Amicus Curiae Brief — PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology
Supreme Court brief1994
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Supreme Court of the United
October Term, 1993
-¢
PUBLIC UTILITIES DISTRICT NO. 1 OF JEFFERSON
COUNTY AND CITY OF TACOMA,
Petitioners,
Vv.
STATE OF WASHINGTON, DEPARTMENT OF
ECOLOGY, DEPARTMENT OF FISHERIES, AND
DEPARTMENT OF WILDLIFE,
Respondents.
¢
On Writ Of Certiorari To The
Supreme Court Of Washington
¢
BRIEF FOR AMICI CURIAE STATES OF VERMONT, NEW
YORK, ARIZONA, ARKANSAS, CALIFORNIA,
CONNECTICUT, DELAWARE, FLORIDA, GEORGIA,
HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,
KENTUCKY, MAINE, MARYLAND, MASSACHUSETTS,
MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI,
MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE,
NEW JERSEY, NEW MEXICO, NORTH CAROLINA,
NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,
P<zNNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA,
TENNESSEE, TEXAS, UTAH, VIRGINIA, WEST
VIRGINIA, WISCONSIN, WYOMING
IN SUPPORT OF RESPONDENTS
Sd
State of Vermont Ronacp A. SHEMs
Jerrrey L. AmMestoy Assistant Attorney General
Attorney General Of Counsel
State of New York KATHLEEN LisTON MorrisONn*
Rosert ABRAMS *Counsel of Record
Attorney General Assistant Attorney General
The Capitol
Albany, New York 12224
(518) 474-4819
(Counsel Continued On Inside Front Cover)
GRANT Woops Ro.LanpD A. Burris
Attorney General Attorney General
State of Arizona State of Illinois
WINsTON BRYANT PAMELA FANNING CARTER
Attorney General Attorney General
State of Arkansas State of Indiana
Danie. E. LUNGREN BonNIE J. CAMPBELL
Attorney General Attorney General
State of California State of Iowa
RICHARD BLUMENTHAL Rosert T. STEPHAN
Attorney General Attorney General
State of Connecticut State of Kansas
CuHares M. Oserty III Curis GORMAN
Attorney General Attorney General
State of Delaware State of Kentucky
Rosert A. BUTTERWORTH MicHaet E. CARPENTER
Attorney General Attorney General
State of Florida State of Maine
MicHaet J. Bowers J. Josep CurRRAN, Jr.
Attorney General Attorney General
State of Georgia State of Maryland
Rosert A. Marks Scott HARSHBARGER
Attorney General Attorney General
State of Hawaii State of Massachusetts
Larry ECHOHAwkK FRANK J. KELLEY
Attorney General Attorney General
State of Idaho State of Michigan
Husert H. Humpnrey III
Attorney General
State of Minnesota
Mike Moore
Attorney General
State of Mississippi
JeremMiAH W. Nixon
Attorney General
State of Missouri
JoserH P. Mazurexk
Attorney General
State of Montana
Don STENBERG
Attorney General
State of Nebraska
FRANKIE Sut Det Para
Attorney General
State of Nevada
Jerrrey R. Howarp
Attorney General
State of New Hampshire
Frep DeVesa
Acting Attorney General
State of New Jersey
Tom UDALL
Attorney General
State of New Mexico
Micuaet F. Eastey
Attorney General
State of North Carolina
Heri Herrkamp
Attorney General
State of North Dakota
Lee FisHer
Attorney General
State of Ohio
Susan B. Lovinc
Attorney General
State of Oklahoma
THeopore R. KULONGOSKI
Attorney General
State of Oregon
Ernest D. Preate, Jr.
Attorney General
State of Pennsylvania
Jerrerey B. Pine
Attorney General
State of Rhode Island
T. Travis MepiocKk
Attorney General
State of South Carolina
CHartes W. Burson
Attorney General
State of Tennessee
Dan MORALES
Attorney General
State of Texas
JAN GRAHAM
Attorney General
State of Utah
STEPHEN D. ROSENTHAL
Attorney General
State of Virginia
Darre_t V. McGraw, Jr.
Attorney General
State of West Virginia
James E. Doyte
Attorney General
State of Wisconsin
Josep B. Meyer
Attorney General
State of Wyoming
John Payton, Corporation Counsel
Office of the Corporation Counsel
441 - 4th Street, N.W., Suite N1060
Washington, D.C. 20001
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE...........ccccccccees 1
THE STATUTORY FRAMEWORK .................. 5
i Ge ED UY PED bdsucctavecidendccecede 5
a, Se ee OE ccc condchecdnveseweses 7
SUMMARY OF ARGUMENT......................- 7
SEE Ba cuewhededstuchiuekacdcccedscdecenoat 10
The Minimum Streamflow Condition Washington
Imposed In Its Water Quality Certification Should
Be Affirmed Because It Is Authorized By Clean
Se SE Se nS acenenvencavcanssuntenceneseyes 10
1. FERC’s Jurisdiction Here Is Not Exclusive; Var-
ious Federal Statutes, Including Section 401 Of
The Clean Water Act And The Federal Power Act,
Provide Complementary Roles For Federal And
Se Cc knecdecsesevecccecsccesédscnadeses 10
2. Washington Acted Within Its § 401 Authority
When It Imposed The Streamflow Condition
Because § 401 Regulates The Water Quality
Impacts Of Hydroelectric Projects .............. 17
3. The Washington Court Properly Upheld The State’s
Reliance On The Designated Uses Element Of Its
EPA-Approved Water Quality Standards.......... 23
4. The Washington Court Properly Upheld The State's
Reliance On Its Antidegradation Policy As A Basis
For Imposing The Streamflow Condition.......... 26
5. Washington Properly Relied On § 401(d)....... 28
SEED Sh cencdeacesrdscovecscvaneneséscuces 30
SAG As eshksdedkndeenmesactebbeeneesneuaay la
TABLE OF AUTHORITIES
Page
CASES
Arkansas v. Oklahoma, 503 U.S. __ , 112 S.Ct. 1046
PPO PTTTTTTITIT TT rite ee 5, 17, 20, 26
California v. FERC, 495 U.S. 490 (1990) ........... 16, 17
California and Henwood Associates, Inc. v. FERC, 966
F.2d 1451 (9th Cir. 1992)..........cccccccccceeeees 11
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837
PP rrrrrrrrrTrrirrrrrirr Tir T Tere 20
Confederated Tribes and Bands of Yakima Indian
Nation v. FERC, 746 F.2d 466 (Cir. 1984), cert.
Gemhad, G1 UG. 126. 2.0 cccccceccccccccccscsccccess 14
Environmental Defense Fund v. Costle, 657 F.2d 275
GAR TTEED oc cccvccccccccevesvccccceescecoss 18, 23
Escondido Mutual Water Co. v. LaJolla Indians, 466
OD. FED CRIDE «on ccccccccscccvcccccscceses 11, 14, 28
First lowa Hydro-Electric Cooperative v. Federal
Power Commission, 328 U.S. 152 (1946).......... 16, 17
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564
CRUE oc ccccccccccesccssseseccscesndsesssescascass 22
Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C.
Cir. 1987), cert. denied, 484 U.S. 816 (1988) ...... 2, 12
National Wildlife Federation v. Consumers Power Co.,
862 F.2d 580 (6th Cir. 1988)................. 6, 19, 20
National Wildlife Federal v. Gorsuch, 693 F.2d 156
GE, GE FR ccccccccccccccccccesncscesossesyess 4
***
TABLE OF AUTHORITIES - Continued
Page
New Hampshire v. Atomic Energy Commission, 406
F.2d 170 (1st Cir. 1969), cert. denied, 395 U.S. 962
GPE one cdsvdencsedecssevinscnenccutsctesaseseces 13
Roosevelt Campobello Park Comm. v. EPA, 684 F.2d
Se Ge Ee beh aveccccncccceccasdesecesecess 6
Scenic Hudson Preservation Conference v. Calloway,
GP Tee Gr Ge Gh BUD occ cccvccccsccccccccees 12
Simpson Paper (Vermont) Co., Inc. v. Vermont
Department of Environmental Conservation and
a 4, 22
The Steamboaters v. FERC, 759 F.2d 1382 (9th Cir.
TTC TTT CTT TT TTC T OT TT CETTE TEPC ECTTEe 15
Tulalip Tribes of Washington v. FERC, 732 F.2d 1451
Se Ge Ssh etna ceecnsbcsdesccnscdscusccesnes 14
Udall v. FPC, 387 U.S. 428 (1967)..............0.. 10, 15
Washington State Dept. of Fisheries v. FERC, 801
ey Se Ge GS eo sesscdnicssosvcccsesios 10
STATUTES
Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-2623
S BSS, TS UBL. © TZMe) ... ec ccsccccccccccess 2, 5
§ 101(a)(7), 33 U.S.C. § 1251(a)(7)................. 20
BRC OP eles © Bcc cccsccctvcccvcccees 12
DS SESE SO UG. © TAD cc cccccccccccccccseses 6
§ 208(b)(2), 33 U.S.C. § 1288(b)(2)................. 19
ip es A as OP TE bbb oneeccacashecheenevcace 19
Sy ee es OF EEE 6 80s docesaconcncceneesesas 19
D Same Se CDG. © GOED ote cccsccccesces 5, 15, 19, 21
iv
TABLE OF AUTHORITIES - Continued
Page
§ 303(b), 33 U.S.C. § 1313(b)... 2.6 eee cece eee eens 5
§ 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A}.------24, 29
§ 304, 33 U.S.C. § 1314....... cece eee eee eee eens 19
§ 304(f), 33 U.S.C. § 1314(f). 0.6 ee eee ee eee eee ees 6
§ 304(f)(2)(F), 33 U.S.C. § 1314(f)(2)(F) ..----- ++: 20
§ 306, 33 U.S.C. § 1316 ..... 6 cece eee eee eee e ene 19
§ 307, 33 U.S.C. § 1317... 2. cece eee eee eee eee 19
§ 319, 33 US.C. § 1329.0... cc eee cece e eens 6, 15, 19
§ 319(a) 1(B), 33 U.S.C. § 1329(a) 1(B)......--.-+-- 19
§ 401, 33 U.S.C. § 1341 ....... cece cece renee passim
§ 401(a), 33 U.S.C. § 1341(a) ... 6. eee e eee 29
§ 401(a)(1), 33 U.S.C. § 1341(a)(1)..... 6, 7, 19, 24, 29
§ 401(b), 33 U.S.C. § 1341(b). 0... eee eee eee eee ees 29
§ 401(d), 33 U.S.C. § 1341(d)........6055- 6, 9, 28, 29
§ 402, 33 U.S.C. § 1342 ...... cee cece cece eee 6, 9, 24
§ 404, 33 U.S.C. § 1344...... cece cece eee eee ees 6, 12
§ 502, 33 U.S.C. § 1362 ........ cree cece e eee eeeeees 18
§ 502(6), 33 U.S.C. § 1362(6) ... 6... cece e eee eee e eens 6
§ 502(12), 33 U.S.C. § 1362(12)..... 6... eee eee eens 18
§ 502(16), 83 U.S.C. § 1362(16).... 2... e eee ee ees 18
§ 502(19), 33 U.S.C. § 1362(19)...... 6. eee eee ee ees 19
Vv
TABLE OF AUTHORITIES — Continued
Page
Electric Consumer Protection Act, (“ECPA”)
P.L. 99-495, 100 Stat. 1243 (1986)
Be A ET bid ecievedusaserensescesns 7, 11, 14
Se coo edkbesccueenescensonstéaves 7, 14
Endangered Species Act, 16 U.S.C. § 1531........... 10
Federal Lands Management Policy Act,
43 U.S.C. § 1761 et seq., as amended by PL.
102-486, 106 Stat. 3096-3097, Title XXIV, § 2401...10, 11
Federal Power Act,
5 Me), 16 USC. § TOE) 2. cc cccccccccccees 7, 11, 14
© BGT 86 UGA. § GER) cn cccscvcccccccccesens 7, 14
§ 18, 16 U.S.C. § 811, as clarified by P.L.
