The untapped power of clean water act section 401

Ecology Law Quarterly

Volumn 23, Issue 2, 1996, Pages 201-301

  Donahue, Debra L ^a,b  

^a UNIVERSITY OF WYOMING   (United States)

^b UTAH STATE UNIVERSITY   (United States)

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EID: 0442306360     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (537)

1. See, e.g., Linda Nash, Water Quality and Health, in WATER IN CRISIS 25 (Peter H. Glieck ed., 1993); ROBERT W. ADLER ET AL., THE CLEAN WATER ACT: 20 YEARS LATER (1993). According to the president of the Association of State and Interstate Water Pollution Control Administrators, "the American public expects and demands clean water." Views Sought on CWA Reauthorization; Bill Outline Expected by Early August, ENV'T REP. CURRENT DEVELOPMENTS, July 7,1995, at 529. "[WJater pollution is the top environmental concern of the American people. Ninety-six percent of the public considers water quality the most important environmental issue ...." 140 CONG. REC. S6351 (daily ed. May 25, 1994) (statement of Sen. Baucus). "Clean water ranked number one in the September 1993 Money Magazine's poll of considerations for choosing the ideal community in which to live." Best Management Practice Status Summary, CLEAN WATER WAYS, Spring 1994, at 5. See M.T. Smith & S. Nance-Nash, The Best Places to Live Now, MONEY MAGAZINE, Sept. 1993, at 124.
2. 33 U.S.C. §§1251-1387 (1994).
3. See, e.g., ADLER ET AL., supra note 1; Hearing before the U.S. House of Representatives Committee on Merchant Marine and Fisheries, Subcommittee on Environment and Natural Resources, 103d Cong. 2nd Sess. (1994) (statement of Steven N. Moyer, Government Affairs Director of Trout Unlimited); Natural Resources Law Center, University of Colorado, America's Waters: A New Era of Sustainability, 24 ENVTL. L. 125,142-43 (1994) (recommendations of the Long's Peak Working Group on National Water Policy, a panel of national experts) [hereinafter Long's Peak Report]', David H. Getches, Groundwater Quality Protection: Setting a National Goal for State and Federal Programs, 65 Cm.-KENT L. REV. 387 (1989).
4. Many in Congress, in particular, seem oblivious to the undeniable public support for continued efforts to clean up America's water. See infra note 9.
5. See ADLER ET AL., supra note 1. See also Long's Peak Report, supra note 3, at 130-31: A central objective of the Clean Water Act-to restore the chemical, physical, and biological integrity of the nation's waters-remains unfulfilled. . . . Despite some progress many obstacles remain in the way of maintaining high quality water. Serious remaining problems include: poorly controlled polluted runoff (nonpoint source discharges)-which accounts for half of national pollution loads; failure to integrate land and water management; fragmented regulatory responsibility; inadequate water quality standards and lax enforcement; and inadequate attention to ecosystem protection. See also infra note 10.
6. See, e.g., ADLER ET AL., supra note 1, at xii, 14-19, 85; Brian Weeks, Trends in Regulation of Stormwater and Nonpolnt Source Pollution, ELR NEWS & ANALYSIS, 25 ELR 10300, 10301 (1995) (noting the drastic reductions in surface water pollution from point sources as a result of 20 years of command-and-control regulation); William K. Reilly, The Issues and the Policy: View from EPA, EPA J., Nov./Dec. 1991, at 21 (reporting that by 1988 nearly 90% of city sewage treatment plants and an even higher proportion of major industrial dischargers met federal and state water pollution control requirements). See also infra note 10.
7. See, e.g., ADLER ET AL., supra note 1, at 18, 85-86, 236-37, 241; LAND LETTER, June 20, 1995, at 7 (describing Natural Resources Defense Council (NRDC) report that "[drinking] water contamination has increased because of aging water treatment plants and continued non-point source pollution")'- Weeks, supra note 6, at 10300-01,10304 n.65. See infra note 10.
8. ADLER ET AL., supra note 1, at xii; see also id. at 76 ("overall integrity of our aquatic ecosystems is deteriorating dramatically").
