S.D. Warren v. Maine
Board of Environmental Protection
On May 15, 2006, the United States Supreme Court issued its opinion
in S.D. Warren v. Maine Board of Envtl. Protection, 126
S. Ct. 1843. In that case, the Court considered the definition of
"discharge" within the context of water quality certification
pursuant to section 401 of the Clean Water Act.
Although S.D. Warren addressed a hydroelectric project,
the Court's holding may be applied outside of hydroelectric projects.
If the case is so applied, it could significantly expand the universe
of activities subject to 401 certification, and, as a result, subject
to the California Environmental Quality Act (CEQA).
The United States Army Corps of Engineers (Corps) implements both
the Clean Water Act and the Rivers & Harbors Act. With some
exceptions, the Corps has taken the position that section 401 of
the Clean Water Act does not require water quality certification
from the State Water Resources Control Board (SWRCB) for activities
only requiring authorizations under the Rivers & Harbors Act
(and not under the Clean Water Act). The Corps arrived at this interpretation
by concluding that projects requiring authorizations under the Rivers
& Harbors Act (and not under the Clean Water Act) do not result
in a "discharge" as section 401 of the Clean Water Act
uses that term.
However, S.D. Warren interprets "discharge" more
expansively, in its "common" sense. As a result, the Corps
may no longer have the discretion to interpret "discharge"
not to include activities that only require permits under the Rivers
& Harbors Act.
It is not clear that the Corps or the SWRCB have focused on this
impact of S.D. Warren. However, project proponents need
to be aware that S.D. Warren appears to expand the universe of activities
subject to 401 certification to include those activities that the
Corps permits under the Rivers & Harbors Act but not under the
Clean Water Act. One of the reasons why the applicability of section
401 of the Clean Water Act may be of concern is that the state's
issuance of water quality certification triggers CEQA. Thus, 401
certification has the potential to substantially expand the environmental
compliance process for a project.
Please contact us if you have questions or want more information.
Please note that the information contained in this article is not
intended to provide legal advice. You should consult with an attorney
and not rely on any information contained herein regarding your
specific situation.