102-486, 106 Stat. 3008, Title XVII............... 11
rs We Ee OE GEE eeecrcececivassescccecesscess 16
Fish and Wildlife Coordination Act,
rst chnhecaueheebenkeenedseedessasas 10
National Environmental Policy Act, 42 U.S.C.
Sens RdRUNbOUGbHbEL60600)d 60-0006 8008660000008 10
Vermont Statutes Annotated
Sey ee Me BS OF ED oo ccc ccccccccccccocscee 25
Washington Statute
RCW 90.54.020(3)(a)
vi
TABLE OF AUTHORITIES - Continued
Page
Water Quality Improvement Act of 1970, § 21(b),
(former 33 U.S.C. § 1171(b))................... 13, 20
Wild and Scenic Rivers Act, 16 U.S.C. 7 Ue skackes 10
ADMINISTRATIVE DECISION
OMYA, Inc., 62 FERC ] 62,224 (1993) ............. 22
REGULATIONS
eee 16, 22
Pe Te BH GEO on inv nvcencincnccncccnccnca 25
Se I OE NW oo 5 dd hes vn cay cn nen cwaudecendk cs 25
40 C.FR. § 4.38(f)(7). 0.2.0... cece ccc ee ueee 16
WD Grime BH RI va ccc cnincccesvccccescccuccecc 24
Wee Me SI ns aw ond ¢ uaa eu ecncesaceneicces 26
WO CARR. © USED 2... ccc cc cccscccccccnccccnccs 27
er I I od vee vec ueesecenVecucceccckcnn, 5
a 27
SO CAB, © UDA. BONE .... now ccc ccccccnccncsccce 24
Dy Wy We MI oc ove cnn cacecnccacccccccaccus 27
ee 8 ree tkbinorEnee 26
SP Ties Te MUD soo ve iccnccncuvesencvesecuccse 27
40 C.F.R. § 131.12(a)(1) 2.0... cece eee. 27
Vii
TABLE OF AUTHORITIES - Continued
Page
StaTE REGULATIONS
Vt. WQS § 3-03(A)(1) 1991.2... 00.0. 25
WAC 173-201-0385(8)(a)......... 00. cece cece eee. 27
WAC 173-201-045(1)(b)(iii) . 2... 28
Lecistative History
116 S. Cong. Rec., p. 8984, March 24, 1970.......... 13
H.R. Rep. No. 92-911, 92nd Cong. 2d Sess.,
reprinted in 1 Leg. Hist. 753 Ce des Liadek assis 5
H.R. Rep. No. 99-507, 99th Cong., 2d Sess.,
reprinted in 4 U.S. Code & Congressional
Administrative News, p. 2496 (1986)........... 14, 15
S. Rep. No. 92-414, 92d Cong., Ist Sess. 69
reprinted in 2 USCCAN 3735 lee 13, 21
H.R. Conf. Rep. No. 99-934, 99th Cong., 2d Sess., 4
USCCAN 2537 (1986)... 20... cece ccc cccccenee. 3, 15
H.R. Rep. No. 95-370, 95th Cong. Ist Sess.,
reprinted in 3 USCCAN 4424 (1977) ................ 21
MisceLLANEOuS
Alison M. DesMeules and Cynthia Parks, Hydro-
power in Vermont, An Assessment of Environmen-
tal Problems and Opportunities, Vermont Agency of
NN ND orb Bit hein kgs divin cae sce scs.. 4
Amended Discharge Permit No. 3-1312, Vermont
Dept. Env. Cons., Sept. 24, 1992 .................. 25
Environmental Assessment for Hydropower
License, Gilman Hydroelectric Project, No.
2392, FERC, Office of Hydropower Licensing
eT a WIN wen oh nb Ganisececadeeen Siice c 3. a: 22
Vili
TABLE OF AUTHORITIES - Continued
Page
Letter from LuJuana Wilcher, Assistant Adminis-
trator EPA to Hon. Lois Cashell Secretary,
Pee es El Sido e nese beeubenusceabasaneniece’ 26
New Webster’s Dictionary 1762 (Coll. ed. 1975) ...... 4
Nonpoint Source Guidance, United States Envi-
ronmental Protection Agency, Dec. 1987........... 20
Design of Small Dams, U.S. Bureau of Reclama-
es Se Ss, CUED A Seannndcdsndddscestbownscenses 23
Craeger and Justin Hydroelectric Handbook, 2d
ie Na hea'en5605s cutacsevecsdebevinesuctateuns<s 23
No. 92-1911
.
In The
Supreme Court of the United States
October Term, 1993
o
PUBLIC UTILITIES DISTRICT NO. 1 OF JEFFERSON
COUNTY AND CITY OF TACOMA,
Petitioners,
Vv.
STATE OF WASHINGTON, DEPARTMENT OF
ECOLOGY, DEPARTMENT OF FISHERIES, AND
DEPARTMENT OF WILDLIFE,
Respondents.
+
On Writ Of Certiorari To The
Supreme Court Of Washington
+
BRIEF FOR AMICI CURIAE STATES OF VERMONT, NEW
YORK, ARIZONA, ARKANSAS, CALIFORNIA,
CONNECTICUT, DELAWARE, FLORIDA, GEORGIA,
HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,
KENTUCKY, MAINE, MARYLAND, MASSACHUSETTS,
MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI,
MONTANA, NEBRASKA, NEVADA, NEW HAMPSHIRE,
NEW JERSEY, NEW MEXICO, NORTH CAROLINA,
~ NORTH DAKOTA, OHIO, OKLAHOMA, OREGON,
PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA,
TENNESSEE, TEXAS, UTAH, VIRGINIA, WEST
VIRGINIA, WISCONSIN, WYOMING
IN SUPPORT OF RESPONDENTS
°
INTEREST OF AMICI CURIAE
The States submit this brief in support of the State of
Washington, Department of Ecology, Department of Fish-
eries, and Department of Wildlife. This case involves the
water quality certification for the proposed Elkhorn
hydroelectric dam, issued to petitioners by the State of
Washington under the authority of Clean Water Act
(“CWA”) § 401, 33 U.S.C. § 1341, on condition that a
minimum streamflow be maintained below the dam. Peti-
tioners challenge the State’s authority under § 401 to
impose the minimum streamflow condition. Petitioners’
position, if adopted, would impair the States’ ability to
ensure compliance with federally mandated and
approved water quality standards, through certification
proceedings, one of the principal means of implementing
the Act’s objective to maintain and restore the chemical,
biological, and physical integrity of the nation’s waters.
CWA § 101(a), 33 U.S.C. § 1251(a). In enacting the certi-
fication provision in 1970 and amending it in 1972, Con-
gress granted the States authority to enforce the new
pollution control provisions and correspondingly limited
the power of the Federal Energy Regulatory Commission
(“FERC”) under the Federal Power Act (“FPA”), which
had originally been enacted in 1920. Congress “was
aware that the 1972 enactment would have far-reaching
consequences and recognized that some other legislative
objectives would have to be reconciled with the new
pollution control efforts.” Monongahela Power Co. v. Marsh,
809 F.2d 41, 46 (D.C. Cir. 1987), cert. denied, 484 U.S. 816
(1988).!
The States do not maintain that all hydroelectric pro-
jects should not be approved. Indeed, the State involved
' The courts have also recognized this, saying, “It can
hardly be said that the prescription of additional requirements
for hydroelectric projects was an utterly unforeseen or inap-
propriate consequence.” Monongahela Power Co., 809 F.2d at 46.
here, Washington, did not deny a § 401 certification to the
project at issue. Neither do the States maintain that all
existing hydroelectric dams, such as those involved in the
hundreds of relicensing applications FERC will process in
the next decade, should be dismantled.? The States sub-
mit, however, that hydroelectric projects must comply
with the Clean Water Act so that compliance with State
water quality standards is ensured. Consequently, this
Court should affirm the judgment of the Washington
Supreme Court.
* Even though this case arises from an application to con-
struct a new hydroelectric facility, many States are also con-
cerned about the relicensing applications which are clearly
subject to the Clean Water Act’s requirements. As Congress
provided:
In exercising its responsibilities in relicensing, the
conferees expect FERC to take into account existing
structures and facilities in providing for these non-
power and nondevelopmental values. No one expects
FERC to require an applicant to tear down an existing
project. But neither does anyone expect ‘business as
usual’. Projects licensed years earlier must undergo
the scrutiny of today’s values as provided in this law
and other environmental laws applicable to such pro-
jects. FERC should exercise its authority to restrict or,
particularly in the case of original licenses, even deny
a license on a waterway. The goal of amended § 4 is to
assure a true multiple use of water resources.
H.R. Conf. Rep. No. 99-934, 99th Cong., 2d Sess., 4 U.S. Code &
Cong. Admin. News (“USCCAN”) 2537, 2538 (1986).
The Clean Water Act regulates dams* because they
may cause significant water quality problems.* For exam-
ple, dams may alter a river’s natural aeration potential,
causing dissolved oxygen deficits.5 Their operation may
also cause river flow to fluctuate. Drops in flow may
concentrate wastes discharged into a river downstream of
a dam to unacceptable levels.®
Dams may also alter and in some cases destroy eco-
systems. Dams may slow, capture, hold and divert a
river’s free flow, flood the upstream river channel, and
have varying impacts on temperature and down-stream
flow. Existing habitat is destroyed or significantly altered,
thus affecting the health and composition of the aquatic
biota. Dams are usually located to take advantage of
natural drops in elevation. The fast-flowing water result-
ing from a drop in elevation is a necessary component of
3 Petitioners propose to construct a “10 foot diversion
weir” across the full width of the Dosewallips River. Pet. Br., p.
