ELR Citation: ELR 20089
No(s). 04-1527 (U.S. May 15, 2006)

The Court holds that operating a dam to produce hydroelectricity raises a potential for a discharge into the navigable waters of the United States, thereby triggering Clean Water Act (CWA) §401 and state certification requirements. The case arose after a company asked the Federal Energy Regulatory Commission (FERC) to renew its licenses for five hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounds water, which is then run through turbines and returned to the riverbed, passing around a section of the river. Under protest, the company applied for water quality certifications from the state environmental agency pursuant to CWA §401, which requires state approval of "any activity" that "may result in any discharge into the [Nation's] navigable waters." FERC licensed the dams subject to compliance with those certifications. The company filed suit, arguing that its dams do not result in a "discharge" under §401. The Court disagreed, holding that the dams do result in a discharge for purposes of §401. Prior case law supports this view, as does U.S. Environmental Protection Agency's and FERC's reading of the term "discharge" as covering releases from dams. The company relied on South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95, 34 ELR 20021 (2004), concerning the addition of pollutants with respect to national pollutant discharge elimination system permits, but that case is not on point. Miccosukee addressed §402, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Finally, the CWA's legislative history also goes against the company's reading of "discharge." Souter, J., delivered the opinion of the Court, in which Roberts, C.J., and Stevens, Kennedy, Thomas, Ginsburg, Breyer, and Alito, J.J., joined, and in which Scalia, J., joined as to all but Part III-C.

[A prior decision in this litigation is digested at 35 ELR 20259.]