# Petition for Writ of Certiorari — North Carolina v. Federal Energy Regulatory Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1108

## Text

; ST ions WV
@& No. @% 836 NOV 191997

OPNCE OF THE GLERK

IN THE
Supreme Court of the Gnited States

OCTOBER TERM, 1997

STATE OF NORTH CAROLINA,

Petitioner,
Vv.

FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: BERNARD NASH
(Counsel of Record)
MICHAEL F. EASLEY FREDERICK M. LOWTHER
Attorney General of the BETH L. WEBB
State of North Carolina DICKSTEIN SHAPIRO MORIN
ALAN S. HIRSCH & OSHINSKY LLP
Special Deputy 2101 L Street, N.W.
Attorney General Washington, D.C. 20037
MARC D. BERNSTEIN (202) 785-9700
Associate Attorney
General Attorneys for Petitioner
NORTH CAROLINA State of North Carolina
DEPARTMENT OF JUSTICE
P.O. Box 629 November 19, 1997
Raleigh, NC 27602
(919) 716-6000

PRESS OF BYRON S. ADAMS @ WASHINGTON, D.C. @ 1-800-347-8208 >

(i)

QUESTION PRESENTED

Section 401(a)(1) of the Clean Water Act requires a
State water quality certification as a condition precedent to a
federal license authorizing an activity that may result in a
discharge into that State's waters.

Is a license amendment authorizing an activity that alters
an existing discharge, by reducing the flow of water over a
hydroelectric dam, excused from such State certification
requirement merely because the alteration does not involve the
addition of a substance to the water?

(ii)

LIST OF PARTIES AND AMICI
PETITIONERS:

State of North Carolina
Roanoke River Basin Association

RESPONDENT:

Federal Energy Regulatory Commission
INTERVENOR:

City of Virginia Beach, Virginia
AMICI:

The United States

Alabama, Alaska, Arizona, Arkansas,
California, Connecticut, Delaware, Florida,
Hawaii, Idaho, Illinois, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Maine,
Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Montana,
Nevada, New Hampshire, New Mexico, New
York, North Dakota, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South Dakota,
Texas, Utah, Vermont, Washington, West
Virginia, and Wyoming (in support of
Petitioner North Carolina)

Virginia (in support of Respondent Federal
Energy Regulatory Commission )

American Public Power Association
Edison Electric Institute
National Hydropower Association

(iii)

TABLE OF CONTENTS
Page
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LIST OF PARTIES AND AMICI ..........4.... pes eas ii
pv fe Flap yt | yi. Reece
Teens isdn Gin nwa eens dees 6 ]
STATEMENT OF JURISDICTION ................... 2
STATUTORY PROVISIONS INVOLVED .............. 2
RPM MUEUE GPE REM GASE ccc cece ccececcececess 3
co PART ee 3
Section 401(a)(1) and the Clean Water Act .............. 5
Tine (Oat OF Appedls DOCION ... 2... occ cece edecne 7
a. pe a 7
b. RS A a 9
THE WRIT SHOULD BE GRANTED BECAUSE
THE COURT OF APPEALS HAS ERRONEOUSLY
DECIDED AN IMPORTANT QUESTION OF
FEDERAL LAW THAT HAS NOT BEEN, BUT
SHOULD BE, DECIDED BY THIS COURT ........... 12
ag con cee sarsatsassecscons 17
APPENDIX
North Carolina v. FERC, 112 F.3d 1175
GR es a eee la

Judgment (D.C. Cir. May 9,1997) .............. 47a

(iv)

eee cor, | 1 ean ee ee

Order Amending Remand Of The Record
Goce 2 eS Pr TP ore rey Teer er ere

Virginia Electric & Power Co., Project
No. 2009-003, 72 FERC { 61,075 (1995) .........

Virginia Electric & Power Co., Project
No. 2009-008, 72 FERC ¥ 61,283 (1995) .........

Virginia Electric & Power Co., Project
No. 2009-010, 77 FERC § 61,138 (1996) ........