10. A “weir” is defined as “[a] dam across a stream to raise the
water, or to convey it to a mill.” New Webster's Dictionary 1762
(Coll. ed. 1975).
4 See, e.g., Hydropower in Vermont, An Assessment of Environ-
mental Problems and Opportunities, Alison M. DesMeules and
Cynthia Parks, Vermont Agency of Natural Resources (May
1988). See, also, National Wildlife Federation v. Gorsuch, 693 F.2d
156, 161-64 (D.C. Cir. 1982) (dams effect chemical changes to
rivers such as lowering dissolved oxygen levels, altering min-
eral and nutrient levels, trapping sediment, changing tempera-
ture, and supersaturation).
5 See, Simpson Paper (Vermont) Co., Inc. v. Vermont Depart-
ment of Environmental Conservation and Sierra Club, No. 92-1012.
© Such problems are experienced on the Blackstone River in
Rhode Island.
a healthy river. Such water is highly oxygenated and
washes away silts, thus providing a gravel substrate nec-
essary for spawning areas and insect production. The
diversion of water eliminates natural flows in reaches
that the diversion bypasses (“bypass reach”). Bypass
reaches often run for several miles,” thus affecting signifi-
cant lengths of rivers.
The Statutory Framework
A. The Clean Water Act
“The objective of the [Clean Water Act] is to restore
and maintain the chemical, physical, and biological integ-
rity of the nation’s waters.” CWA § 101(a), 33 U.S.C.
§ 1251(a). The word “integrity . . . refers to a condition in
which the natural structure and function of the ecosystem
is maintained.” H.R. Rep. No. 92-911; 92nd Cong., 2d
Sess., 76-77, reprinted in 1 Legislative History of the Fed-
eral Water Pollution Control Act Amendments of 1972
753-64 (1972).
The substantive requirements of the Clean Water Act
are established through water quality standards (“WQS”)
setting forth ambient water quality requirements. The
standards must be adopted by the States in conformity
with Clean Water Act § 303 and EPA rules. CWA § 303, 33
U.S.C. § 1313; 40 CFR 131.10 (1983). EPA must promulgate
standards applicable in States that fail to promulgate
such standards. CWA § 303(b), 33 U.S.C. § 1313(b). The
standards are considered to be federal law. Arkansas v.
Oklahoma, 503 U.S. ___, 112 S.Ct. 1046, 1059 (1992).
” The bypass reach in this matter would be 1.2 miles.
The water quality standards are implemented
through three programs established by the Act. First, the
Act regulates the “discharge of pollutants” through the
National Pollutant Discharge Elimination System.* CWA
§ 402, 33 U.S.C. § 1342. Second, the Act regulates the
modification or destruction of aquatic habitat by prohibit-
ing the discharge of dredged or fill material unless per-
mitted. CWA § 404, 33 U.S.C. § 1344. Third, the Act
requires EPA and the States to implement programs
assuring that other impacts to water quality, i.e., those
from nonpoint sources of pollution, comply with water
quality standards. CWA §§ 208(b), 304(f), 319, 33 U.S.C.
§§ 1288(b), 1314, 1329; National Wildlife Fed. v. Consumers
Power Co., 862 F.2d 580, 588 (6th Cir. 1988).
The water quality standards are applied to federally
licensed projects through § 401 of the Clean Water Act, 33
U.S.C. § 1341. Section 401 requires an applicant for a
federal license authorizing any activity that may cause
any discharge to obtain State certification that the dis-
charge will comply with specified water quality require-
ments established under the Act. 33 U.S.C. § 1341(a)(1). A
certification may also include limitations necessary to
comply with water quality standards “and with other
appropriate requirements of State law.” 33 U.S.C.
§ 1341(d). Such limitations become conditions on the
federally issued license. Ibid.; Roosevelt Campobello Park
® The term ‘pollutant’ means “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, muni-
tions, chemical wastes, biological materials, heat, wrecked or
discarded equipment, rock, sand, cellar direct and industrial,
municipal, and agricultural waste discharged into water.” CWA
§ 502(6), 33 U.S.C. § 1362(6).
Comm. v. EPA, 684 F.2d 1041, 1056-1057 (1st Cir. 1982).
Denial of certification by a State precludes issuance of the
federal license as a matter of law.2 CWA § 401(a)(1), 33
U.S.C. § 1341(a)(1).
B. The Federal Power Act
Section 4(e) of the FPA empowers FERC to issue
licenses for projects “necessary or convenient . . . for the
development, transmission, and utilization of power
across, along, from, or in any of the streams .. . over
which Congress has jurisdiction”. 16 U.S.C. § 797(e). Sec-
tion 10(a) of the Act also authorizes FERC to issue
licenses subject to conditions FERC deems best suited for
power development and other public uses of the waters.
16 U.S.C. § 803(a). These sections also expressly direct
that FERC consider a project's effect on fish and wildlife
as well as “power and development purposes”. 16 U.S.C.
§§ 797(e), 803(a).
SUMMARY OF ARGUMENT
The decision of the Washington Supreme Court
upholding the State’s imposition of a minimum stream-
flow condition in the water quality certification issued for
the Elkhorn hydroelectric project should be affirmed for
* Congress gave the States direct and primary respon-
sibility for the § 401 water quality certification program. CWA
§ 401(a)(1), 33 U.S.C. § 1341(a)(1). However, EPA is required to
issue certifications where a State does not have the authority to
do so. Ibid.
several reasons. First, the Federal Power Act does not
preempt a State’s authority under Clean Water Act § 401
to impose a minimum streamflow condition to assure
compliance with State water quality standards. The Fed-
eral Power Act and the Clean Water Act provide comple-
mentary, not conflicting, roles for both the federal and
state governments. Section 401’s limitation on FERC is
only one of a number of limitations enacted in the interim
since passage of the Federal Power Act of 1920. Section
401 provides a meaningful role to the States and allows
them to apply every part of their water quality standards,
including designated uses, criteria, and the antidegrada-
tion policy, as well as appropriate requirements of State
law authorized by § 401, to a project.
Second, it is beyond question that Washington has
§ 401 jurisdiction over the construction and operation of
the hydroelectric project at issue. EPA has interpreted
§ 401 as applying to projects like the one at issue here,
recognizing that the authority granted to the States by
§ 401 to address the water quality impacts of such pro-
jects is not limited to dealing with discharges from point
sources. EPA’s consistent and rational interpretation is
entitled to deference by this Court. In 1970, Congress
provided that federally licensed activities that may result
in any discharge must comply with water quality stan-
dards. Congress characterized the 1972 amendments,
which provided that the discharge must comply with
water quality standards and other provisions of the Clean
Water Act, as merely reflecting the Clean Water Act's
additional emphasis on effluent limitations. In 1977, Con-
gress confirmed that the 1972 change was not substan-
tive, describing the provision as one which required
federally licensed activities to comply with the water
quality standards.
Third, petitioners’ argument that only one part of a
water quality standard, the chemical, numeric criteria, is
enforceable, ignores the other two very important compo-
nents of water quality standards (the designated uses and
the antidegradation policy), is at odds with the plain
meaning of the statute, and is contrary to EPA’s consis-
tent and historical interpretation.
Fourth, the court properly held that a State could
impose a minimum streamflow condition in a water qual-
ity certification to assure compliance with water quality
standards. Washington’s minimum streamflow require-
ment enforced its antidegradation policy, an essential
element of its EPA-approved water quality standards.
Fifth, Washington’s minimum streamflow statute is
an “appropriate requirement of State law” within the
meaning of Section 401(d) which a State may apply when
imposing conditions in a water quality certification.
Washington acted within the authority § 401 granted to
the States when, in imposing conditions to assure compli-
ance with State water quality standards, it applied its
base flow statute which directed retention of base flows
necessary to provide for preservation of, inter alia, fish
and imposed the minimum streamflow condition at issue
here.
10
ARGUMENT
The Minimum Streamflow Condition Washington
Imposed In Its Water Quality Certification Should Be
Affirmed Because It Is Authorized By Clean Water Act
§ 401
1. FERC’s Jurisdiction Here Is Not Exclusive; Various
Federal Statutes, Including Section 401 Of The
Clean Water Act And The Federal Power Act, Pro-
vide Complementary Roles For Federal And State
Agencies
Subsequent to enactment of the Federal Power Act of
1920, Congress accomodated federal and state environ-
mental and natural resource concerns by enacting a vari-
ety of provisions limiting FERC’s power. The power
granted the States under Clean Water Act § 401 is only
one of these limitations. For example, Congress requires
FERC, like all other federal agencies, to comply with the
provisions of various federal environmental and natural
resource laws, including the National Environmental Pol-
icy Act, 42 U.S.C. § 4321 et seq., the Fish and Wildlife
Coordination Act, 16 U.S.C. § 661 et seq.,!° the Endan-
gered Species Act, 16 U.S.C. § 1531 et seq., the Wild and
Scenic Rivers Act, 16 U.S.C. § 1271 et seq., the Federal
Lands Management Policy Act (“FLMPA”), 43 U.S.C.
§ 1761 et seq., and the Clean Water Act. Congress requires
FERC to respect the determinations of various federal
© See, Washington State Dept. of Fisheries v. FERC, 801 F.2d
1516 (9th Cir. 1986) (FERC must comply with Fish and Wildlife
Coordination Act); see also, Udall v. FPC, 386 U.S. 428 (1967)
(FPC must explore wildlife conservation aspect of hydropro-
ject).
11
environmental and natural resource agencies, including
the Departments of Commerce and Interior for matters
within their jurisdiction, such as protection of Indian
reservations, fisheries, and public lands. See, Escondido
Mutual Water Co. v. LaJolla Indians, 466 U.S. 765, 772-779
(1984), holding that FERC was required by FPA § 4(e), 16
U.S.C. § 797(e), to include the Secretary of Interior’s
conditions in its hydroelectric licenses with respect to
Projects located within Indian reservations under his
supervision.'! See also, the FLMPA, 43 U.S.C. § 1761 et
seq., as amended by P.L. 102-486, 106 Stat. 3096-3097, Tit.
XXIV, § 2401, overturning holding in California and Hen-
wood Associates Inc. v. FERC, 966 F.2d 1541, 1561 (9th Cir.
1992), that the Bureau of Land Management had no
authority to require right-of-way permit for hydroelectric
projects involving public lands; see also, 16 U.S.C. § 811,
as clarified by P.L. 102-486, 106 Stat. 3008, Title XVIL,
§ 1701(b), vacating FERC’s rule narrowly interpreting
“fishway” and providing that any future definition pro-
mulgated by FERC “shall have no force and effect unless
'! The conditions challenged in the Escondido case, like that
in this case, also dealt with water quantity issues. Escondido
involved requirements that certain Indian Tribes be allowed to
use a specified quantity of the water which otherwise would
have been used by the licensees. 466 U.S. at 772.
