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High Court Affirms State Authority Over Hydro Projects
By Richard M. Glick
[May 2006]
On May 15, 2005, a unanimous U. S. Supreme Court held in S. D. Warren v. Maine that hydroelectric projects are subject to Clean Water Act (CWA) § 401, even if they do not add pollutants as water passes through the turbines. Section 401 provides that before federal approval can be given for any activity that may result in a “discharge” to navigable waters, the state must first certify that water quality standards would not be violated.
S. D. Warren Company (Warren) operates five hydropower dams on the Presumpscot River in Maine, licensed by FERC. As part of the relicensing process, Warren applied for § 401 certification with the Maine Department of Environmental Protection (MDEP), while reserving its right to challenge MDEP jurisdiction on the ground that its projects do not result in a “discharge” that triggers § 401. The MDEP issued a certificate, but imposed a number of expensive restrictions related to flows, fish passage, recreation, and dissolved oxygen. Warren then appealed, resulting in an order by the Maine Supreme Judicial Court affirming the MDEP, which in turn was affirmed by the U. S. Supreme Court.
Warren’s central argument focused on the meaning of “discharge” as used in § 401. The term “discharge” is not defined in the CWA, but the Act provides that when the term is used without qualification, it “includes a discharge of a pollutant, and a discharge of pollutants.” 33 USC § 1362(16). The terms “discharge of a pollutant” and “discharge of pollutants” are defined to mean “any addition of any pollutant to navigable waters from any point source.” 33 USC § 1362(12). Since the Warren projects did not “add” any pollutants, Warren argued that, as a matter of law, there is no discharge to trigger § 401.
The Court rejected this argument, concluding that “‘discharge’ presumably is broader, else superfluous” and turned to a dictionary definition, to the effect of flowing or issuing out. Slip Op. at 4. Water clearly flows out of the Warren dams, and thus constitutes a discharge.
The Court did not consider relevant its recent holding in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 US 95 (2004). That case interpreted CWA § 402, not § 401, and concerned whether transferring polluted water unchanged from one water body to another constituted an “addition” of pollutants. The Court concluded that such a transfer is not an “addition,” and therefore that a National Pollution Discharge Elimination System (NPDES) permit from the state is not required.
The Warren Court distinguished the trigger for § 402 from the trigger for § 401, holding that the latter does not require an addition: “In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.” Slip Opinion at 9. Thus, the Warren case is not likely to have significant implications for the scope of state NPDES permit authority.
Of particular concern for owners of hydropower facilities, the Court gave a ringing endorsement of state § 401 authority. The Court noted that the restorative goals of the CWA go beyond preventing the “addition” of pollutants, and deal more broadly with “pollution,” which the Act defines as “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. 33 USC § 1362(19). The Court then draws from the record as to the changes wrought by the Warren projects, including destruction of aquatic habitat, blockage of migratory fish passage, reduced dissolved oxygen, and reduced recreational opportunities, and concludes: “Changes in the river like these fall within a State’s legitimate legislative business, and the Clean Water Act provides for a system that respects the States’ concerns.” Slip Opinion at 14.
This rather broad dicta may embolden states to attempt to exercise authority beyond what was established by the Supreme Court in PUD No. 1 of Jefferson County v. Washington DOE, 511 US 700 (1994)., in which minimum fish flows were included within the ambit of state § 401 certifications.
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This Advisory is a publication of the Environmental and Energy Groups of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in environmental and energy law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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