United States of America
Water Pollution
This case dealt with the question whether a minimum stream flow requirement was a permissible condition under a certification according to §401 of the Clean Water Act. The petitioners, a city and a local utility district, wanted to build a hydroelectric project on the Dosewallips River, which would significantly reduce the water flow in the relevant part of the River. 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 cubic feet per second (cfs). The State Supreme Court held that the antidegradation provisions of the State’s water quality standards required the imposition of minimum stream flows, and that §401 authorized the stream flow condition. The Supreme Court held that Washington’s minimum stream flow requirement was a permissible condition of a §401 certification. A State could impose conditions on certifications insofar as necessary to enforce a designated use contained in the State’s water quality standard. The Petitioners’ claimed that the State could only impose water quality limitations specifically tied to a "discharge". In the view of the Court, this was contradicted by §401(d), which allowed a State to impose "other limitations" on a project. This was consistent with Environmental Protection Agency regulations providing that activities - not merely discharges – had to comply with state water quality standards, which was a reasonable interpretation of §401. Petitioners’ assertion that the Act was only concerned with water quality, not quantity, made an artificial distinction, since a sufficient lowering of quantity could destroy all of a river’s designated uses, and since the Act recognized that reduced stream flow could constitute water pollution.