S.D. Warren Co. v. Maine Board of Environmental Protection – Oral Argument – February 21, 2006

Media for S.D. Warren Co. v. Maine Board of Environmental Protection

Audio Transcription for Opinion Announcement – May 15, 2006 in S.D. Warren Co. v. Maine Board of Environmental Protection

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John G. Roberts, Jr.:

We’ll hear argument next in S. D. Warren Company versus Maine Board of Environmental Protection.

Mr. Kayatta.

William J. Kayatta, Jr.:

Mr. Chief Justice, and may it… and may it please the Court–

The Presumpscot River is a single body of water, as that term was used in last year’s Miccosukee decision.

Warren’s position is that the flowing of that single body of water through Warren’s five dams is not a discharge into that same single body of water.

In arguing that certification under Section 401 of the Clean Water Act is, therefore, not required, we are not maintaining that the State either has, or should have, no voice on matters of water quality in connection with the relicensing of these dams.

In 1986, Congress took care to ensure States a forceful, but not controlling, voice on environmental issues, including water quality issues, in all hydropower relicensing proceedings.

Congress was very specific about its intent in 1986, and it intended to give States a strong voice, but not a veto.

So, we feel the case… that the States clearly have that voice.

Now–

John G. Roberts, Jr.:

Mr. Kayatta, if I took a drum of water out of the river and put it in the garage next to the river for 5 years, and, 5 years later, came out and poured that drum of water back into the river, is that a discharge into the river?

William J. Kayatta, Jr.:

–Yes, that would be a discharge into the river.

John G. Roberts, Jr.:

How is it different here, where you have the dam restraining the waters for a certain period, and then it’s being released later, at a subsequent time?

Why–

William J. Kayatta, Jr.:

Yes.

John G. Roberts, Jr.:

–isn’t that also a discharge?

William J. Kayatta, Jr.:

There is… we draw a distinction… and I’m referring just to discharge, I’m not addressing the issue that the Court could get to in another case of whether you actually need a discharge of a pollutant, as to just a discharge into the river… we draw a distinction between actually removing something entirely from the river, exercising control over it.

Your hypothetical, Mr. Chief Justice, had it for 5 years.

In that situation, one could say that there may be a discharge into the river when an activity is proposed to pour that back into the river.

In a… in the dams… the dams, the water continuously flows down.

The water never leaves the single body of water called the Presumpscot.

And that’s the distinction that we would draw.

John G. Roberts, Jr.:

Even though it’s retained in a… what… an impoundment pool, or whatever, behind–

William J. Kayatta, Jr.:

Well, the dams slow down the water as it comes down the Presumpscot.

And because the dams slow down the water, then the river widens in an area called an impoundment area.

But the… there is a continuous motion leaving the dam in the same amount of water that comes into the area above the dam.

Anthony M. Kennedy:

Well, this–

John G. Roberts, Jr.:

–So, you think it’s a different case if it’s not a continuous motion; in other words, that the water is released… you know, it’s released on the weekends, but, during the week, it has to build up in the… you would draw a distinction and say there’s a discharge, in that case?

William J. Kayatta, Jr.:

Mr. Chief Justice, the distinction we would draw would be when the exercise over the water, and the separation of the water from the river, reach the point where it could be said that we’re no longer dealing with one unitary body of water, as that term is defined in Miccosukee.

If we–

Anthony M. Kennedy:

–But this is an important point for me, and I wasn’t quite clear what the briefs told me about it.

My understanding was that there is an argument that when the water stays in the reservoir, the impoundment area, that there’s a stratification, and the oxygen components at different levels change, so that when the water goes back into the dam, it’s qualitatively different.

It’s the same water, in a sense, but it’s also qualitatively different in its oxygen and other characteristics.

And that sounded to me like a discharge.

William J. Kayatta, Jr.:

–Yes.

The… there is… there is no dispute that when one changes the movement of water and its flow, then characteristics of the water can change.

For example, in the impoundment area you can have not a change, overall, of temperature, but a stratification of warmer water going to the top, colder water going to the bottom.

Similarly, you can have changes in other aspects of the water.

All of those have been classified by the EPA as nonpoint source pollution.

And it is undisputed that 401 does not cover nonpoint source solution… pollution.

So–

Ruth Bader Ginsburg:

I don’t–

Anthony M. Kennedy:

So, if–

Ruth Bader Ginsburg:

–I don’t–

Antonin Scalia:

But is it–

Anthony M. Kennedy:

–So, if it were established in this case that the water is qualitatively changed in a significant degree because of its oxygen component, that would be irrelevant to the question you’re asking?

William J. Kayatta, Jr.:

–The water, as it comes into the dam and in the impoundment area, there is a… there are findings, that we are not here challenging, that that water changes as it comes into the impoundment area.

The discharge of that water… that water then flows through the dam on its way down the river.

There is nothing… there is no nexus between the water exiting the dam and any of the changes that Your Honor has pointed to.

Anthony M. Kennedy:

Are you–

Antonin Scalia:

–You’re saying the changes occur in the river, above the dam; and, therefore, what’s let… what’s let back into the river below the dam is the same river, unchanged.

William J. Kayatta, Jr.:

We’re saying that the river flows continuously down.

It changes at various points as it goes down a river.

As it goes through rapids, a river changes.

The nature of a river changes as it goes over rapids.

As it comes–

John Paul Stevens:

Now, let me just be sure I understand one point fully.

But the character of the water is different above the dam and below the dam.

William J. Kayatta, Jr.:

–No.

The character of the water–

John Paul Stevens:

I thought you agreed that there was a different… a different oxygen content in the water.

William J. Kayatta, Jr.:

–The water… take the… Mr. Chief Justice’s barrel of water that has not been removed from the river… it comes down the river.

It changes as it goes down the river.

It is potentially changed in the impoundment area.

It then flows through the dam.

John Paul Stevens:

No.

William J. Kayatta, Jr.:

The same water that went into the dam–

John Paul Stevens:

Yes, but it’s the same water, with a slightly different chemical composition, isn’t that true?

William J. Kayatta, Jr.:

–It’s the same water that went into the dam as comes out of the dam.

John Paul Stevens:

But with a slightly different chemical composition.

William J. Kayatta, Jr.:

Than it was further–

John Paul Stevens:

Am I correct–

William J. Kayatta, Jr.:

–up the river.

John Paul Stevens:

–when I say that?

William J. Kayatta, Jr.:

Yes, you are.

John Paul Stevens:

Thank you.

David H. Souter:

But you said… in response to Justice Kennedy’s question, you said that there was nothing, I think, as you put it, in the exiting of the water that was significantly different that… or that we could peg as significantly different.

But that seems to me to be at odds with your answer to the Chief Justice’s question about the barrel, because the exiting of the water from the barrel and the exiting of the water from the dam are exactly the same.

And if one is a discharge, I don’t see why the other isn’t a discharge.

William J. Kayatta, Jr.:

Well, the difference, we would say, is that, in the barrel hypothetical, the water has been… the water that is put into the river from the barrel that has been in someone’s garage for 5 years–

David H. Souter:

Then it isn’t the exiting that you’re getting at.

And I–

William J. Kayatta, Jr.:

–Well, we–

David H. Souter:

–I mean, it seems to me… and I don’t want to make a joke, but I think you’re on to something when you talk about the exiting, because the word “discharge”, as we commonly use it, is a word that describes how you get rid of something.

And how you get rid of something, it seems to me, is exactly the same, whether you’re pouring the barrel over the bank or whether pouring the barrel, as it were, through the turbine after impounding it, it is the… everybody’s been quoting dictionary definitions… it’s the “flowing out”.

