Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2002 Decided April 11, 2003
No. 01-1408
ALABAMA RIVERS ALLIANCE,
AMERICAN RIVERS, INC. AND LAKE WATCH OF LAKE MARTIN,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ALABAMA POWER COMPANY,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Ronald A. Shems argued the cause for the petitioners.
David K. Mears, Senior Counsel, Office of the Attorney
General, State of Washington, argued the cause for amici
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
curiae States of Washington et al. Christine O. Gregoire,
Attorney General, State of Washington, Frankie Sue Del
Papa, Attorney General, State of Nevada, and William H.
Sorrell, Attorney General, State of Vermont, were on brief.
David H. Coffman, Attorney, Federal Energy Regulatory
Commission, argued the cause for the respondent. Cynthia
A. Marlette, General Counsel, and Dennis Lane, Solicitor,
Federal Energy Regulatory Commission, were on brief.
Timm L. Abendroth entered an appearance.
James H. Hancock Jr. and P. Stephen Gidiere III were on
brief for intervenor Alabama Power Company. Jennifer M.
Buettner entered an appearance.
Donald H. Clarke and Henri D. Bartholomot were on brief
for amici curiae National Hydropower Association and Edi-
son Electric Institute.
Before: HENDERSON, TATEL and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioners
Alabama Rivers Alliance, American Rivers, Inc. and Lake
Watch of Lake Martin seek review of the decision of the
Federal Energy Regulatory Commission (FERC or Commis-
sion) to amend an existing hydroelectric license issued to
Alabama Power Company (Alabama Power). The amended
license authorizes Alabama Power to replace three existing
turbine generators at its Martin Dam Project on the Talla-
poosa River with new, more efficient units. The petitioners
contend that the Commission erred in issuing the license
amendment without first requiring Alabama Power to obtain
water quality certification from the state of Alabama. Be-
cause we conclude that an increase in the volume of water
passing through the dam’s replacement turbines ‘‘may result
in any discharge into the navigable waters’’ within the mean-
ing of section 401(a)(1) of the Clean Water Act (CWA), 33
U.S.C. § 1341(a)(1), we grant the petition for review and
vacate the Commission’s orders.
3
I. Background
A. The Regulatory Framework
The Federal Power Act (FPA) authorizes FERC to issue
licenses ‘‘for the purpose of constructing, operating, and
maintaining dams, water conduits, reservoirs, power houses,
transmission lines, or other project works necessary or conve-
nient TTT for the development, transmission, and utilization of
power across, along, from, or in any of the streams or other
bodies of water over which Congress has jurisdiction’’ under
the Commerce Clause. 16 U.S.C. § 797(e). These hydroelec-
tric licenses contain certain conditions that FERC deems
necessary to improve and utilize the nation’s waterways in
general and water-power development in particular. Id.
§ 803(a). Upon ‘‘mutual agreement’’ between the Commis-
sion and a licensee, FERC may amend such licenses, which
are issued ‘‘for a period not exceeding fifty years.’’ Id. § 799.
Although ‘‘the FPA represents a congressional intention to
establish ‘a broad federal role in the development and licens-
ing of hydroelectric power,’ ’’ the CWA ‘‘has diminished [the
FPA’s] preemptive reach by expressly requiring the Commis-
sion to incorporate into its licenses state-imposed water-
quality conditions.’’ Am. Rivers, Inc. v. FERC, 129 F.3d 99,
111 (2d Cir. 1997) (quoting California v. FERC, 495 U.S. 490,
496 (1990)). FERC’s hydroelectric licenses are thus subject
to, among other conditions, the requirements of section 401 of
the CWA. See Escondido Mut. Water Co. v. La Jolla
Indians, 466 U.S. 765, 775 (1984) (‘‘[W]hile Congress intended
that the Commission would have exclusive authority to issue
all licenses, it wanted the individual Secretaries [i.e., the
Secretaries of the Interior, War and Agriculture] to continue
to play the major role in determining what conditions would
be included in the license in order to protect the resources
under their respective jurisdictions.’’).
