OPINION AND ORDER Plaintiffs Georgia-Pacific Corporation (hereinafter “G- P”) and Simpson Paper (Vermont), Inc. (hereinafter “Simpson”’) ask the court to revise or remand the § 401 Water Quality Certification issued by the Vermont De- partment of Environmental Conservation (hereinafter “DEC”) back to the DEC for further consideration. De- fendants DEC and Sierra Club oppose the appeal. In re- sponse, and in consideration of the extensive administra- tive records before the court, the court makes the follow- ing findings, conclusions, and order: 1. The Gilman Project, an existing hydroelectric sta- tion on the Connecticut River, has entered the Federal Energy Regulation Commission relicensing process. The present license expires December 31, 1990. 6a 2. The project is owned by Simpson, and the license is held by G-P. The dam was constructed about 1900 and is a low timber crib and concrete structure. 3. The powerhouse is integral with the dam and is lo- cated on the west side of the river, partly in Vermont and partly in New Hampshire. It contains four units with a total plant capacity of 4850 kw. 4, The dam, which is about 319 feet long with a maxi- mum height of 38 feet, is 21 miles below the breached Northumberland Dam and 11 miles above the Moore Res- ervoir Dam. Five feet of flashboards on Gilman Dam bring the normal pond to elevation 833.3’ NGVD. The approximate tailwater elevation is 809.0’ NGVD, which corresponds to the Moore Reservoir full pool elevation. Gilman Dam creates an impoundment that extends 2.9 miles upstream to a point just above the Johns River. The surface area and gross volume are 130 acres and 705 acre-feet, respectively. 5. The project is described as run-of-river with a usable net storage capacity that is considered to be negligible. Outflow equals inflow on an instantaneous basis. The hy- draulic capabilities of the four turbines are 1250 cfs, 600 cfs, 500 cfs, and 500 cfs, for a total of 2850 cfs. The total capacity is close to the mean river flow of 2915 cfs. The 1250 unit was installed as a replacement for an older unit in 1985-86. It is automatically operated while the other units are manual. A crest gate installed in 1979 is used to help maintain the pond level at the top of the boards at inflows up to project capacity and to reduce the incidence of flashboard failure, which occurs at surcharges in excess of 1.5 feet. The powerhouse can generate down to 130 cfs without cycling. 6. The average operating level of Moore Reservoir during the months of July and August is 805.2’ NGVD. At this level, the reservoir extends to Cushman Brook, which is on the New Hampshire side about one mile be- low Gilman Dam. 7a 7. On April 22, 1985, the DEC issued to G-P a § 401 certification in connection with the aforementioned 1985- 86 replacement of one of the four turbine/generator units at the Gilman hydroelectric project. In that 1985 cer- tification, the DEC stated in part that “due to pollutant loading and reduced reaeration caused by impounded waters and diversion of flow at dams, there is a critical dissolved oxygen problem in the Connecticut River .. . the Department will investigate opportunities to increase aeration at this site during the relicensing process.” 8. In 1983 Metcalf & Eddy, Inc, modeled water qual- ity conditions in the Connecticut River from the Upper Amonoosuc River to the Gilman Dam for the federal E.P.A. The 1983 study indicated that substandard DO conditions would prevail for a substantial portion of the study reach under critical low flows and design waste- water discharges. 9. In 1985, G-P contracted with Aquatec, Inc, to per- form an intensive 48 hour DO sampling program that included stations from just upstream on the Johns River to a point about 114 mile downstream of the dam, within the summer operating pool of the Moore Reservoir. The study was conducted August 12-14, 1985. Flows were estimated at 800 cfs, or about twice the 7Q10 of 373 cfs. An effort was made to quantify the potential bene- fits of reaeration at the dam. During the first half of the study, downstream samples were collected with no water being spilled at the dam. During the last 24 hours, 100 cfs was released over the crest gate discharging at 833.3’ NGVD above the sill elevation of 812.1’ NGVD. 10. The Aquatec program concluded that all samples collected on the main stem were above 6 mg/] dissolved oxygen. The Johns River exhibited lower dissolved oxygen levels down to 5.2 mg/l. Releases over the crest gate gained from this point source of reaeration from 0.4 mg/l to 0.8 mg/l of dissolved oxygen over the levels measured in the tailrace discharge. DO levels also gen- 8a erally increased in the free-flowing river reach between the two sampling stations furthest down the study reach below the dam. The sampling period 800 cfs does not represent condi- tions under which violations of DO standards would be expected. 11. In 1985, Metcalf & Eddy were hired by plaintiff to provide a model for reaeration of flows over Gilman Dam and the upstream DO conditions with the new discharge permit limits for the Groveton paper mill. Con- ditions were modeled at 800 cfs and 7Q10, with and without a spillage of 100 cfs. At 7Q10, upstream DO levels reached 5.2 mg/l (3.6 mg/l] deficit from satura- tion at 22.5 C) at the dam and at 800 cfs, 6.05 mg/I. Spillage of 100 cfs mixed with the unaerated turbine dis- charge produced a mixed dissolved oxygen level directly below the dam of 6.3 mg/l at 7Q10 and 6.9 mg/l at 800 cfs. No attempt was made to determine the mixed DO con- centration necessary at different river discharges in order to assure that the downstream dissolved oxygen sag re- mains above standards. Without adequate spillage and consequent elevated DO levels, the study concluded that substandard conditions would occur in the downstream reach to Moore Reservoir. For example, at 7Q10 flows and the project operating without spillage, the sub- standard condition on the upstream side of the dam (5.2 mg/l) would be released through the turbine, additional wasteload would be added at Gilman, and DO levels would continue to decline. 