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News Release 05/16/06

SUPREME COURT SAYS 'STATES DO INDEED HAVE THE RIGHT TO ENSURE WATER PROTECTION LAWS WILL NOT BE VIOLATED'

Washington , D.C. (May 16, 2006)-The U.S. Supreme Court reached a decision yesterday, in one of the most important Clean Water Act cases in the law's 34-year history. The Court ruled that state approval is still needed to ensure that state water protection laws will not be violated.

In the case ( S.D. Warren Co. v Maine Board of Environmental Protection) , Warren asked the Federal Energy Regulatory Commission to renew its federal licenses for five of the hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounded water, which then ran through turbines and was returned to the river on the other side. Warren protested that it was not necessary that he obtain water quality certifications from the Maine Board of Environmental Protection under the Clean Water Act. He claimed that it did not result in any "discharge into" the river, which would require a certification. Section 401 of the Clean Water Act requires state approval of "any activity" which may result in any discharge into the nation's navigable waters.

In a decision delivered by Justice Souter, the Supreme Court held, "The issues in this case is whether operating a dam to produce hydroelectricity 'may result in any discharge into the navigable waters' of the United States. If so, a federal license under Section 401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed."

"The opinion of the U. S. Supreme Court is a sweeping affirmation of the states authority under section 401 to protect their waters," says John Cooper, President of the Association of Fish and Wildlife Agencies and Secretary of the South Dakota Game, Fish and Parks Department. "Thirty-five states, including the Association of Fish and Wildlife Agencies, signed a brief in support of Maine 's authority to approve dams in its rivers under the Clean Water Act.

The Court's ruling was crucial in maintaining the state's authority to require, for example, a minimum stream flow in the bypassed portions of the river, to allow passage for various migratory fish and eels, and to regulate temperature and oxygen levels in the water. Without state oversight, the operation of dams could significantly degrade the chemical, biological and physical integrity of the water impacting fish, wildlife and their habitat.

The Court will soon rule on two other cases under section 404 of the Act that were originally argued the same day as the Warren case. The cases focus on developers who want to construct a condominium development ( Carabell v United States ) and a shopping mall ( Rapanos v United States ) in Michigan wetlands. The Court's decision in these two cases are expected to clarify the federal government's role in protecting state wetlands, a partner needed to maintaining healthy fish and wildlife populations and their habitats.

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The Association of Fish and Wildlife Agencies -the organization that represents all of North America's fish and wildlife agencies-promotes sound management and conservation, and speaks with a unified voice on important fish and wildlife issues. Found on the web at www.fishwildlife.org .