Pud No.

1 OF JEFFERSON COUNTY V. WASHINGTON DEPARTMENT OF ECOLOGY 511. U.S. 700 (1994)

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Nature of the Case

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Facts

A 1987 amendment to the Clean Water Act makes clear that §303 also contains an 'antidegradation policy' -- that is, a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation. The State of Washington (D) has adopted comprehensive water quality standards intended to regulate all of the State's navigable waters. States are responsible for enforcing water quality standards on intrastate waters. Section 401 of the Act requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters. An applicant for a federal license or permit to conduct any activity 'which may result in any discharge into the navigable waters' must obtain from the State a certification 'that any such discharge will comply with the applicable provisions of sections [1311, 1312, 1313, 1316, and 1317 of this title].' Any limitations included in the certification become a condition on any federal license. Ps want to build a hydroelectric project on the Dosewallips River. It would be located just outside the Olympic National Park on federally owned land. It would divert water from a 1.2-mile reach of the river (the bypass reach), run the water through turbines to generate electricity, and then return the water to the river below the bypass reach. Ps must get a Federal Energy Regulatory Commission (FERC) license to build or operate the Project. Ps are also required to obtain state certification of the project pursuant to §401 of the Clean Water Act. The Dosewallips supports two species of salmon, coho, and chinook, as well as steelhead trout. The project was to include a diversion dam and a fish ladder. Depending on the season, this would leave a residual minimum flow of between 65 and 155 cfs in the river. D issued a § 401 water quality certification imposing a variety of conditions on the project, including a minimum stream flow requirement of between 100 and 200 cfs depending on the season. A state administrative appeals board determined that the minimum flow requirement was intended to enhance, not merely maintain, the fishery, and that the certification condition, therefore, exceeded D's authority under state law. The State Superior Court concluded that D could require compliance with the minimum flow conditions. The Superior Court also found that D had imposed the minimum flow requirement to protect and preserve the fishery, not to improve it and that this requirement was authorized by state law. The Washington Supreme Court held that the antidegradation provisions of the State's water quality standards require the imposition of minimum stream flows. The court concluded that § 401(d) confers on States power to 'consider all state action related to water quality in imposing conditions on section 401 certificates.' The Supreme Court granted certiorari.