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PUD No. 1 of Jefferson County V. Washington Department of Ecology: State Water Quality Certification of Ederf Ally Licensed Hydropower Projects

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PUD No. 1 of Jefferson County V. Washington Department of Ecology: State Water Quality Certification of Ederf Ally Licensed Hydropower Projects Oklahoma Law Review Volume 48 Number 4 1-1-1995 Water: PUD No. 1 of Jefferson County v. Washington Department of Ecology: State Water Quality Certification of ederF ally Licensed Hydropower Projects T. Mike Blake Jr. Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Water Law Commons Recommended Citation T. M. Blake Jr., Water: PUD No. 1 of Jefferson County v. Washington Department of Ecology: State Water Quality Certification of ederF ally Licensed Hydropower Projects, 48 OKLA. L. REV. 817 (1995), https://digitalcommons.law.ou.edu/olr/vol48/iss4/8 This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. Water: PUD No. 1 of Jefferson County v. Washington Department of Ecology: State Water Quality Certification of Federally Licensed Hydropower Projects L Introduction The conflict between federal and state power in the United States is a conflict of epic proportions. Since the failure of the Articles of Confederation, the federal government has consistently asserted its preeminence over the states. Federal supremacy has been as evident in the field of hydropower facility regulation as it has been in any other area of governmental regulation. However, in PUD No. 1 of Jefferson County v. Washington Departmentof Ecology,' the Supreme Court of the United States found that the federal government relinquished to the states some of its control over the authority to license and relicense hydropower projects. The Federal Energy Regulatory Commission (FERC) has general authority to issue licenses to operators of hydropower projects.2 The states have consistently challenged the exclusivity of FERC's authority. The general result of these challenges has been judicial recognition of federal preemption of regulatory authority over hydropower projects. The seminal case in the debate over FERC's preemptive authority is First Iowa Hydroelectric Cooperative v. Federal Power Commission.3 First Iowa has generally been regarded as recognizing federal preemption of state regulatory authority over hydropower projects. The Supreme Court did not overrule FirstIowa in the Jefferson County decision. The Supreme Court did decide that the states have a substantial role to play in the federal licensing process as a result of the Clean Water Act (CWA). The effect of the Court's ruling is that the states have a broad veto power over the federal licensing and relicensing of hydropower projects Section 401 of the CWA requires applicants for federal licenses conducting any activity which will result in a discharge into intrastate navigable waters to obtain water quality certification from the State before a federal license or permit may be issued.' Section 401 applies to all federal licenses, but only hydropower licenses are at issue here. The section 401 certification is a prerequisite to federal licensing, and thereby allows the states to balance the benefits of hydropower production against the harm which will be caused to the local water resource. Because hydropower projects have their greatest effects, both positive and negative, at the 1. 114 S. Ct. 1900 (1994). 2. FERC's authority derives from the commerce clause of the Constitution. U.S. CONST. art. I, § 8, cl. 3. Water was held to be a commodity in and of itself in Sporhase v. Nebraska, 458 U.S. 941, 954 (1982), and therefore is interstate commerce subject to the regulatory authority of the federal government under the commerce clause. 3. 328 U.S. 152 (1946). 4. Jefferson County, 114 S. Ct. at 1910-11. 5. Clean Water Act § 401, 33 U.S.C. § 1341 (1988). Published by University of Oklahoma College of Law Digital Commons, 1995 OKLAHOMA LAW REVIEW [Vol. 48:817 local and regional le-vel, it is appropriate that states should have a prominent role in the licensing and relicensing process. The decision in Jefferson County has far-reaching consequences. The operating licenses of over two hundred privately owned hydropower projects have recently expired.' These projects are currently awaiting licensing reviews In addition, many more licenses are due to expire over the next several years.' Most of these projects received their original licenses when there was a perceived federal need for promotion of federal hydropower facilities during the New Deal Era. Since the original licensing of these projects, environmental concerns about protecting stream flows for fish, wildlife, recreation, or water quality purposes have come to the forefront of public consciousness. In addition, a renewed interest in states' rights has emerged. These existing projects, and any new hydropower projects, will have to meet broad state water quality requirements in order to acquire the necessary license to operate. The nature of these state requirements should reflect the striking of a balance at the state rather than the federal level between