In a decision hinging on the definition of the word "discharge", the Supreme Court handed down a decision that upholds a state's right to regulate water bodies within its boundaries.
NYTimes The Supreme Court ruled unanimously today that states have broad authority to regulate their streams under the federal Clean Water Act, even in situations that do not involve control of "pollution" in the strict sense of the word.
The justices ruled in favor of the Maine Board of Environmental Protection and against the S.D. Warren Company, owner of five hydroelectric dams along the Presumpscot River that provide power for a company paper mill.
That's right, all of the Justice's ruled in favor of the State's environmental board.
The Supreme Court upheld the Maine Supreme Judicial Court's broad definition of "discharge" as:
"water that has left its natural state and has been subjected to man-made control"
Souter had this to say about the ruling:
Just because the company does not add anything to the water, it cannot be said that the river is unchanged because of the company, Justice Souter found. "Warren itself admits that its dams 'can cause changes in the movement, flow, and circulation of a river,' " he wrote.
The ruling seemed to focus soley on the original definition of discharge that was written into the law. What does this mean for the much-anticipated upcoming ruling regarding the types of water bodies the Clean Water Act has control over?
SourceThe Clean Water Act has historically covered arteries and tributaries that are vital to the health of the watershed as a whole. The new challenge to the Clean Water Act is coming from developers that want small intermittent or ephemeral streams to be excluded from the rules of the Clean Water Act. One developer filled a wetland with sand and then claimed that since a "man made" earthen berm separated this wetland from its neighboring stream, it was not afforded the protections provided by the Clean Water Act.
This challenge to the act has made it all the way to the Supreme Court and will be decided in the coming months.
...snip...
As Supreme Court Justice Souter aptly noted: "All you've got to do is dump the pollutant far enough up the water system to get away scot-free." This would mean more than half of all streams and over one-fifth of all wetlands would not be covered by the Clean Water Act, and would be fair game for oil dumping, sewage, or whatever you need to get rid of.
I'm not sure. But, let's hope that Justices will use the common sense approach they used in today's ruling and continue to afford our waterways the protections that have served us so well since the Act's passage in the 1970's.