ELR Citation: ELR 20945
No(s). 92-1911 (U.S. May 31, 1994)

The Court holds that Washington State may include minimum stream flow requirements intended to protect migrating salmon and trout in a hydroelectric project's certification under §401 of the Federal Water Pollution Control Act (FWPCA) insofar as necessary to enforce a designated use contained in a state water quality standard adopted under FWPCA §303. The Court first holds that §401(d) authorizes the state to impose nondischarge limitations on the project to assure compliance with various provisions of the FWPCA and with "any other appropriate requirement of State law." The Court holds that ensuring compliance with §303—one of the reasons the state asserts it imposed the minimum stream flow requirement—is a proper function of the §401 certification. Although §303 is not one of the statutory provisions listed in §401(d), the statute allows states to impose limitations to ensure compliance with §301, which incorporates §303 by reference. The Court also holds that limitations to assure compliance with state water quality standards promulgated under §303 are permitted by §401(d)'s reference to "any other appropriate requirement of State law."

Turning to petitioners' argument that the state may only require that the project comply with specific numerical criteria, and not with a designated use, the Court holds that pursuant to §401(d) the state may require that a permit applicant comply with both the designated uses and the water quality criteria of the state standards. Water quality standards promulgated pursuant to §303 must consist of designated uses of navigable waters and water quality criteria for such waters based on such uses. A project that does not comply with a designated use of the water does not comply with the applicable water quality standards. The Court notes that the U.S. Environmental Protection Agency (EPA) has not interpreted §303 to require states to protect designated uses exclusively through enforcement of numerical criteria. And requiring states to enforce only the criteria component of their water quality standards would require states to study each individual surface water to a level of great specificity to ensure that the criteria applicable to that water are sufficiently detailed and individualized to fully protect the water's designated uses. The Court holds that the state's minimum stream flow condition is also a proper application of the state and federal antidegradation regulations, as it ensures that an existing instream water use will be maintained and protected. The Court rejects petitioners' argument that the FWPCA does not allow regulation of water quantity, because the Act's definition of pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water" encompasses the effects of reduced water quantity. Also, §304 expressly recognizes that water pollution may result from "changes in the movement, flow, or circulation of any navigable waters . . . including changes caused by the construction of dams." This concern with the flowage effects of dams and other diversions is also embodied in EPA's regulations, which expressly require existing dams to be operated to attain designated uses.

Turning to petitioners' argument that FWPCA §§101(g) and 510(2) exclude regulation of water quantity from coverage of the Act, the Court holds that §§101(g) and 510(2) preserve the authority of each state to allocate water quantity as between users; the provisions do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. Moreover, the certification in this case does not purport to determine petitioners' proprietary right to water; it merely determines the nature of the use to which that proprietary right may be put under the FWPCA, if and when it is obtained from the state.

Finally, the Court holds that no conflict exists in this case with the licensing authority of the Federal Energy Regulatory Commission (FERC), because FERC has not yet acted on petitioners' license application, and FERC may eventually deny petitioners' application. Also, given that FERC is required to give equal consideration to the protection of fish habitat when deciding whether to issue a license, it is possible that any FERC license would contain the same conditions as the state §401 certification.

Dissenting, Justice Thomas, joined by Justice Scalia, would hold that the FWPCA limits state authority in the certification process to ensuring that discharges from proposed facilities will comply with the FWPCA.

[Briefs in this litigation are published at ELR PEND. LIT. 66302.]

Counsel for Petitioners
Howard E. Shapiro
Van Ness, Feldman & Curtis
1050 Thomas Jefferson St. NW, 7th Fl., Washington DC 20007
(202) 298-1800

Counsel for Respondents
Christine Gregoire, Attorney General
Attorney General's Office
P.O. Box 40100, Olympia WA 98504
(206) 753-6207