PUD NO. 1 OF JEFFERSON COUNTY ET AL. v. WASHINGTON DEPARTMENT OF ECOLOGY ET AL.
No. 92-1911
SUPREME COURT OF THE UNITED STATES
Argued February 23, 1994—Decided May 31, 1994
511 U.S. 700
Howard E. Shapiro argued the cause for petitioners. With him on the briefs were Michael A. Swiger, Gary D. Bachman, Albert R. Malanca, and Kenneth G. Kieffer.
Christine O. Gregoire, Attorney General of Washington, argued the cause for respondents. With her on the briefs were Jay J. Manning, Senior Assistant Attorney General, and William C. Frymire, Assistant Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Schiffer, James A. Feldman, and Anne S. Almy.*
*Briefs of amici curiae urging reversal were filed for the American Forest & Paper Association et al. by John R. Molm, Winifred D. Simpson, and James A. Lamberth; for Niagara Mohawk Power Corp. by Edward Berlin, Kenneth G. Jaffe, Paul J. Kaleta, Brian K. Billinson, and Timothy P. Sheehan; for the Northwest Hydroelectric Association by Richard M. Glick and Lory J. Kraut; for Pacific Northwest Utilities by Sherilyn Peterson and R. Gerard Lutz; and for the Western Urban Water Coalition by Benjamin S. Sharp and Guy R. Martin.
Briefs of amici curiae urging affirmance were filed for the State of Vermont et al. by Jeffrey L. Amestoy, Attorney General of Vermont, and Ronald A. Shems, Assistant Attorney General, Robert Abrams, Attorney
JUSTICE O‘CONNOR delivered the opinion of the Court.
Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River in Washington State. We must decide whether respondent state environmental agency (hereinafter respondent) properly conditioned a permit for the project on the maintenance of specific minimum stream flows to protect salmon and steelhead runs.
This case involves the complex statutory and regulatory scheme that governs our Nation‘s waters, a scheme that implicates both federal and state administrative responsibilities. The Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as amended,
To achieve these ambitious goals, the Clean Water Act establishes distinct roles for the Federal and State Governments. Under the Act, the Administrator of the Environmental Protection Agency (EPA) is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country‘s navigable waters from point sources. See
A state water quality standard “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.”
“Such standards shall be such as to protect the public health or welfare, enhance the quality of water and
serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational [and other purposes.]” Ibid.
See also
A 1987 amendment to the Clean Water Act makes clear that § 303 also contains an “antidegradation policy“—that is, a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation. Specifically, the Act permits the revision of certain effluent limitations or water quality standards “only if such revision is subject to and consistent with the antidegradation policy established under this section.”
The State of Washington has adopted comprehensive water quality standards intended to regulate all of the State‘s navigable waters. See
“(a) 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.
“(b) No degradation will be allowed of waters lying in national parks, national recreation areas, national wildlife refuges, national scenic rivers, and other areas of national ecological importance.
. . . . .
“(f) In no case, will any degradation of water quality be allowed if this degradation interferes with or becomes injurious to existing water uses and causes long-term and irreparable harm to the environment.”
173-201-035(8) .
As required by the Act, EPA reviewed and approved the State‘s water quality standards. See
States are responsible for enforcing water quality standards on intrastate waters.
II
Petitioners propose to build the Elkhorn Hydroelectric Project on the Dosewallips River. If constructed as presently planned, the facility would be located just outside the Olympic National Park on federally owned land within the Olympic National Forest. The project would divert water from a 1.2-mile reach of the river (the bypass reach), run the
The water flow in the bypass reach, which is currently undiminished by appropriation, ranges seasonally between 149 and 738 cubic feet per second (cfs). The Dosewallips supports two species of salmon, coho and chinook, as well as steelhead trout. As originally proposed, the project was to include a diversion dam which would completely block the river and channel approximately 75% of the river‘s water into a tunnel alongside the streambed. About 25% of the water would remain in the bypass reach, but would be returned to the original riverbed through sluice gates or a fish ladder. Depending on the season, this would leave a residual minimum flow of between 65 and 155 cfs in the river. Respondent undertook a study to determine the minimum stream flows necessary to protect the salmon and steelhead fishery in the bypass reach. On June 11, 1986, respondent issued a § 401 water quality certification imposing a variety of conditions on the project, including a minimum stream flow requirement of between 100 and 200 cfs depending on the season.
