Supreme Court Issues Unanimous Ruling: Hydropower Dams Must Obey Clean Water Act

In a 9-0 Decision released this morning the Supreme Court upheld the ability of States to protect water quality under the Clean Water Act at hydropower dams. SD Warren, a South African company with dams along the Presumpscot River in Maine, had attempted to circumvent the state approval process required under S401 of the Clean Water Act. They attempted to make the absurd argument that water released from a dam did not constitute a discharge and their dams were therefore exempt from state certification.

In the opinion delivered by Justice Souter, the Court held:

The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under S401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for discharge, and state approval is needed. read full opinion

American Whitewater took a leadership role with our partners in the Hydropower Reform Coalition on this case. Our staff and approximately two dozen volunteers worked hard over two weeks at the end of December to assist in preparation of arguments as part of a "friend of the Court" brief (read full brief) that was ultimately supported by numerous conservation organizations across the country. Our position protecting states rights in hydropower licensing was supported by the Bush Administration, a bipartisan group of 36 state attorneys general, tribes, fishing organizations, leading scientists and engineers, and others.

"Only 1% of America's rivers contain whitewater resources, which are the same river miles most attractive for hydropower development," noted Thomas O'Keefe American Whitewater's Pacific Northwest Stewardship Director and a river ecologist. "This case clearly recognizes the impacts of hydropower dams on water quality and in their decision the Court specifically noted the importance of recreational opportunities such as those enjoyed by our membership".

Congress passed the Clean Water Act to "restore and maintain" the integrity of our Nation's waters to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." With the Court's decision, the Clean Water Act will remain one of the key tools in our toolbox to help restore rivers for fish, wildlife, and paddlers on rivers impacted by hydropower dams.

American Whitewater river stewardship work is aided by membership, contributions, and industry support from Clif Bar, Dagger Kayaks, Jackson Kayak, Keen Footwear, Kokatat, Teva, Patagonia, and Wavesport. In addition to our industry supporters, we wish to thank our members who volunteered their time to help us with this case and also those who responded to our most recent appeal and provided critical funding for our staff to work on this important national issue.