S.D. Warren and the Erosion of Federal Preeminence in Hydropower Regulation

Pollak, Daniel
August 2007
Ecology Law Quarterly;2007, Vol. 34 Issue 3, p763
Academic Journal
The U.S. Supreme Court's 2006 ruling in S.D. Warren v. Maine Board of Environmental Protection affirms that releases of water from hydroelectric dams constitute a "discharge" under the federal Clean Water Act (CWA). This means that hydropower relicensing will trigger section 401 of the CWA, requiring federal licensees to obtain state certifications that their operations will comply with state water quality standards. While for the most part the S.D. Warren opinion is a narrow exercise in statutory interpretation, it is also a landmark in the shifting balance of federal and state power in hydropower regulation. The Federal Power Act of 1920 (FPA) originally granted the Federal Power Commission (later the Federal Energy Regulatory Commission, or FERC) sole, preemptive authority to license nonfederal hydroelectric dams. Later amendments to the FPA and new statutes such as the CWA have eroded that sole, preemptive FERC role, elevating the importance of environmental considerations and the influence of state and federal resource protection agencies in the dam reicensing process. By affirming that dam releases are "discharges" under the CWA, S.D. Warren turns back an attempt to severely curtail the role of states in hydropower regulation. Furthermore, in declining to consider an FPA -based preemption challenge to the states' CWA section 401 authority, the S.D. Warren ruling gives states a green light to forcefully assert their environmental goals in the hundreds of hydropower relicensing proceedings that will be taking place in coming years. In particular, I argue that under section 401, the state role need not be limited to the traditional one-time, prospective review that locks in license conditions for thirty to fifty years. Adaptive management, with its emphasis on long-term monitoring, contingency planning and responsiveness to new information, is better suited to the dynamic nature of river ecosystems. S.D. Warren leaves open the opportunity for states to use section 401 to impose adaptive management requirements on hydropower licenses. Doing so would allow states to improve the responsiveness of dam regulation to changing knowledge and environmental conditions.


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