12. Metcalf & Eddy’s 1985 report states: Modeling results indicated probable water quality standard violations under critical low flow conditions for a substantial portion of the study area... the large DO [dissolved oxygen] sag from river mile 9a 324 to 312 is caused by BOD [biochemical oxygen demand] exertion from the James River discharge and by sediment oxygen demand through this region. Metcalf and Eddy, Georgia-Pacific Modeling Study (1985), at p. 2-4. 13. Simultaneous with the § 401 certification process for the hydroelectric project, G-P was seeking renewal of its “Direct Discharge Permit,” which allowed for dis- charge of the paper mill’s treated wastewater from the papermaking process itself. This Discharge Permit was granted by DEC on March 15, 1989, and is effective until September 30, 1993. A particular requirement of that permit provides the limits for discharge of BOD(5) (five day biochemical oxygen demand) at 1,650 pounds maxi- mum per day and 1,100 pounds maximum on an average monthly basis. These are the same BOD(5) discharge limits which had been in effect for the G-P paper mill in the previous permit, since 1981. 14. The James River Corporation paper plant in Grove- ton, New Hampshire on the Upper Amonoosuc River, which empties into the Connecticut River upstream of the Gilman project, has always been known and acknowl- edged by DEC to be the largest single case of dissolved oxygen deficiencies in the upper Connecticut River. G-P argues that three years after G-P and DEC had begun informal discussions about the § 401 certification, and more than ten months after G-P’s formal application, DEC was mistaken about where the paper mill’s direct discharge enters the Connecticut River. Whereas the discharge enters some “750 feet upstream from the Gil- man Dam,” DEC’s only modeling run assumed that the discharge entered the river downstream from the dam. However, the DEC agreed not to hold plaintiffs responsi- ble for substandard water quality conditions caused by upstream discharges, assuming in the case at bar the DO standard had been met upstream of the plaintiff’s dam. 10a Therefore, any mistakes concerning the location of the discharge from the James River plant does not change the resuults in the case at bar. 15. The Gilman hydroelectric project’s capability to operate at a broad range of flows from mean flow down to 180 cfs, which is below the 7Q10 value of 373 cfs, does not provide for reaeration over the dam at these flows. The DO deficit reduction caused by spillage reaeration is important in this water quality limited segment. Run-of- river operation does not in and of itself assure DO standards will be met. 16. DEC independently conducted one complete run of its own “DOSIM” computer model analysis of predicted water quality impacts caused by the Gilman Dam project. The DEC’s computer run reflected known conditions of the rivers. The “DOSIM” model, as applied in this case, is identical to the “Qual-II” computer models used and recognized by the Federal E.P.A. The plaintiff’s ‘“Qual- Il” model results concurred with the relevant portions of the “DOSIM” analysis. 17. An additional computer modeling analysis was done in June of 1989 by Kleinschmidt Associates, G-P and Simpson’s engineering consultant. This analysis utilized 33 different sets of input parameters. Despite its own computer data, DEC adopted plaintiff’s “Run E” to accommodate plaintiffs. The DEC also took into account the revised and refined application of the “DOSIM” model and the results of the plaintiffs’ water quality certificate. The DEC also factored in daily fluctuations of DO. 18. The final and revised “DOSIM” model runs per- formed by Kleinschmidt Associates showed that (a) un- der possible 7Q10 (i.e. 370 cfs) river flow conditions, (b) at summertime river temperatures of 22 degrees centigrade (71.6 degrees Fahrenheit), and (c) with all upstream point source discharges, including the G-P/ lla Simpson mill as well as the James River paper plant, at maximum permitted levels, downstream of the Gilman Dam there could be a “sag” or temporary decline in DO levels from 6.3 mg/l to 6.1 mg/1 before recovering to 6.4 mg/] at distances below the dam of 1.5 to 2.4 to 3.5 miles respectively. 19. The decrease or “sag” in DO levels downstream of the Gilman Dam under the refined “DOSIM” analysis would be 0.4 mg/l of DO before recovery. G-P concedes that under these adverse conditions there is a DO deficit of 0.4 mg/1. 20. The seven day average high summer water tem- perature in the Connecticut River at the project site which has been assumed for all final water quality computer analyses run in June 1989 is 22 degrees centigrade, or 71.5 degrees Fahrenheit. The modeling on which the water quality certificate is based assumed a river temperature of 22 degrees centigrade. Daily temperature readings in the river taken between January 1979 and April of 1989 (except June 1984 to August 10, 1985) reveal seven day river temperatures in excess of 21.1 degrees centigrade, or 70 degrees Fahrenheit, occur for approximately a four week period, from July 10 to August 6 of each year. Seven day average river temperature exceeded 65 degrees Fahr- enheit for approximately a seven week priod, from July 7 to August 27 of each year. The required DO standard is inversely proportional to temperature; as the tempera- ture increases the DO standard decreases. 