Order Denying Petitions For Rehearing
(arbes a ME COED Soe ce cas ek batvaeee

Order Denying Suggestions For Rehearing
In Bane (D.C. Gir. Aug. 21, 1997) ...........65.

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Page
Amici Briefs
Brief of Amztci Curiae States (Dec. 9, 1996) ...... 197a
Addendum to Brief of Amici Curiae States
Ss SD vad oekke ae ee ee ee 224a

Amici Curiae Brief in Support of Suggestion of
State of North Carolina for Rehearing In Banc of
penbes (hunte 28, 8P87 ) ind oe eas 229a

TABLE OF AUTHORITIES

Page
Cases.

American Rivers, Inc. v. FERC,

Nos. 1169, 1170, 1171, 1172,

Dockets 96-41 10L, 96-4112CON,

96-4116CON, 96-4118CON, 1997

WL 691043 (2d Cir. Nov. 5, 1997) ............. 7, haar

City of Fredericksburg, Va. v. FERC,
O76 Fak EA Ce BPE vino ce ctvesesverceesens 17

District of Columbia v. Schramm,
GO Fie Be eee Bs dn 6 kee s ecg eeeseecdscees 7

Keating v. FERC, 927 F.2d 616
(EAs. GAR, BOOED (66d ie veeescesieseeeuasespiaseiaa 7,13

PUD No. 1 of Jefferson County v.
Washington Dep't of Ecology, 511 U.S. 700
(RPWEP 6004s ckececdawrwnieneneatabeennesins 7, 14, 15, 16

Roosevelt Campobello Int'l Park Comm'n v.
United States EPA, 684 F.2d 1041
(Set CAt. SUSE kcucnnen days ece lisesi vuadeiateenus 7

Administrative Orders.

Virginia Electric @ Power Co., Project
No. 2009-003, 72 FERC § 61,075 (1995) ............ 2,4

Virginia Electric @ Power Co., Project
No. 2009-008, 72 FERC § 61,283 (1995) ............ 2,4

(vii)

Page
Virginia Electric & Power Co., Project
No. 2009-010, 77 FERC § 61,138 (1996) ............ 2,5
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(viii)

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In The
SUPREME COURT OF THE UNITED STATES

October Term, 1997

No. 97-
State of North Carolina,
Petitioner,
v.
Federal Energy Regulatory Commission,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The State of North Carolina petitions for a writ of
certiorari to review the May 9, 1997 decision of the United
States Court of Appeals for the District of Columbia Circuit
holding that the State water quality certification requirement of
Section 401(a)(1) of the Clean Water Act, 33 U.S.C.
§ 1341(a)(1) ("Section 401(a)(1)"), applies only to activities
that would add a substance to the State's waters, and not to
activities that would otherwise affect those waters by altering an
existing discharge.

OPINIONS BELOW

The opinion of the Court of Appeals, published on
May 9, 1997 and reported at 112 F.3d 1175, together with the
Court's judgment entered the same day, is reproduced in the
Appendix at la-48a. The Court's prior orders remanding the

)

2

case to the Federal Energy Regulatory Commission ("FERC"),
dated September11, 1996 and September 19, 1996, are
reproduced at 49a-54a. The Court's August 21, 1997 orders
denying the petitions for rehearing and the Suggestions for
Rehearing In Banc are reproduced at 130a-133a. The FERC
orders under review are reported at Virginia Electric @ Power
Co., Project No. 2009-003, 72 FERC ¥ 61,075 (1995); Virginia
Electric @ Power Co., Project No. 2009-008, 72 FERC { 61,283
(1995); and Virginia Electric Ct Power Co., Project
No. 2009-010, 77 FERC § 61,138 (1996), and are reproduced
at 55a-129a.

STATEMENT OF JURISDICTION

This Court's jurisdiction to review the May9, 1997
decision of the Court of Appeals is invoked pursuant to
28 U.S.C. § 1254(1). This Petition is filed within 90 days of
the Court's August 21, 1997 orders denying rehearing as
required by Supreme Court Rule 13.

