State, Dept. of Ecology v. Public Utility Dist. No. 1 of Jefferson County

• Citation: 121 Wn.2d 179,849 P.2d 646
• Decision Date: 01 April 1993
• Docket Number: No. 58272-6,58272-6
• Parties: , 36 ERC 1617, Util. L. Rep. P 26,317, 23 Envtl. L. Rep. 21,295 STATE of Washington, DEPARTMENT OF ECOLOGY, Department of Fisheries and Department of Wildlife, Respondents, v. PUD NO. 1 OF JEFFERSON COUNTY and City of Tacoma, Department of Public Utilities, Appellants. En Banc
• Court: United States State Supreme Court of Washington

Page 179

121 Wn.2d 179

849 P.2d 646, 36 ERC 1617, Util. L. Rep. P

26,317,

23 Envtl. L. Rep. 21,295

STATE of Washington, DEPARTMENT OF ECOLOGY, Department of

Fisheries and Department of Wildlife, Respondents, v. PUD NO. 1 OF JEFFERSON COUNTY and City of Tacoma, Department

of Public Utilities, Appellants.

No. 58272-6.

Supreme Court of Washington,

En Banc.

April 1, 1993.

Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Albert R. Malanca, Kenneth G. Keiffer, William J. Barker, Tacoma City Atty., Mark L. Bubenik, G.S. Karavitis, Assistants, Tacoma, for appellants.

Christine Gregoire, Atty. Gen., Jay J. Manning, William C. Frymire, Assistants, Olympia, for respondents.

Priscilla Derick, R. Gerard Lutz, Bellevue, Elizabeth K. Reeve, Seattle, R. Blair Strong, Spokane, Alan S. Larsen, Jay T. Waldron, Portland, OR, Jody Williams, Salt Lake City, UT, J. Jeffrey Dudley, Legal Dept., Portland, OR, amicus curiae, for appellants on behalf of Pacific Northwest Utilities.

Katherine P. Ransel, John B. Arum, Seattle, amicus curiae, for respondents.

GUY, Justice.

This case arises as a result of plans of the City of Tacoma and the Jefferson County Public Utility District 1 (hereinafter Tacoma) to build a hydroelectric facility on the Dosewallips River. Federal law requires Tacoma to obtain a certificate from the Washington State Department of Ecology (Ecology) before beginning construction. Ecology granted the certificate but conditioned it upon Tacoma maintaining a certain minimum streamflow in the affected portion of the river. Tacoma argues that federal law preempts Ecology from setting this streamflow requirement, and that Ecology acted outside its authority because the requirement was designed to enhance the Dosewallips fishery rather than preserve it. We hold that there is no federal preemption and that setting the streamflow requirement was within Ecology's authority.

I Facts

The Dosewallips River is a glacial stream that originates in the eastern Olympic Mountains. It flows east through the Olympic National Park, a national wilderness area, national forest land, and then private land before it empties into Hood Canal. The river is in pristine condition and supports populations of salmon, steelhead, and trout.

In 1982, Tacoma began planning to construct a hydroelectric power plant on the Dosewallips River just outside the Olympic National Park, near the Elkhorn Campground. The "Elkhorn project", as it is called, will divert water from the river, use that water to run turbines to generate electricity, then return the water to the river 1.2 miles downstream. This will result in a reduction in the streamflow in the "bypass reach", which is the length of river between the initial diversion and where the water is returned downstream.

Federal law requires that Tacoma obtain a license from the Federal Energy Regulatory Commission (FERC) before beginning construction. In addition, section 401 of the federal Clean Water Act (Act), 33 U.S.C. § 1341, requires as a part of the licensing process that Tacoma obtain a water quality certificate from the State of Washington.

Tacoma applied to Ecology for the section 401 certificate in 1983. As part of the section 401 application process, Tacoma conducted a 2-year study of the effect of the Elkhorn project on fish habitat in the Dosewallips bypass reach. This study was performed in consultation with Ecology and other agencies, including the Washington State Departments of Fisheries and Wildlife, the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the Point No Point Treaty Council. At the conclusion of the study, Tacoma proposed to maintain minimum instream flows of between 65 cubic feet per second (cfs) and 155 cfs, depending on the month. Ecology eventually issued the section 401 certificate, but conditioned it upon Tacoma maintaining instream flows of between 100 cfs and 200 cfs.

