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The State Role in the Federal Licensing of Hydropower Dams: S.D. Warren Co. v. Maine Board of Environmental Protection

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Abstract:

On May 15, 2006, the U.S. Supreme Court decided S.D. Warren Co. v. Maine Board of Environmental Protection, unanimously holding that states, through water quality certification under Section 401 of the Clean Water Act, can impose conditions on Federal Energy Regulatory Commission licensing (or relicensing) of hydropower facilities. The Court may have taken the case, involving a technical issue of statutory construction, to indulge its continuing interest in questions of federal-state allocation of authority under federal environmental statutes and elsewhere. States and environmental groups view Section 401 as an important tool for conditioning the construction and operation of federally licensed projects, and had feared that an adverse decision in S.D. Warren would hinder the ability of states to require measures to ameliorate the harmful effects of hydropower dams on water quality and aquatic life.