OCTOBER TERM, 1993
Syllabus
PUD NO. 1 OF JEFFERSON COUNTY ET AL. v.
WASHINGTON DEPARTMENT OF ECOLOGY ET AL.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON No. 92-1911.
Argued February 23, 1994-Decided May 31, 1994
Section 303 of the Clean Water Act requires each State, subject
to federal approval, to institute comprehensive standards
establishing water quality goals for all intrastate waters, and
requires that such standards "consist of the designated uses of the
navigable waters involved and the water quality criteria for such
waters based upon such uses." Under Environmental Protection Agency
(EPA) regulations, the standards must also include an
antidegradation policy to ensure that "[e]xisting instream water
uses and the level of water quality necessary to protect [those]
uses [are] maintained and protected." States are required by § 401
of the Act to provide a water quality certification before a
federal license or permit can be issued for any activity that may
result in a discharge into intrastate navigable waters. As relevant
here, the certification must "set forth any effluent limitations
and other limitations ... necessary to assure that any applicant"
will comply with various provisions of the Act and "any other
appropriate" state law requirement. § 401(d). Under Washington's
comprehensive water quality standards, characteristic uses of
waters classified as Class AA include fish migration, rearing, and
spawning. Petitioners, a city and a local utility district, want to
build a hydroelectric project on the Dosewallips River, a Class AA
water, which would reduce the water flow in the relevant part of
the river to a minimal residual flow of between 65 and 155 cubic
feet per second (cfs). In order to protect the river's fishery,
respondent state environmental agency issued a § 401 certification
imposing, among other things, a minimum stream flow requirement of
between 100 and 200 cfs. A state administrative appeals board ruled
that the certification condition exceeded respondent's authority
under state law, but the State Superior Court reversed. The State
Supreme Court affirmed, holding that the antidegradation provisions
of the State's water quality standards require the imposition of
minimum stream flows, and that § 401 authorized the stream flow
condition and conferred on States power to consider all state
action related to water quality in imposing conditions on § 401
certificates.
Held: Washington's minimum stream flow requirement is a
permissible condition of a § 401 certification. Pp. 710-723.
701
(a) A State may impose conditions on certifications insofar as
necessary to enforce a designated use contained in the State's
water quality standard. Petitioners' claim that the State may only
impose water quality limitations specifically tied to a "discharge"
is contradicted by § 401 (d)'s reference to an applicant's
compliance, which allows a State to impose "other limitations" on a
project. This view is consistent with EPA regulations providing
that activities-not merely dischargesmust comply with state water
quality standards, a reasonable interpretation of § 401 which is
entitled to deference. State standards adopted pursuant to § 303
are among the "other limitations" with which a State may ensure
compliance through the § 401 certification process. Although § 303
is not specifically listed in § 401(d), the statute allows States
to impose limitations to ensure compliance with § 301 of the Act,
and §301 in turn incorporates §303 by reference. EPA's view
supports this interpretation. Such limitations are also permitted
by § 401 (d)'s reference to "any other appropriate" state law
requirement. pp. 710-713.
(b) Washington's requirement is a limitation necessary to
enforce the designated use of the river as a fish habitat.
Petitioners err in asserting that § 303 requires States to protect
such uses solely through implementation of specific numerical
"criteria." The section's language makes it plain that water
quality standards contain two components and is most naturally read
to require that a project be consistent with both: the designated
use and the water quality criteria. EPA has not interpreted § 303
to require the States to protect designated uses exclusively
through enforcement of numerical criteria. Moreover, the Act
permits enforcement of broad, narrative criteria based on, for
example, "aesthetics." There is no anomaly in the State's reliance
on both use designations and criteria to protect water quality.
Rather, it is petitioners' reading that leads to an unreasonable
interpretation of the Act, since specified criteria cannot
reasonably be expected to anticipate all the water quality issues
arising from every activity that can affect a State's hundreds of
individual water bodies. Washington's requirement also is a proper
application of the state and federal antidegradation regulations,
as it ensures that an existing instream water use will be
"maintained and protected." Pp. 713-719.
(c) Petitioners' assertion that the Act is only concerned with
water quality, not quantity, makes an artificial distinction, since
a sufficient lowering of quantity could destroy all of a river's
designated uses, and since the Act recognizes that reduced stream
flow can constitute water pollution. Moreover, §§ 101(g) and 510(2)
of the Act do not limit the scope of water pollution controls that
may be imposed on users who have obtained, pursuant to state law, a
water allocation. Those provisions preserve each State's authority
to allocate water quantity as between
702
Syllabus
users, but the § 401 certification does not purport to determine
petitioners' proprietary right to the river's water. In addition,
the Court is unwilling to read implied limitations into § 401 based
on petitioners' claim that a conflict exists between the
condition's imposition and the Federal Energy Regulatory
Commission's authority to license hydroelectric projects under the
Federal Power Act, since FERC has not yet acted on petitioners'
license application and since § 401's certification requirement
also applies to other statutes and regulatory schemes.
Pp.719-723.
121 Wash. 2d 179,849 P. 2d 646, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, STEVENS, KENNEDY, SOUTER, and
GINSBURG, JJ., joined. STEVENS, J., filed a concurring opinion,
post, p. 723. THOMAS, J., filed a dissenting opinion, in which
SCALIA, J., joined, post, p. 724.
Howard E. Shapiro argued the cause for petitioners.
With him on the briefs were Michael A. Swiger, Gary D. Bachman,
Albert R. Malanca, and Kenneth G. Kieffer.
Christine O. Gregoire, Attorney General of Washington, argued
the cause for respondents. With her on the briefs were Jay
J. Manning, Senior Assistant Attorney General, and William
C. Frymire, Assistant Attorney General.
Deputy Solicitor General Wallace argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Solicitor General Days, Acting Assistant Attorney General
Schiffer, James A. Feldman, and Anne S. Almy.
*
*Briefs of amici curiae urging reversal were filed for the
American Forest & Paper Association et al. by John R. Molm,
Winifred D. Simpson, and James A. Lamberth; for Niagara Mohawk
Power Corp. by Edward Berlin, Kenneth G. Jaffe, Paul
J.
Kaleta, Brian K. Billinson, and Timothy P. Sheehan; for the
Northwest Hydroelectric Association by Richard M. Glick and Lory
J. Kraut; for Pacific Northwest Utilities by Sherilyn
Peterson and R. Gerard Lutz; and for the Western Urban Water
Coalition by Benjamin S. Sharp and Guy R. Martin.
Briefs of amici curiae urging affirmance were filed for the
State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of
Vermont, and Ronald A. Shems, Assistant Attorney General, Robert
Abrams, Attorney
703
JUSTICE O'CONNOR delivered the opinion of the Court.
Petitioners, a city and a local utility district, want to build a
hydroelectric project on the Dosewallips River in Washington State.
We must decide whether respondent state environmental agency
(hereinafter respondent) properly conditioned a permit for the
project on the maintenance of specific minimum stream flows to
protect salmon and steelhead runs.
General of New York, and Kathleen Liston Morrison, Assistant
Attorney General, Grant Woods, Attorney General of Arizona, Winston
Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney
General of California, Richard Blumenthal, Attorney General of
Connecticut, Charles M. Oberly III, Attorney General of Delaware,
Robert A. Butterworth, Attorney General of Florida, Michael
J. Bowers, Attorney General of Georgia, Robert A. Marks,
Attorney General of Hawaii, Larry EchoHawk, Attorney General of
Idaho, Roland A. Burris, Attorney General of Illinois, Pamela
Fanning Carter, Attorney General of Indiana, Bonnie
J.
Campbell, Attorney General of Iowa, Robert T. Stephan, Attorney
General of Kansas, Chris Gorman, Attorney General of Kentucky,
Michael E. Carpenter, Attorney General of Maine,
J. Joseph
Curran, Jr., Attorney General of Maryland, Scott Harshbarger,
Attorney General of Massachusetts, Frank
J. Kelley, Attorney
General of Michigan, Hubert H. Humphrey III, Attorney General of
Minnesota, Mike Moore, Attorney General of Mississippi, Jeremiah W
Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney
General of Montana, Don Stenberg, Attorney General of Nebraska,
Frankie Sue Del Papa, Attorney General of Nevada, Jeffrey R.
