S.D. Warren Company v. Maine Department of Environmental Protection (United States Supreme Court) 

This petition for certiorari brought by S.D. Warren Company (“Warren”) seeks Supreme Court review of a decision by the Maine Supreme Judicial Court (“SJC”) with respect to five contiguous hydroelectric dam projects in the Presumpscot River in Maine operated by Warren. The SJC’s denial of Warren’s appeal from the Maine Department of Environmental Protection (“DEP”) decision that Warren must obtain State Water Quality Certification turns upon the meaning of the term “discharge” in Section 401(a) of the federal Clean Water Act (“CWA”), 33 U.S.C. §1341(a). The SJC held that, where as here river water is merely passing through dams, a discharge nevertheless occurs, even though it is undisputed that the flow of the river through the dams neither increases nor reduces the amount of water in the river and that no pollutants come into the water as a result. The SJC reasoned that during the moments when the river waters run through Warren’s hydroelectric dams the waters have lost their status as waters of the United States because, for that period, they are under private control. Accordingly, the SJC held, when those waters “are redeposited into the natural course of the river it results in an addition to the waters of the United States.” (Emphasis in the original.) On June 15, 2005, NELF filed an amicus curiae brief in support of Warren’s certiorari petition arguing that the legal test applied by the SJC to determine whether the flow of water through Warren’s dams results in an “addition,” and thereby a “discharge,” was erroneous under Section 401(a) of the CWA. NELF pointed out that by resting its decision on the ownership status of the water as it passed through the dams, the SJC failed to condition a discharge under the CWA on an actual addition to the waters at issue. The SJC’s reasoning would lead to absurd results, e.g., it would mandate a finding that an addition has occurred even where a dam’s operation actually reduces the volume of water in a river, since even a smaller volume of water reentering the river would still be an “addition to the waters of the United States.” Finally, NELF pointed out that the SJC’s test contradicts the Supreme Court’s teaching in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95, 109 (2004) that the simple redeposit of the same water back into the body of water from which it came does not constitute an addition—and therefore cannot be a discharge—under the CWA. The Supreme Court granted cert in this case on October 11, 2005.