PUD No. 1 of Jefferson County v. Washington Department of Ecology
511 U.S. 700 (1994)

  • Clean Water Act 401(a)(1) requires a permit for any activity that may result in any discharge into navigable waters. 401(d) provides that such permits shall set forth effluent limitations and other limitations necessary to ensure that the applicant complies with appropriate requirements of State law.
  • PUD was trying to build a hydroelectric dam on the Dosewallips River in Washington State.
    • In order to do that, they needed Federal permit from the Federal Energy Regulatory Commission.
    • Since they needed a Federal permit, they were required to obtain a State certification pursuant to Clean Water Act 401.
  • Turns out, the Dosewallips River is home to lots of salmon, and damming it could potentially reduce the water flow rate to the point where the salmon would die.
  • Washington State issued a permit, but imposed the condition that a minimum flow rate must be maintained to protect downstream fish stocks.
    • Washington Department of Ecology (WDE) had done a scientific study of the minimum flow rates necessary.
  • PUD sued, arguing that the State had exceeded their authority in imposing conditions that were unrelated to putting pollutants into the river.
    • It's the Clean Water Act, not the Lots of Water Act. Since PUD was not dumping anything into the river, how could the possibly violate the law?
    • "The Clean Water Act regulates water quality not water quantity."
  • The Washington State Administrative Appeals Board rejected the conditions on the permit. WDE appealed.
    • The Appeals Board found that the minimum flow rate requirement was designed to enhance, not maintain, fish stocks, and therefore it exceeded WDE's authority.
  • The Appellate Court reversed. PUD appealed.
    • The Appellate Court found that the minimum flow rate requirement was to protect fish stocks and was therefore authorized under Washington State law.
  • The Washington Supreme Court affirmed. PUD appealed.
    • The Washington Supreme Court found that the anti-degradation provisions of the State's water quality standards required the imposition of minimum flow rates.
    • The Court also found that Clean Water Act 401(d) allows the State to impose conditions based on the Clean Water Act as well as "any other appropriate requirement of State law."
      • Basically, the Clean Water Act confers on States the power to "consider all State action related to water quality in imposing conditions on 401 certificates."
  • The US Supreme Court affirmed.
    • The US Supreme Court found that 401(d) provides that any certification shall set forth "any effluent limitations and other limitations necessary to assure that any applicant" will comply with the Clean Water Act and applicable State law.
      • The key finding is that 401(d) applies to applicants and not discharges. Therefore, it allows the State to assure compliance with "any other appropriate requirement of State law."
      • EPA's conclusion that activities and not merely discharges must comply with State water quality standards is a reasonable interpretation of 401 and is therefore entitled to deference from the courts.
    • The Court found that maintaining flow rates is an appropriate requirement of State law because Clean Water Act 303 says that State water quality standards must consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.
      • In this case, a salmon run was the designated use of the river, so rules that maintain the salmon run are covered.
      • Water quantity can be related to water quality because a sufficient lowering of the water quantity in a body of water could destroy its designated uses, which is what the Clean Water Act is designed to prevent.
  • In a dissent it was argued that the plain language of 401(a)(1) shows that the Clean Water Act was limited to pollutants, and that 401(d) should be read to be limited to applicable State laws related to discharges of pollutants.