9. Examples abound, but a few House bills amply illustrate the point. The " 'most direct onslaught' on water quality" is the Clean Water Act amendment and reauthorization bill, H.R. 961, which passed the House of Representatives 240-185 on May 16, 1995. See Clean Water Rewrite, Regulatory Bills Would Degrade Environment, Group Says, ENV'T REP. CURRENT DEVELOPMENTS, June 9, 1995, at 310 (quoting NRDC report Save Our Summers: Congress' Assault on Clean Waters). NRDC claimed that the measure would erode water quality by weakening controls on sewage and toxics. Id. The bill also would exempt federal hydroelectric projects from regulation under the Clean Water Act, weaken wetlands regulation, replace the existing permit program for storm water discharges with a management program based on voluntary measures, and empower states to waive cleanup requirements. See Funds for Wetlands Could be "Zeroed Out, " ENV'T REP. CURRENT DEVELOPMENTS, May 26, 1995, at 249; House Clean Water Act Deals Big Blow to Federal Power, ENV'T WEEK, May 18,1995, at 2. According to the Administration, it "abandonfs] efforts to curb agricultural and urban nonpoint source pollution." House Passes Bill to Reauthorize Clean Water Act, NONPOINT SOURCE NEWS-NOTES, June 1995, at 2. The House appropriations bill, which passed the House 228-193 on July 31, also would have drastic consequences for existing water pollution control programs, via its reductions in the EPA budget and its restrictions on EPA's enforcement of several laws and regulations. See EPA, House Appropriations Bill Would Cut EPA Operating Funds by 34% and Prohibit Funding for EPA 's Wetlands, Sewer Overflow, Polluted Runoff, and Stormwater Programs Pending CWA Reauthorization (Aug. 1, 1995). The so-called regulatory reform bill, H.R. 9, also could have consequences for water quality protection. NRDC asserted that this measure, if enacted, would require that "billions of dollars of taxpayer money be spent to pay polluters not to pollute." ENV'T REP. CURRENT DEVELOPMENTS, June 9, 1995, supra, at 311.
10. Pollution sources are divided into two categories under the Clean Water Act. "Point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,... conduit, [etc.]." 33 U.S.C. §1362(14). Point sources are subject to a permit requirement, id. §1342, and all point source discharges are illegal unless permitted, id. §1311. Generally speaking, pollution sources that are not defined as point sources escape regulation under the CWA and are referred to collectively as "nonpoint sources." See id. §§1288, 1329. The CWA does not define nonpoint source (NFS), but EPA has adopted the following (nonregulatory) guidance: NFS pollution is caused by diffuse sources that are not regulated as point sources and normally is associated with agricultural, silvicultural and urban runoff, runoff from construction activities, etc.... In practical terms, nonpoint source pollution does not result from a discharge at a specific, single location (such as a single pipe) but generally results from land runoff, precipitation, atmospheric deposition, or percolation. EPA, NONPOINT SOURCE GUIDANCE DOCUMENT 3 (Dec. 1987).
11. 33 U.S.C. §1341. Section 401 requires that "[a]ny applicant for a Federal license or permit to conduct any activity ..., which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates .. . that any such discharge will comply with" certain specified sections of the Clean Water Act. Id. §1341(a)(1). It further provides that states may impose conditions on certifications, designed to ensure such compliance, and that the federal permit may not issue unless certification has been obtained or waived. Id. § 1341(a)(1), (d).
12. See infra text accompanying note 29 (quoting the crucial provisions of §401).
13. Professor William Rodgers has written that "[t]he certification provisions [of the CWA] are very much a loose cannon, and in need of serious study." 2 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER §4.16, at 253 (1986 & Supp. Feb. 1995). Section 401 has also been called a "sleeping giant." Katherine Ransel & Erik Meyers, State Water Quality Certification and Wetland Protection: A Call to Awaken the Sleeping Giant, 1 VA. J. NAT. RESOURCES L. 339, 340 (1988). See also id. at 345; ADLER ET AL., supra note 1, at 203; OFFICE OF WATER, EPA, WETLANDS AND 401 CERTIFICATIONOPPORTUNITIES AND GUIDELINES FOR STATES AND ELIGIBLE INDIAN TRIBES 10 (Apr. 1989) [hereinafter WETLANDS AND 401 CERTIFICATION]. But recently Ms. Ransel has written that the "giant has awakened." See Katherine P. Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 25 ENVTL. L. 255 (1995). See infra part III.A. (discussing the federal permits that have traditionally received scrutiny pursuant to §401 and many others that arguably should be subject to 401 certification).
