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S.D. Warren Co. v. Maine Bd. of Envtl. Prot. - Amicus (Merits)

Docket number: 
No. 04-1527
Supreme Court Term: 
2005 Term
Court Level: 
Supreme Court


In the Supreme Court of the United States






Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

General Counsel
Environmental Protection
Washington, D.C. 20460



Section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1),providesthat an applicant for a federal license to conduct any activity "whichmay result in any discharge into the navigable waters" must obtaina certification from the State in which the discharge originatesstatingthat the discharge will comply with applicable provisions of the Actandother appropriate requirements of state law. The question presented iswhether petitioner's operation of its hydroelectric facilities, whicharesubject to Federal Energy Regulatory Commission licensing requirementsunderSection 4(e) of the Federal Power Act, see 16 U.S.C. 797(e), may resultin a "discharge into the navigable waters" within the meaningof Section 401(a) of the Clean Water Act.

In the Supreme Court of the United States

No. 04-1527







This case presents the question whether Section 401(a) of the CleanWater Act (CWA), 33 U.S.C. 1341(a), requires peti tioner to obtain, asaprerequisite to issuance of federal li censes for its fivehydroelectricfacilities, a state certification that the water leaving thosefacilitiescomplies with applicable federal and state water pollution controlrequirements. The Federal Energy Regulatory Commission (FERC), which licenses hydroelectricfacilities under the Federal Power Act (FPA), 16 U.S.C. 791a et seq.,andthe Department of the Army, which administers permit programsrespectingwaters of the United States, see CWA § 404(a), 33 U.S.C. 1344(a);Riversand Harbors Appropriation Act of 1899, ch. 425, § 10, 30 Stat.1151(33 U.S.C. 403), must implement and comply with the requirements ofSection401(a) in conducting their licensing and permitting programs. Section401also directs the Environmental Protection Agency (EPA), which is generally responsiblefor administering the Clean Water Act, see 33 U.S.C. 1251(d), toprovidethe requisite water quality certifi cations when a State lacksauthorityto do so, 33 U.S.C. 1341(a)(1), and to provide compliance informationuponre quest from any federal, state, or interstate department or agency,33U.S.C. 1341(b). The federal government therefore has a substantialregulatoryinterest in the resolution of the question presented.


A. FERC Licensing Requirements

Congress enacted the Federal Power Act in 1920 to en courage, amongother things, the development of water power. See ch. 285, 41 Stat.1063. To promote the sound de velopment of water resources, federal lawhas providedsince 1935 that "[i]t shall be unlawful for any person * * * forthe purpose of developing electric power * * * to construct, operate,or maintain any dam, water conduit, reservoir, power house, or otherworksincidental thereto across, along, or in any of the navigable waters oftheUnited States" without a federal license granted pursuant to that Act.FPA § 23(b)(1), 16 U.S.C. 817(1); see Public Utility Act of 1935,ch. 687, § 210, 49 Stat. 846. Congress has authorized FERC, whichhas as sumed the responsibilities of the Federal Power Commission(FPC),see FPA § 1, 16 U.S.C. 792, to grant such licenses for periods upto,but not exceeding, 50 years, FPA §§ 4(e), 6, 16 U.S.C.797(e),799.

When FERC reviews a license application for any new or existingproject,the agency operates under a broad statutory mandate to ensure that theprojectis "adapted to a compre hensive plan for improving or developing awaterway" for multiple purposes, including: (a) "interstate orforeign com merce"; (b) "improvement and utilization of waterpower de velopment"; (c) "adequate protection, mitigation, anden hancement of fish and wildlife"; and (d) "other beneficialpub lic uses." See FPA § 10(a)(1), 16 U.S.C. 803(a)(1). FERC'sauthority is tempered, however, by other statutory provisions thatmandateinclusion of terms prescribed by other agencies. See FPA § 4(e),16U.S.C. 797(e); FPA § 18, 16 U.S.C. 811; Escondido Mut. Water Co.v.La Jolla Band of Mission Indi ans, 466 U.S. 765, 772 (1984).

Beginning in 1970, Congress subjected federal licensingproceedings,including Federal Power Act license proceed ings, to a new requirementoriginatingin the Water Quality Improvement Act of 1970, Pub. L. No. 91-224,§103, 84 Stat. 107, which amended the Federal Water Pollution ControlActof 1948, ch. 758, 62 Stat. 1155. The 1948 Act, which had been amendednumeroustimes between 1948 and 1970, gave the federal government only a limitedrole in water pollution con trol and encouraged States to develop andenforce"water quality standards." See 33 U.S.C. 466g(b) and (c) (Supp.V 1969); EPA v. California ex rel. State Water Res. Control Bd., 426U.S.200, 202-203 (1976). The Water Quality Improve ment Act of 1970 added anew Section 21(b) to the Federal Water Pollution Control Act. See§103, 84 Stat. 108. Section 21(b) mandated that any applicant for afederallicense to con duct an activity "which may result in a discharge intothe nav igable waters of the United States" must provide the licensingauthority with a certification from the State in which the dis chargewouldoriginate certifying that the activity would be conducted in a mannerthatwould not violate the State's wa ter quality standards. 33 U.S.C.1171(b)(1970). Soon thereaf ter, Congress enacted the Federal Water PollutionControl Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, whichenlarged the federal government's role in water pollu tion controlgenerallyand established a framework for federal-state cooperation that is acentralfeature of the cur rent Clean Water Act. See California, 426 U.S. at202-208. The 1972 Amendments incorporated the relevant terms of theWater QualityImprovement Act of 1970, originally codified at 33 U.S.C. 1171(b)(1970), into Section 401(a)(1) of the current CleanWater Act, 33 U.S.C. 1341(a)(1).

B. The Clean Water Act

The Clean Water Act seeks to "restore and maintain the chemical,physical, and biological integrity of the Nation's waters," CWA §101(a), 33 U.S.C. 1251(a), through a compre hensive and multifacetedstrategythat assigns distinct roles to the federal government and the States.ThatAct declares a "national goal" of eliminating "the dischargeof pollutants into the navigable waters," CWA § 101(a)(1), 33U.S.C. 1251(a)(1), and it specifically prohibits the "discharge ofany pollutant by any person" except in compliance with prescribedstatutoryrequirements, CWA § 301(a), 33 U.S.C. 1311(a). Those requirementsinclude federal effluent limitations, CWA §§ 301-302, 33U.S.C.1311-1312, and federal standards of per formance, CWA §§306-307,33 U.S.C. 1316-1317, which place restrictions on the discharge ofpollutants. See generally 40 C.F.R. Pts. 401-471. Those requirementsalso includetwo federal permit programs applicable to the discharge of pollut ants:(1) the "National Pollutant Discharge Elimination Sys tem" (NPDES)program, CWA § 402, 33 U.S.C. 1342; and (2) a separate permitprogramfor the discharge of "dredged or fill material," CWA § 404,33 U.S.C. 1344.

While Congress has established specific federal controls on the"dischargeof pollutants," it also has continued the pol icy, reflected in theFederal Water Pollution Control Act of 1948, to "recognize, preserve,and protect the primary re sponsibilities and rights of States toprevent,reduce, and eliminate pollution" and to "plan the developmentand use * * * of * * * water resources." CWA § 101(b),33 U.S.C. 1251(b); see 33 U.S.C. 466 (1964); see, e.g., Solid WasteAgencyv. United States Army Corps of Eng'rs, 531 U.S. 159, 166-167 (2001).Congressmade explicit its under standing that the States retain authority toregulatewater "pollution" that extends beyond the Clean Water Act's moreprecisely targeted federal restrictions on the "discharge ofpollutants." Compare CWA § 502(6), 33 U.S.C. 1362(6) (defin ing"pollutant"to mean specific substances), with CWA § 502(19), 33 U.S.C.1362(19)(defining "pollution" more broadly to encompass any "man-madeor man-induced alter ation of the chemical, physical, biological, andradiologicalintegrity of water").

