[env-trinity] Supreme Court ruling on FERC licensing

[Sari Sommarstrom]

Congress did define "discharge" in the Clean Water Act under Sec. 502(16): 
" The term 'discharge' when used without qualification includes a discharge 
of a pollutant, and a discharge of pollutants."
Odd that the judges apparently went to the dictionary to define it instead.

~Sari

At 10:32 AM 5/18/2006 -0400, Jay_Glase at nps.gov wrote:

>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 Mondday 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. 
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