The flowing out is the same with the barrel as it is with the dam.

William J. Kayatta, Jr.:

–The difference–

David H. Souter:

And that seems to me where I have trouble with your argument.

William J. Kayatta, Jr.:

–Yes, Justice Souter.

The difference is the “discharge into”.

William J. Kayatta, Jr.:

To have something “discharge into the river”, you need something different than the river to go into the river.

David H. Souter:

Well, as I understand it, in some or all of these dams, at the point of discharge, there isn’t any river down there.

It’s dry.

It’s… the bed, in effect, has been deprived of the river by the impoundment, so that you’re not simply, as it were, taking, you know, one spoonful out here and dropping it into a river… putting the spoonful back into a river that’s flowing there, because it isn’t flowing there, as a result of your dam.

William J. Kayatta, Jr.:

But the… if you accept the proposition that the river is divided into two different things, then you can start to talk about a discharge of one thing into the other.

But Miccosukee makes clear that the structure of a dam does not keep us from viewing this as a single body of water which flows through a dam.

It does not flow “into the navigable waters”; the navigable waters themselves flow through the dam.

Ruth Bader Ginsburg:

–Miccosukee assumed that… the soup ladle example from the Second Circuit; you took out the ladle, you held it up, and you put the same thing back.

But if I understand what happens as a result of the impoundment of the water and then its release, what comes out is quite different from what was put in.

It’s kind of like you had a pot boiling with vegetables, and then you put it through a food processor, and then what you got out would be quite different from what went into the food processor.

William J. Kayatta, Jr.:

Yes.

And, again, we don’t dispute that there are nonpoint source changes in the water as it flows down the river, before it goes through the dam.

The water that then goes in and emits–

Ruth Bader Ginsburg:

I thought the descriptions that we had was, it is a result of the impoundment and the subsequent release that the water emerges in this unnatural state, in this striated state that Justice Kennedy was referring to.

William J. Kayatta, Jr.:

–Yes.

The… it is the impoundment that changes the nature of the water.

Antonin Scalia:

And not the release.

You contest that the release makes any change.

William J. Kayatta, Jr.:

The release simply continues the flow of that water, albeit however it has been changed by mechanisms other than discharges into the river.

Stephen G. Breyer:

Well, that’s true, but… so, you said it’s conceded in this case?

I thought, in answer to Justice Kennedy, you said something that… I was surprised, if it’s conceded.

I thought it wasn’t conceded… tell me if I’m wrong… that the States have water quality standards.

Those water quality standards may or may not have something to do with point source discharges.

They don’t have to.

They want water to be good enough for recreation.

They want water without algae so there are more fish.

They have a lot of things.

And this statute seems to say the F… what used to be the FPC.

I… is it now FERC?

William J. Kayatta, Jr.:

Yes, it is, Your Honor.

Stephen G. Breyer:

Yes, okay… used to be the Federal Power Commission… tells them,

“You have to get approval to build your dam. “

“And we’re not going to give you approval unless you comply with State water quality standards. “

This seems to me to go back into ancient history, like 1920.

And of course you have to comply.

And so, isn’t the purpose of… is there agreement that it only concerns point discharges, or does it concern water quality standards?

William J. Kayatta, Jr.:

The consistent position of the EPA all along has been that 401 requires a discharge from a point source before it applies.

Stephen G. Breyer:

Really?

William J. Kayatta, Jr.:

Yes.

Stephen G. Breyer:

In other words… discharge from a point source, what is… well, then EPA concedes you win?

William J. Kayatta, Jr.:

No.

EPA is claiming that the discharge from a point source occurs as the water exits the dam–

Stephen G. Breyer:

Well, fine.

William J. Kayatta, Jr.:

–not in the–

Stephen G. Breyer:

So, what’s–

William J. Kayatta, Jr.:

–impoundment.

Stephen G. Breyer:

–the problem?

So, they’re saying, as I thought was true since 1920, that you’re going to get your dam only if you comply with State standards, including standards about fish, algae, junk in the water, all kinds of things that might be put there by the dam.

William J. Kayatta, Jr.:

Well, the… 401 is a triggering, or a threshold determination, as set forth in one of this Court’s prior decisions, that gives the State not just a voice, but essentially a mandatory veto over a very broad area.

The question in this case is, Have we triggered… have we stepped over that threshold?

The point that there is no disagreement between the parties on is that to step over that threshold, to trigger 401, one has to have a discharge into the navigable waters–

Stephen G. Breyer:

Right.

And they’re saying,

“Of course there is a discharge. “

“The discharge is a discharge of water. “

Okay?

The water runs into it.

Now, that’s enough for you to have to comply with the State standards before the F… FERC is going to give you a license.

William J. Kayatta, Jr.:

–No, their position is precisely that the water is running into the water.

Stephen G. Breyer:

Now, have you got anything… I’ve heard you argue about the word “discharge”; and you say “discharge” doesn’t mean “discharge of water”, it means something else.

Stephen G. Breyer:

And I think that’s a very logical argument.

Is there any other argument that you’d have, related to the purpose of the statute for the objective?

William J. Kayatta, Jr.:

Yes.

Let me refer to the purpose.

There’s… as is always the case, there are general pronouncements about purpose.

And the Respondents have taken those general pronouncements to basically say,

“Anything that allows the States greater control or improvement over water quality is the direction in which the statute should be interpreted, to achieve that general purpose. “

However, we know that, notwithstanding the general purposes, that Congress, when it turned to approve specific words in 401, did not simply say “anything that affects water quality”.

It divided a line.

And that line, for example, means that Federal permits for grazing, or Federal permits for logging roads, do not trigger 401; and they do not trigger it, because there is no discharge from a point source.

So, we know a line has been drawn by Congress in pursuit of its purpose, as compared to other goals that Congress has in mind.

The question is, Where was that line drawn?

We think you look to the statute to see where that was drawn, and it was “discharge into the navigable waters”.

Otherwise, what we’re left with is, we’re left with trying to, sort of, almost metaphysically think of the water discharge… the same water discharging into the same water in order to reach a conclusion that the real way you should read the statute is just as if it says,

“If one does anything at all to the water, you need to get certification. “

And we don’t think it says that.

It would–

John Paul Stevens:

But, Counsel, I keep thinking of this example, and I want you to comment on it.

Out West, of course, there are a lot of dams where there are salmon in the… in the river, going down, and a lot of salmon get killed if they go through the… through the dam, so that the water before the dam has live salmon, and the water after the dam has dead salmon.

And say that happened in Maine.

Would that be a discharge if that happened?

William J. Kayatta, Jr.:

–The–

John Paul Stevens:

If there were live fish–

William J. Kayatta, Jr.:

–Yes.

John Paul Stevens:

–above the dam, and they all… they get killed going through the dam, and they were dead when they–

William J. Kayatta, Jr.:

Yes.

John Paul Stevens:

–came out, would that be a discharge in–

William J. Kayatta, Jr.:

Actually, the record here would indicate that that… that could happen with some eels, not salmon.

John Paul Stevens:

–Yes.

William J. Kayatta, Jr.:

So, your point is well taken, Justice Stevens.

William J. Kayatta, Jr.:

The fish that, as the water flows through the dam, may be killed by coming in contact with, and getting hit by, the turbine, are not discharged into the water; they’re in the water as it goes into the dam, they’re killed as it goes through the dam, they remain in the water.

The dam discharges nothing.

It puts nothing–

John Paul Stevens:

So, you would say–

William J. Kayatta, Jr.:

–into the river.