A state administrative appeals board determined that the minimum flow requirement was intended to enhance, not merely maintain, the fishery, and that the certification condition therefore exceeded respondent‘s authority under state law. App. to Pet. for Cert. 55a–57a. On appeal, the
The Washington Supreme Court held that the antidegradation provisions of the State‘s water quality standards require the imposition of minimum stream flows. 121 Wash. 2d 179, 186–187, 849 P. 2d 646, 650 (1993). The court also found that § 401(d), which allows States to impose conditions based upon several enumerated sections of the Clean Water Act and “any other appropriate requirement of State law,”
III
The principal dispute in this case concerns whether the minimum stream flow requirement that the State imposed on the Elkhorn Project is a permissible condition of a § 401 certification under the Clean Water Act. To resolve this dispute we must first determine the scope of the State‘s authority under § 401. We must then determine whether the limitation at issue here, the requirement that petitioners maintain minimum stream flows, falls within the scope of that authority.
There is no dispute that petitioners were required to obtain a certification from the State pursuant to § 401. Petitioners concede that, at a minimum, the project will result in two possible discharges—the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity. Brief for Petitioners 27–28. Petitioners contend, however, that the minimum stream flow requirement imposed by the State was unrelated to these specific discharges, and that as a consequence, the State lacked the authority under § 401 to condition its certification on maintenance of stream flows sufficient to protect the Dosewallips fishery.
If § 401 consisted solely of subsection (a), which refers to a state certification that a “discharge” will comply with certain provisions of the Act, petitioners’ assessment of the scope of the State‘s certification authority would have considerable force. Section 401, however, also contains subsection (d), which expands the State‘s authority to impose conditions on the certification of a project. Section 401(d) provides that any certification shall set forth “any effluent limitations and other limitations . . . necessary to assure that any applicant” will comply with various provisions of the Act and appropriate state law requirements.
Our view of the statute is consistent with EPA‘s regulations implementing § 401. The regulations expressly interpret § 401 as requiring the State to find that “there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.”
Although § 401(d) authorizes the State to place restrictions on the activity as a whole, that authority is not unbounded. The State can only ensure that the project complies with “any applicable effluent limitations and other limitations, under [33 U. S. C. §§ 1311, 1312]” or certain other provisions of the Act, “and with any other appropriate requirement of State law.”
We agree with the State that ensuring compliance with § 303 is a proper function of the § 401 certification. Although § 303 is not one of the statutory provisions listed in § 401(d),
B
Having concluded that, pursuant to § 401, States may condition certification upon any limitations necessary to ensure
Petitioners assert, however, that § 303 requires the State to protect designated uses solely through implementation of specific “criteria.” According to petitioners, the State may not require them to operate their dam in a manner consistent with a designated “use“; instead, say petitioners, under § 303 the State may only require that the project comply with specific numerical “criteria.”
We disagree with petitioners’ interpretation of the language of § 303(c)(2)(A). Under the statute, a water quality standard must “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.”
Consequently, pursuant to § 401(d) the State may require that a permit applicant comply with both the designated uses and the water quality criteria of the state standards. In granting certification pursuant to § 401(d), the State “shall set forth any . . . limitations . . . necessary to assure that [the applicant] will comply with any . . . limitations under [§ 303] . . . and with any other appropriate requirement of State law.” A certification requirement that an applicant operate the project consistently with state water quality standards—i. e., consistently with the designated uses of the water body and the water quality criteria—is both a “limitation” to assure “compl[iance] with . . . limitations” imposed under § 303, and an “appropriate” requirement of state law.
EPA has not interpreted § 303 to require the States to protect designated uses exclusively through enforcement of numerical criteria. In its regulations governing state water quality standards, EPA defines criteria as ”elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.”
