Argument of Justice O'Connor
Mr. O'Connor: The second case is No. 92-1911, coming to us on writ of certiorari to the Supreme Court of Washington, its Public Utility District No. 1 of Jefferson County against the Department of Ecology.
Section 401 of the Clean Water Act requires states to provide a water quality certification before a federal license can be issued for any activity that may result in a discharge in the intrastate navigable waters.
The petitioners are city and local utility district, want to build a hydroelectric project on the Dosewallips River.
The project would reduce the water flow in the relevant part of the river to a residual flow of between 65 and 155 cubic feet per second.
To protect the river's fisheries, the respondent state issued a Section 401 certification imposing, among other things, a minimum stream flow requirement of between 100 and 200 cubic feet per second.
The Washington Supreme Court affirmed.
In the opinion filed today, we also affirm.
We hold that Washington State's minimum stream flow requirement is a permissible condition in our Section 401 certification.
The State may impose requirements to ensure that activities which may result in a discharge into the navigable waters will comply with state water quality standards.
Moreover, a state may impose conditions on certification in so far as necessary to enforce a designated use contained in the state's water quality standard.
The minimum stream flow is such a requirement because it is necessary to protect the designated use of the river as a fish habitat.
Petitioners' assertion that the Clean Water Act is only concerned with water quality, not quantity, rests on an artificial distinction since a sufficient lowering of quantity could destroy all of the river's designated uses and since the Act recognizes that reduced stream flow can constitute water pollution.
Finally, we are unwilling to read implied limitations into Section 401 based on a petitioners' claim that a conflict exists between the stream flow condition and the Federal Energy Regulatory Commission's authority to license hydroelectric projects under the Federal Power Act.
The Federal Energy Regulatory Commission has not yet acted on petitioner's license application and we do not decide here that issue.
Justice Stevens has filed a concurring opinion; Justice Thomas has filed a dissenting opinion which Justice Scalia has joined.