21. The Connecticut River is categorized as Class B waters from Groveton to Gilman Dam and Class C from Gilman to the Lunenburg town line. The river is desig- nated a cold water fish habitat. The Vermont water quality standards require that DO levels in a cold water fish habitat be not less than 6.2 mg/1, or 70% saturation (75% for New Hampshire) at 22 degrees centigrade at all times, unless a higher standard is determined to be ee ee 12a necessary for reaches critical to spawning or nursery. The standards require that applicable water quality criteria apply at the agreed minimum flow, or 7Q10, whichever is less. 22. Diurnal fluctuation—i.e. differences between day- time and nighttime DO levels due to photosynthesis and respiration effects of algae in the river—occur both up- stream and downstream of the Gilman Dam, in the Gilman impoundment, and in Moore Reservoir. The downstream diurnal fluctuation was 1.6 mg/l. A total flux of 1.6 mg/l causes DO to rise 0.8 mg/l above background con- ditions. As such, natural river conditions will cause a DO deficit of at least 0.8 my/l beyond the 0.4 mg/1] deficits caused by the dam’s normal operations, resulting in a cumulative summer DO deficit of 1.2 mg/l. 23. Based on the DO deficits caused by the Gilman Dam and diurnal fluctuation, the DEC imposed conditions on the § 401 permit awarded to G-P, requiring a spillage of at least 210 cfs hatween June 1 and October 15 of each year to compensate for the DO deficit. This would increase DO to 7.4 mg/1 directly below the dam and would increase the DO at the downstream “sag point” to the state minimum of 6.2 mg/]. 24. In addition to alleviating the DO deficit, spillage of 210 cfs between June 1 and October 15 will serve to prevent aquatic habitat degration and will protect down- stream water quality for a number of species of fish, including the Atlantic salmon. The spillage requirement will also serve to restore to a degree the aesthetics of the river downstream of the dam during the time of year when public use of the river is at its peak. 25. DEC completed its modeling in November 1988 and notified plaintiffs in December 1988 that, based on the modeling, spillage would be required. The modeling ac- counted for diurnal flux. At plaintiffs’ request, discussions —- 18a began on June 13, 1989 and continued until the issuance of the water quality certificate. Conclusions of Law A. “On appeal, an agency’s conclusions of law will be upheld if they are fairly and reasonably supported by the findings of fact.” In re Orzel, 145 Vt. 355, 359 (1985), citing In re McGrath, 138 Vt. 77, 82 (1980). B. In determining whether the DEC acted unreason- ably or arbitrarily in requiring a continuous spill re- quirement for the specified period, the court “. . . must decide whether the decision makes sense to a reason- able person—even if the reviewing court might have weighed the factors differently.” Jn re Town of Shel- burne, 154 Vt. 596, 605 (1990), citing State Dept. of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 294 (1980). However, an agency has the obligation to “. . . explain its reasons for finding as it [did]; if it does not give reasons, its decision may appear arbitrary.” In re Town of Shelburne, 154 Vt. at 605 (citations omitted). C. In reviewing the decisions of administrative agen- cies, our Supreme Court has served notice that it is “... an appellate court, not a fact finding agency; we must defer to the [agency] when its findings are supported— even when the record contains contradictory evidence— and when its conclusions are rationally derived from its findings and based on a correct interpretation of the law.” Id. at 607, citing to In re Southview Associates, 153 Vt. 171, 177-178 (1989). “Where an administrative agency is deciding a highly technical matter, a reviewing court will defer more readily than where the issues in contro- versy are accessible to a generalist judge.” Shelburne at 607. D. The DEC has a mandate to protect the environ- mental health of the Connecticut River in order to ida preserve it as a habitat for aquatic species and its aesthetic value for recreational use. It is plaintiffs’ bur- den to demonstrate to the DEC that the Gilman Dam will not violate water quality standards; it will not suffice for plaintiffs to show that the dam might not adversely im- pact the river environment. E. G-P does not contest that under certain conditions that the normal operation of the dam may cause a DO deficit of 0.4 mg/l] in the Connecticut River south of the Gilman Dam project. The conclusions of the DEC’s com- puter modeling runs as well as the conclusions of plain- tiffs’ own experts, Metcalf & Eddy and Kleinschmidt Associates, support this finding. The court has no reason to doubt the consensus of scientific opinion on this fact. F. Similarly, the court has been presented with no reason to doubt the DEC’s conclusion that diurnal fluctu- ation may cause an additional DO deficit of 0.8 mg/l. In light of its factual determination that the DO “sag” caused by the dam and diurnal fluctuation could cause a DO deficit directly below the dam or 1.2 mg/l, the DEC ruled that a continuous flow of 210 cfs from June 1 to October 15 was necessary to counteract the DO deficit. This is precisely the type of “highly technical matter” to which the Shelburne Court recommended a high level of deference to agency expertise, and the court will not pre- sume to substitute its judgment for that of the agency. G. In addition to the express finding that a continuous flow of 210 cfs is required to restore and improve the Connecticut River as a fish habitat, the DEC also con- cluded that the specified continuous flow was required to safeguard the aesthetic appeal of the river to the numer- ous persons who use the river for recreation during the specified time period. The aesthetic determination forms a strong independent basis upon which to uphold the 210 efs continuous spill requirement during the specified time period, 15a H. The court finds substantial evidence in the record to support the DEC determination that a continuous flow of 210 cfs over the Gilman Dam during the specified time period is necessary to protect and improve the Con- necticut River as a resource. I. Plaintiffs seek a remand of the case to the DEC, asserting that they should receive the opportunity to present to DEC an alternative method of assuring suffi- cient DO downstream, specifically by continuous monitor- ing of downstream DO conditions during the specified time period and spillage of additional water when there is a measurable downstream DO deficit. Remand re quests such as that sought by plaintiffs is governed by the recent Vermont Supreme Court case of Jn re Maple Tree Place. Vt.L.W. ——. No. 90-354 (May 17, 1991). Maple Tree Place stands for