Opposition Brief — North Carolina v. Federal Energy Regulatory Commission

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

STATE OF NORTH CAROLINA, PETITIONER

FEDERAL ENERGY REGULATORY COMMISSION

ROANOKE RIVER BASIN ASSOCIATION, PETITIONER

Vv.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

FEDERAL ENERGY REGULATORY COMMISSION

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

DOUGLAS W. SMITH

General Counsel

JAY L. WITKIN

Solicitor

JOHN H. CONWAY

Deputy Solicitor

EDWARD S. GELDERMANN

Attorney

Federal Energy Regulatory Commission

Washington, D.C. 20426

QUESTION PRESENTED

Whether the Federal Energy Regulatory Commis-

sion correctly determined, in approving an amend-

ment to an existing hydropower license, that no water

quality certification by the State of North Carolina

was required under Section 401(a)(1) of the Clean

Water Act, 33 U.S.C. 1341(a)(1), because the amend-

ment would not “result in any discharge into” North

Carolina waters.

(I)

TABLE OF CONTENTS

Page

SERA ao il 1

ESS SAR os tern neon eo ec 2

Statutory provisions involved .............ccccsccceecsescseccceeeeees 2

ESET ETRE aE ae A meee 3

MNS tocibiehncehitbsiibceoidbiilanciptbektaianacteceis gets io 11

a 17

TABLE OF AUTHORITIES

Cases:

American Rivers, Inc. v. FERC, 129 F.3d 99 (2d

oe. SERENE SUES SRE AT? Re AR ee 13

Arkansas v. Oklahoma, 503 U.S. 91 (1992) ............. 16

City of Fredericksburg v. FERC, 876 F.2d 1109

2 OREPERE TTR) Fe SP Oe ee a: eee 12

International Paper Co. v. Ouellette, 479 U.S. 481

| ORERSSE COST TEA WIRE CARNEROS eae eS 16

North Carolina v. Hudson:

665 F. Supp. 428 (E.D.N.C. 1987) .o....eccceececeeeeeee 4-5

731 F. Supp. 1261 (E.D.N.C. 1990) .0......cceeeeeeeeeees 5

North Carolina v. Ronald H. Brown,

No. 94-1569 (TFH) (D.D.C. Sept. 27, 1995) ............. 5

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

of Ecology, 511 U.S. 700 (1994) ..........cccccccsseeeseeeee 10, 15

Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58

(4th Cir. 1991), cert. denied, 502 U.S. 1092 (1992) ... 4

Statutes and regulations:

Clean Water Act of 1977, 33 U.S.C. 1251 et seq.:

SSE a ee are 3

EEG 3

ESE et ae 3

EAE ESE neces 3

De ce a Ea passim

§ 401(a)(1), 33 U.S.C. 1341(a)(1) cc. ecececcceeees. 2, 4, 5, 6 :

$ 401(a)(2), 33 U.S.C. 1841(a)(2) .............cccccccccccoeeees 16 i

(IIT)

Statutes and regulations—Continued: Page

§ 401(d), 33 U.S.C. 1841(d) ..............seeeeeees 2-3, 10, 14, 15

Coastal Zone Management Act of 1972, 16 U.S.C. 1451

OE OOD. sanrashinndatadatiniinbentintiaannnavsiessnipanantnctinianynigevehs 5

DE UK, SED. déptveisenscsceoecrentsiansincoscisoces 5

Federal Power Act, 16 U.S.C. 791a et seq.:

S DEER), Fee Sire: See ED ee havictornnktarenscenttnasetotencseses 3

BO SF Re alates dada behcicttens snddlicsonsnseicabiniceasionans 7

36 Fa TED srncktnsegcisesvicsareibvenaneenintnsiionl 7, 9, 15

40 C.F.R.:

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-836

STATE OF NORTH CAROLINA, PETITIONER

FEDERAL ENERGY REGULATORY COMMISSION

No. 97-839

ROANOKE RIVER BASIN ASSOCIATION, PETITIONER

Vv.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

FEDERAL ENERGY REGULATORY COMMISSION

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

46a’) is reported at 112 F.8d 1175. The court’s earlier

order remanding the record to FERC, and the amend-

ment to that order, appear at Pet. App. 49a-54a.

