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

S. D. Warren Co. v. Maine Board of Environmental Protection
L. Ed. 2d 625; 2006 U.S. LEXIS 3955; 74 U.S.L.W. 4244
Case history
Prior	Board decision affirmed, 2004 Me. Super. LEXIS 115 (Me. Super. Ct. May 4, 2004); affirmed, 868 A.2d 210 (Me. 2005); cert. granted, 126 S. Ct. 415 (2005)
Holding
Because the outflow of water from a hydroelectric dam constitutes a "discharge" into navigable waters, it is subject to the Clean Water Act's requirement of state certification. Maine Supreme Judicial Court affirmed.
Court membership
Chief Justice John Roberts Associate Justices John P. Stevens · Antonin Scalia Anthony Kennedy · David Souter Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito
Case opinion
Majority	Souter, joined by Roberts, Stevens, Kennedy, Thomas, Ginsburg, Breyer, Alito; Scalia (all but Part III–C)
Laws applied
33 U.S.C. § 1341 (Clean Water Act § 401)

S. D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), was a case decided by the

upon the receipt of a state certification that water protection laws would not be violated. The Court believed that since the Act did not define the word "discharge" it should be given its ordinary meaning, such that the simple flowing forth of water from a dam qualified.

Background

The S. D. Warren Company operates several hydroelectric dams along the course of the Presumpscot River in southern Maine, which generate electricity for its paper mill. Each dam operates by creating a pond, from which water bypasses part of the river to funnel through turbines before flowing back into the riverbed. Licenses to operate the dams are granted by the Federal Energy Regulatory Commission (FERC) pursuant to the Federal Power Act.^[1]

In addition to the FERC licenses, the

In 1999, S. D. Warren sought to renew federal licenses for five of its dams. It applied for water quality certifications from the Maine Department of Environmental Protection, but it filed its application under protest, claiming that its dams did not result in any "discharge into" the river that would trigger the application of section 401. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. FERC eventually licensed the five dams subject to the Maine conditions, but the company continued to deny any need for state certification under section 401.

After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed suit in Cumberland County Superior Court. The court rejected Warren's argument that its dams do not result in discharges,^[3] and the Maine Supreme Judicial Court affirmed.^[4]

Opinion of the Court

The Court unanimously affirmed the decision of the Maine Supreme Judicial Court. The Court's opinion was delivered by Justice David Souter, and was joined by the whole Court. However, Justice Antonin Scalia, a noted critic of the use of legislative history in statutory interpretation, did not join in Part III-C of the opinion, which criticized the company's argument based on legislative history.

The Court observed that the

, the Court was left to instead construe it "in accordance with its ordinary or natural meaning."

Citing to

did not apply in this context, the Court nevertheless believed that those usages of "discharge" by those agencies "confirms our understanding of the everyday sense of the term."

Notes

1. Public Utility Act
   of 1935, § 210.
2. ^ Codified at 33 U.S.C. § 1341. The relevant text reads: "Any applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters shall provide the licensing or permitting agency a certification from the State in which the discharge originates . . . ." 33 U.S.C. § 1341(a)(1). "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section." 33 U.S.C. § 1341(d).
3. ^ S.D. Warren Co. v. Maine Dep't of Envtl. Prot., No. AP-03-70, 2004 Me. Super. LEXIS 115 (Me. Super. Ct. May 4, 2004).
4. ^ S. D. Warren Co. v. Board of Environmental Protection, 868 A.2d 210 (Me. 2005).
5. ^ 33 U.S.C. § 1362(16).
6. ^ 33 U.S.C. § 1362(12).
7. ^ PUD No. 1 v. Washington Dep't of Ecology, 511 U.S. 700 (1994) ("Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water...").

References

• Text of S. D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006) is available from: Cornell  CourtListener  Findlaw  Google Scholar  Justia  Oyez (oral argument audio)  Supreme Court (slip opinion) (archived)