STATUTORY PROVISIONS INVOLVED

Section 401(a)(1) of the Clean Water Act, 33 U.S.C.
§ 1341(a)(1), provides, in pertinent part, that

Any applicant for a Federal license or permit to
conduct any activity including, but not limited
to, the construction or operation of facilities,
which may result in any discharge into the
navigable waters, shall provide the licensing or
permitting agency a certification from the State
in which the discharge originates or will
originate . . . that any such discharge will comply
with [inter alia, State water quality standards
promulgated under 33 U.S.C. § 1313].... No
license or permit shall be granted until the
certification required by this section has been
obtained or has been waived .... No license or

EN. At inh OD aca. i Ra ny Daler n etn cts eae i nid PT Sais ee

a ai Aire

3

permit shall be granted if certification has been
denied by the State ....

Section 401 (33 U.S.C. § 1341), and the other sections of the
Clean Water Act referred to therein (viz., 33 U.S.C. §§ 1311,
1312, 1313, 1316 and 1317), are reproduced in full in the
Appendix at 140a-189a.

The statutory definitions of the terms "discharge,"
"discharge of a pollutant" and "discharge of pollutants,"
"pollutant" and "pollution" (33 U.S.C. §§ 1362(16), (12), (6)
and (19)) are reproduced in full in the Appendix at 190a-193a.

STATEMENT OF THE CASE
Procedural History

Petitioner, the State of North Carolina, challenges two
orders of FERC that amend an existing hydroelectric project
license. The license is held by Virginia Electric and Power
Company ("VEPCO") and authorizes the operation of the
Roanoke Rapids and Gaston Hydropower Project (the "Hydro
Project"), located on the Roanoke River.’ The Hydro Project
dam creates a large body of water, Lake Gaston, which is
located primarily in North Carolina and partly in Virginia. The
dam and power generating station are located entirely within
North Carolina. The water discharging over the dam and
through the turbines into the Roanoke River is agreed by all
parties, including FERC, to be a "discharge" that "originates"
in North Carolina, as those terms are used in Section 401(a)(1)
of the Clean Water Act.

The FERC license amendment permits the City of
Virginia Beach, Virginia to build an intake structure 300 yards

‘ The license was originally issued to VEPCO by the Federal Power
Commission, FERC's predecessor agency, pursuant to Section 4(¢) of the
Federal Power Act (16 U.S.C. § 797(e) (134a-135a)) on January 24, 1951, as
amended on March 25, 1960 (23 FPC 537 (1960)), for a term of 50 years
(10 FPC 1 (1951)), and expires on January 31, 2001.

4

north of the North Carolina border in a small tributary of Lake
Gaston (in Virginia); reverse the tributary's flow; draw up to
60 million gallons of water per day ("mgd") upstream from the
main body of the lake (in North Carolina); and transport the
water across two river basins through a 76-mile pipeline and
various municipal systems for use mainly in Virginia Beach,
Virginia (the "Pipeline Project"). The water withdrawn will
equal almost ten percent of the river's flow during periods of
low flow, when water quality is at greatest risk. Thus, there will
be a major alteration in the discharge from the Hydro Project in
North Carolina.

VEPCO did not seek or obtain a Section 401(a)(1)
certification from North Carolina that the altered discharge
would comply with its water quality standards. FERC
nonetheless issued the license amendment, over North
Carolina's objection. FERC acknowledged that the discharge at
the dam would be altered, but held that the Pipeline Project
itself did not result in a "discharge" in North Carolina because
it did not add any substance to the water flowing over the dam.
FERC therefore held that the certification open of
Section 401(a)(1) did not apply.’

? FERC initially rendered a decision which "assum[ed], azguendo" that the
amendment was subject to Section 401(a)({1), but held that North Carolina's
Section 401(a)(1) rights were nullified by a FERC regulation (18 C.F.R
§ 4.38(f)(7)(iii) (194a-196a)) limiting State certification rights to
circumstances where FERC finds a "material adverse impact" on water quality
in the discharge. Virginia Elec. Power Co., Project No. 2009-003, 72 FERC
{ 61,075, at 61,393-94 (67a-68a) (1995), reb'g denied, Virginia Elec. &
Power Co., Project No. 2009-008, 72 FERC { 61,283 (1995). After briefing
and oral argument, the panel hearing the case remanded it to FERC for
determination whether the license amendment was in fact subject to
Section 401(a)(1). On remand, FERC found that the amendment was not
subject to Section 401(a)(1) because the alteration in the discharge did not

(Footnote continued)

5

North Carolina petitioned for review of the FERC
decision.? Forty States filed briefs amici curiae in support of
North Carolina's argument that FERC had no authority to issue
the license amendment without a Section 401(a)(1) certification
from North Carolina.* The Court of Appeals affirmed over a
dissent by Circuit Judge Wald, and rehearing was denied.