John Paul Stevens:

–even in that case, that would not be a statutory discharge.

William J. Kayatta, Jr.:

That’s correct, Your Honor.

We think that–

John G. Roberts, Jr.:

Counsel, you don’t dispute that FERC could impose the same conditions that Maine has imposed in this case, as a matter of FERC authority.

William J. Kayatta, Jr.:

–Exactly.

And we would–

John G. Roberts, Jr.:

Could they even impose something in the condition to your hydroelectric power license saying,

“You must comply with State water quality standards? “

William J. Kayatta, Jr.:

–I think they could… I’m not sure they could word it that way, but they could effectively… FERC could effectively do it.

In effect, Congress has told FERC that in a… in a Federal… in a FERC proceedings, it not only has to listen to the State, but it has to give considerable consideration to the State’s arguments.

And it has to–

John G. Roberts, Jr.:

So, you’re concerned about conditions… I mean, as a practical matter, in terms of how the result in this case would change things, it’s a question of whether FERC has to more or less accept what the State does, or whether FERC simply considers and decides whether it wants to impose those conditions.

William J. Kayatta, Jr.:

–That’s correct.

And it’s a very substantial issue, because essentially what FERC proceedings are… under the hydropower sections of FERC, essentially what they are is environmental proceedings, where there’s a determination made about water quality issues that are then balanced off against energy issues.

If the… under prior interpretations, the 401 powers have become quite robust.

If we now take the threshold of FERC proceedings essentially will be a mail office, where they receive the conditions from the State and have no choice but to file them… follow them.

Our position is that Congress intended to leave some room–

John G. Roberts, Jr.:

You would rather be regulated more aggressively by FERC than by the Maine Board of Environmental Protection.

William J. Kayatta, Jr.:

–That’s correct.

It would have a uniform national energy and environmental policy, in that respect.

And we believe that… Congress, in ’86, clearly thought that’s what we had.

That’s the… it would make no sense, in Congress in ’86, to order FERC to give weight to what the States say in these situations if what we’re now told is,

“Congress was wasting time, because the States already had a mandatory veto on all of these issue… issues in every single situation with respect to every single hydropower licensing– “

John G. Roberts, Jr.:

Does FERC–

William J. Kayatta, Jr.:

–“# proceeding”.

John G. Roberts, Jr.:

–as a regulator, tend to give greater priority to power considerations, as opposed to local environmental concerns?

William J. Kayatta, Jr.:

There was some concern prior to ’86 by Congress that FERC was doing just that.

And that’s why Congress told, in 1986, long after the statute was passed, that FERC has to make specific findings if it disagrees with the State.

Additionally, Congress gave to the Department of Interior, under Section 18, certain powers to dictate to FERC, for example, fish passages.

FERC has no choice on those.

So, Congress… this reference to cooperative federalism clearly was in Congress’s mind, but it wasn’t a cooperative federalism in which, on all issues in all proceedings, all the State needed to do is tell FERC what to do.

But they–

Stephen G. Breyer:

No, no, but it doesn’t… it doesn’t say… it says they have to comply with State water quality standards, doesn’t it?

William J. Kayatta, Jr.:

–It doesn’t… Congress did not order, in 1986, FERC to always comply in all situations–

Stephen G. Breyer:

No, I thought… it says that you have to get your permit.

You have to be compliant with State water quality standards.

Now, suppose a State has a nutty water quality standard.

Doesn’t EPA have some authority there to make sure that a water quality standard of a State, under the Clean Water Act, is… makes sense?

William J. Kayatta, Jr.:

–Well, EPA has some authority with respect to any State water quality standards that are less stringent than EPO’s… EPA’s own requirements.

It’s not clear that EPA, under the Act, has the ability to go beyond that.

Moreover, it’s… if–

Stephen G. Breyer:

In other words, if a State were to say,

“Our water quality standard is the following. “

“We never build a dam in our State, no matter what. “

Okay?

Now, there’s no authority in the EPA to set that aside as it not being a proper Clean Water Act standard.

William J. Kayatta, Jr.:

–If this decision is–

Stephen G. Breyer:

It has to be just a Clean Water Act standard.

William J. Kayatta, Jr.:

–Yes.

Stephen G. Breyer:

I’m not an expert on the Clean Water Act.

Is that a proper Clean Water Act standard?

William J. Kayatta, Jr.:

If this decision is affirmed, then you will have precisely held–

Stephen G. Breyer:

No, this decision… I’m not asking you about this decision.

I’m asking you if a State, under the Clean Water Act, were to say, “We have the following Clean”… now you understand what I’m–

William J. Kayatta, Jr.:

–Yes.

Stephen G. Breyer:

–Does EPA, or anyone else, have authority to say,

“That isn’t a proper Clean Water Act standard, however good you may think it is? “

William J. Kayatta, Jr.:

I don’t know, Justice Breyer, about the wording posed in your hypothetical, so I can’t answer the wording.

I can say this, that effectively the States can do precisely that by simply saying,

“We want the river water quality to be like X, and X is inconsistent with there being any dam at all on the river. “

So, indeed, if this decision is affirmed, it truly does mean that States can entirely dictate everything having to do with any environmental aspects of dams, including to the point of requiring that the dams not operate; and FERC can do nothing about it.

We do… we do not see how that would leave any sense of cooperative federalism, and it would tell Congress,

“In 1986, you were just entirely wasting your time, because you had already, in ’72, given them the power to control everything. “

Samuel A. Alito, Jr.:

Well, has FERC said that this is a problem, that the States are interfering?

William J. Kayatta, Jr.:

Well, FERC has sort of been all over the place.

They’re sort of the odd man out, because it’s their jurisdiction that’s being taken away; and yet we’re talking about a Clean Water Act case where EPA is the agency defined with that Act.

FERC has argued to the courts, on several occasions, that 401 needs to be limited to discharge of pollutants.

FERC, at one point, the first several dam proceedings that came up, it didn’t even require certifications at all.

It then promulgated certification requirements that said,

“Either get a certification or otherwise comply with the law. “

And then, in the interim period, it is simply… as we’ve been affected, simply said, “Go get your certifications”.

It then tried to say,

“But we can do something about it if we don’t like them. “

And the Circuit Courts, at least one, has said, “No, you can’t”.

And when 401 applies, as this Court found in Public Utility Districts versus Jefferson, it is a robust power.

It is an awesome power that is given to the States under 401.

And to… giving that power greatly cabined in FERC’s authority to now extend that power automatically to any conduct that in any way “touches on the water” by turning “touches on the water” or “moving the water” into “discharge into the water”… effectively wipes out that balance entirely.

I would note, too, that we don’t even… we can answer all of this without even getting into those by going back to the statute.

We have a statute here that uses the word 421 occasions in 37 different sections of the statute.

With the exception of the section that deals with the discharge of employees… not into the river… and the discharge–

[Laughter]

–and the discharge of board duties, in every single one of those instances, as you thumb through the statute, Congress is always clearly talking about “putting something into the water”.

There is no doubt.

On the one occasion in the statute–

John G. Roberts, Jr.:

But I don’t understand, linguistically, why this isn’t “putting something into the water”, to the extent the dam holds back and restrains the water, then it “puts back into the water” the water that it had held back.

William J. Kayatta, Jr.:

–Well, the water slows down, meanders around, as it would in an eddy, and continues on through the dam, down the river.

If you take a water molecule, it comes down, goes through and out.

If… unless you get–

John G. Roberts, Jr.:

Here’s… I’m thinking of the Hoover Dam, and it’s got these huge, you know, discharge points.