Petitioners also appear to argue that use requirements are too open ended, and that the Act only contemplates enforcement of the more specific and objective “criteria.” But this argument is belied by the open-ended nature of the criteria
Washington‘s Class AA water quality standards are typical in that they contain several open-ended criteria which, like the use designation of the river as a fishery, must be translated into specific limitations for individual projects. For example, the standards state that “[t]oxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use.”
Petitioners further argue that enforcement of water quality standards through use designations renders the water quality criteria component of the standards irrelevant. We see no anomaly, however, in the State‘s reliance on both use designations and criteria to protect water quality. The specific numerical limitations embodied in the criteria are a convenient enforcement mechanism for identifying minimum water conditions which will generally achieve the requisite water quality. And, in most circumstances, satisfying the criteria will, as EPA recognizes, be sufficient to maintain the
Under petitioners’ interpretation of the statute, however, if a particular criterion, such as turbidity, were missing from the list contained in an individual state water quality standard, or even if an existing turbidity criterion were insufficient to protect a particular species of fish in a particular river, the State would nonetheless be forced to allow activities inconsistent with the existing or designated uses. We think petitioners’ reading leads to an unreasonable interpretation of the Act. The criteria components of state water quality standards attempt to identify, for all the water bodies in a given class, water quality requirements generally sufficient to protect designated uses. These criteria, however, cannot reasonably be expected to anticipate all the water quality issues arising from every activity that can affect the State‘s hundreds of individual water bodies. Requiring the States to enforce only the criteria component of their water quality standards would in essence require the States to study to a level of great specificity each individual surface water to ensure that the criteria applicable to that water are sufficiently detailed and individualized to fully protect the
The State also justified its minimum stream flow as necessary to implement the “antidegradation policy” of § 303,
EPA has promulgated regulations implementing § 303‘s antidegradation policy, a phrase that is not defined elsewhere in the Act. These regulations require States to “develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy.”
Petitioners also assert more generally that the Clean Water Act is only concerned with water “quality,” and does not allow the regulation of water “quantity.” This is an artificial distinction. In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i. e., diminishment of water quantity, can constitute water pollution. First, the Act‘s definition of pollution as “the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water” encompasses the effects of reduced water quantity.
Petitioners assert that two other provisions of the Clean Water Act, §§ 101(g) and 510(2),
...
This language gives the States authority to allocate water rights; we therefore find it peculiar that petitioners argue that it prevents the State from regulating stream flow. In any event, we read these provisions more narrowly than petitioners. Sections 101(g) and 510(2) preserve the authority of each State to allocate water quantity as between users; they do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. In California v. FERC, 495 U.S. 490, 498 (1990), construing an analogous provision of the Federal Power Act,4 we explained that “minimum stream
IV
Petitioners contend that we should limit the State‘s authority to impose minimum flow requirements because FERC has comprehensive authority to license hydroelectric projects pursuant to the FPA,
...
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.”
No such conflict with any FERC licensing activity is presented here. FERC has not yet acted on petitioners’ license application, and it is possible that FERC will eventually deny petitioners’ application altogether. Alternatively, it is quite possible, given that FERC is required to give equal consideration to the protection of fish habitat when deciding whether to issue a license, that any FERC license would contain the same conditions as the state § 401 certification. Indeed, at oral argument the Deputy Solicitor General stated that both EPA and FERC were represented in this proceeding, and that the Government has no objection to the stream flow condition contained in the § 401 certification. Tr. of Oral Arg. 43-44.
Finally, the requirement for a state certification applies not only to applications for licenses from FERC, but to all federal licenses and permits for activities which may result in a discharge into the Nation‘s navigable waters. For example, a permit from the Army Corps of Engineers is required for the installation of any structure in the navigable waters which may interfere with navigation, including piers, docks, and ramps. Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1151, § 10,
In summary, we hold that the State may include minimum stream flow requirements in a certification issued pursuant to § 401 of the Clean Water Act insofar as necessary to enforce a designated use contained in a state water quality standard. The judgment of the Supreme Court of Washington, accordingly, is affirmed.
So ordered.
JUSTICE STEVENS, concurring.