the proposition that trial courts have the inherent power to order a remand to an administrative agency where the interests of justice so require. Slip op. at pp. 5, 10. Our Supreme Court cited with approval what the Court characterized as a “com- mon sense approach to remand” as set forth by the Wash- ington State Supreme Court in State ex rel Gunstone v. Washington State Highway Commission, 434 P.2d. 734, 735 (1967). Maple Tree Place, slip op. at p. 6. A re- mand is to be used as a “safety valve,” to be used where the agency “. . . may have acted upon incomplete or in- adequate information: or may have failed to give ade- quate consideration to an alternative route...” Id. J. The court finds that the record before the DEC is bare of any formal presentation by plaintiffs of their proposed management plan despite knowledge as early as 1983 that DO deficits existed downstream of the dam. See Findings of Fact 8 and 12 (the 1983 and 1985 Met- calf & Eddy studies); see also Finding of Fact 7 (the DEC informed plaintiffs in conjunction with the 1985 replacement of a turbine that DO levels would be an issue Es ASN NSE AS ee 16a during the relicensing process). The record is clear that it was not until after plaintiffs realized that the DEC was serious about imposing a continuous spill require- ment that plaintiffs agreed that their management plan would accomplish the same goals as the continuous spill requirement. Plaintiffs were never prevented from proposing their plan during the pendency of the application; the interest of justice therefore do not require a remand solely to afford plaintiffs a second opportunity to fulfill their obli- gation to provide an adequate record. Cf. Goshey v. Morey, 149 Vt. 98, 97 (1987); Estate of Emilio St. Pierre, 146 Vt. 421, 424 (1985) (construing analogous V.R.C.P. 60(b) (6) for the proposition that the interests of justice do not require relief from judgment where a party has made a deliberate litigation choice); compare Maple Tree Place, slip op. at 2 (plaintiffs asserted that they were misled into not presenting a plan for phased development by the actions of the agency; no such mis- leading during the pendency of the application is as- serted by plaintiffs in the case at bar). The court rules _ that Maple Tree Place does not support a remand for additional consideration of a plan which was not sub- mitted to the DEC until after the application process was closed and the continuous flow requirement set in place. K. Moreover, the court finds that remand would serve no useful purpose because the management plan as pro- posed by plaintiffs has already been found flawed by an agency with considerable expertise in the area of hydro- power management, the Federal Energy Regulatory Commission (“FERC”). In a formal Environmental As- sessment for Hydropower Licence, Gilman Hydroelectric Project, dated April 4, 1990, FERC approved of the con- tinuous spill requirement and rejected plaintiffs’ proposal, stating: 17a The [210 cfs spill flow] proposed by the VANR uses spill flow at the dam, an easily gaged and monitored parameter, to meet specific future DO goals down- stream of the project. The applicant’s proposed water quality management plan, which depends on an unproven predictive water quality model, would be difficult to monitor and enforce for compliance with the goal of maintaining DO at the sag point. Id. at p. 18 (emphasis added). The court sees no reason to doubt FERC’s expertise in this area, finds its conclu- sions to be supportable, and accepts as fact FERC’s nega- tive scientific assessment of plaintiffs’ proposal. See Shelburne, 154 Vt. at 605, 607. L. Additionally, in informal discussions between the DEC and plaintiffs which have occurred since the con- tinuous spill requirement was placed on plaintiffs’ per- mit, the DEC has also disapproved of the management proposal as being unworkable in light of present day technology and violative of the water quality standards. Remand to DEC would therefore more than likely cause unnecessary expense and delay and would result in the issuance of a permit with the same conditions as are attached to the current permit. M. Finally, there is no reason to believe that plain- tiffs’ management plan would serve the e2 sthetic and recreational goals which will be enhanced by the June 1 to October 15 continuous flow requirement. CONCLUSION AND ORDER The decision of the DEC requiring flow of 210 cfs over the Gilman Dam between June 1 and October 15 is sup- ported by substantial evidence and is AFFIRMED. A Maple Tree Place remand is inappropriate because plain- tiffs had full opportunity to present their alternative management proposal to the DEC prior to the issuance of the conditional permit and failed to do so. Moreover, aaa rile 18a plaintiff’s management proposal has already been form- ally rejected by FERC and informally rejected by DEC as insufficient to protect the Connecticut River in light of current technology. Plaintiffs’ request for remand is DENIED. Dated at Chelsea, Vermont, this 2nd day of Oct. 1991. /s/ Alan W. Cheever Hon. ALAN W. CHEEVER Superior Court Judge 19a APPENDIX C WATER QUALITY CERTIFICATION (P.L. 92-500) IN THE MATTER OF: GEORGIA-PACIFIC CORPORATION GILMAN, VERMONT 05904 Application for the Gilman Project The Water Quality Division of the Vermont Depart- ment of Environmental Conservation (the Department) has reviewed the water quality certification application filed for Georgia-Pacific Corporation ‘the applicant) by letter dated August 2, 1988. The Department finds: 1. The Gilman Project, an existing hydroelectric sta- tion on the Connecticut River, has entered the Federal Energy Regulatory Commission relicens- ing process. The present license expires December 31, 1990. 2. The project is located at the Georgia-Pacific Cor- poration Whitefield Division paper plant at Gil- man village in the Town of Lunenburg. The dam was constructed about 1900 and is a low timber crib and concrete structure. 