Pud No. 1 of Jefferson County v. Washington Department of Ecology
511 U.S. 700, 128 L. Ed. 2d 716, 1994 U.S. LEXIS 4271 (1994)
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Rule of Law:
Under Section 401 of the Clean Water Act, a state may condition its water quality certification for a federal license on any limitations, including minimum stream flow requirements, necessary to ensure the proposed project complies with state water quality standards, including the designated uses of a water body.
Facts:
- The City of Tacoma and PUD No. 1 of Jefferson County (petitioners) proposed to build the Elkhorn Hydroelectric Project on the Dosewallips River in Washington.
- The project planned to divert water from a 1.2-mile reach of the river, pass it through turbines to generate electricity, and then return the water to the river downstream from the diversion.
- The Dosewallips River supports populations of coho and chinook salmon, as well as steelhead trout.
- Under Washington state law, the Dosewallips River is designated as a 'Class AA' water body, whose characteristic uses include 'salmonid migration, rearing, spawning, and harvesting.'
- The project's original design would have diverted approximately 75% of the river's water, significantly reducing the flow in the bypass reach.
- To receive a required federal license from the Federal Energy Regulatory Commission (FERC), the petitioners first needed to obtain a § 401 water quality certification from the Washington Department of Ecology (respondent).
- After conducting a study, the Washington Department of Ecology determined that a specific minimum stream flow was necessary to protect the river's fishery.
- The respondent conditioned its § 401 certification on the petitioners' agreement to maintain a minimum stream flow of between 100 and 200 cubic feet per second, depending on the season.
Procedural Posture:
- PUD No. 1 and the City of Tacoma applied to the Washington Department of Ecology for a § 401 water quality certification for their proposed hydroelectric project.
- The Department of Ecology issued the certification with a condition requiring the project to maintain specified minimum stream flows.
- The petitioners appealed the condition to a state administrative appeals board, which ruled that the agency had exceeded its authority under state law.
- On further appeal, the Washington State Superior Court reversed the administrative board and reinstated the minimum flow condition.
- The petitioners appealed to the Supreme Court of Washington, which affirmed the Superior Court's decision, holding that the condition was authorized by the Clean Water Act.
- The U.S. Supreme Court granted the petitioners' writ of certiorari to resolve a conflict among state courts on the issue.
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Issue:
Does Section 401 of the Clean Water Act authorize a state to impose a minimum stream flow requirement as a condition of its water quality certification for a hydroelectric project, in order to protect a state-designated use for fish habitat?
Opinions:
Majority - Justice O'Connor
Yes. Section 401 of the Clean Water Act authorizes a state to impose a minimum stream flow requirement as a condition of certification. Section 401(d) grants states broad authority to impose conditions on an entire activity or project, not merely on its specific discharges, to ensure compliance with state water quality standards. State water quality standards, established under § 303, consist of two distinct but related components: designated uses and water quality criteria. A state may enforce either component, and a condition designed to protect a designated use, such as a fishery, is a valid exercise of state authority. The court rejected the argument that the CWA distinguishes between water 'quality' and 'quantity,' holding that quantity is inextricably linked to quality and to the biological and physical integrity of the water, which the Act explicitly protects.
Dissenting - Justice Thomas
No. A state's authority under § 401 is limited to addressing potential 'discharges' from a project, and the conditions it imposes must be related to those discharges. A minimum stream flow requirement is a limitation on water intake, which is the opposite of a discharge, and therefore exceeds the state's authority under the Act. The majority's interpretation renders the 'discharge' language in § 401(a)(1) superfluous and gives states nearly limitless power to enforce vague 'use' designations without being tied to objective 'criteria.' This effectively grants states a veto power over federally licensed hydroelectric projects, which conflicts with the comprehensive regulatory scheme of the Federal Power Act and FERC's exclusive authority to balance national energy needs with environmental protection.
Concurring - Justice Stevens
Yes. The statutory text of the Clean Water Act is plain and unambiguous. Not a single word in the Act constrains a state's power to regulate its own waters more stringently than federal law requires. In fact, the CWA explicitly recognizes and preserves the states' ability to impose stricter water quality standards.
Analysis:
This decision significantly broadened the scope of state authority under Section 401 of the Clean Water Act, empowering states to regulate not just pollution discharges but also the broader operational aspects of federally licensed projects that affect water bodies. By rejecting an artificial distinction between water quality and quantity, the Court allows states to use § 401 certification to protect ecosystems, fisheries, and recreational uses. This ruling gives states substantial leverage over the construction and operation of facilities like dams, pipelines, and terminals, establishing the § 401 certification as a powerful tool for state-level environmental protection.
