S. D. Warren Co. v.

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

Protection

Supreme Court of the United States

Argued February 21, 2006

Decided May 15, 2006

Full case S. D. Warren Co. v. Maine Board of Environmental

name Protection, et al.

Citations 547 U.S. 370 (more)

126 S. Ct. 1843; 164 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 (except 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 Supreme Court of the United States involving licensing
requirements under the Clean Water Act. The Court ruled unanimously
that hydroelectric dams were subject to section 401 of the Act, which conditioned
federal licensing for a licensed activity that could result in "any discharge" into navigable
waters 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.

Contents

 1Background
 2Opinion of the Court
 3Notes
 4References

Background[edit]
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 Water Quality Improvement Act of 1970 introduced
a specific requirement for activities that could cause a "discharge" into navigable
waters. The license for that activity is conditioned on a certification from the State in
which the discharge may originate that it will not violate certain water quality standards,
including those set by the State's own laws. That requirement was subsequently
included in section 401 of the Clean Water Act.[2]
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[edit]

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 Clean Water Act did not define discharge, but stated that
"the term ‘discharge’ when used without qualification includes a discharge of a pollutant,
and a discharge of pollutants."[5] The Act furthermore defined "discharge of a pollutant"
and "discharge of pollutants," as meaning "any addition of any pollutant to navigable
waters from any point source."[6] The Court believed this meant "discharge" was broader
than these definitions, or else the term was superfluous. Because of the lack of a
statutory definition, and because it is not a term of art, the Court was left to instead
construe it "in accordance with its ordinary or natural meaning."
Citing to Webster's New International Dictionary, the Court explained that "discharge"
commonly means a "flowing or issuing out," an ordinary sense of the word that the
Court had used in prior water-related cases. A 1994 decision specifically involving
section 401 had even used this definition.[7] The Environmental Protection
Agency and FERC had also regularly read "discharge" by this plain meaning, so as to
cover releases from hydroelectric dams. Though Chevron deference 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[edit]
1. ^ 16 U.S.C. §§ 817(1), 792; see also 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[edit]
 Text of S. D. Warren Co. v. Maine Board of
Environmental Protection, 547 U.S. 370 (2006) is
available
from: Cornell  CourtListener  Findlaw  Justia  Oyez
(oral argument audio)  Google Scholar  Supreme
Court (slip opinion) 
show

United States environmental law

Categories: 
 2006 in the environment
 2006 in United States case law
 United States Supreme Court cases
 United States environmental case law
 United States Supreme Court cases of the Roberts
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