Tuesday, May 16, 2006
Supreme Court favors state in water dispute over dams
Copyright © 2006 Blethen Maine Newspapers Inc.
WASHINGTON -- Maine won a unanimous U.S. Supreme Court decision Monday upholding its water regulations such as requiring fish passage as part of federal licensing of dams.
The paper company S.D. Warren had argued that the state had no business meddling in licenses of five dams along the Presumpscot River between Sebago Lake and Portland because water simply backed up behind the hydropower dams and spilled over its turbines without pollution being added.
But the state Board of Environmental Protection decided the dams provided a "discharge," qualifying for regulations under the Clean Water Act because of the changes in water flow, temperature and oxygen level.
The Maine Supreme Judicial Court agreed. The Supreme Court case was the first heard by Justice Samuel Alito and among those heard in the first term of Chief Justice John Roberts, who had each been criticized by environmentalists for past opinions. But the court voted 9-0 in favor of state regulation.
"We hold that a dam does raise a potential for discharge, and state approval is needed," Justice David Souter wrote in the 15-page decision.
The case was closely watched nationwide because there are 1,500 hydropower dams in 45 states, including 125 in Maine.
"It's the biggest hydro-regulation case in 60 years," said Dana Murch, dams manager at the state Department of Environmental Protection.
The Federal Energy Regulatory Commission licenses hydropower dams. But Congress gave states power under the Clean Water Act to set environmental standards for any "discharge" into a river.
"States not only have a role to play, but a very important role," said Maine Attorney General Steven Rowe, who argued the case in person on Feb. 21. Jubilation greeted the decision among environmental advocates.
Rowe said the case means state conditions for dam licenses will be enforced with timetables for improvements such as fish ladders, which are basically stairs of water for fish to leap around a dam.
"I think this decision is very important because the Supreme Court has affirmed that the states have primary responsibility for enforcement of the Clean Water Act," Rowe said.
Environmental groups supported state regulations because dams change water temperature and oxygen levels in river water, and block fish passage, even if they don't add pollutants to the water.
But the S.D. Warren mill, now known as Sappi Westbrook, argued that water simply passing over power-generating turbines doesn't constitute a "discharge" provoking state regulation.
Souter wrote for the court that the Clean Water Act aimed to restore and maintain the chemical, physical and biological integrity of the nation's waters. "Warren's arguments against reading the word 'discharge' in its common sense fail on their own terms," Souter wrote for the court. "They also miss the forest for the trees."
The goal in Maine is to allow fish such as salmon, herring, shad and alewife to swim upstream from the sea to spawn, and that eels, which spawn at sea, can swim upstream to live. But numerous dams along the Presumpscot River prevented the free flow of fish.
The state stocks sections of the river with fish, but the dams allow the river essentially to run dry in spots. The decision doesn't mean fish and eels will migrate between the lake and ocean immediately. The case involved five hydropower dams: Saccarappa, Mallison Falls, Little Falls, Gambo and Dundee.
State environmental requirements for the dams include water flow, recreational facilities and ramp passages for eels. But Warren's first dam blocking fish on the river, known as Cumberland Mills in Westbrook, isn't a hydropower dam and so doesn't fall under the regulation at stake in the case.
If residents petition the state Department of Inland Fisheries and Wildlife, the commissioner can require fish ladders at the roughly 600 dams statewide that aren't federally regulated. Such an order would set the stage requiring fish ladders at Warren's five dams along the Presumpscot River in the court case.
Faucher said her group is preparing to file such a petition for Cumberland Mills. But she said advocates would prefer S.D. Warren install fish ladders at its dams voluntarily. Dams along the Saco, Kennebec, Androscoggin and Penobscot rivers already have either orders or dates for fish ladders to be installed.
"It's time for them to stop fighting this legally," Faucher said. "It's the linchpin in getting the fish passage for the new licenses to kick in." Sean Mahoney, a lawyer who represented her group in the case and who lives along the Presumpscot, said Warren has improved their operations over the last 30 years, but needs to do more.
"They're not bad guys," said Mahoney, of Verrill Dana LLP. "It's everybody's hope that instead of more litigation and disputes, that something can be worked out."
The lawyer who represented S.D. Warren at the Supreme Court did not return a call Monday seeking comment about the decision.
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