The Supreme Court Addresses the Clean Water Act

New York Law Journal

June 23, 2006
by Stephen L. Kass and Jean McCarrol

This term, the U.S. Supreme Court had three Clean Water Act cases on its docket — all argued on Feb. 21, 2006. The first case, S.D. Warren v. Maine Board of Environmental Protection,[1] was decided last month and is the one we chiefly consider in this column.

The other two, Rapanos v. United States[2] and Carabell v. U.S. Army Corps of Engineers,[3] were decided on June 19, just as this column was going to press; we discuss them briefly at the end of this column.

The 'S.D. Warren' Case

The S.D. Warren case concerns §401 of the Clean Water Act, which requires an applicant for a federal permit for an activity that "may result in any discharge into the navigable waters" to obtain a Water Quality Certification (WQC) from the state in which the discharge originates.[4] The WQC certifies that the discharge will not violate state water quality standards. Commercial hydropower facilities require a federal permit from the Federal Energy Regulatory Commission (FERC) under the Federal Power Act; that requirement in turn triggers the need for a WQC. The conditions imposed by the state WQC are then incorporated into the FERC permit.

S.D. Warren operates five dams in the Presumpscot River in Maine. In 1999, S.D. Warren sought to renew its FERC licenses to operate hydropower facilities. S.D. Warren asserted that it was not required to obtain a WQC, but nevertheless applied to the Maine Department of Environmental Protection (DEP) for one. The Maine DEP, relying on findings that the dams caused stretches of the natural river to become dry, blocked the passage of eels and sea-run fish, caused less dissolved oxygen to be retained in the river, and eliminated opportunities for fishing, conditioned its WQC on minimum flows in bypasses to increase dissolved oxygen, provisions for fish spawning, and improved recreational facilities. FERC issued 40-year licenses incorporating Maine's conditions.[5]

S.D. Warren challenged the conditions and the WQC requirement itself, both of which were upheld by the state Board of Environmental Protection, the state trial court, and the Maine Supreme Judicial Court.[6] The Maine Supreme Judicial Court held that, under the Clean Water Act, a "discharge" into navigable waters required that there be an "addition" of something to the water, but found that there had been such an addition. The court reasoned that, when the river came under "private control" in the dams, the river water lost its status as waters of the United States, and then the water became an addition when it reentered Presumpscot River.[7]

The Supreme Court granted certiorari on the question of whether "the mere flow of water through an existing dam constitute[s] a 'discharge' under §401" of the Clean Water Act, "despite this Court's holding last year in Miccosukee that a discharge requires the addition of water from a distinct body of water."[8] The Court denied certiorari on the question of whether Maine's application of §401 conflicts with FERC's licensing authority over hydropower projects under the Federal Power Act.

In the Supreme Court, S.D. Warren argued that water passing momentarily through its dams but remaining in a single water body did not constitute a "discharge" and therefore did not trigger the WQC requirement because it did not add anything to the water. It based that argument principally on the text of the Clean Water Act, while also citing the Miccosukee decision, legislative history, other provisions of the Clean Water Act, and an Environmental Protection Agency (EPA) memorandum. It also made the policy argument that, if the Maine DEP's position were upheld, a state's WQC permit conditions could effectively veto FERC license renewals and frustrate projects designed to satisfy the nation's energy needs.

Maine, supported by the United States, also argued from the statutory text, buttressed by legislative history, but emphasized the "cooperative federalism" of the Clean Water Act and sounded the theme of judicial restraint, arguing that S.D. Warren sought to change the law and thus its recourse was to Congress. Maine argued that without WQCs it would be powerless to enforce its water quality standards against hydropower facilities. Thirty-three states and Puerto Rico joined in the submission of an amicus brief in support of Maine's position.

Justice Souter's Opinion

The Supreme Court held that, as a matter of statutory interpretation the plain meaning of the term "discharge" would govern. In a unanimous opinion by Justice David H. Souter, the Court construed the word "discharge" in accordance with its ordinary or natural meaning, quoting Webster's New International Dictionary — i.e., a "flowing or issuing out" — and found that an "addition" to the water was not necessary to that meaning. The opinion also noted that this definition of "discharge" was accepted by all members of the current Court who had participated in PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology,[9] the Court's only other opinion addressing §401 of the Clean Water Act.

