ELR Citation: ELR 21295
No(s). 58272-6 (Wash. Apr 1, 1993)

The court holds that the Federal Water Pollution Control Act (FWPCA) authorizes a state agency to include base-flow requirements in a water quality certificate required under §401 for the construction of a hydroelectric facility to thwart water quality degradation, and federal law does not preempt the state agency from including minimum streamflow conditions in a §401 certificate. The court holds that the FWPCA authorizies a state agency to include streamflow conditions in the §401 certificate, because they are necessary to assure compliance with the state's water quality standards. FWPCA §401 requires states to certify compliance with state water quality standards, and the state's standards prohibit the degradation of the state's waters, fish habitat, and spawning. Biologists determined that instream flows proposed by the hydroproject's proponents risked such degradation, and that the agency could not issue the §401 certificate without imposing more protective instream-flow conditions.

The court holds that human-induced alteration of streamflow levels is "pollution" under FWPCA §502(19). The concept of pollution in the FWPCA is extremely broad. The court also holds that §401(d)'s requirement that §401 certificates must include limitations to assure compliance with "any other appropriate requirement of State law" refers not only to state water quality standards, but includes a state statutory requirement for retaining base flows to preserve wildlife and other environmental values. The phrase is a congressional authorization to the states to consider all state action related to water quality in imposing conditions on §401 certificates.

The court holds that the Federal Power Act (FPA) does not preempt the state's imposition of a base-flow condition in the §401 certificate, because the federal preemption doctrine does not apply where a state is acting to fulfill its federally mandated role in the comprehensive federal scheme embodied in the FWPCA. The agency action in question lacks the character of state action required for federal preemption to apply: the §401 certificate is a federal permit required under the FWPCA, the sources of streamflow limitation at issue are state laws that are integrated into the FWPCA, and federal involvement in the development of state water quality standards is extensive. Moreover, the well-established principles regarding federal preemption do not support finding preemption in this case. There is no basis for finding field preemption, because the comprehensive scheme of regulation comprising the FWPCA and the FPA presupposes rather than precludes the exercise of state authority. There also is no basis for finding actual conflict between the state's action and the FPA. Finally, the court holds that the Pollution Control Hearings Board erred in finding that the state agency's instream-flow rates would enhance the fishery in question. The agency's intent was clearly to preserve, not to enhance, the fishery and the Board's reasoning is insupportable.

Counsel for Respondents
Jay J. Manning, William C. Frymire, Ass't Attorneys General
Hwy.-Licenses Bldg.
P.O. Box 40100, Olympia WA 98504
(206) 753-6220

Counsel for Appellants
Albert R. Malanca, Kenneth G. Kieffer
Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim
2101 One Union Sq., Seattle WA 98101
(206) 447-9505