Congress also recognized the need to coordinate federal and stateeffortsbased on principles of cooperative federal ism. See CWA § 101(b),33 U.S.C. 1251(b). The Clean Water Act provides for federal funding ofstate initiatives, federal- state consultation on a variety of issues,andstate enforce ment of federal standards. See, e.g., CWA §§106,304, 510, 33 U.S.C. 1256, 1314, 1370. The Act expressly allows Statestoimpose "standard[s] or limitation[s] respecting discharges ofpollutants"or "abatement of pollution" that are more strin gent than, orin addition to, those federal standards set out under the Act. See CWA§ 510, 33 U.S.C. 1370. It also allows EPA to authorize States toadministerportions of the federal permitting programs set out in Sections 402 and404. See CWA §§ 101(b), 402(b), 404(g)-(h), 33 U.S.C.1251(b),1342(b), 1344(g)-(h); 40 C.F.R. Pt. 123; see generally California, 426U.S.at 206-209.

As one important element of this strategy for federal-statecooperation,Congress retained, through Section 401 of the Clean Water Act, thestatewater quality certification pro gram that Congress had initiated in theWater Quality Im provement Act of 1970. Section 401(a) provides, inpertinentpart, that "[a]ny applicant for a Federal license or permit to conductany activity * * * which may result in any discharge into the navigablewaters, shall provide the licensing or per mitting agency acertificationfrom the State in which the discharge originates or will originate * ** that any such discharge will comply with the applicable provisions"of desig nated sections of the Act. 33 U.S.C. 1341(a).1

Section 401 ensures that, before federal licensing and per mittingagenciesauthorize activities that "may result in any discharge" into thewaters of the United States, the State in which the dischargeoriginateswill have the opportunity to determine whether the discharge wouldcomplywith applica ble provisions of the Act, including Section 303 statewaterquality standards and other appropriate requirements of State law. SeePUD No. 1 v. Washington Dep't of Ecology, 511 U.S. 700, 704-708 (1994).The potential for "any dis charge" into navigable waters triggersthe requirements of Section 401, thereby allowing the State to imposeappropriateconditions to ensure that the activity, and not just the dis charge,complieswith state water quality standards. See id. at 711-712. Under Section401(d), any such state-specified, water-quality-related conditions"shallbecome" part of the federal license. 33 U.S.C. 1341(d). See PUD No.1, 511 U.S. at 708, 711-713.

The Clean Water Act does not contain a delimited defini tion of thecritical triggering term "discharge," but makes clear that "[t]heterm 'discharge' when used without qualifica tion includes a dischargeofa pollutant, and a discharge of pollutants," CWA § 502(16), 33U.S.C. 1362(16) (emphasis added). The Act does contain a definition ofthose included activities: "[t]he term 'discharge of a pollutant' andthe term 'discharge of pollutants' each means * * * any addition of anypollutant to navigable waters from any point source," CWA §502(12),33 U.S.C. 1362(12).

C. The Proceedings In This Case

Petitioner owns and operates six hydroelectric facilities on thePresumpscotRiver in southern Maine. The facilities pro vide power for petitioner'spaper mill in Westbrook, Maine. Pet. App. A2. Anticipating theexpirationof existing federal licenses for five of the projects, petitionersubmittedcoordi nated applications to FERC in 1999 for a new license for eachproject. See S.D. Warren Co., 105 F.E.R.C. ¶ 61,011, at 61,084(Oct. 2, 2003). FERC regulations required petitioner, as an applicantfor a new license,to consult with Maine's DEP, the state agency responsible for Section401certifica tions, see 18 C.F.R. 4.30(a)(2), 5.1(d), and to file with theState "a request for a water quality certification * * * as requiredby Section 401 of the Clean Water Act," 18 C.F.R. 4.34(b)(5)(i),5.18(b)(3)(i).

As petitioner explains, its hydroelectric facilities generate powerby diverting water from the channel of the Presumpscot River into a"powercanal," through the generat ing turbines, and then back into the riverchannel through a "tailrace channel," thereby bypassing a sectionof the river channel where water not routed through the turbines continues to flow. Pet. Br. 3-4; see Pet. App. A75-A78; J.A. 9-17. In thecourseof the state certification proceedings, petitioner did not dispute thatthe Presumpscot River is part of the "navigable waters" subjectto the requirements of Section 401(a) of the Clean Water Act. See Pet.Br. 9-10. Petitioner urged, however, that Section 401(a) does not applyto its oper ations because the facilities do not result in "anydischargeinto" the Presumpscot River. See ibid.; Pet. App. A6, A22, A38.

After considering extensive submissions, DEP issued a Section 401certification. Pet. App. A74-A140. The certifica tion included, amongother things, conditionsrequiring peti tioner to maintain minimum stream flows in the portionsofthe river bypassed by the projects and conditions requiring Warren totakemeasures to allow passage for various species of migratory fish. Id. atA121-A140. Petitioner appealed DEP's Section 401 certification to thestateadministrative appeals tribunal, the Maine Board of EnvironmentalProtection (BEP), which affirmed the decision of DEP, id. at A35- A73, andrejectedpetitioner's contention that the facilities do not result in adischarge,id. at A40-A42. Petitioner then sought judicial review of the stateagencyaction by initiating a state suit in the Cumberland County SuperiorCourt,which affirmed the BEP determination, id. at A19-A34, including itsconclusionthat petitioner's facilities result in a discharge, id. at A22-A25.Petitionerappealed the superior court's decision to the Maine Supreme JudicialCourt,which affirmed the su perior court's judgment, id. at A1-A18, includingits conclu sion that petitioner's facilities result in a discharge thattrig gers Section 401's state certification requirement, id. at A6- A10.

The Maine Supreme Judicial Court examined the Clean Water Act'sdescriptionof the term "discharge," CWA § 502(16), 33 U.S.C. 1362(16),and observed that the Act does not "expressly define" the term. Thecourt nevertheless ex pressed the view that an "addition"is a "fundamental charac teristic of any discharge." Pet. App.A6. The court then de termined that petitioner's hydroelectricgeneratingfacilities result in an "addition" because they "remove thewater of the river from its natural course, exercise private controloverthe water and then add the water back into the river." Id. at A8. Thecourt rejected petitioner's contention that the term "dis charge"under Section 401 is limited to the "discharge of a pollutant"or "discharge of pollutants," observing that the Clean Water Actdefines "discharge" expansively to "in clude[]" thosemore limited phrases. Id. at A8-A10.

Petitioner proceeded with the FERC license proceedings while itpursuedits state appeals. While the superior court action was pending, FERCissuednew licenses for all five projects. See S.D. Warren Co., 105 F.E.R.C.¶¶61,009-61,013 (Oct. 2, 2003). In each license order, FERC stated thatthelicense was "subject to the water quality certification condi tions"that DEP had imposed, which were attached to each order. See, e.g., 105F.E.R.C. ¶ 61,013, at 61,144. Petitioner sought administrativerehearing,which FERC denied. S.D. Warren Co., 106 F.E.R.C. ¶ 61,087 (Jan.29,2004). Petitioner then sought judicial review of FERC's license ordersin the United States Court of Appeals for the D.C. Circuit. Peti tionerdid not pursue its present claim-that its dams do not result indischargesfor Section 401 purposes-in either the proceedings before FERC or inthecourt of appeals. The court of appeals affirmed FERC's orders in anunpublishedper curiam opinion. S.D. Warren Co. v. FERC, No. 04-1105 (D.C. Cir. May6, 2005).2


The Clean Water Act requires an applicant for a federal license toobtaina state water quality certification if the li censed activity "mayresult in any discharge into the naviga ble waters." CWA §401(a)(1),33 U.S.C. 1341(a)(1). The piv otal issue in this case is whetherpetitioner'shydroelectric generating facilities, which require FERC licensing, mayresultin such a "discharge." Congress made clear that the term "discharge"includes but is not limited to a "discharge of pollutants"-a statutoryterm of art-but otherwise left the term "discharge" undefined. See CWA§§ 502(12) and (16), 33 U.S.C. 1362(12) and (16). Congressthereby indicated its in tent that the ordinary meaning of the worddischarge-"aflowing or issuing out" (Webster's Third New International Dictionary644 (1993) (Webster's Third); Webster's Second New InternationalDictionary742 (1958) (Webster's Sec ond))-would determine the reach of that term.

