PUD No. 1 of Jefferson County v. Washington Department of Ecology: An Expansive Interpretation of State Authority Under the Clean Water Act

Ellen M. Lazarus
Legislative Attorney
American Law Division

July 28, 1994

94-601 A

SUMMARY

In PUD No. 1 of Jefferson County v. Washington Department of Ecology, the Supreme Court ruled that the Clean Water Act authorizes states to impose conditions on § 401 certifications and enforce compliance with designated uses contained in state water quality standards. The high court, in this 7-2 opinion, gave broad-based authority to the states. The scope of state certification authority under § 401 had been the subject of litigation in an increasing number of state courts.

Section 401 of the Federal Water Pollution Control Act (Clean Water Act) requires applicants for federal licenses or permits to apply for state certification if the proposed activity may result in a discharge into navigable waters. A Federal license cannot be issued for a hydroelectric project unless the applicant obtains a § 401 certification from the state, or unless certification is waived.

In resolving the dispute before it, the Court determined that a minimum stream flow requirement is a permissible condition of a § 401 certification, by examining: the scope of state authority under § 401; whether the imposition of such a condition was within the scope of that authority; and whether state authority is limited because of Federal Energy Regulatory Commission's (FERC) comprehensive licensing authority over hydroelectric projects.

It is likely that the Court's broad interpretation of the Clean Water Act will result in expansive possibilities for state regulation. A state may impose non water-quality conditions so long as such requirements fall within the scope of the designated uses as contained in state's water quality standards. The state may impose conditions on the applicant that are unrelated to discharges but necessary to enforce a water quality standard. The high court's earlier decisions that established FERC's comprehensive licensing authority do not appear to have been overruled by this decision. Although states must defer to FERC's authority under the Federal Power Act, they have now been given significant power over hydroelectric power licensing via the Clean Water Act.

In the last several Congresses, a number of bills have been introduced to clarify the scope of the state certification process. In the aftermath Jefferson County, the hydropower industry may be looking to Congress to resolve the federal-state authority issues and the definitional issues presented by this case. Congress may well be asked to examine and reconcile this framework and to resolve the tension between the state authority under § 401 of the Clean Water Act and FERC authority under the Federal Power Act.

TABLE OF CONTENTS

INTRODUCTION
SYNOPSIS OF THE FACTS
THE JEFFERSON COUNTY OPINION
-- PART III.A.
-- PART III.B.
-- PART IV.
THE DISSENT
DIVISION AMONG STATE COURTS
THE LEGISLATIVE FRONT
CONCLUSION

INTRODUCTION

The U.S. Supreme Court, in PUD No. 1 of Jefferson County v. Washington Department of Ecology, (1) ruled that, under Section 401 of the Clean Water Act, (2) states have the authority to enforce compliance with state water quality standards (both quantitative and qualitative). (3) Specifically, the Court upheld state authority to impose a minimum stream flow requirement as a condition for § 401 certification. The high court's opinion, giving broad-based authority to the states under the Clean Water Act, resolves a conflict among state courts (4) -- and is particularly significant at this time as the Federal Energy Regulatory Commission (FERC) undertakes a major relicensing of hydropower projects. (5)

SYNOPSIS OF THE FACTS

Public Utility District (PUD) No. 1 of Jefferson County and the City of Tacoma ("petitioners") proposed the construction of the Elkhorn Hydroelectric Project on the Dosewallips Rioter in Washington State. The river had populations of steelhead trout, as well as both coho and chinook salmon. The proposed project would have diverted water from the river, used it to run turbines, and then returned the water to the river 1.2 miles downstream. This would have resulted in a reduced streamflow in the "bypass reach" (6)-- leaving a base instream flow ranging between 65 and 155 cubic feet per second (cfs), depending on the season. The Washington State Department of Ecology (DEC or "respondents") granted the petitioners' water quality certification request but imposed minimum instream flows for fish habitat of between 100 and 200 cfs. A state administrative appeals board held that the DEC had exceeded its authority by conditioning certification on a requirement that was designed to enhance the fishery rather than merely maintain it. The State Superior Court reversed and the State Supreme Court affirmed holding that the antidegradation provisions of the stated water quality standards required the imposition of minimum stream flows and that § 401 authorized the state to impose such conditions.