Section 401(a)(1) and the Clean Water Act

Congress' fundamental purpose in enacting the Clean
Water Act was to "recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and
eliminate pollution, [and] to plan the development and use . . .
of land and water resources." 33 U.S.C. § 1251(b) (137a).
Section 401(a)(1) of the Act requires that "[a]ny applicant for a
Federal license or permit to conduct any activity . . . which may
result in any discharge into the navigable waters, shall provide
the licensing or permitting agency a certification from the State
in which the discharge originates or will originate" stating that
the discharge "will comply with the applicable" Clean Water Act
and State water quality standards.°

(Footnote continued)
involve the addition of a substance to the water. Virginia Elec. & Power Co.,
Project No. 2009-010, 77 FERC { 61,138 (1996).
3 North Carolina invoked the jurisdiction of the Court of Appeals pursuant to
16 US.C. § 825Kb), which states that any party aggrieved by a FERC order
issued under the Federal Power Act may obtain a review.
* The States’ briefs are reproduced in the Appendix at 197a-263a.
5 "Discharge," its lesser included terms, "pollutant" and "pollution" are
defined as follows:

The term "discharge" when used without qualification

includes a discharge of a pollutant, and a discharge of

pollutants.
33 U.S.C. § 1362(16).

The term "discharge of a pollutant" and the term
(Footnote continued)

——————<—

6

This requirement of State certification is central to the
Clean Water Act. Through Section 401(a)(1), Congress
conferred upon the States -- not the federal government -- the
primary authority and responsibility to protect the quality of the
nation's waters:

The states remain, under the Clean Water Act,
the "prime bulwark in the effort to abate water
pollution," and Congress expressly empowered
them to impose and enforce water quality
standards that are more stringent than those
required by federal law. . . .

One of the primary mechanisms through
which the states may assert the broad authority
reserved to them is the certification requirement
set out in section 401 of the Act.... Through

(Footnote continued)
"discharge of pollutants" each means (A) any addition of
any pollutant to navigable waters from any point source, (B)
any addition of any pollutant to the waters of the
contiguous zone or the ocean from any point source other
than a vessel or other floating craft.

33 U.S.C. § 1362(12).
The term "pollutant" means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.

33 U.S.C. § 1362(6).

The term "pollution" means the man-made or man-induced

alteration of the chemical, physical, biological, and

radiological integrity of water.
33 U.S.C. § 1362(19).

7

this requirement, Congress intended that the
states would retain the power to block, for
environmental reasons, local water projects that
might otherwise win federal approval.

Keating v. FERC, 927F.2d 616, 622 (D.C. Cir. 1991)
(citations omitted).

Short of blocking a water project, a State may also
impose conditions that must be incorporated in the federal
license or permit. Section 401(d), 33 U.S.C. § 1341(d); PUD
No. 1 of Jefferson County v. Washington Dep't of Ecology,
511 U.S. 700, 707-08, 711-12 (1994); American Rivers, Inc.
p. FERC, Nos. 1169, 1170, 1171, 1172, Dockets 96-4110L,
96-4112CON, 96-4116CON, 96-4118CON, 1997 WL
691043 (2d Cir. Nov.5, 1997).° Thus, Section 401(a)(1)
embodies a principle of federalism established by Congress (see
District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C.
Cir. 1980)), and confers on the States authority which cannot
lawfully be abrogated by a federal court or agency.

