SD Warren v. BD. OF ENVIRONMENTAL PRO.

• Decision Date: 15 February 2005
• Citation: 2005 ME 27,868 A.2d 210
• Parties: S.D. WARREN COMPANY v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

868 A.2d 210

2005 ME 27

S.D. WARREN COMPANY v. BOARD OF ENVIRONMENTAL PROTECTION.

Supreme Judicial Court of Maine.

Argued: November 16, 2004.

Decided: February 15, 2005.

Matthew D. Manahan, Esq. (orally), Catherine R. Connors, Esq., Pierce Atwood, LLP, Portland, for plaintiff.

G. Steven Rowe, Attorney General, Carol A. Blasi, Asst. Atty. Gen. (orally), Augusta, for defendant.

Sean Mahoney, Esq. (orally), Verrill & Dana, LLP, Portland, Ronald A. Kreisman, Esq., Hallowell, for intervenors American Rivers and Friends of the Presumscot River.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, ALEXANDER, CALKINS, and LEVY, JJ.

RUDMAN, J.

[¶ 1] S.D. Warren Company appeals from a judgment entered in the Superior Court (Cumberland County, Cole, J.), affirming the decision of the Board of Environmental Protection (BEP) approving Warren's application for water quality certification pursuant to section 401 of the Clean Water Act (CWA) of 1972, 33 U.S.C.A. § 1341 (West 2001), and 38 M.R.S.A. § 464 (2001 & Supp.2004), subject to certain conditions imposed by the BEP pursuant to section 401(d) of the CWA. 33 U.S.C.A. § 1341(d). Warren asserts that the BEP's order should be reviewed de novo without deference to its legal interpretations; that the BEP exceeded its authority when it found that certification was required under the CWA; and that the BEP exceeded its authority when it imposed the specific conditions that it did. We disagree and affirm the judgment of the Superior Court.

I. BACKGROUND

[¶ 2] Warren owns and operates five contiguous hydroelectric dam projects on the Presumpscot River in Cumberland County. The waters involved in Warren's projects are variously classified as Class A (from the outlet of Sebago Lake to its confluence with the Pleasant River, excluding Dundee Pond), Class B (from its confluence with the Pleasant River to Saccarappa Falls), Class C (from Saccarappa Falls to tidewater), and Class GPA (Dundee Pond). The projects have a combined generating capacity of 7450 kW and provide electricity for Warren's paper mill in Westbrook. The projects operate in the run-of-river mode.¹

[¶ 3] All of the projects were constructed in the 1900s. The projects were originally licensed separately between 1979 and 1981. The licenses were to expire in 1999, but were modified in 1996 to continue until 2001. Applications for certification were filed in 1999, subsequently withdrawn and refiled in 2000, 2001, and 2002. In April of 2003 the Department of Environmental Protection (DEP) approved water quality certification for the continued operation of Warren's projects, subject to a number of conditions. In May of 2003 Warren filed a timely appeal from the DEP's decision to the BEP. The BEP adopted the findings of the DEP and affirmed the decision of the DEP in October of 2003. Warren appealed from the decision of the BEP to the Superior Court, which affirmed the decision of the BEP in May of 2004. Warren now appeals from that judgment.

II. DISCUSSION

A. Standard of Review

[¶ 4] We review decisions made by an administrative agency for errors of law, abuse of discretion, or findings of fact not supported by the record.² Melanson v. Sec'y of State, 2004 ME 127, ¶¶ 7-8, 861 A.2d 641, 643-44. When the Superior Court acts in an intermediate appellate capacity pursuant to M.R. Civ. P. 80C, we review that agency's decision directly. Id."The administrative agency's interpretation of a statute administered by it, while not conclusive or binding on this court, will be given great deference and should be upheld unless the statute plainly compels a contrary result." Thacker v. Konover, 2003 ME 30, ¶ 14, 818 A.2d 1013, 1019 (citations and quotation marks omitted).

