U.S. Supreme Court takes Clean Water Act case on Maine dams

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In an unexpected addendum today, the United States Supreme Court agreed to hear two wetlands cases and one case on the Clean Water Act's application to hydropower dams. These three cases are expected to show the Court's posture on the reach of the Clean Water Act.The hydropower dam case, S.D. Warren v. Maine Department of Environmental Protection, involves a complicated question about the meaning of "discharge" under Section 401 of the Clean Water Act. Yet if the Court takes a certain position, it could affect the ability of states to put any environmental conditions on dams for flow, water quality, or any other river protection. "This is going to be the ball game for all states now," said Dana Murch of the Maine Department of Environmental Protection.Five dams on the Presumpscot River operate in instantaneous run-of-river mode. Dam owner S.D. Warren contends that because the dams do not directly pollute the water as it passes through the dam, the release of water by the dam is not a "discharge." The Supreme Court agreed to hear only one question presented by the case:Does the mere flow of water through an existing dam constitute a "discharge" under Section 401, 33 U.S.C. sec. 1341, of the Clean Water Act, despite this Court's holding last year in Miccosukee that a discharge requires the addition of water from a distinct body of water?The long-held practice is that a dam release constitutes a discharge, triggering Section 401 of the Clean Water Act. Section 401 authorizes states to certify that the federal project (here, a federally-licensed hydropower dam) will meet the state's water quality standards, or withhold the certification and prevent the project. Without Section 401, states will be able to make recommendations to the federal manager (FERC), but not mandate actions to protect water quality standards.Here, the state of Maine certified the dams so long as they met certain conditions, such as constructing a fishway and keeping dissolved oxygen at healthy levels in the water. S.D. Warren challenged the certification to the Board of Environmental Protection and lost. The challenge was appealed to the Maine Superior Court, where it lost again, and then appealed again to the Maine Supreme Court, where it lost a third time. The federal FERC license was also appealed but lost in the federal D.C. Court of Appeals.By picking up the case, the United States Supreme Court may be signaling that it intends to overturn the consistent decision and limit state authorities. The Hydropower Reform Coalition hopes that the Court instead intends to confirm the importance of the state's ability to regulate its own water, especially when the water is rerouted for power and then returned to the natural waterbody often in a poorer state of health. We agree with the simple conclusion from the Maine Supreme Court, which says, "...a discharge results because Warren' s dams remove the water of the river from its natural course, exercise private control over the water and then add the water back into the river. This is a discharge pursuant to section 401(a)(1)."