Petitioner's hydroelectric generating facilities necessarily resultin a "discharge" within the ordinary meaning of that term. Itis common parlance to speak of a release of water from a dam andreservoiras a "discharge," and that usage accurately describes the waterreleases at issue here. Peti tioner's facilities divert and impoundPresumpscotRiver wa ter for purposes of power generation, and then return thewaterinto a different portion of the river channel. The im pounded water,uponrelease, "flow[s] or issue[s] out" of the facility and into theconcededly navigable river channel. Con trary to petitioner's primarycontention(Pet. Br. 17), the Clean Water Act imposes no requirement that a"discharge"must result in the "addition" of "a pollutant or at leastsome thing similar to a pollutant." By providing that the term "discharge" "includes," as opposed to "means," the"discharge of a pollutant"-i.e., "any addition of any pollutantto navigable waters from any point source," CWA § 502(12), 33U.S.C. 1362(12)-Congress necessarily rejected the narrow interpretationproffered by petitioner, and instead manifested its in tent that theterm"discharge" would have its normal mean ing, i.e., any "flowingor issuing out" of water from the facility into the river channel,without regard to whether that "dis charge" also results in an"addition" of pollutants or of any thing else.

That conclusion is consistent with this Court's decision in PUD No.1 v. Washington Department of Ecology, 511 U.S. 700 (1994), whichcorrectlyassumed that a similar hydroelec tric facility would result in adischargefor Section 401 pur poses. It is also consistent with the Court'sdecisionin South Florida Water Management District v. Miccosukee Tribe ofIndians,541 U.S. 95 (2004), which did not address the re quirements of Section401but nevertheless suggests that there is a distinction between a"discharge"and an "addition." Construing the term "discharge"according to its ordinary meaning provides a clear rule and fulfillsCongress'sexpress objective of ensuring that federal licensing authorities areattentiveto the rights that each State retains under the Clean Water Act toregulatenot only the "discharge of pollutants," but also any "discharges"that may result in "pollution." See CWA §§ 101(b),510, 33 U.S.C. 1251(b), 1370.



An applicant for a FERC license must obtain a state water qualitycertificationif the licensed activity "may result in any discharge into thenavigablewaters." CWA § 401(a), 33 U.S.C. 1341(a). Congress expansivelydefined the crucial term "discharge" by inclusion, CWA §502(16), 33 U.S.C. 1362(16), not limitation, manifesting its intentthatthe term should be construed in light of its ordinary meaning-"a flowing or issuing out." Webster's Third 644; Webster's Second 742. Underthat definition, the hydroelectric facilities at issue here, whichreleaseimpounded water back into a river chan nel, clearly result in adischargefor purposes of Section 401. Contrary to petitioner's centralsubmission,the discharge need not "add" pollutants, or anything else, tothe river. This Court's decisions, as well as the structure andpurposesof the Clean Water Act and its legislative history, all support interpretingthe term "discharge" according to its ordinary mean ing, whichprovides a clear administrative rule to guide fed eral and state agencyproceedings.

A. The Term "Discharge" In Section 401(a) Should Be In terpretedIn Light Of Its Ordinary Meaning

The Clean Water Act provides a series of carefully crafteddefinitionsfor purposes of applying the Act's complex, and in some cases highlytechnical,provisions. See CWA § 502, 33 U.S.C. 1362. Nearly all of the 23definitionsset forth precise meanings, and many are terms of art. The Clean WaterAct's definition of "discharge" is distinctive, because that termis not comprehensively delineated but instead is defined only byinclusion: "The term 'discharge' when used without qualifica tionincludes adischarge of a pollutant, and a discharge of pollutants." CWA §502(16), 33 U.S.C. 1362(16) (emphasis added).

That distinctive characteristic stands in sharp relief to the Act'smore circumscribed definitions of the subsidiary terms: "The term'discharge of a pollutant' and the term 'discharge of pollutants' eachmeans* * * any addition of any pollutant to navigable waters from any pointsource." CWA § 502(12), 33 U.S.C. 1362(12) (emphasis added). TheAct similarlyde fines the key terms "pollutant," "navigable waters,"and "point source" to "mean" particular things. SeeCWA § 502(6), (7), and (14), 33 U.S.C. 1362(6), (7), and (14).

The Clean Water Act's inclusive definition of "discharge" indicatesthat the term is not limited to-i.e., does not "mean"-the discharge of one or more pollutants. See, e.g., Chicka saw Nationv. United States, 534 U.S. 84, 89 (2001) ("To 'in clude' is to'contain'or 'comprise as part of a whole.'") (cita tion omitted). That singularand distinctive use of the word "includes" rather than "means"among the Act's 23 definitions demonstrates in bold relief Congress'sunmistakableintent and understanding that the term "discharge" would encompass "discharges" beyond those that qualify as the "additionof any pollutant to navigable waters from any point source." CWA §502(12), 33 U.S.C. 1362(12). See Helvering v. Mor gan's Inc., 293 U.S.121, 125 n.1 (1934) ("The natural distinc tion would be that where'means' is employed, the term and its definition are to beinterchangeableequivalents, and that the verb 'includes' imports a general class, someof whose particular instances are those specified in the definition.").

The Clean Water Act's inclusive definition is also reveal ing inanothercentral respect. That formulation expresses Congress's intention thattheterm "discharge" should be con strued according to its ordinarymeaning and not as a statu tory term of art. Congress made clear thattheterm "dis charge" describes a class of activities that "includes"two such statutory terms of art-the synonymous terms "discharge ofa pollutant" and "discharge of pollutants"-but it otherwiseleft the membership of the class undefined. By so doing, Con gressexpressedits intention that the ordinary meaning of the term "discharge"would delimit the scope of that term. See, e.g., FDIC v. Meyer, 510U.S.471, 476 (1994) (an undefined statutory term is construed "inaccordancewith its ordinary or natural meaning").

B. The Ordinary Meaning Of Discharge-"A Flowing Or IssuingOut"-EncompassesA Hydroelectric Facility's Release Of Diverted Water To A River Channel

The term "discharge" can have a variety of meanings de pendingon the context. But when the term "discharge" is used in thewater-related context that Section 401(a) de scribes, it means "aflowingor issuing out." Webster's Third 644; Webster's Second 742. See,e.g., 4 The Oxford English Dictionary 732 (2d ed. 1989) ("The act ofsending out or pour ing forth."); Random House Dictionary of theEnglishLan guage 561-562 (2d ed. 1987) ("a sending or coming forth, as ofwater from a pipe"); PUD No. 1, 511 U.S. at 725 (Thomas, J.,dissenting)("The term 'discharge' is not defined in the [Clean Water Act,] butits plain and ordinary meaning suggests 'a flowing or issuing out,' or'somethingthat is emitted.'") (quot ing Webster's Ninth New Collegiate Dictionary360 (1991)).

Hydroelectric dams, which typically impound water for powerproduction,necessarily produce "a flowing or issuing out" of water when theyreturn the diverted water to the river channel. Indeed, releases ofwaterfrom dams and reservoirs are characteristically and routinely describedas "discharges." See, e.g., United States v. James, 478 U.S.597, 599 (1986) ("Enormous underwater portals set within the MillwoodDam, called 'tainter gates,' allow the discharge of water from theReservoirinto a spilling basin below."); Arizona v. California, 373 U.S. 546,619 n.25 (1963) (Harlan, J., dissenting in part) (referring to personswhomay "take water out of the stream which has been discharged from thereservoir"); United States v. Arizona, 295 U.S. 174, 181 (1935)("ParkerDam will intercept waters discharged at Boulder Dam."); Wyoming v.Colorado, 259 U.S. 419, 482 (table showing "Discharge of Laramie Riverat Pioneer Dam"), modified, 260 U.S. 1 (1922), vacated, 353 U.S. 953(1957).3

Petitioner's hydroelectric generating facilities, which con sist ofa familiar arrangement of dams, impoundments, a "power" canal,turbines, and a by-pass channel, see J.A. 10-17, necessarily releaseimpoundedwater into the channel of the Presumpscot River and therefore result ina "flowing or issu ing out" of that water. As a matter of ordinaryusage, the operation of petitioner's hydroelectric generatingfacilitiesresults in a "discharge" of diverted water, used to power turbines, when the water is returned to the river channel. That discharge,in turn, triggers Section 401's state certification requirement, whichensuresthat the federal licensing authori ties properly take account of theimpactof those water re leases on the State's "primary responsibilities"to regulate "the man-made or man-induced alteration of the chemical,physical, biological, and radiological integrity of water." CWA§§101(b), 502(19), 33 U.S.C. 1251(b), 1362(19).