The Court of Appeals Decision
a. The majority decision

The panel majority assumed arguendo what the parties
already agreed: that the flow of water through the Hydro
Project turbines in North Carolina is a statutory "discharge."
112 F.3d at 1187 (16a). The majority nonetheless held that
North Carolina had no Section 401(a)(1) rights with respect to
the Hydro Project license amendment authorizing the Pipeline
Project, because the Pipeline Project would not result in the
"addition" of a "substance" to the water. Id. at 1187-89
(16a-20a).

6 A State's exercise of its certification power is not reviewable by a federal

court or agency; review lies only in the courts or agencies of the State. Ey.,
American Rivers, 1997 WL 691043, at *8; Roosevelt Campobello Int'l Park
Comm'n v. United States EPA, 684 F.2d 1041, 1056 (1st Cir. 1982).

8

The majority's analysis relied upon the statutory
definition of "discharge," which states that "'discharge' when
used without qualification includes a discharge of a pollutant,
and a discharge of pollutants." Id. at 1187 (17a). The court
noted that these latter terms are defined by reference to the
"addition" of a "pollutant." Id. The court then concluded
that the general term "discharge" is limited by the definition's
"statement of inclusion":

[A]lthough the focus of the definitional section
is on the regulation of pollutants rather than the
general regulation of project discharges, the
nearest evidence we have of definitional intent
by Congress reflects, as might be expected, that
the word "discharge" contemplates the addition,
not the withdrawal, of a substance or substances.

On the evidence of record, the operation of
the Pipeline Project will not result in the
"addition" of anything to the waters of Lake
Gaston. ... A decrease in the volume of water
passing through the dam turbines cannot be
considered a "discharge"... .

Id. at 1187-88 (17a-18a) (footnote omitted).

The court went on to conclude that alteration of a
discharge that is "already in existence" cannot give rise to
Section 401(a)(1) nghts:

Stating that operation of the Pipeline Project
will "result in an altered discharge" is simply a
way of saying in legalese that operation of the
Pipeline Project will alter the discharge.
However, the existence of certification rights
under Section 401(a)(1) does not depend on
whether a discharge is "altered."
Section 401(a)(1) certification rights vest only if

9

an activity "may result in" a discharge... . The
word "alter" means to change something from
its previous state, WessTEeR's NEw INT'L
Dictionary 63 (3rd ed.1961) ("to cause to
become different"), implying that the thing
changed was already in existence. By contrast,
the word "result" implies causation. See id.
at 1937 ("arise as a consequence"). Obviously,
a subsequent event cannot be the cause of
; something that is already in existence.

Id. at 1188 (18a-19a).
b. The dissent

Circuit Judge Wald dissented, stating that the majority
opinion "ignores the language, structure, and purpose of th:
Act, and wrests away from North Carolina the very power to
make water quality judgments about its own waterways that
Congress expressly meant for that State alone to have."
112 F.3d at 1195 (33a).

The § 401 certification right is an essential
component of the Act's state-oriented regulatory
scheme. Obviously, how courts construe the
Act's language specifying those situations in
which States may wield this powerful weapon
can critically affect their ability to protect the
integrity of their waters in the way Congress
intended. Too stingy an interpretation of
§ 401(a)(1) will severely burden each State's
ability to implement the water quality program
mandated by the Act, and will frustrate
Congress' clear intent to institute a system under
which States carry both the responsibility of
setting their own water quality standards and a
corresponding power to protect those standards

10

from federally-licensed activities that threaten to
undermine them.

Id. (citation omitted).

The dissent finds the majority's conclusion "paradoxical"
in that

it appears that North Carolina will wield a
§ 401(a)(1) certification right in 2001,'7) when
the project's license will expire and VEPCO will
request a new license. Yet the majority reaches
the paradoxical conclusion that FERC may
approve this license amendment, which all
parties concede will alter the North Carolina
"discharge," without requiring any certification
from North Carolina.... Logically, if a State
must consent before a new discharge is
introduced into its waters, then a change in that
discharge must require a new consent.

Id. at 1195-96 (34a-35a) (citation omitted).

