Friday, June 2, 2006

ABA SEER Teleconference on S.D. Warren and The Scope of CWA § 401

Link:ABA SEER site

On Wednesday, June 7, 2006, the American Bar
Association Section of Environment, Energy, and
Resources, Constitutional Law Task Force and
the HydroPower, Water Resources, and Water Quality
and Wetlands Committees are sponsoring
a teleconference on Understanding the Scope
of § 4
01 of the Clean Water Act After
the Supreme Court's Decision inS.D. Warren v.
Maine Department of Environmental Protection

(opinion- Cornell LII link)

  12:30 p.m. – 1:30 p.m. Eastern Time / 11:30 a.m. – 12:30 p.m. Central Time
  10:30 a.m. – 11:30 a.m. Mountain Time / 9:30 a.m. – 10:30 a.m. Pacific Time

Program Overview:
  In S.D. Warren Co. v. Maine Department of Environmental Protection, the
Supreme Court upheld the application of Maine's § 401 water quality standards
to five Warren  dams undergoing FERC relicensing. Through the relicensing
process, the Maine  Board of Environmental Protection required Warren to
maintain minimum stream flows and to allow passage for certain fish and eels
as part of its 401 water quality certification. Warren challenged these
requirements through state appeals and asserted that its dams do not result
in a "discharge" to a navigable water since it was simply moving water from
one side of a dam to another. Warren relied upon the Supreme Court's decision
in South Florida Water Management District v Miccosukee Tribe of Indians;
in Miccosukee the Supreme Court held that polluted waters running from one
waterbody to another are not subject to the CWA's  section 402 permitting program
if neither pollutants are being added nor the waterbodies are meaningfully distinct.
In this case, however, the Supreme Court found that sections 402 and 401
are not interchangeable, and the term "discharge" should be construed with its
common and ordinary meaning to cover releases from a hydroelectric dam.
The Supreme Court, therefore, upheld the decision by the Maine Supreme Judicial
Court that found state water quality conditions under section 401 permissible
to impose upon a FERC licensee.

Cases, US, Water Quality, Water Resources | Permalink

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