C. The Term "Discharge" Does Not Require An "Addition"

The Maine Supreme Judicial Court correctly concluded thatpetitioner'shydroelectric generating facilities result in a "discharge" forpurposes of Section 401, but it did so on a mistaken rationale. Thesupremejudicial court asserted, without lexicographical reference, that "[a]n'addition' is the fundamental characteristic of any discharge." Pet.App. A6. Applying that incorrect understanding, it then concluded thatthe release of water constituted a "discharge" because the watersimpounded by petitioner's dams "have lost their status as waters ofthe United States" and thus an "addition" to navi gable watersoccurs when they are "redeposited into the natu ral course of theriver." Id. at A8; see id. at A6-A8, A10. The court's reasoning waserroneous,but its ultimate conclusion was sound.

1. As an initial matter, the supreme judicial court erred inholdingthat the water impounded by petitioner's dams loses its status asnavigablewaters and is then "added" back to those waters after it passesthrough the dams. EPA has consistently construed the phrase "navigablewaters" (i.e., "the waters of the United States," CWA §502(7), 33 U.S.C. 1362(7)) to include "impoundments of waters otherwisede fined as waters of the United States." 40 C.F.R. 122.2. Accordingly,water impounded by and passing through a dam generally does not loseitscharacter as "waters of the United States." See, e.g., NationalWildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 586, 589 (6th Cir.1988). That conclu sion is supported by longstanding agencyinterpretationand is entitled to substantial deference.4

The supreme judicial court thus erred in concluding that waterpassingthrough a dam is "added" to the waters of the United States whenit reenters the natural channel of the river. That error warrantscorrection,because the lower court's analysis of that issue is irreconcilable withthe settled understanding, adopted by EPA in 1973 and consistentlymaintainedthereafter, that dams generally do not "add[]" pollutants to thenavigable waters "from the outside world" and are therefore notsubject to NPDES permitting require ments, even though the waterpassingthrough the dams may itself contain pollutants. See Consumers PowerCo.,862 F.2d at 584-588; National Wildlife Fed'n v. Gorsuch, 693 F.2d 156,165,168-169 & nn.39-40, 174-177 (D.C. Cir. 1982).5

2. More fundamentally, the supreme judicial court also erred inassumingthat an "addition" is necessary in order for a "discharge"to occur for purposes of Section 401(a). When "discharge" isconstrued in light of its ordinary meaning, as it must be, an"addition"is not a fundamental characteristic of that term. The term "discharge,"in the relevant context of water, refers to the physical release of thewater from some confining source or location, viz., "a flowing orissuingout." As demonstrated above, dictionaries uniformly define a "discharge" of water based on the characteristic of physical re lease fromconfinement and not on the basis of an "addition." See pp. 13-14,supra. A discharge may commonly result in an addition of some sort, butthe ordinary meaning of "dis charge" denotes the "flowingor issuing out" and not any con sequent "addition," no matterhow common that result may be.

3. Petitioner, consistent with the reasoning of the court below,doesnot suggest that the ordinary meaning of "dis charge" requiresan "addition." Rather, it derives that gloss from other provisionsof the Clean Water Act. Petitioner asserts that the Act's inclusivedefinitionof "discharge" does not adequately identify the limits of thatterm. See Pet. App. A6; Pet. Br. 15; see also North Carolina v. FERC,112F.3d 1175, 1188 (D.C. Cir. 1997), cert. denied, 522 U.S. 1108 (1998).Butinstead of following the normal course of statutory con struction andconsultinga dictionary, see, e.g., FDIC, 510 U.S. at 476, it extracts a limitingprinciplefrom the Clean Water Act's definition of a different term-"dischargeof a pollut ant." See CWA § 502(12), 33 U.S.C. 1362(12) (definingthe term in relevant part as "any addition of any pollutant to navigable waters from any point source").

According to petitioner, the definition of "discharge of apollutant"indicates that "Congress equated the notion of a 'discharge' with thenotion of 'any addition . . . from any point source.'" Pet. Br. 15. Seeid. at 16-17 ("Congress associated a 'discharge' with an 'addition'into the water of a pollutant or at least something like apollutant."). That reasoning, how ever, does not withstand scrutiny.The Clean WaterAct de fines "discharge of a pollutant" as a statutory term ofart. Congress's specification that the general term "discharge"includes that term of art makes clear that the latter is encom passedwithinthe former, but it says nothing about the outer reach of the generalterm,which therefore must be construed according to its ordinary meaning.

Petitioner's error is especially evident when considered in lightofthe history of the Clean Water Act. Congress em ployed the undefinedterm"discharge" in the pre-1970 Fed eral Water Pollution Control Actand, by leaving that term completely undefined, necessarily used it initsordinary sense. See 33 U.S.C. 466a (Supp. V. 1969) (authorizing jointinvestigationsof "discharges of any sewage, industrial wastes, or substance whichmay adversely affect such waters"). Con gress also employed theundefinedterm "discharge" in provi sions of the 1970 version of the FederalWater Pollution Con trol Act, including the provision that later becameSection 401(a) (see pp. 3-4, supra), again necessarily employing thattermin its ordinary sense. See 33 U.S.C. 1171(b) (1970).6

When Congress enacted the Federal Water Pollution Con trol ActAmendmentsof 1972, it continued to employ the un adorned term "discharge"in Section 401(a). 33 U.S.C. 1341(a). But at the same time, Congressdefinedthe phrase "discharge of a pollutant" as a statutory term of artfor use in new provisions of the Act, where the specific and technicalmeaningof that defined term plays a crucial role in determin ing the reach ofthoseprovisions. See, e.g., CWA § 301(a), 33 U.S.C. 1311(a) ("thedischarge of any pollutant by any person shall be unlawful"); CWA§402(a), 33 U.S.C. 1342(a) (EPA may "issue a permit for the dischargeof any pollutant"). By so doing, Congress carefully limited the reachof those provi sions to "discharges" that result in the "addition"to "naviga ble waters" of "pollutants" from a "pointsource." See, e.g, California, 426 U.S. at 203-205 (describing theoperation of Section 301 and 402 with reference to the statutory definitions).

Congress specifically clarified the relationship between the terms"discharge"and "discharge of a pollutant," thereby eliminating any confusionthat might otherwise have arisen from its use of "discharge" inits ordinary sense in some Clean Water Act provisions and its use of"dischargeof a pollutant" as a statutory term of art in the Act's otherprovisions. In particular, Congress made clear that the broader andmore expansiveterm "discharge" includes the more circumscribed term "dischargeof a pollutant" as well as its synonymous plural "discharge ofpollutants." CWA § 502(16), 33 U.S.C. 1362(16). That congressionaldetermination is entirely consis tent with the ordinary meaning ofdischarge-"aflowing or issuing out"-which necessarily includes "any additionof any pollutant to navigable waters from any point source." CWA §502(12), 33 U.S.C. 1362(12).

