S.D. Warren Co. v. Maine Board of Environmental Protection - Oral Argument - February 21, 2006

S.D. Warren Co. v. Maine Board of Environmental Protection

Media for S.D. Warren Co. v. Maine Board of Environmental Protection

Audio Transcription for Opinion Announcement - May 15, 2006 in S.D. Warren Co. v. Maine Board of Environmental Protection

Audio Transcription for Oral Argument - February 21, 2006 in S.D. Warren Co. v. Maine Board of Environmental Protection

John G. Roberts, Jr.:

We'll hear argument next in S. D. Warren Company versus Maine Board of Environmental Protection.

Mr. Kayatta.

William J. Kayatta, Jr.:

Mr. Chief Justice, and may it... and may it please the Court--

The Presumpscot River is a single body of water, as that term was used in last year's Miccosukee decision.

Warren's position is that the flowing of that single body of water through Warren's five dams is not a discharge into that same single body of water.

In arguing that certification under Section 401 of the Clean Water Act is, therefore, not required, we are not maintaining that the State either has, or should have, no voice on matters of water quality in connection with the relicensing of these dams.

In 1986, Congress took care to ensure States a forceful, but not controlling, voice on environmental issues, including water quality issues, in all hydropower relicensing proceedings.

Congress was very specific about its intent in 1986, and it intended to give States a strong voice, but not a veto.

So, we feel the case... that the States clearly have that voice.

Now--

John G. Roberts, Jr.:

Mr. Kayatta, if I took a drum of water out of the river and put it in the garage next to the river for 5 years, and, 5 years later, came out and poured that drum of water back into the river, is that a discharge into the river?

William J. Kayatta, Jr.:

--Yes, that would be a discharge into the river.

John G. Roberts, Jr.:

How is it different here, where you have the dam restraining the waters for a certain period, and then it's being released later, at a subsequent time?

Why--

William J. Kayatta, Jr.:

Yes.

John G. Roberts, Jr.:

--isn't that also a discharge?

William J. Kayatta, Jr.:

There is... we draw a distinction... and I'm referring just to discharge, I'm not addressing the issue that the Court could get to in another case of whether you actually need a discharge of a pollutant, as to just a discharge into the river... we draw a distinction between actually removing something entirely from the river, exercising control over it.

Your hypothetical, Mr. Chief Justice, had it for 5 years.

In that situation, one could say that there may be a discharge into the river when an activity is proposed to pour that back into the river.

In a... in the dams... the dams, the water continuously flows down.

The water never leaves the single body of water called the Presumpscot.

And that's the distinction that we would draw.

John G. Roberts, Jr.:

Even though it's retained in a... what... an impoundment pool, or whatever, behind--

William J. Kayatta, Jr.:

Well, the dams slow down the water as it comes down the Presumpscot.

And because the dams slow down the water, then the river widens in an area called an impoundment area.

But the... there is a continuous motion leaving the dam in the same amount of water that comes into the area above the dam.

Anthony M. Kennedy:

Well, this--

John G. Roberts, Jr.:

--So, you think it's a different case if it's not a continuous motion; in other words, that the water is released... you know, it's released on the weekends, but, during the week, it has to build up in the... you would draw a distinction and say there's a discharge, in that case?

William J. Kayatta, Jr.:

Mr. Chief Justice, the distinction we would draw would be when the exercise over the water, and the separation of the water from the river, reach the point where it could be said that we're no longer dealing with one unitary body of water, as that term is defined in Miccosukee.

If we--