Amicus Curiae Brief — PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology

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OcTOBER TERM, 1993 [SFE OF iit crenx

PUD No. 1 OF JEFFERSON COUNTY

AND CITY OF TACOMA, PETITIONERS

Vv.

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

DEPARTMENT OF FISHERIES AND

DEPARTMENT OF WILDLIFE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES AS |

AMICUS CURIAE SUPPORTING AFFIRMANCE

QUESTION PRESENTED

Whether the State of Washington exceeded its

authority under federal law by conditioning a water

quality certification under Section 401 of the Clean

Water Act, 33 U.S.C. 1341, for a hydroelectric proj-

ect subject to a federal licensing requirement on the

potential licensee’s maintenance of minimum stream

flow to assure that the use of the body of water as

fish habitat will be preserved.

(1)

TABLE OF CONTENTS

Interest of the United States ..........................cc-cescesccaeeneeees

Statutes involved ...................... a

en EE

I tt clelnlcndaime enamine

Argument:

I. The decision of the Washington Supreme Court

should be affirmed because the instream flow

condition imposed by the State in this case is a

valid Section 401(d) condition .......0.000000000000......

A. The State’s Section 401(d) minimum flow

condition addresses the compliance of a dis-

charge with applicable provisions of the

Np RRO SES eA EE a nee

B. The Washington Supreme Court appropri-

ately found that the minimum flow condition

was necessary to assure that petitioners’

hydropower project would comply with ap-

plicable CWA provisions ..............................----

Il. This case presents no question concerning the

effect of the State’s Section 401(d) certification

conditions on the FPA license, if any, that FERC

ultimately decides to issue for petitioners’ proj-

EE ee ee

EST a Eee

TABLE OF AUTHORITIES

Cases:

Allegheny Electric Coop., 51 F.E.R.C. % 61,268

EE a a

American Paper Institute, Inc. v. EPA, 996 F.2d

346 (D.C. Cir. 1993) ........ a ae ae ee

Arkansas V. Oklahoma, 112 S. Ct. 1046 (1992)...

aon wn =

> SB

California Vv. FERC, 495 U.S. 490 (1990) 0000... 7, 25, 26

Central Maine Power Co., 52 F.E.R.C. © 61,033

Ne FEE cee ee

Cases—Continued: Page

Champion Int’l Corp. v. EPA, 850 F.2d 182 (4th

Se, GED ctpcamme wemcesnninsintitiinniatindanineniaiiianins 18

Chevron U.S.A. 4x... V. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 20000 14

Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146

SITIED siictisitinienienibiceiadsimmceinleaaniaiiaianadimitliali aaa 27

EJ. duPont de Nemours & Co. Vv. Train, 430 U.S.

SO CII sais iinn esteem iatcaeeaesanemameiainaradiiemins 3

EPA Vv. California ex rel. State Water Resources

Control Bd., 426 U.S. 200 (1976) 0. 3

Escondido Mutual Water Co. Vv. La Jolla Band of

Mission Indians, 466 U.S. 765 (1984) — 00000000. 24, 29

First lowa Hydro-Electric Coop. v. FPC, 328 U.S.

fn 23, 24

Missouri v. Department of Army, 672 F.2d 1297

SD I een 15

Monongahela Power Co. Vv. Marsh, 809 F.2d 41

(D.C. Cir.), cert. denied, 484 U.S. 816 (1987)... 13

National Wildlife Fed’n Vv. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988) ...................000......... 15

National Wildlife Fed’n v. FERC, 912 F.2d 1471

Is Ne 25

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

REE aE er ER a Ra 15

Pittsburgh & Lake Erie R.R. v. Railway Labor

Executives Ass'n, 491 U.S. 490 (1989) 000000. 27

Riverside Irrigation District v. Andrews, 758 F.2d

ee I i 19

Seattle Audubon Society Vv. Espy, 998 F.2d 699 (9th

Ce a areas 28

United States Dep’t of Interior v. FERC, 952 F.2d

ee 25

United States v. Tennessee Water Quality Control

Board, 717 F.2d 992 (6th Cir. 1983), cert. de-

I, Ge i GI ictccccctrcrcccseencnesenenesnecennes 15

Udall v. FPC, 387 U.S. 428 (1967) ........................... 24

United States v. Fausto, 484 U.S. 439 (1988) ........ 27

Statutes and regulations:

Clean Water Act, 33 U.S.C. 1251 et seq.:

2 Se eee eee 3,1la

§ 101 (a), 33 U.S.C. 1251 (a) -....................0.. 2, 7, 20, la

Statutes and regulations—Continued: Page

§ 101 (a) (2), 33 U.S.C. 1251 (a) (2) 2,1a

RR 2, 3a

Pf RR DY 19, 3a

8 8, 15, 17, 18

DROID EE 15

§ 301 (b) (1) (C), 33 U.S.C. 1311 (b) (1) (C) —.. 17

§ 301 (h), 88 U.S.C. 1811 (hb) .......................-.------ 15

LEAT eae 15, 18

§ 303, 33 U.S.C. 1313 _..... 3, 7, 13, 16, 17, 18, 20, 21, 3a

lL lL 3, 3a

§ 303 (a) (1), 33 U.S.C. 1313 (a) (1)... . 19, 3a

§ 308 (b), 88 U.S.C. 1818(b) -.............................. 3, 5a

RL 19, 6a

§ 303(c) (1), 33 U.S.C. 13813(c) (1) —..-.. 3, 6a

§ 303 (c) (2) (A), 33 U.S.C. 1813 (c) (2) (A) __3, 4, 21,

22, 6a

§ 303(c) (3), 33 U.S.C. 1813(c) (3) 4,7a

§ 303 (d) (4) (B), 33 U.S.C. 1313(d) (4) (B) _ 4, 31, 9a

CE ES a 3

ET a ro oe ee 18

§ 306(a) (1), 33 U.S.C. 1816(a) (1) 15

SE a 18

§ 313(a), 38 U.S.C. 1828(a) ................................ 15

it <n passim

§ 401 (a), 33 U.S.C. 1841 (a) 5, 11, 12, 15, 17, 9a

§ 401 (a) (1), 33 U.S.C. 1341(a) (1) 8, 11, 12, 13,

18, 9a

§ 401 (a) (3), 33 U.S.C. 1341 (a) (3) 13, 12a

8 401 (4), SB U.S.C. 1841 0G) ~~~ nnneeecceceeeeeeee-- passim

ST Er 15

§ 402(a) (1), 33 U.S.C. 1342 (a) (1) 0... 15

EC ED 1,12

en 15a

§ 502(11), 33 U.S.C. 1362(11) —.....-- 3

§ 502(12), 33 U.S.C. 1862(12) ............................ 15, 16a

§ 502(14), 33 U.S.C. 1362(14) —..................... 3

§ 502(16), 33 U.S.C. 1362 (16) —.. 15, 16a

§ 510(2), 33 U.S.C. 1370(2) iceataeiaitit 19

Clean Water Act of 1977, Pub. L. No. 95-217, § 64,

> re a 18

Electric Consumers Protection Act of 1986, Pub.

L. No. 99-495, 100 Stat. 1243 24

Statutes and regulations—Continued: P.

Federal Power Act, 16 U.S.C. 791 et seq.:

ToS A ee

f § Do ddd

Bo SE

§ 10(j) (1), 16 U.S.C. 803 (j) (1) —..-...-.-....

§ 10(j) (2), 16 U.S.C. 803 (j) (2) .......................

§ 10(j) (2) (A), 16 U.S.C. 803 (j) (2) (A)...

§ 10(j) (2) (B), 16 U.S.C. 803 (j) (2) (B)

§ 30(c), 16 U.S.C. S2Ba(C) .......--.2.cceceenenrcceeseeenee

Federal Water Power Act of 1920, ch. 285, 41 Stat.

ae RPARRKRKEEB

40 C.F.R.:

Section 35.1550 (e) (1979) .......22.2......-.e-ce-2.22ee

I I acacia

a I CIID carn sserrenerenmmesnntennmnasans

ae eee

| EEE II aera e ere EE 4,

TT anc nian aeeeneaniienennaneienee

I iiss ntieliltaiieaiaaintaita

Miscellaneous:

2 A Legislative History of the Water Pollution

Control Act Amendments of 1972, 93d Cong., 1st

CI GG ESS ae

3 CRS, A Legislative History of the Clean Water

Act of 1977: A Continuation of the Legislative

History of the Federal Water Poltution Control

J RN TE EE SC 18

EPA, Wetlands and 401 Certification: Opportuni-

ties and Guidelines for States and Eligible In-

aSSeoSSS

gg CERES 14

H.R. Conf. Rep. No. 830, 95th Cong., Ist Sess.

Es SE eee Le 18

H.R. Rep. No. 911, 92d Cong., 2d Sess. (1972) _...... 20

Hines, A Decade of Nondegradation Policy in Con-

gress and the Courts: The Erratic Pursuit of

Clean Air and Clean Water, 62 Iowa L. Rev. 643

(1977) 20

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) —............ 20

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1911

PUD No. 1 OF JEFFERSON COUNTY

AND CITY OF TACOMA, PETITIONERS

Vv.

