Seeking Reversal Of A Holding That The Passage Of River Water Through A Hydroelectric Dam Creates a “Discharge” Triggering The Federal Clean Water Act’s Requirement For State Water Quality Certification
In this case S.D. Warren Company (“Warren”) asked the United States Supreme Court to review the Maine Supreme Judicial Court’s denial of Warren’s appeal from a decision by the Maine Department of Environmental Protection (“DEP”) with respect to five contiguous hydroelectric dam projects in the Presumpscot River in Maine that Warren operates. Warren’s appeal hinged on the meaning of the term “discharge” in § 401(a) of the federal Clean Water Act (“CWA”), 33 U.S.C. § 1341(a). Under § 401(a), if the operation of Warren’s dams “may result in any discharge into the navigable waters,” Warren would be required to obtain a water quality certification from the DEP before it could renew its federal license to operate. Based on numerous federal cases that had held in other contexts that an “addition” to the navigable waters had to occur in order for their to be a “discharge” under the CWA, Warren argued that, because it was undisputed that the operation of its dams neither increased nor decreased the amount of water in the river and added no pollutants, there was no “addition” to the river and, therefore, no “discharge.” Therefore, DEP certification was not required by § 401(a). The Maine SJC agreed with Warren that an “addition” was required in order for there to be a “discharge,” but reasoned that, nevertheless, a “discharge” occurred because during the moments when the waters of the Presumpscot passed through Warren’s hydroelectric dams they were under private control and, therefore, had lost their status as waters of the United States. Accordingly, the SJC held, when those waters “are re-deposited into the natural course of the river it results in an addition to the waters of the United States.”
When Warren petitioned the U.S. Supreme Court for certiorari, NELF filed an amicus brief in support, 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. In addition, 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 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 contradicted 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. After the Supreme Court granted certiorari, NELF filed an amicus merits brief in support of S.D. Warren. In this brief NELF argued that, contrary to the SJC’s finding, river water passing through a hydroelectric dam never loses its status as waters of the United States.
On May 15, 2006, the Supreme Court issued a decision rejecting Warren’s appeal. Although the Court agreed with NELF that the SJC’s reasoning was incorrect and that the exercise of private control does not denationalize national waters, it nonetheless upheld the SJC’s decision on the ground that, under § 401(a), an “addition” is not required for there to be a “discharge.” Rather, the Court construed “discharge” according to its ordinary English usage, which the Court found to be a “flowing or issuing out.” On this basis the Court found that the operation of Warren’s dams (and all other hydroelectric dams) did raise the potential for a discharge, and thus Warren was required to obtain DEP water quality certification before it could renew its federal license.
In this case S.D. Warren Company (“Warren”) asked the United States Supreme Court to review the Maine Supreme Judicial Court’s denial of Warren’s appeal from a decision by the Maine Department of Environmental Protection (“DEP”) with respect to five contiguous hydroelectric dam projects in the Presumpscot River in Maine that Warren operates. Warren’s appeal hinged on the meaning of the term “discharge” in § 401(a) of the federal Clean Water Act (“CWA”), 33 U.S.C. § 1341(a). Under § 401(a), if the operation of Warren’s dams “may result in any discharge into the navigable waters,” Warren would be required to obtain a water quality certification from the DEP before it could renew its federal license to operate. Based on numerous federal cases that had held in other contexts that an “addition” to the navigable waters had to occur in order for their to be a “discharge” under the CWA, Warren argued that, because it was undisputed that the operation of its dams neither increased nor decreased the amount of water in the river and added no pollutants, there was no “addition” to the river and, therefore, no “discharge.” Therefore, DEP certification was not required by § 401(a). The Maine SJC agreed with Warren that an “addition” was required in order for there to be a “discharge,” but reasoned that, nevertheless, a “discharge” occurred because during the moments when the waters of the Presumpscot passed through Warren’s hydroelectric dams they were under private control and, therefore, had lost their status as waters of the United States. Accordingly, the SJC held, when those waters “are re-deposited into the natural course of the river it results in an addition to the waters of the United States.”
When Warren petitioned the U.S. Supreme Court for certiorari, NELF filed an amicus brief in support, 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. In addition, 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 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 contradicted 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. After the Supreme Court granted certiorari, NELF filed an amicus merits brief in support of S.D. Warren. In this brief NELF argued that, contrary to the SJC’s finding, river water passing through a hydroelectric dam never loses its status as waters of the United States.
On May 15, 2006, the Supreme Court issued a decision rejecting Warren’s appeal. Although the Court agreed with NELF that the SJC’s reasoning was incorrect and that the exercise of private control does not denationalize national waters, it nonetheless upheld the SJC’s decision on the ground that, under § 401(a), an “addition” is not required for there to be a “discharge.” Rather, the Court construed “discharge” according to its ordinary English usage, which the Court found to be a “flowing or issuing out.” On this basis the Court found that the operation of Warren’s dams (and all other hydroelectric dams) did raise the potential for a discharge, and thus Warren was required to obtain DEP water quality certification before it could renew its federal license.
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