Opposition Brief — North Carolina v. Federal Energy Regulatory Commission

Nos. 97-836 and 97-839

IN THE

Supreme Court of The United States

October Term, 1997

STATE OF NORTH CAROLINA,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

ROANOKE RIVER BASIN ASSOCIATION,

Petitioner,

Vv.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE CITY OF VIRGINIA BEACH, VIRGINIA IN

OPPOSITION TO PETITIONS FOR WRIT OF CERTIORARI

Leslie L. Lilley George A. Somerville

City Attorney (Counsel of Record)

William M. Macali Samuel M. Brock III

Deputy City Attorney Mays & Valentine, L.L.P.

City of Virginia Beach 1111 East Main Street

City Hall Building, Room 260 Post Office Box 1122

Municipal Center Richmond, Virginia 23218-1122

Virginia Beach, Virginia 23456 (804) 697-1291

(757) 427-4531 M. Scott Hart

Mays & Valentine, L.L.P.

4425 Corporation Lane, Suite 420

Virginia Beach, Virginia 23462

(757) 518-3204

Attorneys for Respondent City of Virginia Beach, Virginia

Balmar Legal Publishing Services, Washington, D.C., (202) 682-980

i

COUNTERSTATEMENT OF THE QUESTION

PRESENTED

Whether a withdrawal of water in one State, which causes a

reduction in the total amount of water that flows over a

downstream dam in another State, is a “discharge into the

navigable waters” that originates in the downstream State within

the meaning of Section 401(a)(1) of the Clean Water Act.

ce cee are

‘3

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF THE QUESTION

EEG ETN a OS Tn i

GET PUP EMEIEIE ETI, Shcescssccecsccesacisesacciscescseteresccseccsee ili

IE OE WIN GC PMIIE cic ccsccsceccsenoveccesessscesecsscessccees 2

EE CEE ee Ce Se 3

i i . cesesnensnenpetbensnne 5

Virginia Beach’s public water supply project ................. 6

Lake Gaston and the Roanoke River system .................. 7

EES a eee 11

This case presents no issues of national significance

warranting an exercise of this Court’s certiorari

Sa A eA 11

The Court of Appeals’ decision is not in conflict

TS EE 14

Virginia Beach’s water withdrawals will not result

in any discharge into the navigable waters within

the meaning of Section 401(a)(1) .....................0000- re

Any discharge resulting from Virginia Beach’s

project “originates” in Virginia, not North Carolina;

and therefore Virginia has certification authority

under Section 401(a)(1) and North Carolina is an

“affected” state under Section 401(a)(2) ...................0.. 20

North Carolina’s claim to Section 40! certification

authority is barred by the doctrines of res judicata

an nn TTT 22

NR asnicencilbksbbbbcbnensvonsshinticanecticheostnes 25

a emangntaianetnnnees A-1

ane Ee A-4

iii

TABLE OF AUTHORITIES

CASES Page

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

|, nL ao NTT ee Ce Name mEN I TA ET Fe ber 12

City of Fredericksburg v. FERC, 876 F.2d 1109 (19839) ...... 14

Commonwealth Electric, Inc., 43 F.E.R.C. (CCH) { 61,300

SUTURE sii hia sal ik arate aN 14

Exxon Corp. v. Fischer, 807 F.2d 842, amended, 817

Fede EE EE Tat: BUPUEE srcaecesstiiahitnpicinnceidisenenlinniiigiinn 23, 24

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

GUE E aera ieonsdh biveeabinvininadanicinunaenendammanin 13, 21, 22

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) ............ 5

Michigan v. Allen Park, 573 F. Supp. 1481 (..D. Mich.

REPUITD sctsssieniedonsniinseipiekiisnnatnbinsinanistdanadiiaiianmniiataiaubeinideséibennes vx

National Wildlife Federation v. FERC, 912 F.2d 1471

ieee MN TT sitisanscctsceiahcadetebsaeiibaatt Renasceadatscneiasainlaaaimniaiiiaii 22

North Carolina v. F.ERC, 112 F3d_ 1175

CE IIEE | sausestupcstinconamasecsidmeiiantnniaibdadldanasindits aiamieiniant 4, et passim

PUD No. | of Jefferson County v. Washington Department

of Ecology, 511 U.S. 700 (1994) 00.0... eeeee 12, 17-19, 21

Roanoke River Basin Association v. Hudson, 940 F.2d 58

(4th Cir. 1991) (Hudson III), cert. denied, 502 U.S.

Ed, | IE eon ne NY Oe ee ae ee 6, 10

Save Our Community v. U.S.E.P.A, 971 F.2d 1155 (Sth

CA, SI eecasnciniiticsnaistisesieiebtssianiinimittadiie illite Eh tensi he cans 16

Southwest Airlines Co. v. Texas Int’l Airlines, 546 F.2d

84 (Sth Cir.), cert. denied, 434 U.S. 382 (1977)................ 24

State of North Carolina v. Brown, 42 E.R.C. 1254

ERs I sintentsirnciessenconintennssnubinnmnpnbiiinnacelimndiial 6, 10

State of North Carolina v. City of Virginia Beach, 951

Fe ES PED scons cithcinsietcinniinamicnniianiianiniicaligannnied 6

State of North Carolina v. Hudson, 665 F. Supp. 428

SA. TOT) CRMIINS BP acvcdiscrsesoreinscersscesstsctansiniiens 5,9, 10

Denne Te

iV

State of North Carolina v. Hudson, 731 F. Supp. 1261

(E.D.N.C. 1990) (Hudson I]) ...+.+-+-eeseeoreseseseeerserenensncees 5-6

Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) .23-24

United States v. Utah Construction & Mining Co., 384

U.S. 394 (1966) ......-cscescsssssscsescersssensecsceceseesnennsnacncsnsesensnees 23

Virginia Electric and Power Co., 77 FER.C. (CCH)

J 61,138 (1996) ......--sccssseccsnssecsenseessnsesennecesennnscessnssenecsnnssssens 4-5, 15