In Escondido, this Court stated that the standard of review
applied to conditions imposed by federal land manageiment
agencies in FERC proceedings is whether they are reasonably
related to the goal of protecting resources on federal reserva-
tions. 466 U.S. at 777-778. This Court should apply an analogous
standard when reviewing the condition imposed here under
Section 401: whether the condition is reasonably related to the
goal of ensuring compliance with water quality standards.
12
concurred in by the Secretaries of Commerce and Inte-
rior.” As can be seen, Congress has used a variety of
legislative techniques when imposing these limitations, at
times specifically mentioning FERC, and at other times
merely imposing a uniform compliance requirement on
all federal agencies and not including any special excep-
tion or exemption for FERC.
Section 401 is not the only limitation on FERC con-
tained in the Clean Water Act.!? Section 404, which
imposes a permit requirement regulating the discharge of
dredged or fill material, also imposes a limitation on
FERC’s authority. The courts have repeatedly held that
404’s permit requirement applies to projects licensed by
FERC. Scenic Hudson Preservation Conference v. Calloway,
499 F.2d 127 (2d Cir. 1974) (§ 404 applies to hydroelectric
project licensed by FPC); Monongahela Power Co., 809 F.2d
at 47 (§ 404 applies to FERC-licensed hydroproject
because no provision in FPA or § 404 exempts such pro-
jects from 404’s permitting requirements; if Congress did
not like result in Scenic Hudson, it could have changed 404
when enacting 1977 amendments to Water Act, but did
not do so).
When the certification requirement was first enacted,
Senator Edmund Muskie called it “the most important
section” of the 1970 water pollution legislation and then
said:
12 Petitioners’ reliance on CWA § 101(g), 33 U.S.C.
§ 1251(g), is misplaced. That section clarifies that the Clean
Water Act shall not interfere with a State’s authority to allocate
quantities of water. That section is therefore inapplicable to this
case.
13
No polluter will be able to hide behind a Federal
license or permit as an excuse for a violation of
water quality standards. No polluter will be able
to make major investments in facilities under a
Federal license or permit without providing
assurance that the facility will comply with
water quality standards.
Cong. Rec. Senate, p. 8984, March 24, 1970.13
As discussed infra, there is no doubt that Section 401
applies to FERC’s hydroelectric licensing activities. As
Congress stated:
This section is substantially section 21(b) of exis-
ting law . . . [Section 401] continues the author-
ity of the State or interstate agency to act to
deny a permit and thereby prevent a federal
license or permit from issuing to a discharge
source within such State or jurisdiction of the
interstate agency. Should such an affirmative
denial occur no license or permit could be
issued by such Federal agencies as the Atomic
Energy Commission, Federal Power Commission,
or the Corps of Engineers unless the State action
was overturned in the appropriate courts of
jurisdiction.
S.R. Rep. No. 92-414, 92d Cong., Ist Sess., reprinted in 2
USCCAN 3735 (1972) (emphasis added).!4
'3 Senator Muskie was the chief sponsor of the Water Qual-
ity Improvement Act of 1970, which contained the Section 21(b)
certification requirement. See, New Hampshire v. Atomic Energy
Commission, 406 F.2d 170, 176 (1st Cir. 1969), cert. denied, 395 U.S.
962 (1969).
'4 As discussed later in this brief in the “discharge” argu-
ment, if Congress were making a major change in the
14
The 1986 Electric Consumer Protection Act amend-
ments!5 (“ECPA”) to the Federal Power Act did not alter
the federal-state relationship created by the certification
requirement; they merely confirmed FERC’s respon-
sibility to give “equal consideration” to non-development
issues, including environmental ones, and provided spec-
ific procedures for fulfilling that responsibility. This
pointed clarification did not impliedly repeal Section
401’s applicability to FERC.
[T]he bill does not amend or change the Fish
and Wildlife Coordination Act, NEPA or other
environmental laws. It addresses and clarifies
FERC’s procedures and decisionmaking to
ensure that those laws are fully met.
H.R. Rep. 99-507, 99th Cong. 2d Sess., reprinted in 4
USCCAN 2508 (1986) (emphasis added).!©
certification jurisdictional trigger and narrowing that jurisdic-
tion from regulating the water pollution impacts of a project's
activity to merely relating a point source discharge, surely Con-
gress would not have characterized the 1972 certification provi-
sion as a non-substantive change and a continuation of the
States’ authority under the 1970 Act.
15 P.L. 99-495, 100 Stat. 1243, 16 U.S.C. §§ 797(e), 803(a).
16 The Report also explicitly stated that the amendments
did not alter the judicial decisions issued in various cases
requiring FERC to comply with different laws, including Escon-
dido Mutual Water Co., 466 U.S. 765, supra, (FERC bound to
accept terms and conditions from Federal land managers to
protect resources on Federal lands), Confederated Tribes of the
Yakima Nation v. FERC, 746 F.2d 466 (9th Cir. 1984), cert. denied,
471 U.S. 1116 (1985), (FERC relicensing decision reversed
because it failed to adequately consider fisheries matters and
failed to prepare environmental impact statement), Tulalip Tribes
of Washington v. FERC, 732 F.2d 1451 (9th Cir. 1984), (FERC
15
Thus, the ECPA amendments, which reinforce
FERC’s responsibilities regarding fish and wildlife, did
not repeal or limit Clean Water Act § 303’s directive that
States adopt water quality standards which take “into
consideration their use and value for . . . propagation of
fish and wildlife”. Congress instead enacted two statutes
specifically requiring protection of fish and wildlife. A
State fulfills its responsibility through its water quality
standards and the enforcement of those standards in a
water quality certification; FERC discharges its respon-
sibility during the balancing process it undertakes during
its licensing proceeding.
Further, if Congress felt that ECPA conflicted with
Section 401, it had every opportunity to amend Section
401 to that effect when it enacted the Water Quality Act of
1987. It did not. To the contrary, Congress bolstered the
Clean Water Act’s mandate that nonpoint sources of pol-
lution such as diversion dams are required to comply
with water quality standards. CWA § 319, 33 U.S.C.
§ 1329.
wrongly allowed new diversion projects to be included in its
exemption program), The Steamboaters v. FERC, 759 F.2d 1382
(9th Cir. 1985), (FERC required to comply with NEPA) and
similar cases which provided “guidance and redirection to the
Commission”. H.R. Rep. 99-507, 99th Cong., 2d Sess., reprinted
in 4 USCCAN 2508 (1986). “The Committee intends that the
Commission should adhere to the mandate of these cases.” H.R.
Rep. 99-507, reprinted in 4 USCCAN 2508. The House Confer-
ence report also stated that “There is no intention in any way to
change the holdings in relevant cases, such as Udall v. FPC,
which the conferees intend will continue to apply to FERC’s
hydroelectric program.” H.R. Conf. Rep. 99-934, 99th Cong., 2d
Sess., reprinted in 4 USCCAN 2537, 2538 (1986).
16
This Court’s prior decision interpreting the scope of
the Federal Power Act in First lowa Hydro-Electric Coopera-
tive v. Federal Power Commission, 328 U.S. 152 (1946), is of
limited relevance here because it was decided prior to
enactment of Section 401. Furthermore, unlike First lowa,
this is not a preemption case; this case involves constru-
ing two federal statutes to give effect to each.
Similarly, California v. FERC, 495 U.S. 490 (1990), is
also of limited relevance to this case because Section 401
was not involved in that case and because this case,
unlike California v. FERC, does not involve proprietary
rights or a State water rights permit. In that case, Califor-
nia issued a water right permit to a FERC licensee five
years after FERC had issued its license. The State’s license
imposed a minimum flow condition different from the
minimum flow condition FERC had previously
imposed. !7
This Court, applying the doctrine of stare decisis, held
that FPA § 27 did not save California’s streamflow condi-
tion because such instream flows are not proprietary
rights under California law, and therefore were not speci-
fically saved by § 27. The Court cautioned, however, that:
[jJust as courts may not find State measures pre-
empted in the absence of clear evidence that
Congress so intended, so must they give full
effect to evidence that Congress considered and
17 This is a dramatically different procedure from that used
by a state exercising Section 401 jurisdiction. In the 401 situa-
tion, as the Washington court correctly stated, the State must
make its certification determination prior to FERC’s making its
licensing determination. 18 CFR 4.38(f)(7) (1991).
17
sought to preserve the States’ coordinate regula-
tory role in our federal scheme.
495 U.S. 497. Congress crafted precisely such a coordinate
regulatory role for the States in the federal regulatory
scheme for hydroelectric projects when it enacted Section
401. Furthermore, Section 401 is the kind of “express
congressional command” outside of the Federal Power
Act that this Court found to be lacking in the First Iowa
situation. See, California v. FERC, 495 U.S. at 501.
This Court has previously recognized that the “Clean
Water Act anticipates a partnership between the States
and the Federal government, animated by a shared objec-
tive: ‘to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters’ ”. Arkansas v.
Oklahoma, 503 U.S. __, 112 S.Ct. 1046 (1992). Section 401
is part of that partnership.
2. Washington Acted Within Its § 401 Authority When
It Imposed The Streamflow Condition Because § 401
Regulates The Water Quality Impacts Of Hydro-
electric Projects
Section 401 applies the Clean Water Act to federally
licensed projects which may cause impacts to water qual-
ity. The plain language of § 401, its context within the
Clean Water Act, and its legislative history demonstrate
that § 401 grants the States authority to regulate all water
quality impacts of federally licensed projects regardless
of whether the impact is caused by a discharge from a
point or nonpoint source. In addition, EPA, the federal
agency charged with administering and interpreting the
Clean Water Act, and whose interpretation is therefore
18
entitled to deference, has interpreted § 401 as applying to
the water quality impacts of hydroelectric projects,
whether or not those impacts are caused by point or
nonpoint sources. Petitioners’ overly technical argu-
ments'® ignore the far-reaching purpose of the Clean
Water Act and fail to recognize that a hydroproject’s
adverse water quality impacts emanate from both point
and nonpoint source discharges. See, “Interest” section,
supra.
The plain language of the Clean Water Act demon-
strates that nonpoint source impacts of federally licensed
projects come within the scope of § 401. The Clean Water
Act’s definition of “discharge”, when used without quali-
fication as it is in § 401, merely includes, but is not
limited to, point source discharges. Contrast, 33 U.S.C.
§ 1362(12), which defines “discharge of pollutants” to
“mean” the items thereafter listed, and § 1362(16), which
defines “discharge” to “include” the items thereafter lis-
ted.1° The term “any discharge” in § 401, then, clearly
means that the States may deny or condition certification
of any type of discharge on compliance with water quality
standards.