Howard, Attorney General of New Hampshire, Fred DeVesa, Acting
Attorney General of New Jersey, Tom Udall, Attorney General of New
Mexico, Michael F. Easley, Attorney General of North Carolina,
Heidi Heitkamp, Attorney General of North Dakota, Lee Fisher,
Attorney General of Ohio, Susan B. Loving, Attorney General of
Oklahoma, Theodore R. Kulongoski, Attorney General of Oregon,
Ernest D. Preate, Jr., Attorney General of Pennsylvania, Jefferey
B. Pine, Attorney General of Rhode Island, T. Travis Medlock,
Attorney General of South Carolina, Charles W Burson, Attorney
General of Tennessee, Dan Morales, Attorney General of Texas, Jan
Graham, Attorney General of Utah, Stephen D. Rosenthal, Attorney
General of Virginia, Darrell V. McGraw, Jr., Attorney General of
West Virginia, James E. Doyle, Attorney General of Wisconsin,
Joseph B. Meyer, Attorney General of Wyoming, and John Payton,
Corporation Counsel of the District of Columbia; and for American
Rivers et al. by Paul M. Smith.
704
I
This case involves the complex statutory and regulatory scheme
that governs our Nation's waters, a scheme that implicates both
federal and state administrative responsibilities. The Federal
Water Pollution Control Act, commonly known as the Clean Water Act,
86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq., is a
comprehensive water quality statute designed to "restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters." § 1251(a). The Act also seeks to attain "water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife." § 1251(a)(2).
To achieve these ambitious goals, the Clean Water Act
establishes distinct roles for the Federal and State Governments.
Under the Act, the Administrator of the Environmental Protection
Agency (EPA) is required, among other things, to establish and
enforce technology-based limitations on individual discharges into
the country's navigable waters from point sources. See §§ 1311,
1314. Section 303 of the Act also requires each State, subject to
federal approval, to institute comprehensive water quality
standards establishing water quality goals for all intrastate
waters. §§ 1311(b) (l)(C), 1313. These state water quality
standards provide "a supplementary basis ... so that numerous point
sources, despite individual compliance with effluent limitations,
may be further regulated to prevent water quality from falling
below acceptable levels." EPA v. California ex rel. State Water
Resources Control Bd.,
426 U. S. 200, 205, n. 12
(1976).
A state water quality standard "shall consist of the designated
uses of the navigable waters involved and the water quality
criteria for such waters based upon such uses." 33 U. S. C. §
1313(c)(2)(A). In setting standards, the State must comply with the
following broad requirements:
"Such standards shall be such as to protect the public health or
welfare, enhance the quality of water and
705
serve the purposes of this chapter. Such standards shall be
established taking into consideration their use and value for
public water supplies, propagation of fish and wildlife,
recreational [and other purposes.]" Ibid.
See also § 1251(a)(2).
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. Specifically, the Act permits the revision of certain
effluent limitations or water quality standards "only if such
revision is subject to and consistent with the antidegradation
policy established under this section." § 1313(d)(4)(B).
Accordingly, EPA's regulations implementing the Act require that
state water quality standards include "a statewide antidegradation
policy" to ensure that "[e]xisting instream water uses and the
level of water quality necessary to protect the existing uses shall
be maintained and protected." 40 CFR § 131.12 (1993). At a minimum,
state water quality standards must satisfy these conditions. The
Act also allows States to impose more stringent water quality
controls. See 33 U. S. C. §§ 1311(b)(1)(C), 1370. See also 40 CFR §
131.4(a) (1993) ("As recognized by section 510 of the Clean Water
Act[, 33 U. S. C. § 1370], States may develop water quality
standards more stringent than required by this regulation").
The State of Washington has adopted comprehensive water quality
standards intended to regulate all of the State's navigable waters.
See Washington Administrative Code (WAC) 173-201-010 to 173-201-120
(1986). The State created an inventory of all the State's waters,
and divided the waters into five classes. 173-201-045. Each
individual fresh surface water of the State is placed into one of
these classes. 173-201-080. The Dosewallips River is classified AA,
extraordinary. 173-201-080(32). The water quality
706
standard for Class AA waters is set forth at 173-201-045(1). The
standard identifies the designated uses of Class AA waters as well
as the criteria applicable to such waters.1
1 WAC 173-201-045(1) (1986) provides in pertinent part: "(1)
Class AA (extraordinary).
"(a) General characteristic. Water quality of this class shall
markedly and uniformly exceed the requirements for all or
substantially all uses. "(b) Characteristic uses. Characteristic
uses shall include, but not be
limited to, the following:
"(i) Water supply (domestic, industrial, agricultural). "(ii)
Stock watering.
"(iii) Fish and shellfish:
"Salmonid migration, rearing, spawning, and harvesting. "Other
fish migration, rearing, spawning, and harvesting.
"(iv) Wildlife habitat.
"(v) Recreation (primary contact recreation, sport fishing,
boating, and
aesthetic enjoyment).
"(vi) Commerce and navigation. "(c) Water quality criteria
"(i) Fecal coliform organisms.
"(A) Freshwater-fecal coliform organisms shall not exceed a
geometric mean value of 50 organisms/lOO mL, with not more than 10
percent of samples exceeding 100 organisms/100 mL.
"(B) Marine water-fecal coliform organisms shall not exceed a
geometric mean value of 14 organisms/lOO mL, with not more than 10
percent of samples exceeding 43 organisms/100 mL.
"(ii) Dissolved oxygen [shall exceed specific amounts].
"(iii) Total dissolved gas shall not exceed 110 percent of
saturation at any point of sample collection.
"(iv) Temperature shall not exceed [certain levels].
"(v) pH shall be within [a specified range].
"(vi) Turbidity shall not exceed [specific levels].
"(vii) Toxic, radioactive, or deleterious material
concentrations shall be less than those which may affect public
health, the natural aquatic environment, or the desirability of the
water for any use.
"(viii) Aesthetic values shall not be impaired by the presence
of materials or their effects, excluding those of natural origin,
which offend the senses of sight, smell, touch, or taste."
707
In addition to these specific standards applicable to Class AA
waters, the State has adopted a statewide antidegradation policy.
That policy provides:
"(a) Existing beneficial uses shall be maintained and protected
and no further degradation which would interfere with or become
injurious to existing beneficial uses will be allowed.
"(b) No degradation will be allowed of waters lying in national
parks, national recreation areas, national wildlife refuges,
national scenic rivers, and other areas of national ecological
importance.
"(f) In no case, will any degradation of water quality be
allowed if this degradation interferes with or becomes injurious to
existing water uses and causes long-term and irreparable harm to
the environment." 173-201-035(8).
As required by the Act, EP A reviewed and approved the State's
water quality standards. See 33 U. S. C. § 1313(c)(3); 42 Fed. Reg.
56792 (1977). Upon approval by EPA, the state standard became "the
water quality standard for the applicable waters of that State." 33
U. S. C. § 1313(c)(3).
States are responsible for enforcing water quality standards on
intrastate waters. § 1319(a). In addition to these primary
enforcement responsibilities, § 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. 33 U. S. C. § 1341.
Specifically, § 401 requires an applicant for a federal license or
permit to conduct any activity "which may result in any discharge
into the navigable waters" to 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]." 33
U. S. C. § 1341(a). Section 401(d) further provides that "[a]ny
certi-
708
fication ... shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that
any applicant ... will comply with any applicable effluent
limitations and other limitations, under section [1311 or 1312 of
this title] ... and with any other appropriate requirement of State
law set forth in such certification." 33 U. S. C. § 1341(d). The
limitations included in the certification become a condition on any
federal license. Ibid.2
II
Petitioners propose to build the Elkhorn Hydroelectric Project
on the Dosewallips River. If constructed as presently planned, the
facility would be located just outside the Olympic National Park on
federally owned land within the Olympic National Forest. The
project would divert water from a 1.2-mile reach of the river (the
bypass reach), run the
2 Section 401, as set forth in 33 U. S. C. § 1341, provides in
relevant part: "(a) Compliance with applicable requirements;
application; procedures; license suspension
"(1) Any applicant for a Federal license or permit to conduct
any activity including, but not limited to, the construction or
operation of facilities, which may result in any discharge into the
navigable waters, shall provide the licensing or permitting agency
a certification from the State ... that any such discharge will
comply with the applicable provisions of sections 1311, 1312, 1313,
1316, and 1317 of this title.
