Supreme Court Affirms States’ Role in Dam Licensing

S.D. Warren Co. v. Maine Board of Environmental Protection, 126 S. Ct. 1843 (2006).

Stephanie Showalter

On May 15, 2006, the U.S. Supreme Court ruled that hydroelectric dam operators must obtain state water quality certification when seeking federal licenses from the Federal Energy Regulatory Commission (FERC).

Background
S.D. Warren Company (Warren) owns five hydropower dams on the Presumpscot River in Maine. Each dam operates by impounding water, passing it through turbines, and reintroducing it to the same waterway downstream.1 In 1999, Warren sought to renew its federal licenses from FERC. Section 401 of the Clean Water Act (CWA) requires applicants “for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters, to provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with applicable” state water quality standards.2

Although Warren was of the opinion that its dams do not result in discharges, it applied for water quality certifications from the Maine Department of Environmental Protection (DEP) under protest. The DEP issued Warren a certification, but imposed several conditions, including requirements to maintain minimum stream flows in the bypassed portions of the river and to allow passage of migratory fish and eels. FERC renewed Warren’s licenses subject to the DEP’s conditions. Warren appealed.

Maine Supreme Court
The Maine Supreme Court found that the reintroduction of the water downstream of the dams is a “discharge” subject to § 401. The court’s reasoning was as follows. The CWA does not define the term discharge, stating only that “discharge when used without qualification includes a discharge of pollutant, and a discharge of pollutants.”3 The phrase “discharge of pollutants,” however, is defined and means “any addition of any pollutant to navigable waters from any point source.”4 Based on the definition of “discharge of a pollutant,” the Maine Supreme Court found that an “addition” is a key feature of any covered discharge.

The court further found “the operation of Warren’s dams does result in an addition to the waters of the Presumpscot River and therefore a discharge occurs.”5 The Maine Supreme Court stated that when the water is removed from nature to pass through the dams, thereby subjected to private control, it loses its status as a water of the U.S. “Because these waters have lost their status as waters of the United States, when they are redeposited into the natural course of the river it results in an addition to the waters of the United States.”6
Warren appealed the findings of the Maine Supreme Court arguing that defining discharge to include the reintroduction of dam water to the same waterway cannot be reconciled with the U.S. Supreme Court’s recent decision in South Florida Water Management District v. Miccosukee Tribe.7 At issue in Miccosukee was whether a pump between a canal and a water impoundment resulted in a “discharge of a pollutant” under § 402 of the CWA even though the pumping station did not add any pollutant to the transferred water. Section 402 requires a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of a pollutant. The Supreme Court held that a permit was required, because there was an “addition” of a pollutant to the receiving water. The court indicated, however, that there can be no addition unless the two bodies of water are “meaningfully distinct.” Warren latched onto this “meaningfully distinct” phrase and argued that its dams could not result in discharges because the waters above the dams are not meaningfully distinct from the waters below.

U.S. Supreme Court
The U.S. Supreme Court affirmed the judgment of the Maine Supreme Court, but on different grounds. The court disagreed that an “addition” was a necessary element of the application of § 401. Section 401, unlike § 402, refers only to a “discharge.” Looking to the plain meaning of the term discharge, a “flowing or issuing out,” the Court found that Warren’s operations resulted in discharges because water flowed from its turbines to navigable waters. The Court ruled that Miccosukee is not applicable because that case arose under a different section of the CWA which contains different language, “discharge of a pollutant.”

Conclusion
Dams can cause numerous changes in the physical, biological, and chemical character of rivers, contributing to water pollution as it is broadly defined in the CWA. The court found that the state certifications issued under § 401 are “essential in the scheme to preserve state authority to address the broad range of pollution” and “reading § 401 to give ‘discharge’ its common and ordinary meaning preserves the state authority apparently intended.”8

Endnotes
1. Robert Meltz and Claudia Copeland, Congressional Research Service, The State Role in the Federal Licensing of Hydropower Dams: S.D. Warren Co. v. Maine Board of Environmental Protection, at 2 (April 24, 2006).
2. 33 U.S.C. § 1341(a) (emphasis added).
3. Id. § 1362(16).
4. Id. § 1362(12).
5. S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 868 A.2d 210, 215 (Me. 2005).
6. Id. at 216.
7. 541 U.S. 95 (2004).
8. S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 126 S. Ct. 1843, 1853 (2006).