1 Unless otherwise indicated, references to “Pet. App.”

refer to the Appendix in No. 97-836.

(1)

The opinions of the Federal Energy Regulatory

Commission (Pet. App. 55a-129a) are reported at 72

F.E.R.C. ¢ 61,075, 72 F.E.R.C. 9 61,283, and 177

F.E.R.C. ¥ 61,138.

JURISDICTION

The judgment of the court of appeals (Pet. App. 47a-

48a) was entered on May 9, 1997. A petition for

rehearing was denied on August 21, 1997. Pet. App.

130a-13la. The petition for a writ of certiorari was

filed on November 19, 1997. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 401(a)(1) of the Clean Water Act (CWA), 33

U.S.C. 1341(a)(1), provides, in pertinent part:

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 * * * [the

effluent limitations and water quality require-

ments of the CWA]. No license or permit shall

be granted until the certification required by

this section has been obtained or has been waived

* * *. No license or permit shall be granted if

certification has been denied by the State.

Section 401(d) of the CWA, 33 U.S.C. 1341(d), provides:

Any certification provided under this section —

shall set forth any effluent limitations and other

limitations, and monitoring requirements neces-

en ee

sary to assure that any applicant for a Federal

license or permit will comply with any applicable

effluent limitations and other limitations [under

33 U.S.C. 1811, 1312, 1816, and 1317], and with any

other appropriate requirement of State law set

forth in such certification, and shall become a

condition on any Federal license or permit subject

to the provisions of this section.

STATEMENT

1. Sections 4(e) and 10(a) of the Federal Power Act

(FPA), 16 U.S.C. 797(e), 803(a)(1), authorize the Fed-

eral Energy Regulatory Commission (FERC) to

issue licenses for the construction and operation of

hydroelectric projects, subject to the condition that

the project licensed “shall be such as in the judgment

of the Commission will be best adapted to a compre-

hensive plan for improving or Jeveloping a waterway

or waterways.” 16 U.S.C. 803(a)(1). In addition,

Section 6 of the FPA, 16 U.S.C. 799, provides that

“[eJach such license shall be conditioned upon accep-

tance by the licensee of all of the terms and conditions

of the [FPA], and such further conditions, if any, as

the Commission shall prescribe.” Licenses may then

be altered only upon mutual agreement between the

licensee and the Commission. [bid.

2. In 1983, the City of Virginia Beach, Virginia,

applied for a dredge-and-fill permit from the U.S.

2 Section 3(11) of the FPA, 16 U.S.C. 796(11), defines

“project” as the “complete unit of improvement or develop-

ment, consisting of a power house, all water conduits, all dams

and appurtenant works and structures * * * and all water-

rights, rights-of-way, ditches, dams, reservoirs * * * the use

and occupancy of which are necessary or appropriate in the

maintenance and operation of such unit.”

Army Corps of Engineers under Section 404 of the

Clean Water Act, 33 U.S.C. 1344 to construct a new

water supply facility that would withdraw up to 60

million gallons per day (mgd) from Pea Hill Creek.

The Creek is a tributary of the Roanoke River, a

navigable waterway that traverses both Virginia and

North Carolina.’ Specifically, the City proposed to

install a water intake structure on the Virginia side

of the Lake Gaston hydropower project licensed by

FERC to the Virginia Electric and Power Company

(VEPCO), and to construct a 76-mile pipeline, en-

tirely in Virginia, to transport the water to treat-

ment facilities near the City of Norfolk, Virginia.‘

Shortly thereafter, the Commonwealth of Virginia

issued a water quality certification for the project in

connection with VEPCO’s dredge-and-fill permit ap-

plication to the Corps of Engineers, pursuant to

Section 401(a)(1) of the Clean Water Act, 33 U.S.C.

1341(a)(1). Subsequently, in 1984, the Corps of Engi-

neers determined to issue the requested dredge-and-

fill permit, over the opposition of the State of North

Carolina and the Roanoke River Basin Association

(RRBA).° Pet. App. 3a-4a.