14. In its National Water Quality Inventory 1986 Report to Congress, EPA reported that pollution from diffuse nonpoint sources was the leading cause of water quality impairment. In those states providing information, NPS was responsible for the failure to support designated uses of 65% of streams and rivers, 76% of lakes, and 45% of estuaries. JACKSON B. BATTLE & MAXINE I. LIPELES, ENVIRONMENTAL LAW: WATER POLLUTION 422 (2d ed. 1994). In 1992 EPA reported that "private and governmental actions at all levels have not resulted in significant net reductions of NPS pollution on a national scale. Indeed, the problem has become the most important source of degradation of water quality in this country." EPA, STATE AND LOCAL FUNDING OF NONPOINT SOURCE CONTROL PROGRAMS 3 (Sept. 1992) (emphasis in original). Polluted runoff is now responsible for the impaired condition of more than half the nation's waters. Statement of Steven N. Moyer, supra note 3, at 5. A water is "impaired" if it fails to meet water quality standards or designated uses. Agricultural runoff accounts for more than 50% of polluted runoff. Id. See also ADLER ET AL., supra note 1, at 171.
15. See Robert L. Glicksman, Pollution on the Federal Lands II: Water Pollution Law, 12 J. ENVTL. L. 61 (1993); Richard H. Braun, Emerging Limits on Federal Land Management Discretion: Livestock, Riparian Ecosystems, and Clean Water Law, 17 ENVTL. L. 43 (1986). See also infra part III.
16. GEORGE C. COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 17 (3d ed. 1993). This runoff derives from the high percentage of federal lands in the West and the fact that many of those lands are at higher elevations, which receive more moisture and produce more runoff. See id. at 12. See also Andrew A. Leven et al., Water Quality Protection on National Forest Lands in California, in PROCEEDINGS, CALIFORNIA WATERSHED MANAGEMENT CONFERENCE 27 (Nov. 18-20, 1986) (Wildland Resources Center, Rep. No. 11) (U.S. Forest Service administers about 20% of lands in California, but over half of the annual runoff in the state comes from those lands).
17. As Professor William Rodgers has explained: In the forefront of any analysis of nonpoint source pollution is the role of the federal government as manager of approximately one-third of the U.S. land area constituting the federal lands. The federal government is intimately involved in a wide range of activities that include the development of energy sources on federal lands (oil shale, coal, uranium and geothermal sources) as well as a number of other practices (grazing, silvicultural, construction of roads, railroads and airports, siting of landfills) that can lead to water pollution problems. RODGERS, supra note 13, §4.9, at 130 (footnotes omitted). See also OFFICE OF WATER, EPA, MANAGING NONPOINT SOURCE POLLUTION (1989) (Final Report to Congress on Section 319 of the Clean Water Act, summarizing State NPS Assessment Report data).
18. WETLANDS AND 401 CERTIFICATION, supra note 13, at 10.
19. Approximately half of the land area of the 11 western states is owned by the federal government. COGGINS ET AL., supra note 16, at 12.
20. See infra note 135 and accompanying text, and part III.
21. While this article was in preparation an article was published that introduces some of the ideas developed herein. See Ransel, supra note 13.
22. 114 S. Ct. 1900, 1914 (1994). PUD No. 1 is the only case in which the Supreme Court has been called upon to interpret the scope and intent of §401. Arkansas v. Oklahoma, 503 U.S. 91,103 (1992), discussed §401(a)(2) in the context of one state potentially affected by the certification and permitting of a pollution source in another state. But the statute was not directly at issue there, nor did the Court discuss the meaning of § 401(a)(1) or (d).
23. In fact, according to one §401 scholar, PUD No. 1 "awakened the sleeping giant" that had been §401. See Ransel, supra note 13.
24. See infra part III.
25. 114 S. Ct. 1900.
26. See generally Ransel, supra note 13.
27. See 114 S. Ct. at 1907,1914. See also Ransel, supra note 13, at 267-68 (interpreting PUD No. 1 as meaning that "FERC does not have discretion to impose conditions different from those" in the state's certification).
28. 114 S. Ct. at 1913.