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

DEPARTMENT OF FISHERIES AND

DEPARTMENT OF WILDLIFE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WASHINGTON

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

The Environmental Protection Agency (EPA) is

responsible for administering portions of the Clean

Water Act (CWA), 33 U.S.C. 1251 et seq., and the

Army Corps of Engineers is responsible for adminis-

tering a regulatory program under Section 404 of

the CWA, 33 U.S.C. 1344. The Federal Energy

Regulatory Commission (FERC) is responsible for

administering the Federal Power Act (FPA), 16

U.S.C. 791 et seg. In addition, federal agencies fre-

quently have to obtain certifications under Section

401 of the CWA, 33 U.S.C. 1341, in connection with

various activities and, with respect to this particular

(1)

case, the land on which the hydropower project would

be built is located within the Olympic National Forest

and is owned by the United States. The United States

therefore has a substantial interest in questions con-

cerning the extent to which the State of Washington

may impose conditions under Section 401(d) of the

CWA on a facility that must obtain a hydropower

license issued by FERC under the FPA.

STATUTES INVOLVED

The pertinent portions of the Clean Water Act,

33 U.S.C. 1251 et seqg., are reprinted at App., infra,

la-16a.

STATEMENT

l.a. The Clean Water Act, 33 U.S.C. 1251 et seq.,

is a comprehensive statute designed “to restore and

maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters” through reduction

and eventual elimination of the discharge of pol-

lutants into those waters. CWA § 101(a), 33 U.S.C.

1251(a). In addition, Congress set as a national

goal the attainment of “water quality which pro-

vides for the protection and propagation of fish, shell-

fish, and wildlife.” CWA §101(a)(2), 33 U.S.C.

1251(a)(2). To reach the stated goals, the Act an-

ticipates a partnership between the federal govern-

ment and the States.

The Administrator of the EPA is generally re-

sponsible for administering the Act. CWA § 101(d),

33 U.S.C. 1251(d). A major responsibility of the

Administrator under the Act is to ensure that tech-

nology-based limitations are imposed on discharges.

The Act thus provides for the development and pro-

mulgation of uniform national standards, known as

“effluent limitations guidelines,” for categories and

classes of discharges from point sources and for the

imposition of limitations on a case-by-case basis.

CWA §§ 301, 304, 33 U.S.C. 1311, 1814; El. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 126-

136 (1977). See CWA §§502(11) and (14), 33

U.S.C. 1862(11) and (14) (definitions of “effluent

limitation” and “point source’’).

b. A second major source of authority for meet-

ing the goals of the CWA is found in Section 303,

which directs States, with federal approval and over-

sight, to institute a range of comprehensive stand-

ards, potentially more stringent than the national

technology-based limitations, to assure protection of

the quality of all state waters. 33 U.S.C. 1313(a),

(b), and (c)(1). Such water quality standards pro-

vide “a supplementary basis * * * so that numerous

point sources, despite individual compliance with efflu-

ent 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).

Unlike the national industry-specific effluent limi-

tations, state water quality standards are not tech-

nology-based requirements; instead, each State’s water

quality standards “define[] the water quality goals

of a water body * * * by designating the use or uses

to be made of the water and by setting criteria neces-

sary to protect the uses.” 40 C.F.R. 131.2. See also

CWA §303(c)(2)(A), 33 U.S.C. 13813(c) (2) (A)

(water quality standards “shall consist of the desig-

nated uses of the navigable waters involved and the

water quality criteria for such waters based upon

such uses”). The CWA provides that “[s]uch stand-

ards shall be such as to protect the public health or

welfare, enhance the quality of water and serve the

purposes of [the CWA].” 33 U.S.C. 1313(c) (2) (A).

Echoing the goals of the Act stated in Section 101,

Section 303(c)(2){A) also requires a State’s water

quality standards to take into consideration, for each

water body examined, “their use and value for public

water supplies, propagation of fish and wildlife,

recreational purposes, and agricultural, industrial,

and other purposes.” 33 U.S.C. 1313(c)(2)(A).

Under EPA’s regulations, the water quality stand-

ards must include “[a]n antidegradation policy”

providing generally that the existing uses of the

water and the existing quality of the water shall be

maintained and protected. 40 C.F.R. 131.6(d), 131.12

(a). See CWA §303(d)(4)(B), 33 U.S.C. 1313

(d) (4) (B).

Each State must submit its water quality stand-

ards to EPA for review and approval. Upon ap-

proval by EPA, a state-adopted water quality stand-

ard “shall thereafter be the water quality standard

for the applicable waters of that State.” CWA § 303

2. This case involves the proposed Elkhorn Hydro-

electric Project. Petitioners plan to build the project

on the Dosewallips River, which drains western

Washington’s Olympic Peninsula. The River “flows

east through the Olympic National Park, a national

wilderness area, national forest land, and then pri-

vate land before it empties into Hood Canal.” Pet.

App. 4a. The facility would be built just outside the

Olympic National Park, ‘hid., and we are informed

by the United States Forest Service that it would be

located on federally owned land within Olympic Na-

tional Forest. Petitioners propose to operate the

facility by diverting water from a 1.2-mile reach of

the River (the bypass reach), running the water

through turbines and then returning the water to the

River. /hid. Currently, the natural flows in this

reach of the River are “essentially undiminished by

appropriation.” Pet. App. 3la.’ The River supports

three species of anadromous fish: steelhead, and Coho

and Chinook salmon. /d. at 32.

3. Petitioners filed their application for the Elk-

horn project with FERC on March 18, 1986. Section

401(a) of the CWA, 33-U.S.C. 1341(a), requires an

applicant for a license or permit for an activity that

may result in a discharge into navigable waters to

obtain a certification from the State where the dis-

charge will occur. The certification must state that

“any * * * discharge” into navigable waters that

results from the project “will comply with the ap-

plicable provisions of [33 U.S.C.] 1311, 1312, 1313,

1316, and 1317.” Under Section 401(d) of the CWA,

the state certification must set forth such limitations

as will “assure that [the] applicant for a Federal

license or permit will comply with any applicable

* * * limitations * * * under [Section 301]” of the

CWA “and with any other appropriate requirement of

State law.” 33 U.S.C. 1341(d). Accordingly, before

FERC could act, petitioners had to obtain a Section

401 certification from the State of Washington.

Petitioners consulted with a number of state and

federal fisheries, wildlife, and environmental agen-

cies, including Washington’s Department of Ecology

(Ecology), as well as affected Indian tribes. In co-

operation with the agencies and tribes, petitioners

undertook a study of instream flow conditions on the

Dosewallips. Based on that study, petitioners pro-

posed minimum flows for the Elkhorn project’s by-

pass reach of between 65 and 155 cfs (7.e., cubic feet

per second), depending on the season. Currently, the

1 There is nothing in the record to suggest that petitioners

have obtained the right to use the water necessary for the

project.

stream flow in that portion of the river ranges be-

tween 149 cfs and 738 cfs. Pet. App. 5la.

4. On June 11, 1986, Ecology issued a Section 401

water quality certificate imposing a number of con-

ditions on the Elkhorn project. As relevant here,

Ecology imposed a minimum stream-flow requirement

of between 100 and 200 cfs, depending on the season.

A state appeals board, however, determined that the

minimum flow requirement was intended to enhance,

not merely maintain, the Dosewallips fishery and that

the flow regime therefore exceeded Ecology’s author-

ity under state law. Pet. App. 55a-57a.

6. Both petitioners and Ecology appealed to the

state Superior Court. In an unpublished opinion is-

sued on May 8, 1991, the Superior Court concluded

that Ecology was empowered by CWA Section 401

to require petitioners to comply with Ecology’s mini-

mum flow regime. Pet. App. 29a-36a, 37a-45a. The

Superior Court also concluded that Ecology had im-

posed the minimum flow requirement merely to pro-

tect the Dosewallips fishery, not to improve it, and

that, in any event, Ecology was empowered under

state law to impose conditions that improve, rather

than merely maintain, water resources.

7. Petitioners appealed to the Washington Su-

preme Court. That court sustained Ecology’s im-

position of the minimum flow requirement under

Section 401. Pet. App. 3a-28a. It found that the

antidegradation provisions of the State’s water qual-

ity standards required the imposition of the minimum

flows. The court stated:

[CWA S]ection 401 requires states to certify

compliance with state water quality standards.

Washington’s standards prohibit the degradation

of the state’s waters, and prohibit the degrada-

tion of fish habitat and spawning in the Dose-

wallips in particular. Therefore, section 401 re-

quired Ecology to certify that the Elkhorn project

would not degrade fish habitat and spawning in

the Dosewallips. Given that Ecology’s fisheries

biologists determined that the instream flows

urged by [petitioners] risked such degradation,

Ecology therefore could not issue the 401 certifi-

cate without imposing more protective instream

flow conditions. Absent such a condition, Ecology

could not assure compliance with state water

quality standards.

Pet. App. 7a-8a.

The court also upheld the condition under CWA

Section 401(d), which allows States to impose condi-

tions based upon several enumerated sections of the

CWA and “any other appropriate requirement of

state law.” 33 U.S.C. 1341(d). The court rejected

petitioners’ argument that the phrase “any other

appropriate requirement of State law” was intended

to include only water quality standards under CWA

§ 303, 33 U.S.C. 1313. Pet. App. 13a. The court

referred to the express goals of the Clean Water Act

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,” 33 U.S.C.