3 The Roanoke River basin “extends approximately 400

miles from its headwaters in the Blue Ridge mountains of

Virginia to its mouth in the Albemarle Sound of North

Carolina. Approximately 64 percent of the basin lies in Vir-

ginia, and the rest in North Carolina.” Environmental Impact

Statement (EIS) at 3-1 (C.A. Deferred Appendix (C.A. Def.

App.) 3210).

4 Virginia Beach has no potable water supply of its own, and

must purchase all of its water from the adjacent city of

Norfolk. Pet. App. 89a.

5 The history of the Corps of Engineers proceedings is set

out in North Carolina v. Hudson, 665 F.Supp. 428 (E.D.N.C.

——

a U

In 1991, VEPCO filed an application with FERC, on

behalf of Virginia Beach, to amend its hydropower

license to permit the City to build the water intake

structure within the licensed project boundaries,

and to withdraw the water from a point inside those

boundaries on the Virginia side of that project.®

North Carolina and RRBA intervened before FERC

to oppose the issuance of the license amendment.’

Pet. App. 4a-6a.

In July 1995, the Commission issued a detailed envi-

ronmental impact statement (EIS) finding that Vir-

ginia Beach would need at least 60 mgd of water by

the year 2030 to alleviate severe water shortages;

that the proposed water supply project would ensure

Virginia Beach a safe, reliable, and relatively inex-

pensive source of potable water; and that the City’s

1987), North Carolina v. Hudson, 731 F.Supp. 1261 (E.D.N.C.

1990), and Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58

(4th Cir. 1991), cert. denied, 502 U.S. 1092 (1992).

markets in both Virginia and North Carolina. VEPCO has

taken no position in this dispute. R. 27203-27204.

? That same year, North Carolina also lodged an objection to

the project before the Secretary of Commerce under the

Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. 1451

et seq. As aresult, FERC suspended the license amendment

proceeding pursuant to 16 U.S.C. 1456(c)(3)(A). On May 19,

1994, the Secretary of Commerce issued an order rejecting

North Carolina’s CZMA objections on the merits, and that

order was sustained on judicial review. North Carolina v.

Ronald H. Brown, No. 94-1569 (TFH) (D.D.C. Sept. 27, 1995).

Eleven days after the Secretary overruled its CZMA objec-

tions, North Carolina supplemented its opposition to the license

amendment before FERC by asserting for the first time a right

to certify the water supply project under CWA Section

401(a)(1), 33 U.S.C. 1341(a)(1).

proposal would be the best alternative to meet its

water needs. EIS at xviii, xxii (C.A. Def. App. 3140,

3144). Furthermore, after evaluating the proposal’s

effects on both the areas immediately surrounding

the intake structure and the downstream reaches of

the Roanoke River in North Carolina, the EIS found

that the environmental impact of the City’s water

project would be minimal. EIS at xix-xxii (C.A. Def.

App. 3141-3144).

Relying on the EIS, the Commission issued an

order that same month granting a license amendment

to allow the City’s project to proceed. Pet. App. 55a-

87a. In that order, the Commission rejected the con-

tention by petitioners that the Commission should

not amend the license unless VEPCO first obtained a

water quality certification from the State of North

Carolina pursuant to Section 401(a)(1) of the Clean

Water Act, 33 U.S.C. 1341(a)(1). Under that Section,

an applicant for a federal license or permit “which

may result in any discharge into the navigable

waters” must provide a certification from the State

“in which the discharge originates or will originate”

that the discharge will comply with the effluent

limitations and water quality standards of the Clean

Water Act, including state water quality standards.

The Commission assumed, without deciding, that that

provision applied to this case, because water is

discharged from the dam itself and the amount of

water released at the dam would be reduced by

VEPCO’s withdrawals from the Lake. The Com-

mission determined, however, that the license

amendment did not require certification by North

Carolina. The Commission based that determination

on FERC regulations that do not require

certification of activities covered by a license

amendment where, as it found to be the case here, the

activities would not have a material adverse impact on

the water quality in the discharge from the hydro-

power project. Pet. App. 67a-68a.° Moreover, in a

subsequent order denying rehearing (id. at 88a-106a),

the Commission concluded that North Carolina had

waived any claim that the project requires a certifica-

tion by North Carolina under Section 401(a)(1), since

it had participated fully in the Corps’ permit proceed-

ings without ever asserting before the Corps of Engi-

neers a right to certify the project. Jd. at 96a-98a.