William J. Kayatta, Jr.:

–Yes.

John G. Roberts, Jr.:

And every now and then they let the water come out.

Isn’t that a discharge?

William J. Kayatta, Jr.:

The… I would say, in an ordinary dictionary definition, if you stand below the Hoover Dam and look up at it, you would say,

“Water is emitting from the dam. “

“Water is discharging from the dam. “

in an ordinary dictionary definition.

I would agree with that.

What I’m saying, though, is that if you keep in mind that it’s not a reservoir emitting into a river, but it’s a single river flowing through the dam, that water is not “discharging into” that water.

That’s what we’re saying.

Samuel A. Alito, Jr.:

Well, would it be fair to say that, let’s say, the Missouri River discharges into the Mississippi?

Is that consistent with ordinary usage?

William J. Kayatta, Jr.:

If you have two water bodies, then you could have one discharging into the other.

Yes, Your Honor.

Samuel A. Alito, Jr.:

But they’re two water bodies, only because people gave them two different names.

William J. Kayatta, Jr.:

Well, in Miccosukee, the Court actually go into that and set forth… in fact, remanded the case to decide whether the aquifer was one water body or two.

If you look at that remand, it’s absolutely clear that this water body, under any standard discussed in that opinion, would be a single water body.

And the United States agrees with us on that.

The United States agrees we’re talking about a single water body here.

Samuel A. Alito, Jr.:

But the–

William J. Kayatta, Jr.:

And I could–

Samuel A. Alito, Jr.:

–the statute doesn’t say

“discharge from one water body into another water body. “

It says “discharge into the navigable waters”.

William J. Kayatta, Jr.:

–Yes.

Samuel A. Alito, Jr.:

And if the portion of the river below the dam is a navigable water, why is there not a pouring forth of the water into the navigable waters below the dam?

William J. Kayatta, Jr.:

Well, if one thinks of upstream waters and downstream waters, it… our view is that upstream waters simply become downstream waters as they flow through the dam.

One doesn’t discharge into another.

I would… I would concede that very bright people working very hard with virtually any words in the English language can find some way to reach a point to say that perhaps something fits something.

But, at some point… at some point, I think we need to ask, Is… if Congress uses the same word throughout the statute to always mean putting something into water, then how do we get to the conclusion that what that really means is doing anything to the water is always… because–

David H. Souter:

Well, isn’t–

William J. Kayatta, Jr.:

–the–

David H. Souter:

–isn’t the answer to your question that a great number of those usages that you refer to are uses that refer to the discharge of pollutants?

And there is a good… there are good reasons in the statute… and we have recognized them… to say that when you discharge a pollutant, you are adding something that wasn’t there before?

But when the statute, in this case, is using “discharge” without a reference to “pollutant”, it makes perfectly good linguistic sense to construe it just as the Court has done.

William J. Kayatta, Jr.:

–Well it makes… it is linguistically logical to say that we’re, therefore, going to assume that a pollutant is not needed here.

But when Congress has replaced the “discharge of a pollutant” with a “discharge into”, it seems to me Congress has actually moved in the other direction of reinforcing that we’re talking about–

David H. Souter:

Well, maybe it’s–

William J. Kayatta, Jr.:

–putting something into the water.

David H. Souter:

–“# reinforcing”, and maybe it’s “changing”.

I mean, you’re characterizing it one way.

We start with a different canon of meaning, and that is that we look to the words around which, in connection with which, the word is used.

In here, it’s being used without certain modifiers or descriptive conditions.

In other cases, it is being used with them.

And that’s a good reason to think that probably the word is intended to mean something different in those situations.

William J. Kayatta, Jr.:

Well, I would… I would hesitate, Justice Souter, to go from taking a specific word, like “discharge”, and, therefore, saying that it meant something that is both more general and much more easily set.

David H. Souter:

No, but your argument, I thought, was simply this, that it uses “discharge” in, you know, X number… I forget how many you had… and it’s perfectly clear that in most of those instances it requires an addition; and, therefore, it should be construed as requiring it here.

My point was that in a great many of those instances, the statute is not merely using the word in isolation; it’s using it in connection with a couple of other words, like “discharge a pollutant”.

And it, therefore, number one, makes sense to construe “discharge of a pollutant” differently from “discharge”.

That’s the… that’s the only point.

William J. Kayatta, Jr.:

Yes.

David H. Souter:

The only point is, you can’t simply argue from the fact that the word occurs somehow X number of times to the conclusion that it has to mean the same thing every time it’s used.

William J. Kayatta, Jr.:

I agree with you.

And my point is, I am including instances not just in which “pollutant” is used.

A whole variety.

And, in every single one of those, its common… and I would submit that the word itself, when you use the word “into”, naturally suggests… in fact, why would someone use the phrase “discharge into the navigable waters” if what they really meant was,

William J. Kayatta, Jr.:

“If you do anything to the navigable waters at all, you’ve got to get a permit? “

David H. Souter:

Because that isn’t what they mean.

I mean, for example, if somebody puts a stick in the middle of the river, no one… no one is claiming that the water that flows around the stick is being discharged.

I mean, there are a lot… I don’t know whether anyone wants to put a stick in the river, but–

William J. Kayatta, Jr.:

Yes.

David H. Souter:

–there are things you can do that clearly would not activate the Corps’ interpretation here.

William J. Kayatta, Jr.:

I… this logic, I think, would probably include virtually anything you do to the water, because it would separate the water, the water going around the stick.

One would then say the dictionary definition means it’s then discharging back into itself on the other side of the stick.

There would be, perhaps, no water quality concerns, but 401 doesn’t say “water quality concerns”; it says “discharge into”.

David H. Souter:

Would you agree that if the… if somebody with property on each side wanted to build a dam… I’m sorry, wanted to build a bridge to connect his property, and he needed to put a post in the middle of the river to support the bridge, that there would be no discharge of water occasioned by putting the post in there?

William J. Kayatta, Jr.:

Under the Government’s interpretation, there would be.

There would be a discharge into the navigable waters in that situation.

David H. Souter:

Why, if… you may answer.

William J. Kayatta, Jr.:

Because the post… to put… well, in the first place, putting the post in might, itself, be a… what we could concede to be a discharge.

In the second case, though, is that we understand that you would be exercising control over the flow and direction of that water, it would separate the river into two portions… of course, small.

But if we’re pursuing this line of logic that the Government has to its final extent, it would then discharge back into itself on the other side of that post.

John G. Roberts, Jr.:

Thank you, Counsel.

General Rowe?

G. Steven Rowe:

Mr. Chief Justice, and may it please the Court–

The flow of water through Petitioner’s dams into the Presumpscot River is a discharge, under Section 401(a) of the Clean Water Act.

This finding is supported by the plain text of Section 401(a), the purpose, the history, and the structure of the Clean Water Act, in more than 30 years of administrative practice and agency interpretation.

Under the Clean Water Act, Congress–

John G. Roberts, Jr.:

Is there a–

G. Steven Rowe:

–requires–

John G. Roberts, Jr.:

–Is there a discharge if you have a simple waterwheel in the river?

Is that a discharge?

G. Steven Rowe:

–Well, first of all, Your Honor, for 401 to apply there must be a federally licensed activity.

In that case–

John G. Roberts, Jr.:

Yes, so it’s a old hydroelectric plant, it uses a simple waterwheel.

I mean, is that… does that fit your definition of a “discharge”?

John G. Roberts, Jr.:

In other words, it restrains the water temporarily.

G. Steven Rowe:

–Yes, Your Honor.