18 Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275,
292 (D.C.Cir.1981) held:
Courts have held that the Clean Water Act is to be
given a reasonable interpretation which is not parsed
and dissected with the meticulous technicality
applied in testing other statutes and instruments.
'9 All other definitions in § 502 use the all-inclusive term
“means”. Congress deliberately used different, less inclusive
language in defining “ ‘discharge’ when used without qualifica-
tion”.
19
Furthermore, § 401, in contrast with § 402, which
regulates point source discharges, specifically requires
compliance with the ambient based water quality stan-
dards established under Clean Water Act § 303, 33 U.S.C.
§ 1313. 33 U.S.C. § 1341(a)(1).2° Nonpoint sources of
pollution are governed by the water quality standards.
Consumers Power Co., 862 F.2d at 588. There would have
been no need for Congress to specifically incorporate
§ 303’s ambient standards into § 401 if, as suggested by
the petitioners, § 401 was limited to regulating the point
source discharge of pollutants.
Indeed, the Clean Water Act mandates that both
point and nonpoint sources of pollution be managed to
attain and maintain compliance with water quality stan-
' dards.21 CWA §§ 208(b)(2), 304, 319, 33 U.S.C.
§§ 1288(b)(2), 1314, 1329. Pollution is defined as “the
man-made or man-induced alteration of the chemical,
physical, biological and radiological integrity of water.”
CWA § 502(19), 33 U.S.C. § 1362(19). A dam or diversion
unquestionably is a man-made alteration of the chemical,
physical, and biological integrity of water. Further, § 319
was added to the Clean Water Act through the Water
Quality Act of 1987, which stated the following:
it is the national policy that programs for the
control of nonpoint sources of pollution be
20 Sections 401(a)(1) and 402 both incorporate §§ 301, 302,
306 and 307 by reference.
21 Petitioners’ assertion that a discharge “implies the con-
cept of an addition of something to the receiving waters,” pet.
brief at 23, does not assist them. Congress recognizes that non-
point sources “add” pollution to navigable waters. CWA
§ 319(a)(1)(B), 33 U.S.C. § 1329(a)(1)(B).
20
developed and implemented in an expeditious
manner so as to enable the goals of this Act to
be met through the control of both point and
nonpoint sources of pollution.
CWA § 101(a)(7), 33 U.S.C. § 1251(a)(7). See, also, Con-
sumers Power Co., 862 F.2d at 588 (Congress, in drafting
the Water Quality Act of 1987, specifically focused on the
water pollution problems caused by dams).
The Clean Water Act recognizes that “changes in the
movement, flow, or circulation of any navigable waters,
including changes caused by the construction of dams,
levees, channels, causeways, or flow diversion facilities”
are nonpoint sources of pollution. CWA § 304(f)(2)(F), 33
U.S.C. § 1314(f)(2)(F). Accordingly, EPA has listed hydro-
logical modifications including channelization, dam con-
struction, flow regulation or modification and
streambank modification as one of the “major nonpoint
source pollution categories.” Nonpoint Source Guidance,
U.S.E.P.A. (Dec. 1987); see also, Pet. App. at 8a. EPA’s
construction is reasonable and thus must be given con-
trolling weight. Arkansas v. Oklahoma, 503 U.S. __, 112
S.Ct. 1046, 1060 (1992); Chevron U.S.A. v. Natural Res. Def.
Council, 467 U.S. 837, 844 (1983).
Moreover, § 401’s legislative history indicates that
Congress clearly intended § 401 to apply to nonpoint
source discharges. The 1970 certification provision ini-
tially required the State to certify that the “activity” com-
plied with water quality standards. Compare, former 33
U.S.C. § 1171(b), referred to as “Section 21(b)”, with
existing 33 U.S.C. § 1341, referred to as “Section 401”.
When the 1972 Clean Water Act amendments added a
new emphasis on effluent limitations to control pollution
21
at its source, Congress characterized its revisions to § 401
— including a requirement that the discharge comply with
various provisions of the Clean Water Act - as making no
substantive changes in the provision other than to add
the references to the new provisions of the Act. S. Rep.
No. 92-414, 92d Cong., 1st Sess., reprinted in 2 USCCAN
3735 (1972). See, discussion in Section 1 of this brief. If
Congress intended to narrow the provision’s reach, rather
than expand it, surely Congress would not have charac-
terized the changes as a mere continuation of the provi-
sion. See, discussion, supra. Finally, in 1977, when
Congress again amended § 401 to specifically incorporate
§ 303, it again characterized the provision as regulating
federally licensed activities which may discharge into
navigable waters. H.R. Rep. No. 95-370, 95th Cong. Ist
Sess., reprinted in 3 USCCAN 4424, 4471 (1977).
EPA construes § 401 as the appropriate mechanism
for States to address all water quality impacts caused by
the operation of a hydroelectric facility:
EPA, as the principal agency responsible for
administering the CWA, has taken steps to sup-
port States as they consider the full range of
water quality impacts when evaluating Federal
permits under Section 401 and licenses, includ-
ing hydropower licenses. The types of potential
adverse impacts associated with hydropower
projects include loss or degradation of aquatic
habitat; impacts on wildlife, fisheries, and
endangered species that are dependent on the
aquatic environment; accumulation of contami-
nated sediments; nonpoint source impacts;
water chemistry problems such as low levels of
22
dissolved oxygen; significant changes in tem-
perature; and significant changes in water flow
volumes and timing.
Statement of Martha G. Prothro, Deputy Assistant
Administrator for Water, EPA, before the Subcommittee
on Environment, Energy and Natural Resources, of the
House of Representatives (May 15, 1992) Appendix at
15a. See also, Pet. app. at 8a.
FERC has also consistently offered the view that
§ 401 may regulate the operation of existing dams. FERC
endorsed § 401 conditions requiring spillage of water at
the dam to redress dissolved oxygen problems caused by
the dams and their operation in OMYA, Inc., 62 FERC
4 62,224 (1993) and in Environmental Assessment for Hydro-
power License, Gilman Hydroelectric Project, No. 2392,
FERC, Office of Hydropower Licensing (April 4, 1990),
pending before this Court sub nom., Simpson Paper (Ver-
mont) Co., Inc. v. Vermont Department of Environmental
Conservation and Sierra Club, No. 92-1012. See also 18 CFR
§ 4.38(f)(7) (1991) (requiring applicants for relicensure to
obtain § 401 certification).
Petitioners’ claim that § 401 may govern tailrace dis-
charges but not the pollution added by changes in the
movement, flow, or circulation leads to absurd results.
The Clean Water Act would not redress the water quality
impacts caused by petitioners’ project if § 401 precluded
its applicability to the project’s most severe impacts on
water quality. Section 401 should not be construed to
produce such an absurd result. Griffin v. Oceanic Contrac-
tors, Inc., 458 U.S. 564, 575 (1982) (Interpretations of stat-
ute which would produce absurd results are to be
23
avoided if alternative interpretations consistent with leg-
islative purpose are available); Environmental Defense
Fund v. Costle, 657 F.2d 275, 292 (D.C. Cir. 1981) (Clean
Water Act to be given reasonable construction).
Finally, the petitioners’ argument does not real-
istically reflect the design and operation of hydroelectric
dams. Section 401 applies to any federally licensed activ-
ity “which may result in any discharge into the navigable
waters.” 33 U.S.C. § 1341. The petitioners concede that
the term “any discharge into the navigable waters”
includes the discharge of impounded waters, Pet. brief at
23, but then assert that their diversion dam does not
create a discharge. Pet. brief at 23. However, all hydro-
electric dams are designed, built and operated so that
they may discharge impounded waters over a spillway or
through a sluice gate or other similar mechanism.?2
Indeed, the record reflects that the petitioners propose to
discharge a minimum of 65 cubic feet per second of
impounded waters from their dam. Pet. app. at 5a.
3. The Washington Court Properly Upheld The State’s
Reliance On The Designated Uses Element Of Its
EPA-Approved Water Quality Standards
Petitioners erroneously claim (Pet. Br., p. 32) that
designated uses, which are one element of State water
quality standards, are mere goals that may be achieved
only through the operation of criteria. CWA
22 Design of Small Dams, U.S. Bureau of Reclamation, 2d ed.
(1973); Craeger and Justin, Hydroelectric Handbook 100, 346 (2d
ed. 1965).
24
§ 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). Under peti-
tioners’ misguided view, the absence of an applicable
criterion allows the violation of a designated use. Crite-
ria, however, are merely one meas to an end; they are
not the end in themselves. The ces'gnated uses are para-
mount.
Petitioners’ claim is inapposite to § 401’s plain_tan-
guage. Section 401(a)(1) expressly provides that a state
may deny certification if a project will not “comply with
applicable provisions of sections . . . 303.” Petitioners
concede these applicable provisions include the water
quality standards. Pet. Br., p. 31.
Section 303 also fails to provide support for the peti-
tioners’ argument. It states that criteria are to be “based
upon” designated uses; it does not say that criteria are
the exclusive mechanisms to assure compliance with
those uses. Indeed, EPA’s regulations specifically require
dams to be operated to attain designated uses, 40 CFR
§ 131.10(g)(4) (1991), and provide that “[w]hen criteria
are met, water quality will generally protect the desig-
nated use.” 40 CFR 131.3(b) (1991). (emphasis added).
EPA recognizes there will be instances where the criteria
are insufficient to protect the use and thus requires States
to fashion limitations based directly on the use.
Most important, petitioners’ argument represents a
fundamental and dangerous departure from long estab-
lished methods of implementing the Clean Water Act
which allow States to protect designated uses even
though they may not have adopted a specific criteria. For
example, the Vermont Department of Fish and Wildlife’s
fish hatchery on Grand Isle in Lake Champlain holds a
ee ee ee
25
§ 402 discharge permit regulating its discharge of antibi-
otics. Amended Discharge Permit, No. 3-1312, Vermont
Dept. Env. Cons. (Sept. 24, 1992). Because Vermont does
not have any criterion applicable to antibiotics,?* its
Department of Environmental Conservation fashioned a
case specific permit limitation “based on sound scien-
tific? rationale and contain[ing] sufficient parame-
ters .. . to protect the designated use” of Lake Champlain
as a public drinking water supply. 10 Vt. Stat. Ann.
§ 1253(b); Vt. WQS § 3-03(A)(1) (1991); 30 CFR
131.11(a)(1) (1983). Petitioners’ argument, if adopted,
could preclude the protection of Lake Champlain and
endanger its uses.
EPA has consistently interpreted § 401 and state obli-
gations under the Clean Water Act to require the full
implementation of the water quality standards.
[P]rotection of water quality involves far more
than just addressing water chemistry. Rather,
protection of water quality includes protection
of the multiple elements which together make
up aquatic systems including the aquatic life,
23 The permit condition is as follows: “Terramycin — Use
shall not exceed 3.75 g per 100 lb. of fish per day. The permittee
shall report the dates and quantities used.”
