Pud No. 1 of Jefferson County v. Washington Department of Ecology

Background

A city and a local utility district proposed the Elkhorn Hydroelectric Project on the Dosewallips River in Washington. The project would divert water for turbines and return it below a one-mile bypass reach. Because a federal license was required, the developers needed a state water-quality certification. Washington’s environmental agency required seasonal minimum stream flows of about 100–200 cubic feet per second to protect salmon and steelhead. State tribunals split, and the Washington Supreme Court upheld the flow condition before this Court affirmed.

Reasoning

The Court framed the question as whether §401 allows a State to condition certification on limits that ensure compliance with state water quality standards. The majority read §401(d) to permit “other limitations” on the activity as a whole and relied on EPA rules and the statute’s antidegradation policy. The Court said state standards contain both “designated uses” (for example, fish habitat) and enforceable criteria, so minimum flows necessary to protect a designated use are valid conditions. The judgment affirmed the Washington court.

Real world impact

The decision lets state environmental agencies add minimum flow limits to the conditions of federal permits when needed to protect designated uses like fisheries. That can affect how and whether hydroelectric projects are built or operated, and the conditions become terms of any federal license. The ruling may produce disagreements with federal licensing agencies and could lead to later litigation, but it leaves the state certification tool available now.

Dissents or concurrances

Justice Thomas (joined by Justice Scalia) dissented, warning that §401 should be limited to discharge-related conditions and that broad state power would upset the Federal Power Act’s balance with FERC. Justice Stevens concurred separately to stress that the Clean Water Act allows States to impose stricter standards.