In late February, the United States Supreme Court
heard oral arguments in what is considered one of the most
important tests ever of a state’s ability to enforce
water quality standards on its rivers and streams. That case,
which originates here in Maine, has attracted the attention
of citizens, river groups as well as state and federal regulators
across the country. Maine Rivers joined dozens of groups in
filing an amicus brief with the court, supporting our colleagues
at Friends of the Presumpscot River and American Rivers in
their fight to keep alive a state’s ability to regulate
the operation of hydropower dams on its waters. We asked our
board member, Dusti Faucher, head of Friends of the Presumpscot,
to explain the issue to you, and this is her letter:
As a long time board member of Maine Rivers and president of Friends
of the Presumpscot River, I wanted to address the pending US Supreme
Court case that involves the Presumpscot River here in Maine.
This case could have an enormous impact on states’ ability
to enforce water quality standards during dam relicensing proceedings
under the Clean Water Act’s section 401. The “401 process” is
the crucial point in the life of a dam’s operation where states
have a say in how a dam operates, and can place environmental conditions
on the operations of those dams. While some of you may be familiar
with this important case, others may have seen references to it in
the press, but did not know the details or implications.
The Presumpscot was once one
of the most prolific salmon rivers in Maine and home to several migratory
species, including Atlantic salmon, American shad, rainbow smelt,
blueback herring and alewife. As is the history of most industrial
rivers in the northeast, these runs were extirpated by uncontrolled
pollution and the building of dams that lacked fish passage. S.
D. Warren Co., now owned by South African Pulp and Paper, Inc. (or
SAPPI), located in Westbrook, Maine, began the relicensing procedure
for five consecutive hydropower dams on the Presumpscot River in
1996.
Through the intervention of Friends of the Presumpscot River and
our national partner, American Rivers, we succeeded in convincing
the Federal Energy Regulatory Commission (FERC) that these dams should
not be allowed to operate in the environmentally destructive way
that they had previously, and warranted water quality improvements
and the installation of fish passage. New federal licenses were granted
in 2003. They require the installation of fish passage on all five
dams, and include a State of Maine section 401 Clean Water Act Certification.
This certification virtually mirrors the fish passage conditions
in the federal licenses and also includes minimum flow requirements
for several bypass reaches to rectify dissolved oxygen violations
below the dams and to rewater the bypass reaches. These actions would
provide access for migratory fish and bring the river into compliance
with state water quality standards..
Section 401(a)(1) of the Clean Water Act provides:
“Any applicant for a Federal license or permit to conduct
any activity including, but not limited to, the construction or
operation of facilities, 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
or will originate, or, if appropriate, from the interstate water
pollution control agency having jurisdiction over the navigable
waters at the point where the discharge originates or will originate,
that any such discharge will comply with the applicable provisions
of sections 1311, 1312, 1313, 1316, and 1317 of this title.”
In the case before the United States Supreme Court, S.D. Warren’s
argument is that Section 401 of the Clean Water Act does not apply
to hydropower facilities because 401 is only relevant if a discharge
of a pollutant occurs. S.D. Warren contends that the water discharged
from a hydropower dam does not contain a pollutant or any addition.
The basis for this argument lies in their interpretation of the meaning
of a discharge and the language in Section 401 that defines the act
to include the “discharge of a pollutant”.
The outcome of this case could severely damage the states’ power
to regulate water quality standards in their rivers where they expressly
have standards in place and seek to impose higher standards than
the federal ones during dam relicensings. It is clear that water
is discharged from these hydro facilities. The plain meaning of discharge
does not require a discharge of a pollutant. Congress intended that
the Clean Water Act’s protection of water quality not be limited
to the reduction of discharges of pollutants and that States would
retain the primary responsibility and right to safeguard water quality
within their borders.
While the legal interpretations of the Clean Water Act’s language
are central to this case as, they do not address the scientific reasons
for regulation of dams to include water quality criteria other than
pollutants. As dozens of our colleagues stated in their amicus
brief to the Supreme Court, “dams cause pollution.” It
is clear that states must be able to impose terms and conditions
to remedy that damage. Dams alter the chemical, physical and biological
integrity of rivers by changing the flow, increasing water temperature,
changing the distribution of sediment, reducing oxygenation and blocking
the migration of fish and other aquatic species to their spawning
or feeding habitat. So it is crucial that States’ retain their
ability to regulate hydropower facilities if we are to protect these
critical functions of rivers.
S.D. Warren appealed the certification to the Board of Environmental
Protection (BEP) on the grounds that discharges must include the
discharge of pollutants in order for the State’s to have the
right to certify these dams. They lost. They then appealed to the
Maine Superior Court, lost and took the case to the Maine Supreme
Court, where they lost again. Their petition for certiorari before
the United States Supreme Court was granted in October of 2005 and
the case will be heard on February 21, 2006. FERC issued approximately
311 new or subsequent licenses between November 1995 and November
2005. More than 125 licenses will expire over the next decade, making
those projects subject to relicensing and water quality certification.
So far briefs have been filed by nine respondents in support of the
State of Maine’s case. These are:
American Rivers/Friends of the Presumpscot River
Solicitor General of the US
State AGs
Senator Jeffords (I-VT)
Former EPA Assistant Administrators
American Indian Tribes
Scientists
Dozens of non-profit organizations, including Maine Rivers
Anglers
For more information, you may contact me at coveredbridge45@adelphia.net or
to read these briefs, click on the following:
S.D. Warren V. Maine Board of
Environmental Protection
Dusti Faucher, President
Friends of the Presumpscot River
Maine Rivers Board of Directors, Secretary |
Maine’s
Key Role in Defending Against a Major Threat to the Clean Water
Act