It would be irrational, especially in light of the statutoryevolutionof those terms, to conclude that, because Congress clarified that ageneralterm "includes" a more circumscribed term of art, the generalterm is somehow confined by the same limitations. If Congress had meantto say that a "dis charge" is an "addition . . . from a pointsource" (Pet. Br. 15) or an "addition" of a "pollutant"or "something similar" (id. at 17), it could have, and would have,simply said so. Instead, Congress preserved the general term"discharge"for use in statutory provisions, such as Section 401, when it intendedtoconvey the ordinary meaning of that term, and defined the term of art"dischargeof a pollutant" for use in other provi sions, such as Sections 301and 402, when it intended to con vey the more circumscribed meaning."[W]hereCongress includes particular language in one section of a statute butomitsit in another section of the same Act, it is generally presumed thatCongressacts intentionally and purposely in the disparate inclusion orexclusion." Bates v. United States, 522 U.S. 23, 29 (1997) (citationomitted).7

4. Petitioner further argues that "[i]t stretches credulity tocontend that Congress somehow envisioned a river flowing through a damasa river 'discharging into' itself." Pet. Br. 17. But that argumentignores the role of the dam. A "flowing or issuing out" willalways be "out" of something and "into" something, andthis Court's own decisions confirm that it is common usage to say thatadam or reservoir "discharges into" the very river that it impounds. SeePUD No. 1, 511 U.S. at 709 (the proposed Elkhorn Hydroelectric Project"may result in discharges into the Dosewallips River"). Thatusage accurately describes what physically takes place: Thehydroelectricfacility diverts water from the river channel, passes the water throughturbines to generate power, and "then return[s] the water to the riverbelow the bypass reach." Ibid. The facility thereby returns the waterby "dis charge into" the same river channel from which it waswith drawn. CWA § 401(a), 33 U.S.C. 1341(a).8

Even if there were any room for doubt about the applica bility ofSection401(a) to hydroelectric facilities, such doubt would have to beresolvedin favor of EPA's interpretation. EPA has consistently maintained thatthe licensing of hydro electric facilities under the Federal Power Actissubject to the requirements of Section 401(a). EPA has taken that position in an agency guidance document, in communications with FERC, andinconstruing its own authority to issue certifica tions under Section401(a)when no state agency has authority to do so.9 That longstandingadministrativeconstruction of the Act is entitled to deference. See, e.g., Barnhartv.Walton, 535 U.S. 212, 221-222 (2002).

D. This Court's Decisions Support Interpreting The Term "Discharge"According To Its Ordinary Meaning

Petitioner gives scant attention to this Court's decision in PUDNo.1, which held, in circumstances strikingly similar to this case, that astate-issued Section 401 certification for a hydroelectric project mayproperlyimpose conditions on the project as a whole-and not just itsdischarges. See 511 U.S. at 710-723. In that case, as here, thestate-imposed conditionsincluded minimum stream flows to ensure compliance with state waterqualitystandards. See ibid. To be sure, the peti tioner in that case did notdispute that the project resulted in a "discharge," see note 3,supra, but the petitioner also did not overlook that point.10 TheCourt,in its "thorough analy sis" (511 U.S. at 723 (Stevens, J. concurring)),expressed no doubt that the project resulted in a "discharge." The twodissenting Justices disagreed on the appropriateness of the minimumstream flow condition, but expressly recognized that the term"discharge"should be construed in light of its ordi nary meaning as "a flowingor issuing out," id. at 725 (Thomas, J., dissenting). Against thatbackdrop, PUD No. 1 stands as a substantial obstacle to any conclusionthata hy droelectric project does not result in a "discharge."

Rather than confronting PUD No. 1, petitioner focuses on thisCourt'sdecision in South Florida Water Management District v. Miccosukee Tribeof Indians, 541 U.S. 95 (2004), which did not address Section 401 anditsuse of the general term "discharge," but instead addressed Section402, which uses the more circumscribed term "discharge of a pollutant."The Court's decision in Miccosukee is relevant here only in two limitedrespects, neither of which is helpful to petitioner.

First, Miccosukee illustrates why Congress drew its defi nitionaldistinction. Section 401, which uses the broader term "discharge,"directsthat, whenever federal authorities license an activity that may resultinany "flowing or issuing out" of anything into navigable waters,they obtain input from the State where the release takes place toensurethat the release will not interfere with the State's broad retainedauthorityto regulate "the man-made or man-induced alteration of the chemical,physical, biological, or radiological integrity of wa ter." CWA§§101(b), 502(19), 33 U.S.C. 1251(b), 1362(19). By contrast, Section402-theprovision at issue in Miccosukee -involves only the issuance offederallymandated NPDES permits for the "addition of [a] pollutant to navigablewaters from [a] point source." CWA §§ 402(a), 502(12), 33U.S.C. 1342(a), 1362(12). Section 401's broad and inclusive reach,requiringexamination of any "discharge" that might lead to "pollution,"thus ensures that federally licensed projects will comply with statewaterquality standards even when the more targeted and specific requirementsof the NPDES pro gram are not applicable.11

Second, the Court's decision in Miccosukee usefully illumi natesthedifference between a "discharge" and an "addition." In discussing"additions," the Court noted by analogy that

[i]f one takes a ladle of soup from a pot, lifts it above the pot,andpours it back into the pot, one has not 'added' soup or anything elsetothe pot.

541 U.S. at 110 (quoting Catskill Mountains Chapter of TroutUnlimited,Inc. v. New York, 273 F.3d 481, 492 (2d Cir. 2001)). Though not an"addition,"the act of "pour[ing the soup] back into the pot" is plainly a"discharge" within the ordinary meaning of that term.12

E. The Clean Water Act's Purpose and Legislative History SupportTheConclusion That Petitioner's Facilities Result In A "Discharge Intothe Navigable Waters"

Section 401 is one part of the Clean Water Act's compre hensivewaterpollution control program, which seeks to coor dinate federal and stateefforts to ensure clean water. The Act places federal limitations onthe"discharge of pollut ants," while continuing a policy recognizing"the primary responsibilities and rights of States to prevent, reduce,and eliminate pollution." See CWA § 101(a)(1) and (b), 33 U.S.C.1251(a)(1) and (b) (emphasis added). The Act preserves the broad powerof a State to develop its own more stringent standards and limitations,stating that nothing in the Act's provisions shall preclude or deny theright of any State "to adopt or enforce (A) any standard or limitationrespecting discharges of pollutants, or (B) any requirement respectingcontrolor abatement of pollution," in addition to or more stringent than whatthe federal law requires. See CWA § 510, 33 U.S.C. 1370 (emphasisadded).

Congress clearly understood that activities that do not result indischargesof pollutants may nevertheless contribute to pollution. Congress alsoknewthat, in the absence of con gressional direction, principles of federalpreemption might well exempt many federally licensedactivities-includingthe generation of hydroelectric power-from state environmentalregulation. See California v. FERC, 495 U.S. 490, 506-507 (1990); FirstIowa Hydro-Elec.Coop. v. FPC, 328 U.S. 152, 175-176 (1946). Congress accordinglyadoptedSection 401 to ensure that federally licensed activities would notescapestate regulation. Section 401 expressly enables a State to apply itsfederallymandated water-pollution-control program to those activities. SeeAlabamaRivers Alliance v. FERC, 325 F.3d 290, 292-293 (D.C. Cir. 2003);AmericanRivers, Inc. v. FERC, 129 F.3d 99, 111 (2d Cir. 1997).

As petitioner appears to acknowledge (Pet. Br. 4, 23), even if ahydroelectricgenerating facility does not add pollutants to navigable waters, thedischargeof diverted or impounded water may cause "pollution" by producinga "man-made or man-induced alteration" of water quality. CWA§ 502(19), 33 U.S.C. 1362(19). See generally Gorsuch, 693 F.2d at161-174. Among other things, the diversion and impoundment of water"canlower dissolved oxygen concentrations by reducing natu ral reaeration,increasingtime of travel, increasing water temperature, and creating settlingbasinsfor sediment and nutrients." Pet. App. A114 (DEP findings). In thepresent case, it is undisputed that reaches of Presumpscot River do notmeet Maine's dissolved-oxygen standards and that peti tioner'sfacilities"cause or contribute to the violation[s]." Id. at A114-A115 (DEPfindings); id. at A56-A57 (BEP findings).

