Byrne, Mary E.

English

University of Denver

Water Law Review Volume 10 Issue 1 Article 26 9-1-2006 S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 126 S.Ct. 1843 (2006) Mary E. Byrne Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Mary E. Byrne, Court Report, S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 126 S.Ct. 1843 (2006), 10 U. Denv. Water L. Rev. 171 (2006). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSFEDERAL COURTSUNITED STATES SUPREME COURTS.D. Warren Co. v. Me. Bd. of Envtl. Prot., 126 S.Ct. 1843 (2006)(holding that the operation of a dam has the potential to result in a"discharge" as defined under section 401 of the Clean Water Act andtherefore, the applicable state must certify a dam does not violate itswater laws before a federal operating license may be issued).S. D. Warren Company ("Warren") operated hydroelectric damsalong the Presumpscot River in Maine. Warren's dams captured water,passed it through turbines, and then released it back into the river. Torenew its operating licenses, Warren applied for state certification fromthe Maine Department of Environmental Protection ("MDEP") in ac-cordance with section 401 ("§ 401") of the Clean Water Act ("CWA").However, Warren applied under protest claiming its operations did nottrigger § 401 because it did not "discharge" anything into the river.The MDEP issued the state certifications subject to stipulations thatrequired Warren to maintain minimum stream flow levels and to allowfor the passage of fish and eels. After an unsuccessful appeal to theadministrative tribunal, Warren filed suit against MDEP in the Cum-berland County Superior Court of Maine. The trial court rejectedWarren's argument and, on appeal, the Supreme Judicial Court ofMaine affirmed. The United States Supreme Court also affirmed,holding that a dam does result in a "discharge" under § 401.Warren claimed that Congress intended the meaning of "dis-charge" to include the requirement of an addition. Warren first ar-gued that the theory of noscitur a sociis should be applied when inter-preting "discharge" under § 401. Under this theory, a broad termpaired with a narrower term is restricted within the confines of thenarrow term. The Court opined this was not the general way to uselanguage and that the interpretive canon was not applicable here.Next, Warren asserted that South Florida Water Management District v.Miccosukee Tribe controlled. The Court held that the case was not onpoint, because Miccosukee dealt with section 402 of the CWA and thetwo sections were not interchangeable. Finally, Warren claimed thatthe CWA's legislative history indicated that Congress left the word "in-cludes" in § 401 as an oversight because of the lengthy amendmentdebates. Warren argued that removing "includes" from § 401 necessi-tates reading "discharge" as requiring an addition. The Court foundWATER LAW REVIEWthat this illustration instead reinforced the notion that Congress makestextual decisions deliberately and with great care.The Court determined which meaning Congress intended to at-tach to "discharge" as it appears in § 401. The Court began its analysisby looking at its own interpretation of "discharge" in past water cases.The Court found that it had uniformly read the word according to itsplain meaning. The Court specifically pointed out that in PUD No. 1 v.Washington Department of Ecology, its only other case that dealt specifi-cally with § 401, all the parties and the court applied the plain meaningto "discharge" without comment or objection. The Court also exam-ined the use of "discharge" under § 401 in the administrative contextand found that regulatory agencies regularly applied the plain mean-ing as well.The Court bolstered its reasoning for adopting the plain meaningof "discharge" by discussing the CWA's overarching goal of achievingand sustaining certain water quality levels. The Court opined fromamici briefs and admissions made by Warren that the alteration of anatural watercourse did impact water quality. The Court concludedthat the CWA is the vehicle through which Congress has empoweredstates to set water quality standards and that they specifically created §401's certification process so that states could accomplish this task.The Court, therefore, held that applying the plain meaning to "dis-charge" was the best way to properly delegate this authority to thestates.The Court rejected all three of Warren's arguments as to why theCourt should interpret "discharge" in § 401 to require an addition bemade to the water. The Court applied the plain meaning because thatwas the interpretation the Court and administrative agencies had usedin the past. The Court also held that this reading better aligned withthe goals of the CWA and its delegation to the states of ensuring waterquality within their boundaries. The Court then examined Warren'soperating procedures and held that the process of removing and re-placing water constituted a "discharge" under the plain meaning of theword. The Court applied § 401 and concluded that the operation of adam is an activity which "may result in a discharge," thereby affirmingthe judgment of both the trial court and the Supreme Judicial Court ofMaine. The Court concluded that because dams may create a dis-charge, the state must certify a dam before the Federal Energy Regula-tory Commission can issue a federal operating license.Mary E. ByrneVolume 10

S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 126 S.Ct. 1843 (2006)

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S.D. Warren Co. v. Me. Bd. Of Envtl. Prot., 126 S.Ct. 1843 (2006)

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