In requesting review by the high court, the petitioners alleged that the state exceeded its authority by imposing a condition in the § 401 certificate that interfered with the hydroelectric licensing process exclusively reserved by the Federal Power Act (FPA) (7) to FERC's jurisdiction. (8) The respondents argued that, under § 401 of the Clean Water Act, a state may condition a water quality certificate for a hydroelectric project, subject to the FPA, on non-water quality conditions that are necessary to ensure compliance with the state's water quality standards. (9) The brief for the United States, filed by the Solicitor General, supported affirmance. Numerous briefs of amici curiae were filed in support of the petitioners (10) and the respondents

BACKGROUND

Section 401 of the FWCPA requires applicants for federal licenses or permits to apply for state certification if the proposed activity may result in a discharge into navigable waters. (12) It also gives states the authority to impose "effluent limitations and other limitations. . . necessary to assure that any applicant for a federal license or permit" will comply with sections 301, 302, 306, 307 and "with any other appropriate requirement of State law set forth in such certification, ...." (13) If a state determines that an applicant has not complied with the requirements of § 401, the state will either deny certification under § 401(a)(1) or condition certification under § 401(d).

Section 303 of the FWCPA requires each State to institute comprehensive water quality standards. Such water quality standards consist of three parts --designated uses of the navigable waters involved, water quality criteria based upon those uses, and an "antidegradation policy" regarding existing beneficial uses. (14)

A Federal license cannot be issued for a hydroelectric project unless the applicant obtains a § 401 certification from the state, or unless certification is waived by the state certifying agency's failure or refusal to act in a timely manner. (15) FERC has issued orders containing dicta to the effect that states should not be permitted to use their water quality certification authority to impose conditions that are unrelated to water quality and that conflict with federal hydroelectric licensing decisions. Nevertheless, FERC considers the limits on state conditioning authority a matter for state courts to decide. (16) The limitations set forth in a state certification issued under § 401 become conditions of the Federal license as a matter of law. (17) FERC may not alter or reject conditions imposed by the states through § 401 certificates

THE JEFFERSON COUNTY OPINION

To determine whether a minimum stream flow requirement is a permissible condition of a § 401 certification, the Court, in Part III of the opinion, examined: (A) the scope of state authority under § 401, and (B.) whether the imposition of the specific condition was within the scope of that authority. In Part IV, the Court examined the balance of federal-state authority.

PART III. A. Acknowledging that a minimum stream flow requirement may be unrelated to the specific discharges at issue, the majority interpreted § 401 to allow states to impose "other limitations" to assure compliance with state law. Relying on § 401(d) language mandating compliance by the applicant, rather than the discharge, the Court held that states may impose such additional conditions and limitations "once the threshold condition, the existence of a discharge, is satisfied." (19) The authority of the state has bounds -- it is limited to ensuring that an applicant comply with certain enumerated limitations or requirements. Although compliance with § 303 (state water quality standards) is not specifically enumerated, the Court held that it is incorporated by reference in § 301 -- a statutory section enumerated in § 401(d) -- and is among the "other limitations" that a state may ensure compliance with. The Court also considered such limitations imposed pursuant to state water quality standards to be "appropriate requirements of State law."