29. 33 U.S.C. §1341(a)(1) (emphasis added). Sections 1311, 1312, 1313, 1316, and 1317, to which §401 refers, are, respectively, Clean Water Act §§301 (effluent limitations), 302 (water quality related effluent limitations), 303 (water quality standards and implementation plans), 306 (national standards of performance for new sources), and 307 (toxic and pretreatment effluent standards). Sections 301 and 303 are of greatest relevance to this article; the others apply chiefly to point sources subject to CWA §402, 33 U.S.C. § 1342. "[Applicable provisions" in §401(a) "means [1] that the requirement which the term 'applicable' refers to must be pertinent and must apply to the activity and [2] the requirements must be in existence by having been promulgated or implemented." HOUSE COMM. ON PUBL. WORKS, FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, H.R. REP. No. 911, 92d Cong., 2d Sess. (1972), reprinted in A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, VOL. 1, at 753, 808 (USGPO Ser. No. 93-1, 1973) [hereinafter LEGISLATIVE HISTORY, VOL. 1]. The portions of §401(a)(1) omitted in the text provide for certification by an interstate water pollution control agency or by the Administrator of EPA, in certain circumstances, and set forth provisions for waivers, public notice, and other procedural requirements. The meaning of the operative term "discharge" in §401 (a) received no attention by the PUD No. 1 Court and hence will be addressed more fully in subsequent sections of this article. See infra part II.A.1.
30. 33 U.S.C. §1341 (d).
31. 114 S. Ct. at 1905, 1908.
32. Id. at 1907. See Ransel, supra note 13, at 255-57, for a more detailed description of the Dosewallips project.
33. State of Washington Dep't of Ecology v. PUD No. 1, 849 P.2d 646, 649 (Wash. 1993) (en bane).
34. 114 S. Ct. at 1914. According to Ransel, "the Court held the state may impose conditions reasonably related to the achievement of water quality standards, including ... criteria, as well as the use designations." Ransel, supra note 13, at 265 (citing 114 S. Ct. at 1910-12) (emphasis added). But this mischaracterizes the Court's express holding. The State of Washington had advanced the "reasonably related" test, see Brief for Respondents at *10, *22, PUD No. 1 v. State of Washington Dep't of Ecology, 1993 WL 632337 (U.S. Dec. 13,1993) (No. 92-1911) [hereinafter Respondents' Brief], and infra note 56, but the Court employed instead the term "necessary," presumably reflecting the language of § 401(d) ("limitations necessary to assure ... [compliance]") or §301(b)(1)(C) ("any more stringent limitation... necessary to meet water quality standards"). See 114 S. Ct. at 1910, 1914. Nevertheless, Ransel's interpretation is consistent with EPA's and at least one state's. See infra note 293 (citing EPA rule and OHIO ADM. CODE ANN. 3745-32-05(C) (Anderson 1995) ("director may impose such terms and conditions... as are appropriate or necessary to ensure compliance with the applicable laws and to ensure adequate protection of water quality.")).
35. 114 S. Ct. at 1910 (quoting 33 U.S.C. §1341(d)).
36. Id. at 1914.
37. Id. at 1907. Section 4(e) of the Federal Power Act, 16 U.S.C. §797(e) (1988), authorizes FERC to license hydroelectric facilities.
38. 114 S. Ct. at 1908. The respondents had argued that the project would "cause at least three kinds of 'discharges' covered by §401," i.e., "(1) discharges of dredged and fill material, (2) discharges of pollutants, and (3) discharges of non-point source pollution." Respondents' Brief at *32, PUD No. 1. The first two types of discharges generally would constitute point source discharges. See infra note 205.
39. 114 S. Ct. at 1907-08. In other words, PUD No. I involved no concern about the discharge of pollutants from the tailrace or about the direct effects of the discharge of fill material during project construction. Rather, the State's concern was with the resultant hydromodification-a type of nonpoint source pollution expressly identified in 33 U.S.C. § 1314(f)(2)(F). The D.C. Circuit Court of Appeals explained §304(f) as "reflecting] congressional understanding that some dam-induced water quality problems are nonpoint source pollution." National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 168 n.36 (D.C. Cir. 1982). See infra notes 205, 229.
40. 114 S. Ct. at 1907.
41. Id. at 1908 (citing the pertinent language of §401 (a)). See also Reply Brief for Petitioners at *8 n.14, PUD No. 1 v. State of Washington Dep't of Ecology, 1994 WL 131622 (U.S. Jan. 5,1994) (No. 92-1911 ) (rejecting respondents' assertions that the project would cause discharges of pollutants and nonpoint source pollution, not apparently because petitioners thought that such "discharges" were outside the scope of §401, but because "[s]uch consequences were not cited as a ground for regulating streamflow in the § 401 certificate or the Washington Supreme Court's opinion"). See infra part II.B.l regarding the discharges issue.
