Does “Discharge” Imply an Addition?

S. D. Warren Co. v. Maine Bd. of Environmental Protection

If operating a hydro-electric dam “may result in any discharge into the navigable waters” of the United States a license requires a state certification that water protection laws will not be violated. In this case Warren argues that his series of dams do not cause a discharge into the navigable waters of the United States so that he can avoid having to certify compliance with an agency requirement that his dams maintain a minimum waterflow and allow bypass by certain fish and eels. The issue turns on the definition of “discharge” which is left undefined. The act provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants,” making “discharge” either broader or else superfluous (and we all know the law cannot have any superfluous wording), and left to be construed “in accordance with its ordinary or natural meaning.”

In the only other case before the Supreme Court concerning this particular law the Court used the word “discharge” numerous times in describing the process of water passing out of a dam. This reading of the terms is compatible with that of the EPA. Since the EPA never officially settled on a definition its construction is not entitled to deference, however, this does serve as an indication of the term’s natural usage.

Warren, the dam owner, argues first that the cannon of statutory construction noscitur a sociis (“a word is known by the company it keeps”) in conjunction with the definitions of “discharge of pollutant(s)” suggests that the word implies an addition of something foreign to the water. The Court responds that pairing a broad statutory term with a narrow one does not shrink the former and notes that uncritical application of interpretive rules is dangerous. Next, Warren argues that a previous case demands reading “discharge” as an addition, but the case dealt with the “discharge of pollutants” and its presumption that such a discharge would require an addition to the water was specifically directed at the narrowing term “pollutant(s).” Finally, in what the Court refers to as “a lawyer’s argument, Warren argues that the word “includes” was carelessly left in the definition after a failed attempt to specifically address thermal discharges, so as to include them in one section of the law and not another, and that the word should not be read as an indication to extend the definition beyond those specifically listed. If this had been the case there would have been a short list with a common aspect of addition, strengthening the noscitur argument, but as it stands the only thing this indicates is a rejection of that list. The Court also notes that this interpretation fits with the broad aim of the law to prevent pollution and chemical or artificial alteration of natural water sources