United States DC Circuit

An increase in the volume of water passing through a dam's replacement turbines "may result in any discharge into the navigable waters" under section 401(a)(1) of the Clean Water Act.

Appellate Information

• Argued 11/21/2002
• Decided 04/11/2003
• Published 04/11/2003

Judges

• Before:  HENDERSON, TATEL and GARLAND, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• Ronald A. Shems argued the cause for the petitioners., David K. Mears, Senior Counsel, Attorney General's Office of the State of Washington, argued the cause for amici curiae States of Washington et al. in support of petitioners. With him on the briefs were Christine O. Gregoire, Attorney General, Bill Pryor, Attorney General for the State of Alabama, Bruce M. Botelho, Attorney General for the State of Alaska, Bill Lockyer, Attorney General for the state of California, Ken Salazar, Attorney General for the State of Colorado, Richard Blumenthal, Attorney General for the State of Connecticut, M. Jane Brady, Attorney General for the State of Delaware, G. Steven Rowe, Attorney General for the State of Maine, Tom Reilly, Attorney General for the State of Massachusetts, Jeremiah W. (Jay) Nixon, Attorney General for the State of Missouri, Mike McGrath, Attorney General for the State of Montana, Franki Sue Del Papa, Attorney General for the State of Nevada, Philip T. McLaughlin, Attorney General for the State of New Hampshire, Eliot Spitzer, Attorney General for the State of New York, Roy Cooper, Attorney General for the State of North Carolina, W.A. Drew Edmondson, Attorney General for the State of Oklahoma, Hardy Myers, Attorney General for the State of Oregon, William H. Sorrell, Attorney General for the State of Vermont, Hoke MacMillan, Attorney General for the State of Wyoming, and Robert Tenorio Torres, Attorney General for the N. mariana Islands., 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 Edison Electric Institute.


• For Appellees:
  
• 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.