North Carolina and RRBA then sought judicial re-

view of those orders under 16 U.S.C. 8251.

8. After initial briefing and oral argument, the

court of appeals in September 1996 remanded the

matter to the Commission, directing that the

Commission—instead of merely assuming the applica-

tion of Section 401(a) in the circumstances of this

case — should decide “whether § 401(a)(1) applies to

require a certification from North Carolina.” Pet.

App. 52a.

4. In a supplemental order on remand, entered

November 7, 1996 (Pet. App. 107a-129a), FERC con-

cluded that Section 401(a)(1) did not apply to this case,

for two reasons.

First, the Commission noted that the license

amendment sought in this case involves the removal

of water from Lake Gaston. In the Commission’s

view, “Congress intended the word ‘discharge’ [in

8 Section 4.38(f)(7)(iii) of the Commission’s Regulations, 18

C.F.R. 4.38 (f)(7)(iii), provides that an application to amend an

existing hydropower project license must include a new re-

quest for water quality certification “if the amendment would

have a material adverse impact on the water quality in the

discharge from the project.”

Section 401(a)(1)] to include only substances that are

added to the water in some manner, and did not intend

to include the withdrawal of the water itself within

the scope of that term.” Pet. App. 115a.

Second, the Commission concluded, “as an alterna-

tive basis for decision,” that, “even if the word ‘dis-

charge’ is ultimately determined to be broad enough

to include the removal of water from the water, * * *

the activity involved in enabling such removal occurs

entirely in (i.e., for CWA purposes ‘originates’ in)

Virginia, and not in North Carolina.” Pet. App. 118a.

For that reason, too, the Commission concluded,

certification by North Carolina was not required.

In reaching its conclusions, the Commission ex-

pressly distinguished the case before it, involving an

amendment to a license that authorizes water with-

drawal from an existing licensed project, from pro-

ceedings “in which the Commission issues an original

license to construct and operate a new hydroelectric

project” or proceedings “for a new license (relicense)

of the project after the original license has expired.”

Pet. App. 118a-119a. In cases involving original li-

censes or relicenses, the Commission explained,

there would be a discharge at “the place * * * where

the water flows from the project into the river,” and

Section 401(a)(1) thus would require certification by

the State where the discharge occurs. Jd. at 119a.

5. After the remand and after further briefing and

argument, a divided panel of the court of appeals

affirmed the Commission’s conclusion that North

Carolina did not have the right to certify the water

supply project in connection with the license amend-

ment proceedings.’ Pet. App. la-46a. In the court’s

view, the plain meaning of the term “discharge,” as

used in Section 401(a)(1), “contemplates the addition,

not the withdrawal, of a substance or substances.” /d.

at 17a. Because the evidence of record showed that

the operation of the pipeline project would not result

in the addition of anything to the water flowing

® The United States submitted a brief as amicus curiae at

that time. The brief noted that Section 401(a)(1) “does not

explicitly deal with amendments to licenses for activities

previously subject to certification under that provision, but the

structure of the statute suggests that it nonetheless contem-

plates that changes in a license that adversely affect the water

quality of the original discharge must be examined because the

amended license still authorizes the original discharge.” U.S.

Br. 8. That is so, the brief continued, because “an amendment

permitting an activity that does not result in a direct discharge

in North Carolina could still result in a change in the original

discharge and have a adverse effect [o]n water quality in

fill.” Ibid. The brief acknowledged that FERC had filled the

gap by enacting its regulation requiring certification where the

license amendment would cause a “material adverse impact

on the water quality n the discharge from the project.” 18

C.F.R.4.38(f(7Miii). Accordingly, the brief concluded, “North

Carolina’s 401(a)(1) rghts turn on whether the amendment

affects the original discharge in North Carolina.”