"(d) Limitations and monitoring requirements of
certification
"Any certification provided under this section shall set forth
any effluent limitations and other limitations, and monitoring
requirements necessary to assure that any applicant for a Federal
license or permit will comply with any applicable effluent
limitations and other limitations, under section 1311 or 1312 of
this title, standard of performance under section 1316 of this
title, or prohibition, effluent standard, or pretreatment standard
under section 1317 of this title, and with any other appropriate
requirement of State law set forth in such certification, and shall
become a condition on any Federal license or permit subject to the
provisions of this section."
709
water through turbines to generate electricity and then return
the water to the river below the bypass reach. Under the Federal
Power Act (FPA), 41 Stat. 1063, as amended, 16 U. S. C. § 791a et
seq., the Federal Energy Regulatory Commission (FERC) has authority
to license new hydroelectric facilities. As a result, petitioners
must get a FERC license to build or operate the Elkhorn Project.
Because a federal license is required, and because the project may
result in discharges into the Dosewallips River, petitioners are
also required to obtain state certification of the project pursuant
to § 401 of the Clean Water Act, 33 U. S. C. § 1341.
The water flow in the bypass reach, which is currently
undiminished by appropriation, ranges seasonally between 149 and
738 cubic feet per second (cfs). The Dosewallips supports two
species of salmon, coho and chinook, as well as steelhead trout. As
originally proposed, the project was to include a diversion dam
which would completely block the river and channel approximately
75% of the river's water into a tunnel alongside the streambed.
About 25% of the water would remain in the bypass reach, but would
be returned to the original riverbed through sluice gates or a fish
ladder. Depending on the season, this would leave a residual
minimum flow of between 65 and 155 cfs in the river. Respondent
undertook a study to determine the minimum stream flows necessary
to protect the salmon and steelhead fishery in the bypass reach. On
June 11, 1986, respondent 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
respondent's authority under state law. App. to Pet. for Cert.
55a-57a. On appeal, the
710
State Superior Court concluded that respondent could require
compliance with the minimum flow conditions. Id., at 29a-45a. The
Superior Court also found that respondent 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.
Id., at 34a.
The Washington Supreme Court held that the antidegradation
provisions of the State's water quality standards require the
imposition of minimum stream flows. 121 Wash. 2d 179, 186-187, 849
P. 2d 646, 650 (1993). The court also found that § 401(d), which
allows States to impose conditions based upon several enumerated
sections of the Clean Water Act and "any other appropriate
requirement of State law," 33 U. S. C. § 1341(d), authorized the
stream flow condition. Relying on this language and the broad
purposes of the Clean Water Act, 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."
121 Wash. 2d, at 192, 849 P. 2d, at 652. We granted certiorari, 510
U. S. 810 (1993), to resolve a conflict among the state courts of
last resort. See 121 Wash. 2d 179, 849 P. 2d 646 (1993); Georgia
Pacific Corp. v. Dept. of Environmental Conservation, 159 Vt. 639,
628 A. 2d 944 (1992) (table); Power Authority of New York v.
Williams, 60 N. Y. 2d 315, 457 N. E. 2d 726 (1983). We now
affirm.
III
The principal dispute in this case concerns whether the minimum
stream flow requirement that the State imposed on the Elkhorn
Project is a permissible condition of a § 401 certification under
the Clean Water Act. To resolve this dispute we must first
determine the scope of the State's authority under §401. We must
then determine whether the limitation at issue here, the
requirement that petitioners maintain minimum stream flows, falls
within the scope of that authority.
711
A
There is no dispute that petitioners were required to obtain a
certification from the State pursuant to § 401. Petitioners concede
that, at a minimum, the project will result in two possible
discharges-the release of dredged and fill material during the
construction of the project, and the discharge of water at the end
of the tailrace after the water has been used to generate
electricity. Brief for Petitioners 27-28. Petitioners contend,
however, that the minimum stream flow requirement imposed by the
State was unrelated to these specific discharges, and that as a
consequence, the State lacked the authority under § 401 to
condition its certification on maintenance of stream flows
sufficient to protect the Dosewallips fishery.
If § 401 consisted solely of subsection (a), which refers to a
state certification that a "discharge" will comply with certain
provisions of the Act, petitioners' assessment of the scope of the
State's certification authority would have considerable force.
Section 401, however, also contains subsection (d), which expands
the State's authority to impose conditions on the certification of
a project. Section 401(d) provides that any certification shall set
forth "any effluent limitations and other limitations ... necessary
to assure that any applicant" will comply with various provisions
of the Act and appropriate state law requirements. 33 U. S. C. §
1341(d) (emphasis added). The language of this subsection
contradicts petitioners' claim that the State may only impose water
quality limitations specifically tied to a "discharge." The text
refers to the compliance of the applicant, not the discharge.
Section 401(d) thus allows the State to impose "other limitations"
on the project in general to assure compliance with various
provisions of the Clean Water Act and with "any other appropriate
requirement of State law." Although the dissent asserts that this
interpretation of § 401(d) renders § 401(a)(1) superfluous, post,
at 726, we see no such anomaly. Section 401(a)(1) identifies the
category of activities
712
subject to certification-namely, those with discharges. And §
401(d) is most reasonably read as authorizing additional conditions
and limitations on the activity as a whole once the threshold
condition, the existence of a discharge, is satisfied.
Our view of the statute is consistent with EP A's regulations
implementing § 401. The regulations expressly interpret § 401 as
requiring the State to find that "there is a reasonable assurance
that the activity will be conducted in a manner which will not
violate applicable water quality standards." 40 CFR § 121.2(a)(3)
(1993) (emphasis added). See also EPA, Wetlands and 401
Certification 23 (Apr. 1989) ("In 401(d), the Congress has given
the States the authority to place any conditions on a water quality
certification that are necessary to assure that the applicant will
comply with effluent limitations, water quality standards, ... and
with 'any other appropriate requirement of State law"'). EPA's
conclusion that activities-not merely discharges-must comply with
state water quality standards is a reasonable interpretation of §
401, and is entitled to deference. See, e.
g., Arkansas v.
Oklahoma,
503 U. S.
91, 110 (1992); Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc.,
467 U. S. 837 (1984).
Although § 401(d) authorizes the State to place restrictions on
the activity as a whole, that authority is not unbounded. The State
can only ensure that the project complies with "any applicable
effluent limitations and other limitations, under [33 U. S. C. §§
1311, 1312]" or certain other provisions of the Act, "and with any
other appropriate requirement of State law." 33 U. S. C. § 1341(d).
The State asserts that the minimum stream flow requirement was
imposed to ensure compliance with the state water quality standards
adopted pursuant to § 303 of the Clean Water Act, 33 U. S. C. §
1313.
We agree with the State that ensuring compliance with § 303 is a
proper function of the § 401 certification. Although § 303 is not
one of the statutory provisions listed in § 401(d),
713
the statute allows States to impose limitations to ensure
compliance with § 301 of the Act, 33 U. S. C. § 1311. Section 301
in turn incorporates § 303 by reference. See 33 U. S. C. §
1311(b)(1)(C); see also H. R. Conf. Rep. No. 95-830, p. 96 (1977)
("Section 303 is always included by reference where section 301 is
listed"). As a consequence, state water quality standards adopted
pursuant to § 303 are among the "other limitations" with which a
State may ensure compliance through the § 401 certification
process. This interpretation is consistent with EP A's view of the
statute. See 40 CFR § 121.2(a)(3) (1992); EPA, Wetlands and 401
Certification, supra. Moreover, limitations to assure compliance
with state water quality standards are also permitted by § 401(d)'s
reference to "any other appropriate requirement of State law." We
do not speculate on what additional state laws, if any, might be
incorporated by this language.3 But at a minimum, limitations
imposed pursuant to state water quality standards adopted pursuant
to § 303 are "appropriate" requirements of state law. Indeed,
petitioners appear to agree that the State's authority under § 401
includes limitations designed to ensure compliance with state water
quality standards. Brief for Petitioners 9, 21.
B
Having concluded that, pursuant to § 401, States may condition
certification upon any limitations necessary to ensure
3 The dissent asserts that § 301 is concerned solely with
discharges, not broader water quality standards. Post, at 730, n.