Section 401(a)(1) of the CWA provides that ‘‘[a]ny applicant
for a Federal license or permit to conduct any activity TTT
which may result in any discharge into the navigable waters,
shall provide the licensing or permitting agency a certification
4
from the State in which the discharge originates or will
originate.’’ 33 U.S.C. § 1341(a)(1). The required certifica-
tion must provide that such discharge will comply with the
applicable water quality standards of the CWA, as well as
with ‘‘any other appropriate requirement of state law.’’ Id.
§ 1341(d).1 Any limitations included in the state certification
become a condition on the federal license. Id. If the ‘‘origi-
nating’’ state denies an applicant section 401(a)(1) certifica-
tion, FERC may not issue that applicant a hydroelectric
license. Id. § 1341(a)(1).2
B. The License Amendment Proceedings
Located on the Tallapoosa River in central Alabama, Ala-
bama Power’s Martin Dam Project has the capacity to gener-
ate 154.2 megawatts (MW) of electric power. The dam
project generates electricity by taking in water from the
reservoir above the dam, funneling the water through four
turbine generators and then releasing the water through four
penstocks into the river below the dam. The first three 33–
MW turbine generators began commercial operation in 1927.
1 More specifically, the state certification must ‘‘set forth any
effluent limitations and other limitations, and monitoring require-
ments necessary to assure that any applicant for a Federal license
or permit will comply with any applicable effluent limitations and
other limitations, under section 1311 or 1312 of this title, standard
of performance under section 1316 of this title, or prohibition,
effluent standard, or pretreatment standard under section 1317 of
this title, and with any other appropriate requirement of State law
set forth in such certification.’’ 33 U.S.C. § 1341(d).
2 If a state lacks the authority to grant such a certification, the
Administrator of the Environmental Protection Agency determines
whether an activity or project may be certified. Id. § 1341(a)(1).
In Alabama, an application for water quality certification is made to
the Alabama Department of Environmental Management (ADEM).
ALA. CODE § 22–22A–5. After a prescribed notice and comment
period, ADEM issues a final decision on the license application. Id.
An applicant denied certification may appeal the decision to the
Alabama Environmental Management Commission and, thereafter,
to the state circuit court. Id. § 22–22A–7.
5
Alabama Power added a fourth, 55.2 MW generator in 1952.
Although FERC originally licensed the Martin Dam Project
in 1923, it issued a new 40–year license to Alabama Power in
1978.
On December 22, 2000, Alabama Power filed an application
with the Commission to amend its license to authorize the
replacement of the three 33–MW turbine generators. These
units had exhibited serious leakage problems and efforts to
repair them had been largely unsuccessful. According to
Alabama Power’s estimates, the replacement turbines would
increase the flow of water into the river below the dam
project by approximately 900 cubic feet per second (cfs), an
increase of 8.6%, and would increase each generator’s capaci-
ty by 7 to 10 MW, an increase of roughly 20–30%.
Shortly after the Commission provided public notice of
Alabama Power’s license amendment application, the petition-
ers moved to intervene, arguing that section 401(a)(1) of the
CWA required Alabama Power to obtain state water quality
certification before the Commission could amend its existing
license. On May 23, 2001, the Commission issued an order
approving Alabama Power’s proposed license amendment.
Ala. Power Co., Project No. 349–070, Order Amending Li-
cense, 95 F.E.R.C. ¶ 62,156 (May 23, 2001) (Order Amending
License). In doing so, the Commission rejected the petition-
ers’ argument that the license amendment required state
water quality certification under section 401(a)(1), concluding
that ‘‘[r]eplacing and upgrading the existing turbine-
generator units is not an ‘activity which may result in a
discharge’ within the meaning of [s]ection 401(a)(1).’’ Id. at
64,220.
While the Commission recognized that ‘‘replacement of the
turbine generators would increase the [dam] project’s hydrau-
lic capacity, with the result that water would be discharged
more quickly [into the river],’’ it found that ‘‘the nature of the
discharge would not change,’’ i.e., that ‘‘water from the reser-
voir would continue to be released through the new turbine
generators in essentially the same manner as it is now
released through the existing turbine generators.’’ Id. Rea-
6
soning that section 401(a)(1) requires certification only for
‘‘ ‘activities which may result in a discharge,’ not activities
which may alter an already existing discharge,’’ the Commis-
sion held that section 401(a)(1) did not apply to Alabama
Power’s amended license. Id. (citing North Carolina v.