3. The powerhouse is integral with the dam and lo- cated on the west side of the river, partly in Ver- mont and partly in New Hampshire. It contains four units with a total plant capacity of 4850 kw. 4. The dam, which is about 319 feet long with a maximum height of 38 feet, is 21 miles below the breached Northumberland Dam and 11 miles above the Moore Reservoir Dam. Five feet of flashboards eee ee 20a on Gilman Dam bring the normal pond to eleva- tion 833.3’ NGVD. The approximate tailwater elevation is 809.0’ NGVD, which corresponds to the Moore Reservoir full pool elevation. Gilman Dam creates an impoundment that extends 2.9 miles upstream to a point just above the Johns River. The surface area and gross volume are 130 acres and 705 acre-feet, respectively. . The project is described as run-of-river with a “usable (net) storage capacity [that] is consid- ered to be negligible’ (page A-10 of the FERC application, which was filed as supporting docu- mentation for the certification request). “Outflow [equals] inflow on an instantaneous basis” (page A-2 of the FERC application). The hydraulic ca- pacities of the four turbines are 1250 cfs, 600 cfs, 500 cfs and 500 cfs, for a total of 2850 cfs. The total capacity is close to the mean river flow of 2915 cfs. The 1250 cfs unit was installed as a replacement for an older unit in 1985-1986. It is automatically operated while the other units are manual. A crest gate installed in 1979 is used to help maintain the pond level at the top of the boards at inflows up to project capacity and to re- duce the incidence of flashboard failure, which oc- curs at surcharges in excess of 1.5 feet. The pow- erhouse can generate down to 130 cfs without cycling. . The average operating level of Moore Reservoir during the months of July and August is 805.2’ NGVD. At this level, the reservoir extends to Cushman Brook, which is on the new Hampshire side about one mile below Gilman Dam. . The Connecticut River is Class B waters from Groveton to Gilman Dam and Class C from Gilman to the Lunenburg town line. A critical dissolved oxygen problem occasionally exists in the river at 10. 2la certain times of the year as a result of pollutant loading and reduced reaeration potential caused by impounded waters and reduced spillage at dams due to hydroelectric operation. The project is in a water quality limited segment. The river is designated as a cold water fish habi- tat, which sets the dissolved oxygen standard at a minimum of 6 mg/] or 70% saturation (75% for New Hampshire) unless a higher standard is de- termined to be necessary for reaches critical for spawning or nursery. Section 1-03 of the Ver- mont Water Quality Standards imposes a higher level of protection by outlining the public good criteria to be met in cases where a project may degrade water quality where existing water quality generally exceeds minimum standards. . In the project area, the river receives treated wastewater discharges from the municipalities of Groveton, Lancaster, Northumberland and Lunen- burg and from the paper mills at Gilman and Groveton (James River Paper Company). Ac- cording to the application, untreated sanitary wastes enters the Johns River at the Village of Whitefield, N.H. Metcalf & Eddy, Inc. modeled water quality con- ditions in the Connecticut from the Upper Am- monoosuc to Gilman in 1983 for E.P.A. The model indicated that substandard conditions would prevail for a substantial portion of the study reach under critical low flows and design wastewater discharges. The applicant contracted with Aquatec, Inc. to per- form an intensive 48-hour dissolved oxygen sam- pling program that included stations from just upstream of the Johns River to a point about 1% mile downstream of the dam (within the summer Po 11. 22a operating pool of Moore Reservoir). The study was conducted August 12-14, 1985. Flows were estimated at 800 cfs, or about twice the 7Q10 of 373 cfs. An effort was made to quantify the po- tential benefits of reaeration at the dam. During the first half of the study, downstream samples were collected with no water being spilled at the dam. During the last 24 hours, 100 cfs was re- leased over the crest gate discharging at 833.3’ NGVD above the sill elevation of 812.1’ NGVD. All samples collected on the main stem were above 6 mg/l dissolved oxygen. The Johns River ex- hibited lower dissolved oxygen levels down to 5.2 mg/l. Releases over the crest gate gained from this point source of reaeration from 0.4 mg/l] to 0.8 mg/1 of dissolved oxygen over the levels meas- ured in the tailrace discharge. Dissolved oxygen levels also generally increased in the free-flowing river reach between the two sampling stations fur- thest down the study reach below the dam. The sampling period 800 cfs does not represent conditions under which violations of dissolved oxygen standards would be expected. Under a contract with the applicant, Metcalf & Eddy, Inc. modeled reaeration of flows over Gil- man Dam and the upstream dissolved oxygen con- ditions with the new discharge permit limits for the Groveton paper mill. Conidtions were modeled at 800 cfs and 7Q10, with and without a spillage of 100 cfs. At 7Q10, upstream dissolved oxygen levels reached 5.2 mg/l (3.6 mg/l deficit from saturation at 22.5 C) at the dam and at 800 cfs, 6.05 mg/l. Spillage of 100 cfs mixed with the unaerated turbine discharge produced a mixed dis- solved oxygen directly below the dam of 6.3 mg/] at 7Q10 and 6.9 mg/1 at 800 cfs. Ih eit iat DS nal sire Sa ath i Sells i aie inn ia teas alles” aie NNN Sot Oct eh Ra lt es he et a eee 28a No attempt was made to determine the mixed dis- solved oxygen concentrations necessary at differ- ent river discharges in order to assure that the downstream dissolved oxygen sag remains above standards. Without adequate spillage and conse- quent elevated dissolved oxygen levels, substand- ard conditions would occur in the downstream reach to Moore Reservior. For example, at 7Q10 flows and the project operating without spillage, the substandard condition on the upstream side of the dam (5.2 mg/l) would be released through the turbine, additional wasteload would be added at Gilman, and the dissolved oxygen levels would con- tinue to decline. 