2. Although § 301 does make certain discharges unlawful, see 33 U.
S. C. § 1311(a), it also contains a broad enabling provision which
requires States to take certain actions, to wit: "In order to carry
out the objective of this chapter [viz. the chemical, physical, and
biological integrity of the Nation's water] there shall be achieved
... not later than July 1, 1977, any more stringent limitation,
including those necessary to meet water quality standards, ...
established pursuant to any State law or regulations .... " 33 U.
S. C. § 1311(b)(1)(C). This provision of § 301 expressly refers to
state water quality standards, and is not limited to
discharges.
714
compliance with state water quality standards or any other
"appropriate requirement of State law," we consider whether the
minimum flow condition is such a limitation. Under § 303, 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." 33 U. S. C. § 1313(c)(2)(A). In
imposing the minimum stream flow requirement, the State determined
that construction and operation of the project as planned would be
inconsistent with one of the designated uses of Class AA water,
namely "[s]almonid [and other fish] migration, rearing, spawning,
and harvesting." App. to Pet. for Cert. 83a-84a. The designated use
of the river as a fish habitat directly reflects the Clean Water
Act's goal of maintaining the "chemical, physical, and biological
integrity of the Nation's waters." 33 U. S. C. § 1251(a). Indeed,
the Act defines pollution as "the man-made or man induced
alteration of the chemical, physical, biological, and radiological
integrity of water." § 1362(19). Moreover, the Act expressly
requires that, in adopting water quality standards, the State must
take into consideration the use of waters for "propagation of fish
and wildlife." § 1313(c)(2)(A).
Petitioners assert, however, that § 303 requires the State to
protect designated uses solely through implementation of specific
"criteria." According to petitioners, the State may not require
them to operate their dam in a manner consistent with a designated
"use"; instead, say petitioners, under § 303 the State may only
require that the project comply with specific numerical
"criteria."
We disagree with petitioners' interpretation of the language of
§ 303(c)(2)(A). Under the statute, a water quality standard must
"consist of the designated uses of the navigable waters involved
and the water quality criteria for such waters based upon
such uses." 33 U. S. C. § 1313(c)(2)(A) (emphasis added). The text
makes it plain that water quality standards contain two components.
We think the lan-
715
guage of § 303 is most naturally read to require that a project
be consistent with both components, namely, the designated use
and the water quality criteria. Accordingly, under the
literal terms of the statute, a project that does not comply with a
designated use of the water does not comply with the applicable
water quality standards.
Consequently, pursuant to § 401(d) the State may require that a
permit applicant comply with both the designated uses and the water
quality criteria of the state standards. In granting certification
pursuant to § 401(d), the State "shall set forth any ...
limitations ... necessary to assure that [the applicant] will
comply with any ... limitations under [§ 303] ... and with any
other appropriate requirement of State law." A certification
requirement that an applicant operate the project consistently with
state water quality standardsi. e., consistently with the
designated uses of the water body and the water quality criteria-is
both a "limitation" to assure "compl[iance] with ... limitations"
imposed under § 303, and an "appropriate" requirement of state
law.
EP A has not interpreted § 303 to require the States to protect
designated uses exclusively through enforcement of numerical
criteria. In its regulations governing state water quality
standards, EPA defines criteria as "elements of State water quality
standards, expressed as constituent concentrations, levels, or
narrative statements, representing a quality of water that supports
a particular use." 40 CFR § 131.3(b) (1993) (emphasis added). The
regulations further provide that "[w]hen criteria are met, water
quality will
generally protect the designated use." Ibid.
(emphasis added). Thus, the EP A regulations implicitly recognize
that in some circumstances, criteria alone are insufficient to
protect a designated use.
Petitioners also appear to argue that use requirements are too
open ended, and that the Act only contemplates enforcement of the
more specific and objective "criteria." But this argument is belied
by the open-ended nature of the criteria
716
themselves. As the Solicitor General points out, even "criteria"
are often expressed in broad, narrative terms, such as "'there
shall be no discharge of toxic pollutants in toxic amounts.'" Brief
for United States as Amicus Curiae 18. See American Paper
Institute, Inc. v. EPA,
996 F.2d
346, 349 (CADC 1993). In fact, under the Clean Water Act, only
one class of criteria, those governing "toxic pollutants listed
pursuant to section 1317(a)(1)," need be rendered in numerical
form. See 33 U. S. C. § 1313(c)(2)(B); 40 CFR § 131.11(b)(2)
(1993).
Washington's Class AA water quality standards are typical in
that they contain several open-ended criteria which, like the use
designation of the river as a fishery, must be translated into
specific limitations for individual projects. For example, the
standards state that "[t]oxic, radioactive, or deleterious material
concentrations shall be less than those which may affect public
health, the natural aquatic environment, or the desirability of the
water for any use." WAC 173-201045(1)(c)(vii) (1986). Similarly,
the state standards specify that "[a]esthetic values shall not be
impaired by the presence of materials or their effects, excluding
those of natural origin, which offend the senses of sight, smell,
touch, or taste." 173-201-045(1)(c)(viii). We think petitioners'
attempt to distinguish between uses and criteria loses much of its
force in light of the fact that the Act permits enforcement of
broad, narrative criteria based on, for example, "aesthetics."
Petitioners further argue that enforcement of water quality
standards through use designations renders the water quality
criteria component of the standards irrelevant. We see no anomaly,
however, in the State's reliance on both use designations and
criteria to protect water quality. The specific numerical
limitations embodied in the criteria are a convenient enforcement
mechanism for identifying minimum water conditions which will
generally achieve the requisite water quality. And, in most
circumstances, satisfying the criteria will, as EPA recognizes, be
sufficient to maintain the
717
designated use. See 40 CFR § 131.3(b) (1993). Water quality
standards, however, apply to an entire class of water, a class
which contains numerous individual water bodies. For example, in
the State of Washington, the Class AA water quality standard
applies to 81 specified fresh surface waters, as well as to all
"surface waters lying within the mountainous regions of the state
assigned to national parks, national forests, and/or wilderness
areas," all "lakes and their feeder streams within the state," and
all "unclassified surface waters that are tributaries to Class AA
waters." WAC 173-201-070 (1986). While enforcement of criteria will
in general protect the uses of these diverse waters, a
complementary requirement that activities also comport with
designated uses enables the States to ensure that each activityeven
if not foreseen by the criteria-will be consistent with the
specific uses and attributes of a particular body of water.
Under petitioners' interpretation of the statute, however, if a
particular criterion, such as turbidity, were missing from the list
contained in an individual state water quality standard, or even if
an existing turbidity criterion were insufficient to protect a
particular species of fish in a particular river, the State would
nonetheless be forced to allow activities inconsistent with the
existing or designated uses. We think petitioners' reading leads to
an unreasonable interpretation of the Act. The criteria components
of state water quality standards attempt to identify, for all the
water bodies in a given class, water quality requirements generally
sufficient to protect designated uses. These criteria, however,
cannot reasonably be expected to anticipate all the water quality
issues arising from every activity that can affect the State's
hundreds of individual water bodies. Requiring the States to
enforce only the criteria component of their water quality
standards would in essence require the States to study to a level
of great specificity each individual surface water to ensure that
the criteria applicable to that water are sufficiently detailed and
individualized to fully protect the
718
water's designated uses. Given that there is no textual support
for imposing this requirement, we are loath to attribute to
Congress an intent to impose this heavy regulatory burden on the
States.
The State also justified its minimum stream flow as necessary to
implement the "antidegradation policy" of § 303, 33 U. S. C. §
1313(d)(4)(B). When the Clean Water Act was enacted in 1972, the
water quality standards of all 50 States had antidegradation
provisions. These provisions were required by federal law. See U.
S. Dept. of Interior, Federal Water Pollution Control
Administration, Compendium of Department of Interior Statements on
Non-degradation of Interstate Waters 1-2 (Aug. 1968); see also
Hines, A Decade of Nondegradation Policy in Congress and the
Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 Iowa
L. Rev. 643, 658-660 (1977). By providing in 1972 that existing
state water quality standards would remain in force until revised,
the Clean Water Act ensured that the States would continue their
antidegradation programs. See 33 U. S. C. § 1313(a). EPA has
consistently required that revised state standards incorporate an
antidegradation policy. And, in 1987, Congress explicitly
recognized the existence of an "antidegradation policy established
under [§ 303]." § 1313(d)(4)(B).