FERC, 112 F.3d 1175, 1188 (D.C. Cir. 1997), cert. denied, 522
U.S. 1108 (1998)) (emphasis in original).3
The Commission’s Order Amending License likewise re-
jected the petitioners’ argument that 18 C.F.R. § 4.38(f)(7)(iii)
required Alabama Power to obtain state water quality certifi-
cation for its proposed license amendment. Id. Section
4.38(f)(7)(iii) provides that ‘‘any application to amend an exist-
ing license TTT requires a new request for water quality
certification TTT if the amendment would have a material
adverse impact on the water quality in the discharge from the
project.’’ 18 C.F.R. § 4.38(f)(7)(iii). Citing its environmental
assessment of the proposed license amendment, the Commis-
sion concluded that the proposed modifications to the three
33–MW turbine generators would not have a ‘‘material ad-
verse effect’’ on the water quality of the dam project’s
discharge. Order Amending License, 95 F.E.R.C. at 64,220.
Accordingly, the Commission held that section 4.38(f)(7)(iii)
did not require Alabama Power to obtain state water quality
3 The Martin Dam Project’s turbine generators draw water from
the hypoxic—i.e., oxygen poor—layer of the reservoir. Although
the replacement turbines will release low dissolved oxygen (DO)
water into the river at an increased rate of 900 cfs, the Commission
did not consider this increase to be a ‘‘discharge’’ under section
401(a)(1). See Order Amending License, 95 F.E.R.C. at 64,220.
Relying on its environmental assessment of the proposed license
amendment, the Commission concluded that the Martin Dam Pro-
ject’s existing draft tube aeration system—a system which typically
raises DO levels in the project’s discharges by about 2 milligrams
per liter (mg/l)—would ensure that the project continued to provide
DO levels of 4 mg/l or greater, i.e., the DO level required by
Alabama’s water quality standards. Id. Nevertheless, ‘‘to ensure
that the aeration system operates correctly,’’ the Commission or-
dered Alabama Power to ‘‘develop and file, for Commission approv-
al, a plan to monitor the DO content of project releases.’’ Id.
7
certification in applying to amend its existing hydroelectric
license. Id.
The petitioners moved for rehearing. On July 23, 2001, the
Commission denied the motion, again rejecting the argument
that section 401(a)(1) required Alabama Power to obtain state
water quality certification for its proposed license amend-
ment. Ala. Power Co., Project No. 349–078, Order Denying
Rehearing, 96 F.E.R.C. ¶ 61,096 (July 23, 2001) (Order Deny-
ing Rehearing). Relying on North Carolina v. FERC, 112
F.3d 1175 (D.C. Cir. 1997), the Commission explained that
section 401(a)(1) applies only to activities that may ‘‘ ‘result in
a discharge,’ ’’ not to those activities that simply alter an
existing discharge, Order Denying Rehearing, 96 F.E.R.C. at
61,386. Alabama Power’s license amendment did not trigger
the certification requirements of section 401(a)(1), the Com-
mission reasoned, because replacement of the existing turbine
generators ‘‘will at most alter an existing discharge by in-
creasing the amount of water flowing through the units at any
given time and, concurrently, reducing the amount of time
that the units will operate each day.’’4 Id.
Noting that all construction would be completed within the
existing structures of the dam project as well as ‘‘in the dry,’’
the Commission dismissed the petitioners’ argument that
replacement of the turbine generators would result in a
4 The Commission found that the total volume of water released
from the dam project would not change as a result of the installa-
tion of the new turbine generators. Order Denying Rehearing, 96
F.E.R.C. at 61,387 n.10. Specifically, the Commission found that
although the new turbine generators would increase the rate of
discharge by 8.6%, the generators would release water ‘‘over a 7.5–
hour period instead of an 8–hour period during weekday times of
peak generation.’’ Id. at 61,387 & n.10.