1251(a). Relying on “[t]his broad purpose,” Pet.

App. lla, the court read Section 401(d) to confer on

the States a broad power to “consider all state action

related to water quality in imposing standards on

section 401 certificates.” Pet. App. 13a.

In addition, the court rejected the argument that

allowing states to impose minimum flow requirements

under Section 401 of the CWA is contrary to Cali-

fornia v. FERC, 495 U.S. 490 (1990), in which this

Court held that the California State Water Resources

Control Board had no authority to impose minimum

flow-requirements on projects licensed under the FPA.

The Washington Supreme Court concluded that Sec-

tion 401 constitutes an independent grant of state

power in the otherwise comprehensive scheme of fed-

eral regulation under the FPA. Pet. App. 20a-21a.

SUMMARY OF ARGUMENT

Under Section 401(a)(1) of the CWA, an appli-

cant for a federal license—including a license from

FERC to construct and operate a hydropower facil-

ity—that “may result in any discharge into the

navigable waters” shall obtain a certification from

the State involved “that any such discharge will com-

ply” with designated provisions of the CWA. 33

U.S.C. 13841(a)(1). Such a certification under Sec-

tion 401(d) of the Clean Water Act must set forth

such limitations as will “assure that [the] applicant

for a Federal license or permit will comply with any

applicable * * * limitations * * * under [Section

301]” of the CWA “and with any other appropriate

requirement of State law.” 33 U.S.C. 1341(d).

In this case, the State issued petitioners a Section

401 certification, but included in the certification a

requirement that petitioners maintain a minimum

stream flow once their project is built. The question

presented in this case is whether the minimum flow

condition imposed by the State is a valid Section

401(d) condition, i.e., whether it is necessary to

assure compliance with “any applicable * * * limi-

tations * * * under section [301]” of the CWA “and

with any other appropriate requirement of State law.”

The Washington Supreme Court’s decision should

be affirmed. Even if, as petitioners argue, a State

may impose a condition under Section 401(d) only

to assure compliance of a “discharge” (a term used

in Section 401(a) (1), but not Section 401(d)) with

the State’s EPA-approved water quality standards,

petitioners’ project would cause two distinct dis-

charges: the discharge of fill and construction mate-

rial into the water to construct the dam and the dis-

charge of water over or through the dam once it is

built. Both discharges could reasonably be said to

result in the problem the State identified: the lack

of water in the bypass reach of the Dosewallips River

that threatens the use of the river as a fish habitat.

Thus, both discharges could reasonably be said to

cause a violation of the State’s water quality standards.

Petitioners also contend that the minimum flow

condition is not necessary to assure compliance with

the State’s water quality standards, since no specific

numerical criterion in those standards would be vio-

lated by the failure to maintain the minimum flow

sought by the State. That contention is mistaken.

The Washington Supreme Court relied on the desig-

nated and existing use of the Dosewallips River as

fish habitat and on the State’s antidegradation policy.

It is undisputed that designated uses are a com-

ponent of state water quality standards, and the

State therefore had authority to impose a minimum

flow condition to assure that petitioners’ project would

not be inconsistent with the use of the Dosewallips

River as fish habitat. In addition, Congress, the

EPA, and this Court have long recognized that anti-

degradation policies are also an integral part of state

water quality standards. Those policies assure that

waters and their existing uses are not degraded. There

is no reason why such policies may not be used, as

here, to assure that an existing use of a body of water

is not degraded, regardless of whether specific appli-

cable water quality criteria are satisfied.

Petitioners’ project also requires licensing by FERC.

The Federal Power Act requires FERC, in consulta-

tion with other resource agencies, to make a number

of determinations concerning the conditions under

which petitioners must operate their project, includ-

ing how best to protect the fish habitat in the Dose-

wallips River. Since FERC has not yet acted on

petitioners’ license application, there is no way to

know whether any determination that FERC might

make concerning petitioners’ project would pose any

conflict with the conditions imposed by the State in

the Section 401 certification at issue in this case.

Accordingly, this case does not present any question

concerning the effect of the Section 401 conditions

imposed by the State on any determination FERC

must make in FPA licensing proceedings. In par-

ticular, since the basis of any conflict between a hypo-

thetical FERC licensing decision and the Section 401

certification cannot be known, it would be inappro-

priate in this case to attempt to determine how any

such hypothetical conflict should be resolved.

ARGUMENT

I. THE DECISION OF THE WASHINGTON SUPREME

COURT SHOULD BE AFFIRMED BECAUSE THE

INSTREAM FLOW CONDITION IMPOSED BY THE

STATE IN THIS CASE IS A VALID SECTION 401(d)

CONDITION

Petitioners contend (Br. 21-30) that the minimum

flow condition imposed by the State falls outside the

scope of Section 401 because the condition does not

address a “discharge.” That contention is mistaken.

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

Section 401(d) condition imposed by the State in

this case satisfies that test.

A. The State’s Section 401(d) Minimum Flow Condi-

tion Addresses The Compliance Of A Discharge

With Applicable Provisions Of The CWA

1. Section 401(a)(1) of the CWA requires an

applicant for a hydropower license to obtain a state

certificate that “any * * * discharge” into navigable

waters that results from the project “will comply

with the applicable provisions of [33 U.S.C.] 1311,

1312, 1313, 13816, and 1317.” 33 U.S.C. 1341(a). In

this case, the State granted petitioners a certification

under Section 401(a). But the State also imposed

conditions on that certification pursuant to Section

401(d) of the CWA, 33 U.S.C. 1341(d). That provi-

sion does not use the term “discharge,” as does Sec-

tion 401(a)(1), but instead provides that a Section

401 certification “shall set forth any * * * limitations

* * * necessary to assure that any applicant * * * will

comply” with certain provisions of the CWA or “any

other appropriate requirement of State law.”

The question presented in this case is whether the

State’s minimum flow requirement is a valid Section

401(d) condition. All parties appear to agree on the

following proposition: the State’s minimum flow re-

quirement is a valid Section 401(d) condition if it

is necessary to assure that discharges resulting from

the project will comply with applicable provisions of

the CWA or “any other appropriate requirement

of State law.” See, e.g., Pet. Br. 26. In our view,

the State’s minimum flow condition satisfies that

standard.’

2. Petitioners argue (Pet. Br. 21-30) that the mini-

mum streamflow condition in this case is not a valid

Section 401(d) condition because no discharges that

result from their project would violate applicable

CWA provisions or other appropriate requirements

of state law. Two distinct discharges, however, that

would violate the CWA result from petitioner’s

facility.

a. The first discharge caused by this project is the

actual construction of the dam itself. Section 401(a)

specifically recognizes that state certification is neces-

sary for “any activity including, but not limited to,

the construction or operation of facilities.” 33 U.S.C.

1341(a)(1) (emphasis added). As petitioners ac-

knowledge (Pet. Br. 28), the materials from which

the dam is to be constructed must be “discharged” into

the river to build the dam. Indeed, Section 404 of the

2It is therefore unnecessary to determine in this case

whether Congress intended by the use of the term “applicant,”

rather than “discharge,” in Section 401(d) to grant States a

broader power to condition certifications under Section 401 (d)

than to deny them under Section 401(a) and, if so, whether

there are limitations on the States’ authority to impose such

conditions.

Clean Water Act requires petitioners to obtain a

federal permit for that initial construction activity.’

If an effect of a discharge would violate the State’s

Section 303 water quality standards, a State may

refuse to certify that the “discharge will comply with

the applicable provisions of [Section 303 of the

CWA],” 33 U.S.C. 1341(a) (1), or may condition its

certification to ensure such compliance. For example,

discharge of a particular material into a river that

would be harmless in itself could, when combined

with materials already in the river, produce pollut-

ants that would violate a State’s water quality stand-

ards. In this case, the effect of the discharge of the

construction materials will be to complete a diversion

structure that, it is alleged, will cause or contribute

to a violation of state water quality standards. In

those circumstances, the State could surely find that

the discharge of the material would not comply with

the State’s water quality standards.

Moreover, the inference that operation of a facility

is an effect of the construction of that facility is

specifically embodied in the CWA itself. Under Sec-

tion 401(a) (3), 33 U.S.C. 1341(a) (3), the certifica-

tion provided by a State for construction of a facility

satisfies the certification requirement for operation

of the facility unless there are changes either in the

facility’s operation, the State’s water quality stand-

ards, or the characteristics of the water. As EPA

has explained in guidance to the States on imple-

mentation of Section 401, “because the States’ certifi-

cation of a construction permit or license also op-

* That federal permit is also subject to state review for

compliance with water quality standards under Section 401.

See Monongahela Power Co. Vv. Marsh, 809 F.2d 41, 48 (D.C.

Cir.), cert. denied, 484 U.S. 816 (1987).

erates as certification for an operating permit, * * *

it is imperative for a State review to consider all

potential water quality impacts of the project, both

direct and indirect, over the life of the project.”

EPA, Wetlands and 401 Certification: Opportunities

and Guidelines for States and Eligible Indian Tribes

22 (Apr. 1989). EPA’s interpretation of Section

401 as including indirect effects of a discharge of

construction materials is entitled to deference. Ar-

kansas v. Oklahoma, 112 S. Ct. 1046 (1992) ; Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984).

