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 projects on Maine’s Presumpscot River totaling 7.45 MW. The company 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

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 the discharge must involve addition of a pollutant.

The national news media followed every move of new Supreme Court Justice Samuel Alito Jr. during the hearing, held on his first day on the bench. Published reports said Alito seemed skeptical of Maine Attorney General Steven Rowe’s argument that operation of a dam triggers state water quality certification. Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Anthony Kennedy, Antonin Scalia, and David Souter, also asked questions or commented during the hearing.

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