The Court rejected S.D. Warren's application of the canon of noscitur a sociis (a word is known by the company it keeps) to interpret the definition of "discharge." S.D. Warren argued that, because "discharge" was defined in the definitions section of the Clean Water Act as including "a discharge of a pollutant, and a discharge of pollutants,"[10] and was used in §402 to mean the addition of a pollutant into waters of the United States, the term "discharge" should be similarly interpreted in §401. The Court found that argument unpersuasive, noting that "discharge" alone "presumably is broader" than "discharge of a pollutant" and that pairing a broad statutory term with a narrow one does not shrink the broad one. The Court further cautioned that "uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process."[11]

Justice Souter's opinion also rejected S.D. Warren's argument that the interpretation of "discharge" used in Miccosukee should be applied in this case, pointing out that Miccosukee was not relevant because in §402, which was at issue in that case, the statutory term was "discharge of a pollutant," not merely "discharge" as in §401. The Court then rejected S.D. Warren's legislative history argument, noting that "if the history means anything" it goes against S.D. Warren's contentions. It dismissed as "implausible speculation" the proposition that the word "includes" was left in the statutory definition by accident after a reference to thermal charges was proposed and then deleted."[12]

Finally, the Court stated that S.D. Warren's arguments "miss the forest for the trees." The Court noted that the purpose of the Clean Water Act was to maintain the chemical, physical, and biological integrity of the nation's waters, including the protection of fish and provision of recreation in and on the water, and that Congress recognized that dams alter water quality. The opinion cited findings of the Maine DEP regarding the effect of the dams at issue and cited the briefs of amici Trout Unlimited and National Wildlife Federation, which explained how the alteration of the flow of a river in a dam changes its chemical composition, affecting the dissolved oxygen that aquatic organisms rely on to breathe and creating dissolved nitrogen, which can be lethal to fish. The Court held that these concerns are within the states' authority and that state WQCs "are essential in the scheme to preserve state authority to address the broad range of pollution" and concluded that "[r]eading §401 to give 'discharge' its common and ordinary meaning preserves the state authority apparently intended."[13]

The Supreme Court's decision in S.D. Warren has been greeted as a pro-environmental decision, since it upheld Maine's stringent requirements in its WQC, and was seen as a welcome surprise from a Supreme Court that has not been notably friendly to the environment. The S.D. Warren decision, however, fits into the pattern in the Court's recent decisions of narrowing federal jurisdiction and broadening state authority over regional and local activities. In upholding Maine's authority to impose WQC requirements, the Court stressed that §401 of the Clean Water Act "recast pre-existing law and was meant to 'continu[e] the authority of the State . . . to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State.'"[14] Noting the changes that a dam could cause in a river, the Court stated that such changes "fell within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns."[15]

'Rapanos' and 'Carabell'

The Rapanos and Carabell cases were brought under §404 of the Clean Water Act, which requires a permit from the U.S. Army Corps of Engineers for the discharge of "dredged or fill material" into "navigable waters." They address issues that have been festering since the Supreme Court's decision more than five years ago in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).[16]

The petitioners in Rapanos and Carabell challenged the Corps' jurisdiction over wetlands with only indirect connections to traditional navigable waters — in Rapanos, wetlands adjacent to non-navigable tributaries of traditional navigable waters, and in Carabell, wetlands separated by a man-made berm from a ditch connected to navigable waters. The petitioners in Rapanos and Carabell argued that in SWANCC the Supreme Court had narrowed the Corps' power to regulate wetlands that are only indirectly connected to traditional navigable waters and that, in the two cases now before the Court, the "significant nexus" to navigable waters required for the Corps to regulate wetlands was lacking.

The Supreme Court's five opinions issued on June 19 — a plurality opinion written by Justice Antonin Scalia and joined by Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel A. Alito Jr.; a concurring opinion by Chief Justice Roberts; an opinion by Justice Anthony M. Kennedy concurring in the judgment; a dissenting opinion written by Justice John Paul Stevens and joined by Justices David H. Souter, Ruth Bader Ginsberg, and Stephen G. Breyer; and a separate dissenting opinion by Justice Breyer — do little to un-muddy the waters that Congress, in Clean Water Act §404, charged the Corps with protecting.