;

through the dam turbines, the court sustained the

Commission’s determination that neither the with-

drawal of water from Lake Gaston nor the reduction

in the volume of water passing through the dam

turbines in North Carolina would “result{] in a dis-

charge” for purposes of that section. Jbid.

In the court of appeals’ view, its holding in this case

was not inconsistent with this Court’s decision in

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

of Ecology, 511 U.S. 700 (1994). The court stated that

PUD No. 1 presented the question whether a mini-

mum stream flow condition imposed by the State of

Washington on a dam license under Section 401(d) of

the Clean Water Act, 33 U.S.C. 1341(d), was unlawful

because it was “unrelated to the[] specific dis-

charges” at issue. Pet. App. 19a (quoting 511 U.S. at

711). The court understood that the holding in PUD

No. 1 was that Section 401(d) “authorizes a state to

place ‘additional conditions on the activity as a whole

once the threshold condition, the existence of a

discharge, is satisfied.’” Jd. at 19a-20a (quoting 511

U.S. at 712). The court therefore found PUD No. 1

“inapposite” here, because this Court in PUD No. 1

“never attempted to define a discharge and in no way

indicated that an alteration of a discharge was suffi-

cient to invoke the certification requirement of Sec-

tion 401(a)(1).” Id. at 20a.

Judge Wald dissented. Pet. App. 32a-46a. Referring

to the majority’s assumption “that the flow of water

through the power project’s turbines in North Caro-

lina is a § 401(a)(1) ‘discharge,” she reasoned that “if

a State must consent before a new discharge is intro-

duced into its waters, then a change in that discharge

must require a new consent.” Jd. at 34a-35a. Judge

Wald recognized that a project modification “that will

have no effect on an existing discharge, or that will

have at most a de minimis effect on the discharge,

may perhaps be granted without requiring a new

certification from the State in which the discharge

originates.” Id. at 35a. But she rejected the major-

ity’s view that the only license modifications that

trigger the certification right are those representing

an “addition * * * of a substance or substances” to

the discharge. Jd. at 36a. In her view, the language

and structure of the Clean Water Act support her

conclusion, and the majority’s contrary approach

“threatens a congressional policy” that “States were

to be put in charge of making and enforcing the cru-

cial judgments surrounding water quality within

their borders.” Jd. at 39a.”

7. On August 21, 1997, the court of appeals rejected

petitioners’ suggestions of rehearing en banc. Judges

Wald and Tatel noted that they would grant rehearing

en banc. Pet. App. 132a-133a.

ARGUMENT

The decision of the court of appeals does not

conflict with any decision of this Court or otherwise

raise an issue warranting further review. The peti-

tions for a writ of certiorari should therefore be

denied.

the court of appeals rejected the Commission’s view that North

Carolina had waived its Section 401(a)(1) certification rights,

Pet. App. 9a-13a, and held that the findings underlying

FERC’s decision to grant the amendment were supported by

substantial evidence and were not arbitrary and capricious, id.

at 20a-3la. Judge Wald dissented in part from the majority’s

holding that FERC’s decision was not arbitrary and capricious.

Id. at 42a-46a.

1. Contrary to petitioners’ contentions (NC Pet.

17; RRBA Pet. 11), the decision of the court of appeals

does not conflict with the Fourth Circuit’s decision in

City of Fredericksburg v. FERC, 876 F.2d 1109 (1989),

a case involving an application for a new hydropower

project at a pre-existing dam. In that case, the li-

cense applicants had sent a letter to the appropriate

state agency seeking a Section 401(a)(1) certification,

but, because they had failed to file the forms that the

state agency required, the applicants had not obtained

the Section 401(a)(1) certification. FERC nonethe-

less granted the license, on the ground that the appli-

cant’s letter had constituted “a request for certifica-

tion” under Section 401(a)(1) and FERC’s own regula-

tions, and that the State had failed to act on that

request within the one-year period specified in

Section 401(a)(1). 876 F.2d at 1111.