While I agree fully with the thorough analysis in the Court‘s opinion, I add this comment for emphasis. For judges who find it unnecessary to go behind the statutory text to discern the intent of Congress, this is (or should be) an easy case. Not a single sentence, phrase, or word in the Clean Water Act purports to place any constraint on a State‘s power to regulate the quality of its own waters more stringently than federal law might require. In fact, the Act explicitly recognizes States’ ability to impose stricter standards. See, e. g.,
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
The Court today holds that a State, pursuant to § 401 of the Clean Water Act, may condition the certification necessary to obtain a federal license for a proposed hydroelectric project upon the maintenance of a minimum flow rate in the river to be utilized by the project. In my view, the Court makes three fundamental errors. First, it adopts an interpretation that fails adequately to harmonize the subsections of § 401. Second, it places no meaningful limitation on a State‘s authority under § 401 to impose conditions on certification. Third, it gives little or no consideration to the fact that its interpretation of § 401 will significantly disrupt the carefully crafted federal-state balance embodied in the Federal Power Act. Accordingly, I dissent.
I
A
Section 401(a)(1) of the Federal Water Pollution Control Act, otherwise known as the Clean Water Act (CWA or Act),
The minimum stream flow condition imposed by respondents in this case has no relation to any possible “discharge” that might “result” from petitioners’ proposed project. The term “discharge” is not defined in the CWA, but its plain and ordinary meaning suggests “a flowing or issuing out,” or “something that is emitted.” Webster‘s Ninth New Collegiate Dictionary 360 (1991). Cf.
The Court remarks that this reading of § 401(a)(1) would have “considerable force,” ante, at 711, were it not for what the Court understands to be the expansive terms of § 401(d). That subsection, as set forth in
“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, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Fed-
eral license or permit subject to the provisions of this section.” (Emphasis added.)
According to the Court, the fact that § 401(d) refers to an “applicant,” rather than a “discharge,” complying with various provisions of the Act “contradicts petitioners’ claim that the State may only impose water quality limitations specifically tied to a ‘discharge.‘” Ante, at 711. In the Court‘s view, § 401(d)‘s reference to an applicant‘s compliance “expands” a State‘s authority beyond the limits set out in § 401(a)(1), ibid., thereby permitting the State in its certification process to scrutinize the applicant‘s proposed “activity as a whole,” not just the discharges that may result from the activity, ante, at 712. The Court concludes that this broader authority allows a State to impose conditions on a § 401 certification that are unrelated to discharges. Ante, at 711-712.
While the Court‘s interpretation seems plausible at first glance, it ultimately must fail. If, as the Court asserts, § 401(d) permits States to impose conditions unrelated to discharges in § 401 certifications, Congress’ careful focus on discharges in § 401(a)(1)—the provision that describes the scope and function of the certification process—was wasted effort. The power to set conditions that are unrelated to discharges is, of course, nothing but a conditional power to deny certification for reasons unrelated to discharges. Permitting States to impose conditions unrelated to discharges, then, effectively eliminates the constraints of § 401(a)(1).
Subsections 401(a)(1) and (d) can easily be reconciled to avoid this problem. To ascertain the nature of the conditions permissible under § 401(d), § 401 must be read as a whole. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (statutory interpretation is a “holistic endeavor“). As noted above, § 401(a)(1) limits a State‘s authority in the certification process to addressing concerns related to discharges and to ensuring that any discharge resulting from a project will comply with specified provisions of the Act. It is reasonable
...
The text of § 401(d) similarly suggests that the conditions it authorizes must be related to discharges. The Court attaches critical weight to the fact that § 401(d) speaks of the compliance of an “applicant,” but that reference, in and of itself, says little about the nature of the conditions that may be imposed under § 401(d). Rather, because § 401(d) conditions can be imposed only to ensure compliance with specified provisions of law—that is, with “applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, standard[s] of performance under section 1316 of this title, . . . prohibition[s], effluent standard[s], or pretreatment standard[s] under section 1317 of this title, [or] . . . any other appropriate requirement[s] of State law“—one should logically turn to those provisions for guidance in determining the nature, scope, and purpose of § 401(d) conditions. Each of the four identified CWA provisions describes discharge-related limitations. See
The final term on the list—“appropriate requirement[s] of State law“—appears to be more general in scope. Because
B
The Court adopts its expansive reading of § 401(d) based at least in part upon deference to the “conclusion” of the Environmental Protection Agency (EPA) that § 401(d) is not limited to requirements relating to discharges. Ante, at 712. The agency regulation to which the Court defers is
..