With respect to the increase in low DO water associated with the
increased flow volume, the Commission iterated its conclusion that
Alabama Power’s draft tube aeration system would continue to
operate as it had in the past, thereby ensuring that DO concentra-
tions in the Tallapoosa River would remain above 4 mg/l. Id. at
61,387.
8
discharge of dust, grease and oil.5 Id. at 61,386–87. The
Commission rejected the notion that removal of the old
turbine generators could result in any such discharge and, in
addition, concluded that the possible release of ‘‘trace
amounts of dust or grease’’ during the initial installation of
the new turbine generators was an insufficient basis to con-
clude that the replacement would result in a discharge requir-
ing certification under section 401(a)(1).6 Id. at 61,387. We
now review the Commission’s orders.
II. Analysis
On review, the petitioners maintain that the Commission
erred in issuing Alabama Power’s proposed license amend-
ment without first requiring Alabama Power to obtain a water
quality certification from the state of Alabama.7 Specifically,
5 Because operation of the turbine generators would cease during
construction, ‘‘[w]ater would not come in contact with the construc-
tion area nor the replacement turbines until the construction is
completed.’’ Order Amending License, 95 F.E.R.C. at 64,225.
Thus, the term ‘‘in the dry.’’
6 Citing Alabama Power’s failure to raise the issue in its request
for rehearing, the Commission declined to address the applicability
of 18 C.F.R. § 4.38(f)(7)(iii)—its material adverse impact regula-
tion—to Alabama Power’s license amendment application. See
Order Denying Rehearing, 96 F.E.R.C. at 61,386 n.3.
7 Alabama Power argues that the petitioners are collaterally
estopped from asserting that section 401(a)(1) certification is re-
quired before the Commission can amend a license authorizing a
licensee to replace existing turbine generators at a licensed hydro-
electric project. Collateral estoppel applies, Alabama Power main-
tains, because the petitioners failed to seek judicial review of a
previous FERC order authorizing Alabama Power to replace a
single turbine generator at its Holt Dam Project. See Ala. Power
Co., Project No. 2203–008, Order Denying Rehearing, 94 F.E.R.C.
¶ 61,150 (February 21, 2001) (Holt). This argument is without
merit.
While courts have not hesitated to apply collateral estoppel ‘‘ ‘to
those determinations of administrative bodies that have attained
finality,’ ’’ Morrison v. Int’l Programs Consortium, Inc., 253 F.3d 5,
9
the petitioners challenge the Commission’s conclusion that the
installation and operation of the three new turbine generators
at the Martin Dam Project is not an ‘‘activity TTT which may
result in any discharge’’ for purposes of section 401(a)(1). 33
U.S.C. § 1341(a)(1). They insist that the installation and
operation of the new turbine generators ‘‘may result’’ in at
least two discharges into the Tallapoosa River: (1) an in-
creased flow of water, and particularly of low dissolved oxy-
gen (DO) water, see supra note 3, passing through the dam’s
replacement turbines and (2) the release of dust, grease and
oil during the installation of the replacement turbines. We
agree with the petitioners as to the first of the claimed
discharges and, on that basis, grant the petition and vacate
the Commission’s orders.8
9 (D.C. Cir. 2001) (quoting Astoria Fed. Sav. & Loan Ass’n v.
Solimino, 501 U.S. 104, 107 (1991)), the doctrine ‘‘only applies to
issues ‘in substance the same as those resolved’ in an earlier
proceeding,’’ Kidwell v. Dep’t of Army, 56 F.3d 279, 287 (D.C. Cir.
1995) (quoting Montana v. United States, 440 U.S. 147, 155 (1979)),
and bars relitigation only by those parties who actually litigated the
issue in the prior proceeding, Baker v. Gen. Motors Corp., 522 U.S.
222, 237 n.11 (1998) (‘‘In no event TTT can issue preclusion be
invoked against one who did not participate in the prior adjudica-
tion.’’). As the petitioners correctly observe, Alabama Power’s
collateral estoppel argument fails on both counts. First, the Com-
mission’s previous order did not consider whether an increased
water flow ‘‘may result in any discharge’’ under the plain language
of section 401(a)(1), but rather whether 18 C.F.R. § 4.38(f)(7)(iii)
applied to the particular facts of that case. See Holt, 94 F.E.R.C.
at 61,569–70. Second, one of the three petitioners here—Lake
Watch of Lake Martin—did not participate in the Holt litigation.