12. The applicant’s FERC application indicates no changes to their present mode of operation; how- ever, the applicant has proposed to spill 130 cfs under circumstances during the period July 15- September 15 where inflow is below 500 cfs and measured dissolved oxygen levels downstream fall below 6.2 mg/1. 13. The project’s capability to operate at a broad range of flows from mean flow down to 130 cfs, which is below the 7Q10 value of 373 cfs, does not provide for reaeration over the dam at these flows. The dissolved oxygen deficit reduction caused by spillage reaeration is important in this water quality limited segment. Run-of-river operation does not in and of itself assure standards will be met. 14. During June, 1989 and in cooperation with Klein- schmidt Associates, the applicant’s engineering consultant, the Department performed a screening model analysis of the reach from Gilman Dam to Moore Reservoir to estimate the spillage necessary to assure maintenance of dissolved oxygen above Vermont’s minimum standards. At 7Q10 flows 15. 24a of 373 cfs, 210 cfs must be spilled to create a mixed dissolved oxygen level of 7.4 mg/1 directly below the dam (6.2 mg/l assumed upstream of dam). The resulting dissolved oxygen sag curve downstream would decline to 6.2 mg/l (70% sat- uration at 22 C), including the effect of the dis- charge of Georgia-Pacific’s permitted waste load of 3150 lb./day UOD combined with a dissolved oxygen flux caused by algal respiration and photo- synthesis. The model indicates that dissolved oxygen levels would drop below minimum standards to less than 60% saturation at the sag under a no-spill oper- ating condition, assuming 7Q10 flows and waste discharges at design. The project can operate down to 130 cfs; dissolved oxygen levels during periods of flow less than 7Q10 would be even more severely depressed. Under flow conditions higher than 7Q10, the increase in dilution of pollutant loadings combined with a spillage of 210 cfs will assure that standards are met downstream. Vermont manages the Connecticut River as a cold water fish habitat. Resident species include rain- bow, brook and brown trout as well as several warm water species including smallmouth bass, perch, bullhead, and pickerel. Vermont is also participating in a cooperative program with sev- eral other states and federal agencies to restore Atlantic salmon and shad to the Connecticut River Basin. Present plans include construction of trap facili- ties at Ryegate Dam and transporting salmon up- stream for access to spawning habitat. Between Gilman Dam and Canaan Dam, approximately 9% of the nursery habitat for the Connecticut is be- lieved to exist. The applicant would be expected 16. 25a to participate in the cost of effecting the final up- stream passage plan. Safe downstream passage of the salmon is also critical to the success of the program. Reduction f both turbine and trashrack impingement mor- tality and provision of conveyance flows over or through the dam are important elements of down- stream passage plans. An alternative of using trap-and-truck facilities to accommodate down- stream passage is also being considered. The applicant has developed conceptual designs for downstream passage facilities with the U.S. Fish & Wildlife Service. The plan consists of an angled intake guidance system, a bell-mouthed in- take and a bypass conduit. A flow of 30 cfs would be used to operate the system. The applicant pro- poses in the license application to institute these measures when warranted by planned stocking of salmon upstream of Gilman. No use of the Upper Connecticut River is being made at this time. It should be noted that hatchery produced salmon may be placed upstream of Gilman Dam to use the available spawning and nursery habitat before upstream passage facilities are constructed. Operation as a strictly run-of-the-river project with no artificial flow regulation and no impound- ment fluctuations will prevent the aquatic habitat degredation associated with a cycling type of oper- ation. By letter dated October 3, 1988, the N.H. Fish and Game Department recommended a license article requiring an instantaneous minimum stream flow of 757 cfs. The operation as proposed should assure that this standard is met. . The applicant proposes to improve the canoe port- age route and the existing boat launch near the Johns River. Both of these facilities are on the A. 18. 19. 20. 26a New Hampshire side. The Agency of Natural Re- sources finds that recreational use demands on the Connecticut are continuing to increase and that additional amentities to further enhance recrea- tional use will be sought in the future. Spillage of 210 cfs for protection of downstream water quality during the period June 1 through October 15 will also serve to restore to a degree the aesthetics of this river reach. This is particu- larly important during the high public recreational use period. The State of New Hampshire certified this project under Section 401 on October 27, 1988, conditional on submittal of erosion control plans (although no construction is proposed at this time). By letter dated July 24, 1989, the applicant filed a report with the Department through John R. Ponsetto, Esq. The report defines the water qual- ity modeling runs performed to date, including re- cent Qual-2e modeling done using basically the same parameter values used before. No additional field data has been collected to refine the modeling attempts. CONDITIONS In certifying that there is a reasonable assurance that project activities will be conducted in a manner that will not violate applicable water quality standards, the De- partment of Environmental Conservation imposes the following conditions: The project shall be operated in a strict run-of- the-river mode where instantaneous flows below the tailrace are maintained equivalent to instan- taneous inflows to the impoundment. The pond level shall be maintained at or within six inches of the top of the flashboards at all times except 27a where circumstances beyond the control of the ap- plicant occur, such as the loss