The dissent describes the majority's holding as a
"sweeping and arbitrary limitation on State certification rights"
which "badly distorts the definitions section of the Act, and
improperly usurps crucial judgments on water quality that
Congress reserved for the States into which the discharges
flow." Id. at 1196 (35a-36a). The dissent finds the majority's
statutory analysis fundamentally flawed in

its insistence that "nearfer]" evidence of
Congress' "definitional intent" as to what
constitutes a discharge can be found by looking
at the Act's definition of the phrase "discharge
of a pollutant" than by relying on the Act's own

” All parties agree that VEPCO must obtain North Carolina's certification in
order to obtain a new license in 2001, even if the new license does not

authorize any change in the discharge.

11

definition of the very term under discussion --
"discharge." The Act expressly states that the
term "'discharge’ when used without
qualification includes a discharge of a pollutant,
and a discharge of pollutants." 33 U.S.C.
§ 1362(16) (emphasis added). The only
inference I can discern from this clear expression
of nonexclusivity in the definition of "discharge"
is that it was meant to encompass a wider array
of interferences with the navigable waters than
would qualify as "discharges of pollutants."

Id. at 1196-97 (36a-37a).

The dissent also finds the majority's
"'substance-adding'" test to be fundamentally inconsistent with
the structure of the Act and its regulation of "pollution":

Section 304 of the Act "expressly recognizes
that water 'pollution' may result from ‘changes
in the movement, flow, or circulation of any
navigable waters . . . .'" PUD No. 1,
511 USS. at 719-20, 114 S.Ct. at 1913 (quoting
33 U.S.C. § 1314(f)). ...

: The majority's niggardly construction of the
term "discharge" threatens a congressional
policy permeating the general structure of the
Act .... When a federally-licensed activity
would "result in" a "discharge" into the State's
waters, the decision whether that interference
with the State's waters would be tolerated was to
belong solely to the State in which that
discharge originated, not to a federal agency or
to a federal court. . . . Interferences with the
integrity of a waterway need not take the
archetypal form of sludge spewing from an
outfall; other changes can be just as deadly to

12

fish and other wildlife as are toxic chemicals.
For example, alterations that cause _ the
temperature of the water in a discharge to rise,
or that rearrange the spatial distribution of
oxygen, sediment, or minerals in the
downstream water, could be catastrophic from
the perspective of water quality. Yet the effect of
this court's decision will be to bar States in
which altered discharges originate from acting to
protect their waters from such pernicious effects,
whenever the alteration does not "add" any
"substance or substances" to the water. I do not
believe Congress intended to give this court's
essentially ad hoc and inevitably inexpert
_judgments precedence over the expert
judgments of the States' water quality
authorities, in the making of such crucial
determinations.

Id. at 1196-98 (36a-40a) (citation omitted) (footnote omitted).

THE WRIT SHOULD BE GRANTED
BECAUSE THE COURT OF APPEALS HAS
ERRONEOUSLY DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW THAT HAS NOT
BEEN, BUT SHOULD BE, DECIDED BY THIS COURT

Water resource policy and water quality management are
among the most vital issues of our times. The Court of Appeals
decision fundamentally alters the balance of power between the
States and the federal government, contrary to an express
Congressional determination that the States -- not the federal!
government -- have primary responsibility for ensuring the
quality of water within their borders. Congress further
determined that both State and federally licensed projects must
meet the water quality standards adopted by the States, which
Congress expressly authorized to be more stringent than federal

13

standards. Section 401 is the mechanism through which a State
ensures that a federally licensed project meets that State's
standards. Keating, 927 F.2d at 622.

This broad scope of State authority under Section 401
was reaffirmed by the Second Circuit only two weeks ago in
American Rivers. American Rivers confirms that FERC may
not "second-guess" or "substitute its own judgment for that
of the certifying [State]." 1997 WL691043, at *9.
Acknowledging the "special expertise" of State certifying
agencies, the Second Circuit admonished that FERC " does not
possess a roving mandate to decide that substantive aspects " of
State water quality judgments may be ignored. Id. at *9-*10.