As a preliminary matter, the Court appears to resort to deference under Chevron without establishing through an initial examination of the statute that the text of the section is ambiguous. See Chevron, supra, at 842-843. More importantly, the Court invokes Chevron deference to support its interpretation even though the Government does not seek
In fact, the regulation to which the Court defers is hardly a definitive construction of the scope of § 401(d). On the contrary, the EPA‘s position on the question whether conditions under § 401(d) must be related to discharges is far from clear. Indeed, the only EPA regulation that specifically addresses the “conditions” that may appear in § 401 certifications speaks exclusively in terms of limiting discharges. According to the EPA, a § 401 certification shall contain “[a] statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity.”
II
The Washington Supreme Court held that the State‘s water quality standards, promulgated pursuant to § 303 of the Act,
The Court states that, “at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to § 303 are ‘appropriate’ requirements of state law” under § 401(d). Ante, at 713.2 A water quality standard promulgated pursuant to § 303 must “consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.”
The Court‘s reading strikes me as contrary to common sense. It is difficult to see how compliance with a “use” of a body of water could be enforced without reference to the
The problematic consequences of decoupling “uses” and “criteria” become clear once the Court‘s interpretation of § 303 is read in the context of § 401. In the Court‘s view, a State may condition the § 401 certification “upon any limitations necessary to ensure compliance” with the “uses of the water body.” Ante, at 713-714, 715 (emphasis added). Under the Court‘s interpretation, then, state environmental agencies may pursue, through § 401, their water goals in any way they choose; the conditions imposed on certifications need not relate to discharges, nor to water quality criteria, nor to any objective or quantifiable standard, so long as they tend to make the water more suitable for the uses the State has chosen. In short, once a State is allowed to impose conditions on § 401 certifications to protect “uses” in the abstract, § 401(d) is limitless.
To illustrate, while respondents in this case focused only on the “use” of the Dosewallips River as a fish habitat, this particular river has a number of other “[c]haracteristic uses,”
III
The Court‘s interpretation of § 401 significantly disrupts the careful balance between state and federal interests that Congress struck in the Federal Power Act (FPA),
In California v. FERC, the Court emphasized FERC‘s exclusive authority to set the stream flow levels to be maintained by federally licensed hydroelectric projects. California, in order “to protect [a] stream‘s fish,” had imposed flow rates on a federally licensed project that were significantly higher than the flow rates established by FERC. Id., at 493. In concluding that California lacked authority to impose such flow rates, we stated:
“As Congress directed in FPA § 10(a), FERC set the conditions of the [project] license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. FERC has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent regarding the Commission‘s licensing authority and would constitute a veto of the project that was approved and licensed by FERC.” Id., at 506-507 (citations and internal quotation marks omitted).
California v. FERC reaffirmed our decision in First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 164 (1946), in which we warned against “vest[ing] in [state authorities]
Today, the Court gives the States precisely the veto power over hydroelectric projects that we determined in California v. FERC and First Iowa they did not possess. As the language of § 401(d) expressly states, any condition placed in a § 401 certification, including, in the Court‘s view, a stream flow requirement, “shall become a condition on any Federal license or permit.”
Although the Court notes in passing that “[t]he limitations included in the certification become a condition on any federal license,” ante, at 708, it does not acknowledge or discuss the shift of power from FERC to the States that is accomplished by its decision. Indeed, the Court merely notes that “any conflict with FERC‘s authority under the FPA” in this case is “hypothetical” at this stage, ante, at 723, because “FERC has not yet acted on petitioners’ license application,” ante, at 722. We are assured that “it is quite possible . . . that any FERC license would contain the same conditions as the state § 401 certification.” Ibid.