PART III. B. Is a minimum stream flow requirement within the scope of state authority? In interpreting § 303 of the statute, requiring states to institute water quality standards, the Court found that the section

is most naturally read to require that a project be consistent with both components, namely the designated use and the water quality criteria. Accordingly, under the literal terms of the statute, a project that does not comply with a designated use of the water does not comply with the applicable water quality standards. (20)

Justice O'Connor iterated that "in some circumstances, criteria alone are insufficient to protect a designated use" (21) and that "the Act permits enforcement of broad, narrative criteria." (22) The State's minimum stream flow condition was also held to be a proper application of antidegradation policy and regulation. (23) The Court disposed of petitioner's assertion that the Act is only concerned with water "quality" not "quantity"-- holding any distinction to be an "artificial" one. (24)

PART IV. Relying on the fact that FERC had not yet acted on the permit applications and the breadth of § 401's certification requirement, (26) the Court held that the State's imposition of minimum flow requirements does not pose a conflict with the Federal Power Act's reservation of comprehensive licensing authority to FERC. The Court, however, did not completely close the door to review, stating that

[i]f FERC issues a license containing a stream flow condition with which petitioners disagree, they may pursue judicial remedies at that time. (27)

THE DISSENT

Justice Thomas, writing the dissent and joined by Justice Scalia, argued that interpreting § 401(d) to permit states to impose conditions unrelated to discharges effectively eliminates the constraints of § 401(a) and that § 401(d) should be interpreted to permit states to impose only those conditions related to discharges.

Any broader interpretation of § 401(d) would permit that subsection to swallow § 401(a)(1). (28)

Given the text and structure of § 401, the phrase "appropriate requirement of State law" in § 401(d)

is most reasonably construed to extend only to provisions that, like the other provisions in the list, impose discharge-related restrictions. (29)

The Court's interpretation of § 401 and § 303, according to the dissent, authorizes states to pursue

their water goals in any way they choose.... In the end, it is difficult to conceive of a condition that would fall outside a State's § 401(d) authority under the Court's approach. (30)

Under the dissents interpretation, the imposition of a minimum stream flow requirement -- unrelated to any possible "discharge" -- is beyond the scope of state authority.

The dissent also contends that the Court's interpretation interferes with FERC's exclusive authority over hydroelectric project licenses and that the opinion

significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Acts (31).... Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined . . . they did not possess. (32)

DIVISION AMONG STATE COURTS

The scope of state certification authority under § 401 had been the subject of litigation in an increasing number of state courts. (33) Some states have utilized their § 401 authority to condition certification upon satisfaction of non-water quality requirements. While courts in some states upheld such broader environmental conditions, others rejected the imposition of non-water quality conditions - limiting the scope of state agency review to a determination of whether relevant water quality standards have been met. State court decisions in Connecticut, (34) New York, (35) Oregon (36) and Pennsylvania (37) had limited the scope of state certifying agency review, interpreting § 401 to preclude the imposition of conditions or denials of certifications on non-water quality related grounds and rejecting broader environmental review as outside the scope of § 401. Courts in Maine, (38) Tennessee, (39) Vermont (40) and West Virginia (41) had ruled to the contrary. In addition, some courts have distinguished between denial of certification under § 401(a)(1) and conditioning under § 401(d). (42)

In the aftermath of the Jefferson County opinion, the high court refused to decide another ease presenting a similar question. In New York Department of Environmental Conservation v. Niagara Mohawk Power Corp., (43) petitioners sought review of a New York Court of Appeals ruling that limited the standards the State could consider under a state certification procedure. The State asserted that hydroelectric projects must meet not only the state water quality standards adopted pursuant to the CWA, but all state laws bearing on water quality (including several provisions of the state's environmental conservation laws). (44)

THE LEGISLATIVE FRONT

In the last several Congresses, a number of bills have been introduced to clarify the scope of the state certification process. (45) In the 103rd Congress, the proposed "Water Pollution Prevention and Control Act of 1993," would amend the first sentence of § 401(a)(1) of the Clean Water Act by inserting

and that any such activity shall comply with water quality standards adopted under section 303 and allow for the protection, attainment, and maintenance of designated uses included in the standards. (46)

Prior to Jefferson Country, states were pushing for a legislative expansion of their § 401 authority to set certification conditions. In the aftermath of Jefferson County, the hydropower industry may be looking to Congress to resolve the federal-state authority issues and the definitional issues presented by this case.

