Ruling Favors Rivers Over Power Dams

The Supreme Court says states may protect the waterways by requiring a steady flow at hydroelectric plants, which tend to harness it.

By David G. Savage, Times Staff Writer
May 16, 2006

WASHINGTON — The Supreme Court sided with the environment over electric power Monday, ruling that state regulators may require a steady flow of water over power dams to benefit fish and kayakers.

The unanimous decision holds that states may protect the health of their rivers, even though hydroelectric dams are regulated exclusively by the federal government.

The dispute arose over five small dams on the Presumpscot River in Maine, but the court’s decision affects an estimated 1,500 power dams in 45 states. They include scores of dams on the Sacramento, Klamath and San Joaquin rivers in California.

Separately, the court agreed to take up an appeal from environmentalists who are seeking to enforce stricter clean-air rules against aging coal power plants. The justices said they would hear the clean-air case in the fall.

The ruling on rivers and dams resolved a clear conflict in the law. The Federal Power Act says hydro-power dams are to be regulated by federal authorities with the aim of producing electricity. But the Clean Water Act says those who “discharge” anything into a state’s navigable waters must obtain a permit from the state.

Until recently, state officials believed they were entitled to protect their rivers by regulating the flow of water over and through dams.

But last year, the privately owned SD Warren Co., which produces hydroelectric power in Maine, won the Supreme Court’s review of its argument that water flowing in and out of a dam is not a discharge.

Had the company prevailed, states would have lost their legal authority to protect their rivers and ensure a steady flow of water. Not surprisingly, officials of the power plants said that during dry seasons, they were more interested in holding back water so they could be assured of a steady flow over their generators to maintain power production.

In its opinion, the Supreme Court looked to the dictionary to decide the meaning of the word “discharge.”

“When it applies to water, ‘discharge’ commonly means a ‘flowing or issuing out,’ ” said Justice David H. Souter, citing Webster’s New International Dictionary. Other judges and regulators have agreed with “our understanding of the everyday sense of term,” he added.

Therefore, since water flowing over a dam is discharged back into the river, a state may regulate the operation of the dam, the court concluded in SD Warren Co. vs. Maine.

“This is a victory for rivers, for clean water and most of all for good common sense,” said Rebecca Wodder, president of the environmental group American Rivers.

But environmentalists are anxiously watching two other Clean Water Act cases that are pending before the Supreme Court. Both from Michigan, they will determine whether federal regulators can continue to protect inland wetlands and small streams from development or pollution.

Private-property activists say the Clean Water Act protects only rivers and lakes where boats can float, not wetlands that are far inland. Decisions in those cases are due by late June.

Bush administration lawyers joined all three Clean Water Act cases on the side of the environmentalists.

The clean-air case to be heard in the fall, however, concerns a move by the Bush administration to relax a strict anti-pollution rule set by the Clinton administration.

Under that rule, aging power plants that expanded or modified their facilities were required to adopt modern anti-pollution controls in the process. This issue has drawn much attention in the states of the Northeast, including New York, which are downwind of coal-powered plants in Ohio and West Virginia.

The Duke Energy Corp. in North Carolina challenged the Clinton-era rules and won a ruling from the U.S. 4th Circuit Court of Appeals concluding that the Environmental Protection Agency had exceeded its authority in requiring such modifications.

In a separate lawsuit, several Northeastern states are challenging the Bush administration’s move to relax the same rules.

Taking up the cause of clean-air advocates, lawyers for the nonprofit group Environmental Defense appealed to the high court. They argued it was the 4th Circuit Court that exceeded its authority.

The ruling will have a broad impact, environmentalists say.

“Over 160 million Americans, more than half of the country, live in communities out of compliance with the nation’s health standards, and today the Supreme Court took a big step toward aiding those communities in their efforts to restore healthy air,” Vickie Patton, an Environmental Defense lawyer, said on Monday