The Court‘s observations simply miss the point. Even if FERC might have no objection to the stream flow condition established by respondents in this case, such a happy coincidence will likely prove to be the exception, rather than the rule. In issuing licenses, FERC must balance the Nation‘s power needs together with the need for energy conservation, irrigation, flood control, fish and wildlife protection, and recreation.
Moreover, the Court ignores the fact that its decision nullifies the congressionally mandated process for resolving such state-federal disputes when they develop. Section 10(j)(1) of the FPA,
More fundamentally, the 1986 amendments to the FPA simply make no sense in the stream flow context if, in fact, the States already possessed the authority to establish minimum stream flow levels under § 401(d) of the CWA, which was enacted years before those amendments. Through the ECPA, Congress strengthened the role of the States in establishing FERC conditions, but it did not make that authority paramount. Indeed, although Congress could have vested in the States the final authority to set stream flow conditions, it instead left that authority with FERC. See California v. FERC, 495 U. S., at 499. As the Ninth Circuit observed in the course of rejecting California‘s effort to give California v. FERC a narrow reading, “[t]here would be no point in Congress requiring [FERC] to consider the state agency recommendations on environmental matters and
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. At the very least, the significant impact the Court‘s ruling is likely to have on that process should compel the Court to undertake a closer examination of § 401 to ensure that the result it reaches was mandated by Congress.
IV
Because the Court today fundamentally alters the federal-state balance Congress carefully crafted in the FPA, and because such a result is neither mandated nor supported by the text of § 401, I respectfully dissent.
Notes
“(1) Class AA (extraordinary).
“(a) General characteristic. Water quality of this class shall markedly and uniformly exceed the requirements for all or substantially all uses.
“(b) Characteristic uses. Characteristic uses shall include, but not be limited to, the following:
“(i) Water supply (domestic, industrial, agricultural).
“(ii) Stock watering.
“(iii) Fish and shellfish:
“Salmonid migration, rearing, spawning, and harvesting.
“Other fish migration, rearing, spawning, and harvesting.
. . . . .
“(iv) Wildlife habitat.
“(v) Recreation (primary contact recreation, sport fishing, boating, and aesthetic enjoyment).
“(vi) Commerce and navigation.
“(c) Water quality criteria
“(i) Fecal coliform organisms.
“(A) Freshwater—fecal coliform organisms shall not exceed a geometric mean value of 50 organisms/100 mL, with not more than 10 percent of samples exceeding 100 organisms/100 mL.
“(B) Marine water—fecal coliform organisms shall not exceed a geometric mean value of 14 organisms/100 mL, with not more than 10 percent of samples exceeding 43 organisms/100 mL.
“(ii) Dissolved oxygen [shall exceed specific amounts].
. . . . .
“(iii) Total dissolved gas shall not exceed 110 percent of saturation at any point of sample collection.
“(iv) Temperature shall not exceed [certain levels].
. . . . .
“(v) pH shall be within [a specified range].
“(vi) Turbidity shall not exceed [specific levels].
“(vii) Toxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use.
“(viii) Aesthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste.”
The Government, appearing as amicus curiae “supporting affirmance,” instead approaches the question presented by assuming, arguendo, that petitioners’ construction of § 401 is correct: “Even if a condition imposed under Section 401(d) were valid only if it assured that a ‘discharge’ will comply with the State‘s water quality standards, the [minimum flow condition set by respondents] satisfies that test.” Brief for United States as Amicus Curiae 11.Section 401, as set forth in
“(a) Compliance with applicable requirements; application; procedures; license suspension
“(1) Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of 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 1311, 1312, 1313, 1316, and 1317 of this title.
. . . . .
“(d) Limitations and monitoring requirements of certification
“Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements 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, standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.”
In the Court‘s view, § 303 water quality standards come into play under § 401(d) either as “appropriate” requirements of state law or through § 301 of the Act, which, according to the Court, “incorporates § 303 by reference.” Ante, at 713 (citations omitted). The Court notes that through § 303, “the statute allows States to impose limitations to ensure compliance with § 301 of the Act.” Ibid. Yet § 301 makes unlawful only “the [unauthorized] discharge of any pollutant by any person.”