CONCLUSION

The Court interpreted § 303 to be incorporated by reference in § 301 --and, that accordingly, state water quality standards are among the "other limitations" with which a state may require compliance under its § 401 authority. Choosing to interpret § 401 in this manner, rather than giving an expansive reading to the "any other appropriate requirement of State law" language, might at first blush suggest that the Court may be unwilling to further expand the limitations that states be permitted to impose to ensure compliance with § 401.

We do not speculate on what additional state laws, if any, might be incorporated by this language. But at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to § 303 are 'appropriate' requirements of state law. (47)

However, it is likely that the Court's broad interpretation of § 303 will result in expansive possibilities for state regulation. For example, states may attempt to impose conditions that are purely aesthetic, but within the scope of the designated uses as contained in that state's water quality standards.

Because the § 401 certification requirement applies to applicants for any federal license or permit "to conduct any activity . . . which may result in any discharge into the navigable waters," its breadth goes well beyond applicants for FERC licenses. The potential exists for this decision to impact well beyond the hydropower industry. (48)

The Court held that § 401 does not limit a state to only imposing water quality imitations on "discharges." In that § 401 contains not only §401(a)(1) but also § 401(d), the Court reasoned that state authority to impose conditions expands beyond discharges - - requiring that applicants comply with "other limitations." (49) Therefore, although an activity must result in some discharge in order for it to fall under the § 401 certification requirement, once an activity falls under § 401, the state may impose conditions on the applicant that are unrelated to discharges but necessary to enforce a water quality standard.

The high court's earlier decisions that established FERC's comprehensive licensing authority do not appear to have been overruled by this decision. Indeed, the Federal Power Act established a comprehensive scheme of federal licensing and regulation by FERC which generally preempts state law. However, the Clean Water Act has carved out a narrow exception to FERC's jurisdiction by authorizing states to certify compliance with water quality requirements and stipulating that such certification is a condition precedent to granting a federal license. In California v. FERC, (50) an opinion also penned by Justice O'Connor, the Court held that allowing a state to impose conditions in conflict with those imposed by FERC would disturb the federal-state balance and amount to giving states a veto power over projects approved and licensed by FERC. California v. FERC did, however, involve the issue of state authority in a post-licensing environment -- not the case in Jefferson County. In the earlier First Iowa case, (51) the court held that the FPA authorized, but did not require, the Commission to require applicants for federal licenses to comply with state laws. To rule otherwise, the Court reasoned,

would vest the state with a veto over the federal project Such a veto destroys the effectiveness of the Federal Act. (52)

In Jefferson County, the Court has now broadly interpreted state authority under the Clean Water Act -- clearing the way for states to impose conditions in § 401 certifications, which occur prior to licensing and are considered binding on FERC. Although states must defer to FERC's authority under the Federal Power Act, they have now been given significant power over hydroelectric power licensing via the Clean Water Act.

A comment by the Court with regard to the issue of state authority and proprietary rights to water may prove to be important in predicting the significance of this opinion. Remarking that § 101(g) and § 510(2) of the CWA preserve state authority to "allocate water quantity as between users" rather than limiting "the scope of water pollution controls that may be imposed on users who have obtained . . . a water allocation," the Court, relying in part on California v. FERC, (53) explained

[T]he certification merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act, if and when it is obtained from the state. (54)

