State Water Quality Certification in Perspective

1
From Streams to the Supremes

• State Water Quality Certification in Perspective

2
The Role of CWA 401

• requires that any applicant for a federal license
  or permit
• which may result in any discharge into navigable
  water,
• obtain a certificate from the state where the
  discharge originates
• that the activity subject to the permit will be
  executed in a manner that complies with the
  states water quality standards.

3
The Role of CWA 401

• 401 (d) the certification shall set forth any
  effluent limitations and other limitations, and
  monitoring requirements necessary to assure
  compliance with State law
• And these conditions shall become a condition on
  any Federal license or permit subject to the
  provisions of this section.

4
Water Quality Certification in Practice

• Section 401 provides states with two distinct
  powers
• (1) the power to indirectly veto federal permits
  or licenses by withholding certification
• (2) the power to impose conditions upon federal
  permits by placing limitations in the
  certification.

5
Contentious Conditions

• What are conditions?
• Minimum Stream Flow Requirements
• Dissolved Oxygen Content
• Broad statements concerning fish and wildlife
• Reporting requirements
• Reopeners
• What effect do they have?
• Bypassed reaches no longer dewatered
• Enforcement potential
• State oversite

6
Enforcing Water Quality Certifications The
Example of St. Regis

• minimum stream flow requirements for the bypassed
  reaches
• Historically dewatered
• Trout stocking practices
• Violation of minimum flows
• Enforcement opportunities

7
Water Quality Certification as ineffective the
Hinckley Peaking Problem

• Hinckley overview
• Compliance with numerical limitation
• The peaking problem
• Creative enforcement

8
Challenges to Water Quality Certifications

• Industry
• Water quality certification viewed as hurdle to
  FERC licensing
• Additional bureaucratic steps
• Additional compliance
• State/Enviros
• Additional tool for enforcement

9
Testing the Scope of 401

• Alabama Rivers Alliance v. FERC, 325 F.3d 290
  (D.C. Cir.2003)
• 3 new turbines add 900 cfs to stream and decrease
  DO
• Court holds that FERC amendment requires WQC
• PUD 1 of Jefferson County v. Washington Dep't of
  Ecology, 511 U.S. 700 (1994).
• Minimum Stream Flow Requirements upheld has valid
  condition to WQC
• Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d
  1092 (9th Cir. 1998)
• Non point source pollution not a discharge under
  section 401, but 401 otherwise could be used
  under CS provision
• North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir.
  1997)
• Water withdrawal does not consititute a discharge
  and therefore wqc not applicable
• American Rivers, Inc. v. FERC, 129 F.3d 99 (2d
  Cir. 1997)
• Reoponers clause upheld as condition to
  certification
• California v. FERC, 495 U.S. 490 (1990)
• Preempitve reach of FPA not limited by section 27
  reserving rights to states in regard to
  irrigation and water appropriation.

10
The Miccosukee Mistake

• South Florida Water Mgmt. Dist. v. Miccosukee
  Tribe, 541 U.S. 95 (2004)
• Genuine issues of material fact regarding whether
  a certain and a certain wetland area in the
  Florida Everglades were meaningfully distinct
  water bodies precluded summary judgment, on claim
  alleging pumping polluted water from canal into
  wetland required a NPDES permit.
• Ironically court also held Discharge of a
  pollutant," for which a NPDES permit is required
  under the Clean Water Act, includes within its
  reach point sources that do not themselves
  generate pollutants a point source need only
  convey the pollutant to navigable waters
• resolved

11
The Scourge of the Clean Water Act The Unitary
Waters Theory

• Miccosukee does not resolve the unitary water
  theory
• "'the waters of the Unites States' should be
  viewed as a whole for purposes of permitting
  requirements."
• "Once a pollutant is present in one part of the
  waters of the United States, its simple
  conveyance to a different part is not a discharge
  of a pollutant"
• What does this mean?

12
S.D. WARREN COMPANY v.MAINE DEPARTMENT OF
ENVIRONMENTAL PROTECTION

• Does the mere flow of water through an existing
  dam constitute a "discharge" under Section 401,
  33 U.S.C. 1341, of the Clean Water Act,
  despite this Court's holding last year in
  Miccosukee that a discharge requires the addition
  of water from a distinct body of water?
• Does the State of Maine's expansive application
  of Section 401 conflict with the Federal Energy
  Regulatory Commission's comprehensive licensing
  authority over hydroelectric generating projects
  under the Federal Power Act, 16 U.S.C. 791a
  et seq.?

13
Defining Discharge

• A Discharge is not defined in the CWA
• But 502(16) states "the term 'discharge when
  used without qualification includes a discharge
  of a pollutant, and a discharge of pollutants."
• 502 (12) reads The definition of the phrase
  "discharge of a pollutant" and "discharge of
  pollutants" both mean
• (A) any addition of any pollutant to navigable
  waters from any point source,

14
What Then is an Addition?

• The outside world test
• Catskill TU case and the Soup Ladle
• "meaningfully distinct water bodies
• Miccosukee
• Private Control Test
• State of Maine Supreme Court

15
Does This Even Matter?

• What is the applicability of 402 definitions
  and court tests on 401?
• Does Miccosukee matter?
• Alabama Rivers Alliance, Inc.,(2003) or North
  Carolina (1997) both are DC circuit

16
Potential End Results

• Water flowing through turbines, penstocks,
  spillways and/or spilling over crests, will not
  constitute a discharge.
• 401 of the CWA will not apply to Hydro dams
  despite Historical procedures and FERC
  regulations
• States will no longer issue certificates
• FERC license conditions remain
• So What?????????

17
Conclusions

• Hydropower dams are not homogenous entities
• Streams economic productivity are multivariate
• Hydropower industry has extensive history of
  stream degradation.
• Water quality certification an effective tool for
  implementing state and local interests
• Potential CWA Citizen Suit Tool
• Scope of the CWA, the existence of dam related
  wqc and Hydro relicensing will all be called in
  to question based on SCT dicta and definitional
  statutory construction.