42. "The minimum stream flow condition . . . has no relation to any possible 'discharge' that might result from petitioners' proposed project.... [A] minimum stream flow requirement is a limitation on intake-the opposite of discharge. Imposition of such a requirement would thus appear to be beyond a State's authority as it is defined by § 401(a)(1)." 114 S. Ct. at 1915 (Thomas, J., dissenting).
43. Id. at 1908.
44. Id. at 1909 (emphasis in original). Washington offered an additional, persuasive argument in support of this interpretation, namely, that "Congress uses 'activity' and 'discharge' interchangeably in §401," citing as examples the clause " '[i]n the case of any such activity for which there is not an applicable effluent limitation or other limitation' " in § 401(a)(1) and similar provisions in §401(a)(4), (5). Respondents' Brief at *30, PUD No. 1 (emphasis added).
45. 114 S. Ct. at 1908-09 (emphasis added). See supra note 29 and accompanying text for the wording of §401.
46. 114 S. Ct. at 1908-09.
47. Id. at 1909 (quoting portions of §401(d); emphasis added).
48. Id. (quoting 40 C.F.R. §121.2(a)(3); emphasis in opinion). The Court also cited WETLANDS AND 401 CERTIFICATION, supra note 13, at 23, and noted that EPA's interpretation was entitled to deference. 114 S. Ct. at 1909.
49. Id. at 1909.
50. See id. at 1906-08, 1910 (quoting WASH. ADMIN. CODE §173-201-045(1)(b)(iii) (1990)).
51. Id. at 1908. Washington's antidegradation policy, much like the federal policy, see 40 C.F.R. §131.12 (1995), essentially requires maintenance of existing uses and prohibits any degradation of water quality that would interfere with or harm existing uses. See 114 S. Ct. at 1906-07.
52. See id. at 1906-07, 1910. See also infra note 64.
53. Id. at 1909 (citation to the legislative history of §401 omitted). See infra text accompanying note 278. Section 301, 33 U.S.C. §1311, is entitled "Effluent limitations." Among other things, it makes discharges of pollutants from point sources illegal unless pursuant to a permit and in compliance with the Act, and it establishes schedules for point source compliance with increasingly stringent effluent limitations.
54. 114 S. Ct. at 1909 (quoting CWA §401(d)). The Court noted that this interpretation is "consistent with EPA's view of the statute." Id. (citing EPA's §401 regulations and WETLANDS AND 401 CERTIFICATION guidance document). In a footnote, the majority responded to the dissent's "assertion] that §301 is concerned solely with discharges, not broader water quality requirements." Id. at 1909 n.3. The majority acknowledged that "§ 301 does make certain discharges unlawful," but countered that the "broad enabling provision" in §301(b)(1)(C) "expressly refers to state water quality standards, and is not limited to discharges." Id. at 1910 n.3. Section 301(b)(1)(C), to which the Court referred, provides: "In order to carry out the objective of this chapter [viz. the chemical, physical, and biological integrity of the Nation's water] there shall be achieved not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations . . . ." 33 U.S.C. § 1311(b)(1)(C), quoted at 114 S. Ct. at 1909,1910 n.3. Clearly, the "more stringent limitation[s]" to which §301 refers could be construed to mean limitations on discharges more stringent than the technology-based effluent limitations otherwise prescribed by §301. Conceivably, the phrase might also refer to other, nondischarge-related limitations-perhaps, for example, a stream flow requirement. It can only be presumed that this latter alternative was what the Court had in mind, since its explanation ends with the cryptic pronouncement that the quoted provision of §301 "is not limited to discharges."
55. See infra note 277 and accompanying text.
56. The Court found it unnecessary to determine "what additional state laws, if any, might be incorporated by the §401 (d) term "any other appropriate requirement of State law." 114 S. Ct. at 1909. By "additional state laws" the Court may have meant laws in addition to, or other than, state WQS. In fact, Washington had argued: Section 401 does not limit the State to ensuring compliance with water quality standards. Section 401 (d) further authorizes the states to impose conditions necessary to ensure compliance within [sic] "any other appropriate requirement of state law." Because RCW 90.54.030(2)(a), which requires minimum instream flows to protect, inter alia, fish and wildlife, is reasonably related to the policies and purposes of the CWA, it is an "appropriate" state law requirement, within the meaning of §401(d). Respondents' Brief at *10, PUD No. 1. Nevertheless, the reader is reminded that the Court did not classify state WQS as among the "other appropriate requirements of State law" referenced by §401(d), but rather among the "other limitations" referenced earlier in that same paragraph. See 114 S. Ct. at 1909 (quoted supra in text accompanying note 54). See also supra text accompanying note 30 for language of §401 (d). The Court declined to decide Washington's argument.
