A real covenant is a promise or obligation by a landholder that limits their use of the property, either requiring a specific act to be or not to be performed. If the covenant demands action, it is an affirmative covenant; if the covenant prohibits action, it is a negative covenant. Some examples include a covenant that requires the homeowner to keep trees trimmed (affirmative) or forbids a homeowner from building a fence (negative).
The Clean Water Act protects the nation’s navigable waters in part by requiring state certification for dams which involve “discharge” into navigable waters. What is the definition of “discharge” under Section 401 of the Clean Water Act, given the precedential force of a previous Supreme Court ruling on Section 402 of the Clean Water Act which stipulates that the term “discharge” requires the addition of water from another body of water?
Section 401 of the Clean Water Act requires that a facility requiring a federal license, such as a nuclear power plant, must receive state water quality certification when it engages in activities “which may result in any discharge” into lakes and rivers. In this case, the Supreme Court will decide whether water flowing through hydroelectric dams constitutes a “discharge.” Petitioner Warren argues that the mere flow of water through an existing dam does not constitute a discharge on the grounds that the Supreme Court had previously held in the Miccosukee case that the term “discharge” requires an addition of water to the existing flow from a distinct body of water, and thus does not refer to the removal and replacement of water from and to the same body of water. Florida Water Mgmt. Dis. v. Miccosukee Tribe, 541 U.S. 95 (2004). Respondent Maine Board of Environmental Protection and other respondents contend that state water quality certification is required for dams because the definition of discharge used in the Miccosukee case can be distinguished from this case via two main avenues. First, respondents argue that Miccosukee dealt with Section 402 of the Clean Water Act, and is not necessarily binding in this case. Congress’ intent in enacting Section 402, respondents argue, was to regulate pollutants added to the nation’s waters, while Section 401 was aimed at water regulation generally and as such the definition of discharge in Section 401 includes water flowing through dams. Respondents also attempt to distinguish the Miccosukeerequirement of an addition of water to the existing flow of water by interpreting “discharge” under the plain meaning of the term. The definition of “discharge,” respondents claim, includes the Miccosukee requirement, but is not limited by it; hydroelectric dams are thus subject to state regulation because the more expansive plain meaning of “discharge” includes the discharge of water from a dam even without an addition to the flow. The resolution of the conflicting definitions followed by Miccosukee and state environmental protection boards will have far-reaching effects on the profitability and efficiency of hydroelectric dams throughout the nation, energy production generally, and the environment.
Does the mere flow of water through an existing dam constitute a “discharge” under Section 401, 33 U.S.C. 1341, of the Clean Water Act, despite the Supreme Court’s 2004 holding in South Florida Water Management District v. Miccosukee Tribe of Indians that a discharge requires the addition of water from a distinct body of water?
Petitioner S.D. Warren Company (“Warren”), a subsidiary of South African Pulp and Paper, owns and operates five hydroelectric dam projects on the Presumpscot River in Cumberland County, Maine. S.D. Warren Company v. Maine Board of Environmental Protection, 2005 ME 27 at 2.
See: Rule in Shelley’s Case.
[Last reviewed in June of 2024 by the Wex Definitions Team]
A taking occurs when the government seizes private property for public use. It may be a physical taking, where the government occupies or acquires the property, or a regulatory taking, where government restrictions limit property use so severely that it becomes the equivalent of a physical seizure.
A tenancy in common (TIC) is one of three types of concurrent estates (defined as an estate that has shared ownership, in which each owner owns a share of the property). The other two types are a joint tenancy and a tenancy by the entirety. A TIC typically has no right of survivorship.
Trespass is knowingly entering another owners’ property or land without permission, which encroaches on the owners’ privacy or property interests. There are many laws relating to trespass.
Voluntary waste, also referred to as affirmative waste, refers to overt and willful acts of destruction performed by a tenant or life tenant that leads to the drop in value of a piece of property by harming the property or depleting natural resources available on the property.
