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 § 401 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.