## Facts

- Public Utility District No. 1 of Jefferson County and the City of Tacoma proposed a 10.4-megawatt hydroelectric project on Washington’s Dosewallips River involving diversion and return of water downstream, leaving a reduced-flow bypass reach.
- Washington classified the relevant waters as Class AA, with characteristic uses including fish migration, rearing, and spawning.
- To obtain a Federal Energy Regulatory Commission (FERC) license, the project required a Clean Water Act (CWA) § 401 water quality certification from the Washington Department of Ecology.
- Ecology issued the § 401 certification with conditions, including minimum instream flow requirements (about 100–200 cfs) intended to protect fish habitat and related uses; the project proposal contemplated lower residual flows (about 65–155 cfs) in the bypass reach.
- Petitioners argued § 401 conditions must be limited to the pollutant “discharge” and could not regulate broader project effects such as instream flow, which they contended fell within FERC’s domain.

## Issues

1. Whether CWA § 401 authorizes a State to condition certification on minimum stream flows needed to protect designated uses contained in the State’s water quality standards.
2. Whether § 401 conditions must be tied narrowly to the “discharge” or may address the environmental impacts of the federally licensed activity as a whole, so long as the activity may result in a discharge.

## Decision

- The Supreme Court affirmed the Washington Supreme Court, upholding Ecology’s minimum stream flow condition in the § 401 certification.
- The Court held that § 401(d) permits States to impose “effluent limitations and other limitations” necessary to ensure the activity’s compliance with applicable provisions of the CWA and with “any other appropriate requirement of State law.”
- The Court concluded that state water quality standards (including designated uses and antidegradation requirements adopted under CWA § 303) may be enforced through § 401 conditions.
- The Court rejected the argument that § 401 is confined to discharge-specific conditions, holding that States may regulate the activity’s impacts relevant to meeting water quality standards.
- The dissent would have read § 401 more narrowly, limiting state authority to conditions directly tied to discharges and objecting to using § 401 to control water quantity (flow).

## Legal Principles

- CWA § 401(d) authorizes States to attach certification conditions, including non-effluent limitations, that are necessary to assure compliance with state water quality standards and other appropriate state-law requirements.
- State water quality standards under CWA § 303 include designated uses and criteria, and may include antidegradation requirements protecting existing instream uses and the water quality needed to protect those uses.
- When an activity requiring a federal license may result in a discharge, § 401 allows States to condition certification based on the activity’s overall effects to the extent needed to ensure compliance with state water quality standards, not merely to regulate the discharge in isolation.
- Minimum instream flow conditions may be valid § 401 conditions when necessary to protect designated uses such as fish migration, rearing, and spawning.

## Conclusion

The Court upheld Washington’s authority under CWA § 401 to require minimum instream flows for a proposed hydroelectric project as a condition of certification, reasoning that States may impose non-effluent limits necessary to ensure compliance with state water quality standards, including designated uses and antidegradation protections, and may evaluate the licensed activity as a whole when it may result in a discharge.


PUD No. 1 of Jefferson Cnty. v. Wash. Dep't of Ecology, 511 U.S. 700 (1994)