Id. at 61,567.
8 Because we conclude that the first of the described discharges
triggers the certification requirements of section 401(a)(1), there is
no cause for us to decide whether the second does so as well. See
Pub. Util. Dist. No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 711
(1994) (PUD No. 1) (quoting 33 U.S.C. § 1341(d)) (holding CWA’s
certification provision ‘‘refers to the compliance of the applicant, not
the discharge,’’ and ‘‘thus allows the State to impose ‘other limita-
tions’ on the project in general to assure compliance with various
10
A. Standard of Review
We review a Commission licensing decision under the FPA
to determine whether it was ‘‘arbitrary and capricious.’’
North Carolina, 112 F.3d at 1189; Bangor Hydro–Elec. Co. v.
FERC, 78 F.3d 659, 663 & n.3 (D.C. Cir. 1996). In reviewing
such a decision, we must treat the Commission’s findings of
fact as ‘‘conclusive’’ if they are ‘‘supported by substantial
evidence.’’ 16 U.S.C. § 825l(b). Because the petitioners did
not challenge the Commission’s factual findings in their re-
quest for rehearing, however, they are precluded from doing
so now. See id. We therefore consider the Commission’s
findings of fact to be conclusive.
As a result, we must simply resolve a question of statutory
interpretation—whether the installation and operation of the
replacement turbines is an activity that ‘‘may result in any
discharge’’ within the meaning of section 401(a)(1) of the
CWA. 33 U.S.C. § 1341(a)(1). The Commission’s interpre-
tation of the CWA is not entitled to the usual judicial defer-
ence, however, because the Environmental Protection Agency
(EPA)—and not FERC—is charged with administering the
statute.9 See 33 U.S.C. § 1251(d) (‘‘Except as otherwise
expressly provided in this chapter, the Administrator of the
Environmental Protection Agency TTT shall administer this
chapter.’’); Cal. Trout, Inc. v. FERC, 313 F.3d 1131, 1133–34
provisions of the [CWA] and with ‘any other appropriate require-
ments of State law’ ’’).
9 Although our opinion in North Carolina suggests that Chevron
deference applies to FERC’s construction of the CWA, our state-
ment to that effect was dicta. North Carolina, 112 F.3d at 1183.
Setting out the standard of review, we stated that ‘‘[w]hen review-
ing ‘an agency’s construction of the statute which it administers,’ we
apply the two-part test developed by the Supreme Court in [Chev-
ron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842
(1984)].’’ Id. Yet, as discussed above, it is EPA—and not FERC—
that administers the CWA. See 33 U.S.C. § 1251(d). Further-
more, we did not defer to the Commission’s interpretation of the
CWA in North Carolina, having found the meaning of section
401(a)(1) unambiguous. North Carolina, 112 F.3d at 1183.
11
(9th Cir. 2002) (Commission’s interpretation of CWA not
entitled to deference); Am. Rivers, 129 F.3d at 107 (same);
see also City of Olmsted Falls v. FAA, 292 F.3d 261, 270
(D.C. Cir. 2002) (‘‘[W]hen we are faced with an agency’s
interpretation of a statute not committed to its administra-
tion, we give no deference.’’) (emphasis in original). We
therefore review the Commission’s interpretation of section
401(a)(1)—a purely legal question—de novo. See Cal. Trout,
313 F.3d at 1133–34 (Commission’s interpretation of section
401(a)(1) reviewed de novo); Am. Rivers, 129 F.3d at 107
(same); see also Chevron, 467 U.S. at 843 n.9 (‘‘The judiciary
is the final authority on issues of statutory construction and
must reject administrative constructions which are contrary
to clear congressional intent.’’); Ass’n of Civilian Techni-
cians v. FLRA, 269 F.3d 1112, 1115–16 (D.C. Cir. 2001)
(FLRA’s interpretation of Travel Expenses Act—statute it
does not administer—reviewed de novo).10
B. The Increased Water Flow
The petitioners’ argument is a straightforward one. As
previously discussed, section 401(a)(1) requires state water
quality certification for ‘‘any activity TTT which may result in
any discharge into the navigable waters.’’ 33 U.S.C.
