S. D. WARREN CO. v. MAINE BOARD OF ENVIRONMENTAL PROTECTION ET AL.

No. 04–1527. Argued February 21, 2006—Decided May 15, 2006

The issue in this case was whether operating a dam to produce hydroelectricity “may result in any discharge intothe navigable waters” of the United States. If so, then a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. In this case t needed to obtain a recertification from FERC.

In 1999, he operator of a hydroelectric dam sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for whathave come to be known as “401 state certifications”), but it filed its application under protest, claiming that its dams do not result in any “discharge into” the river triggering application of §401.

The Maine agency issued certifications that required the dam operator, Warren, to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventuallylicensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification.

Warren argued that the definition of “discharge” should be read narrowly and similarly to the definition applied to NPDES cases (§ 402). The Supreme Court disagreed, holding that the triggering statutory term in §402 is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant tothe water. §1362(12).

The Court held that a dam does raise a potential for a discharge, and state approval is needed.