57. The statute refers simply to "limitations ... necessary to assure that any applicant for a Federal license or permit will comply with" the referenced CWA provisions and "other appropriate requirements] of State law." 33 U.S.C. §1341(d).
58. 114 S. Ct. at 1910.
59. Id. at 1914 (emphasis added).
60. For instance, this article is not concerned with the intricacies of state water allocation law, nor with how PUD No. 1 may have "disrupted] the careful balance between state and federal interests that Congress struck in the Federal Power Act." See id. at 1919 (Thomas, J., dissenting). For a review of these and other interesting aspects of the case, see generally Ransel, supra note 13.
61. 114 S. Ct. at 1910-12. See discussion infra note 64.
62. 114 S. Ct. at 1912. See discussion infra at note 70.
63. See 114 S. Ct. at 1912. See also discussion infra note 74.
64. I say this despite the dissent's arguments to the contrary. See 114 S. Ct. at 1918-19 (Thomas, J., dissenting). See also Lisa M. Bogardus, State Certification of Hydroelectric Facilities Under Section 401 of the Clean Water Act, 12 VA. ENVTL. L.J. 43,80 (1992) (arguing, on the basis of a non-401 case, that neither narrative criteria nor designated uses can properly form the basis for section 401 conditions).
65. 33 U.S.C. §1313(c)(2)(A). "Uses" include such things as fish rearing and harvesting, as seen in this case, as well as agricultural use, municipal water supply, contact recreation, etc. Water quality criteria may be either "objective," numerical criteria (specifying acceptable levels or concentrations of physical or chemical parameters such as pH, turbidity, toxins, or nutrients) or "broad, narrative criteria based on, for example, 'aesthetics.' " See 114 S. Ct. at 1911 (citing 33 U.S.C. §1313(c)(2)(B), which specifies only one set of criteria (certain toxics) that must be numerical, and 40 C.F.R. §131.11(b)(2) (1992), which provides for narrative criteria when numerical criteria cannot be established). The Court noted that Washington's criteria for class AA waters (a category that includes the Dosewallips River) are "open-ended" narrative criteria, which "must be translated into specific limitations for individual projects." Id. at 1911. Water quality standards also have a third component, an antidegradation policy. See id. at 1905-06; Andrew H. Sawyer, Rock Creek Revisited: State Water Quality Certification of Hydroelectric Projects in California, 15 PAC. L.J. 973, 1000 (1994). See also infra notes 70-72 and accompanying text.
66. 114 S. Ct. at 1911 (quoting 40 C.F.R. §131.3(b) (1992); emphasis added).
67. See id.
68. Id. (emphasis added). Accord Bangor Hydro-Electric Co. v. Board of Envtl. Protection, 595 A.2d 438,442-43 (Me. 1991). The Maine court upheld the State's authority to consider designated uses as well as water quality criteria in making its certification decision, declaring that a contrary interpretation would render the designated use's component of water quality standards a "nullity." Id. at 442. See also Sawyer, supra note 65, at 9991001. Sawyer also quotes a letter from EPA to FERC in which an EPA Assistant Administrator explains that "[protection of water quality involves far more than just addressing water chemistry. Rather, protection of water quality includes protection of the multiple elements which together make up aquatic systems including the aquatic life, wildlife, wetlands, and other aquatic habitat, vegetation, and hydrology required to maintain the aquatic system." Id. at 1005. But see Bogardus, supra note 64, at 78-83 (arguing that only numerical criteria, not narrative criteria or designated uses, should be enforceable); Com-monwealth Dep't of Envtl. Resources v. City of Harrisburg, 578 A.2d 563, 564 (Pa. Commw. Ct. 1990) (suggesting that state authority is limited to reviewing "physical changes in the river"); de Rham v. Diamond, 295 N.E.2d 763, 768 (N.Y. 1973) (decided under §401's predecessor, §21 (b)).
