Justices Back States in Clean Water Act Ruling

05/15/2006

By DAVID STOUT
NY Times
Published: May 15, 2006

WASHINGTON, May 15 — The Supreme Court ruled unanimously today that states have broad authority to regulate their streams under the federal Clean Water Act, even in situations that do not involve control of “pollution” in the strict sense of the word.

The justices ruled in favor of the Maine Board of Environmental Protection and against the S.D. Warren Company, owner of five hydroelectric dams along the Presumpscot River that provide power for a company paper mill.

Since 1935, Warren has operated the dams under licenses issued by the Federal Energy Regulatory Commission. In 1999, when the company sought to renew the licenses, it argued that it should not have to obtain water-quality certificates from the Maine environmental authorities, as specified in the Clean Water Act.

The company did apply for certification, but only under protest. It reasoned that its dams did not result in any “discharge” into the river, since nothing was added to the stream, so certificates should be unnecessary.

“The dispute turns on the meaning of the word ‘discharge,’ “ Justice David H. Souter wrote for the court. He went on to write that Warren’s attempts to define the word to its own purposes were not persuasive.

Justice Souter wrote that the Clean Water Act, while not strictly defining “discharge,” specifies that the term means a discharge of pollutants, among other things.

And why not just go to Webster’s Dictionary, which defines “discharge,” as applied to water, to commonly mean “flowing or issuing out,” the justice suggested.

Just because the company does not add anything to the water, it cannot be said that the river is unchanged because of the company, Justice Souter found. “Warren itself admits that its dams ‘can cause changes in the movement, flow, and circulation of a river,’ “ he wrote.

The opinion in the case of S.D. Warren v. Maine Board of Environmental Protection quoted from the findings of state environmental officials that the dams had caused long stretches of the natural river bed “to be essentially dry” and thus unavailable as habitat for fish and other organisms, and that some fish and eels had been blocked from reaching their spawning and nursery waters.

“Changes in the river like this fall within a state’s legitimate legislative business, and the Clean Water Act provides for a system that respects the states’ concerns,” Justice Souter wrote. The opinion upheld the Maine Supreme Judicial Court, which concluded that “water that has left its natural state and has been subjected to man-made control” could be considered a discharge.