States retain regulatory power after ruling

16 May 2006

The decision came about during a case between the Maine Board of Environmental Protection and paper producer SD Warren.

Maine wanted SD Warren to take steps to protect the quality of the water that flows through its five dams on the Presumpscot river. However, SD Warren said that the state did not have the right to make such a request – it claimed the dams did not qualify as ‘discharging’ since it was the same water going in and coming out.

But the Court found that the dams are definitely discharging back into the Presumpscot, and that their presence is having an influence over the river, leaving long stretches of the bed dry.

States hold the authority to regulate their rivers under section 401 of the federal Clean Water Act, the Court said, regardless of whether pollution is immediately apparent or not – even though hydroelectric dams are regulated exclusively by the federal government.

Had the Court ruled against Maine, a key regulatory tool used by US states nationwide would have been eliminated.

In reaction to the ruling, the US National Hydropower Association’s (NHA) Steven M Gotfried said that the organisation was confident that hydro power owners and operators continue to support strong standards and believe in their stewarding responsibilities.

However, he went on to say: ‘NHA is disappointed that the Court did not comment on what happens what a state, through the 401 process, establishes a condition that conflicts with federal policy or a federally imposed condition.’

Gotfried continued: ‘The issue of a possible disagreement between the federal government and a state is a serious matter of national importance… NHA is concerned that a state, using 401, could shut down a clean, non-polluting hydro power project; a situation Congress did not envision when it passes the Clean Water Act.’

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