STATUTES AND REGULATIONS

16 U.S.C. § 1456(3)(A) ......esecseseeceseeescesersncnsnesseessnsnnsensnnsnaserss 6

33 U.S.C. § 1341 ou... cceescceseeseseneeseerenensenennssnneseees 3, et passim

33 U.S.C. § 1344 ounceccccsccsccscsscseresseensneeensrsscensnnsnecsnesenensensens 3,5

33 U.S.C. § 1362(12) ........cececceseecescceccesersneecscsserenessrsensensnnens 15

15 C_F.R. § 930.121(C) ....-.-sceccescersescsereesceseneersnsensnesensensscenens 23

33 C_E.R. § 323.2 (A)(iii) .....---ceeceeceeccerereeneesnnenenenenensens 16-17

OTHER AUTHORITIES

58 Fed. Reg. 45008 (1993) .......-----esessssssesensessessensnenenesees 16, 17

18 Wright, Miller & Cooper, Federal Practice and

Procedure: Jurisdiction § 4458 (1981)...........----ssesseeeeeees 24

Webster’s New Int’! Dictionary 644 (3d ed. | 15

Nos. 97-836 and 97-839

IN THE

Supreme Court of The United States

October Term, 1997

STATE OF NORTH CAROLINA,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

ROANOKE RIVER BASIN ASSOCIATION,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE CITY OF VIRGINIA BEACH, VIRGINIA IN

OPPOSITION TO PETITIONS FOR WRIT OF CERTIORARI

The City of Virginia Beach, Virginia, intervenor below,

submits this brief in opposition to petitions for writ of

certiorari filed by the State of North Carolina and the

Roanoke River Basin Association (RRBA), Nos. 97-836 and

97-839, respectively.

2

STATEMENT OF THE CASE

This case is a purely local controversy, between North

Carolina and the City of Virginia Beach. It involves no

federal usurpation of State powers under the Clean Water Act

(“CWA”), nor any other issues of national significance. The

power granted to the State by the CWA was exercised in this

case by Virginia, which issued a § 401 certification for

Virginia Beach’s project because Virginia is the state where

the project and its associated discharge are located. Nor does

this case involve dam licensing or relicensing, but merely an

amendment to an existing license. This is simply the latest,

and hopefully the last, episode in a fifteen year crusade by

North Carolina to prevent the largest city in Virginia from

withdrawing drinking water from the Roanoke River in

Virginia, before it can flow downstream into North Carolina.

The only real issue involved here is whether North Carolina

can use § 401 of the CWA to block a public water supply

project located entirely in Virginia.

This case does not involve any novel or difficult

questions of law, or any conflict between the circuits or with

decisions of this Court. The legal question is whether

Virginia Beach’s water withdrawal, in Virginia, will “result in

any discharge into the navigable waters” that “originates” in

North Carolina within the meaning of the CWA, because it

reduces the amount of water that flows over a downstream

dam in North Carolina. The plain, clear and simple answer is

no, as the Court of Appeals and FERC concluded.

The case also could have been decided on the further

ground, not reached by the court or FERC, that North

Carolina’s claim to § 401 certification authority is barred by

the doctrines of res judicata and collateral estoppel. The

Secretary of Commerce held, in an administrative

adjudication between Virginia Beach and North Carolina

(which was affirmed by the United States District Court for

the District of Columbia), that “the project meets the

requirements of the Clean Water Act” and that “[t]he City has

3

obtained the necessary CWA federal permit and state

certification.” DA 1667' (emphasis in original).

Nature of the case

This case arises out of the construction and operation of

Virginia Beach’s public water supply project. The project was

completed in November 1997. It begins at a water intake

structure in the Pea Hill Cove arm of Lake Gaston, in Virginia.

It delivers water to southeastern Virginia through a 76-mile

pipeline across southern Virginia. No part of the project is

located in North Carolina.

Virginia Electric and Power Company (VEPCO) and

FERC are involved in this case because VEPCO owns Lake

Gaston and operates it under a FERC license. Virginia Beach

needed an easement from VEPCO to build and operate its intake

structure in Lake Gaston. VEPCO’s license required FERC’s

approval before it transferred any interest in its licensed project

property. FERC granted VEPCO’s application for that approval

and amended its license to authorize construction and operation

of Virginia Beach’s project. The Court of Appeals denied

petitions for review, in the decision challenged by the petitions

for certiorari.

Construction of the City’s water intake structure required

discharges of dredged and fill materials into Lake Gaston, in

Virginia. In 1983 and 1984, the City sought and obtained a

permit from the U.S. Army Corps of Engineers (Corps) and a

certification from the Virginia State Water Control Board

(VSWCB), as required by §§ 404(a) and 401(a)(1) of the CWA,

33 U.S.C. §§ 1344 and 1341, respectively. It did not request a

certification from North Carolina because the project would not

result in the discharge of anything into the waters in North

Carolina. The VSWCB certification included several conditions

designed to protect water quality, including a 60 million gallons

per day (mgd) cap on withdrawals. DA 27-31.

' “DA” citations are to the Deferred Appendix filed in the Court of

Appeals.

4

North Carolina did not suggest that the Corps permit

required its certification under § 401(a)(1). North Carolina tried

to block the Corps permit under § 401(a)(2), however, by asking

EPA to determine that Virginia Beach’ S project might affect water

quality downstream in North Carolina. Section 401(a)(2)

provides that if EPA determines that a discharge which originates

in one State “may affect . . . the quality of the waters of any other

State,” then the affected State may object to the issuance of a

federal permit, which compels the licensing or permitting agency

to hold a public hearing and to “condition such license or permit

in such manner as may be necessary to insure compliance with

applicable water quality requirements” or deny the permit. 33

U.S.C. § 1341(a)(2). EPA refused North Carolina’s request that it

find that Virginia Beach’s project might affect water quality in

North Carolina. DA 59-66.

VEPCO filed its FERC application in 1991. In 1994, more

than three years later, North Carolina contended for the first time

that its § 401 certification was necessary for FERC approval of

Virginia Beach’s project. Section 401(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 .. . .

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

The “activity” at issue in this case is the construction and

operation of Virginia Beach’s water supply project. North

Carolina v. FERC, 112 F.3d 1175, 1187 (D.C. Cir. 1997), NC

App. 16-17a’; Virginia Electric and Power Co., 77 F.E.R.C.

(CCH) $61,138 (1996) at 61,518, NC App. 116-18a. The

The State of North Carolina’s Petition and the Roanoke River Basin

Association's Petition are cited as NC Pet. and RRBA Pet., respectively,

and the appendix to North Carolina’s Petition as NC App.

5

identical activity was at issue in the earlier Corps proceeding.

Pursuant to § 401(a)(3), the State certification given for the

Corps’ construction permit also sufficed for the FERC license

amendment authorizing operation of the pipeline project. Jd. at

61, 521, NC App. at 124-25a. See, e.g., Keating v. FERC, 927

F.2d 616 (D.C. Cir. 1991) (State certification for Corps permit

satisfied certification requirement for FERC license).

North Carolina argues that operation of Virginia Beach’s

project results in discharges originating in North Carolina

because it slightly reduces the average (but not the minimum)

amounts of water flowing over Gaston Dam in North Carolina.