EP A has promulgated regulations implementing § 303's
antidegradation policy, a phrase that is not defined elsewhere in
the Act. These regulations require States to "develop and adopt a
statewide antidegradation policy and identify the methods for
implementing such policy." 40 CFR § 131.12 (1993). These
"implementation methods shall, at a minimum, be consistent with the
... [e]xisting instream water uses and the level of water quality
necessary to protect the existing uses shall be maintained and
protected." Ibid. EPA has explained that under its antidegradation
regulation, "no activity is allowable ... which could partially or
completely eliminate any existing use." EPA, Questions and
719
Answers on Antidegradation 3 (Aug. 1985). Thus, States must
implement their antidegradation policy in a manner "consistent"
with existing uses of the stream. The State of Washington's
antidegradation policy in turn provides that "[e]xisting beneficial
uses shall be maintained and protected and no further degradation
which would interfere with or become injurious to existing
beneficial uses will be allowed." WAC 173-201-035(8)(a) (1986). The
State concluded that the reduced stream flows would have just the
effect prohibited by this policy. The Solicitor General,
representing EPA, asserts, Brief for United States as Amicus Curiae
1821, and we agree, that the State's minimum stream flow condition
is a proper application of the state and federal antidegradation
regulations, as it ensures that an "[e]xisting instream water
us[e]" will be "maintained and protected." 40 CFR § 131.12(a)(1)
(1993).
Petitioners also assert more generally that the Clean Water Act
is only concerned with water "quality," and does not allow the
regulation of water "quantity." This is an artificial distinction.
In many cases, water quantity is closely related to water quality;
a sufficient lowering of the water quantity in a body of water
could destroy all of its designated uses, be it for drinking water,
recreation, navigation or, as here, as a fishery. In any event,
there is recognition in the Clean Water Act itself that reduced
stream flow, i. e., diminishment of water quantity, can constitute
water pollution. First, the Act's definition of pollution as "the
man-made or man induced alteration of the chemical, physical,
biological, and radiological integrity of water" encompasses the
effects of reduced water quantity. 33 U. S. C. § 1362(19). This
broad conception of pollution-one which expressly evinces Congress'
concern with the physical and biological integrity of water-refutes
petitioners' assertion that the Act draws a sharp distinction
between the regulation of water "quantity" and water "quality."
Moreover, § 304 of the Act expressly recognizes that water
"pollution" may result from "changes
720
in the movement, flow, or circulation of any navigable waters
... , including changes caused by the construction of dams." 33 U.
S. C. § 1314(f). This concern with the flowage effects of dams and
other diversions is also embodied in the EPA regulations, which
expressly require existing dams to be operated to attain designated
uses. 40 CFR § 131.10(g)(4) (1992).
Petitioners assert that two other provisions of the Clean Water
Act, §§ 101(g) and 510(2), 33 U. S. C. §§ 1251(g) and 1370(2),
exclude the regulation of water quantity from the coverage of the
Act. Section 101(g) provides "that the authority of each State to
allocate quantities of water within its jurisdiction shall not be
superseded, abrogated or otherwise impaired by this chapter." 33 U.
S. C. § 1251(g). Similarly, § 510(2) provides that nothing in the
Act shall "be construed as impairing or in any manner affecting any
right or jurisdiction of the States with respect to the waters ...
of such States." 33 U. S. C. § 1370. In petitioners' view, these
provisions exclude "water quantity issues from direct regulation
under the federally controlled water quality standards authorized
in § 303." Brief for Petitioners 39 (emphasis deleted).
This language gives the States authority to allocate water
rights; we therefore find it peculiar that petitioners argue that
it prevents the State from regulating stream flow. In any event, we
read these provisions more narrowly than petitioners. Sections
101(g) and 510(2) preserve the authority of each State to allocate
water quantity as between users; they do not limit the scope of
water pollution controls that may be imposed on users who have
obtained, pursuant to state law, a water allocation. In California
v. FERC,
495 U. S.
490, 498 (1990), construing an analogous provision of the
Federal Power Act,4 we explained that "minimum stream
4 The relevant text of the Federal Power Act provides: "That
nothing herein contained shall be construed as affecting or
intending to affect or in any way to interfere with the laws of the
respective States relating to
721
flow requirements neither reflect nor establish 'proprietary
rights'" to water. Cf. First Iowa Hydro-Electric Cooperative v.
FPC,
328 U. S.
152, 176, and n. 20 (1946). Moreover, the certification itself
does not purport to determine petitioners' proprietary right to the
water of the Dosewallips. In fact, the certification expressly
states that a "State Water Right Permit (Chapters 90.03.250 RCW and
508-12 WAC) must be obtained prior to commencing construction of
the project." App. to Pet. for Cert. 83a. The certification merely
determines the nature of the use to which that proprietary right
may be put under the Clean Water Act, if and when it is obtained
from the State. Our view is reinforced by the legislative history
of the 1977 amendment to the Clean Water Act adding § 101(g). See 3
Legislative History of the Clean Water Act of 1977 (Committee Print
compiled for the Committee on Environment and Public Works by the
Library of Congress), Ser. No. 95-14, p. 532 (1978) ("The
requirements [of the Act] may incidentally affect individual water
rights .... It is not the purpose of this amendment to prohibit
those incidental effects. It is the purpose of this amendment to
insure that State allocation systems are not subverted, and that
effects on individual rights, if any, are prompted by legitimate
and necessary water quality considerations").
IV
Petitioners contend that we should limit the State's authority
to impose minimum flow requirements because FERC has comprehensive
authority to license hydroelectric projects pursuant to the FPA, 16
U. S. C. § 791a et seq. In petitioners' view, the minimum flow
requirement imposed here interferes with FERC's authority under the
FPA.
the control, appropriation, use, or distribution of water used
in irrigation or for municipal or other uses, or any vested right
acquired therein." 41 Stat. 1077, 16 U. S. C. §821.
722
The FPA empowers FERC to issue licenses for projects "necessary
or convenient ... for the development, transmission, and
utilization of power across, along, from, or in any of the streams
... over which Congress has jurisdiction." § 797(e). The FPA also
requires FERC to consider a project's effect on fish and wildlife.
§§ 797(e), 803(a)(1). In
California v.
FERC, supra,
we held that the California Water Resources Control Board, acting
pursuant to state law, could not impose a minimum stream flow which
conflicted with minimum stream flows contained in a FERC license.
We concluded that the FP A did not "save" to the States this
authority. Id., at 498.
No such conflict with any FERC licensing activity is presented
here. FERC has not yet acted on petitioners' license application,
and it is possible that FERC will eventually deny petitioners'
application altogether. Alternatively, it is quite possible, given
that FERC is required to give equal consideration to the protection
of fish habitat when deciding whether to issue a license, that any
FERC license would contain the same conditions as the state § 401
certification. Indeed, at oral argument the Deputy Solicitor
General stated that both EPA and FERC were represented in this
proceeding, and that the Government has no objection to the stream
flow condition contained in the § 401 certification. Tr. of Oral
Arg. 43-44.
Finally, the requirement for a state certification applies not
only to applications for licenses from FERC, but to all federal
licenses and permits for activities which may result in a discharge
into the Nation's navigable waters. For example, a permit from the
Army Corps of Engineers is required for the installation of any
structure in the navigable waters which may interfere with
navigation, including piers, docks, and ramps. Rivers and Harbors
Appropriation Act of 1899, 30 Stat. 1151, § 10, 33 U. S. C. § 403.
Similarly, a permit must be obtained from the Army Corps of
Engineers
723
for the discharge of dredged or fill material, and from the
Secretary of the Interior or Agriculture for the construction of
reservoirs, canals, and other water storage systems on federal
land. See 33 U. S. C. §§ 1344(a), (e); 43 U. S. C. § 1761 (1988 ed.
and Supp. IV). We assume that a § 401 certification would also be
required for some licenses obtained pursuant to these statutes.