§ 1341(a)(1). Emphasizing that water must flow through the
turbine generators and be discharged in order for the dam
project to produce electricity, the petitioners argue that the
licensed activity—i.e., the installation and operation of the
10 While the petitioners rely primarily on the plain language of
section 401(a)(1) in arguing that Alabama Power’s license amend-
ment requires state water quality certification under the CWA, they
also contend that, if we look beyond the text of the CWA, we should
defer to EPA’s interpretation of section 401(a)(1). EPA’s interpre-
tation of section 401(a)(1) is embodied, the petitioners maintain, in
40 C.F.R. §§ 122.63 and 124.53, and in a March 5, 2001 letter sent
to the Commission. Because we agree with the petitioners’ plain
language argument, however, we need not consider the degree of
deference owed—if any—to the regulations and letter the petition-
ers note. See United States v. Mead Corp., 533 U.S. 218, 227–31
(2001).
12
replacement turbines—will necessarily result in ‘‘any dis-
charge’’ into the Tallapoosa River. Specifically, the petition-
ers maintain that the operation of the new turbine generators
will result in an increased flow of water ‘‘significantly differ-
ent in volume, timing, and intensity,’’ as well as in the amount
of DO, from the flow of water passing through the old
turbines. Br. for Pet’r at 16. The petitioners thus reason
that, under the plain language of section 401(a)(1), Alabama
Power’s license amendment required state water quality cer-
tification.
The Commission contends, however, that the petitioners
misinterpret the plain language of section 401(a)(1) and there-
by misunderstand what must be shown in order to establish
that an activity ‘‘may result in any discharge.’’11 33 U.S.C.
§ 1341(a)(1). More specifically, the Commission asserts that
the petitioners’ argument runs afoul of our reasoning in
North Carolina, a case in which we considered whether
FERC violated section 401(a)(1) by issuing an amended hy-
11 Arguing for the first time on review that the terms ‘‘discharge’’
and ‘‘discharge of a pollutant’’ are one and the same under section
401(a)(1)’s certification requirements, the Commission also defends
its licensing decision on the alternative ground that an increased
flow of water through a hydroelectric project is not a ‘‘discharge of
a pollutant.’’ While we have already expressed ‘‘serious reserva-
tions’’ about the Commission’s attempt to redefine the statutory
term ‘‘any discharge,’’ North Carolina, 112 F.3d at 1186, well-
established principles of administrative law preclude us from consid-
ering on review a theory not relied upon by the agency below, see,
e.g., Mo. Pub. Serv. Comm’n v. FERC, 234 F.3d 36, 41 (D.C. Cir.
2000) (quoting W. Res., Inc. v. FERC, 9 F.3d 1568, 1576 (D.C. Cir.
1993) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)))
(noting ‘‘the ‘time-honored rule that a reviewing court ‘‘must judge
the propriety of [agency] action solely by the grounds invoked by
the agency.’’ ’ ’’). See also PUD No. 1, 511 U.S. at 711 (noting
‘‘[t]here is no dispute that petitioners were required to obtain a
certification from the State pursuant to [section] 401’’ because
petitioners ‘‘concede that, at a minimum, the project will result in
two possible discharges,’’ including ‘‘the discharge of water at the
end of the tailrace after the water has been used to generate
electricity’’).
13
droelectric license authorizing a licensee to decrease the flow
of water passing through a dam’s turbine generators without
first receiving state water quality certification. North Car-
olina, 112 F.3d at 1180–83. Rejecting the argument that
section 401(a)(1) requires state water quality certification
simply because an activity will ‘‘result in an altered dis-
charge,’’ we reasoned as follows:
[T]he existence of certification rights under [s]ection
401(a)(1) does not depend on whether a discharge is
‘‘altered.’’ Section 401(a)(1) certification rights vests
only if an activity ‘‘may result in’’ a discharge. This
distinction is of no small moment. The word ‘‘alter’’
means to change something from its previous state,
WEBSTER’S NEW INT’L DICTIONARY 63 (3rd ed. 1961)
(‘‘to cause to become different’’), implying that the
thing changed was already in existence. By con-
trast, the word ‘‘result’’ implies causation. See id. at
1937 (‘‘arise as a consequence’’). Obviously, a subse-
quent event cannot be the cause of something that is
already in existence. Given the disparity between
petitioners’ proposed test and the words of the
[CWA], we elect to remain faithful to the language
chosen by Congress and require that an activity
‘‘result in’’ a discharge in order to trigger the certifi-
cation requirements of [s]ection 401(a)(1).
