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
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.