John G. Roberts, Jr.:

And then it releases it again as it passes by the wheel.

G. Steven Rowe:

Yes, Your Honor.

It–

John G. Roberts, Jr.:

So, if you put a waterwheel in a flowing river, under your definition, that’s a discharge into the navigable water.

G. Steven Rowe:

–It could, Your Honor.

It could discharge.

It depends on the actual circumstances.

Obviously, under the doctrine of de minimis non curat lex, it may not pose any problems, and it wouldn’t be an issue.

But certainly to the extent that it used the water and then it discharged the water, there was emitting out or flowing out.

If you put a fishnet in the river, there would be no discharge.

Justice Souter’s example of a simple… a post, probably no discharge.

But if you put a hundred foot… a post 100 foot in diameter into a 200-foot-wide river, then you may have a discharge.

So, Your Honor, I would suggest it depends on the circumstances.

But, remember, 401 does require it to be a federally licensed project.

The point I was going to make, Your Honor, is that, under the Clean Water Act, Congress requires States to adopt clean water standards–

Antonin Scalia:

I must say, this–

G. Steven Rowe:

–water quality standards.

Antonin Scalia:

–this doesn’t seem to me normal usage.

I don’t think it… you know, if you see a rapids in a river, it would be strange to say the rapids of the Colorado “discharge” into the Colorado.

You’re usually talking about a different body of water.

You could say the Green River discharges into the Colorado.

Likewise, a waterfall, you wouldn’t say, you know,

“The waterfall on this river discharges into the river. “

It’s part of the river.

But if it were a waterfall that brought a tributary into the river, you would then say that, you know,

“the waterfall discharges into the Colorado. “

or whatever river it enters at that point.

It seems to me very strange to talk about a river discharging into itself.

G. Steven Rowe:

Justice Scalia, it’s not strange at all.

It’s not… it’s discharging from the activity into the river.

The water goes into the activity.

The activity, in this case, is a… an impoundment.

There are five impoundments.

These dams create impoundments.

One’s 197 acres–

John G. Roberts, Jr.:

But that doesn’t… but that–

G. Steven Rowe:

–in size.

John G. Roberts, Jr.:

–But that doesn’t matter to your analysis.

It’s the one post, right?

I mean, if you have just sort of a foot indentation on either side, would… the flows, in… under your view, suddenly becomes a discharge.

G. Steven Rowe:

Your Honor, my point is, that’s not the case we have.

We’re talking about a hydroelectric dam here.

John G. Roberts, Jr.:

Well, but–

G. Steven Rowe:

But–

John G. Roberts, Jr.:

–we’re trying to–

G. Steven Rowe:

–But–

John G. Roberts, Jr.:

–define–

G. Steven Rowe:

–I understand, Your Honor.

John G. Roberts, Jr.:

–a statutory term that’s going to apply in a wide variety of cases.

G. Steven Rowe:

Yes.

In that case, Your Honor, I’ve said it could cause a discharge… if the flow was interrupted, the flow regimen of the river, to such an extent that it… that it increased, substantially, the flow on one side, and that was a federally licensed activity, then 401 would apply.

It would be a discharge from the activity.

Now, I’m… again, I’m using the de minimis rule here.

But what we have here, Your Honors, is the dam, we have the water being diverted into a power canal, then dropping down onto the top of the turbines.

The turbines are using the water, they’re taking the energy from the water to turn the turbine, and then the water is being released.

Anthony M. Kennedy:

So, what’s–

G. Steven Rowe:

It’s being discharged.

Anthony M. Kennedy:

–So, what’s the definition… what’s the general definition that you’re giving us that describes this result you’ve given?

G. Steven Rowe:

Justice–

Anthony M. Kennedy:

It–

G. Steven Rowe:

–Kennedy–

Anthony M. Kennedy:

–It is a discharge, because a “discharge” means what?

G. Steven Rowe:

–It means a flowing or issuing out.

It’s the… it is the dictionary definition.

Mr. Kayatta mentioned the Hoover Dam.

It is that.

That’s what it is.

It’s the–

Antonin Scalia:

But the–

G. Steven Rowe:

–ordinary definition.

Antonin Scalia:

–the issue is not whether there is a discharge, as I see it.

The issue is whether there’s a “discharge into the river”.

And one does not usually speak of the “river discharging into itself”.

That… it’s the “into” that’s the crucial part.

How do you distinguish this case from Miccosukee, if I’m saying it right +/?

yes, Miccosukee–

G. Steven Rowe:

Well, Your Honor, Miccosukee–

Antonin Scalia:

–where we had, you know, a pumping of water from one polluted body into another, and it was held… we held that that was not a discharge?

G. Steven Rowe:

–Your Honor, the… in Miccosukee, that was a Section 402 case.

Antonin Scalia:

It–

G. Steven Rowe:

It dealt with discharge of a pollutant.

Antonin Scalia:

–That’s right.

G. Steven Rowe:

And this–

Antonin Scalia:

But the crucial–

G. Steven Rowe:

–Court held–

Antonin Scalia:

–word was “discharge”.

The reason we held “it was not covered” is not because there was no pollutant.

It was clear that there was a pollutant.

Antonin Scalia:

But we held there was no discharge.

G. Steven Rowe:

–No, Your Honor, you held that there was “no discharge of a pollutant”.

You held that it was–

Antonin Scalia:

Because there was no “discharge of a pollutant”.

There were pollutants in… on both sides.

That… I think that was conceded in the case.

The reason the case came out the way it did was that we held there was no “discharge of a pollutant”.

G. Steven Rowe:

–But there… Your Honor… Your Honor, in that case, it required a discharge of a pollutant from a point source.

The definition of 401 is much broader.

Antonin Scalia:

Wasn’t it conceded that there was a pollutant… that a pollutant was involved in that case?

G. Steven Rowe:

Your… yes, Your Honor, but the–

Antonin Scalia:

So, what must have been the difference was that there was no discharge.

G. Steven Rowe:

–There was “no discharge of a pollutant”, Your Honor.

Antonin Scalia:

There was no discharge of anything.

It was clear that if there was a… if there was a discharge, it was a discharge of a pollutant.

G. Steven Rowe:

Your Honor, in… with all due respect, in that case… and, in that case, you joined Justice Thomas in saying,

“The term “discharge” is not defined in the Clean Water Act, but its plain and ordinary meaning suggests a flowing or issuing out, or something that is emitted. “

In the case we have here, something is admitted.

It is water.

It is emitted from a facility.

We have a federally licensed facility.

And out of the turbines comes water, and it flows into the river.

Miccosukee was a 402 case, Your Honor, with all due respect.

And, in another point, I–

David H. Souter:

Didn’t… didn’t that case involved the… a violation there… involve the addition of a pollutant?

And there was no addition of a pollutant, because the water was equally polluted on each side.

Wasn’t that the–

G. Steven Rowe:

–That’s–

David H. Souter:

–the case?

G. Steven Rowe:

–That’s correct, Your Honor.

David H. Souter:

Yes.

G. Steven Rowe:

The pollutant was already in the water when it… when it entered… the water from the pipe.

And the point that Justice Ginsburg’s mentioned, the quote, is, if one takes a ladle of soup from a pot, lifts it up above the pot and pours it back into the pot, one has not added soup or anything else to the pot.

Section 401, the word “discharge” in that section does not require an addition of anything.

It can be–

John G. Roberts, Jr.:

Well, then… but your focus… in response to my question about what would constitute release, you focused on the fact of impoundment, a restriction of the flow.