FERC found, to the contrary, that the operation of the project --

the withdrawals of water from Lake Gaston - would not result

in any discharge into navigable waters, in North Carolina or

elsewhere, and therefore that North Carolina’s certification was

not required. 77 F.E.RC. at 61,517, NC App. 114-15a. The

Court of Appeals agreed. 112 F.3d at 1188, NC App. 18a.

FERC also held, in an additional ground for decision that

the Court of Appeals did not reach, that North Carolina’s

certification would not be required even if Virginia Beach’s

withdrawals would “result in [a] discharge” by reducing water

flows over downstream dams, as North Carolina argued;

because any such discharge would “originate” in Virginia, where

the withdrawals took place. 77 F.E.R.C. at 61,518, NC App.

118-19a.

Related proceedings

Virginia Beach’s Corps permit, under CWA § 404, and its

State certification, under CWA § 401, are discussed supra at 3-4.

The Corps permit was granted in 1984 and amended in 1988,

following a judicial remand. The Corps’ permit action

ultimately was sustained by the U.S. District Court in Raleigh,

North Carolina, and the Court of Appeals for the Fourth Circuit,

and this Court denied review. State of North Carolina v.

Hudson, 665 F. Supp. 428 (E.D.N.C. 1987) (Hudson I); State of

North Carolina v. Hudson, 731 F. Supp. 1261 (E.D.N.C. 1990)

(Hudson II), aff'd, Roanoke River Basin Ass’n. v. Hudson, 940

6

F.2d 58 (4th Cir. 1991) (Hudson Ill), cert. denied, 502 U.S.

1092 (1992).

In another related case, North Carolina and RRBA sued

Virginia Beach in late 1990 to enjoin project construction

pending FERC approval. The U.S. District Court in Raleigh

granted the injunction, and Virginia Beach appealed. The

Fourth Circuit reversed in part, allowing Virginia Beach to

proceed with some limited, “critical path” construction. State

of North Carolina v. City of Virginia Beach, 951 F.2d 596

(4th Cir. 1991). The injunction expired when FERC issued its

final order in this case.

After VEPCO filed its application with FERC, in

February 1991, North Carolina objected to Virginia Beach’s

project under the Coastal Zone Management Act (CZMA), 16

U.S.C. § 1456(3)(A), thereby blocking the FERC approval.

Virginia Beach and VEPCO appealed the objection to the

Secretary of Commerce. On May 20, 1994, the Secretary

overruled North Carolina’s objection, concluding, like the

Corps before him and FERC after him, that Virginia Beach’s

project is both necessary and environmentally sound. The

Secretary expressly found “that the project meets the

requirements of the Clean Water Act” and “[t}he City has

obtained the necessary CWA federal permit and state

certification.” DA 1667 (emphasis in original). North

Carolina sued to set aside the Secretary’s decision, but it did

not challenge his Clean Water Act findings. The reviewing

court sustained the Secretary’s decision. North Carolina v.

Brown, 42 E.R.C. 1254 (D.D.C. 1995). North Carolina did

not appeal.

Virginia Beach’s public water supply project

With over 400,000 residents, Virginia Beach is the

largest city in Virginia. It is part of the southeastern Virginia

urban complex comprising the contiguous cities of Virginia

Beach, Norfolk, Chesapeake, Suffolk and Portsmouth, which

together have a population of approximately 1 million. DA

3156. The region, and Virginia Beach in particular, have

7

suffered from a water shortage since at least 1974 when the

U.S. Senate Committee on Public Works asked the Corps of

Engineers to study and recommend water supply options for

the area. DA 358. Since 1977 Virginia Beach and other cities

in the region have been required to impose water use

restrictions on their citizens during several droughts, and

water rationing during a severe drought in 1980-81. DA

3150-51; 397-98, 839. By 1992, Virginia Beach’s population

had so far outgrown its sole source, the City of Norfolk’s

“surplus” water supply, that it was forced to impose

permanent year-round restrictions on outdoor water uses and a

moratorium on new connections to its public water system.

Those measures applied even during non-drought periods and

remained in effect until the pipeline became operational in

November 1997. DA 1043-48.

Following the 1980-81 drought, Virginia Beach decided

to build a pipeline to Lake Gaston to solve the regional water

supply problem, as recommended by the Congressionally

mandated Corps study. The pipeline was sized to withdraw

up to 60 mgd from Lake Gaston, to be allocated 48 mgd to

Virginia Beach, 10 mgd to Chesapeake and 2 mgd to two

smaller localities. DA 3171. The water from the project,

together with previously existing supplies, was expected to

meet the region’s water needs through the year 2030. DA

3139.

Lake Gaston and the Roanoke River system

The Roanoke River rises in the Appalachian Mountains

of Virginia. It flows southeasterly, crosses into North

Carolina near Roanoke Rapids and empties into Albemarle

Sound some 145 miles downstream of Lake Gaston.

Approximately 64% of the entire watershed, and 73% of the

watershed above Roanoke Rapids Dam, is in Virginia. The

rest is in North Carolina. DA 3210-11.

Lake Gaston is the second in a series of three

impoundments of the Roanoke River that are located along

the border of Virginia and North Carolina. The largest and

8

farthest upstream of the three impoundments is Kerr

Reservoir, a Corps of Engineers project operated for flood

control, power generation and other purposes, including water

supply. Lake Gaston begins at the base of Kerr Dam, and

Roanoke Rapids Reservoir begins at the base of the Gaston

Dam. The latter two are FERC licensed hydropower projects.

DA 3210-13, 3218-19. (See maps at Appendix A.)

Flows in the Roanoke River are regulated by these dams

and reservoirs. In general, the dams withhold water from

streamflow during high natural flows and return it during

periods of lower flow. DA 3210-21. This regulation makes

flows more uniform, but they still fluctuate widely. The

average flow below Roanoke Rapids Dam is 8,050 cubic feet

per second (cfs) (or 5,194 mgd), DA 3212, and the lowest

yearly average flow was 3,117 cfs (2,011 mgd) in 1981, DA

3266, 3275°. Instantaneous flows vary from just over 1,000

cfs (the wintertime regulated minimum), DA 3237, to 30,000

cfs or more (during floods), DA 3231. Virginia Beach’s

maximum withdrawal of 60 mgd equals 93 cfs -- about 1.2%

of the average flow and 3% of the lowest average annual flow

on record.

VEPCO’s FERC license requires it to release specified

minimum flows from Roanoke Rapids Dam at all times, to

maintain water quality downstream. DA 3232-33, 3238-41.

