By: Robert Nasdor
On April 6th, the Supreme Court reversed a 9th Circuit decision that limited the ability of states to protect rivers from the harmful effects of hydropower dams under Section 401 of the Clean Water Act. The rules adopted by the prior administration limited information available to the states, the time for review, and the scope of conditions that states can require in the licensing of hydropower dams by the Federal Energy Regulatory Commission (FERC). American Whitewater, along with a coalition of states and environmental groups, sued the EPA to overturn these new rules and obtained an order in the Northern District of California vacating the rules while the EPA undertakes a new rulemaking process.
The EPA now acknowledges that the rules undermine the role of the states in protecting clean water from the harmful effects of hydopower and pipeline projects. In a 5-4 decision, the majority reinstated the rules without issuing a written opinion over the dissent issued by Justice Kagen. “The reinstatement of these rules will limit the ability of states to protect rivers from the harmful impact of hydropower dams on rivers and those who use them for recreation,” said Robert Nasdor, American Whitewater legal director. “These rules needlessly limit states from requiring that these projects meet state water quality standards under the Clean Water Act.” While the EPA is expected to issue new rules next year, we can expect that the Supreme Court’s action will be harmful to rivers and water quality.