The decision below subordinates the primacy of State
water quality judgments to those of the federal government. If
the decision is allowed to stand, States will be stripped of their
ability to preserve water quality in one of the most critical areas
of environmental concern, i.¢., regulation of the flow of water
over hydroelectric project dams. Regulation of dams is critical
to preservation of our nation's rivers because dams change the
entire character of their host river systems. Changes to the
character of downstream flows (whether changes in quantty,
temperature, timing, velocity or oxygen content) pose
significant risks to water quality and thus to all environmental,
recreational and industrial river uses.

There are more than one thousand hydroelectric dams in
the United States, affecting untold numbers of rivers and
tributaries. The exceptional importance of this issue of State
authority, extending far beyond North Carolina, is shown by
the fact that forty other States have supported North Carolina's
assertion of Section 401(a)(1) rights in this case.

All parties agree that the water flowing over the Hydro
Project dam and into the Roanoke River is a statutory
"discharge" originating in North Carolina, and that the current
characteristics of that discharge will require approval by North

14

Carolina when VEPCO's project is relicensed. The question of
fundamental importance in this case is whether the preeminent
statutory power of the States to protect water quality at the time
of both licensing and relicensing of federal projects is suspended
in the period between those two events. The Court of Appeals
has held that it is, reaching the anomalous conclusion that the
States' power to protect their water quality through certification
continues only where the threat is from the "addition" of a
"substance."

The decision is wrong, because it both misinterprets the
statutory certification requirement and is fundamentally
inconsistent with PUD No.1. First, the Court of Appeals
musreads the statutory language by improperly equating the two
separately defined statutory terms "discharge" and "discharge of
pollutants." The statute expressly negates any such equation by
stating that "discharge" "includes" a "discharge of pollutants."
By requiring that a "discharge" "add" a substance simply
because "discharge of pollutants" requires an addition, the
majority denies the general term "discharge" any meaning of its
own.

Second, the decision below is inconsistent with this
Court's recognition in PUD No. J that a statutory "discharge"
does not require the addition of any substance to water. PUD
No. I is predicated on the premise that "the discharge of water
at the end of the tailrace after the water has been used to
generate electricity" was a statutory "discharge" subject to State
certification under Section 401l(a)(1). 511 U.S. at711l. In
stating this premise, this Court neither expressed nor implied,
nor left room for FERC to impose, any requirement that a
discharge must involve the "addition" of a "substance" to
water.

More fundamentally, this Court explicitly pointed out
that a reduction in water quantity has a water quality effect
which is also subject to State control:

15

[W]ater quantity is closely related to water
quality; a sufficient lowering of the water
quantity in a body of water could destroy all of
its designated uses, . . . . [T]here is recognition
in the Clean Water Act itself that reduced stream
flow, i.¢., diminishment of water quantity, can
constitute water pollution. First, the Act's
definition of poiiution as "the man-made or man
induced alteration of the chemical, physical,
biological, and radiological integrity of water"
encompasses the effects of reduced water
quantity... . Moreover, § 304 of the Act
expressly recognizes that water " pollution" may
result from "changes in the movement, flow, or
circulation of any navigable waters . . ., including
changes caused by the construction of dams."

Id. at 719-20 (citation omitted).

The majority's view that activities which result in "[a]
decrease in the volume of water" cannot be subject to State
certification (112 F.3d at 1188 (18a)) is inconsistent with this
Court's recognition in PUD No. 1 of the relationship between
water quantity and water quality. A reduction in water quantity
will increase the concentration of those substances that are
already in an existing discharge or in the body of water into
which the discharge flows.’ This is scientifically and practically
equivalent to adding substances to water. That is why States

* Although the instant case involves a single water withdrawal project, the
majority's decision would permit FERC to authorize any number of additional
withdrawals from the Hydro Project as well as any number of other
withdrawals from other hydroelectric dams, without regard to the effect on
water quality at and downstream of those dams. Host States would not have
Section 401(a)(1) rights with respect to any of the related license amendments.
It is that prospect that concerns North Carolina and the amici States as much
as the direct impact of the Pipeline Project.