The required minimums are 2,000 cfs in May through

September, 1,500 cfs in April and October, and 1,000 cfs in

November through March. DA 3237.‘

> Cfs + 1.55 = mgd.

* By agreement among VEPCO, the Corps and North Carolina, VEPCO

makes higher “augmented” releases during the striped bass spawning

season, using water provided by the Corps from Kerr Reservoir storage.

DA 3236-38. Contrary to RRBA’s assertions, RRBA Pet. 9-10, Virginia

Beach’s withdrawals will not impair the ability to make these releases,

even in the driest years, because Virginia Beach has purchased

additional water storage in Kerr Reservoir which will be released to

offset its withdrawals on the rare occasions they might otherwise cause

the targets to be missed. DA 3296-99. As FERC (like the Corps and the

9

Virginia Beach’s withdrawals will reduce the total

amount of water that flows through the Gaston and Roanoke

Rapids Dams, by a maximum of 93 cfs (60 mgd); but they

will not reduce the low flows at all. Most of the water in Lake

Gaston comes from Kerr Reservoir. The Corps’ hydropower

contracts require it to make releases from Kerr Reservoir

which, together with local inflows to Lake Gaston and

Roanoke Rapids Reservoir, average at least 545 cfs (352 mgd)

more than VEPCO’s minimum required releases at all times.

Hudson II, 731 F. Supp. at 1263-64. Virginia Beach’s 93 cfs

maximum withdrawal will come from that “surplus,” and

VEPCO will maintain the minimum flows required by its

license.

VEPCO’s releases are governed by power demands and

the minimum release conditions of its license. It generally

releases only the minimums when power demands are low

and stores the balance of the Kerr releases in Gaston and

Roanoke Rapids Reservoirs to meet peak power demands.

DA 3218-19; Hudson II, 731 F. Supp. at 1264. Releases into

the lower Roanoke therefore follow a peak and valley pattern.

DA 3231-32. VEPCO will not change its operations as a

result of Virginia Beach’s project, and the effect of the

withdrawals will be simply to lower the peaks, but not the

valleys. The same changes result from varying rainfall

patterns, and would also result from withdrawals upstream of

Lake Gaston, outside of FERC’s jurisdiction.

North Carolina implies that the withdrawals will reduce

flow by “almost ten percent,” “during periods of low flow,

when water quality is at greatest risk.” NC Pet. 4. That is not

true. North Carolina has simply compared Virginia Beach’s

93 cfs maximum withdrawal to the 1,000 cfs wintertime

regulated minimum. But Virginia Beach’s withdrawals will

never reduce the minimum flows, and even during the driest

summers they will account for less than 4% of total flows.

Secretary of Commerce) concluded, “the project will not affect the

reproductive success of striped bass in the Roanoke River.” DA 3943.

a

10

(93 cfs + 2545 cfs = 3.65%). And most water quality

problems occur in the summer and early fall, when natural

low flows coincide with high air and water temperatures. DA

3217-18. That is why higher (2,000 cfs) minimum releases

are required in the warmer months; and as discussed above, at

least 545 cfs more than the minimum is available even during

those periods.

Likewise, North Carolina’s contention that Virginia

Beach’s project will “reverse the ... flow” of water in a

“small tributary” of Lake Gaston is misleading at best. NC

Pet. 4. Like all of Lake Gaston, Pea Hill Cove is a flooded

valley. It has some natural inflow, but the great majority of

its water flowed from Kerr Reservoir and was backed up by

Gaston Dam. Because VEPCO raises and lowers the lake

level in its power operations, the flow in Pea Hill Cove

“resembles a tide, sometimes flowing into and sometimes

flowing out of the cove.” DA 3219. The volume of this tide

is 17 times greater than Virginia Beach’s maximum

withdrawal and dwarfs any effect it might have on the

direction of stream flow. DA 70.

It also is not true, as RRBA argues, that “FERC itself

also concluded that the license amendment could result in an

adverse impact on downstream uses.” RRBA Pet. 9. In fact,

FERC concluded that the project “will not adversely affect

water availability in the reservoir area, the upper basin, or the

lower basin,” DA 3938, “will not affect the reproductive

success of striped bass in the Roanoke River,” DA 3943, “will

have no measurable impact on water quality in the lower

Roanoke River,” DA 3942, and “would be beneficial, and not

deleterious to the environment.” DA 3939. FERC’s

conclusions echoed those of the Corps and the Secretary of

Commerce, as affirmed by the Fourth Circuit and the U.S.

District Court for the District of Columbia, respectively. See

Hudson II, 940 F.2d at 64, aff’g State of North Carolina v.

Hudson, 665 F. Supp. 428, 438-39 (E.D.N.C. 1987) (Hudson

I); North Carolina v. Brown, 42 E.R.C. 1254, 1247, 1262

(D.D.C. 1995).

11

ARGUMENT

This case presents no issues of national significance

warranting an exercise of this Court’s certiorari jurisdiction

North Carolina argues that the decision below will have a

dramatic impact on the “more than one thousand hydroelectric

dams in the United States” by “suspend[{ing]” State

certification power between the time of licensing and

relicensing. NC Pet. 13-14. RRBA goes even further, arguing

that the decision eliminates the need for certification even at

original licensing or relicensing. RRBA Pet. 13-14.

Those arguments are simply hyperbole, offered to attract

this Court’s attention to a routine case. In truth, the decision

below is consistent with everyone’s previous understanding of

the way the statute works in a case like this, as was indicated

by North Carolina’s own conduct; and it will not in any way

change the manner in which the nation’s hydroelectric projects

are regulated. The case would have been significant only if it

had been decided the other way, allowing downstream States to

veto water uses in upstream States.

This case demonstrates that water withdrawal projects do

and will continue to require State certification. There is no

practical way to withdraw significant amounts of water from a

river or reservoir without building an intake structure, which

requires the discharge of dredged and fill materials and

therefore requires certification from the State where it is

located.’ This is true for other types of projects that affect

water quality as well, and that is why Congress chose the

mechanism of a “discharge” as the triggering condition for §

401 certification.

$

RRBA’s suggestion that withdrawals from a certified intake structure

could later be increased without additional certification is incorrect.

RRBA Pet. 18 n.16. In this case, for example, Virginia’s certification

limits Virginia Beach’s withdrawals to 60 mgd, and increased withdrawals

would require an amended Virginia certification. CWA § 401(d), 33

U.S.C. § 1341(d).

