S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 126 S. Ct. 1843, 164 L. Ed. 2d 625 (2006)
S.D. Warren Co.
Does the release of water from hydroelectric dams constitute a 'discharge into the navigable waters' under Clean Water Act §401, thereby requiring state water quality certification even when no pollutants are added?
Under Clean Water Act §401, any applicant for a federal license or permit to conduct an activity that may result in any discharge into navigable waters must obtain a state certification that the activity will comply with applicable water quality standards and other enumerated CWA provisions. The term 'discharge' in §401 is not limited to the 'addition' of pollutants (as in §402's 'discharge of a pollutant'); rather, it encompasses the flowing or issuing of water from a point source into navigable waters. States may impose conditions necessary to assure compliance with §§301, 302, 303, 306, and 307, and those conditions become terms of the federal license. 33 U.S.C. §1341(a), (d).
Yes. The operation of hydroelectric dams that releases water into a river constitutes a 'discharge into the navigable waters' under §401. Accordingly, state water quality certification is required, and states may impose conditions to assure compliance with water quality standards.
S.D. Warren confirms that §401 is a broad certification tool allowing states to protect water quality and designated uses by conditioning or denying federal licenses for activities that alter water characteristics, even without added pollutants. It cements the cooperative federalism structure of the CWA, ensuring state water quality standards have bite at the federal licensing stage (e.g., FERC hydropower relicensing). The case clarifies the statutory taxonomy: §401 certification can be triggered by non-pollutant discharges, while §402 NPDES permitting turns on the addition of pollutants. Practically, the ruling empowers states to require minimum flows, fish passage, and other measures tied to water quality standards for dams and similar projects. For law students, the case is a model of textual analysis, statutory history use, and the interplay between environmental regulation and energy infrastructure.