S.D. Warren Co. v. Maine Board of Environmental Protection

May 15, 2006, the U.S. Supreme Court decided that water passing through a hydroelectric dam and returning to its original waterway is a “discharge” requiring State approval under § 401 of the federal Clean Water Act (“CWA”). Because the CWA does not define “discharge” the High Court refused to narrow the term by requiring the addition of a pollutant, but instead called on Webster’s New International Dictionary to define discharge broadly as “flowing or issuing out.” The Court affirmed the lower court’s holding that state approval is required but on different grounds. The lower court viewed the temporary exercise of private control over U.S. waters (diversion through the dam) as a means of privatizing water so that when it is reintroduced into the natural watercourse it is an “addition” comprising a discharge for purposes of § 401. Not so, said the High Court. The waters are not a discharge because they are denationalized by private control and added to waters of the U.S., they are a discharge simply because the water is “flowing or issuing out.” Despite the Court’s insistence that a § 401 discharge does not require addition of a pollutant, the Court noted that the downstream aquatic habitat is changed by the presence of the dam and the chemical structure of water that passes through dam turbines is modified. Specifically, river levels may drop, reducing habitat and passage for fish and eels and nitrogen dissolves in the water and can be lethal to fish. The Court concluded “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.”

The State of California currently regulates water quality by requiring approval for discharges of waste through the Porter Cologne Water Quality Control Act. The S.D. Warren decision gives states broader authority to regulate existing and new discharges that have no associated polluting effect. For instance, an existing in-stream structure (e.g., culvert or lined channel) may be characterized as something from which water flows and is thus now a discharge. Similarly, a passive impoundment structure that does not intrude into the normal flow of a creek may still result in a “discharge” characterization.

If you are contemplating a land development project that requires hydrologic features and have questions about how this decision may affect your project, call B. Demar Hooper, a Professional Corporation for answers.