In sum, if the operation of the dam would violate

the applicable provisions of the CWA, the violation

is an indirect effect of the discharge of material to

build the dam. Accordingly, the State may impose

a condition in a Section 401 certificate to assure that

the discharge of fill and construction materials does

not result in lack of compliance with the CWA when

the dam is in operation.

b. A second “discharge” is found at the point

where the water not needed to run the turbines is re-

leased at the dam itself. Petitioners contend (Pet. Br.

25) that this release of water is not a “discharge,”

but is a “modification” of the stream-flow not subject

to the provisions of Section 401. However, as petition-

ers later note (Pet. Br. 28 n.20), “dams * * * contain

other mechanisms for releasing water into the stream

below, including such devices as crest-gates, sluice-

gates and release valves that may be used to reduce

pressure behind the dam, to spill water over the top

during high water or to allow for maintenance on

the turbine facility.” Thus, when the operator of the

dam releases water through a crest-gate, sluice-gate,

release valve, or other similar device, it has caused

a discharge within the meaning of Section 401.‘

It is that discharge that the State here has condi-

tioned in its water quality certification. Once again,

if that discharge would result in a failure to comply

with the applicable CWA provisions, the State may

* We note that Sections 301 and 402 of the Act require a

permit for the “discharge of any pollutant,” i.e., for the addi-

tion of any pollutant to a water of the United States from a

point source. See CWA § 502(12), 33 U.S.C. 1362(12) (defin-

ing “discharge of a pollutant). We do not suggest here, how-

ever, that the term “discharge” in those two Sections extends

to activities which do not involve either a “pollutant” or an

“addition” of a pollutant to navigable waters. See National

Wildlife Federation v. Consumers Power Co., 862 F.2d 580

(6th Cir. 1988); United States v. Tennessee Water Quality

Control Bd., 717 F.2d 992, 997-998 (6th Cir. 1983), cert.

denied, 466 U.S. 937 (1984); National Wildlife Fed’n v.

Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); Missouri v. Depart-

ment of Army, 672 F.2d 1297, 1304 (8th Cir. 1982). Indeed,

Congress employed the term “discharge” when used without

qualification (as in Section 401(a)) more broadly than the

term “discharge of any pollutant,” which is used in a number

of other provisions of the CWA. See, e.g. 33 U.S.C. 1311(a),

1311 (h), 1312, 1816(a) (1), 1823(a), 1842(a) (1). See CWA

§ 502(16), 33 U.S.C. 1862(16) (“The term “discharge” when

used without qualification includes a discharge of a pollutant,

and a discharge of pollutants.”) (emphasis added).

Petitioners cite (Pet. Br. 29-30) the two National Wildlife

Federation cases for the proposition that hydropower struc-

tures do not cause a “discharge” that may be addressed under

Section 401. Those cases, however, involve the scope of the

term “discharge of any pollutant” under Section 402, 33 U.S.C.

1342. As discussed above, the term “discharge” as used in

Section 401(a) is broader than “discharge of any pollutant.”

For that reason, even petitioners do not appear to adopt

Amicus Niagara Mohawk Power Corporation’s argument

(Amicus Br. 11) that a Section 401(d) condition is valid only

if it regulates discharges “of pollutants.” See Pet. Br. 22

(specification of “discharge” to “include” a discharge of a

pollutant is “not actually definitional”).

impose conditions on a certification to assure that it

does not.

B. The Washington Supreme Court Appropriately

Found That The Minimum Flow Condition Was

Necessary To Assure That Petitioners’ Hydropower

Project Would Comply With Applicable CWA

Provisions

1. The Washington Supreme Court found that

operation of petitioners’ hydropower project would

violate the CWA because it would cause a violation

of the water quality standards promulgated by the

State and approved by EPA under CWA § 308, 33

U.S.C. 1313. In particular, the court found that the

State’s water quality standards included designated

uses for the water (in this case, as fish habitat), and

an antidegradation policy requiring that existing

uses (including use as fish habitat) be maintained.°

The court also found that the minimum flow condi-

tion to be imposed in the bypass reach was necessary

to assure that the river could continue to be used as

fish habitat. Accordingly, the court found that the

minimum flow condition was a valid Section 401 con-

dition—i.e., it was necessary to assure that the opera-

tion of the project would comply with state water

quality standards. Pet. App. 7a-8a.

It is undisputed that a State may impose Section

401(d) conditions on a certificate in order to assure

compliance with state water quality standards duly

promulgated under Section 303 of the Clean Water

Act, 33 U.S.C. 1313. See, e.g., Pet. App. 7a; Pet. Br.

31. Although Section 401(d) does not expressly refer

5’ Washington State’s policy provides that “[e]xisting bene-

ficial uses shall be maintained and protected and no further

degradation which would interfere with or become injurious

to existing beneficial uses will be allowed.” Wash. Admin.

Code 173-201-035(8) (a) (1990); see Pet. App. 7a.

to Section 303, at least two independent statutory

sources establish that a State may include conditions

in a Section 401 certification necessary to assure

compliance with Section 303. Section 401(d) itself

permits States to include conditions necessary to as-

sure compliance with “any other appropriate require-

ment of State law.” Regardless of what else that

phrase connotes,’ it certainly includes state water

quality standards duly promulgated by the State and

approved by EPA under Section 303. In addition,

Section 401(d) permits States to include conditions

necessary to assure compliance with Section 301, 33

U.S.C. 1311. As petitioners note (Pet. Br. 44), Sec-

tion 301 expressly incorporates, through Section

301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C), water

quality standards under Section 303." Accordingly,

® Since the decision of the Washington Supreme Court can

be affirmed on the apparently undisputed premise that “any

other appropriate requirement of State law” refers to state

water quality standards, it is not necessary to reach the ques-

tion of what other requirements of state law, if any, are in-

cluded within the meaning of that phrase. Compare Pet. App.

10a, 18a. Compare Central Maine Power Co., 52 F.E.R.C.

concerning recreation facilities); Allegheny Electric Coop.,

51 F.E.R.C, © 61,268, at 61,846 n.169 (1990) (discussing West

Virginia’s imposition of conditions related to recreation and

consultation).

7 Section 301 (b) (1) (C) states that “there shall be achieved”

by a certain date “any more stringent limitation, including

those necessary to meet water quality standards * * *, estab-

lished pursuant to any State law or regulations * * *, or re-

quired to implement any applicable water quality standard

established pursuant to [the CWA].” 33 U.S.C. 1311(b) (1)

When Congress added the reference to Section 303 in Sec-

tion 401(a) in 1977, Congress explained that “[t]he inclusion

of section 303 is intended to clarify the requirements of sec-

tion 401” and that “Section 303 is always included by refer-

when Section 401(d) permits States to condition

their certifications to assure compliance with Section

301, it thereby permits States similarly to condition

their certifications to assure compliance with water

quality standards adopted pursuant to Section 303.

2. Petitioners complain (Pet. Br. 33-37) that the

State’s application of its designated uses and its

antidegradation policy to protect a designated and

existing use of the waters as fish habitat was im-

proper, because the CWA depends solely on “objec-

tive criteria” to maintain and enhance water quality.

Petitioners’ contention is mistaken. Water quality

criteria can be, and frequently are, expressed in nar-

rative terms, such as “there shall be no discharge of

toxic pollutants in toxic amounts.” See American

Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C.

Cir. 1993). EPA has frequently translated such

narrative criteria into specific requirements in Sec-

tion 402 permits. See American Paper Institute, 996

F.2d at 350-353; Champion Int’l Corp. v. EPA, 850

F.2d 182, 184 (4th Cir. 1988). There is no reason

ence where section 301 is listed.” H.R. Conf. Rep. No. 830,

95th Cong,. Ist Sess. 96 (1977), reprinted in Congressional

Research Service, A Legislative History of the Clean Water

Act of 1977: A Continuation of the Legislative History of the

Federal Water Pollution Control Act, Vol. III, at 280 (1978).

Indeed, the failure specifically to enumerate Section 303 in

Section 401(d) is an artifact of the way Congress amended

the statute in 1977. The 1977 amendments provide that “Sec-

tion 401 * * * is amended by inserting ‘303,’ after ‘302’ in the

phrase ‘sections 301, 302, 306, and 307 of this Act,’ and in

the phrase ‘section 301, 302, 306, or 307 of this Act,’ each time

these phrases appear.” Clean Water Act of 1977, Pub. L. No.

95-217, § 64, 91 Stat. 1599. Section 401(d) included descrip-

tions of Sections 301, 302, 306, and 307, rather than simply

listing those sections, as did Section 401(a) (1). Accordingly,

although the word “303” was added to the list in Section

401(a) (1), the amendments did not expressly add the word

“303” to Section 401(d).

why antidegradation policies, which are highly analo-

gous to such narrative water quality criteria, should

be treated differently.°

3. Petitioners also argue (Pet. Br. 35-36) that anti-

degradation requirements cannot be an independent,

enforceable component of state water quality stand-

ards. Section 303(a)(1) of the CWA, 33 U.S.C.