Section 401 squarely addresses the need for federal licens ingauthoritiesto take account of a State's important interest in abating pollutionthatmight arise in exactly these circum stances. If petitioner's facilitiesare not subject to Section 401, the State would be without an importantmechanism to regulate the pollution caused by those facilities andtheirdis charges. That result would be contrary to Congress's express policy"to recognize, preserve, and protect" the rights of each State"to prevent, reduce, and eliminate pollution." CWA § 101(b),33 U.S.C. 1251(b).13

The legislative history of the Clean Water Act fully sup portsCongress'stextually evident objectives. Senator Coo per, a principal sponsor oftheinitial legislation that imposed the requirement now included inSection401(a), spoke of the need for state certification during the floordebate. He ob served that "the Federal Government contributes to waterpollutionin its licensing activities over such things as nuclear power plants,[and]hydroelectric power plants licensed by the Federal Power Commission."See 115 Cong. Rec. 28,971 (1969) (emphasis added). Senator Cooperstatedthat the leg islation would require, "without exception, that allFederalactivities that have any effect on water quality be conducted so thatwaterquality standards will be maintained." Ibid. (emphasis added). Thoseremarks do not stand alone.14

When Congress recast the former Section 21(b) as Section 401 of theFederal Water Pollution Control Act in 1972, the Senate Report on thenewlegislation again confirmed Con gress's intent that the statecertificationrequirement would apply to Federal Power Act licenses. See S. Rep. No.414, 92d Cong., 1st Sess. 69 (1971). The Senate Report states thatSection401 "continues the authority of the State * * * to act to denya permit and thereby prevent a Federal license or permit from issuingtoa discharge source within such State or jurisdiction of the interstateagency"and that "[s]hould such an affirmative denial occur no license orpermitcould be is sued by such Federal agencies as the * * * Federal PowerCommission * * * unless the State action was overturned in theappropriatecourts of jurisdiction." Ibid. (emphasis added).

When Congress enacted the Clean Water Act of 1977, Pub. L. No.95-217,91 Stat. 1566, it also reaffirmed its desire for a broad reading ofSection401. As part of those amendments, Congress modified Section 401 to adda reference to Section 303 and state water quality standards, which hadbeen inad vertently left out of the original version. See § 64, 91Stat. 1599. The Senate Report explains that the "amendment fol lowsthe original congressional intent and clarifies that * * * Section 303was intended to be part of the control mechanism available to theStatesfor protection of State wa ter quality." S. Rep. No. 370, 95th Cong.,1st Sess. 72-73 (1977); see H.R. Rep. No. 830, 95th Cong., 1st Sess. 96(1977). That history confirms that Congress enacted Section 401 not asan adjunct to the new federal controls on the "discharge ofpollutants,"but to continue the existing program to empower States to regulate any"discharges"from federally licensed facilities that cause pollution.15

In sum, the Clean Water Act's specific text, this Court'sdecisions,and the purposes that Congress sought to achieve are all in alignment.Petitioner's operation of its hydroelec tric facilities results in a"discharge"for purposes of Section 401(a) of the Clean Water Act.


The judgment of the Supreme Judicial Court of Maine should beaffirmed.

Respectfully submitted.

Solicitor General
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor

General Counsel
Environmental Protection




1. Section 101(a) and (b) of the Clean Water Act, 33 U.S.C. 1251(a)and (b), provides:

Congressional declaration of goals and policy

(a) Restoration and maintenance of chemical, physical and biologicalintegrity of Nation's waters; national goals for achievement ofobjective

The objective of this chapter is to restore and maintain thechemical,physical, and biological integrity of the Nation's waters. In order toachieve this objective it is hereby de clared that, consistent with theprovisions of this chapter-

(1) it is the national goal that the discharge of pollut ants intothenavigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an interimgoalof water quality which provides for the pro tection and propagation offish,shellfish, and wildlife and provides for recreation in and on the waterbe achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxicpollutantsin toxic amounts be prohibited;

(4) it is the national policy that Federal financial as sistance beprovided to construct publicly owned waste treatment works;

(5) it is the national policy that areawide waste treat mentmanagementplanning processes be developed and implemented to assure adequatecontrolof sources of pol lutants in each State;

(6) it is the national policy that a major research anddemonstrationeffort be made to develop technology nec essary to eliminate thedischargeof pollutants into the navigable waters, waters of the contiguous zone,and the oceans; and

(7) it is the national policy that programs for the con trol ofnonpointsources of pollution be developed and im plemented in an expeditiousmannerso as to enable the goals of this chapter to be met through the controlof both point and nonpointsources of pollution.

(b) Congressional recognition, preservation, and protection ofprimaryresponsibilities and rights of States

It is the policy of the Congress to recognize, preserve, andprotectthe primary responsibilities and rights of States to prevent, reduce,andeliminate pollution, to plan the develop ment and use (includingrestoration,preservation, and en hancement) of land and water resources, and toconsultwith the Administrator in the exercise of his authority under thischapter. It is the policy of Congress that the States manage theconstruction grantprogram under this chapter and imple ment the permit programs undersections1342 and 1344 of this title. It is further the policy of the Congresstosupport and aid research relating to the prevention, reduction, andeliminationof pollution and to provide Federal technical ser vices and financialaidto State and interstate agencies and municipalities in connection withtheprevention, reduction, and elimination of pollution.

2. Section 401(a)(1) and (d) of the Clean Water Act, 33 U.S.C.1341(a)(1)and (d), provides:


(a) Compliance with applicable requirements; application; procedures;license suspension

(1) Any applicant for a Federal license or permit to con duct anyactivityincluding, but not limited to, the construc tion or operation offacilities,which may result in any dis charge into the navigable waters, shallprovidethe licensing or permitting agency a certification from the State inwhichthe discharge originates or will originate, or, if appropriate, fromtheinterstate water pollution control agency having jurisdiction over thenavigablewaters at the point where the discharge originates or will originate,thatany such discharge will comply with the applicable provisions ofsections1311, 1312, 1313, 1316, and 1317 of this title. In the case of any suchactivity for which there is not an applicable effluent limitation orotherlimitation under sections 1311(b) and 1312 of this title, and there isnotan applicable standard under sections 1316 and 1317 of this title, theStateshall so certify, except that any such certification shall not bedeemedto satisfy sec tion 1371(c) of this title. Such State or interstateagencyshall establish procedures for public notice in the case of all applicationsfor certification by it and, to the extent it deems ap propriate,proceduresfor public hearings in connection with specific applications. In anycasewhere a State or interstate agency has no authority to give such acertification,such cer tification shall be from the Administrator. If the State,interstate agency, or Administrator, as the case may be, fails or refuses toact on a request for certification, within a reason able period of time(which shall not exceed one year) after receipt of such request, thecertificationrequirements of this subsection shall be waived with respect to suchFederalappli cation. No license or permit shall be granted until the certificationrequired by this section has been obtained or has been waived asprovidedin the preceding sentence. No license or permit shall be granted ifcertificationhas been denied by the State, interstate agency, or the Administrator,asthe case may be.

* * * * *

(d) Limitations and monitoring requirements of certification

Any certification provided under this section shall set forth anyeffluentlimitations and other limitations, and moni toring requirementsnecessaryto assure that any applicant for a Federal license or permit willcomplywith any applica ble effluent limitations and other limitations, undersection1311 or 1312 of this title, standard of performance under sec tion 1316of this title, or prohibition, effluent standard, or pretreatmentstandardunder section 1317 of this title, and with any other appropriaterequirementof State law set forth in such certification, and shall become aconditionon any Fed eral license or permit subject to the provisions of thissection.

3. Section 502(6), (12), (16), and (19) of the Clean Water Act, 33U.S.C.1362(6), (12), (16), and (19), provides:


Except as otherwise specifically provided, when used in thischapter:

* * * * *

(6) The term "pollutant" means dredged spoil, solid waste,incinerator residue, sewage, garbage, sewage sludge, muni tions,chemicalwastes, biological materials, radioactive mate rials, heat, wrecked ordiscardedequipment, rock, sand, cellar dirt and industrial, municipal, andagriculturalwaste dis charged into water. This term does not mean (A) "sewagefrom vessels or a discharge incidental to the normal operation of avesselof the Armed Forces" within the meaning of sec tion 1322 of this title;or (B) water, gas, or other material which is injected into a well tofacilitateproduction of oil or gas, or water derived in association with oil orgasproduction and disposed of in a well, if the well used either tofacilitateproduction or for disposal purposes is approved by authority of theStatein which the well is located, and if such State de termines that suchinjectionor disposal will not result in the degradation of ground or surfacewaterresources.