69. The dissent found this latitude troubling. In Justice Thomas's view, "decoupling 'uses' and 'criteria' " allows states to 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 ... to protect "uses" in the abstract, §401(d) is limitless. 114 S. Ct. at 1918-19 (Thomas, J., dissenting). This criticism, however, is founded on mischaracterizations and omissions. There is nothing "abstract" about a minimum stream flow necessary to support salmon migration, nor was there any evidence that the State was attempting to make the river "more suitable" for (as opposed to simply maintaining) that designated use. Moreover, in arguing that uses should be protected solely by "reference to the corresponding criteria," id. at 1918, the dissent ignores the EPA rule that acknowledges that criteria may not always protect designated uses, see id. at 1911 (citing 40 C.F.R. § 131.3(b)), and renders essentially nugatory the statutory term "use." And the dissent fails altogether to address the antidegradation policy. See infra notes 70-72 and accompanying text. Finally (and somewhat curiously), Justice Thomas used recreation, rather than fish habitat, and conditions with "little relation," rather than no relation (which would have better proved his point), to water quality, to illustrate this alleged "limitless" power of states under §401(d). See id. at 1919 (emphasis added). Given the facts of PUD No. 1 and the majority's phrasing of the holding in terms of conditions "necessary to enforce a designated use," id. at 1914 (emphasis added), the dissent's concerns seem misplaced or overblown.
70. The term "antidegradation policy" is used herein, as in PUD No. 1, to refer, individually or collectively, to the "policy" reflected in §303(d) of the Clean Water Act, the federal regulations implementing the policy (at 40 C.F.R. §131.12), and/or state regulations implementing the federal requirements. See generally 114 S. Ct. at 1906-07, 1912.
71. See id. at 1905-06 ("[CWA] §303 also contains an 'antidegradation policy' [and] EPA's regulations implementing the Act require that state water quality standards include 'a statewide antidegradation policy' "). The antidegradation policy is well entrenched in water pollution control law. The Court charted its history, noting that federal law required, and all 50 states had, such a policy even before the 1972 FWPCA amendments were passed; that the 1972 Act provided that all such state standards would remain in force; that EPA has consistently required states to have an antidegradation policy; and finally, that Congress had ratified the policy in the 1987 CWA amendments. Id. at 1912. See also Sawyer, supra note 65, at 1000 ("elements which must be included in each state's water quality standards . . . includ[e] designated uses, water quality criteria, and an antidegradation policy").
72. See 114 S. Ct. at 1912 ("the State's minimum stream flow condition is a proper application of the state and federal antidegradation regulations"). EPA has also taken the position that certification decisions may properly be based on the antidegradation policy. WETLANDS AND 401 CERTIFICATION, supra note 13, at 18-20. See also Hi-Line Sportsmen Club v. Milk River Irrigation Dist., 786 P.2d 13,16 (Mont. 1990) (State had based certification condition on, inter alia, the State's "nondegredation [sic] requirements").
73. I say "probably" because the Court's opinion does not expressly hold that the antidegradation policy serves as an independent ground for denying or conditioning a certification. However, the State of Washington had argued that the antidegradation policy is "an integral and independently enforceable part of Washington's standards" and that the project would violate it "by injuring existing water uses." Respondents' Brief at *10, PUD No. 1 (No. 92-1911) (emphasis added). Because the Court held that designated uses, as one component of state water quality standards, are enforceable independently of water quality criteria, the only reasonable inference is that the antidegradation policy-also a separate component of water quality standards-is independently enforceable. See 114 S. Ct. at 1908,1912. Indeed, if the antidegradation policy is not accorded independent significance, it adds nothing to the other components of state water quality standards. See, e.g., Oklahoma v. EPA, 908 F.2d 595, 618-19 & n.35 (10th Cir. 1990) (finding that Oklahoma's Beneficial Use Limitations/Anti-Degradation Policy is designed to provide additional protection beyond other water quality standards), rev'd on other grounds sub nom. Arkansas v. Oklahoma, 503 U.S. 91 (1992). Courts would shun such an interpretation. See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2413 (1995). Thus, PUD No. 1 should be read as holding that the antidegradation policy constitutes a proper, and separate, ground for conditioning a §401 certification.
74. See 114 S. Ct. at 1908 (noting that the State had undertaken a study to determine the requisite minimum flow).
75. 33 U.S.C. §1341(d) (emphasis added).
76. See 114 S. Ct. at 1912. By "the law" I mean the Court's conclusions (1) that use designations are a separate element of state WQS and enforceable independently from the water quality criteria adopted to support those uses; and (2) that antidegradation requirements are also part of state WQS and enforceable to protect designated uses. "Enforceable" in this context means enforceable via appropriate conditions in a §401 certification.