1313(a) (1), provides that state water quality stand-

ards in existence at the time of the 1972 amendments

to the CWA were generally to remain in effect and

could be modified only as deemed necessary through

the triennial review process outlined in Section

303(c), 33 U.S.C. 1313(c). At the time of the enact-

§ Petitioners draw an artificial distinction between what

they term “water quantity” and “water quality” issues, and

argue that water quantity can never affect water quality—ap-

parently even when a lowering of the volume of the water in a

river would entirely destroy all of its uses. See Pet. Br. 37-42.

In support of that implausible contention, they argue (Pet.

Br. 37) that “[w]ater quantity issues are excluded from the

CWA by §§101(g) and 510(2) [of the CWA].” Section

101(g) provides that “[i]t is the policy of Congress that the

authority of each State to allocate quantities of water within

its jurisdiction shall not be superseded, abrogated or otherwise

impaired by [the CWA]” and that “nothing in [the CWA]

shall be construed to supersede or abrogate rights to quanti-

ties of water which have been established by any State.” 33

U.S.C. 1251(g). Section 510(2) provides that “nothing in

this chapter 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(2).

Those provisions thus generally preserve to each State the

authority to determine who has the right to various quantities

of water within its jurisdiction. Riverside Irrigation District

Vv. Andrews, 758 F.2d 508, 513 (10th Cir. 1985). Nothing that

has happened in this case would alter the State’s authority in

that regard. Indeed, nothing in the record suggests that the

State has yet allocated water rights for the project. Accord-

ingly, Sections 101(g) and 510(2) have no bearing on this

case.

ment of the 1972 amendments, the water quality

standards of all 50 States included antidegradation

provisions. See Hines, A Decade uf Nondegradation

Policy in Congress and the Courts: The Erratic Pur-

suit of Clean Air and Clean Water, 62 Iowa lL. Rev.

643, 658-660 (1977). By providing that existing

water quality standards were to remain in effect,

Congress in 1972 recognized that the antidegradation

provisions then in effect retained legal force.°

The consistent regulatory construction of Section

303 over the past twenty years establishes that an

antidegradation policy is an integral part of a State’s

water quality standards. EPA has continuously re-

quired by regulation that state water quality stand-

ards must include an antidegradation policy in order

to receive EPA approval, see 40 C.F.R. 131.6(d), and

has specified the required content of such a policy,

see 40 C.F.R. 131.12. Indeed, in an amendment to

Section 303 passed in 1987, Congress specifically rec-

ognized that antidegradation policies were an essen-

tial part of water quality standards. The amendment

* There were numerous indications of Congress’s approval

of the antidegradation concept in the legislative history. See,

e.g., H.R. Rep. No. 911, 92d Cong., 2d Sess. 20 (1972), re-

printed in 2 A Legislative History of the Water Pollution

Control Act Amendments of 1972 (CWA Leg. Hist.), 93d

Cong., Ist Sess. 772 (Comm. Print 1973); S. Rep. No. 414,

92d Cong., Ist Sess. 19-20 (1971), reprinted in 2 CWA Leg.

Hist. 1437-1438. See also CWA § 101(a), 33 U.S.C. 1251 (a)

(“The objective of [the CWA] is to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters.”) (emphasis added).

10 Precursors of the current regulations can be found at 40

C.F.R. 130.22(a) (1974); 40 C.F.R. 130.17(e) (1976); 40

C.F.R. 35.1550(e) (1979).

provided that “any effluent limitation * * * estab-

lished under this section * * * may be revised only if

such revision is subject to and consistent with the

antidegradation policy established under this section.”

83 U.S.C. 1313(d)(4)(B) (emphasis added).

Finally, this Court has recognized that a State’s

antidegradation policy is an integral, legally enforce-

able component of a State’s Section 303 water quality

standards and that application of that policy may de-

termine whether a particular activity complies with

those standards. In Arkansas v. Oklahoma, 112 S. Ct.

1046 (1992), the primary contention was that per-

mitting a particular discharge would, in the Court’s

terms, “violate[] the [state] water quality stand-

ards,” which provide that “‘no degradation * * *

shall be allowed’ [in the body of water at issue].”

Id. at 1051. The Court then considered whether

EPA’s application of the State’s antidegradation pro-

vision was appropriate. In the course of doing so,

the Court repeatedly referred to the antidegradation

policy as a part of the State’s water quality stand-

ards, see id. at 1058 n.13, 1059, and applied the policy

as a legally enforceable requirement under the CWA.

4. The State also justified the Section 401(d) con-

dition in this case as necessary to protect the River’s

designated use. Under Section 303(c)(2)(A) of the

CWA, new or revised water quality standards “shall

consist of the designated uses * * * and the water

quality criteria.” 33 U.S.C. 1313(c)(2)(A). Peti-

tioners seize on that language to argue (Pet. Br. 31-

35) that a State may not impose a Section 401(d) con-

dition to protect a designated use, but may do so only

to enforce specific water quality criteria. According

to petitioners, the State’s attempt to protect a des-

ignated use “improperly treats ‘and’ [in Section

303(c) (2) (A)] as if it meant ‘or’” (Pet. Br. 32) by

imposing a condition to protect a designated use where

no specific water quality-criterion is applicable.

Petitioners’ argument is based on a misreading of

the statutory language. Petitioners agree that a State

may impose a Section 401(d) condition to assure com-

pliance with state water quality standards. By the

literal terms of Section 303(c)(2)(A), water quality

standards consist of “designated uses * * * and * * *

water quality criteria.” If a new project would be

inconsistent with a designated use, the fact that it

might comply with the State’s water quality criteria

would thus be irrelevant. Its inconsistency with the

designated use would alone be sufficient to establish,

under the literal terms of the statute, that it did not

comply with the designated use and the water quality

criteria, i.e., with applicable water quality standards.

Since failure to achieve the minimum flow require-

ment would be inconsistent with the designated use

of the Dosewallips River as fish habitat, imposing the

minimum flow requirement is necessary to achieve

compliance with applicable water quality standards.

Il. THIS CASE PRESENTS NO QUESTION CONCERN-

ING THE EFFECT OF THE STATE’S SECTION

401(d) CERTIFICATION CONDITIONS ON THE

FPA LICENSE, IF ANY, THAT FERC ULTI-

MATELY DECIDES TO ISSUE FOR PETITIONERS’

PROJECT

For reasons explained above, we believe that re-

spondents’ Section 401(d) certification was valid, and

the decision of the Washington Supreme Court there-

fore should be affirmed. Petitioners argue, however,

that our interpretation of the Clean Water Act should

be rejected because it would create a conflict between

the State’s authority under Section 401(d) and vari-

ous powers granted to FERC under the Federal

Power Act (FPA). In particular, petitioners and

their amici argue that the FPA authorizes FERC to

determine minimum instream flows, and that the

CWA therefore ought not be interpreted to permit

the States a similar authority under Section 401.

In our view, there is no conflict at this time be-

tween the powers granted FERC by the FPA and

the powers granted the State of Washington by the

CWA. Under Section 10(j) of the FPA, 16 U.S.C.

803(j), FERC must include in a hydropower license

conditions “to adequately and equitably protect, miti-

gate damages to, and enhance, fish and wildlife (in-

cluding related spawning grounds and habitat) af-

fected by the development, operation, and manage-

ment of the project.” If and when FERC determines

for specific reasons that a stream-flow different from

that imposed by the State is required by the FPA, the

effect of that determination—and the consequent

reconciliation of the Federal Power Act and the Clean

Water Act—will be ripe for consideration by FERC

and on a petition for review in federal court of any

such FERC decision. In short, in its present posture,

this case does not present any question concerning

the effect of the State’s Section 401(d) certification

conditions on various decisions FERC must make in

determining whether and under what conditions to

license the project under the FPA.

1. Part I of the FPA was originally enacted as

the Federal Water Power Act of 1920, ch. 285, 41

Stat. 1063, and constitutes “a complete scheme of

national regulation” to “promote the comprehensive

development of the water resources of the Nation.”

First lowa Hydro-Electric Coop. v. FPC, 328 U.S.

152, 180 (1946). The purpose of the statute was to

centralize authority over hydropower projects, which

commonly involve bodies of water that flow through,

affect, or border a number of States, in a single fed-

eral agency—first, the Federal Power Commission,

now FERC. See id. at 174. The FPA requires any

party constructing a hydroelectric project that is on

navigable waters or federal lands or that will affect

interstate commerce, to obtain a license from FERC.

FPA § 4(e), 16 U.S.C. 797(e). In deciding whether

to issue such a license, FERC must, “in addition to

the power and development purposes for which li-

censes are issued, * * * 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 recreational opportunities,

and the preservation of other aspects of environmen-

tal quality.” Ibid. See also Udall v. FPC, 387 U.S.

428 (1967). Section 10(a) of the FPA gives FERC

the power to impose conditions in a license so that the

project is “best adapted to a comprehensive plan for

improving or developing a waterway,” which spe-

cifically includes protection and enhancement of fish

habitat as well as other beneficial public uses. 16

U.S.C. 803(a).