Because § 401's certification requirement applies to other statutes
and regulatory schemes, and because any conflict with FERC's
authority under the FPA is hypothetical, we are unwilling to read
implied limitations into § 401. If FERC issues a license containing
a stream flow condition with which petitioners disagree, they may
pursue judicial remedies at that time. Cf. Escondido Mut. Water Co.
v. La Jolla Band of Mission Indians,
466 U. S. 765, 778, n. 20
(1984).
In summary, we hold that the State may include minimum stream
flow requirements in a certification issued pursuant to § 401 of
the Clean Water Act insofar as necessary to enforce a designated
use contained in a state water quality standard. The judgment of
the Supreme Court of Washington, accordingly, is affirmed.
So ordered.
JUSTICE STEVENS, concurring.
While I agree fully with the thorough analysis in the Court's
opinion, I add this comment for emphasis. For judges who find it
unnecessary to go behind the statutory text to discern the intent
of Congress, this is (or should be) an easy case. Not a single
sentence, phrase, or word in the Clean Water Act purports to place
any constraint on a State's power to regulate the quality of its
own waters more stringently than federal law might require. In
fact, the Act explicitly recognizes States' ability to impose
stricter standards. See, e.
g., § 301(b)(1)(C), 33 U. S. C.
§ 1311(b)(1)(C).
724
THOMAS, J., dissenting
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court today holds that a State, pursuant to § 401 of the
Clean Water Act, may condition the certification necessary to
obtain a federal license for a proposed hydroelectric project upon
the maintenance of a minimum flow rate in the river to be utilized
by the project. In my view, the Court makes three fundamental
errors. First, it adopts an interpretation that fails adequately to
harmonize the subsections of § 401. Second, it places no meaningful
limitation on a State's authority under § 401 to impose conditions
on certification. Third, it gives little or no consideration to the
fact that its interpretation of § 401 will significantly disrupt
the carefully crafted federal-state balance embodied in the Federal
Power Act. Accordingly, I dissent.
I A
Section 401(a)(1) of the Federal Water Pollution Control Act,
otherwise known as the Clean Water Act (CWA or Act), 33 U. S. C. §
1251 et seq., provides that "[a]ny applicant for a Federal license
or permit to conduct any activity ... , which may result in any
discharge into the navigable waters, shall provide the licensing or
permitting agency a certification from the State in which the
discharge originates ... that any such discharge will comply with
... applicable provisions of [the CWA]." 33 U. S. C. § 1341(a)(1).
The terms of § 401(a)(1) make clear that the purpose of the
certification process is to ensure that discharges from a project
will meet the requirements of the CW A. Indeed, a State's authority
under § 401(a)(1) is limited to certifying that "any discharge"
that "may result" from "any activity," such as petitioners'
proposed hydroelectric project, will "comply" with the enumerated
provisions of the CW A; if the discharge will fail to comply, the
State may "den[y]" the certification. Ibid. In addition, under §
401(d), a State may place conditions on a
725
§ 401 certification, including "effluent limitations and other
limitations, and monitoring requirements," that may be necessary to
ensure compliance with various provisions of the CW A and with "any
other appropriate requirement of State law." § 1341(d).
The minimum stream flow condition imposed by respondents in this
case has no relation to any possible "discharge" that might
"result" from petitioners' proposed project. The term "discharge"
is not defined in the CW A, but its plain and ordinary meaning
suggests "a flowing or issuing out," or "something that is
emitted." Webster's Ninth New Collegiate Dictionary 360 (1991). Cf.
33 U. S. C. § 1362(16) ("The term 'discharge' when used without
qualification includes a discharge of a pollutant, and a discharge
of pollutants"). A minimum stream flow requirement, by contrast, is
a limitation on the amount of water the project can take in or
divert from the river. See ante, at 709. That is, a minimum stream
flow requirement is a limitation on intake-the opposite of
discharge. Imposition of such a requirement would thus appear to be
beyond a State's authority as it is defined by § 401(a)(1).
The Court remarks that this reading of § 401(a)(1) would have
"considerable force," ante, at 711, were it not for what the Court
understands to be the expansive terms of §401(d). That subsection,
as set forth in 33 U. S. C. § 1341(d), provides:
"Any certification provided under this section shall set forth
any effluent limitations and other limitations, and monitoring
requirements necessary to assure that any applicant for a
Federal license or permit will comply with any applicable effluent
limitations and other limitations, under section 1311 or 1312 of
this title, standard of performance under section 1316 of this
title, or prohibition, effluent standard, or pretreatment standard
under section 1317 of this title, and with any other appropriate
requirement of State law set forth in such certification, and shall
become a condition on any Fed-
726
THOMAS, J., dissenting
erallicense or permit subject to the provisions of this
section." (Emphasis added.)
According to the Court, the fact that § 401(d) refers to an
"applicant," rather than a "discharge," complying with various
provisions of the Act "contradicts petitioners' claim that the
State may only impose water quality limitations specifically tied
to a 'discharge.'" Ante, at 711. In the Court's view, §401(d)'s
reference to an applicant's compliance "expands" a State's
authority beyond the limits set out in § 401(a)(1), ibid., thereby
permitting the State in its certification process to scrutinize the
applicant's proposed "activity as a whole," not just the discharges
that may result from the activity, ante, at 712. The Court
concludes that this broader authority allows a State to impose
conditions on a § 401 certification that are unrelated to
discharges. Ante, at 711-712.
While the Court's interpretation seems plausible at first
glance, it ultimately must fail. If, as the Court asserts, § 401(d)
permits States to impose conditions unrelated to discharges in §
401 certifications, Congress' careful focus on discharges in §
401(a)(1)-the provision that describes the scope and function of
the certification process-was wasted effort. The power to set
conditions that are unrelated to discharges is, of course, nothing
but a conditional power to deny certification for reasons unrelated
to discharges. Permitting States to impose conditions unrelated to
discharges, then, effectively eliminates the constraints of §
401(a)(1).
Subsections 401(a)(1) and (d) can easily be reconciled to avoid
this problem. To ascertain the nature of the conditions permissible
under § 401(d), § 401 must be read as a whole. See United Sav.
Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd.,
484 U. S. 365,
371 (1988) (statutory interpretation is a "holistic endeavor"). As
noted above, § 401(a)(1) limits a State's authority in the
certification process to addressing concerns related to discharges
and to ensuring that any discharge resulting from a project will
comply with specified provisions of the Act. It is reasonable
727
to infer that the conditions a State is permitted to impose on
certification must relate to the very purpose the certification
process is designed to serve. Thus, while § 401(d) permits a State
to place conditions on a certification to ensure compliance of the
"applicant," those conditions must still be related to discharges.
In my view, this interpretation best harmonizes the subsections of
§ 401. Indeed, any broader interpretation of § 401(d) would permit
that subsection to swallow § 401(a)(1).
The text of § 401(d) similarly suggests that the conditions it
authorizes must be related to discharges. The Court attaches
critical weight to the fact that § 401(d) speaks of the compliance
of an "applicant," but that reference, in and of itself, says
little about the nature of the conditions that may be imposed under
§ 401(d). Rather, because § 401(d) conditions can be imposed only
to ensure compliance with specified provisions of law-that is, with
"applicable effluent limitations and other limitations, under
section 1311 or 1312 of this title, standard[s] of performance
under section 1316 of this title, ... prohibition[s], effluent
standard[s], or pretreatment standard[s] under section 1317 of this
title, [or] ... any other appropriate requirement[s] of State
law"-one should logically turn to those provisions for guidance in
determining the nature, scope, and purpose of § 401(d) conditions.
Each of the four identified CW A provisions describes
dischargerelated limitations. See § 1311 (making it unlawful to
discharge any pollutant except in compliance with enumerated
provisions of the Act); § 1312 (establishing effluent limitations
on point source discharges); § 1316 (setting national standards of
performance for the control of discharges); and § 1317 (setting
pretreatment effluent standards and prohibiting the discharge of
certain effluents except in compliance with standards).
The final term on the list-"appropriate requirement[s] of State
law"-appears to be more general in scope. Because
728
THOMAS, J., dissenting
this reference follows a list of more limited provisions that
specifically address discharges, however, the principle ejusdem
generis would suggest that the general reference to "appropriate"
requirements of state law is most reasonably construed to extend
only to provisions that, like the other provisions in the list,
impose discharge-related restrictions. Cf. Cleveland v. United
States,
329 U. S.
14, 18 (1946) ("Under the ejusdem generis rule of construction
the general words are confined to the class and may not be used to
enlarge it"); Arcadia v. Ohio Power Co.,
498 U. S. 73, 84 (1990).
In sum, the text and structure of § 401 indicate that a State may
impose under § 401(d) only those conditions that are related to
discharges.