These prior decisions, which dealt a death blow to all but the most limited state control over hydroelectric power development - must now be reconciled with the authority Jefferson County has provided the states. There still appear to be unanswered questions. For example: is the Court drawing a bright line between the Federal Power Act's comprehensive federal scheme and the Clean Water Act's reservation of certain authority to the states? Does FERC retain its comprehensive licensing authority over hydroelectric projects only under the Federal Power Act? Is the bright line illusory -- the Court holding that there is no conflict with FERC's licensing authority in Jefferson county because FERC had not yet acted? Although FERC had not yet acted, it is required to attach state § 401 conditions or limitations to any licenses and permits that it may issue. Therefore, it is only a matter of time before a "conflict with FERC's authority under the FPA" is no longer "hypothetical." (55) The dissent criticizes the Court for not addressing the issue as follows:

Given the connection between § 401 and federal hydroelectric licensing, it is remarkable that the Court does not at least attempt to fit its interpretation of § 401 into the larger statutory framework governing the licensing process. (56)

Congress may well be asked to examine and reconcile this framework and to resolve the tension between the state authority under § 401 of the Clean Water Act and FERC authority under the Federal Power Act.

Endnotes

1. No. 92-1911, _ U.S._ 128 L. Ed. 2d 716, 1994 U.S. LEXIS 4271, 114 S. Ct. 1900 (May 31, 1994). Hereinafter referred to as Jefferson County.
2. The Federal Water Pollution Control Act, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1261 et seq.). Hereinafter referred to as the Clean Water Act, the CWA, or the FWPCA.
3. The majority opinion was written by Justice O'Connor and joined by Chief Justice Rehnquist and Justices Blackmun, Stevens, Kennedy, Souter and Ginsburg Justice Stevens filed a concurring opinion. Justice Thomas authored a dissenting opinion, joined by Justice Scalia.

4. See notes 33-44 infra.

5. FERC has estimated that 238 projects will require relicensing in this decade. See 62 Reg. 4648 (1987).

6. This is the area between the initial diversion and the point at which water is returned downstream.

7. 16 U.S.C. § 791 et seq. Hereinafter referred to as the FPA.

8. See Petition for Writ of Certiorari at 3.

9. See Brief for the Respondents at 9-12.

10. By the hydroelectric, electric and water utilities, and forest product industries.

11. By conservation and environmental groups, the commercial fishing industry and forty-four states.

12. § 401(a)(1); 33 U.S.C. §1341(a)(1). Subsection 401(a)(1) states:

Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State .... that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this Act.... No license or permit shall be granted until the certification required by this section has been obtained or has been waived .... No license or permit shall be granted if certification has been denied....

In 1977, Congress amended § 401(a)(1) by inserting §303 to those sections with which discharges will comply. See Pub. L. No. 96-217.

The proposed Elkhorn Hydroelectric Project would have discharged dredge and fill material during construction and discharged water after it had been used to generate electricity. See Opinion at 9.

13. § 401(d); 33 U.S.C § 1841(d).

14. 33 U.S.C. §§ 1313(c)(2)(A),(B); § 1313(d)(4)(B). See also 40 C.F.R. §§ 131.10 -.12.

15. § 401(a)(1)..

16. See, e.g., City of New Martinsville, West Virginia, 57 F.E.R.C. 161,033 [1991]; Noah Corporation, 57 F.E.R.C.161,170 l991]), Central Maine Power Co., 52 F.E.R.C. S61,033 [1990]; Carex Hydro, 52 F.E.R.C.61,216 [1990]; Town of Summersville, 60 F.E.R.C.61,291 [1992]. in Keating v. F.E.R.C., 927 F.2d 616, 622-23 (D.C.Cir. 1991) the Court of Appeals reiterated that FERC may not alter or reject conditions imposed by the states through section 401 certificates. See also Fredericksburg v. F.E.R.C., 876 F.2d 1109, 1111 (4th Cir. 1989).

17. § 401(d); see also United States Dep't of the Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992).

