UPDATE – U.S. Supreme Court hears hydro’s Clean Water Act appeal

The U.S. Supreme Court heard an appeal Feb. 21 by a Maine hydro project owner who is challenging a state ruling that it must obtain Clean Water Act water quality certification from the state because hydro plants make “discharges” into U.S. waters.

The case, S.D. Warren Co. v. Maine Board of Environmental Protection, No. 04-1527, was the second of two hearings on Clean Water Act issues that day. The court also considered cases from Michigan involving federal authority to regulate wetlands. Rulings are expected by the end of June.

S.D. Warren Co. operates five hydro projects on Maine’s Presumpscot River totaling 7.45 MW. It appealed a Maine Supreme Judicial Court ruling that any operating hydro project is making a “discharge” into U.S. waters, regardless of whether it adds anything to the water that passes through its turbines.

Justices question lawyers, eye FERC authority

Lawyers argued whether mere flow of water through an existing hydro project constitutes a “discharge” under CWA Section 401. S.D. Warren contended its dams and others like them should not be subject to CWA certification because the dams add nothing to the water. The Maine Board of Environmental Protection defended its authority to require certification and said S.D Warren interprets “discharge” too strictly by saying it must involve addition of a pollutant.

Nearly all the justices asked questions of the lawyers, many dealing with whether “discharge” should have a simple dictionary definition, or whether the word has special meaning in the Clean Water Act. Several hypothetical questions involved whether the presence of a waterwheel, a bridge abutment, or other obstruction might result in a “discharge” in a river.

When agreeing to hear the case, the court declined to consider a question of whether states usurp Federal Energy Regulatory Commission authority by their use of the Clean Water Act to impose conditions on hydropower projects. However, several justices asked questions related to that issue.

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