24 Vermont and Washington have only 10 criteria. EPA
established oniy 7 criteria in the water quality standards it
promulgated for the Colville Confederated Tribes Indian Reser-
vation. 33 C.F.R. § 131.35 (1989). These criteria are: enterococci
bacteria, dissolved oxygen, dissolved gas, temperature, pH, tur-
bidity, and toxics. They clearly do not cover all impacts to water
quality.
25 Washington similarly premised its streamflow condition
on a sound scientific rationale. Pet. app. at 4a-5a, 24a-27a.
26
wildlife, wetlands, and other aquatic habitat,
vegetation, and hydrology required to maintain
the aquatic system. Relevant water quality
issues include the toxicity and bioaccumulation
of pollutants, the diversity and composition of
the aquatic species, entrapment of pollutants in
sediment, stormwater and nonpoint source
impacts, habitat loss, and hydrological changes.
Letter from LuJuana Wilcher, Assistant Administrator,
EPA to Hon. Lois Cashell, Secretary, FERC (Jan. 18, 1991)
(Pet. App. at 8a). As discussed earlier, EPA’s interpreta-
tion is reasonable and is therefore conclusive. Arkansas,
503 U.S. __, 112 S. Ct. at 1060.
4. The Washington Court Properly Upheld The State’s
Reliance On Its Antidegradation Policy As A Basis
For Imposing The Streamflow Condition
Washington’s imposition of a minimum streamflow
condition based on its EPA-approved antidegradation
standard was within the authority Congress gave the
States in Section 401. The antidegradation policy is an
essential element of a State’s EPA-approved water quality
standard. 40 CFR 131.12 (1983). .
The antidegradation provision, insofar as it is rele-
vant to this case, is used: (a) to protect and maintain
existing instream uses*® and the level of water quality
*6 “Existing uses” are those uses actually attained in the
water body on or after November 28, 1975, whether or not they
are included in the water body standards. 40 CFR 131.3(e).
Designated uses”, by contrast, are those uses specified in water
quatity standards for each water body or segment whether or
27
necessary to protect them, and (b) to maintain and protect
high quality waters - those waters where the quality
meets or exceeds the level necessary to support the prop-
agation of fish, shellfish, and wildlife and recreation in
and on the water. 40 CFR 131.12(a)(1),(2).?7
Under EPA’s interpretation of the statute, the anti-
degradation standard is just as important an element of
water quality standards as are the designated uses and
the criteria. Furthermore, the antidegradation standard is
just as important to protecting the designated uses as are
the water quality criteria. It is the key to protecting
existing uses and high quality uses. It is essential to
attaining designated uses. In a word, it is indispensable.
EPA interprets the purpose of the antidegradation
policy to prevent the State from permitting the degreda-
tion of water quality to the detriment of the existing use.
40 CFR 131.12(a). Washington's policy provides: “Existing
beneficial uses shall be maintained and protected and no
further degradation which would interfere with or
become injurious to existing beneficial uses will be
allowed”. WAC 173-201-035(8)(a). In this case, the
not they are being attained. 40 CFR 131.3(f). In a nutshell,
existing uses must be maintained and designated uses must be
attained unless it is not feasible to do so. 40 CFR 131.10(g),(h).
27 The policy also provides that high quality waters consti-
tuting an outstanding national resource, such as waters of
national parks and wildlife refuges and “waters of exceptional
recreational and ecological significance” are to be maintained
and protected. 40 CFR 131.12(a).
28
existing beneficial, and designated, use is fish migra-
tion, rearing, spawning, and harvesting. WAC
173-201-045(1)(b)(iii). The Dosewallips River currently
supports populations of salmon, steelhead and resident
trout. To protect these populations, Washington applied
its EPA-approved antidegradation standard to regulate
streamflow in order to protect the existing fishery use.?8
It follows that the State had no choice under its federal-
antidegradation law but to impose the minimum flow
requirement.
5. Washington Properly Relied On § 401(d)
The Washington court alternatively held that the base
flow statute was an “other appropriate requirement of
state law.” Petitioners wrongly assert that § 401(d) did
not authorize Washington to set a minimum flow condi-
tion necessary for compliance with its water quality stan-
dards. The base flow requirement is clearly related to the
protection of water quality and the water quality stan-
dards. Consequently, under the standard of review estab-
lished by this Court in Escondido Mutual Water Co., 466
U.S. at 777-778, i.e., whether the conditions are reasonably
related to the goal of protecting water quality, imposition
of the minimum streamflow condition was reasonable
and should be affirmed.
28 It is of no moment that a program staff member, when
inserting the minimum streamflow condition in the certifica-
tion, incorrectly characterized the project as complying with
water quality standards because the law, as interpreted by the
courts, determines the scope of water quality standards.
ee ek” ie Ah vy
icc sen con a
29
If § 401(d) is to be given purpose, it must extend to
state laws beyond the water quality standards. As evi-
denced by §§ 401(a) and (b), Congress knew how to
specify provisions of the Clean Water Act for implemen-
tation through § 401. It did not opt in § 401(a)(1) to
authorize the denial or conditioning of certifications
based on specified provisions of the Act. Rather, it plainly
chose to authorize states to assure compliance with “any
other appropriate” state laws through § 401(d).
Finally, the word “appropriate” in § 401(d) limits the
state laws that it may effectuate. Washington's statute
providing that “[p]erennial rivers and streams of the state
shall be retained with base flows necessary to provide for
preservation of wildlife, fish, scenic, aesthetic and other
environmental values, and navigational values”2? mirrors
§ 303’s mandate that water quality standards protect a
water’s “uses and values for . . . propagation of fish and
wildlife, recreational purposes . . . and [its] use for navi-
gation.” CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). It
would be hard to find a State law much more related to
water quality standards. Washington’s reliance on this
requirement of state law was thus appropriate.
+
29 RCW 90.54.020(3)(a)
30
CONCLUSION
The judgment of the Washington Supreme Court
should be affirmed.
Respectfully submitted,
State of Vermont RONALD A. SHEMS
Jerrrey L. AMestoy Assistant Attorney General
Attorney General Of Counsel
State of New York KATHLEEN ListTON MorrIsON*
Rosert ABRAMS *Counsel of Record
Attorney General Assistant Attorney General
The Capitol
Albany, New York 12224
(578) 474-4819
la
THE FEDERAL ENERGY REGULATORY COMMIS-
SION’S HYDROPOWER LICENSING PROGRAM
HEARING
BEFORE THE
ENVIRONMENT, ENERGY, AND
NATURAL RESOURCES SUBCOMMITTEE
OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SECOND CONGRESS
SECOND SESSION
MAY 15, 1992
Printed for the use of the Committee on
Government Operations
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993
COMMITTEE ON GOVERNMENT OPERATIONS
JOHN CONYERS, Jr., Michigan, Chairman
CARDISS COLLINS, Illinois
GLENN ENGLISH, Oklahoma
HENRY A. WAXMAN, California
TED WEISS, New York
MIKE SYNAR, Oklahoma
STEPHEN L. NEAL, North Carolina
DOUG BARNARD, Jr., Georgia
TOM LANTOS, California
ROBERT E. WISE, Jr., West Virginia
BARBARA BOXER, California
MAJOR R. OWENS, New York
2a
EDOLPHUS TOWNS, New York
BEN ERDREICH, Alabama
GERALD D. KLECZKA, Wisconsin
ALBERT G. BUSTAMANTE, Texas
MATTHEW G. MARTINEZ, California
DONALD M. PAYNE, New Jersey
GARY A. CONDIT, California
PATSY T. MINK, Hawaii
RAY THORNTON, Arkansas
COLLIN C. PETERSON, Minnesota
ROSA L. DeLAURO, Connecticut
CHARLES J. LUKEN, Ohio
JOHN W. COX, Jr., Illinois
FRANK HORTON, New York
WILLIAM F. CLINGER, Jr., Pennsylvania
AL McCANDLESS, California
J. DENNIS HASTERT, Illinois
JON L. KYL, Arizona
CHRISTOPHER SHAYS, Connecticut
STEVEN SCHIFF, New Mexico
C. CHRISTOPHER COX, California
CRAIG THOMAS, Wyoming
ILEANA ROS-LEHTINEN, Florida
RONALD K. MACHTLEY, Rhode Island
DICK ZIMMER, New Jersey
WILLIAM H. ZELIFF, Jr., New Hampshire
DAVID L. HOBSON, Ohio
SCOTT L. KLUG, Wisconsin
BERNARD SANDERS, Vermont
(Independent)
JULIAN Epstein, Staff Director
Donatp W. Upson, Minority Staff Director
3a
ENVIRONMENT, ENERGY, AND NATURAL
RESOURCES SUBCOMMITTEE
MIKE SYNAR, Oklahoma, Chairman
EDOLPHUS TOWNS, New York
ALBERT G. BUSTAMANTE, Texas
BEN ERDREICH, Alabama
CHARLES J. LUKEN, Ohio
JOHN W. COX, Jr., Illinois
WILLIAM F. CLINGER, Jr., Pennsylvania
DAVID L. HOBSON, Ohio
SCOTT L. KLUG, Wisconsin
Ex Orricio
JOHN CONYERS, Jr., Michigan
FRANK HORTON, New York
SanprRa Z. Harris, Staff Director
RutH FLeiscHer, Counsel
EuisasetH R. Campsett, Clerk
JuprtH A. BLaNcHarRD, Minority Professional Staff
CONTENTS
Hearing held on May 15, 1992...............00005. 1
Statement of:
Allday, Martin L., Chairman, Federal Energy Regu-
latory Commission, accompanied by Fred E.
