WASHINGTON — The Supreme Court sided with the
environment over electric power Monday, ruling
that state regulators may require a steady flow of
water over power dams to benefit fish and
The unanimous decision holds that states may
protect the health of their rivers, even though
hydroelectric 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. They include scores
of dams on the Sacramento, Klamath and San Joaquin
rivers in California.
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
hydro-power 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 SD 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
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
In its opinion, the Supreme Court looked to the
dictionary to decide the meaning of the word
"When it applies to water, 'discharge' commonly
means a 'flowing or issuing out,' " said 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 SD Warren Co. vs. Maine.
"This is a victory for rivers, for clean water and
most of all for good common sense," said Rebecca
Wodder, president of the environmental group
But environmentalists are anxiously watching two
other Clean Water Act cases that are pending
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 Act cases on the side of the
The clean-air case to be heard in the fall,
however, 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
the states of the Northeast, including New York,
which 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
U.S. 4th 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
are challenging the Bush administration's move to
relax the same rules.
Taking up the cause of clean-air advocates,
lawyers for the nonprofit group Environmental
Defense appealed to the high court. They argued it
was the 4th Circuit Court that exceeded its
The ruling will have a broad impact,
"Over 160 million Americans, more than half of the
country, live in communities out of compliance
with the nation's health standards, and today the
Supreme Court took a big step toward aiding those
communities in their efforts to restore healthy
air," Vickie Patton, an Environmental Defense
lawyer, said on Monday.