the desire for affordable energy and the desire to preserve the environment. II. History: Section 401 Certificationof Hydropower Projects Section 401 of the CWA provides for state water quality certification as a prerequisite to issuance of federal permits and licenses for hydropower projects.' An applicant for a federal permit or license whose activities will result in a discharge into waters of the United States must obtain state water quality certification from the appropriate state administrative agency." The certification ensures compliance with state water quality requirements and with specific sections of the CWA, including section 303." Section 303 of the CWA requires the states to institute comprehensive water quality standards which incorporate water quality goals for all intrastate waters.' These water quality standards consist of two different types of standards - designated uses and water quality criteria. 3 The water quality criteria include specific numerical criteria, measuring such things as dissolved oxygen content, fecal coliform organisms, temperature, pH, dissolved gas, and turbidity. Water quality criteria also include narrative standards for concerns such as toxicity and aesthetic values. The designated uses may include such items as water supply, stock watering, salmonid habitat, wildlife habitat, recreation, commerce, and navigation. 6. Melissa Healy, St2tes Can Mandate Dam Water Levels, Supreme Court Says, L.A. TIMES, June 1, 1994, at A3. 7. Id. 8. Id. 9. Clean Water Act, § 401, 33 U.S.C. § 1341 (1988). 10. Id. § 401(a)(1). 11. IL 12. Id. § 303. 13. Id. § 303(c)(2)(A). https://digitalcommons.law.ou.edu/olr/vol48/iss4/8 1995] NOTES In addition, section 303 contains an antidegradation policy which requires that state standards be sufficient to maintain existing beneficial uses of state waters without further degradation. 4 The Court's decision in Jefferson County that ensuring compliance with section 303 is a proper function of the section 401 state certification process is the basis for extensive state regulatory authority under the CWA. Prior to Jefferson County, State courts had offered different interpretations of the extent and scope of state authority under section 401. Some decisions construed section 401 narrowly as applying only to the protection of specific numerical criteria. Other decisions construed section 401 broadly as allowing the state to condition certification on criteria which protect both numerical and narrative criteria as well as designated uses of the water. The Vermont Supreme Court construed section 401 broadly in Georgia-Pacific Corp. v. Vermont Department of Environmental Conservation. The court held that under section 401 of the CWA, the State could condition the relicensing of a hydropower project on the requirement that the project operator maintain certain spillage flows over a dam during specific periods of the year. 6 The portion of the river below the dam was designated a cold water fish habitat under the Vermont water quality standards, requiring a dissolved oxygen level of 6.2 mg/.' 7 The Vermont Department of Environmental Conservation (DEC) determined that the project would need to release 210 cubic feet per second (cfs) over the dam between June 1 and October 15 to meet this criteria.'" In addition, the court found that this spillage flow rate would act to prevent aquatic habitat degradation, protect downstream water quality for fish (including Atlantic Salmon), and restore the aesthetic value of the downstream river.'9 The private owner of the hydroelectric facility argued that DEC did not have the authority to set such broad conditions for state certification of the project under section 401. Nevertheless, the court utilized a broad interpretation of section 401, finding that the spillage flow rates required by the DEC were necessary to maintain state water quality standards.? Specifically, the flow rates were necessary to maintain the dissolved oxygen standards of the river. The court also found that these spillage flows were relevant to the aesthetic and recreational values of the river." The Court of Appeals of New York construed section 401 narrowly in Power Authority of New York v. Williams.' The Williams court held that the state 14. Id. § 303(d)(4)(B). 15. 35 Env't Rep. Cas. (BNA) 2052 (Vt. 1992). 16. Id. at 2053. 17. Georgia-Pacific Corp. v. Vermont Dep't of Envtl. Conservation, 35 Env't Rep. Cas. (BNA) 2046, 2050 (Vt. Super. Ct. 1992). 18. Id. 19. Georgia-Pacific Corp. v. Vermont Dep't of Envtl. Conservation, 35 Env't Rep. Cas. (BNA) 2052, 2053 (Vt. 1992). 20. Id. at 2053-54. 21. Id. at 2054. 22. 457 N.E.2d 726 (N.Y. 1983). Published by University of Oklahoma College of Law Digital Commons, 1995 OKLAHOMA LAW REVIEW [Vol. 48:817 regulatory authority could not grant or deny the certification based upon a balancing of the needs of the project against the adverse environmental impact.' The court found that section 401 of the CWA limited the state regulatory authority to determining whether the project met the state's numerical water quality standards.' The Supreme Court granted certiorari in PUD No.
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