# Opposition Brief — North Carolina v. Federal Energy Regulatory Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1108

## Text

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
"Sg
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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

SnSearet aoe

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

Se et an ee

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1760%3A2. Public record. Not legal advice.