12

As a practical matter, any new activity that requires a new

federal license or permit, and that affects water quality, will

also involve a new discharge and a State certification. And in

connection with the certification of new discharges, Congress

provided States with the tools necessary to protect against

future alterations in discharges that they might find

problematic, by imposing conditions under § 401(d), which

automatically become conditions on any federal licenses. For

example, a State can protect against future changes by

imposing minimum stream flow conditions. See PUD No. 1 of

Jefferson County v. Washington Dept. of Ecology, 511 U.S.

700, 707-08 (1994); 33 U.S.C. § 1341(d). See also American

Rivers, Inc. v FERC, 129 F.3d 99 (2d Cir. 1997) (holding that

FERC may not omit “reopener” conditions 1 ina State’ s § 401

certification, if it issues a license).°

RRBA’s suggestion that the Court of Appeals’ decision

will eliminate the need for State certification at licensing or

relicensing is certainly misplaced. This is not a licensing or

relicensing case, and the Court of Appeals did not decide

whether certifications are necessary at such times. Indeed,

that court simply assumed arguendo that releases of water

through a hydroelectric dam are a “discharge” that would

require certification at licensing, and went on to hold that a

reduction in such ongoing releases is not a discharge. 112

F.3d at 1187, NC App. 16a. As petitioners assert, there are

more than 1,000 hydroelectric projects in the country and

many of them soon will be considered for relicensing

(including this one, in 2001). Any questions regarding the

need for certification at relicensing should be resolved in one

* North Carolina acknowledges that American Rivers reaffirmed the

“broad scope of State authority under Section 401.” NC Pet. 13. But

neither American Rivers nor PUD No. | nor any other decision, to our

knowledge, holds that a State has § 401 authority to veto activities that

occur entirely in another State, on the rationale argued here or any other.

American Rivers further demonstrates, however, that under § 401 States

have ample authority to protect themselves against adverse effects of

future changes in a certified project.

13

of the many cases which involve that issue, and not in this

case which does not.

Petitioners’ interpretation of § 401 is unprecedented, and

North Carolina’s own conduct shows that it is contrary to the

previous expectations of all concerned parties. Despite its

titanic struggle against Virginia Beach’s project, North

Carolina never suggested that it had § 401 certification

authority over the project until May 1994, eleven years after it

began opposing the project, more than three years after

VEPCO applied for FERC approval of the project, and twelve

days after the Secretary of Commerce voided North

Carolina’s CZMA objection and ruled that Virginia Beach

had obtained all necessary § 401 certifications. Obviously,

North Carolina itself had no idea that it had § 401 certification

authority until its lawyers concocted that theory, after running

out of other options, or it would have argued that point to the

Secretary and appealed the Secretary’s contrary finding.

A decision adopting petitioners’ arguments, on the other

hand, would have been truly significant, because it would

have led to multiple interstate conflicts of the type that

Congress sought to avoid by its careful assignment of roles to

“source” and “affected” States in §§ 401(a)(1) and (2). See

infra at 20-22. For example, a diversion from a Montana

power company reservoir on the Missouri River in Montana

would require certifications from Montana, North Dakota,

South Dakota, Nebraska, Louisiana and every other

downstream State on the Missouri/Mississippi River system

in which a dam is located, because flows through each of

those dams would be reduced by the amount of the diversion.’

“It is unlikely -- to say the least -- that Congress intended to

establish such a chaotic regulatory structure” under the Clean

Water Act. International Paper Co. v. Ouellette, 479 U.S.

481, 497 (1987).

” North Carolina’s counsel coxceded this point at oral argument in the

Court of Appeals. See Transcript of argument, September 9, 1996, at 6

(excerpts reprinted as Appendix B).

14

The Court of Appeals’ decision is not in

conflict with any other Circuit

The Court of Appeals’ decision does not conflict with

the Fourth Circuit’s decision in City of Fredericksburg v.

FERC, 876 F.2d 1109 (1989), and petitioners’ pale effort to

assign such a conflict shows how far they are grasping for

straws. The Fredericksburg decision does not consider the

meaning of the term “discharge” in § 401, nor does it

remotely suggest that a reduction of ongoing flows through a

dam could be a statutory discharge.

The issue in Fredericksburg was whether a State had

waived its right to issue a § 401 certification for construction

and operation of hydroelectric generating facilities at an

existing dam. The court’s holding (that an applicant must

request certification in accordance with State filing

procedures before there can be a waiver) was based on a

FERC regulation, not on the statute. See id. at 1111 & nl.

The existence of a discharge was not in dispute; and the

opinion does not even identify the discharges that triggered

the certification requirement, much less suggest that changes

in flows resulting from hydropower operations might be such

a discharge. It is clear from the FERC decisions under review

in Fredericksburg, however, that construction of the new

hydropower facilities would involve construction discharges

that would certainly require certification, just as Virginia

Beach’s project did.’ In short, there is nothing expressed or

implied in the Fourth Circuit’s decision to suggest that it

* See Commonwealth Electric, Inc., 43 F.E.R.C. (CCH) { 61,300, at

61,819 (1988) (construction of a “rock-core earthen flood control berm

across the canal ... to deflect flood flows from the canal back into the

river”) and 61,823-24 (license articles 303, dealing with construction of

“water retention structures, powerhouse, and water conveyance

structures”; 304, “cofferdams and deep excavations”; and 401, “plan to

control erosion, dust, and slope stability, and to minimize the quantity of

sediment and other potential water pollutants resulting from project

construction, spoil disposal and project operation and maintenance”).

15

considered reductions in flow to be triggering discharges

under § 401.

Virginia Beach’s water withdrawals will not result in

any discharge into the navigable waters within the

meaning of Section 401(a)(1)

The petitions challenge the Court of Appeals’ holding

that Virginia Beach’s withdrawal of water does not “result in

a discharge into the navigable waters” because it adds nothing

to the waters. They argue that “result in a discharge” means

“result in a discharge or the alteration of a discharge,” and

that the reduction of flow over the dam in North Carolina is

the alteration of a discharge. That is not what Congress said

or meant.

The Court of Appeals’ conclusion, that a “discharge”

within the meaning of § 401 “contemplates the addition, not

the withdrawal, of a substance or substances,” 112 F.3d at

1187, NC App. 17a, follows inescapably from the ordinary

meaning of the words Congress used. In ordinary English

“discharge” means an “issuing out” or “emission.” Websters

New Int'l Dictionary 644 (3d ed. 1961). “Into” is a

preposition which denotes motion or penetration to or of a

place or thing from outside the place or thing. /d. at 1184.

Used together, the words “discharge into” the navigable

waters plainly mean the emission of something from outside

the waters into the waters -- that is, the addition of something

to the waters.”

