S. D. Warren Co. v. Maine Board of Environmental Protection
Headline: Hydroelectric dams can trigger state Clean Water Act review; Court affirmed that section 401 requires state water-quality certification, allowing states to impose flow and fish-passage conditions on dam operators.
Holding: The Court held that operating a hydroelectric dam can 'result in a discharge' under the Clean Water Act, so state water-quality certification is required before a federal license is issued.
- Requires dam operators to get state water-quality certification before federal licensing.
- Allows states to impose minimum flows and fish-passage conditions on dams.
- Preserves state authority to address river flow and water-quality impacts.
Summary
Background
A paper company that runs five hydroelectric dams on the Presumpscot River in Maine asked the Federal Energy Regulatory Commission to renew its federal licenses. The company applied under protest for state water-quality certifications under the Clean Water Act’s section 401, arguing that its dams do not cause a “discharge.” The Maine agency required minimum stream flows and fish and eel passage; state courts upheld those conditions and the company appealed to the Supreme Court.
Reasoning
The Court addressed whether operating a dam “may result in any discharge into” navigable waters so as to trigger section 401. It read “discharge” in its ordinary sense—meaning flowing or issuing out—and relied on prior cases and agency practice showing that water released from dams falls within that meaning. The Court rejected arguments that “discharge” must mean an added pollutant or that a different Clean Water Act provision controls. It concluded that changes in flow, oxygen levels, and fish passage caused by dams can affect water quality, so state certification is required.
Real world impact
The ruling means dam operators seeking federal licenses must obtain state section 401 certifications and may face state-imposed conditions like minimum bypass flows and fish-passage requirements. The decision preserves state authority to address chemical, physical, and biological changes to rivers when federal licensing is sought.
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