It seems to me that the ladle analogy that the Court has made part of the law of the land is… refutes that, because if it’s hold… you’re holding it up in the ladle, that’s like an impoundment.

You’ve separated it, to that extent, from the other body, and the Court said, when you pour it back in, that’s not–

G. Steven Rowe:

–It wasn’t–

John G. Roberts, Jr.:

–that’s not a discharge of a pollutant–

G. Steven Rowe:

–No, Mr. Chief–

John G. Roberts, Jr.:

–and there was no dispute that there were pollutants, so it must mean it wasn’t a discharge.

G. Steven Rowe:

–Mr. Chief Justice, the Court didn’t say that there was no discharge; the Court said that there was no addition of soup or anything else into the pot.

The point is, there was not the addition of a pollutant.

And you do not need the addition of a pollutant to find a discharge, under Section 401.

I just want to remind the Court that Section 401 came from Section 21(b) of the Water Quality Improvement Act of 1970.

That was the old Section 401.

It said,

“Anytime that there’s a licensed activity that’s going to create a discharge from a facility into navigable waters, then the States are to enforce their water quality standards. “

Congress requires States to adopt water quality standards, according to Section 303.

And we have.

All States have.

And those water quality standards are consistent.

We have designated uses, water quality criteria, and an antidegradation policy.

The Court should know that, as part of our designated uses, hydropower is one of those.

The State values hydropower.

We understand the importance of it.

John G. Roberts, Jr.:

But you–

G. Steven Rowe:

Most–

John G. Roberts, Jr.:

–you don’t… you don’t value it as much as FERC does, though, do you?

G. Steven Rowe:

–Your Honor, I don’t know.

[Laughter]

You heard… Your Honor, you heard earlier–

John G. Roberts, Jr.:

I mean, isn’t one way to look at this… I mean, the concern is that your constituents probably have a higher priority and a greater concern with the environmental consequences of generating power, while FERC’s priority is to make sure that we have sufficient power.

And you’re likely to weigh these competing uses in very different ways.

G. Steven Rowe:

–Well, Your Honor, you heard earlier about the… 1986, the Electric Consumers Protection Act.

That did require FERC to give equal consideration to the protection of the environment with respect to the production of… hydropower production.

But the States have a responsibility given to them by Congress.

The States have the primary responsibility for the prevention, for the reduction, and for the elimination of pollution.

The way we enforce that is through our water quality standards.

And so, the only way we can enforce those standards with respect to federally licensed facilities is Section 401.

And if you should take that from us, it will create a gaping hole in the Clean Water Act.

Antonin Scalia:

Well, only if you assume that letting out the same water into the same river is pollution.

It seems to me you’re begging the question.

G. Steven Rowe:

Your Honor–

Antonin Scalia:

You–

G. Steven Rowe:

–the–

Antonin Scalia:

–If there were a discharge of something into the river, you’d be able to move against it.

But the question here is whether there’s any discharge into the river when you stop the river and then let the same river out.

G. Steven Rowe:

–Your Honor, the “pollution”, as defined in the Clean Water Act, is the alteration of the physical, chemical, and biological integrity of the water.

That’s the pollution.

The reason 401 exists, and the reason “discharge” is used broadly, and it’s the trigger for the section to work, is because you look at the impacts of that activity on the environment.

You look at the physical integrity… Has it been altered +/?

the chemical integrity, the biological integrity.

We look at things like the impact on aquatic ecosystems, the thermal stratification in the impoundment areas, whether there is lower dissolved oxygen.

And certainly we look at the fish migration issues.

Has there been blockage?

Samuel A. Alito, Jr.:

Could you, as Justice Breyer’s question to your adversary suggested, adopt water quality standards that would make any hydroelectric power impossible, in name?

G. Steven Rowe:

Your Honor, we could.

We have a number of classes of rivers.

G. Steven Rowe:

With respect to one class, that is not a designated use.

With respect to all the others, hydropower is the designated use.

Samuel A. Alito, Jr.:

Do you think that’s something that Congress intended when they adopted this, to allow a State to rule out hydroelectric power?

G. Steven Rowe:

Justice Alito, Congress did not give the States unbounded authority.

Indeed, in Section 401(d), there is a restriction.

It restricts the conditions to those necessary to assure that the applicant will comply with conditions in our water quality standards.

And if… I mean, FERC does incorporate those standards into the license, but the applicant can redress that in court, as this one has.

So, we… I want to mention, again, that States care about hydropower.

We care about fish migration.

We care about recreation activities.

We care about all of these things, and they’re all incorporated into our water quality standards.

David H. Souter:

So, I take it your ultimate answer is, no, a State could not, in effect, eliminate hydropower from–

G. Steven Rowe:

Well, Your–

–Your Honor, in our State it’s a designated use–

David H. Souter:

–development.

John G. Roberts, Jr.:

I’m sorry–

G. Steven Rowe:

–on most of our rivers.

David H. Souter:

I’m not interested… I’m asking for an answer to my question.

I take it, based on your further answer to Justice Alito, that your answer to the first question is, no, a State could not, in effect, eliminate all hydropower from… development from its rivers.

G. Steven Rowe:

Your… Justice Souter, a State… a State could do that if it changed the designated uses for its rivers.

But in the State of Maine, as in 45 States–

David H. Souter:

And you don’t think there would be any conflict with the FERC scheme if you did that?

You don’t think there would be any conflict between the Federal policy embodied in the Power Act and in the State law?

G. Steven Rowe:

–Well, Your Honor, again, I want to… under the Clean Water Act, the States have primary responsibility for the reduction and for the elimination and–

Stephen G. Breyer:

Yeah, I–

G. Steven Rowe:

–prevention of pollution.

Stephen G. Breyer:

–I think the question… maybe it just… I don’t understand, totally, how the Clean Water Act works, but I thought that what we’re talking in this statute is a State rule that’s called the State Clean Water Act rule.

It’s a creature of the Clean Water Act, isn’t it?

A water quality standard?

G. Steven Rowe:

Yes, Your Honor.

Stephen G. Breyer:

All right.

And, therefore, a State, I would think, that had some totally bizarre Clean Water Act standard might find that it had a standard that didn’t fit within the scope of the Clean Water Act.

And, therefore, it wasn’t going to be enforced here.

Is that right, or not right?

Maybe the Federal Government will explain this–

G. Steven Rowe:

Well, Your Honor, I’m sure the Federal Government will also address this question, but the parameters of the water quality standards are addressed in Section 303 of the Clean Water Act.

And there are parameters in there.

And the States’ Clean Water… or water quality standards must conform to those standards.

We submit our Clean… our water quality standards–

Antonin Scalia:

Are they maximums or minimums?

G. Steven Rowe:

–Your Honor, it’s simply categories in there.

We submit–

Antonin Scalia:

Yes.

I expect that they’re minimums.

G. Steven Rowe:

–We… well, they are minimums, Your Honor.

We submit these to the EPA.

The EPA approves the State water quality standards, and then those standards are how we evaluate these federally licensed activities as to whether they’re in compliance or not.

And they determine the certification, whether it’s issued, and if it’s issued, with what conditions.

If a State… if a State’s rivers were not conducive to hydropower… the question you asked, Your Honor was… Justice Souter… could a State prevent hydropower from occurring?

Again, we have, with respect to a few rivers in the State of Maine; but most of the rivers, it is a designated use, because States, like the Federal Government, value hydropower.

There is no air pollution.

It’s a clean source of energy.

We value it.

And, indeed, the antidegradation policies that are part of our water quality standards require us to look at the impact on Petitioner’s dams, the power output that’s going to be… going to… is going to result from these various conditions that we impose as a part of our certification.