The Court of Appeals found support for this plain

language reading of “discharge” in 33 U.S.C. § 1362(12),

which defines the term “discharge of a pollutant” to mean

“any addition of any pollutant to navigable waters from any

* FERC analyzed petitioners’ argument thus: “We believe that the plain

and commonly understood meaning of the phrase ‘discharge into the

navigable waters’ (emphasis added) is unduly strained if it is read to include

the removal of something that was already in the water, and is particularly

strained if it is read to include the removal of the water itself.” 77 F.E.R.C.

at 61,517, NC App. 1 15a.

16

point source.” Petitioners argue that in so doing the Court of

Appeals equated the term “discharge” with the term

“discharge of a pollutant,” and thereby improperly narrowed

the meaning of the original term. It did no such thing.

Instead, the court reasoned that if “discharge of a pollutant”

means the “addition of a pollutant,” then the word “discharge”

must contemplate “addition” of something, whether it is a

pollutant or not. The court’s holding is entirely consistent

with the notion that “discharge,” without the limiting phrase

“of a pollutant,” is a broader term than “discharge of a

pollutant”; and it simply recognizes that Congress

undoubtedly intended that the word “discharge” have the

same meaning throughout the Act. See 112 F.3d at 1187 n.4,

NC App. 17a.

The Court of Appeals’ conclusion, that a withdrawal of

water is not a discharge, is consistent with Save Our

Community v. U.S.E.P.A, 971 F.2d 1155 (Sth Cir.~1992),

| which held that removal of water from wetlands by use of a

mechanical pump was not a “discharge” requiring a permit

under CWA § 404. In that case, the court found that it was

unnecessary to resort to legislative history because under the

plain language of the statute, “the existence of discharge is

critical,” and the withdrawal of water is not a discharge. Jd. at

1163.

Save Our Community confirms the unanimous opinion of

federal agencies that a discharge -- a physical addition of

something into “navigable waters” -- is the sine qua non of

Clean Water Act jurisdiction. See id. at 1158 n.6, 1163. That

opinion was reiterated in a recent amendment to the Corps’

and the EPA’s § 404 regulations. 58 Fed. Reg. 45008 (1993).

The amendment brought certain land clearing and excavation

activities under § 404 for the-first time, by defining

“discharge of dredged material” as including “[a]ny addition,

including redeposit, of dredged material, including excavated

material, into waters of the United States which is incidental

to any activity, including mechanized land clearing, ditching,

channelization, or other excavation.” 33 C.F.R. § 323.2

17

(d)(iii) (emphases added). In amending the quoted regulation,

both the Corps and the EPA adhered to the view that

removing materials from “navigable waters” is not a

“discharge into” such waters: “EPA and the Corps agree that

the presence of a discharge into waters of ihe U.S. is an

absolute prerequisite to an assertion of regulatory jurisdiction

under § 404..... [TJhis has been the agencies’ long-standing

position, and we are not altering that view in this

rulemaking.” 58 Fed. Reg. at 45011.

Petitioners’ insistence that this case presents the question

of how “altered” discharges should be treated under § 401 is

semantic sleight of hand. This case involves a reduced

discharge. A reduced discharge is an “altered” discharge, to

be sure; but it is markedly different from an increased

discharge -- which also is an altered discharge. An increased

discharge may well add a substance to the water by increasing

whatever is being discharged into the water, and it would

require certification. A reduced discharge does not. The

difference is significant. As the Court of Appeals observed,

the triggering event selected by Congress for certification is

an activity which “results” in or “causes” a discharge, and an

activity that reduces a preexisting discharge does not cause

the discharge. 112 F.3d at 1188, 1186 n.2, NC App. 18-19a,

15a. Water has continuously discharged through Gaston Dam

for 35 years. That discharge will not be increased by Virginia

Beach’s project, nor will it in any sense “result” from the

project.

The Court of Appeals’ decision is in no way inconsistent

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

Ecology, 511 U.S. 700 (1994). That case involved a FERC

license and 401 certification for a new dam, which “would

divert water from a 1.2 mile reach of the River (the bypass

reach), run the water through turbines to generate electricity

and then return the water to the River below the bypass

reach.” 511 U.S. at 708-09. The parties agreed (but the Court

did not decide) “that the project will result in two possible

discharges,” discharges of dredged and fill material during

18

construction and discharges of water back to the river after the

bypass. /d. at 711. As the Court of Appeals observed, PUD

No. 1 “never attempted to define a discharge and in no way

indicated that an alteration of a discharge was sufficient to

invoke the certification requirement of section 401(a)(1).”

112 F.3d at 1188, NC App. 20a. And this case, unlike PUD

No. 1, does not involve either a new dam or the return of

water to a river after a diversion. Water has been discharged

from the Gaston Dam for the past 35 years, and the issue here

is whether removing water, not returning it to the river after a

bypass, results in a discharge.

The decision below also is consistent with PUD No. 1’s

recognition that a reduction in water quantity can affect water

quality. The question in PUD No. I was whether the State

could require minimum stream flows in the bypass reach, as a

condition of its § 401 certification. The license applicants

(petitioners) contended that the minimum flow condition was

unlawful because it was unrelated to either of the

acknowledged discharges. The Court rejected that argument,

holding that § 401(d) authorizes conditions to prevent water

quality effects of a project that are not caused by a discharge.

In so doing, the Court implicitly recognized that a reduction

in flow caused by a water diversion is not a “discharge,” even

though it may affect water quality. The Court stated:

If § 401 consisted solely of subsection (a), which

refers to a state certification that a ‘discharge’

will comply with certain provisions of the Act,

petitioners’ assessment of the scope of the State’s

certification authority would have considerable

force. Section 401, however, also contains

subsection (d), which expands the State’s

authority to impose conditions on the certification

of a project.

511 U.S. at 711. The minimum flow condition was directly

related to the flow reduction caused by the diversion -- it

directly limited the amount of flow reduction allowed in the

bypass reach. If the reduction in flow were a “discharge,” the

19

petitioners’ argument would have had no force at all; and it

would have been unnecessary for the Court to look to

§ 401(d) to find authority for the condition. As the dissenting

Justices observed in PUD No. 1, the Court had to rely on §

401(d) because “[t]he minimum stream flow condition

imposed by [the State] in this case has no relation to any

possible ‘discharge’ that might ‘result’ from [the applicants’]

proposed project,” and “a minimum stream flow requirement

is a limitation on intake — the opposite of discharge.” Id. at

725.

