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511 U.S. 700 (1994)
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.
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) (1)(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, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (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).
* * *
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 "existing 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.* * *
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. * * * The standard
identifies the designated uses of Class AA waters as well as the criteria
applicable to such waters.
In addition to these specific standards applicable to Class AA waters,
the State has adopted a statewide antidegradation policy. That policy
provides:
"(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).
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 "any certification . . . 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.
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 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 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.
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, 469 N.Y.S.2d 620 (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.
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 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 EPA'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). * * * 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. 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), 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
EPA'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." * * * [A]t 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.
B
Having concluded that, pursuant to § 401, States may condition
certification upon any limitations necessary to ensure 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 "salmonid [and other fish] migration, rearing, spawning, and
harvesting." * * *
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 language 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 standards -- i. 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.
EPA 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 "when
criteria are met, water quality will generally protect the designated
use." Ibid. (emphasis added). Thus, the EPA 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 themselves. * * * 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 "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." WAC 173-201-045(1)(c)(vii)
(1986). Similarly, the state standards specify that "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." 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 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 activity --
even 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 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). * * *
EPA 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 . . . existing 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 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 "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." 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 18-21, 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
"existing instream water use" 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 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).
* * *
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 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 FPA did not "save" to the States this authority.
Id., 495 U.S. 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.
* * *
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.
[Concurring and dissenting opinions omitted.]
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