To be sure, the statute does impose limits on

FERC’s authority. See, e.g., Escondido Mutual Water

Co. v. La Jolla Band of Mission Indians, 466 U.S. 765

(1984) (discussing requirement in 16 U.S.C. 797(e)

that hydropower license for project within federal

reservation must contain conditions determined neces-

sary by responsible cabinet officer) ; 16 U.S.C. 823a(c)

(FERC exemption from licensing for a hydropower

project of 15 megawatts or less using a manmade

conduit must contain conditions deemed appropriate

by relevant federal or state fish and wildlife agency).

One of those limits is found in Section 10(j) of the

FPA. Under that provision, which was enacted as

part of the Electric Consumers Protection Act of

1986, Pub. L. No. 99-495, 100 Stat. 1243, each

license must include conditions “to adequately and

equitably protect, mitigate damages to, and enhance,

fish and wildlife (including related spawning grounds

and habitat) affected by the development, opera-

tion, and management of the project.” 16 U.S.C.

803(j) (1). Such conditions shall be based on recom-

mendations from the National Marine Fisheries Serv-

ice, the Fish and Wildlife Service, and state fish and

wildlife agencies. Ibid. If FERC finds that such a

recommendation is “inconsistent with the purposes

and requirements” of the FPA, it must attempt to

resolve any such inconsistency, giving “due weight to

the recommendations, expertise, and statutory re-

sponsibilities” of the recommending agency. 16 U.S.C.

803(j)(2). Finally, if no reconciliation is possible

and FERC fails to adopt such a recommendation “in

whole or in part,” it must both explain why the agen-

cy’s recommendation is inconsistent with the FPA, 16

U.S.C. 803(j)(2)(A), and find “that the conditions

selected by the Commission comply with” the require-

ment to protect, mitigate damages to, and enhance,

fish and wildlife affected by operation of the project,

16 U.S.C. 803(j)(2)(B). Cf. United States Dep’t of

Interior v. FERC, 952 F.2d 538, 545 (D.C. Cir.

1992); National Wildlife Fed’n v. FERC, 912 F.2d

1471, 1480 (D.C. Cir. 1990).

In California v. FERC, 495 U.S. 490 (1990), this

Court considered the scope of FERC’s authority un-

der the FPA to set stream-flow conditions." The

Court reaffirmed the holding of First lowa that, aside

from instances where authority was “ ‘saved’ to the

States” by specific FPA provisions, Congress intended

“to let the supersedure of the state laws by federal

legislation take its natural course.” 495 U.S. at 498.

" Since the State in California v. FERC had not attempted

to impose a condition in its Section 401 certification, this

Court had no occasion to consider the application of the Clean

Water Act in that case.

In First Iowa, that principle led the Court to hold

that the FPC had the responsibility to set minimum

stream flows. In California v. FERC, the Court

reached the same conclusion, specifically noting that

“Congress has amended the FPA [in the ECPA

amendments] to elaborate and reaffirm First lowa’s

understanding that the FPA establishes a broad and

paramount federal regulatory role.” 495 USS. at 499.

2. This case does not present any question con-

cerning whether and under what circumstances a

determination by FERC under the FPA concerning

appropriate stream-flow conditions could have an ef-

fect on different stream-flow conditions imposed by

the State in a Section 401 certification. It is common

ground that Section 401(d) of the CWA grants the

States authority to require that hydropower projects

(or at least the discharges resulting from such proj-

ects) comply with various provisions of the CWA,

including (at least) state water quality criteria.

Where a State imposes a Section 401(d) condition

to assure compliance with such criteria, that condition

necessarily becomes part of the FERC-issued federal

license. Similarly, it is clear that the FPA authorizes

—indeed, requires—FERC to impose license condi-

tions of various sorts for protection of fish habitats.

The disputed point is the relatively narrow question

of whether a State may impose a stream-flow condi-

tion under Section 401 that is required not to enforce

a State’s numerical water quality criteria, but to pro-

tect the designated ard existing use of the body of

water from degradation.

For the reasons we have given above, in our view

a State generally does have authority to impose a

stream-flow condition in the above circumstances. But

that authority may have limitations in the context of

FPA licensing of a hydroelectric facility. In particu-

lar, a case could arise where FERC has determined

that a particular instream flow is required by the

FPA, and where that flow is different from the mini-

mum flow condition imposed by the State. In that

case, a question would be presented concerning how

to harmonize the competing regulatory schemes.

That question could be answered in a variety of

ways. It is possible that, in such circumstances, the

state minimum flow condition would prevail, since

CWA Section 401(d) unequivocally states that condi-

tions included in the Section 401 certificate “shall be-

come a condition on” the federal license. 33 U.S.C.

1341(d). It could be argued, on the basis of that

statutory language, that federal licensing authorities

such as FERC have no authority to avoid the State’s

conditions. It also could be argued, however, that in

such circumstances FERC’s stream-flow condition

would prevail, in light of the k PA’s grant of author-

ity to FERC over just such matters. Indeed, it could

be argued that the FPA in effect gives FERC author-

ity to balance the various possible uses of the body of

water and that FERC’s resulting determination is in

effect a designation of the appropriate use of the body

of water for hydropower licensing purposes. If that

were so, FERC’s determination would disable the

State from relying on its own designated use to im-

pose its condition.”

3. For present purposes, the crucial point is that

this case does not present any question concerning

the effect of a hypothetical FERC determination that

disagreed with the State’s stream-flow condition. In

our view, it would be inappropriate to use this case

as a vehicle to resolve such a hypothetical conflict.

Cf. Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146,

1149 (1992); Pittsburgh & Lake Erie R.R. v. Railway Labor

Executives Ass'n, 491 U.S. 490, 510 (1989); United States v.

Fausto, 484 U.S. 439, 453 (1988).

First, since FERC has not yet acted on petitioners’

license application, it is possible that FERC will deny

petitioners a license altogether. If so, that would

render moot any dispute concerning conditions im-

posed by the State’s Section 401 certification.”

Second, even if FERC were to decide to issue peti-

tioners a license, it is doubtful whether any conflict

between FERC and the State would develop. Under

the FPA, FERC is obligated to “give equal considera-

tion to” the protection of fish habitat when determin-

ing whether to issue a license for a hydropower pro}-

ect. FERC is also obligated to impose such conditions

(including minimum flow conditions) as are recom-

18 Indeed, petitioners’ application must overcome several

obstacles in order to obtain approval as proposed. The land

management plans for the Olympic National Forest, in which

petitioners’ project would be built, are currently being re-

evaluated due to the litigation involving the northern spotted

owl in the Pacific Northwest. See Seattle Audubon Society

v. Espy, 998 F.2d 699 (9th Cir. 1993). Under the preferred

alternative proposed in the Draft Supplemental Environmental!

Impact Statement published in July 1993, the area around the

Dosewallips River would be considered a Tier I key watershed.

Pending completion of a watershed analsyis, the plan calls

for creation of a Riparian Reserve of at least 300 feet on each

side of the river. Special management guidelines are to apply

in such areas, i.e., they “prohibit activities not designed specifi-

cally to maintain and restore the structure and function of the

reserve and benefit fish habitat.” Draft SEIS at 2-16. More-

over, the draft land management plan includes guidelines

calling for “in-stream flows and habitat conditions that main-

tain or restore riparian resources.” Draft SEIS at B-87.

The Environmental Impact Statement is scheduled to be

completed in February 1994; final decisions amending the Na-

tional Forest Plans involved are expected in March 1994. If

the proposed plans are made final, it would be doubtful whether

FERC, which must ensure that a hydropower license “will not

interfere or be inconsistent with the purpose for which [the

national forest] was created,” 16 U.S.C. 797(e), could issue a

license for petitioners’ project.

mended by Washington’s wildlife to

and enhance the fish habitat, unless FERC Pad sc

that such conditions are inconsistent with the FPA

Even where FERC finds such an inconsistency, FERC

must nonetheless impose other conditions that are con-

sistent with the FPA to protect and enhance the fish

habitat. In light of those standards, it may well be

that FERC will not reach a different conclusion from

_ reached by the State concerning the minimum

ee to be imposed on petitioners’

Third, even if it were likely that a confli

develop between FERC’s Seeousieation or Hage

FPA of what protections should be afforded fish habi-

tat and the State’s minimum flow conditions, it would

be inappropriate to anticipate that conflict and seek

to resolve it in this case. If FERC finds that the

State’s condition is inconsistent with conditions FERC

must impose pursuant to the Federal Power Act, it

can either attempt to refuse to include the State’s

conditions in a license it grants or it can include the

conditions, but present its own views concerning their

legal status. In either event, FERC’s determination

can be tested on judicial review of FERC’s licensing

decision, based on a full administrative record and a

concrete controversy. Compare Escondido Mutual

Water Co. v. La Jolla Band o Mission Indi

U.S. 765, 772-779 (1984). , en

CONCLUSION

The Court should affirm the judgment of the Wash-

ington Supreme Court.

Respectfully submitted.

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

ANNE S. ALMY

ALBERT M. FERLO, JR.

Attorneys

DECEMBER 1993

1251, provides in relevant part:

APPENDIX

“eetion 101 of the Clean Water Act, 33 U.S.C.