* * * * *

(12) The term "discharge of a pollutant" and the term "dischargeof pollutants" each means (A) any addition of any pollutant tonavigablewaters from any point source, (B) any addition of any pollutant to thewatersof the contiguous zone or the ocean from any point source other than avesselor other floating craft.

* * * * *

(16) The term "discharge" when used without qualificationincludes a discharge of a pollutant, and a discharge of pollut ants.

* * * * *

(19) The term "pollution" means the man-made or man- inducedalteration of the chemical, physical, biological, and radiologicalintegrityof water.

4. Section 510 of the Clean Water Act, 33 U.S.C. 1370, provides:

State authority

Except as expressly provided in this chapter, nothing in thischaptershall (1) preclude or deny the right of any State or politicalsubdivisionthereof or interstate agency to adopt or enforce (A) any standard orlimitationrespecting dis charges of pollutants, or (B) any requirement respectingcon trol or abatement of pollution; except that if an effluent limitation,or other limitation, effluent standard, prohibition, pre treatmentstandard,or standard of performance is in effect under this chapter, such Stateorpolitical subdivision or inter state agency may not adopt or enforceanyeffluent limitation, or other limitation, effluent standard,prohibition,pretreat ment standard, or standard of performance which is lessstringentthan the effluent limitation, or other limitation, ef fluent standard,prohibition,pretreatment standard, or stan dard of performance under this chapter;or(2) be construed as impairing or in any manner affecting any right orjurisdiction of the States with respect to the waters (including bound arywaters)of such States.

1 The designated provisions include Sections 301 and 302, whichestablishfederal effluent limitations, see 33 U.S.C. 1311, 1312, and Sections306and 307, which establish federal standards of performance, see 33U.S.C.1316, 1317. The designated provisions also include Section 303, whichrequiresStates to establish water quality standards. 33 U.S.C. 1313. Congressfirst introduced the concept of water quality standards through the1965amendments to the Federal Water Pollution Control Act of 1948. SeeWaterQuality Act of 1965, Pub. L. No. 89-234, § 5(a), 79 Stat. 907.Underthe current provisions of the Clean Water Act, water quality standards"consistof the designated uses of the navigable waters involved and the waterqualitycriteria for such waters based upon such uses," CWA §303(c)(2)(A),33 U.S.C. 1313(c)(2)(A), and also require an "antidegradation policy,"PUD No. 1 v. Washington Dep't of Ecology, 511 U.S. 700, 704-705 (1994);see generally 40 C.F.R. Pt. 131.

2 The completion of the federal licensing and judicial reviewproceedingsdoes not appear to pose a significant obstacle to this Court's reviewofthe federal question. The Maine Supreme Judicial Court's resolution ofthat question is final, see 28 U.S.C. 1257(a), and the issue was notlitigatedor decided in the now-completed federal proceedings. Although Section401(d)envisions that FERC shall incorporate DEP's state water qualitycertificationin its licensing order, 33 U.S.C. 1341(d), and FERC did precisely thatinissuing licenses for petitioner's facilities, that fact does not renderthis Court's review of the state court's decision merely advisory orotherwiserender the federal issue moot. FERC has discretion to consider newdevelopmentseven after it issues a license; it may reopen and amend its licenseorders"upon mutual agreement between the licensee and [FERC] after thirtydays' public notice." FPA § 6, 16 U.S.C. 799. Accordingly, ifthis Court were to accept petitioner's contention that its facilitiesdonot result in any discharge triggering Section 401's statecertificationrequirement, petitioner could petition FERC for appropriate relief.

3 Indeed, in the Court's only previous case involving Section 401,thepetitioner, a prospective owner-operator of a proposed hydroelectricfacility,readily conceded that the facility would result in a "discharge"for purposes of that Section because the facility would release "waterat the end of the tailrace [of the proposed dam] after the water hasbeenused to generate electricity." See PUD No. 1, 511 U.S. at 711; note10, infra. The Court embraced that incontestably reasonable concession,and held that the State of Washington could impose conditions underSection401(d) that were not strictly tied to such project "discharges." Id. at712. The Court expressed no doubt that, when adam releases impoundedwater through a tailrace, head-gate, sluice-gate,or other structure, a "discharge" occurs within the plain meaningof the term.

4 See, e.g., Memorandum from Ann R. Klee, EPA, et al., to RegionalAdministrators, Agency Interpretation on Applicability of Section 402 oftheClean Water Act to Water Transfers 10 (Aug. 5, 2005) (Agency Interp.)<http://www.epa.gov/ogc/documents/water_transfers.pdf.> ("EPA's longstandingposition has been that dams and hydropower facilities do not 'add'pollutantswhen they are merely moving water from one location to another withinthesame waterbody."); id. at 18 n.18 ("the dam merely conveys waterfrom one location to another within the same waterbody"); U.S. Br.as Amicus Curiae at 28, 31, National Wildlife Fed'n v. Consumers PowerCo.,No. 87-1441 (6th Cir.) (filed Sept. 1987) ("waters do not change theircharacter as waters of the United States merely as a result of theirmanipulation"by a hydroelectric dam; "[t]he mere change in their movement, flow,or circulation does not change the character of these waters as watersofthe United States").

5 See also Agency Interp. 10 ("EPA's longstanding position hasbeen that dams and hydropower facilities do not 'add' pollutants whentheyare merely moving water from one location to another within the samewaterbody.");Reply Br. for Fed. Appellant at 4 n.2, National Wildlife Federation v.Gorsuch,Admin., EPA, Nos. 82-1335 et al. (D.C. Cir.) (filed July 1982) ("EPAdoes not require an NPDES permit for discharges into navigable watersfromnavigable waters."); id. at 14 ("Since 1973, EPA has consistentlymaintained that the dam-induced water quality changes at issue here donotinvolve the discharge of pollutants from a point source."). Of course,when dams or other water diversion facilities add pollutants such asoiland grease to water passing through the diversion structure into thedownstreamwater, or when water is removed from the waters of the United Statesandutilized for cooling or other industrial purposes before beingreturned,NPDES permits are required. Consumers Power, 862 F.2d at 588; Gorsuch,693 F.2d at 165 n.22; Agency Interp. 10 n.12; see 40 C.F.R.122.45(g)(4).

6 Congress did set out a specific definition of "discharge"for limited use in two other sections of the 1970 Act, those dealingwith"Control of pollution by oil," 33 U.S.C. 1161 (1970), and "Controlof sewage from vessels," 33 U.S.C. 1163 (1970). In each instance,Congress extended the term "discharge" to the limits of, and perhapsbeyond, its ordinary meaning, stating that the term "includes, butis not limited to, any spilling, leaking, pumping, pouring, emitting,emptying,or dumping." 33 U.S.C. 1161(a)(2), 1163(a)(9) (1970). See H.R. Rep.No. 940, 91st Cong., 2d Sess. 33 (1970) ("[t]he definition of'discharge'is designed to cover by its broad terms all possible means of foulingthewaters with oil"). That definition includes, for example, even theunanticipated passive seepage from an abandoned tank or drum. The CleanWater Act has retained those limited-use definitions. See CWA§§311(a)(2), 312(a)(9), 33 U.S.C. 1321(a)(2), 1322(a)(9). The inclusionofthe phrase "not limited to" is, of course the draftsman's deviceto avoid any implication that canons such as inclusio unius estexclusioalterius, noscitur a sociis, and ejusdem generis should apply in lightofthe enumeration of seven related items. See Bryan A. Garner, ADictionaryof Modern Legal Usage 432 (2d ed. 1995). Those canons are not an issuein the case of Section 502(16), which "includes" only a singleterm and its synonymous plural form. 33 U.S.C. 1362(16).