18. See Keating v. FERC, supra note 16.

19. Opinion at 10.

20. Id. at 13.

21. Id. at 14. See also 40 C.F.R. § 131.3(b).

22. Id. at 15.

23. Environmental Protection Agency (EPA) regulations implementing § 303's antidegradation policy (40 C.F.R. § 131.12) require states to implement their antidegradation policies in a manner consistent with existing uses. The Court agreed with the Stated conclusion that reduced streamflows would have interfered with existing beneficial uses.

24. See CWA definition of "pollution." CWA § 502(19) as codified at 33 U.S.C. § 1362(19); CWA § 304(f)(2)(F) as codified at 33 U.S.C, § 1314(fl(2)(F).

25. The Court positing that the Commission might deny the application altogether or impose the same condition. In fact, as the dissent points out, FERN is required to impose limitations that a state may attach to a CWA certification. See Dissent at 13.

26. Opinion at 21,

Because § 401's certification requirement applies to other statutes and regulatory schemes, and because any convict with FERC's authority is hypothetical, we are unwilling to read implied limitations into § 401.

27. Id. at 21

28. Dissent at 4.

29. Id. at 5.

30. Id. at 9-10.

31. Id. at 10.

32. Id. at 12.

33. See Roosevelt Campobello International Park Comm'n v. United States EPA,684 F.2d 1041, 1056 (1st Cir. 1982) (Review of the appropriateness of water quality certification conditions is in the purview of state courts; federal courts and agencies are without authority to review the validity of the requirements imposed under state law or in a state's certification).

34. Summit Hydropower v. Commissioner of Environmental Protection, 1992 Conn. Super. LEXIS 2177 (Conn. Super. Ct. 1992).

35. de Rham v. Diamond, 32 N.Y.2d 34, 343 N.Y.S.2d 84, 295 N.E.2d 763 (N.Y. 1973); Power Authority (PASNY) v. Williams, 60 N.Y.2d 315, 469 N.Y.S.2d 620, 457 N.E.2d 726 (N.Y. 1983); Fourth Branch Associates v. Department of Environmental Conservation, 550 N.Y.S.2d 759 (4th Dep't. 1989); Niagara Mohawk Power Corporation v. New York State Department of Environmental Conservation, 82 N.Y.2d 191, 604 N.Y.S.2d 18, 1993 N.Y. LEXIS 3887 (1993), cert. denied, 62 U.S.L.W. 3807 (U.S. June 6, 1994). However, see Long Lake Energy Corp. v. New York State Department of Environmental Conservation, 164 A.D.2d 39d, 563 N.Y.S.2d 871 (3d Dep't. 1990) where the court, although not permitting broad-based environmental review, held that factors such as turbidity, temperature change, dissolved oxygen, and bypass flows necessary to maintain and enhance fishery and aquatic resources were within the scope of the state agency's authority.

36. Arnold Irrigation District v. Department of Environmental Quality 79 Or. App. 136, 717 P.2d 1274 (1986). This case is known as In re Lava Diversion Project. The court distinguished between factors that may be considered in denying a certificate and factors that may be considered in conditioning a certificate -- although states could deny certification only on the enumerated § 401(a) grounds and any more stringent state laws or regulations adopted pursuant to those provisions, § 401(d)'s "other appropriate requirement of State law" language requires that states condition certificates to the extent that such conditions have any relationship to water quality.

37. Pennsylvania Department of Environmental Resources v. City of Harrisburg, 133 Pa. Commw. 577, 578 A.2d 563 (1990).

38 In Bangor Hydro-Electric co. v. Board of Environmental Protection, 595 A.2d 438 (Me. 1991), the Maine Supreme Judicial Court concluded that designated uses were an integral part of the state water quality standards and that the state board was within its jurisdiction in reviewing Bangor Hydro's measures for compliance with those standards.

39. A 1983 Tennessee ease, Environmental Defense Fund, Inc.. v. Tennessee Water Quality Control Board, 660 S.W.2d 776 (Tenn. Ct. App. 198S), although not directly addressing the issue of § 401 certification, suggested in dicta, that a state board was within its authority in considering a host of water quality concerns including public health, harm or detriment to aquatic life; impact on recreational use, and physical and chemical properties of water (including dissolved oxygen, Ph. temperature, and mineral compounds) that indicate water quality.