PUD No. 1 also described the difference between the

issues in that case and this one, and the “threshold” limitation

that Congress set on States’ § 401 certification power:

Section 401(a)(1) identifies the category of

activities subject to certification — namely

those with discharges. And § 401(d) is most

reasonably read as authorizing additional

conditions and limitations on the activity as a

whole once the threshold condition, the

existence of a discharge, is satisfied.

511 U.S. at 711-12 (emphasis added).

The issue here is whether the threshold condition is

satisfied. In PUD No. 1 the threshold condition was

conceded, and the issue was whether the State’s minimum

flow condition was authorized by the statute and appropriate

to protect water quality. It was in that context that the Court

recognized that a reduction in water quantity could have a

water quality effect. But the Court did not suggest that every

activity that might have a water quality effect is subject to

State certification, whether there is a discharge or not. To the

contrary, the Court emphasized that Congress’ “threshold

condition” of a discharge must be satisfied before any

condition could be imposed.

North Carolina argues that the statute contemplates

certification when existing discharges are altered because it

requires certification from the State where a discharge

“originates or will originate,” and because “will originate”

20

must refer to new discharges and “originates” to existing

discharges. NC Pet. 16. That argument is insupportable as a

matter of logic or of language. It sets up an internal conflict

in § 401(aX(1), because § 401(a)(1) applies to activities

“which may result in” any discharge, and an activity cannot

“result in” a discharge that already exists. It seems obvious

that the phrase “originates or will originate” was used because

any discharge that may result from a federally licensed

activity triggers the need for certification - including any

future discharge that “will originate” from operation of a

licensed facility, in addition to (or in the absence of) any

discharge that “originates” from construction of the facility.

North Carolina’s argument that the statutory definition of

“pollutant” includes heat, and therefore that a “discharge of a

pollutant” could include the addition of heat to the water

rather than some “substance,” is beside the point. See NC Pet.

16. This case does not involve the addition of heat, or

anything else, to the water. This case involves a very slight

reduction in the total volume of flow (but not the low flow) of

water through a dam. The fact that the addition of heat to

water might be the discharge of a pollutant is irrelevant to the

question whether this reduction in water flow is a discharge.

Any discharge resulting from Virginia Beach’s project

“originates” in Virginia, not North Carolina; and

therefore Virginia has certification authority under

Section 401(a)(1) and North Carolina is an “affected”

state under Section 401(a)(2)

In the Clean Water Act, Congress sought to leave

jurisdiction over water management issues primarily in the

hands of the States, which traditionally have jurisdiction over

waters within their borders. But Congress recognized that

interstate conflicts, like the one presented here, would arise if

two or more States had regulatory authority over the same

project, and it refused to give any State authority over

activities in other States. Its solution was to give each State

Fem eg ne —— ” ,

21

authority over intrastate water quality impacts," and to give

the EPA authority over impacts in other States.

Congress accomplished this by providing in § 401(a)(1)

that a certification is necessary from the State where a

discharge “originates,” and in § 401(a)(2) that any other State

which may be affected by the activity may apply to the EPA

to determine whether water quality in that State will be

adversely affected. As the Court explained in /nternational

Paper Co. v. Ouellette, 479 U.S. 481, 490-91 (1987):

While source States have a strong voice in

regulating their own pollution, the CWA

contemplates a much lesser role for States that

share an interstate waterway with the source (the

affected States). Even though it may be harmed

by the discharges, an affected State only has an

advisory role in regulating pollution that

originates beyond its borders.... Significantly,

however, an affected State does not have the

authority to block the issuance of the permit if it

is dissatisfied with the proposed standards. An

affected State’s only recourse is to apply to the

EPA Administrator, who then has the discretion

to disapprove the permit if he concludes that the

discharges will have an undue impact on

interstate waters.

In this case, the only discharge resulting from Virginia

Beach’s project was the discharge of dredged and fill material

during construction, and that “originated” in Virginia. But

even if the reduction in flow at Gaston Dam were also

regarded as a “discharge,” as North Carolina contends, that

also would “originate” in Virginia, because that is where

Virginia Beach withdraws the water. The flow through the

” See PUD No. 1, 511 US. at 707: § 401 “requires States to provide a

water quality certification before a federal license or permit can be issued for

activities that may result in any discharge into intrastate navigable waters.”

(Emphasis added.)

22

dam will be reduced solely because Virginia Beach is taking

water out of Lake Gaston in Virginia. Nothing will be done in

North Carolina. The reduction in flow will occur in North

Carolina, but it will “originate” from activity in Virginia.

In National Wildlife Federation v. FERC, 912 F.2d 1471,

1483-84 (D.C. Cir. 1990), the court confirmed that a

discharge originates where the activity which causes the

discharge occurs, and not where its effects are felt. That case

involved a new reservoir located in Oklahoma and Arkansas,

behind a dam in Arkansas. The discharge in question was the

erosion of soils from the banks of the reservoir in Oklahoma.

The court upheld FERC’s “[cJommon sense” conclusion that

those discharges would originate at the dam, in Arkansas,

because that was “where the flow of water would be blocked

and consequently the water would be backed up, rather than at

some point upstream ... where the soil eroded as a result.”

Here, the statute operated precisely as Congress

intended. Virginia, the “source” State where any relevant

discharge originated, issued a certification under § 401(a)(1).

North Carolina, an “affected” downstream State, asked EPA

to require a water quality hearing pursuant to § 401(a)(2).

EPA declined, because Virginia Beach’s withdrawal will not

affect water quality in North Carolina. “This delineation of

authority represents Congress’ considered judgment as to the

best method of serving the public interest and reconciling the

often competing concerns of those affected by the pollution.”

International Paper, 479 U.S. at 497. That balance should

not be upset; the statute has been and should be applied as it

was written.

North Carolina’s claim to Section 401 certification

authority is barred by the doctrines of res judicata and

collateral estoppel

As discussed supra at 6, Virginia Beach and VEPCO

appealed North Carolina’s CZMA objection to the Secretary of

Commerce. North Carolina defended its objection on the

ground, among others, that Virginia Beach’s project would

23

violate the CWA. The Secretary rejected its arguments and

found “that the project meets the requirements of the Clean

Water Act,” and “[t]he City has obtained the necessary CWA

federal permit and state certification” for FERC to approve the

City’s project. DA 1667 (emphasis in original). North

Carolina appealed the Secretary’s decision, the District Court

affirmed, and its decision is final. North Carolina v. Brown, 42

E.R.C. 1254 (D.D.C. 1995). Accordingly, North Carolina is

barred by the doctrines of res judicata (claim preclusion) and

collateral estoppel (issue preclusion) from claiming that its

certification also is necessary for FERC to approve the City’s

project.