John Paul Stevens:

General Rowe, may I ask this question?

In the Miccosukee case, we sent the case back, as you remember, to decide whether or not there were one body of water or two bodies of water.

In your view, are there one or two bodies of water… it would be five bodies of water… in this case?

G. Steven Rowe:

There’s one body of water, Your Honor… Justice Stevens.

John Paul Stevens:

So, you–

G. Steven Rowe:

And that’s the–

John Paul Stevens:

–concede that.

G. Steven Rowe:

–that’s the–

John Paul Stevens:

Okay.

G. Steven Rowe:

–Presumpscot River.

John Paul Stevens:

Yes.

G. Steven Rowe:

All the water is waters of the United States, navigable waters, but the water is being discharged from the facility into the navigable waters.

You… Your Honor has mentioned a storage dam.

A storage dam creates an impoundment.

In fact, one of these dams has a 50-foot-high wall that holds the water back, almost 200 acres of water.

At times, there is water that goes over the top of the dam.

That is, indeed, a discharge.

It is caused by the activity.

It results from the activity.

It’s not the free flowing water.

And I want to make that clear.

I think, Justice Scalia, your question was… that’s not a discharge.

That’s the natural flow of water.

What’s happening here is, the flow is being altered.

Because of the impoundment, because of the diversion, the flow is being altered.

And in the case at hand here, you’re actually taking a turbine, the water drops down into the turbine, turns the turbine blades or fans, it absorbs the water of its power, and then the water is released, discharged, into the tailrace channel, into the natural river.

Antonin Scalia:

Well, any significant obstruction in the river amounts to a… creates a discharge.

G. Steven Rowe:

No, I’d… no, Your–

Antonin Scalia:

Indeed, if it’s a small enough stream, I suppose just swimming in it or lying sideways so you impede the flow, you are causing a discharge into the waters of the United States.

I find that peculiar.

G. Steven Rowe:

–That… Justice Scalia, that’s not what I said.

The question was asked about a post, like a bridge, the pilings for a bridge.

In certain cases, depending on the size, it might result in a discharge.

I’m not saying every… a stick in the river is, certainly not a swimmer.

We have a de minimis rule.

We’re not saying that.

G. Steven Rowe:

It needs to be–

Antonin Scalia:

Well, it depends on how big the river is, doesn’t it?

G. Steven Rowe:

–Well, I’m… if it’s navigable waters, and you have a huge post that’s holding up a bridge, there could be a… there… and it’s federally licensed… there could be a discharge resulting from that.

I mean, I… that is what a person would say, “There is a discharge”, because suddenly you see… where water was naturally flowing, you see a diversion, in an impoundment, of sorts, moving the water over.

But what we have here is not that case.

What we have here is an impoundment.

We have the water being diverted into a narrow channel, dropping down onto these turbines, being used, and then being discharged into the river.

The word 1970, under the 21(b), was given a broad definition.

402 and 404 came later, in 1972, as part of the Clean Water Act.

In those, we’re dealing with discrete conveyances of pollutants, 402.

And 404 was dredge or fill discharge.

And those were deemed necessary.

But they’re consumed in 401.

In other words, if you get a 402, if you need a 40… a 402 application, certification, you also will need a 401.

401 deals with the effects of pollution, the effects of the activity on the environment.

I thank Your Honors very much.

And I just want to remind the Court that the State very much values the power… the importance of hydropower.

We value the… our responsibility, as given to us by Congress under the Clean Water Act, to be the primary enforcer of our water quality standards.

And the only way we can do that, with respect to federally licensed facilities, is Section 401.

Thank you very much.

John G. Roberts, Jr.:

–Thank you, General Rowe.

Mr. Minear.

Jeffrey P. Minear:

Mr. Chief Justice, and may it please the Court–

The United States submits that the operation of Petitioner’s hydropower facilities results in a discharge into the navigable waters within the meaning of Section 401 of the Clean Water Act.

Section 401 uses the term “discharge” in its ordinary sense to mean a “flowing out” or “issuing out”.

The facilities at issue in this case, which divert water, impound it, and then release it, produce a flowing or issuing out of that water into the navigable Presumpscot River.

Antonin Scalia:

Section 402 uses “discharge” in the same sense, I assume.

Jeffrey P. Minear:

No, it does not, Your Honor.

Antonin Scalia:

Why doesn’t it?

Jeffrey P. Minear:

Because it uses the term “discharge of a pollutant”, which is–

Antonin Scalia:

Yes–

Jeffrey P. Minear:

–which is defined, under the Clean Water Act, as a statutory term of art, to mean the addition of a pollution… of a pollutant from a point source.

On the other hand, the Clean Water Act interprets or defines “discharge” to include the “discharge of a pollutant”.

So, it’s clear that the term “discharge” is broader than the term “discharge of a pollutant”, and does not include the requirement of an addition.

Antonin Scalia:

–It is… it is broader.

But if… the discharge of a pollutant into the same body of water does not constitute the addition of a pollution… of a pollutant.

It obviously is the addition of a pollutant.

The only reason you could say that taking it from one… pumping it from one polluted body to another is not a discharge of a pollutant, which is what we said in Miccosukee, the only basis for saying that is that there has been no discharge.

There’s obviously been an addition of a pollutant to the… to the other body of water.

The only thing you can say is, there hasn’t been a discharge.

It’s… because it’s the same body of water.

Jeffrey P. Minear:

I respectfully disagree, Your Honor, because, in Miccosukee, it addressed the specific question of whether or not there is an addition.

And, in the much quoted soup ladle example, what it was talking about, in that instance, was taking a ladle of soup, removing it from the pot, and adding it back.

The pouring back of the soup into the pot is a discharge, it’s a flowing or issuing out.

It’s not an addition, because nothing is being added to the soup.

Now, in this case, we’re using the term “discharge”, not “addition”.

And there is, obviously, a flowing or issuing out from the dam.

Anyone who goes and observes a dam, and sees the water leaving the dam, will say that’s a “discharge”.

That’s common parlance.

It’s been repeated numerous times in this Court’s own decisions in describing dam operations.

Furthermore–

David H. Souter:

In other words, Miccosukee was concerned not with molecules, but with chemical composition.

The chemical composition was the same in this body and in that body, and, in that sense, there was no addition–

Jeffrey P. Minear:

–That’s correct–

David H. Souter:

–Well, that–

Jeffrey P. Minear:

–that there was no transmission.

David H. Souter:

–Yes.

Jeffrey P. Minear:

But I think, Justice Souter, you are right in focusing on the exiting from the dam and why discharges are important here.

Antonin Scalia:

If, in Miccosukee, liquid of the same composition had been taken from another body of water, and from… not the body of water that was adjacent and which we held was the same body of water… with the same composition, and that had been added, do you think Miccosukee would have come out the same way?

Jeffrey P. Minear:

Yes, I think it would have come out the same way.

Antonin Scalia:

Really?

That you could take pollutants from a different body of water and add it to an already polluted stream?

I thought that was clear that that’s not the case.

Jeffrey P. Minear:

Your Honor, if we look to the Miccosukee opinion, at 541 U.S. 109 to 110, it discusses this issue.

One of the issues there is, Are there two bodies of water or one body of water?

Antonin Scalia:

Exactly.

Jeffrey P. Minear:

And the Court… that question was left unresolved in Miccosukee.

That’s what’s being tried in Florida right now.

Antonin Scalia:

Because if it was one body of water, it was okay, and if it was two bodies of water, it was bad, right?

