S. D. Warren Co. v. Maine Bd. of Envtl. Protection, 051506 FEDSC, 04-1527

Docket Nº:No. 04-1527
Party Name:S. D. WARREN COMPANY, PETITIONER v. MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.
Case Date:May 15, 2006
Court:United States Supreme Court
 
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S. D. WARREN COMPANY, PETITIONER

v.

MAINE BOARD OF ENVIRONMENTAL PROTECTION et al.

No. 04-1527

United States Supreme Court

May 15, 2006

Argued February 21, 2006

CERTIORARI TO THE SUPREME JUDICIAL COURT OF MAINE No. 04–1527.

Petitioner company (Warren) asked the Federal Energy Regulatory Commission (FERC) to renew federal licenses for five of the hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounds water, which is then run through turbines and returned to the riverbed, passing around a section of the river. Under protest, Warren applied for water quality certifications from respondent Maine Board of Environmental Protection pursuant to §401 of the Clean Water Act, which requires state approval of “any activity” “which may result in any discharge into the [Nation’s] navigable waters.” FERC licensed the dams subject to compliance with those certifications, which require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. After losing state administrative appeals, Warren filed suit in a state court, which rejected Warren’s claim that its dams do not result in a “discharge” under §401. The State Supreme Judicial Court affirmed.

Held: Because a dam raises a potential for a discharge, §401 is triggered and state certification is required. Pp. 3–15.

(a) The Clean Water Act does not define “discharge,” but provides that the term “when used without qualification includes a discharge of a pollutant, and a discharge of pollutants,” 33 U. S. C. §1362(16). But “discharge” is presumably broader, else superfluous, and since it is neither defined nor a term of art, it should be construed “in accordance with its ordinary or natural meaning,” FDIC v. Meyer, 510 U.S. 471, 476. When applied to water, discharge commonly means “flowing or issuing out,” Webster’s New International Dictionary 742. This Court has consistently intended that meaning in prior water cases, including the only case focused on §401, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U.S. 700, in which no one questioned that the discharge of water from a dam fell within §401’s ambit. The Environmental Protection Agency and FERC have also regularly read “discharge” to cover releases from hydroelectric dams. Pp. 3-6.

(b) Warren’s three arguments for avoiding this common reading are unavailing. The canon noscitur a sociis—“ a word is known by the company it keeps,” Gustafson v. Alloyd Co., 513 U.S. 561, 575-does not apply here. Warren claims that since “discharge” is keeping company with “discharge” defined as adding one or more pollutants, see §1362(12), discharge standing alone must also require the addition of something foreign to the water. This argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage of language this way. Warren also relies on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, but that case is not on point. It ad-dressed §402, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Thus, that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401. Finally, the Clean Water Act’s legislative history, if it means anything, goes against Warren’s reading of “discharge.” Pp. 6–12.

(c) Warren’s arguments against reading “discharge” in its common sense also miss the forest for the trees. Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U. S. C. §1251(a), the “national goal” being to achieve “water quality [providing] for the protection and propagation of fish . . . and . . . for recreation,” §1251(a)(2). To do this, the Act deals with “pollution” generally, see §1251(b), which it defines as “the man-made or man-induced alteration of the [water’s] chemical, physical, biological, and radiological integrity,” §1362(19). Because the alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines, changes in the river’s flow, movement, and circulation fall within a State’s legitimate legislative business. State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution. Reading §401 to give “discharge” its common and ordinary meaning preserves the state authority apparently intended. Pp. 12–15.

2005 ME 27, 868 A. 2d 210, affirmed.

Souter, Justice[*]

The issue in this case is whether operating a dam to produce hydroelectricity “may result in any discharge into the navigable waters” of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.

I

The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S.D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river just below the impoundment.

It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. §799, after a review that looks to environmental issues as well as the rising demand for power, §797(e).

Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a “discharge” into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State’s own laws. See Water Quality Improvement Act of 1970, §103, 84 Stat. 108. Today, this requirement can be found in §401 of the Clean Water Act, 86 Stat. 877, codified at 33 U. S. C. §1341: “Any applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates ..... §1341(a)(1).

“Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.”1 §1341(d).

In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.

The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued...

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