40. Georgia-Pacific Corp. v. Department of Environmental Conservation, 35 Env't. Rep. Cas. (BNA) 2052 (Vt. 1992), Petition dismissed sub nom. Simpson Paper (Vermont) co. v. Environmental Conservation Department, 62 U.S.L.W. 3454 (U.S. Jan. 5, 1994). The facts in this ease are particularly on point. The Vermont Department of Environmental Conservation (DEC) issued a § 401 certification conditioning the relicensing of a dam on the installation of upstream and downstream fish passage facilities and the maintenance of certain minimum flows for water quality. The certificate required Georgia-Pacific to spill 210 cfs over the crest of the Gilman Dam from June 1 through October 15 each year. The purpose of the condition was to reaerate the Connecticut River, maintaining the state's dissolved oxygen standard and the river's designated use as a cold water fishery. The Vermont Supreme Court ruled that Vermont's water quality standards included aesthetics and recreation considerations and, accordingly, the spillage requirement was within the DEC's § 401(d) authority to ensure compliance with criteria including zany other appropriate requirement of State law."

41. In an unpublished decision, Marmac Corporation v. Department of Natural Resources of West Virginia, No. 81-1792, slip op. (Cir. Ct. Kanawha County June 9, 1982), the Court gave § 401(d) an expansive interpretation holding that a state may base denial of certification on "other appropriate requirements of state law."

42. Distinguishing § 401(a)(1) denial as limited to water quality standards and § 401(d) conditioning more expansively. As Arnold Irrigation, supra note 36, interpreted § 401(d) -- only if a condition had absolutely no relationship to water quality would it be determined to fall outside an "other appropriate requirement of State law." However, in Fourth Branch, supra note 35, the court reached what appears to be a narrower a conclusion - limiting state § 401(d) authority to establishing water quality standards more restrictive than those imposed by the CWA.

43. 82 N.Y.2d 191, 604 N.Y.S.2d 18 (1993), cert.. denied, 62 U.S.L.W. 3807 (U.S. June 6, 1994) (No. 93-1285).

44. In denying review, rather than vacating and remanding the case in light of Jefferson Count, the Court affirmed the New York Court of Appeals ruling. In Niagara Mohawk, the Court was presented with a broader question than in Jefferson County - whether a state may broaden its scope of review under § 401 beyond the consideration of § 303 water quality standards.

A second case, in which a petition for certiorari had been pending when the Jefferson County petition for certiorari was granted, was dismissed prior to the Court's Jefferson County ruling. In Simpson Paper (Vermont) co. v. Environmental Conservation Department, 36 Env't. Rep. Cas. (BNA) 2052 (Vt. 1992), petition dismissed, 62 U.S.L.W. 3454 (U.S. Jan. 6, 1994) (No. 92-1012), petitioners had urged the Court to grant certiorari to review a decision by the Vermont Supreme Court upholding a state water quality certification for a hydroelectric project conditioned upon minimum flow requirements to ensure adequate dissolved oxygen levels to provide for aesthetic and recreation values. On June 6, 1994, the Court denied cert., 62 U.S.L.W. 380ff; however, the Court later vacated that order, 62 U.S.L.W. 3826 (June 13, 1994), in light of dismissal of the petition pursuant to Rule 46. At the state court level, this case was known as Georgia-Pacific Coop. v. Department of Environmental Conservation, supra note 40.

