[env-trinity] Supreme Court ruling on FERC licensing

[Jay_Glase at nps.gov]

The New York Times

May 16, 2006
Justices Uphold State Rules in Decision on Dam Licenses
By LINDA GREENHOUSE


WASHINGTON, May 15 — The Supreme Court ruled Monday that operators of
hydroelectric dams must meet a state's water quality requirements in order
to qualify for a federal license. The unanimous decision was the court's
first ruling in an environmental case under Chief Justice John G. Roberts
Jr., and it came as a relief to environmental advocates.


Justice David H. Souter's opinion for the court upheld a ruling by the
Supreme Judicial Court of Maine. The justices rejected the argument of a
company that owns five dams on the Presumpscot River, which runs through
Portland, that it did not need state approval because its operations did
not add pollutants to the water that passed over its dams and through its
turbines.


The company, S. D. Warren Company, a subsidiary of South African Pulp and
Paper Industries Ltd., uses the power it generates to run a paper mill in
Westbrook, Me. The dispute arose when the company prepared to renew its
federal licenses.


A federal law, the Clean Water Act, requires an applicant for a federal
license or license renewal to first obtain state certification if its
activities "may result in any discharge into the navigable waters."
Congress did not define the word "discharge," and the company argued that
the word should be understood to refer to the addition of pollutants. Since
it was not adding anything to the water, the company argued, Section 401 of
the Clean Water Act, requiring state certification, did not apply to its
activities.


To the contrary, Justice Souter said, there was no reason not to give the
word "discharge" its plain, everyday meaning: "flowing or issuing out." The
flow of water over a dam was therefore a "discharge," he said.


The decision applies to about 2,500 hydroelectric dams on 500 rivers in 45
states.


Justice Souter said that the Clean Water Act was concerned with water
quality and that alteration in water quality "is a risk inherent in
limiting river flow and releasing water through turbines." He noted that
Maine's environmental agency had concluded that S. D. Warren's dams had
caused "long stretches" of the riverbed to become "essentially dry" and had
blocked the passage of eels and spawning fish.


The state agency made its approval contingent on S. D. Warren's maintaining
a minimum water flow over its dams, a conclusion that the company
challenged unsuccessfully in state court.


In his opinion on Monday, S. D. Warren Company v. Maine Board of
Environmental Protection, No. 04-1527, Justice Souter said that "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."


Environmental groups had been alarmed by the court's decision last fall to
hear the company's appeal in the absence of the usual reasons for a grant
of Supreme Court review, such as a conflict among the lower courts on the
interpretation of a federal law. Every court to consider the meaning of
"discharge" had reached the same conclusion. The Bush administration had
argued in the case in support of Maine.