§ 1251. Congressional declaration of goals and

policy

(a) Restoration and maintenance of chemical,

physical and biological integrity of Nation’s

waters; national goals for achievement of

objective

The objective of this chapter is to restore and

maintain the chemical, physical, and biological

integrity of the Nation’s waters. In order to

achieve this objective it is hereby declared that,

consistent with the provisions of this chapter—

(1) it is the national goal that the discharge

of pollutants into the navigable waters be elimi-

nated by 1985;

(2) it is the national goal that wherever at-

tainable, an interim goal of water quality which

provides for the protection and propagation of

fish, shellfish, and wildlife and provides for rec-

reation in and on the water be achieved by July

1, 1983;

(3) it is the national policy that the discharge

of toxic pollutants in toxic amounts be pro-

hibited ;

(4) it is the national policy that Federal fi-

nancial assistance be provided to construct pub-

licly owned waste treatment works;

(5) it is the national policy that areawide

waste treatment management planning processes

be developed and implemented to assure adequate

control of sources of pollutants in each State;

(la)

(6) it is the national policy that a major re-

search and demonstration effort be made to de-

velop technology necessary to eliminate the dis-

charge of pollutants into the navigable waters,

waters of the contiguous zone, and the oceans;

and

(7) it is the national policy that programs for

the control of nonpoint sources of pollution be

developed and implemented in an expeditious

manner so as to enable the goals of this chapter

to be met through the control of both point and

nonpoint sources of pollution.

(b) Congressional recognition, preservation, and

protection of primary responsibilities and

rights of States

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibili-

ties and rights of States to prevent, reduce, and

eliminate pollution, to plan the development and

use (including restoration, preservation, and en-

hancement) of land and water resources, and to

consult with the Administrator in the exercise of

his authority under this chapter. It is the policy

of Congress that the States manage the construc-

tion grant program under this chapter and im-

plement the permit programs under sections

1342 and 1344 of this title. It is further the

policy of the Congress to support and aid re-

search relating to the prevention, reduction, and

elimination of pollution and to provide Federal

technical services and financial aid to State and

interstate agencies and municipalities in connec-

tion with the prevention, reduction, and elimina-

tion of pollution.

* oe _ * *

(d) Administrator of Environmental Protection

Agency to administer chapter

Except as otherwise expressly provided in this

chapter, the Administrator of the Environmental

Protection Agency (hereinafter in this chapter

challed “Administrator”’) shall administer this

chapter.

+ * * * *

(g) Authority of States over water

It is the policy of Congress 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.

It is the further policy of Congress that nothing

in this chapter shall be construed to supersede or

abrogate rights to quantities of water which

have been established by any State. Federal

agencies shall co-operate with State and local

agencies to develop comprehensive solutions to

prevent, reduce and eliminate pollution in con-

cert with programs for managing water re

sources.

2. Section 303 of the Clean Water Act, 33 U.S.C.

1313, provides in relevant part:

§ 1313. Water quality standards and implemen-

tation plans

(a) Existing water quality standards

(1) In order to carry out the purpose of this

chapter, any water quality standard applicable

to interstate waters which was adopted by any

State and submitted to, and approved by, or is

awaiting approval by, the Administrator pursu-

ant to this Act as in effect immediately prior to

October 18, 1972, shall remain in effect unless

the Administrator determined that such standard

is not consistent with the applicable requirements

of this Act as in effect immediately prior to Oc-

tober 18, 1972. If the Administrator makes such

a determination he shall, within three months

after October 18, 1972, notify the State and

specify the changes needed to meet such require-

ments. If such changes are not adopted by the

State within ninety days after the date of such

notification, the Administrator shall promulgate

such changes in accordance with subsection (b)

of this section.

(2) Any State which, before October 18,

1972, has adopted, pursuant to its own law, water

quality standards applicable to intrastate waters

shall submit such standards to the Administrator

within thirty days after October 18, 1972. Each

such standard shall remain in effect, in the same

manner and to the same extent as any other

water quality standard established under this

chapter unless the Administrator determines that

such standard is inconsistent with the applicable

requirements of this Act as in effect immediately

prior to October 18, 1972. If the Administrator

makes such a determination he shall not later

than the one hundred and twentieth day after

the date of submission of such standards, notify

the State and specify the changes needed to meet

such requirements. If such changes are not

adopted by the State within ninety days after

such notification, the Administrator shall pro-

mulgate such changes in accordance with sub-

section (b) of this section.

(3)(A) Any State which prior to October 18,

1972, has not adopted pursuant to its own laws

water quality standards applicable to intrastate

waters shall, not later than one hundred and

eighty days after October 18, 1972, adopt and

submit such standards to the Administrator.

(B) If the Administrator determines that any

such standards are consistent with the applicable

requirements of this Act as in effect immediately

prior to October 18, 1972, he shall approve such

standards.

such standards are not consistent with the appli-

cable requirements of this Act as in effect im-

mediately prior to October 18, 1972, he shall, not

later than the ninetieth day after the date of

submission of such standards, notify the State

and specify the changes to meet such require-

ments. If such changes are not adopted by the

State within ninety days after the date of notifi-

cation, the Administrator shall promulgate such

standards pursuant to subsection (b) of this

section.

(b) Proposed regulations

(1) The Administrator shall promptly pre-

pare and publish proposed regulations setting

forth water quality standards for a State in ac-

cordance with the applicable requirements of

this Act as in effect immediately prior to Octo-

ber 18, 1972, if—

(A) the State fails to submit water quality

standards within the times prescribed in subsec-

tion (a) of this section.

(B) a water quality standard submitted by

such State under subsection (a) of this section

is determined by the Administrator not to be

consistent with the applicable requirements of

subsection (a) of this section.

(2) The Administrator shall promulgate any

water quality standard published in a proposed

regulation not later than one hundred and ninety

days after the date he publishes any such pro-

posed standard, unless prior to such promulga-

tion, such State has adopted a water quality

standard which the Administrator determines to

be in accordance with subsection (a) of this

section.

(1) The Governor of a State or the State

water pollution control agency of such State

shall from time to time (but at least once each

three year period beginning with October 18,

1972) hold public hearings for the purpose of

reviewing applicable water quality standards

and, as appropriate, modifying and adopting

standards. Results of such review shall be made

available to the Administrator.

(2)(A) Whenever the State revises or adopts

a new standard, such revised or new standard

shall be submitted to the Administrator. Such

revised or new water quality standard shall con-

sist of the designated uses of the navigable

waters involved and the water quality criteria

for such waters based upon such uses. Such

standards shall be such as to protect the public

health or welfare, enhance the quality of water

and serve the purposes of this chapter. Such

standards shall be established taking into con-

sideration their use and value for public water

supplies, propagation of fish and wildlife, recrea-

tional purposes, and agricultural, industrial, and

other purposes, and also taking into considera-

tion their use and value for navigation.

(B) Whenever a State reviews water quality

standards pursuant to paragraph ( 1) of this

subsection, or revises or adopts new standards

pursuant to this paragraph, such State shall

adopt criteria for all toxic pollutants listed pur-

suant to section 1317(a)(1) of this—title for

which criteria have been published under section

1314(a) of this title, the discharge or presence

of which in the affected waters could reasonably

be expected to interfere with those designated

uses adopted by the State, as necessary to sup-

port such designated uses. Such criteria shall be

specific numerical criteria for such toxic pollut-

ants. Where such numerical criteria are not

available, whenever a state reviews water qual-

ity standards pursuant to paragraph (1), or

revises or adopts new standards pursuant to this

paragraph, such State shall adopt criteria based

on biological monitoring or assessment methods

consistent with information published pursuant

to section 1314(a) (8) of this title. Nothing in

this section shall be construed to limit or delay

the use of effluent limitations or other permit

conditions based on or involving biological moni-

toring or assessment methods or previously

adopted numerical criteria.

(3) If the Administrator, within sixty days

after the date of submission of the revised or

new standard, determines that such standard

meets the requirements of this chapter, such

standard shall thereafter be the water quality

standard for the applicable waters of that State.

If the Administrator determines that any such

revised or new standard is not consistent with

the applicable requirements of this chapter, he

shall not later than the ninetieth day after the

date of submission of such standard notify the

State and specify the changes to meet such re-

quirements. If such changes are not adopted by

the State within ninety days after the date of

notification, the Administrator shall promulgate

such standard pursuant to paragraph (4) of this

subsection.

(4) The Administrator shall promptly pre-

pare and publish proposed regulations setting

forth a revised or new water quality standard

for the navigable waters involved— .

(A) if a revised or new water quality stand-

ard submitted by such State under paragraph

(3) of this subsection for such waters is deter-

mined by the Administrator not to be consistent

with the applicable requirements of this chapter,

; (B) in any case where the Administrator de-

termines that a revised or new standard is neces-

sary to meet the requirements of this chapter.

The Administrator shall promulgate any revised

or new standard under this paragraph not later

than ninety days after he publishes such pro-

posed standards, unless prior to such promulga-

tion, such State has adopted a revised or new

water quality standard which the Administrator

determines to be in accordance with this chapter.

Identification of areas with insufficient con-

” wer me maximum daily load; certain effluent

limitations revision

* * * e *

(4) Limitations on revision of certain effluent

limitations.—

(A) Standard not attained—For waters iden-

tified under paragraph (1)(A) where the ap-

plicable water quality standard has not yet been

attained, any effluent limitation based on a total

maximum daily load or other waste load alloca-

tion established under this section may be revised

only if (i) the cumulative effect of all such re-

vised effluent limitations based on such total

maximum daily load or waste load allocation will

assure the attainment of such water quality

standard, or (ii) the designated use which is not

being attained is removed in accordance with

regulations established under this section.

