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U.S. Supreme Court Upholds States' Right to Regulate Dams

Published by MAC on 2006-05-15

U.S. Supreme Court Upholds States' Right to Regulate Dams


15ht May 2006

In the first of three closely watched Clean Water Act cases, the U.S. Supreme Court ruled today that states have the right to to establish requirements for dams on their rivers.

In a unanimous decision in the case of S.D. Warren v. Maine Board of Environmental Protection, the nine justices rejected a South African company's bid to exempt five hydroelectric dams it owns in Maine from the Clean Water Act.

Delivering the opinion of the court, Justice David Souter wrote, "The issue in this case is whether operating a dam to produce hydroelectricity 'may result in any discharge into the navigable waters' of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed."

The decision was immediately hailed by the 33 states that filed briefs in support of Maine's position. New York Attorney General Eliot Spitzer said today, "The brief urged the court to respect the states' independent legal authority to regulate projects affecting the quality of rivers and streams. I am pleased the Court has agreed with our position and upheld these important powers."

"Many of the more than 1,500 hydroelectric dams throughout the country affect entire river systems," said Spitzer. "While hydroelectric dams generate electricity without air pollution or global warming emissions, they can also alter the natural ecology of rivers and wetlands. Since the 1970s, states have used their regulatory authority to help minimize adverse impacts from such projects. In today's decision, the Supreme Court ruled that such actions are not pre-empted by the federal government."

Environmental groups were pleased with the ruling. American Rivers called it "a common sense decision that recognized well established science that dams can have a huge impact on water quality."

As formal parties to the case, American Rivers and Friends of the Presumpscot River filed briefs in support of Maine's right to establish requirements for dams on its rivers. They were joined by more than four dozen conservation and fishing groups, American Indian tribes, river scientists and engineers.

"It was beyond ludicrous for S.D. Warren to argue that its dam didn't have to comply with the Clean Water Act," said Rebecca Wodder, president of American Rivers. "This is a victory for rivers, for the clean water, and most of all for good old common sense."

The Presumpscot River, a navigable water of the United States, runs for 25 miles through southern Maine from Sebago Lake to Casco Bay. Along that stretch of river, the petitioner, S.D. Warren Company, operates five hydropower dams to generate electricity for its paper mill.

The dams are licensed every 50 years by the Federal Energy Regulatory Commission (FERC) after a review that looks at environmental issues and the demand for power.

Over 30 years ago, Souter wrote, "Congress enacted a specific provision for licensing an activity that could cause a "discharge" into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws."

In 1999, S.D. Warren applied for renewal of its licenses for the five dams in Maine.

The company applied for water quality certifications from the Maine Department of Environmental Protection under protest, claiming that its dams do not result in any "discharge into" the river.

The case turns, wrote Souter, on the definition of the word "discharge."

The Supreme Court chose to define it in the ordinary way as found in Webster's New International Dictionary as a "flowing or issuing out," whether or not the flow contains a pollutant.

"In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as having its plain meaning and thus covering releases from hydroelectric dams," Souter wrote.

"The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines," wrote Souter. "Warren itself admits that its dams 'can cause changes in the movement, flow, and circulation of a river . . . caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish.'"

In findings that led to this appeal to the Supreme Court, the Maine Department of Environmental Protection wrote, "The record in this case demonstrates that Warren's dams have caused long stretches of the natural riverbed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river."

Souter wrote, "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."

"State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution," Souter wrote. "Reading §401 to give 'discharge' its common and ordinary meaning preserves the state authority apparently intended."

"The Presumpscot was once one of the most prolific salmon rivers in Maine and home to several migratory species, including Atlantic salmon, American shad, rainbow smelt, blueback herring and alewife," wrote Dusti Faucher, president of Friends of the Presumpscot River, and board member of the environmental group Maine Rivers, in the Winter 2006 issue of "Maine River News."

"As is the history of most industrial rivers in the northeast, these runs were extirpated by uncontrolled pollution and the building of dams that lacked fish passage," Faucher wrote.
"S.D. Warren Co., now owned by South African Pulp and Paper, Inc. (or SAPPI), located in Westbrook, Maine, began the relicensing procedure for five consecutive hydropower dams on the Presumpscot River in 1996."

"Through the intervention of Friends of the Presumpscot River and our national partner, American Rivers," wrote Faucher, "we succeeded in convincing the Federal Energy Regulatory Commission (FERC) that these dams should not be allowed to operate in the environmentally destructive way that they had previously, and warranted water quality improvements and the installation of fish passages."

FERC granted new federal licenses to S.D. Warren in 2003 requiring the installation of fish passage on all five dams. The licenses include a State of Maine section 401 Clean Water Act Certification, which requires minimum flows for several stretches of the river to rectify dissolved oxygen violations below the dams.

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