May 15, 2006
FOR IMMEDIATE RELEASE
Contact: Leon Szeptycki, 609-924-5155
Supreme Court Sides with States, Conservation Groups
States May Regulate Dam “Discharge” Under Clean Water Act
Arlington, Va. - Today the U.S. Supreme Court resoundingly held that states have broad authority to protect their streams under the Clean Water Act when the Federal Energy Regulatory Commission licenses hydropower dams. In a unanimous decision in the case S.D. Warren v. Maine Board of Environmental Protection, the Court held that water flowing out of a hydroelectric dam constitutes a “discharge” and therefore is subject to state water quality standards and related state laws.
“Today’s decision is a victory for water quality and fisheries protection,” said Leon Szeptycki, General Counsel for Trout Unlimited, which filed an amicus brief in the case. “The Court recognized the critical role of states in determining the impact of dams on water flows and habitat.”
Section 401 of the Clean Water Act gives states the authority to ensure that a federally permitted activity that causes a discharge into a stream complies with state water quality standards.
“In the thirty-plus years since the Clean Water Act was passed, states consistently have used their authority to impose conditions on licenses for hydroelectric dams,” explained Szeptycki. “Many states require fish passage, minimum flows below dams, and other practices to protect river health and water quality. In fact, many of Trout Unlimited’s most significant victories in protecting fisheries below hydroelectric dams are a direct result of the application of these state regulations.”
In the S.D. Warren case, the owner of several dams on the Presumpscot River in Maine argued that Section 401 did not apply to several of its dam licenses. Warren contended that no “discharge” occurred at those dams and therefore no state certification was required. The Supreme Court rejected all of S.D. Warren’s claims and held that water passing through a hydropower dam constitutes a discharge.
Quoting directly from the amicus brief filed by TU on behalf of a number of fisheries conservation groups, the Court also noted that dams can change and impair water quality.
The decision will maintain the current, important role that states currently play in the federal licensing of hydropower dams and ensure that states can require project owners to implement important streamflow, water quality and fish passage measures when dams come up for relicensing.