[env-trinity] Los Angeles Times May 16

[Byron]

SUPREME COURT RULING:

Ruling Favors Rivers Over Power Dams; The Supreme Court says states may
protect the waterways by requiring a steady flow at hydroelectric plants,
which tend to harness it

Los Angeles Times - 5/16/06

By David G. Savage, staff writer

 

WASHINGTON - The Supreme Court sided with the environment over electric
power Monday, ruling that state regulators may require a steady flow of
water over power dams to benefit fish and kayakers. 

The unanimous decision holds that states may protect the health of their
rivers, even though hydroelectric dams are regulated exclusively by the
federal government.

 

The dispute arose over five small dams on the Presumpscot River in Maine,
but the court's decision affects an estimated 1,500 power dams in 45 states.
They include scores of dams on the Sacramento, Klamath and San Joaquin
rivers in California.

Separately, the court agreed to take up an appeal from environmentalists who
are seeking to enforce stricter clean-air rules against aging coal power
plants. The justices said they would hear the clean-air case in the fall.

The ruling on rivers and dams resolved a clear conflict in the law. The
Federal Power Act says hydro-power dams are to be regulated by federal
authorities with the aim of producing electricity. But the Clean Water Act
says those who "discharge" anything into a state's navigable waters must
obtain a permit from the state.

Until recently, state officials believed they were entitled to protect their
rivers by regulating the flow of water over and through dams.

But last year, the privately owned SD Warren Co., which produces
hydroelectric power in Maine, won the Supreme Court's review of its argument
that water flowing in and out of a dam is not a discharge. 

Had the company prevailed, states would have lost their legal authority to
protect their rivers and ensure a steady flow of water. Not surprisingly,
officials of the power plants said that during dry seasons, they were more
interested in holding back water so they could be assured of a steady flow
over their generators to maintain power production.

In its opinion, the Supreme Court looked to the dictionary to decide the
meaning of the word "discharge."

"When it applies to water, 'discharge' commonly means a 'flowing or issuing
out,' " said Justice David H. Souter, citing Webster's New International
Dictionary. Other judges and regulators have agreed with "our understanding
of the everyday sense of term," he added. 

Therefore, since water flowing over a dam is discharged back into the river,
a state may regulate the operation of the dam, the court concluded in SD
Warren Co. vs. Maine.

"This is a victory for rivers, for clean water and most of all for good
common sense," said Rebecca Wodder, president of the environmental group
American Rivers. 

But environmentalists are anxiously watching two other Clean Water Act cases
that are pending before the Supreme Court. Both from Michigan, they will
determine whether federal regulators can continue to protect inland wetlands
and small streams from development or pollution. 

Private-property activists say the Clean Water Act protects only rivers and
lakes where boats can float, not wetlands that are far inland. Decisions in
those cases are due by late June.

Bush administration lawyers joined all three Clean Water Act cases on the
side of the environmentalists.

The clean-air case to be heard in the fall, however, concerns a move by the
Bush administration to relax a strict anti-pollution rule set by the Clinton
administration. 

Under that rule, aging power plants that expanded or modified their
facilities were required to adopt modern anti-pollution controls in the
process. This issue has drawn much attention in the states of the Northeast,
including New York, which are downwind of coal-powered plants in Ohio and
West Virginia. 

The Duke Energy Corp. in North Carolina challenged the Clinton-era rules and
won a ruling from the U.S. 4th Circuit Court of Appeals concluding that the
Environmental Protection Agency had exceeded its authority in requiring such
modifications.

In a separate lawsuit, several Northeastern states are challenging the Bush
administration's move to relax the same rules. 

Taking up the cause of clean-air advocates, lawyers for the nonprofit group
Environmental Defense appealed to the high court. They argued it was the 4th
Circuit Court that exceeded its authority. 

The ruling will have a broad impact, environmentalists say. 

"Over 160 million Americans, more than half of the country, live in
communities out of compliance with the nation's health standards, and today
the Supreme Court took a big step toward aiding those communities in their
efforts to restore healthy air," Vickie Patton, an Environmental Defense
lawyer, said on Monday

 

 

Byron Leydecker

Chair, Friends of Trinity River

Advisor, California Trout, Inc

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 ph

415 383 9562 fx

bwl3 at comcast.net

bleydecker at stanfordalumni.org

http://www.fotr.org

http:www.caltrout.org 

 

 

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