of flashboards. Under such unusual circumstances, a minimum instan- taneous flow of 757 cfs, or instantaneous project inflow, if less, shall be maintained below the tail- race until normal operations are restored. There shall be no impoundment cycling for generation. A minimum instantaneous flow of 210 cfs shall be spilled at the dam during the period June 1 through October 15 to protect downstream water quality. When the project is not operating, all inflows shall be spilled at the dam. The applicant shall submit a complete description, hydraulic design calculations, and specifications for the operational procedures and measures to be used to meet this condition. The filing shall be made within six months of the date of this certification and shall be subject to Departmental approval. All necessary modifications shall be instituted within one year of the date of this certification. B. The impoundment shall not be drawn down for maintenance purposes without prior written ap- proval of the Department. C. Downstream fish passage facilities, as approved by the Vermont Department of Fish and Wildlife and the U.S. Fish and Wildlife Service, shall be con- structed within one year of a request made by those agencies and operated following a schedule deter- mined by the agencies. Flows needed to operate the bypass facility shall be in addition to those spillage flows required in Condition A for water quality. The final plans and approval letters shall be filed with the Department for the record prior to con- struction of these facilities. Erosion and sedi- ment control and water management plans for the construction of these facilities shall be filed with 28a the Department for approval. Construction shall not proceed without approval of these plans. D. Provision of upstream passage facilities, which may consist of participation in the construction and operation of a trap-and-truck facility at a down- stream site, shall follow a schedule determined appropriate by the Vermont Department of Fish and Wildlife. Erosion and sediment control and water management plans for the construction of these facilities, if located at Gilman Dam, shall be filed with the Department for approval. Construc- tion shall not proceed without approval of these plans. Plans for a facility at Gilman Dam are subject to the approval of the Vermont Department of Fish and Wildlife, and, in such case, the approval letter and design drawings must be filed with the Department for the record. E. Debris associated with project operation, including trashrack debris, shall be disposed of properly. F, Any desilting of the dam impoundment shall be done in accordance with the Agency of Natural Resources Desilting Policy, a copy of which is attached. The Department shall be contacted prior to any desilting activity. G. Any significant changes, including project opera- tion, shall be submitted to the Department for prior review and written approval. Dated at Waterbury, Vermont this 28th day of July, 1989. /s/ Timothy J. Burke TIMOTHY BURKE Commissioner Department of Environmental Conservation TB:JRC/vid RE eS OT 29a APPENDIX D STATUTES INVOLVED A. RELEVANT PROVISIONS OF THE CLEAN WATER ACT, ALSO KNOWN AS THE FEDERAL WATER POLLUTION CONTROL ACT 1. Section 301 of the Clean Water Act, also known as the Federal Water Pollution Control Act, as codified at 33 U.S.C. § 1311, provides: $1311. Effluent limitations (a) Illegality of pollutant discharges except in com- pliance with law Except as in compliance with this section and sec- tions 1312, 1316, 13817, 13828, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. (b) Timetable for achievement of objectives In order to carry out the objective of this chapter there shall be achieved— (1) (A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 1814(b) of this title, or (ii) in the case of a discharge into a publicly owned treatment works which meets the requirements of subparagraph (B) of this paragraph, which shall require compliance with any applicable pretreatment requirements and any requirements under section 1317 of this title; and 30a (B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 1288 of this title prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limita- tions based upon secondary treatment as defined by the Administrator pursuant to section 1314 (d) (1) of this title; or, (C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or re- quired to implement any applicable water quality standard established pursuant to this chapter. (2) (A) for pollutants identified in subpara- graphs (C), (D), and (F) of this paragraph, effluent limitations for categories and classes of point sources, other than publicly owned treat- ment works, which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with reg- ulations issued by the Administrator pursuant to section 1314(b)(2) of this title, which such effluent limitations shall require the elimination of discharges of all pollutants if the Adminis- trator finds, on the basis of information available to him (including information developed pur- suant to section 1325 of this title), that such elimination is technologically and economically achievable for a category or class of point sources 3la | as determined in accordance with regulations : issued by the Administrator pursuant to section 1314(b) (2) of this title, or (ii) in the case of the introduction of a pollutant into a publicly owned treatment works which meets the require- ments of subparagraph (B) of this paragraph, ' shall require compliance with any applicable pre- treatment requirements and any other require- ment under section 1317 of this title; | (B) Repealed. Pub. L. 97-117, §21(b), Dee. | 29, 1981, 95 Stat. 1632. (C) with respect to all toxic pollutants re- ferred to in table 1 of the Committee Print Numbered 95-30 of the Committee on Public Works and Transportation of the House of Rep- resentatives compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 1314 (b) of this title, and in no case later than March 31, 1989; (D) for all toxic pollutants listed under para- graph (1) of subsection (a) of