45. While certain legislative proposals provided for states protecting a broad range of water quality standards, including biological standards and the achievement of designated uses, others attempted to restrict the bounds of state authority. See S. 3186, 101st Cong, 1st Sess.; S. 812, 102d Cong., 1st Sess; S. 733, 102d Cong., 1st Sess; H.R. 2538, 102d Cong., 1st Sess., and S. 448, 103d Cong., 1st Sess. Although the Energy Policy Act of 1992, Pub. L. No. 102-486, did not address the scope of state water quality certification for hydropower projects, earlier versions of the Senate bill contained restrictive language. See S. 341, 102d Cong., 1st Sess. (restricting State agencies by prohibiting the inclusion of "any requirement not needed to ensure that any discharge resulting from the issuance of such license, and the construction or operation of a hydroelectric project thereunder, will comply with the applicable provisions of 33 U.S.C. Sections 1311, 1312, 1313, 1316, and 1317.").

46. S. 1114, 103d Congo, 2d Sess., § 602. The section-by-section summary of the bill that accompanied its introduction states

Section 602 amends existing authority for States to review Federal projects to assure that Federal approvals do not cause violations of water quality standards. The bill clarifies that State water quality standards include designated uses of waters in addition to chemical specific water quality standards. See 139 CONG. REC. S7269 (daily ed. June 15, 1993).

§ 602 is fashioned after bills introduced in prior Congresses. On the House side, H.R. 3948 introduced March 3, 1994, is absent any such provision.

47. Opinion at 11. The opinion is somewhat confusing on this point. Although the Court, in Part III.A.,, states that state water quality standards adopted pursuant to § 303 are "other limitations and "appropriate requirements of state law," it refrains from speculating on what other state laws give rise to the "any other appropriate requirement of State law" language in § 401(d). However, the Court summarizes that part of its holding in the beginning of Part III.B. Of the opinion as follows:

Having concluded that, pursuant to § 401, States may condition certification upon any limitations necessary to ensure compliance with state water quality standards or any other "appropriate requirement of State law, . . ."

It is therefore unclear whether the opinion holds that § 401 authorizes states to condition certification upon compliance with state water quality standards or whether states may also condition certification upon compliance with other "appropriate requirements of State law."

See also dissent at 9-10 suggesting that states will be able to impose limitless conditions.

48. Several examples of cases in which certification would be required pursuant to other statutes are cited in the opinion: permits from the Army Corps of Engineers for the installation of structures in the navigable waters which may interfere with navigation or for the discharge of dredged or fill material; permits from the Secretary of Interior or Agriculture for the construction of reservoirs, canals, and other water storage systems on federal land. see Opinion at 21. In fact, a coalition of conservation groups is presently attempting to apply § 401 to federal grazing permits. See Oregon Natural Desert Association v. Jack Ward Thomas, No. 94-522ST (D. Or. 6/23/94).

49. Opinion at 9.

50. 495 U.S. 490 (1990).

51. First Iowa Hydro-Elec. Coop. v. Federal Power Comm'n., 328 U.S. 152 (1946).

52. Id at 164. But see cf. California v. United States, 438 U.S. 645 (1978), a case in which the Court grappled with a preemption question involving state water rights under the Reclamation Act of 1902. In that case, the California State Water Resources Control Board approved a permit application, under the 1902 Reclamation Act, attaching a myriad of conditions to approval of the permit application. The Supreme Court held that § 8 of the 1902 Act required the Secretary to comply with state law "relating to the control, appropriation, use, or distribution of water ...." Id. at 675. In responding to an argument made by petitioners in California v. FERN that California v. U.S. was a rejection of First Iowa, the Supreme Court concluded that both Courts had studied the Acts and their legislative histories and discerned that the FPA envisioned a considerably broader and more active federal oversight role in hydropower development than did the Reclamation Act. See California v. FERC, supra note 50 at 500.

53. Supra note 50 at 498. In construing § 821 of the Federal Power Act, a section analogous with CWA § 510(2), the Court explained that "minimum stream flow requirements neither reflect nor establish proprietary rights" to water.

54. Opinion at 19.

55. Id. at 21.

56. Dissent at 15.