Res judicata and collateral estoppel bar relitigation of an

administrative agency’s decision of disputed issues “which the

parties have had an opportunity to litigate,” if the agency acted

in a “judicial capacity” (as the Secretary of Commerce did

here). United States v. Utah Construction & Mining Co., 384

U.S. 394, 422 (1966). See, e.g., Exxon Corp. v. Fischer, 807

F.2d 842, 846-47, amended on other grounds, 817 F.2d 1429

(9th Cir. 1986) (according preclusive effect to Secretary of

Commerce’s decision in a CZMA appeal). North Carolina

undeniably had “an adequate opportunity to litigate” issues

under the CWA, including § 401, in the CZMA appeal. See 15

C.F.R. § 930.121(c) (Secretary’s regulations providing that a

CZMA objection will be set aside only if, inter alia, “the

activity will not violate any requirements of the . . . Federal

Water Pollution Control Act”). Likewise, the Secretary

undeniably acted in a “judicial capacity.” See Exxon Corp. v.

Fischer, supra, 807 F.2d at 846. North Carolina, Virginia

Beach and VEPCO were parties to the CZMA appeal and to

the proceeding below, and the Secretary decided the same

issue that is presented here —- whether Virginia Beach and

VEPCO had obtained the Clean Water Act certification

necessary for FERC to approve VEPCO’s application."

"_RRBA also is bound by the Secretary’s adjudication against North

Carolina, of course, because “they, in their common public rights as

citizens of the State, were represented by the State in those proceedings,

24

Neither FERC nor the Court of Appeals addressed this

argument, because they rejected North Carolina’s claim of

certification authority on the other grounds advanced in this

brief. Nevertheless, North Carolina’s claim can and should be

rejected on the basis of these preclusion doctrines as well.

and, like it, were bound by the judgment.” Tacoma v. Taxpayers of Tacoma,

357 U.S. 320, 341 (1958) (adjudication of state’s unsuccessful opposition to

FPC dam license was binding on city and citizens of state). See Southwest

Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 97-101 (Sth Cir.), cert.

denied, 434 U.S. 382 (1977) (judgment against city declaring ordinance

enforceability of ordinance against Southwest in another court as “private

Penforcers”); Michigan v. Allen Park, 573 F. Supp. 1481, 1484 n.5 (E.D.

Mich. 1983) (“It is established law that when a governmental entity litigates

a matter involving diffused private rights . . . , private citizens are bound by

the results); 18 Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction § 4458 at 513 (1981) (“government litigation can preclude

relitigation by individuals who assert no nore than a general public

interest”).

25

CONCLUSION

This case presents no issues of national significance. It

involves only the straightforward application of plain

statutory language, and it was correctly decided by FERC and

the Court of Appeals. This Court should deny the petitions

for writ of certiorari and end the fifteen year controversy over

Virginia Beach’s essential public water supply project.

Respectfully submitted,

Leslie L. Lilley George A. Somerville

City Attorney (Counsel of Record)

William M. Macali Samuel M. Brock III

Deputy City Attorney Mays & Valentine, L.L.P.

City of Virginia Beach 1111 East Main Street

City Hall Building, Room 260 Post Office Box 1122

Municipal Center Richmond, Virginia 23218-1122

Virginia Beach, Virginia 23456 (804) 697-1291

(757) 427-4531 M. Scott Hart

Mays & Valentine, L.L.P.

4425 Corporation Lane, Suite 420

Virginia Beach, Virginia 23462

(757) 518-3204

Attorneys for Respondent City of Virginia Beach, Virginia

January 21st, 1998

A- 1

APPENDIX A

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i VIRGINIA

NORTH CAROLINA

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Scaie in Miles

Figure 1-1. Vicinity Map .

(Source: Stall, as moditied trom Corps, 1984 and AAA road map, 1993.)

DA 3148

~ BEST AVAILABLE COPY! |

VIRGINIA

NORTH CAROLINA

} Slee seas

02468 0 Se Abandoned raliroad right-of-way vino

es ee se | ~~ Existing aqueduct

Mites (Approx.) ae F NORTH CAROLINA

Figure 2-2. Location of project features |

(Source: voypd earn sek on, raat 14, 1993). wae Location tap

DA 3174

A

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Figure 3-1. Location of the Roanoke River basin

(Source: Staff, as modified from USGS, 1993.)

PORN AOL EL DLW ES ATE TAR aI ES is Pak r id sagas

DA 3211

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A-4

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 905-1494 et al.

STATE OF NORTH CAROLINA,

Petitioners,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.

Monday, September 9, 1996

Washington, D.C.

The above-entitled matter came on for oral argument,

pursuant to notice,

BEFORE:

CIRCUIT JUDGES WALD, SILBERMAN and SENTELLE,

U. S. COURT OF APPEALS FOR THE D. C. CIRCUIT.

APPEARANCES:

BERNARD NASH, ESQ., Dickstein, Shapiro and Morin,

LLP, 2101 L Street, Northwest, Washington, D.C. 20037; on

behalf of Petitioner, State of North Carolina.

PATRICK M. MC SWEENEY, ESQ., McSweeney, Burtch

and Crump, PC, 11 South Twelfth Street, Richmond, Virginia

23212; on behalf of Petitioner, Roanoke River Basin

Association.

EDWARD S. GELDERMANN, ESQ., Federal Energy

Regulatory Commission, 888 First Street, Northeast,

Washington, D.C. 20426; on behalf of Respondent.

A-5

M. SCOTT HART, ESQ., Mays and Valentine, Nations Bank

[sic] Center, 1111 East Main Street, Richmond, Virginia

23208; on behalf of the Intervenors.

* * *

MR. NASH: Section 401 of the Clean Water Act

requires any application for any discharge, for any activity

that will result in a discharge originating in a state to be

certified.

QUESTION: We’re doing great so far. We’re doing

real good so far. What is it in this case that makes the--

MR. NASH: In this case, it is the altered operation of

the hydroelectric facility at the Lake Gaston Dam.

QUESTION: Why isn’t that taken care of in 401(2),

which deals with the downstream implications of an original

discharge and allows a state that is affected by the

downstream implications of that certain rights and et cetera, et

cetera? Why is the argument which, I take it, you’re making

that any time something happens in one state where there is at

least one origination of a discharge and it gets—that results in

a lower flow. Say, it went through seven different states and

the flow got low in every one of those states.

Would you say they came under--you had to be certified

because the flow got less and less?

MR. NASH: There is a total different--the answer is yes.

There is a total different operation at the Lake Gaston

hydroelectric project. FERC required an amendment to be

filed to the license to operate it.