Id. at 1188.
Citing ‘‘the lack of equivalence between [an] activity that
may increase [per-second water flows] and [an] activity that
‘may result in’ such flows,’’ Br. for Resp’t at 12 (emphasis in
original), the Commission contends that our reasoning in
North Carolina applies with equal force here. Replacement
of the turbine generators cannot, in the Commission’s view,
possibly ‘‘result in’’ water flows that ‘‘pre-existed and will
continue, in some form, regardless of whether that replace-
ment is approved.’’ Id. at 14–15. At most, the Commission
argues, replacement of the turbine generators will ‘‘ ‘alter an
existing discharge by increasing the amount of water flowing
through the units at any given time and, concurrently, reduc-
14
ing the amount of time that the units will operate each day.’ ’’
Id. at 14 (quoting Order Denying Rehearing, 96 F.E.R.C. at
61,386).
Yet the Commission’s argument ignores the critical feature
of the licensing activity at issue in North Carolina: operation
of the pipeline project—i.e., the ‘‘activity’’ authorized by the
license amendment—resulted in the withdrawal of water
from the Lake Gaston reservoir. North Carolina, 112 F.3d
at 1187. In our view, the distinction between an increased
discharge and a decreased discharge is ‘‘of no small moment.’’
Id. at 1188. But this should hardly come as a surprise, for we
recognized as much in North Carolina itself. Relying on the
definition of ‘‘discharge of a pollutant’’ and ‘‘discharge of
pollutants,’’12 we observed that ‘‘the word ‘discharge’ contem-
plates the addition, not the withdrawal, of a substance or
substances.’’ Id. at 1187 (emphasis added). Because the
operation of the pipeline project would not result in the
‘‘addition’’ of anything to Lake Gaston, we held that ‘‘[a]
decrease in the volume of water passing through the dam
turbines cannot be considered a ‘discharge’ as the term is
defined in the CWA.’’ Id. at 1188 (‘‘Obviously, the withdraw-
al of water from Lake Gaston will add nothing; nor will the
withdrawal of water from Lake Gaston increase the volume of
water flowing through the turbines of the Project dams.’’).
12 As we explained in North Carolina, the CWA does not provide
an express definition of ‘‘discharge’’ but rather a statement of
inclusion: ‘‘The term ‘discharge’ when used without qualification
includes a discharge of a pollutant, and a discharge of pollutants.’’
33 U.S.C. § 1362(16). We therefore found the definition of ‘‘dis-
charge of a pollutant’’ and ‘‘discharge of pollutants’’ instructive as
‘‘the nearest evidence we have of definitional intent by Congress.’’
North Carolina, 112 F.3d at 1187. The CWA defines the terms
‘‘discharge of a pollutant’’ and ‘‘discharge of pollutants’’ as ‘‘(A) any
addition of any pollutant to navigable waters from any point source
[and] (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. § 1362(12) (emphasis
added).
15
The plain language of section 401(a)(1) and our construction
of that language in North Carolina thus compel us to con-
clude that Alabama Power’s installation and operation of the
new turbine generators at its Martin Dam Project is an
‘‘activity TTT which may result in any discharge’’ within the
meaning of section 401(a)(1). 33 U.S.C. § 1341(a)(1). As
discussed above, ‘‘the word ‘discharge’ contemplates the addi-
tion TTT of a substance or substances’’ into the navigable
waters. North Carolina, 112 F.3d at 1187. Here, the Com-
mission concluded that the replacement turbines would in-
crease the flow of water into the river by approximately 900
cfs. Thus, at the very least, the replacement turbines will
release low DO water into the river at an increased rate of
900 cfs. The installation and operation of the replacement
turbines is therefore an activity that ‘‘may result in any
discharge.’’ 33 U.S.C. § 1341(a)(1).