B
The Court adopts its expansive reading of § 401(d) based at
least in part upon deference to the "conclusion" of the
Environmental Protection Agency (EPA) that §401(d) is not limited
to requirements relating to discharges. Ante, at 712. The agency
regulation to which the Court defers is 40 CFR § 121.2(a)(3)
(1993), which provides that the certification shall contain "[a]
statement that there is a reasonable assurance that the activity
will be conducted in a manner which will not violate applicable
water quality standards." Ante, at 712. According to the Court, "EP
A's conclusion that activities-not merely discharges-must comply
with state water quality standards ... is entitled to deference"
under Chevron U. S. A. Inc. v. Natural Resources Defense Council,
Inc.,
467 U. S.
837 (1984). Ante, at 712.
As a preliminary matter, the Court appears to resort to
deference under Chevron without establishing through an initial
examination of the statute that the text of the section is
ambiguous. See Chevron, supra, at 842-843. More importantly, the
Court invokes Chevron deference to support its interpretation even
though the Government does not seek
729
deference for the EPA's regulation in this case.1 That the
Government itself has not contended that an agency interpretation
exists reconciling the scope of the conditioning authority under §
401(d) with the terms of § 401(a)(1) should suggest to the Court
that there is no "agenc[y] construction" directly addressing the
question. Chevron, supra, at 842.
In fact, the regulation to which the Court defers is hardly a
definitive construction of the scope of § 401(d). On the contrary,
the EP A's position on the question whether conditions under §
401(d) must be related to discharges is far from clear. Indeed, the
only EPA regulation that specifically addresses the "conditions"
that may appear in § 401 certifications speaks exclusively in terms
of limiting discharges. According to the EPA, a §401 certification
shall contain "[a] statement of any conditions which the certifying
agency deems necessary or desirable with respect to the discharge
of the activity." 40 CFR § 121.2(a)(4) (1993) (emphases added). In
my view, § 121.2(a)(4) should, at the very least, give the Court
pause before it resorts to Chevron deference in this case.
II
The Washington Supreme Court held that the State's water quality
standards, promulgated pursuant to § 303 of the Act, 33 U. S. C. §
1313, were "appropriate" requirements of state law under § 401(d),
and sustained the stream flow condition imposed by respondents as
necessary to ensure compliance with a "use" of the river as
specified in those standards. As an alternative to their argument
that § 401(d) conditions must be discharge related, petitioners
assert that
1 The Government, appearing as amicus curiae "supporting
affirmance," instead approaches the question presented by assuming,
arguendo, that petitioners' construction of § 401 is correct: "Even
if a condition imposed under Section 401(d) were valid only if it
assured that a 'discharge' will comply with the State's water
quality standards, the [minimum flow condition set by respondents]
satisfies that test." Brief for United States as Amicus Curiae
11.
730
THOMAS, J., dissenting
the state court erred when it sustained the stream flow
condition under the "use" component of the State's water quality
standards without reference to the corresponding "water quality
criteria" contained in those standards. As explained above,
petitioners' argument with regard to the scope of a State's
authority to impose conditions under § 401(d) is correct. I also
find petitioners' alternative argument persuasive. Not only does
the Court err in rejecting that § 303 argument, in the process of
doing so it essentially removes all limitations on a State's
conditioning authority under § 40l.
The Court states that, "at a minimum, limitations imposed
pursuant to state water quality standards adopted pursuant to § 303
are 'appropriate' requirements of state law" under § 401(d). Ante,
at 713.2 A water quality standard promulgated pursuant to § 303
must "consist of the designated uses of the navigable waters
involved and the water quality criteria for such waters based upon
such uses." 33 U. S. C. § 1313(c)(2)(A). The Court asserts that
this language "is most naturally read to require that a project be
consistent with both components, namely, the designated use and the
water quality criteria." Ante, at 715. In the Court's view, then,
the "use" of a body of water is independently enforceable through §
401(d) without reference to the corresponding criteria. Ibid.
The Court's reading strikes me as contrary to common sense. It
is difficult to see how compliance with a "use" of a body of water
could be enforced without reference to the
2 In the Court's view, § 303 water quality standards come into
play under § 401(d) either as "appropriate" requirements of state
law or through § 301 of the Act, which, according to the Court,
"incorporates § 303 by reference." Ante, at 713 (citations
omitted). The Court notes that through § 303, "the statute allows
States to impose limitations to ensure compliance with § 301 of the
Act." Ibid. Yet § 301 makes unlawful only "the [unauthorized]
discharge of any pollutant by any person." 33 U. S. C. § 1311(a)
(emphasis added); cf. supra, at 727. Thus, the Court's reliance on
§ 301 as a source of authority to impose conditions unrelated to
discharges is misplaced.
731
corresponding criteria. In this case, for example, the
applicable "use" is contained in the following regulation:
"Characteristic uses shall include, but not be limited to, ...
[s]almonid migration, rearing, spawning, and harvesting." Wash.
Admin. Code (WAC) 173-201-045(1)(b)(iii) (1986). The corresponding
criteria, by contrast, include measurable factors such as
quantities of fecal coliform organisms and dissolved gases in the
water. 173-201-045(1)(c)(i) and (ii).3 Although the Act does not
further address (at least not expressly) the link between "uses"
and "criteria," the regulations promulgated under § 303 make clear
that a "use" is an aspirational goal to be attained through
compliance with corresponding "criteria." Those regulations suggest
that "uses" are to be "achieved and protected," and that "water
quality criteria" are to be adopted to "protect the designated
use[s]." 40 CFR §§ 131.10(a), 131.11(a)(1) (1993).
The problematic consequences of decoupling "uses" and "criteria"
become clear once the Court's interpretation of § 303 is read in
the context of § 401. In the Court's view, a State may condition
the §401 certification "upon any limitations necessary to ensure
compliance" with the "uses of the water body." Ante, at 713-714,
715 (emphasis added). Under the Court's interpretation, then, state
environmental agencies may pursue, through § 401, their water goals
in any way they choose; the conditions imposed on certifications
need not relate to discharges, nor to water quality criteria, nor
to any objective or quantifiable standard, so long as they tend to
make the water more suitable for the uses the State has chosen. In
short, once a State is allowed to impose conditions on § 401
certifications to protect "uses" in the abstract, § 401(d) is
limitless.
To illustrate, while respondents in this case focused only on
the "use" of the Dosewallips River as a fish habitat, this
particular river has a number of other "[c]haracteristic uses,"
3 Respondents concede that petitioners' project "will likely not
violate any of Washington's water quality criteria." Brief for
Respondents 24.
732
THOMAS, J., dissenting
including "[r]ecreation (primary contact recreation, sport
fishing, boating, and aesthetic enjoyment)." WAC
173-201045(1)(b)(v) (1986). Under the Court's interpretation,
respondents could have imposed any number of conditions related to
recreation, including conditions that have little relation to water
quality. In Town of Summersville, 60 FERC , 61,291, p. 61,990
(1992), for instance, the state agency required the applicant to
"construct ... access roads and paths, low water stepping stone
bridges, ... a boat launching facility ... , and a residence and
storage building." These conditions presumably would be sustained
under the approach the Court adopts today.4 In the end, it is
difficult to conceive of a condition that would fall outside a
State's § 401(d) authority under the Court's approach.
III
The Court's interpretation of § 401 significantly disrupts the
careful balance between state and federal interests that Congress
struck in the Federal Power Act (FPA), 16 U. S. C. § 791 et seq.
Section 4(e) of the FPA authorizes the Federal Energy Regulatory
Commission (FERC) to issue licenses for projects "necessary or
convenient ... for the development, transmission, and utilization
of power across, along, from, or in any of the streams ... over
which Congress has jurisdiction." 16 U. S. C. § 797(e). In the
licensing process, FERC must balance a number of considerations:
"[I]n addition to the power and development purposes for which
licenses are issued, [FERC] shall give equal consideration to the
purposes of energy conservation, the protection, mitigation of
damage to, and enhancement of, fish and wildlife (including related
spawning grounds and habitat), the protection of rec-
4 Indeed, as the § 401 certification stated in this case, the
flow levels imposed by respondents are "in excess of those required
to maintain water quality in the bypass region," App. to Pet. for
Cert. 83a, and therefore conditions not related to water quality
must, in the Court's view, be permitted.