Justice Scalia, in the plurality opinion, derisively dismisses the Corps' claim to jurisdiction "over virtually any parcel of land containing a channel or conduit — whether man-made or natural, broad or narrow, permanent or ephemeral — through which rainwater or drainage may occasionally or intermittently flow"[17]; excoriates his colleagues for the views expressed in their opinions (as well as the states that submitted an amicus brief in support of the Corps' interpretation and the lower courts that have continued to uphold the Corps' broad assertions of jurisdiction); and, despite his frequently expressed disapproval of "judicial activism," sets out his own test for the Corps' jurisdiction over wetlands. Justice Scalia would require for the Corps' jurisdiction:

(1) that the channel to which the wetland is adjacent contain "a relatively permanent body of water connected to traditional interstate navigable waters"; and

(2) that the wetland have "a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins."[18]

Justice Kennedy's opinion concurring in the judgment sets out a different test: the "significant nexus" test, which he asserts was the test the Court used in SWANCC. Under Justice Kennedy's "significant nexus" test, wetlands would meet the jurisdictional standard if they "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"[19] Justice Kennedy suggests that the wetlands at issue in the two cases — very large areas of up to 64 acres (hardly the "puddles" that Justice Scalia refers to) — would likely meet his test, but concurs in the judgments vacating and remanding the cases because the lower courts did not consider whether those wetlands have a significant nexus to navigable waters.

The dissenters would affirm the judgments of the U.S. Court of Appeals for the Sixth Circuit in both cases, arguing that the Corps' determination to treat the Rapanos and Carabell wetlands as within its jurisdiction was based on a reasonable interpretation of Clean Water Act §404. Justice Stevens' opinion finds no need for either the plurality's new test or Justice Kennedy's "significant nexus" test. It describes the Rapanos and Carabell wetlands as "wetlands that are adjacent to 'navigable bodies of water [or] their tributaries'" that the Corps has found to "play important roles in maintaining the quality of their adjacent waters . . . and consequently in the waters downstream."[20] The opinion accuses the plurality of disregarding the fundamental purpose and significance of the Clean Water Act[21] and accuses both the plurality and Justice Kennedy of seeking to "replace regulatory standards that have been in place for over 30 years" with "judicially crafted" rules.[22]

Revising Regulations

Justice Roberts, in his brief concurring opinion, chastises the Corps for not revising its regulations after SWANCC, and Justice Breyer, in his brief separate dissenting opinion, urges the Corps now to write new regulations "to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review)."[23]

It is difficult to see how any revised regulations the Corps might have promulgated based on the SWANCC opinion would have averted the discordant views of the Justices' opinions in Rapanos and Carabell. However, whether it is possible for new Corps regulations after Rapanos and Carabell to avoid many years of what Justice Breyer describes as "ad hoc determinations that run the risk of transforming scientific questions into matters of law"[24] remains to be seen.

Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & Milburn LLP. Judith Wallace, an associate at the firm, assisted in the preparation of this article.

Reprinted with permission from the June 23, 2006 edition of the New York Law Journal
© 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. 


[1] US — , 126 S. Ct. 1843 (May 15, 2006).

[2] 376 F3d 629 (6th Cir. 2004), vacated and remanded, — US — (June 19, 2006).

[3] 391 F3d 704 (6th Cir. 2004) vacated and remanded, — US — (June 19, 2006).

[4] 33 USC §1341.

[5] Conditions are being imposed on this hydropower facility and many others like it for the first time decades after the Clean Water Act was enacted because FERC licenses are granted for long terms, and at first many states did not have the ability to evaluate comprehensively the effect of dams and attempt to impose conditions. The long license terms also make the question of conditions a high-stakes issue for states and operators.

[6] 2005 Me. 27, 868 A.2d 210 (2005).

[7] This rationale was not briefed by the parties and was disavowed by the Maine DEP in the U.S. Supreme Court.

[8] South Florida Water Management District v. Miccosukee Tribe, 541 US 95 (2004), addressed "discharge[s] of pollutants" under §402 of the Clean Water Act.

[9]  511 US 700 (1994).

[10] Clean Water Act §502(16), 33 U.S.C. § 1362(16). ("The term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.").

[11] 126 SCt at 1849-50.

[12] 126 SCt at 1851.

[13] 126 SCt at 1852.

[14] 126 SCt at 1850 (quoting S. Rep. No. 92-414, p. 69 (1971).

[15] 126 SCt at 1853.

[16] 531 US 159 (2001). We wrote about the SWANCC case in "Two Recent Supreme Court Cases: Up in the Air and Down in the Water," New York Law Journal, April 27, 2001, at 3:1.

[17] Slip op. at 3. Justice Scalia later implies that the Corps is regulating "transitory puddles or ephemeral flows of water." Slip op. at 15.

[18] Slip op. at 24.

[19] Slip op. at 23.

[20] Slip op. at 10 (citations omitted).

[21] Slip op. at 19.

[22] Slip op. at 14, 22.

[23] Slip op. at 2

[24] Slip op. at 2.

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