Justices uphold states' rights in Clean Water Act decision

Ruling affects about 1,500 power dams in 45 states

May 16, 2006|By DAVID G. SAVAGE | DAVID G. SAVAGE,LOS ANGELES TIMES

WASHINGTON -- The Supreme Court sided with the environment over electric power yesterday, ruling that state regulators may require a steady flow of water over power dams to benefit both fish and kayakers.

The unanimous decision holds that states may protect the health of their rivers, even though hydroelectric power dams are regulated exclusively by the federal government.

The dispute arose over five small dams on the Presumpscot River in Maine, but the court's decision affects an estimated 1,500 power dams in 45 states.

Separately, the court agreed to take up an appeal from environmentalists who are seeking to enforce stricter clean-air rules against aging coal power plants. The justices said they would hear the clean-air case in the fall.

The ruling on rivers and dams resolved a clear conflict in the law. The Federal Power Act says hydropower dams are to be regulated by federal authorities with the aim of producing electricity. But the Clean Water Act says those who "discharge" anything into a state's navigable waters must obtain a permit from the state.

Until recently, state officials believed they were entitled to protect their rivers by regulating the flow of water over and through dams.

But last year, the privately owned S.D. Warren Co., which produces hydroelectric power in Maine, won the Supreme Court's review of its argument that water flowing in and out of a dam is not a discharge.

Had the company prevailed, states would have lost their legal authority to protect their rivers and ensure a steady flow of water. Not surprisingly, officials of the power plants said that during dry seasons, they were more interested in holding back water so they could be assured of a steady flow over their generators to maintain power production.

In its opinion, the Supreme Court looked to the dictionary to decide the meaning of the word discharge.

"When it applies to water, `discharge' commonly means a `flowing or issuing out,'" wrote Justice David H. Souter, citing Webster's New International Dictionary. Other judges and regulators have agreed with "our understanding of the everyday sense of term," he added.

Therefore, since water flowing over a dam is discharged back into the river, a state may regulate the operation of the dam, the court concluded in S.D. Warren Co. v. Maine Board of Environmental Protection.

Environmentalists are anxiously watching two other Clean Water Act cases that are still before the Supreme Court. Both from Michigan, they will determine whether federal regulators can continue to protect inland wetlands and small streams from development or pollution.

Private-property activists say the Clean Water Act protects only rivers and lakes where boats can float, not wetlands that are far inland. Decisions in those cases are due by late June.

Bush administration lawyers joined all three clean water cases on the side of the environmentalists. But the clean-air case to be heard in the fall concerns a move by the Bush administration to relax a strict anti-pollution rule set by the Clinton administration.

Under that rule, aging power plants that expanded or modified their facilities were required to adopt modern anti-pollution controls in the process. This issue has drawn much attention in Northeast states that are downwind of coal-powered plants in Ohio and West Virginia.

The Duke Energy Corp. in North Carolina challenged the Clinton-era rules and won a ruling from the 4th U.S. Circuit Court of Appeals concluding that the Environmental Protection Agency had exceeded its authority in requiring such modifications.

In a separate lawsuit, several Northeastern states - including Maryland - are challenging the Bush administration's move to relax the same rules, known as new-source review.

Taking up the cause of clean-air advocates, lawyers for the nonprofit Environmental Defense appealed to the Supreme Court. They argued that it was the 4th Circuit that exceeded its authority.

David G. Savage writes for the Los Angeles Times.

Court action

In other action yesterday, the Supreme Court:

Sided with eBay in a patent fight over a selling feature, in a 9-0 ruling that will make it easier for high-tech companies to avoid court injunctions in such disputes. (Article, Page 1D)

Refused to hear an appeal of convicted sniper John Allen Muhammad's Virginia death sentence. (Article, Page 1B)

Refused to hear a challenge to telemarketing restrictions that apply to professional fundraisers hired by charitable organizations. (Article, Page 5B)

Declined to consider reviving a lawsuit by the District of Columbia to impose a commuter tax on people who work in the city but live elsewhere. (Article, Page 6B)

Refused to block a gay woman from seeking parental rights to a child she had helped raise in Washington state with her partner.

Ruled 9-0 that taxpayers have no right to challenge nearly $300 million in tax breaks that Ohio's elected officials used to entice DaimlerChrysler AG to build a new plant in Toledo.

Refused to consider whether New York state owed an Indian tribe about $250 million in a dispute over the seizure of tribal land.

Said it would decide whether old cases are affected by a two-year-old ruling reiterating that the Constitution guarantees a criminal defendant the right to confront accusers.

[From staff and wire reports]

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