Our rejection in North Carolina of the ‘‘altered discharge’’
argument does not preclude this conclusion. North Carolina,
112 F.3d at 1188 (distinguishing activities that ‘‘alter’’ dis-
charge from those that ‘‘may result in’’ discharge). While a
decreased discharge does not ‘‘cause’’ a discharge under
section 401(a)(1), see id., an increased discharge does in fact
cause or, in the words of the statute, ‘‘result in’’ a discharge
requiring state water quality certification, 33 U.S.C.
§ 1341(a)(1). Unlike an activity that reduces—and thus sim-
ply alters—a discharge with state water quality certification,
an activity that increases a discharge poses a distinct risk—
i.e., that the increased discharge may have negative water
quality effects (such as low DO) that were either minimal or
non-existent at the previous discharge level. Because it is
the increase in the discharge that creates or ‘‘causes’’ this
risk to water quality, cf. North Carolina, 112 F.3d at 1188, an
increased discharge—unlike a decreased discharge—may ‘‘re-
sult in’’ a discharge under section 401(a)(1).13
13Notwithstanding the resulting increase in low DO water indi-
cates a potentially deleterious effect of the increased water flow, the
CWA assigns to the states the responsibility of assessing the water
quality effects of a discharge. See 33 U.S.C. § 1341(a)(1), (d).
16
The Commission’s reliance on the unchanged daily volume
of the discharge is similarly misplaced. See supra note 4.
While perhaps persuasive at first glance, the Commission’s
‘‘total daily volume’’ argument suffers from a fatal flaw: it
lacks any basis in the statutory language of section 401(a)(1).
To wit, the Commission has offered no argument—persuasive
or otherwise—as to why ‘‘any discharge’’ should be measured
on a daily, as opposed to on a weekly or even yearly, basis.
33 U.S.C. § 1341(a)(1) (emphasis added). Given the possibili-
ty that even a temporary increase in a discharge could have a
negative water quality impact, ‘‘we elect to remain faithful to
the language chosen by Congress,’’ North Carolina, 112 F.3d
at 1188, and hold that an activity that ‘‘may result in any
discharge’’ triggers the certification requirements of section
401(a)(1), 33 U.S.C. § 1341(a)(1) (emphasis added).14
III. Conclusion
For the foregoing reasons, we conclude that section
401(a)(1) of the CWA requires Alabama Power to obtain
Accordingly, we decline to consider whether the Martin Dam Pro-
ject’s draft tube aeration system would prevent DO levels from
dropping below Alabama’s water quality standards. See supra
notes 3–4.
14Intervenor Alabama Power suggests that 18 C.F.R.
§ 4.38(f)(7)(iii) provides an independent ground in support of the
Commission’s decision. That regulation states that ‘‘any application
to amend an existing license TTT requires a new request for water
quality certification TTT if the amendment would have a material
adverse impact on the water quality in the discharge from the
project.’’ 18 C.F.R. § 4.38(f)(7)(iii). The Commission’s brief, how-
ever, does not mention this regulation at all. And while the
Commission’s orders do cite the regulation, see Order Denying
Rehearing, 96 F.E.R.C. at 61,386 n.3; Order Amending License, 95
F.E.R.C. at 64,220, they do not cite it as an independent ground in
support of the decision. Rather, they discuss the regulation in the
course of rejecting the petitioners’ argument that the regulation
provides an independent ground for reversing the decision and
requiring certification. See Order Denying Rehearing, 96 F.E.R.C.
at 61,386 n.3; Order Amending License, 95 F.E.R.C. at 64,220.
17
water quality certification from the state of Alabama before
the Commission can issue a license amendment authorizing
Alabama Power to replace the three 33–MW turbine genera-
tors at its Martin Dam Project. Because the Commission
issued the license amendment to Alabama Power without
having such certification, we grant the petition for review and
vacate the Commission’s orders.
So ordered.