Environmental -- 2006



S.D. Warren Co. v. Maine Board of Environmental Protection   (U.S. Supreme Court)

Clean Water Act jurisdiction

The Supreme Court 5/15/06 decided that river water utilized by private dams is “discharge” within the meaning of Section 401 of the Clean Water Act, 33 U.S.C. § 1341 (a)(1), after the water’s hydroelectric use in the dam. Section 401 requires that if an activity “may result in any discharge into the [Nation’s] navigable water[s],” an applicant for a federal license or permit must obtain a certification that the activity will not violate state water quality standards. The Act does not define the term “discharge,” apart from providing that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.” 33 U.S.C. § 1362(16). The Court unanimously concluded that because the term is not further defined in the statute and is not a term of art, it is to be construed “in accordance with its ordinary and natural meaning”—a “flowing or issuing out.” The Court rejected arguments that a different meaning is dictated by the surrounding language of Section 401, by the meaning of Section 402 of the Act, or by legislative history. This decision is important to any business that may be subject to regulation under the Clean Water Act.

Decision Below: 868 A.2d 210 (Me. 2005)