(B) Standard attained —For waters identified

under paragraph (1)(A) where the quality of

such waters equals or exceeds levels necessary to

protect the designated use for such waters or

otherwise required by applicable water quality

standards, any effluent limitation based on a total

maximum daily load or other waste load alloca-

tion established under this section, or any water

quality standard established under this section,

or any other permitting standard may be revised

only if such revision is subject to and consistent

with the antidegradation policy established under

this section.

3. Section 401 of the Clean Water Act, 33 U.S.C.

1341, provides in relevant part:

§ 1341. Certification

(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 facili-

ties, which may result in any discharge into the

10a

navigable waters, shall provide the licensing or

permitting agency a certification from the State

in which the discharge originates or will origi-

nate, or, if appropriate, from the interstate water

pollution control agency having jurisdiction over

the navigable waters at the point where the dis-

charge originates or will originate, that any such

discharge will comply with the applicable provi-

sions of sections 1311, 1312, 1313, 1316, and

1317 of this title. In the case of any such activ-

ity for which there is not an applicable effluent

limitation or other limitation under sections

1311(b) and 1312 of this title, and there is not

an applicable standard under sections 1316 and

1317 of this title, the State shall so certify, ex-

cept that any such certification shall not be

deemed to satisfy section 13871(c) of this title.

Such State or interstate agency shall establish

procedures for public notice in the case of all

applications for certification by it and, to the ex-

tent it deems appropriate, procedures for public

hearings in connection with specific applications.

In any case where a State or interstate agency

has no authority to give such a certification, such

certification shall be from the Administrator. If

the State, interstate agency, or Administrator, as

the case may be, fails or refuses to act on a re-

quest for certification, within a reasonable period

of time (which shall not exceed one year) after

receipt of such request, the certification require-

ments of this subsection shall be waived with

respect to such Federal application. No license

or permit shall be granted until the certification

required by this section has been obtained or has

been waived as provided in the preceding sen-

tence. No license or permit shall be granted if

certification has been denied by the State, inter-

lla

State agency, or the Administrator, as the case

may be.

(2) Upon receipt of such application and cer-

tification the licensing or permitting agency shall

immediately notify the Administrator of such

application and certification. Whenever such a

discharge may affect, as determined by the Ad-

ministrator, the quality of the waters of any

other State, the Administrator within thirty days

of the date of notice of application for such Fed-

eral license or permit shall so notify such other

State, the licensing or permitting agency, and the

applicant. If, within sixty days after receipt of

such notification, such other State determines

that such discharge will affect the quality of its

waters So as to violate any water quality require-

ments in such State, and within such sixty-day

period notifies the Administrator and the licens-

ing or permitting agency in writing of its objec-

tion to the issuance of such license or permit and

requests a public hearing on such objection, the

licensing or permitting agency shall hold such a

hearing. The Administrator shall at such hearing

submit his evaluation and recommendations with

respect to any such objection to the licensing or

permitting agency. Such agency, based upon the

recommendations of such State, the Administra-

tor, and upon any additional evidence, if any,

presented to the agency at the hearing, shall con-

dition such license or permit in such manner as

may be necessary to insure compliance with ap-

plicable water quality requirements. If the im-

position of conditions cannot insure such compli-

ance such agency shall not issue such license or

permit.

(3) The certification obtained pursuant to

paragraph (1) of this subsection with respect

12a

to the construction of any facility shall fulfill the

requirements of this subsection with respect to

certification in connection with any other Fed-

eral license or permit required for the operation

of such facility unless, after notice to the certify-

ing State, agency, or Administrator, as the case

may be, which shall be given by the Federal

agency to whom application is made for such

operating license or permit, the State, or if ap-

propriate, the interstate agency or the Adminis-

trator, notifies such agency within sixty days

after receipt of such notice that there is no longer

reasonable assurance that there will be compli-

ance with the applicable provisions of sections

1311, 1312, 1313, 1316, and 1317 of this title

because of changes since the construction license

or permit certification was issued in (A) the con-

struction or operation of the facility, (B) the

characteristics of the waters into which such dis-

charge is made, (C) the water quality criteria

applicable to such waters or (D) applicable ef-

fluent limitations or other requirements. This

paragraph shall be inapplicable in any case where

the applicant for such operating license or permit

has failed to provide the certifying State, or, if

appropriate, the interstate agency or the Admin-

istrator, with notice of any proposed changes in

the construction or operation of the facility with

respect to which a construction license or permit

has been granted, which changes may result in

violation of section 1311, 1312, 1313, 1316, or

1317 of this title.

(4) Prior to the initial operation of any fed-

erally licensed or permitted facility or activity

which may result in any discharge into the

navigable waters and with respect to which a

13a

certification has been obtained pursuant to para-

graph (1) of this subsection, which facility or

activity is not subject to a Federal operating

license or permit, the licensee or permittee shall

provide an opportunity for such certifying State,

or, if appropriate, the interstate agency or the

Administrator to review the manner in which the

facility or activity shall be operated or conducted

for the purposes of assuring that applicable ef-

fluent limitations or other limitations or other

applicable water quality requirements will not be

violated. Upon notification by the certifying

State, or if appropriate, the interstate agency or

the Administrator that the operation of any such

federally licensed or permitted facility or activity

will violate applicable effluent limitations or other

limitations or other water quality requirements

such Federal agency may, after public hearing,

suspend such license or permit. If such license

or permit is suspended, it shall remain suspended

until notification is received from the certifying

State, agency, or Administrator, as the case may

be, that there is reasonable assurance that such

facility or activity will not violate the applicable

provisions of section 1311, 1312, 1313, 1316, or

1317 of this title.

(5) Any Federal license or permit with re-

spect to which a certification has been obtained

under paragraph (1) of this subsection may be

suspended or revoked by the Federal agency is-

suing such license or permit upon the entering of

a judgment under this chapter that such facility

or activity has been operated in violation of the

applicable provisions of section 1311, 1312, 1313,

1316, or 1317 of this title.

(6) Except with respect to a permit issued

under section 1342 of this title, in any case where

14a

actual construction of a facility has been lawfully

commenced prior to April 3, 1970, no certifica-

tion shall be required under this subsection for

a license or permit issued after April 3, 1970,

to operate such facility, except that any such

license or permit issued without certification

shall terminate April 3; 1973, unless prior to

such termination date the person having such

license or permit submits to the Federal agency

which issued such license or permit a certifica-

tion and otherwise meets the requirements of

this section.

(b) Compliance with other provisions of law set-

ting applicable water quaiity requirements

Nothing in this section shall be construed to

limit the authority of any department or agency

pursuant to any other provisions of law to re-

quire compliance with any applicable water qual-

ity requirements. The Administrator shall, upon

the request of any Federal department or agency,

or State or interstate agency, or applicant, pro-

vide, for the purpose of this section, any relevant

information on applicable effluent limitations, or

other limitations, standards, regulations, or re-

quirements, or water quality criteria, and shall,

when requested by any such department or

agency or State or interstate agency, or appli-

cant, comment on any methods to comply with

such limitations, standards, regulations, require-

ments, or criteria.

mit use of spoil disposal areas by Federal

licensees or permittees

In order to implement the provisions of this

section, the Secretary of the Army, acting

15a

through the Chief of Engineers, is authorized,

if he deems it to be in the public interest, to per-

mit the use of spoil disposal areas under his

jurisdiction by Federal licensees or permittees,

and to make an appropriate charge for such use.

Moneys received from such licensees or permit-

tees shall be deposited in the Treasury as mis-

cellaneous receipts.

(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 neces-

sary to assure that any applicant for a Federal

license or permit will comply with any applica-

ble effluent limitations and other limitations, un-

der section 1311 or 1312 of this title, standard

or 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 be-

come a condition on any Federal license or per-

mit subject to the provisions of this section.

4. Section 502 of the Clean Water Act, 33 U.S.C.

1362, provides in relevant part:

§ 1362. Definitions

Except as otherwise specifically provided, when

used in this chapter:

* . * . *

(6) The term “pollutant” means dredged

spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical

l6a

wastes, biological materials, radioactive materi-

als, heat, wrecked or discarded equipment, rock,

sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water. This

term does not mean (A) “sewage from vesseis”

within the meaning of section 1322 of this title;

or (B) water, gas, or other material which is

injected into a well to facilitate production of oil

or gas, or water derived in association with oil

or gas production and disposed of in a well, if the

well used either to facilitate production or for

disposal purposes is approved by authority of

the State in which the well is located, and if such

State determines that such injection or disposal

will not result in the degradation of ground or

surface water resources.

* * * * *

(12) The term “discharge of a pollutant” and

the term “discharge of pollutants” each means

(A) any addition of any pollutant to navigable

waters from any point source, (B) any addition

of any pollutant to the waters of the contiguous

zone or the ocean from any point source other

than a vessel or other floating craft.

* * * * *

(16) The term “discharge” when used with-

out qualification includes a discharge of a pol-

lutant, and a discharge of pollutants.

(19) The term “pollution” means the man-

made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of

water.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.