16

commonly impose minimum flow requirements as conditions to
certification of hydroelectric projects, and why States are
concerned about activities (such as withdrawals) that impact the
quantity and flow of water. That is also why PUD No. 1
expressly holds that a State may condition a Section 401(a)(1)
certification for the discharge of water over a hydroelectric
project dam on the maintenance of State-specified minimum
flows.

The majority's conclusion is further undermined by the
statutory definition of "pollutant," which recognizes that
pollutants need not be "substances," and therefore that even a
"discharge of a pollutant" need not result in the addition of a
"substance" to the water. For example, "heat" -- which is a
condition, not a substance -- is defined as a "pollutant,"
because, as Judge Wald noted (112 F.3d at 1198 (39a-40a)),
raising the temperature of water can have the same deleterious
effects on water quality as the deposit of a harmful substance.

The majority's notion that an "altered discharge" cannot
trigger the certification requirement because a discharge "is
already in existence" (td. at 1188 (18a-19a)) is belied by the
statutory language. Section 401(a)(1) refers to "any discharge"
that "originates or will originate." While a discharge that "will
originate" clearly refers to a new discharge, a discharge that
"originates" in the State at the time of certification is equally
clearly a discharge that is already "in existence." Congress' use
of the phrase "amy discharge" further supports the conclusion
that altered discharges, as well as "new" discharges, are subject
to Section 401(a)(1) certification. Clearly, an “altered
discharge" may "result" from a newly authorized activity. As
both the Court of Appeals and FERC have recognized, that is
exactly what has happened in this case: new activities

17

authorized by the license amendment will result in an altered
discharge.”

The majority's failure to recognize _ that
Section 401(a)(1) applies to altered discharges places its
decision squarely in conflict with the result in Czty of
Fredericksburg, Va. v. FERC, 876 F.2d 1109 (4th Cir. 1989).
That case involved the construction of a powerhouse project at
an existing dam. The powerhouse project (which included
authorization to withdraw 1 mgd from the impoundment)
would alter the flow of water over the dam. That alteration
triggered a requirement of certification under Section 401(a)(1)
by the Commonwealth of Virginia. Because a FERC license
was issued in the absence of such a certification, the Fourth
Circuit reversed. Under the majority's decision here, Virginia's
certification would not have been required because the
discharge at the dam was " preexisting" and the powerhouse
project would not "add" a "substance" to the water.

CONCLUSION

The Court of Appeals has decided an important question
of federal law presenting an issue of critical importance to
management of this country's water resources in a manner
inconsistent with controlling precedent. If allowed to stand,

° As the Second Circuit just held, the Clean Water Act explicitly recognizes
that even after a discharge is reviewed and certified, a certifying State has an
interest which must be protected if the circumstances surrounding the
discharge change. American Rivers, 1997 WL 691043. Similarly,
Section 401(a)(3) of the Act permits a State that has issued a Section 401(a)(1)
certification for a federal construction permit nonetheless to block a federal
operating permit for the same discharge by revoking its certification on the
grounds that, inter alia, there are changes in the operation of the facility or in
the characteristics of the waters into which the discharge is made. In contrast,
the majority decision renders a State powerless to deal with fundamentally
changed circumstances that directly affect the quality of the water in and
downstream of the discharge.

18

the decision will fundamentally alter the Congressionally
mandated balance of power between the federal and State
governments, and thereby seriously jeopardize the ability of the
States to ensure the quality of the nation's waters. For these
reasons, the petition for a writ of certiorari should be granted.

November 19, 1997 Respectfully submitted,
Of Counsel: Bernard Nash
(Counsel of Record)
Michael F. Easley Frederick M. Lowther
Attorney General of the Beth L. Webb
State of North Carolina DICKSTEIN SHAPIRO
Alan S. Hirsch MORIN & OSHINSKY LLP
Special Deputy Attorney 2101 L Street, N.W.
General Washington, D.C. 20037
Marc D. Bernstein (202) 785-9700
Associate Attorney General
NORTH CAROLINA Attorneys for Petitioner
DEPARTMENT OF State of North Carolina
JUSTICE
P.O. Box 629

Raleigh, NC 27602
(919) 716-6000

TT I

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1757%3A1. Public record. Not legal advice.