S.D. Warren v. Maine
The S.D. Warren Company sued the Maine Department of Environmental Protection, challenging the conditions attached to its approval of Warren's application for water quality certification under the Clean Water Act (CWA). Warren owns and operates five hydroelectric dam projects on the Presumpscot River in Maine. The federal agency that licenses these dams required Warren to provide a certificate of water quality pursuant to Section 1341 of the CWA, which requires an applicant for a federal license to conduct any activity that “may result in any discharge into the navigable waters,” to provide the licensing agency with a certificate from the state in which that discharge occurs. The purpose of the certificate is to ensure that the discharge will comply with the water quality standards of the CWA and the effected state.
Warren argued that it was not required to provide CWA certification because the operation of its dams does not result in a "discharge." The Maine Supreme Judicial Court held that the operation of the dams did result in a discharge. Although the term "discharge" is not expressly defined in the CWA, the court interpreted the term broadly to require an "addition" of some sort. The court noted that the operation of Warren's dams did not add more water to the river, but because the dams remove the water of the river from its natural course, exercise private control over the water, and then add the water back into the river, the operation of the dams result in an addition to the waters of the Presumpscot River and therefore a discharge occurs.
Question Presented:
Does the mere flow of water through an existing dam constitute a "discharge" under Section 401, 33 U.S.C. ยง 1341, of the Clean Water Act, despite this
Court's holding last year in Miccosukee that a discharge requires the addition of water from a distinct body of water?