733
reational opportunities, and the preservation of other aspects
of environmental quality." Ibid. Section 10(a) empowers FERC to
impose on a license such conditions, including minimum stream flow
requirements, as it deems best suited for power development and
other public uses of the waters. See 16 U. S. C. § 803(a);
California v. FERC,
495 U. S. 490, 494-495,
506 (1990).
In California v. FERC, the Court emphasized FERC's exclusive
authority to set the stream flow levels to be maintained by
federally licensed hydroelectric projects. California, in order "to
protect [a] stream's fish," had imposed flow rates on a federally
licensed project that were significantly higher than the flow rates
established by FERC. Id., at 493. In concluding that California
lacked authority to impose such flow rates, we stated:
"As Congress directed in FPA § 10(a), FERC set the conditions of
the [project] license, including the minimum stream flow, after
considering which requirements would best protect wildlife and
ensure that the project would be economically feasible, and thus
further power development. Allowing California to impose
significantly higher minimum stream flow requirements would disturb
and conflict with the balance embodied in that considered federal
agency determination. FERC has indicated that the California
requirements interfere with its comprehensive planning authority,
and we agree that allowing California to impose the challenged
requirements would be contrary to congressional intent regarding
the Commission's licensing authority and would constitute a veto of
the project that was approved and licensed by FERC." Id., at
506-507 (citations and internal quotation marks omitted).
California v. FERC reaffirmed our decision in First Iowa
Hydro-Electric Cooperative v. FPC,
328 U. S. 152, 164
(1946), in which we warned against "vest[ing] in [state
authorities]
734
THOMAS, J., dissenting
a veto power" over federal hydroelectric projects. Such
authority, we concluded, could "destroy the effectiveness" of the
FP A and "subordinate to the control of the State the
'comprehensive' planning" with which the administering federal
agency (at that time the Federal Power Commission) was charged.
Ibid.
Today, the Court gives the States precisely the veto power over
hydroelectric projects that we determined in California v. FERC and
First Iowa they did not possess. As the language of § 401(d)
expressly states, any condition placed in a § 401 certification,
including, in the Court's view, a stream flow requirement, "shall
become a condition on any Federal license or permit." 33 U. S. C. §
1341(d) (emphasis added). Any condition imposed by a State under §
401(d) thus becomes a "ter[m] ... of the license as a matter of
law," Department of Interior v. FERC,
952 F.2d
538, 548 (CADC 1992) (citation and internal quotation marks
omitted), regardless of whether FERC favors the limitation. Because
of § 401(d)'s mandatory language, federal courts have uniformly
held that FERC has no power to alter or review §401 conditions, and
that the proper forum for review of those conditions is state
court.5 Section 401(d) conditions imposed by States are
5 See, e. g., Keating v. FERC,
927 F.2d
616, 622 (CADC 1991) (federal review inappropriate because a
decision to grant or deny § 401 certification "presumably turns on
questions of substantive state environmental lawan area that
Congress expressly intended to reserve to the states and concerning
which federal agencies have little competence"); Department of
Interior v. FERC, 952 F. 2d, at 548; United States v. Marathon
Development Corp.,
867 F.2d
96, 102 (CA1 1989); Proffitt v. Rohm & Haas,
850 F.2d
1007, 1009
(CA3 1988). FERC has taken a similar
position. See Town of Summersville, 60 FERC , 61,291, p. 61,990
(1992) ("[S]ince pursuant to Section 401(d) ... all of the
conditions in the water quality certification must become
conditions in the license, review of the appropriateness of the
conditions is within the purview of state courts and not the
Commission. The only alternatives available to the Commission are
either to issue a license with the conditions included or to deny"
the application altogether); accord, Central Maine Power Co., 52
FERC , 61,033, pp. 61,172-61,173 (1990).
735
therefore binding on FERC. Under the Court's interpretation,
then, it appears that the mistake of the State in
California
v. FERC was not that it had trespassed into territory exclusively
reserved to FERC; rather, it simply had not hit upon the proper
device-that is, the § 401 certificationthrough which to achieve its
objectives.
Although the Court notes in passing that "[t]he limitations
included in the certification become a condition on any
federallicense," ante, at 708, it does not acknowledge or discuss
the shift of power from FERC to the States that is accomplished by
its decision. Indeed, the Court merely notes that "any conflict
with FERC's authority under the FPA" in this case is "hypothetical"
at this stage, ante, at 723, because "FERC has not yet acted on
petitioners' license application," ante, at 722. We are assured
that "it is quite possible ... that any FERC license would contain
the same conditions as the state § 401 certification." Ibid.
The Court's observations simply miss the point. Even if FERC
might have no objection to the stream flow condition established by
respondents in this case, such a happy coincidence will likely
prove to be the exception, rather than the rule. In issuing
licenses, FERC must balance the Nation's power needs together with
the need for energy conservation, irrigation, flood control, fish
and wildlife protection, and recreation. 16 U. S. C. § 797(e).
State environmental agencies, by contrast, need only consider
parochial environmental interests. Cf., e.
g., Wash. Rev.
Code § 90.54.010(2) (1992) (goal of State's water policy is to
"insure that waters of the state are protected and fully utilized
for the greatest benefit to the people of the state of
Washington"). As a result, it is likely that conflicts will arise
between a FERC-established stream flow level and a state-imposed
level.
Moreover, the Court ignores the fact that its decision nullifies
the congressionally mandated process for resolving such
state-federal disputes when they develop. Section 10(j)(1) of the
FPA, 16 U. S. C. §803(j)(1), which was added as part
736
THOMAS, J., dissenting
of the Electric Consumers Protection Act of 1986 (ECPA), 100
Stat. 1244, provides that every FERC license must include
conditions to "protect, mitigate damag[e] to, and enhance" fish and
wildlife, including "related spawning grounds and habitat," and
that such conditions "shall be based on recommendations" received
from various agencies, including state fish and wildlife agencies.
If FERC believes that a recommendation from a state agency is
inconsistent with the FPA-that is, inconsistent with what FERC
views as the proper balance between the Nation's power needs and
environmental concerns-it must "attempt to resolve any such
inconsistency, giving due weight to the recommendations, expertise,
and statutory responsibilities" of the state agency. § 803(j)(2).
If, after such an attempt, FERC "does not adopt in whole or in part
a recommendation of any [state] agency," it must publish its
reasons for rejecting that recommendation. Ibid. After today's
decision, these procedures are a dead letter with regard to stream
flow levels, because a State's "recommendation" concerning stream
flow "shall" be included in the license when it is imposed as a
condition under § 401(d).
More fundamentally, the 1986 amendments to the FP A simply make
no sense in the stream flow context if, in fact, the States already
possessed the authority to establish minimum stream flow levels
under §401(d) of the CWA, which was enacted years before those
amendments. Through the ECPA, Congress strengthened the role of the
States in establishing FERC conditions, but it did not make that
authority paramount. Indeed, although Congress could have vested in
the States the final authority to set stream flow conditions, it
instead left that authority with FERC. See California v. FERC, 495
U. S., at 499. As the Ninth Circuit observed in the course of
rejecting California's effort to give California v. FERC a narrow
reading, "[t]here would be no point in Congress requiring [FERC] to
consider the state agency recommendations on environmental matters
and
737
make its own decisions about which to accept, if the state
agencies had the power to impose the requirements themselves."
Sayles Hydro Associates v. Maughan,
985 F.2d
451, 456 (1993).
Given the connection between § 401 and federal hydroelectric
licensing, it is remarkable that the Court does not at least
attempt to fit its interpretation of § 401 into the larger
statutory framework governing the licensing process. At the very
least, the significant impact the Court's ruling is likely to have
on that process should compel the Court to undertake a closer
examination of § 401 to ensure that the result it reaches was
mandated by Congress.
IV
Because the Court today fundamentally alters the federal-state
balance Congress carefully crafted in the FP A, and because such a
result is neither mandated nor supported by the text of § 401, I
respectfully dissent.
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