section 1317 of this title which are not referred to in subpara- graph (C) of this paragraph compliance with effluent limitations in accordance with subpara- graph (A) of this paragraph as expeditiously as practicable, but in no case later than three years after the date such limitations are promulgated under section 1314(b) of this title, and in no case later than March 31, 1989; (E) as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 1314 32a (b) of this title, and in no case later than March 31, 1989, compliance with effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which in the case of pollutants identified pursuant to sec- tion 1814(a) (4) of this title shall require appli- cation of the best conventional pollutant control technology as determined in accordance with reg- ulations issued by the Administrator pursuant to section 1314(b) (4) of this title; and (F) for all pollutants (other than those sub- ject to subparagraphs (C), (D), or (E) of this paragraph) compliance with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as practicable but in no case later than 3 years after the date such limitations are established, and in no case later than March 31, 1989. (3) (A) for effluent limitations under para- graph (1) (A) (i) of this subsection promulgated after January 1, 1982, and requiring a level of control substantially greater or based on funda- mentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as prac- ticable but in no case later than three years after the date such limitations are promulgated under section 1314(b) of this title, and in no case later than March 31, 1989; and (B) for any effluent limitation in accordance with paragraph (1) (A) (i), (2) (A) (i), or (2) (E) of this subsection established only on the basis of section 1342(a) (1) of this title in a per- mit issued after February 4, 1987, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established, and in no case later than March 31, 1989. aE ee uni heiieni Tay ee en ee det BE.) Shrew ae — th a IL th 0 al Ai ta i INN Si a a ih ie 33a (c) Modification of timetable The Administrator may modify the requirements of subsection (b) (2) (A) of this section with respect to any point source for which a permit application is filed after July 1, 1977, upon a showing by the owner or operator of such point source satisfactory to the Administrator that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants. (d) Review and revision of effluent limitations Any effluent limitation required by paragraph (2) of subsection (b) of this section shall be reviewed at least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph. (e) All point discharge source application of effluent limitations Effluent limitations established pursuant to this section or section 1312 of this title shall be applied to all point sources of discharge of pollutants in ac- cordance with the provisions of this chapter. (f) Ilegality of discharge of radiological, chemical or biological warfare agents, high-level radio- active waste, or medical waste Notwithstanding any other provisions of this chap- ter it shall be unlawful to discharge any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste, into the navigable waters. 34a (g) Modifications for certain nonconventional pol- lutants (1) General authority The Administrator, with the concurrence of the State, may modify the requirements of sub- section (b) (2) (A) of this section with respect to the discharge from any point source of am- monia, chlorine, color, iron, and total phenols (4AAP) (when determined by the Administra- tor to be a pollutant covered by subsection (b) (2) (F) of this section) and any other pollutant which the Administrator lists under paragraph (4) of this subsection. ast ania ee hi | (2) Requirements for granting modifications A modification under this subsection shall be granted only upon a showing by the owner or operator of a point source satisfactory to the Ad- ministrator that— (A) such modified requirements will re- sult at a minimum in compliance with the requirements of subsection (b)(1)(A) or (C) of this section, whichever is applicable; (B) such modified requirements will not result in any additional requirements on any other point or nonpoint source; and ‘ yer ro (C) such modification will not interfere with the attainment or maintenance of that water quality which shall assure protection of public water supplies, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recre- ational activities, in and on the water and such modification will not result in the dis- charge of pollutants in quantities which may : (3) 35a reasonably be anticipated to pose an unac- ceptable risk to human health or the environ- ment because of bioaccumulation, persistency in the environment, acute toxicity, chronic toxicity (including carcinogenicity, muta- genicity or teratogenicity), or synergistic propensities. Limitation on authority to apply for subsec- tion (c) modification If an owner or operator of a point source applies for a modification under this subsection with respect to the discharge of any pollutant, such owner or operator shall be eligible to apply for modification under subsection (c) of this sec- tion with respect to such pollutant only during the same time period as he is eligible to apply for a modification under this subsection. (4) Procedures for listing additional pollutants (A) General authority Upon petition of any person, the Adminis- trator may add any pollutant to the list of pollutants for which modification under this section is authorized (except for pollutants identified pursuant to section 1814(a) (4) of this title, toxic pollutants subject to section 1317(a) of this title, and the thermal com- ponent of discharges) in accordance with the provisions of this paragraph. (B) Requirements for listing (i) Sufficient information The person petitioning for listing of an additional pollutant under this sub- section shall submit to the Administra- tor sufficient information to make th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1796%3A1. Public record. Not legal advice.