Celebrate Clean Water: The Clean Water Act’s Sleeper Provision– Section 401

In his capacity as Director of American Rivers’ Hydropower Reform Campaign John Seebach has a great perspective on how an underappreciated section of the Clean Water Act has had big results. As a continuation of our series celebrating the Clean Water Act, John tells the tale of the surprisingly strong Section 401:

A year and a half ago, I prepared for one the most rewarding experiences of my career by spending a very cold night in a sleeping bag on the street in front of the U.S. Supreme Court. The Court was about to hear three very important Clean Water Act cases, and camping out was my only chance of getting a seat. The other two cases (Rapanos and Carabell) were argued together and got most of the press, but I was there because of the third case, S.D. Warren, which dealt with a more obscure part of the Act. The State of Maine was about to defend its right under Section 401 of the Clean Water Act to make hydropower dam owners comply with water quality standards, and I wasn’t about to let a night spent sleeping on the sidewalk stop me from hearing the arguments firsthand.

In the morning, as we lined up on the steps of the Supreme Court, I thought back to another chilly morning when my graduate school Environmental Law class was discussing the Clean Water Act. With a smile, I remembered every word that my professor had devoted to the topic that I was about to see argued in front of the highest court in the nation:

“We can just skip Section 401; you’re not likely to encounter it in the real world.”

I ended up with a nasty flu, but it was worth it: the Supreme Court sided with Maine, 9-0. That’s great news for rivers, because Section 401 of the Clean Water Act is one of the most powerful river protection tools around. Here’s how it works: If a power company wants to operate a hydropower dam, it needs to get a license from the Federal Energy Regulatory Commission (FERC) first. This license sets the rules for how the dam will be operated, and once it’s been issued, those rules won’t change for another 30-50 years.

Federal laws trump state laws, so until the Clean Water Act was passed, states had almost no say in how hydropower dams were operated and how they might affect the rivers that flow through their backyards. This is no small matter, as hydropower facilities are a major source of water pollution. A hydropower dam can alter water temperature and concentrations of dissolved gases to unhealthy levels, stop fish from swimming up- or downstream, and put the river’s water in a pipe, leaving miles and miles of river nearly – sometimes even completely – dry. Section 401 of the Clean Water Act was intended to give states their rivers back, as Senator Edmund Muskie explained on the Senate Floor in 1970:

“No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.”

For rivers with hydropower dams, the Clean Water Act has been a phenomenal success. States have used this authority to require dam owners to keep enough water in rivers to support fish and wildlife, as well as fishing and boating. They’ve required power companies to install modern equipment that keeps water temperature and dissolved gases at levels that will no longer harm native fish and wildlife. They’ve even made dam owners install fish passage, opening up many miles of habitat that had been blocked, in some cases for generations.

There’s still plenty of work to be done, though. Many projects still have licenses that were issued before the Clean Water Act passed in 1972. That means that there are still dozens of projects — which, together, make up a little more than 40% of federally-licensed hydropower capacity — that have never had to comply with state water quality standards. The best part: most of those rivers are scheduled to receive new licenses sometime in the next seven years.

That’s an enormous opportunity to clean up our rivers. I can think of no better way to celebrate the Clean Water Act’s birthday than to celebrate the successes that are yet to come.