On May 15, 2006, the U.S. Supreme Court decided S.D. Warren Co. v. Maine Board of Environmental Protection , one of two important Clean Water Act (CWA) cases heard in its 2005-2006 term. The decision addressed a fundamental issue as to the role of state water quality concerns in the licensing (or relicensing) of hydropower facilities by the Federal Energy Regulatory Commission (FERC). In brief, the Court held that the state where the hydropower facility is located, through water quality certification under CWA Section 401, can impose conditions on such licensing. The act requires a FERC-issued license for the construction, operation, and maintenance of hydropower dams located in any navigable water of the United States. S.D. Section 401 conditioning is an important tool. Examples include decisions under several federal environmental statutes.
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.