Tuesday, February 28, 2006

USSC Hears Arguments in S.D. Warren Case

On February 21, 2006, the United States Supreme Court heard arguments in S.D. Warren Company v. Maine Board of Environmental Protection. A brief summary of the facts and the question before the Court follow.

The Facts:

In order to obtain a federal license to operate the dams it owns along the Presumpscot River in Cumberland County, SD Warren was required to obtain a water quality certification from the State of Maine. This certification established conditions to ensure the physical, chemical, and biological integrity of the river and these requirements were incorporated into the federal license that FERC issued to the company. The S.D. Warren Company filed a series of appeals opposing this certification, ending with the Maine Supreme Judicial Court, which upheld the Superior Court decision in favor of the State of Maine and the certification requirements.

Question Before The Court

The question before the United States Supreme Court is whether hydroelectric facilities, which block rivers to form reservoirs and divert, channel and release that water through pipes, gates, and canals into the river downstream, result in “any discharge into the navigable waters” within the meaning of Section 401 of the Clean Water Act.

Law Court Opinion & Briefs to the USSC

The opinion of the Maine Supreme Judicial Court can be accessed at http://www.courts.state.me.us/opinions/2005%20documents/05me27sd.pdf

The following links provide access to the briefs in the case.

Brief of Respondent American Rivers and Friends of the Presumpscot River

Brief of Respondent Maine Board of Environmental Protection

Brief for Petitioner S.D. Warren

Amicus Brief from State Attorneys General

Amicus Brief from Former Assistant Admin. of the EPA

Amicus Brief from Senator Jeffers in Support of Respondent

Amicus Brief from Tribes in Support of Respondent

Amicus Brief from Scientists in Support of Respondent MBEP

Amicus Brief from NGO’s in Support of Respondent

Amicus Brief from Anglers in Support of Respondent

Amicus Brief from Edison Electric, et al in Support of Petitioner

Amicus Brief from Western Urban Water Coalition

I was unable to find a free version of the Amicus Briefs from Augusta, Georgia, from the National Association of Homebuilders or from the Salt River Project Agricultural Improvement and Power district. They are available on LexisNexis but a password is required to access the briefs.