The Fourth Circuit held in City of Fredericksburg

that FERC had erred in waiving the certification

requirement in those circumstances, because the

applicant “never made a ‘request’ for certification

within the meaning of FERC’s regulations.” 876 F.2d

at 1111. The court noted that it “rest[ed] [its] holding

solely on [its] reading of the FERC regulations.” /d.

at n.l. The court’s opinion does not indicate that

there was any dispute between the parties regard-

ing whether the project might result in a “dis-

charge” under Section 401(a)(1). The opinion in City

of Fredericksburg therefore does not mention or dis-

cuss the term “discharge” and reaches no conclusion

with respect to its meaning or application—the only

issues in this case. Accordingly, there is no conflict

between the decision in this case and City of

Fredericksburg."

2. North Carolina argues (Pet. 13) that “[t]here

are more than one thousand hydroelectric dams in the

United States, affecting untold numbers of rivers and

tributaries,” and that, if the decision of the court of

appeals 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.e.,

regulation of the flow of water over hydroelectric

project dams.” Contrary to petitioner’s contentions,

the decision of the court of appeals can be expected to

have a very limited impact on state certification

authority under Section 401(a)(1).

Initially, the Commission’s holding will have little

impact on FERC-licensed hydropower projects that

are located entirely within a single State, which, as

RRBA concedes (Pet. 18), constitute by far the most

common type of hydropower project. In such cases,

Section 401(a)(1) requires state certification of fed-

eral license amendments that authorize the construc-

tion of water withdrawal facilities within their bor-

ders. The construction of water intake structures of

4 Petitioner North Carolina asserts (Pet. 17 n.9) that the

Second Circuit’s recent decision in American Rivers, Inc. v.

FERC, 129 F.3d 99 (1997), stands for the proposition that even

after a discharge is reviewed and certified under Section 401(a)

of the Clean Water Act, a certifying State has an interest that

must be protected if the circumstances surrounding the dis-

charge change. American Rivers is inapposite, however, as the

existence of a discharge resulting from the hydropower pro-

jects involved in that case was not questioned. Rather, the

essence of the Second Circuit’s holding was that the Commis-

sion lacks authority to review the legality of conditions on

water quality certification imposed by States pursuant to CWA

Section 401(a)(1) and (d). 129 F.3d at 100.

the type involved here necessarily adds substances to

the water as facilities are installed in the riverbed,

and such construction activities invariably create

disturbances of riverbed sediment that may result in

a discharge of dredge-and-fill material. See Pet. App.

118a-119a. Indeed, in this particular case, the City of

Virginia Beach was required to obtain a dredge-and-

fill permit from the Corps of Engineers under Section

404 of the Clean Water Act, 33 U.S.C. 1344. At that

time, the State of Virginia exercised its Section

401(a)(1) certification authority with regard to the

effects of both construction and operation of the

water intake facility. See C.A. Def. App. 27-31. Had

this case involved a water intake facility for a project

wholly located within the State of North Carolina,

therefore, North Carolina would have had a full

opportunity—even under the court of appeals’

decision—to exercise its Section 401(a)(1) certifica-

tion authority before the applicant could obtain the

necessary Section 404 permit from the Corps of

Engineers.

In addition, the decision will have little effect on

licenses for new hydropower projects or for which

existing licenses have expired. In those cases, opera-

tion of the project results in a discharge—the flow of

water back into the waterway after leaving the

project impoundment or bypass facilities—that could

not lawfully exist without the license. Therefore,

such new licenses require certification from the

State in which water flows back into the river. Pet.

App. 119a. Indeed, in this very case, .the license

applicant will require a Section 401(a)(1) certification

from North Carolina when VEPCO’s current license

expires in 2001. See C.A. Def. App. 3935. At that

time, North Carolina may prescribe flow-related con-

ditions on the overall hydropower project pursuant to

Section 401(d), 33 U.S.C. 1841(d), which permits a

State to include water quality related conditions—

including minimum flow requirements—in its Sec-

tion 401(a)(1) certification. See PUD No.1, 511 U.S.

at 711-712.” Such conditions become a condition on

the Federal license, 33 U.S.C. 1341(d), and may not be

altered by a subsequent federal license amendment,

absent the consent of the certifying agency, the EPA,

and the federal licensing agency. See 40 C.F.R.