Springer, Director, Office of Hydropower Licens-
ing, and William S. Scherman, general counsel... 131
Earnest, Russell, Deputy Assistant Director for Fish
and Wildlife Enhancement, Fish and Wildlife Ser-
vice, U.S. Department of the Interior ............ 64
Echeverria, John D., counsel, National Audubon
EE AEE ESE EPPPOOTTTTTIT TTT TELE OLe 25
4a
Gerstman, Marc, deputy commissioner and general
counsel, Department of Environmental Conserva-
Se Ff eee 99
Greely, Gail Ann, president, Pacific Hydro Consult-
lene, Gone, GRE oo cc ccccccccsccccccscccsceccscess 3
Prothro, Martha G., Deputy Assistant Administra-
tor, Office of Water, U.S. Environmental Protection
AGGMEY occ cccccccvcscccccccscccccccseceseccosecs 88
Synar, Hon. Mike, a Representative in Congress
from the State of Oklahoma, and chairman, Envi-
ronment, Energy, and Natural Resources Subcom-
mittee; Opening statement....................5. 1
Tillman, Michael, Ph.D., Deputy Assistant Adminis-
trator for Fisheries, National Marine Fisheries Service,
National Oceanic and Atmospheric Administration,
U.S. Department of Commerce, accompanied by
Nicholas E. Iladanza, supervisory fish biologist, Chief,
Habitat Conservation Branch................6..55: 77
Letters, statements, etc., submitted for the record by:
Allday, Martin L., Chairman, Federal Energy
Regulatory Commission:
Information concerning personnel shifts to
FEED oc cccncccvncccccsceseucesceecescssescsnese 195
go PPT 135
Earnest, Russell, Deputy Assistant Director for
Fish and Wildlife Enhancement, Fish and Wild-
life Service, U.S. Department of the Interior:
PTT TITTLE ee 67
Echeverria, John D., counsel, National Audubon
Society: Prepared statement...................+.- 28
Gerstman, Marc, deputy commissioner and gen-
eral counsel, Department of Environmental
Conservation, State of New York:
Ce
5a
Information concerning relicensing projects in New
York that do not have base flow requirements ..... 131
PURPOSES GOMRNIIGEE os ccescccsscecccscccscocees 102
Greely, Gail Ann, president, Pacific Hydro Consult-
ing Group, Inc.: Prepared statement ............. 7
Prothro, Martha G., a Assistant Administra-
tor, Office of Water, U.S. Environmental Protection
Agency: Prepared statement ..................... 90
Springer, Fred E., Director, Office of Hydro-
power Licensing:
Environmental assessment comparisons ........ 190
Information concerning nonacceptance of recom-
RN ob. 0 0s ccndecneccevesuevecaduccecoescss 188
Order No. 533-A’s modifications to order 533 in
response to agency rehearing requests........... 197
Tillman, Michael, Ph.D., Deputy Assistant Admin-
istrator for Fisheries, National Marine Fisheries
Service, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce:
PUES GRIER. 0 oc cctvestscscccctcccnscecces 79
APPENDIX
Material submitted for the hearing record.......... 199
Mr. Synar. Thank you, doctor.
Martha Prothro, Welcome back. Ms. Prothro is the
Deputy Assistant Administrator, Office of Water, at the
U.S. EPA.
6a
STATEMENT OF MARTHA G. PROTHRO, DEPUTY
ASSISTANT ADMINISTRATOR, OFFICE OF WATER,
U.S. ENVIRONMENTAL PROTECTION AGENCY
Ms. ProrHro. Good morning Mr. Chairman. It is my
pleasure to be here to discuss the role of EPA and the
CWA in hydropower relicensing.
EPA’s 1990 water quality inventory indicates only 63
percent of assessed rivers are today considered fishable
and swimmable, the goals of the Clean Water Act.
Hydrologic and habitat modification as cited by
States are the third leading cause of impairment of rivers.
The goal of the Clean Water Act is to restore and maintain
the chemical, physical, and biological integrity of the
Nation’s waters.
The CWA provides for water quality standards
addressing all three of these characteristics of high qual-
ity waters —- not only chemical integrity, but also the
integrity of biological resources and the physical integrity
of the water body. The Act also provides for State water
quality certification of certain Federal permits or licenses.
These certifications are based on State water quality
standards. If a license does not insure compliance with
State standards, certification can be denied or condi-
tioned.
EPA requires States to adopt standards with three
basic components. First, the State is to designate the
water uses that it wishes to protect for each of its waters,
for example drinking water supplies, support of fish and
wildlife, or recreational.
7a
Second, the State is to adopt a criteria to protect those
uses. Criteria may be numeric or narrative and they may
relate to chemical, biological, or physical characteristics
of the water.
Finally, the State must adopt an antidegradation pol-
icy to protect its high quality waters. Wherever attain-
able, States must strive to achieve fishable and
swimmable water quality.
All States have established narrative criteria describ-
ing the water quality conditions to be achieved and most
have a wide array of chemical specific numeric criteria
for the water column. EPA has recently begun to emphas-
ize that States should also include more specific criteria
for habitat protection, criteria to help prevent contamina-
tion of sediments and criteria for the protection of wild-
life. Some States are way ahead of us on this and we are
using them as examples for other States to move forward.
Finally, States are to include antidegradation policies
which should protect existing uses and existing water
quality, especially for high quality and ecologically
unique waters. EPA assists and guides the States in the
certification process. We provide grant support, guidance,
and sometimes technical input regarding the potential
and environmental impacts of individual projects.
EPA supports States as they consider the full range of
water quality impacts. Potential impacts associated with
hydropower projects include loss or degradation of
aquatic habitat; impacts on wildlife, fisheries, and endan-
gered species that are dependent upon the aquatic envi-
ronment; accumulation of contaminated sediments;
nonpoint source runoff that pollutes the water; water
8a
chemistry problems such as low levels of water of dis-
solved oxygen; significant changes in temperature; and
significant changes in water flows.
FERC has questioned the extent of State certification
authority, suggesting it may be limited to chemical integ-
rity. The States have indicated their ability to enhance
and protect water quality would be undercut if their
authority to certify FERC licenses were limited.
Another issue of concern to States is the sometimes
sporadic enforcements of section 401 conditions of FERC
licenses. In response to State concerns and a letter sent to
EPA by a FERC official, we wrote to FERC in January
1991 to clarify that the Clean Water Act does require more
than just protecting the chemistry of the water column.
We also have responsibilities under section 404 of the
Clean Water Act that relate mostly to licensing of new
dams that involve dredge and fill activities. Those
responsibilities are discussed more fully in my written
testimony. And, of course we also have a role in the
NEPA process.
The environmental applications of hydropower
licenses are generally evaluated by FERC in their EIS’s
and environmental assessments under NEPA, and we do
review those under the authority of NEPA and the Clean
Air Act. Our recommendations, like those of State certi-
fications, may increase projects costs in order to preserve
current and future societal benefits produced by the natu-
ral resources we are charged to protect.
In the vast majority of cases it is possible to design or
modify a project to produce energy and still achieve
9a
environmental goals. By the year 1999, a large number of
FERC licenses for existing hydropower projects will
expire. We have been working with FERC to plan for this
prodigious workload and we are hoping to establish
some written agreement with FERC on the way we will
interact in this process. ~
Our goal is to achieve both fish and environmentally
responsible licensing for hydropower projects. We believe
a written agreement will help us and we have some
examples we can use as models, examples of agreements
with other agencies.
Although FERC is reluctant to adopt some of the
State certification conditions in its licenses, FERC now
does consider biological and physical impacts on the
Nation’s waters. We feel this is a big step in the right
direction. We feel that it is important to note that the
American public has spent billions of dollars to abate
pollution from industries and municipalities so public
health would be protected, but also enjoyment of recre-
ation in and on the waters would be possible and that
ecological systems could be enhanced and protected. It
makes little sense to insure water chemistry supports
these goals if habitat destruction and hydro modification
can readily defeat them.
I would be happy to answer any questions.
[The prepared stateinent of Ms. Prothro follows:]
10a
STATEMENT OF
MARTHA G. PROTHRO
DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE SUBCOMMITTEE ON ENVIRONMENT,
ENERGY, AND NATURAL RESOURCES OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
MAY 15, 1992
Mr. Chairman and distinguished members of the
Committee, it is my pleasure to come before you today to
assist in your review of the operations and procedures of
the Federal Energy Regulatory Commission’s (FERC’s)
hydropower licensing program. In your letter of invita-
tion, you inquired about several specific issues concern-
ing the Environmental Protection Agency (EPA) and our
role in State certification of Federal permits and licenses
under Section 401 of the Clean Water Act (CWA). You
requested that we discuss the environmental review asso-
ciated with FERC’s hydropower licensing process and
FERC’s relationship with State agencies responsible for
certifying that proposed projects meet CWA require-
ments. In addition, a third question related to the CWA is
the potential impact of legislative proposals on FERC’s
hydropower activities.
Let me begin today by giving a brief status of the
health of our Nation’s rivers. Our Nation’s rivers have
sustained long-term adverse impacts. The 1990 Water
Quality Inventory prepared by EPA based on State
reports under Section 305(b) of the CWA, indicates that
only 63 percent of assessed rivers are considered “swim-
mable and fishable.” The most extensive causes of
impairment to our Nation’s rivers, cited in the Section
Pee ee
ee ee a ee ee
sa iainaieniaente atin tetea eee es Ce Le Vi ee ee ee ee Se ee ae eS ee ee
lla
305(b) report, were siltation, nutrients, low dissolved
oxygen, and pathogens. Agricultural runoff was the most
extensive source of pollution; however, hydrologic and
habitat modification was the third leading source of
impairment of our Nation’s rivers. Sometimes the effect
of pollution sources is the alteration of natural flow reg-
imes, which may adversely affect habitat and fishery
resources. One example of this effect on a fishery is the
Columbia River System, which has the largest dam sys-
tem for electric power in the world. Anadromous fish
runs in the Columbia and Snake River Basins are now
estimated to be less than 25% of levels that would have
been expected without the dams.!
A recent study by the American Fisheries Society’s
Endangered Species Committee found nearly one-third of
native North American freshwater fish species are endan-
gered, threatened, or of special concern and 93 percent of
these have been adversely affected by habitat loss. This
same report, indicated that one-tenth of the species of
freshwater mussels has become extinct. Approximately
73% of the remaining species are considered rare or
imperiled due primarily to habitat destruction from pol-
lution from a number of sources, including dam construc-
tion.
The stated goal of the CWA is to restore and maintain
the chemical, physical and biological integrity of the
Nation’s waters. The CWA authorizes adoption of water
1 Northwest Power Planning Council, Impacts and Implica-
tions of the Pacific Northwest Power Bill (Rep. No. EMD-79-105,
1979).
12a
quality standards addressing all three of the characteris-
tics of high quality waters —- not only chemical integrity,
but also the integrity of biological resources and the
physical integrity of the water body. One valuable tool to
protect the health and viability of our Nation’s waters is
Section 401 of the CWA which provides for State water
quality certification. States are authorized to issue, condi-
tion, deny, or waive certification of certain Federal per-
mits or licenses that may affect the physical, chemical, or
biological integrity of our waters. In a few exception/
cases, EPA is responsible for the certification. Currently,
EPA has this responsibility for the State of South Dakota,
some Indian tribes and for one specific hydropower pro-
ject in Maine where State legislation precludes Maine
from applying its water quality standards to the project.
Section 401(a) also gives EPA specific responsibilities to
notify other affected States and make independent recom-
mendations to the Federal permitting or licensing agency
in cases where a discharge may affect the waters of any
State other than the State in which the discharge origi-
nates. In Arkansas v. Oklahoma (1992), the U.S. Supreme
Court held that the Clean Water Act allows EPA to
require that point sources in upstream States not violate
water quality standards in downstream States. The court
declined however, to address the question of whether the
CWA mandated EPA to apply standards of downstream
States; it merely stated EPA had the authority to do so
under the CWA.
