State officials requested that SD Warren, a paper producer, take steps to protect the quality of the water that flows through the five dams, which generate power for the company’s paper mill.

But the company refused and took Maine to court, arguing that the state had overstepped its authority and did not have the right to intervene in this way. SD Warren says it should not have to get permits just because water flows through the dams.

The case, ‘SD Warren v. Maine Board of Environmental Protection’, could hinge on the definition of ‘discharges’. Maine and its supporters, which include 34 US states, Puerto Rico, environmental groups and the Bush administration, say that the federal Clean Water Act asserts that authority over discharges, including any from hydroelectric dams, is given to the state.

However, SD Warren insists that its dams do not constitute discharges.

The US National Hydropower Association (NHA) said that the hydro power industry is pleased the US Supreme Court has agreed to clarify the meaning of ‘discharge’.

‘Hopefully the Court will clarify the intent of federal clean water law on “discharge”, setting out under what circumstances hydro power projects are required to obtain a clean water certificate,’ an NHA spokesperson said in a statement.

The statement continued: ‘The State of Maine’s decision requires all hydro power projects, even those with no impact on water quality, to obtain a water quality certification. Its reasoning – that water entering into a hydro power project is no longer ‘water of the US’ because the project owner has taken private ownership – is illogical and inconsistent with existing law.

‘It defines discharge too broadly. This would mean a ‘discharge’ occurs even if the water is unchanged as it passes through a hydro power project.’

The NHA co-sponsored an amicus brief supporting SD Warren.


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