S.D. Warren Co. v. Maine Board of Environmental Protection


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?

Oral argument: 
February 21, 2006

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