121.2(b). North Carolina and other States may use

such minimum flow conditions to protect themselves

against subsequent federal license amendments au-

thorizing water withdrawals in an upstream State.”

The decision of the court of appeals will also have

no effect on license amendment proceedings in which

FERC’s own regulations require a state water qual-

ity certification. Under 18 C.F.R. 4.38(f)(7)(iii), “any

application to amend an existing license * * *

requires a new request for water quality certification

* * * if the amendment would have a material

adverse impact on the water quality in the discharge

from the project.” In this case, the Commission found

that the withdrawal of water would not have such a

“material adverse impact” on the discharge from the

% The court of appeals’ decision will also have little effect

on hydropower projects that operate under licenses in which

the State certification already imposes a minimum flow condi-

tion under Section 401(d).

This case does not present any question regarding the

resolution of a conflict that could develop between a State’s

action under Section 401(a) or (d) of the Clean Water Act and

an incompatible action taken in a licensing proceeding by

FERC under its Federal Power Act authority. See PUD No.

1, 511 U.S. at 722-723.

project in North Carolina, and it accordingly did not

require the applicant to obtain certification under the

regulation. But in cases in which a State’s water

quality is at risk—where a license amendment would

have a “material adverse impact” on a project’s

discharge—the FERC regulation, if validly applied,

cf. Pet. 14a-15a, continues to grant the State where

the discharge occurs a certification right. See note

9, supra.

Finally, petitioners overlook the protections that

continue to be afforded the States by Section 401(a)(2)

of the Clean Water Act, 33 U.S.C. 1841(a)(2). That

provision expressly confers upon “affected” States a

non-certifying role in the licensing process, to the

extent that a licensed activity is subject to Section

401(a)(1) certification by an upstream State, as it was

in this case. See Arkansas v. Oklahoma, 503 U.S. 91,

103 (1992); International Paper Co. v. Ouellette, 479

U.S. 481, 490-491 (1987). Indeed, North Carolina itself

explicitly invoked Section 401(a)(2) in 1983 during

the proceedings before the Corps of Engineers on

VEPCO’s application for Section 404 permit, when it

petitioned the Environmental Protection Agency to

act on its behalf to stop the project. See C.A. Def.

App. 62."

8. RRBA argues (Pet. 12 n.7) that the decision

below may be read to deny States the right under

Section 401(a)(1) to review new National Pollutant

Discharge Elimination System (NPDES) permits or

NPDES permit modifications under Section 402 of

4 North Carolina abandoned its efforts under Section

401(a)(2) after EPA informed the State that it had “found no

technical rationale which would cause this agency to object to

the proposed project.” C.A. Def. App. 59.

the Clean Water Act, 33 U.S.C. 1342, for activities

that would result in a volume reduction of preexisting

discharges. That contention is mistaken. EPA regu-

lations require Section 401(a)(1) certifications—and

thereby permit the imposition of Section 401(d)

minimum flow conditions—for permitting of ongoing

activities and amendments to such permits. 40 C.F.R.

122.62, 124.53, 124.55(a). Any change in the authorized

discharge of pollutants that violates any condition of

an NPDES permit is subject to enforcement by EPA

and the States. See 33 U.S.C. 1819.”

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DOUGLAS W. SMITH

General Counsel

JAY L. WITKIN

Solicitor

JOHN H. CONWAY

Deputy Solicitor

EDWARD S. GELDERMANN

Attorney

Federal Energy Regulatory Commission

JANUARY 1998

1 RRBA contends (RBBA Pet. 8, 10) that the diminished

dam releases resulting from the water supply project may ad-

versely affect water quality in North Carolina waters by

lowering dissolved oxygen, causing water temperature to rise,

threatening the propagation of aquatic species, and causing salt

water intrusion in the lower Roanoke River. Those same

claims have already been evaluated and rejected as unsup-

ported in exhaustive opinions or reports by the Corps of Engi-

neers, the Secretary of Commerce, and the Commission.

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