B. Deference to BEP

[¶ 5] Warren asserts that the BEP is not entitled to deference when it interprets the CWA because it is interpreting federal law. We disagree. The BEP is accorded substantial deference when it interprets certain federal statutes. The rationale underlying our deference to BEP interpretations is that the BEP has greater expertise in matters of environmental concern and greater experience administering and interpreting those particular statutes. See Maritime Energy v. Fund Ins. Review Bd., 2001 ME 45, ¶ 9, 767 A.2d 812, 814

. The CWA, 33 U.S.C.A. §§ 1251-1387 (West 2001 & Supp.2004), concerns the environment and it is an act that the BEP has experience administering. In addition, both state and federal law contemplate that the BEP will administer and interpret section 401 for purposes of water quality certification.³

[¶ 6] Additionally, Warren argues that the BEP is a "lay board" and therefore not entitled to deference. We disagree. We have specifically rejected the proposition that a volunteer board is not entitled to deference. The standard is whether the subject matter is beyond the scope of the BEP's expertise. Maritime, 2001 ME 45, ¶ 9 n. 2, 767 A.2d at 814. In Maritime, we concluded that because the BEP relied on its expertise interpreting the statute it was charged with administering and relied upon its expertise in a field of environmental concern, the BEP's interpretation was entitled to deference. Id.

[¶ 7] In the present case, because the statutes involved are administered regularly by the BEP and because the subject matter is well within the BEP's expertise, the BEP's interpretations, although not conclusive or binding upon us, are entitled to great deference.

C. State Certification

[¶ 8] It is the responsibility of the Federal Energy Regulatory Commission (FERC), pursuant to the Federal Power Act (FPA), to issue licenses for the construction, operation, and maintenance of hydroelectric dams located in any body of water over which Congress has jurisdiction pursuant to the Commerce Clause of the United States Constitution.⁴ 16 U.S.C.A. § 797(e) (West 2000). Section 401(a)(1) of the CWA, 33 U.S.C.A. § 1341(a)(1), requires an applicant for a federal license or permit to conduct any activity that "may result in any discharge into the navigable waters," to provide the licensing or permitting agency with a certification from the state in which that discharge may occur. The purpose of the certification is to confirm that the contemplated discharge will comply with the water quality standards of the CWA and the effected state. In addition, section 401(d) of the CWA, 33 U.S.C.A. § 1341(d), expressly requires the FERC to incorporate "any other appropriate requirement of State law set forth in such certification" into the license.

[¶ 9] Warren posits that certification authority has not vested because the operation of its dams does not result in a discharge. We disagree. Certification rights under section 401(a)(1), 33 U.S.C.A. § 1341(a)(1), vest in a state if an activity" `may result in' a discharge." North Carolina v. FERC, 112 F.3d 1175, 1188 (D.C.Cir.1997). Once these certification rights have vested in the state, any conditions that the state imposes become conditions on the federal license. Alabama Rivers Alliance v. FERC, 325 F.3d 290, 293 (D.C.Cir.2003).

[¶ 10] The term discharge is not expressly defined anywhere in the CWA, however, section 502(16), 33 U.S.C.A. § 1362(16) (West 2001), provides that, "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." This statement of inclusion provides "the nearest evidence we have of definitional intent by Congress." North Carolina, 112 F.3d at 1187. The phrases "discharge of pollutant" and "discharge of pollutants" are defined by section 502(12):

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

33 U.S.C.A. § 1362(12) (emphasis added).

[¶ 11] An "addition" is the fundamental characteristic of any discharge. See North Carolina, 112 F.3d at 1188

(a decrease in the volume of water passing through a dam's turbines adds nothing and therefore cannot be a discharge); Alabama Rivers Alliance, 325 F.3d at 299 (increased flow resulting from the replacement of dam turbines is an addition and therefore a discharge).

[¶ 12] The operation of Warren's dams does result in an addition to the waters of the Presumpscot River and therefore a discharge occurs. When a substance is removed from a navigable body of water and then redeposited into that same body of water it constitutes a discharge pursuant to section 502(12), 33 U.S.C.A. § 1362(12). See Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir.1983)

("The word `addition' as used in the definition of the term, `discharge,' may reasonably be understood to include `redeposit.'"), see also Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 947-49 (7th Cir.2004). Avoyelles involved a dispute about whether the removal and redeposit of fill materials in a wetland was a discharge.⁵

Avoyelles Sportsmen's League, Inc.,

715 F.2d at 900. The court dismissed the idea that the substance discharged must come from the outside world. Id. at 924 n. 43. "This reading of the definition is consistent with both the purposes and legislative history of the statute. The CWA was designed to restore and maintain the chemical, physical and biological integrity of the Nation's waters." Id. at 923. When "water leaves the domain of nature and is subject to private control rather than purely natural processes ... it has lost its status as waters of the United States."⁶

Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1297 (1st Cir.1996). Because these waters have lost their status as waters of the United States, when they are redeposited into the natural course of the river it results in an addition to the waters of the United States. See id.

[¶ 13] Warren is not adding more water to the river. However, a discharge results because...