Tacoma appealed Ecology's instream flows requirement to the Pollution Control Hearings Board (Board). The Board ruled that Ecology acted within its authority in placing base flow conditions within the section 401 certificate in order to preserve the Dosewallips fishery resource. The Board then held another hearing to consider Tacoma's argument that Ecology exceeded its authority because its flow regime for the Dosewallips was designed to enhance rather than merely preserve the fishery. Two of the three Board members agreed with Tacoma's argument and so reversed the flow rates set by Ecology. The third Board member dissented on the basis that Ecology's flow rates would not enhance the fishery.

The parties cross-appealed to the Thurston County Superior Court, which ruled that Ecology is not preempted from setting minimum streamflows, that the Board erred in finding Ecology's flows would enhance the Dosewallips fishery, and that in any case Ecology has the authority to require such an enhancement. The trial court therefore reinstated Ecology's streamflow rates. We granted Tacoma's motion for direct review.

II Ecology's Authorization under the Clean Water Act

Tacoma argues that the Federal Power Act (FPA), 16 U.S.C. § 791a et seq., preempts Ecology from conditioning a section 401 certificate upon the maintenance of a minimum streamflow. Ecology contends the preemption doctrine does not apply because it was acting under the authority granted to it by the Clean Water Act, 33 U.S.C. § 1251 et seq.

We begin by addressing whether the Clean Water Act authorized Ecology to include base flow requirements in the section 401 certificate it issued to Tacoma. We conclude that it did.

A State Water Quality Standards

Section 401 of the Clean Water Act generally requires any applicant for a federal license to obtain a state water quality certificate if the applicant's operations may result in a discharge into a waterway. 33 U.S.C. § 1341. The parties agree that Tacoma was required to obtain a 401 certificate from Ecology. The controlling provision here of section 401 is subsection (d), which provides:

Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title [section 301 or 302 of the Act], standard of performance under section 1316 of this title [section 306 of the Act], or prohibition, effluent standard, or pretreatment standard under section 1317 of this title [section 307 of the Act], and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.

33 U.S.C. § 1341(d). Thus, under section 401(d), the state is required to include whatever conditions are "necessary to assure" compliance with specific provisions of the Act, as well as with "any other appropriate requirement of State law". The parties agree that state water quality standards qualify as appropriate requirements of state law for purposes of section 401(d), and so may serve as the source for conditions imposed in the section 401 certificate. Ecology contends that the streamflow conditions in the 401 certificate issued to Tacoma were necessary to assure compliance with Washington's water quality standards. We agree.

The stated purposes of Washington's water quality standards include the goal of establishing such standards as are "consistent with public health and public enjoyment thereof, and the propagation and protection of fish, shellfish, and wildlife". (Italics ours.) WAC 173-201-010. This purpose is consistent with the Environmental Protection Agency's (EPA) declaration that state water quality standards "should, wherever attainable, provide water quality for the protection and propagation of fish". 40 C.F.R. § 130.3 (1991). The standards define an antidegradation policy for the state's waters, as required under federal regulations. WAC 173-201-035(8) (implementing 40 C.F.R. § 131.12(a) (1991)). That policy includes the principle that "[e]xisting 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). The Dosewallips River is specifically identified as a "Class AA" river. WAC 173-201-080(32). The characteristic uses of a Class AA river include "fish migration, rearing, spawning, and harvesting." WAC 173-201-045(1)(b)(iii).

In short, section 401 requires states to certify compliance with state water quality standards. Washington's standards prohibit the degradation of the state's waters, and prohibit the degradation of fish habitat and spawning in the Dosewallips in particular. Therefore, section 401 required Ecology to certify that the Elkhorn project would not degrade fish habitat and spawning in the Dosewallips. Given that Ecology's fisheries biologists determined that the instream flows urged by Tacoma risked such degradation, Ecology therefore could not issue the 401 certificate without imposing more protective instream flow conditions. Absent such a condition, Ecology could not assure compliance with state water quality standards.

We also note that the concept of pollution in the Clean Water Act is extremely broad. Section 502(19) of the Act, 33 U.S.C. § 1362(19), reads: "The term 'pollution' means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." Under this broad definition, man-induced alteration of streamflow level is "pollution". We further note a letter written by an EPA assistant administrator to the Secretary of FERC. The letter takes issue with an assertion in a FERC report that conditions related to fish, wildlife, vegetation, and recreation are inappropriate in section 401 certificates...