Jeffrey P. Minear:

Yes, but in… at page 109, what this Court said… it talked about the S-9 pump, which was central there, because it was moving the body… that the… the water.

It was transmitting it.

And it was… talked about pumping the water from one part of the water body to the other.

That’s a discharge, even though it’s the same water body.

Antonin Scalia:

But it would add pollutants to the other body whether it comes from the adjacent body or whether it comes from some distant body.

The only reason that the pumping from the adjacent body did not qualify is… not because there no addition of pollutants.

There would be an addition of pollutions from a distant lake, and you… we’d be able to hold a person liable.

The only reason there was no addition here was that there was… there was an addition here, but there was no discharge, because it was the same body of water.

Jeffrey P. Minear:

With–

Antonin Scalia:

And I–

Jeffrey P. Minear:

–With respect–

Antonin Scalia:

–it seems to me that’s–

Jeffrey P. Minear:

–I think you have–

Antonin Scalia:

–what you have here.

Jeffrey P. Minear:

–it exactly backwards with what the position of the United States was in Miccosukee, and it explains why our… we took that position.

And the Court upheld our position in Miccosukee.

And we’re taking the different position here.

Because here we’re talking about a discharge, not an addition.

The dictionary definition of “discharge” nowhere speaks of “addition”.

Petitioners have not pointed to any dictionary definition that speaks in terms of an addition.

It talks about a flowing or issuing out.

Jeffrey P. Minear:

What it connotes is that the water has, in some sense, been contained or confined, to some degree.

John G. Roberts, Jr.:

Counsel, I was–

Jeffrey P. Minear:

And its issue was–

John G. Roberts, Jr.:

–surprised, in a case involving a FERC license condition, that no one from FERC signed on to your brief.

Jeffrey P. Minear:

–Well, Your Honor, as people in the office are familiar with, in the SG’s office, the names in the brief tell very little about who has participated in the discussions and the writing of the brief.

The Rapanos case–

John G. Roberts, Jr.:

But if it’s a case involving a FERC license, and FERC isn’t there, I think it says a great deal.

Jeffrey P. Minear:

–Well, Your Honor, this is primarily a case about the Clean Water Act.

I would point to the Rapanos case, immediately before.

The Corps’ name is not on the brief, and EPA’s name is not on the brief.

John G. Roberts, Jr.:

Do you know what FERC’s–

Jeffrey P. Minear:

So, we can’t draw–

John G. Roberts, Jr.:

–Do you know what FERC’s position is–

Jeffrey P. Minear:

–I certainly–

John G. Roberts, Jr.:

–in this case?

Jeffrey P. Minear:

–do.

They join in the consensus position of the United States.

This brief has been coordinated not only with EPA and FERC, but also the Department of the Interior and the Army Corps of Engineers.

This is the position of the United States.

John G. Roberts, Jr.:

Well, I’m sure of that, and it involves a reconciliation of–

Jeffrey P. Minear:

Right.

John G. Roberts, Jr.:

–competing positions.

Is there anything that FERC has issued that is illuminating with respect to their view?

Jeffrey P. Minear:

I think what’s illuminating is their consistent position, since 1970, when this provision was first enacted into law, in the Water Quality Improvement Act of 1970, 2 years before the Clean Water Act amendments.

John G. Roberts, Jr.:

Do you agree that a State could adopt water quality standards that would, in effect, preclude hydroelectric power in the State?

Jeffrey P. Minear:

I think it’s certainly possible, on an individual river.

Imagine if a State had a river that is designated as a wilderness area or a wild and scenic river, and determined it did not–

John G. Roberts, Jr.:

Would they do–

Jeffrey P. Minear:

–want to have hydropower.

John G. Roberts, Jr.:

–it statewide?

Jeffrey P. Minear:

If they did it statewide, I think–

John G. Roberts, Jr.:

Saying,

“It is of utmost importance to us to provide habitat for spawning salmon, whatever, dams interfere with that in a way we find objectionable, so we’re going to go a different direction, as a matter of power policy for the State of whatever, and not allow hydroelectric power. “

Jeffrey P. Minear:

–If they did it statewide, it would raise a question of whether or not that action is preempted under the Federal Power Act, not under the Clean Water Act.

And that would… that’s obviously not the issue here.

Maine, as you have heard, supports hydropower production.

The question here is reconciling the competing roles of the hydropower company, on the one hand, and the State and Federal Governments, which, in the spirit of cooperative federalism, work together on these matters.

We are very supportive of the States’ approach of reviewing discharges to determine whether or not there has been the creation of pollution, and determining whether or not there is a violation of their water quality standards.

This is a part of… an important role that the State has under the Clean Water Act, that Congress gave to the State, and to which we defend.

I’d like to point out that one of the things that’s been talked about here is the oddity, supposed oddity, of a water discharging into itself.

And that’s not odd at all.

One often talks about, for instance, the fresh water above the dam being discharged into the fresh waters below.

That’s… there’s nothing unusual about this, because we’re talking about the characteristic of the water that might be shared by the water that’s upstream and contained in the dam and is also a characteristic of the water below.

Now, under Section 401, the upstream characteristic doesn’t matter, because it’s… it refers to “any discharge”, and it says “into the navigable waters”.

“Into” is significant, because “any discharge” is “out of something”.

And so, it can also be “into something”.

And by stating

“into navigable waters, Congress indicated what it was concerned about, which was that discharges that go into the navigable waters can cause pollution, and, therefore, ought to be reviewed by the State to make sure the water quality standards are being met. “

There’s nothing unusual in this at all.

It simply indicates that Congress was not concerned about discharges that go elsewhere; for instance, into a municipal water system or onto irrigated land.

What we have here–

Stephen G. Breyer:

Just for the few of us who think the dictionary doesn’t answer the case, is it possible you could say a word about why Congress would, or would not, have wanted, in effect, to incorporate all State water quality standards into a permission to build a dam?

Jeffrey P. Minear:

–The reason why, it was because Congress gave the States primary authority under the Clean Water Act to deal with pollution.

Discharges from confinements, from confined water, creates pollution, even in the absence of pollutants, by the stratification, the deprivation of oxygen, and the like.

And Congress recognized that where there’s a discharge, there’s likely to be a pollution problem, and that pollution problem will be manifested downstream.

And it, therefore, makes sense for the State to be able to review and determine whether or not its water quality standards will be met.

Stephen G. Breyer:

Also to protect fish?

Jeffrey P. Minear:

Yes.

It includes the protection of fish.

And, in fact, one of the things that this permit does, in this particular case, this condition, is, it ensures that there is, in fact, water in the bypass reaches.

Jeffrey P. Minear:

In the absence of the conditions that the State imposed here, there would be no water at all in the bypass reaches.

Now, it’s true that FERC itself can impose conditions to meet these requirements–

Samuel A. Alito, Jr.:

Well, suppose–

Jeffrey P. Minear:

–but–

Samuel A. Alito, Jr.:

–you have a facility that produces adverse environmental effects in one State, but produces power for a number of adjoining States.

Why does it make sense for the State in which the facility is located to do the balancing of the environmental and the power considerations in that situation?

Jeffrey P. Minear:

–May I answer that question–

John G. Roberts, Jr.:

Certainly.

Jeffrey P. Minear:

–Your Honor?

The Clean Water Act provides for exactly this problem.

It does address the problem of interstate pollution.

I believe that this Court’s case in Arkansas versus Oklahoma deals with that type of issue.

It provides for a reconciliation, with EPA playing an important role in those interstate concerns.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, Counsel. The case is submitted.