7 Petitioner obtains no support for a contrary conclusion fromChickasawNation, supra, or Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). SeePet. Br. 17. Chickasaw Nation recognizes, unhelpfully for petitioner,thatto "include" is to "comprise as part of the whole,"534 U.S. at 89 (emphasis added), and goes on to hold that a provisionthat"included" an illustrative list did not extend, by virtue of oneof the listed items, the reach of that provision further than itsotherwiseplain meaning would allow, id. at 89-91. Here, no such question ispresentedbecause the term "discharge" is obviously broader than the "dischargeof a pollutant," and there is no illustrative list. In Phelps DodgeCorp., the Court rejected the notion that Congress intended to limit abroadstatutory phrase by "including" an illustration of its use, statingthat such a construction would "shrivel a versatile principle to anillustrative application." 313 U.S. at 189. As the Court observed,"[t]he word 'including' does not lend itself to such destructivesignificance." Ibid.; see Garner, supra, at 431 ("including" should not"beused to introduce an exhaustive list, for it implies that the list isonlypartial").

8 Section 401(a)'s reference to "navigable waters," whichmeans "the waters of the United States," CWA § 502(7), 33U.S.C. 1362(7), denotes that Section 401 applies only if the dischargeflowsinto waters that are subject to federal regulation. For example,Section401 would not apply if a federally licensed facility withdrew waterfroma river and then discharged all of that water into a municipal watersystem. In this case, petitioner's facilities discharge water "into,"as opposed to diverting water away from, the Presumpscot River, whicharewaters subject to federal regulation. Cf. North Carolina, 112 F.3d at1189(holding that a withdrawal "resulting in a decrease in the volume ofa preexisting discharge is not an activity that 'results in anydischarge'"). The fact that the diverted water remains, for purposes offederal regulation,part of "the waters of the United States," see note 4, supra,has no bearing on whether the release of the water from the facility isa "discharge into the navigable waters." Section 401 focuseson the potential of a "discharge" and not on what is being discharged.

9 See, e.g., EPA, Wetlands and 401 Certification: Opportunities andGuidelines for States and Eligible Indian Tribes 20 (Apr. 1989) (EPA"hasidentified five federal permits and/or licenses which authorizeactivitieswhich may result in a discharge to the waters," including "licensesrequired for hydroelectric projects issued under the Federal PowerAct");Letter from Jonathan Z. Cannon, EPA, et al., to Hon. Lois D. Cashell,FERC,re: Virginia Electric and Power Co., at 4 (Oct. 24, 1996) (operation ofhydroelectric dam "'may result,' and indeed, does result, in a'discharge'of water over and through the dam" and thus "trigger[s] the requirementof a Section 401 certification from" the relevant State); Letter fromDavid A. Fierra, EPA, to Dean Marriott, Maine Dep't of Envtl. Prot. at1(Jan. 24, 1991) ("it is the Region's position that EPA is the Section401 certifying body for purposes of the hydro project relicensing").

10 The petitioner in that case urged that Congress had left the term"dis charge" undefined and that it should therefore be interpretedin light of its "standard dictionary definition" of "to giveoutlet to: pour forth: emit (the river [discharges] its waters into thebay)." 92-1911 Pet. Br. at 22-23 (quoting Webster's Third NewInternationalDictionary 649 (1971)). The United States advised in its brief amicuscuriaethat "when the operator of a dam releases water through [a releasestructure] it has caused a discharge within the meaning of Section401,"noting that "Congress employed the term 'discharge' * * * more broadlythan the term 'discharge of a pollutant.'" 92-1911 U.S. Br. at 14-15& n.4.

11 As has been explained, EPA does not require NPDES permits forhydroelectricdams that merely discharge diverted water back into a navigable riverchannel,unless that discharge also involves the addition of a pollutant fromtheoutside world. See note 5, supra. Section 401's state water qualitycertificationprocess provides the appropriate means for addressing the broaderproblemsassociated with any "man-made or man-induced alteration of thechemical,physical, biological, or radiological integrity of water," CWA §502(19), 33 U.S.C. 1362(19), that might result from the impoundment andrelease of diverted water. See Gorsuch, 693 F.2d at 161-174.

12 Petitioner's reference to EPA's regulatory guidance documentrespectingwater transfers (Pet. Br. 22-23) is inapposite because that documentdoesnot address the scope of Section 401. Rather, that document explainsEPA'sview that Section 402's NPDES permitting program is not applicable towatercontrol facilities that merely convey or connect navigable waters butdonot involve an addition of any pollutants from a point source. SeeAgencyInterp., supra. That view is consistent with EPA's position on dams andits position here. See id. at 8, 10-12; notes 4-5, supra.

13 Contrary to petitioner's suggestions (Pet. Br. 23-28), neitherSection304(f)(2)(F) nor Section 511(c)(2) of the Clean Water Act, 33 U.S.C.1314(f)(2)(F),1371(c)(2), suggests anything to the contrary. Section 304(f) directsEPAto provide guidance for "identifying and evaluating the nature andextent of nonpoint sources of pollutants, and * * * processes,procedures,and methods to control pollution resulting from," among otheractivities,"the construction of dams." 33 U.S.C. 1314(f). The fact thatthe "construction of dams," as well as "all constructionactivity" (33 U.S.C. 1314(f)(2)(C) and (F)), may result in nonpointsource pollution provides no basis for exempting the operation of thosedams from Section 401's express requirements. Section 511(c)(2)providesthat nothing in the National Environmental Policy Act of 1969 (NEPA),42U.S.C. 4321 et seq., authorizes federal licensing agencies to: (a)reviewthe "adequacy" of state water quality certifications or otherrequire ments established under the Act; or (b) impose effluentlimitationsbeyond those established in the Act as a condition of licensing. See 33U.S.C. 1371(c)(2). A determination that Section 401 applies todischargesfrom federally licensed dams in no way suggests that NEPA authorizes orrequires FERC to evaluate the "adequacy" of state-imposed waterquality conditions or to second-guess applicable effluent limitations.

14 For example, the House Report responded to a concern that theprovisionwould apply selectively to nuclear power plants and thereby placenuclearpower at an "undesirable" competitive disadvantage. The reportstated that "this concern is met by the fact that a Federal licenseor permit of some kind is required for almost all electric generatingplants." See H.R. Rep. No. 127, 91st Cong., 1st Sess. 7 (1969).

15 Petitioner ignores those straightforward statements ofcongressionalintent, and instead proposes a convoluted and unsatisfying explanationforCongress's use of the term "includes." See Pet. Br. 29-33. Petitionerobserves that the original, but not enacted, Senate bill defined"discharge"to "mean," among other things, the "addition" of pollutantsto navigable waters, see id. at 29-30 (citing S. 2770, 92d Cong., 1stSess.§ 2 (1971) (proposed § 502(n)). Petitioner posits thatCongresssubstituted the word "includes" in the final definition, enactedin Section 502(16), in conjunction with an abandoned legislative effortto include a "thermal discharge" as a type of discharge for purposesof Section 401, but not for Section 402's NPDES permitting requirements. Petitioner speculates that Congress used the term "includes"inadver tently, i.e., as a vestige of the failed legislative proposal,andnot deliberately to give Section 401 broader scope than Section 402.SeePet. Br. 32. But such speculation about Congress's "true" intentnotwithstanding, inadvertent, but duly enacted, text is not a properbasisfor interpreting a statute and is inconclusive in any event. Congressdidnot need to use the verb "includes" in defining "discharge"to achieve the proposed, but ultimately abandoned, result for "thermal"discharges. The House bill could have achieved that result by defining"discharge" to "mean" the "discharge of pollutants"and "thermal dis charges." Accordingly, the legislative historycited by petitioner provides no explanation for Congress's choice oftheword "includes" rather than "means" in defining "discharge." The onlyreasonable conclusion is that Congress meant what it said andemployed "includes" to ensure that the term "discharge"would be given a broad construction in keeping with its ordinarymeaning.

Merits Stage Amicus Brief
Updated October 21, 2014