Section 401 certifications are based on State water
quality standards. If a permit or license does not ensure
compliance with State water quality standards, certifica-
tion can be denied or be conditioned. EPA regulations,
™
oe eee ed et tee
a ve
13a
implementing Section 303(c) of the CWA, require States to
adopt standards with three basic components. First, the
States are to designate the uses it wishes to protect for
each of its waters. (For example, drinking water supply,
support of fish and wildlife, recreation, irrigation, etc.)
Second, the State is to adopt criteria to protect those uses.
Criteria may be numeric or narrative and may relate to
chemical, biological or physical characteristics of the
water. Finally, the State must adopt an antidegradation
policy to protect its high quality waters. EPA regulations
direct that wherever the goal is attainable, States must
strive to achieve fishable swimmable water quality (i.e.,
they must designate beneficial uses that meet the CWA
goal of protecting the propagation of fish, shellfish, and
wildlife, and providing for recreation in and on the
water).
Most States currently have established narrative
descriptions of the conditions to be achieved and chemi-
cal-specific numeric criteria for the water column. EPA
has recently begun to emphasize that, as information
permits, States should also include more specific criteria
for habitat protection, criteria to help prevent contamina-
tion of sediments, and criteria for the protection of wild-
life. For example, States would be encouraged to address
physical impairment resulting from sedimentation that
covers ripple pools, thereby eliminating spawning habitat
for cold water fisheries. Temperature standards are some-
times needed because industrial discharges with elevated
temperature may decrease natural dissolved oxygen
levels resulting in fish kills. Water quality standards are
usually designed to protect biological resources. Hydro-
modification may result in standards violations, if for
l4a
example, a flowing stream turns into a reservoir changing
the biological community that previously existed, thereby
in manner inconsistent with the designated use, it is
important for States to set their own goals as they estab-
lish standards for ecological protection.
The CWA requires States to review and revise, if
necessary, their water quality standards at least once
every three years. EPA publishes annual guidance for
current and upcoming triennial reviews of State water
quality standards. For FY 91-93, the reviews are focusing
on: (1) adopting criteria to protect aquatic life and human
health from toxic pollutants; (2) adopting narrative bio-
logical criteria and salt water criteria; (3) to identify
adopting implementation procedures for antidegration
[sic] polices; and (4) adopting narrative standards that
apply to wetlands. In the FY 94-96 triennium, the reviews
will focus on adopting numeric biological criteria, sedi-
ment criteria, and special consideration of wet weather
standards. It is anticipated that both narrative and
numeric criteria will continue to be used, as appropriate,
in State water quality standards.
As I already noted, the CWA and EPA regulations
require that States adopt antidegradation policies that not
only protect existing uses and existing water quality, but
also protect high quality and ecologically unique waters,
some of which may be outstanding national resource
waters, and wetlands. Such State antidegradation policies
are an integral part of water quality standards and are
therefore an integral part of State § 401 certifications.
These antidegradation policies could give States the abil-
ity to prevent, for example, the changing of a trout stream
15a
into a reservoir that would support different uses, such as
habitat for carp and catfish.
EPA assists and guides the States in implementing
the certification provisions of CWA Section 401. EPA pro-
vides grant support to improve State 401 programs; guid-
ance on the use of the Section 401 certification process to
protect all types of waters including wetlands; and tech-
nical comments on the potential environmental impacts
of individual projects.
EPA, as the principal agency responsible for adminis-
tering the CWA, has taken steps to support States as they
consider the full range of water quality impacts when
evaluating Federal permits under Section 401 and
licenses, including hydropower licenses. The types of
potential adverse impacts associated with hydropower
projects include loss or degradation of aquatic habitat;
impacts on wildlife, fisheries, and endangered species
that are dependent upon the aquatic environment; accu-
mulation of contaminated sediments; nonpoint source
impacts; water chemistry problems such as low levels of
dissolved oxygen; significant changes in temperature;
and significant changes in water flow volumes and tim-
ing.
The Federal Energy Regulatory Commission (FERC)
has questioned the extent of a state’s Section 401 author-
ity. Courts have been divided on this issue. In a July 25,
1990 letter to EPA, FERC indicated that conditions on
Section 401 certificates that would protect existing uses
such as fisheries were unrelated to water quality.
States have indicated that their ability to maintain
water quality anc to protect drinking water, fisheries,
l6a
aquatic habitats and other beneficial uses will be severely
undercut if their authority to certify FERC licenses under
Section 401 is limited. In separate letters to EPA, the
States of Maine and Vermont raised concerns about
FERC’s challenge to State authority under Section 401 to
consider the full range of water quality impacts, other
than water column chemistry. In a September 25, 1990,
letter to EPA, the State of West Virginia raised a related
concern that FERC has been reluctant to accept water
quality recommendations for license conditions and in
some cases issued project licenses inconsistent with the
State’s recommendations. Another issue of concern to the
States is the sometimes sporadic enforcement of Section
401 conditions on FERC licenses. For example, FERC may
choose to make Section 401-imposed flow numbers a part
of the license and enforce the numbers, but choose not to
enforce the installation of downstream fish screens. How-
ever, Section 401(d) is explicit that State conditions shall
become a part of the Federal permit or license. As such,
FERC should be prepared to enforce all conditions of its
licenses.
In response to these State concerns, EPA wrote FERC
on January 18, 1991 and stated that the CWA mandate to
restore and protect the “chemical, physical, and biological
integrity of the nation’s waters” involves more t.ian just
addressing the chemistry of the water column. Protecting
water quality means protecting the entire aquatic system
including aquatic life, wildlife, wetlands and other habi-
tats, vegetation, and hydrologic conditions. Toxicity and
bioaccumulation of pollutants, the diversity and composi-
tion of aquatic species, entrapment of pollutants in sedi-
ment, significant changes in temperature, stormwater and
17a
other nonpoint source impacts, habitat loss and degrada-
tion, and hydrologic changes are all relevant water qual-
ity iss"es.
Under Section 404 of the CWA, EPA also has certain
responsibilities related to licensing of hydropower pro-
jects that involve the discharge of dredged or fill material
into waters of the United States. This would apply only
rarely in relicensing situations, where there is already an
existing dam, but new dams generally need to be permit-
ted under Section 404. The Army Corps of Engineers
(Corps) issues Section 404 permits using environmental
guidelines developed by EPA in conjunction with the
Corps. EPA also reviews proposed permits; prohibits dis-
charges with unacceptable adverse environmental
impacts (the Section 404(c) “veto” authority); pursuant to
Congressional authority, interprets the jurisdictional
scope of waters of the United States; through regulation,
interprets exemptions to Section 404; and shares enforce-
ment authority with the Corps. The Corps has issued a
nationwide permit (33 CFR, Part 330) covering discharges
of dredged or fill material associated with small (less
than 5 Megawatts of generating capacity) hydropower
projects licensed by FERC. The nationwide general per-
mit helps to reduce time and effort associated with per-
mitting new projects. The timing of Section 404 review
varies within the FERC licensing process for individual
projects. Sometimes the applicant initiates the Section 404
application at the same time as the FERC application;
sometimes the Section 404 application is submitted after
FERC license approval.
18a
All of these environmental issues and others are usu-
ally evaluated by FERC in environmental impact state-
ments and environmental assessments prepared pursuant
to the National Environmental Policy Act (NEPA). EPA
—conducts environmental reviews of FERC’s hydropower
licenses pursuant to Section 102(2)(C) of NEPA and Sec-
tion 309 of the Clean Air Act (CAA). These laws establish
EPA’s responsibility to review and comment upon the
“environmental impact of any matter relating to EPA’s
duties and responsibilities.” In this context, EPA reviews
environmental documents for a wide variety of projects.
We may make recommendations which may increase pro-
jects costs, and yet these recommendations are intended
to preserve current and future societal benefits produced
by the natural resources EPA’s recommendations are
designed to protect. All relevant benefits and costs are
appropriate to consider in the decision-making process.
Furthermore, Section 309 requires that, when the Admin-
istrator determines that any Federal agency’s legislation,
action or regulation falling under the purview of the EPA
review responsibilities is “unsatisfactory from the stand-
point of public health or welfare or environmental qual-
ity, he shall publish his determination and the matter
shall be referred to the Council on Environmental Qual-
ity.” While Section 309 is part of the CAA it is not
restricted to air quality issues; rather, it applies to all
facets of EPA’s mission to protect the environment.
Through its environmental reviews, EPA strives to ensure
that other agencies’ policies, programs, and projects not
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only comply with environmental laws but also with the
general spirit embodied in Section 101 of NEPA.?
It is our understanding that by the year 1999, 335
FERC licenses for existing hydropower projects will
expire; 167 of those projects are due for relicensing prior
to 1993. The projects are located on 105 rivers in 24 States.
Most of these projects are in northeastern and midwest
states. All of these projects will require NEPA compli-
ance. EPA has met with FERC several times in the past six
months to discuss its implementation of NEPA and coor-
dination between our Agencies. To facilitate more effi-
cient and expeditious licensing, FERC needs to
incorporate NEPA at an early stage in the application
process for its licenses. FERC has indicated that using
third party contractors would enable them to integrate
NEPA into their licensing process more effectively. With
proper safeguards, EPA would support FERC’s use of
contractors.
EPA supports efficient licensing for hydropower pro-
jects and believes that a signed agreement between EPA
and FERC describing how EPA’s environmental review
role links with FERC’s procedures could speed the licens-
ing process. A good model might be the interagency
Agreement that Department of Army, EPA and the
Department of Transportation recently signed to help
2 Section 101 of NEPA urges that the Federal government
use all practicable means “to foster and promote general wel-
fare, to create and maintain conditions under which man and
nature can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future genera-
tions of Americans.”
20a
integrate NEPA and Section 404 reviews at an early stage
in the transportation planning process. This agreement
followed issuance of a document entitled “Applying the
Section 404 Permit Process to Federal-Aid Highways Pro-
jects”, developed cooperatively among a number of Fed-
eral agencies. Both EPA and the Corps have recently
suggested to FERC that a similar document be developed
for hydropower licensing.
Although FERC is reluctant to adopt certain 401 cer-
tificate conditions in it licenses, FERC does its own
review beyond chemical criteria and additionally con-
sider [sic] biological and physical impacts on the Nation’s
waters. In order to address EPA concerns about the
potential environmental impacts of removing all hydro-
power proposals less than of 5 Megawatts from FERC
regulation, the Administration’s proposed energy legisla-
tion would require that these projects would still be sub-
ject to sections [sic] 401 certifications. We strongly believe
that Section 404 requirements should govern issuance of
FERC licenses.
Thank you for the opportunity to comment. I would
be happy to answer any questions you may have.
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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.