77. See infra notes 501-05 and accompanying text (regarding lenient proof requirement that should flow from allowing conditions to protect uses, not just water quality criteria).
78. 114 S. Ct. at 1907. See supra text accompanying note 49.
79. See 114 S. Ct. at 1910-14.
80. Id. at 1914. See also infra note 124 and accompanying text.
81. See supra note 39 and accompanying text.
82. See infra note 205.
83. See infra part II.A.2 for further development of this point.
84. Any hesitation to "extend" PUD No. 7's holding to activities or water quality impacts not expressly dealt with in that opinion should be eased by Justice Stevens' bold concurrence. He declared: "[T]his 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." 114 S. Ct. at 1915 (Stevens, J., concurring). See also Ransel, supra note 13 (arguing that PUD No. 1 should have sweeping effect).
85. See supra text accompanying notes 29-30 for pertinent portions of the language of § 401 (a), (d). These are, as three commentators have observed, "remarkably absolute terms." ADLER ET AL., supra note 1, at 203; see also Ransel, supra note 13, at 268-70.
86. EPA has said that "[t]ime and the courts may be needed to resolve some of the more complicated and contentious issues surrounding 401 certification such as which federal permits and licenses require 401 certification." WETLANDS AND 401 CERTIFICATION, supra note 13, at 38. This statement implies an extant controversy over the scope of the 401 authority; however, lack of interest or awareness more aptly describes the current state of affairs. Perhaps the authors of the EPA report meant only to suggest that state attempts to exert §401 review authority over additional activities not now being reviewed could be expected to be controversial. Certainly, such a prognostication could not be faulted. But the plain language of, and intent behind, §401 belie their assessment of this issue as a "complicated" one, as I hope to demonstrate in this article.
87. 33 U.S.C. §1341(a)(1) (emphasis added).
88. WETLANDS AND 401 CERTIFICATION, supra note 13, at 20 (emphasis deleted); see also id. at 20 (noting the likelihood that additional permits and licenses should be subject to §401).
89. See 40 C.F.R. pts. 122-123 (1995) (defining requirements for federal NPDES permits and for approval of alternative state programs). See also Ransei & Meyers, supra note 13, at 345 n.33 (noting that, "at the least, [certification] would seem to be redundant" in cases where the state had been delegated permitting authority under §402). Section 402, 33 U.S.C. §1342, requires permits for all point source discharges. Cf. Minnesota regulations (cited infra note 106).
90. See 33 U.S.C. §1341(a)(6) (exempting from certification certain facilities constructed before a specified date, "[e]xcept with respect to a permit issued under section 1342 of this title"). See also Senate Consideration of the Report of the Conf. Comm., Exh. 1, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 176 ("Conferees intend that the certification provision will ensure a state water pollution control agency an opportunity to determine whether or not effluent limitations established for discharges subject to a section 402 permit will be at least as stringent as any applicable requirements of existing State program [sic]").
91. See, e.g., 40 C.F.R. §§122.4(b), 124.53(a) (1995) (prohibiting issuance of an NPDES permit to an applicant until a 401 certification is obtained or waived). See also id. § 124.51 (noting that tribes may be qualified for treatment as states for purposes of certification).
92. See, e.g., Miners Advocacy Council v. State Dep't of Envtl. Conservation, 778 P.2d 1126, 1129 (Alaska 1989), cert, denied, 493 U.S. 1077 (1990); Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041 (1st Cir. 1982); United States v. Puerto Rico, 721 F.2d 832 (1st Cir. 1983).
93. 33 U.S.C. §1344. "No one has ever argued that section 401 does not apply to the literally hundreds of thousands of Clean Water Act section 404 permits granted by the Corps of Engineers each year." Ransel, supra note 13, at 270. Section 404 requires permits for all discharges of dredged or fill material to navigable waters. 33 U.S.C. §1344. Both individual and general permits issued or reissued by the Corps are subject to certification. See id. §1344(a), (e); 33 C.F.R. §330.4(c) (1995); id. §330 app. A. Activities authorized by a Corps "letter of permission" are also subject to certification. Id. §325.2(e)(1)(ii)(c). See also Ransel & Meyers, supra note 13, at 339, 345 n.33 (noting that certification "would seem to be redundant" if the state had been delegated permitting authority under §404). Only Michigan and New Jersey are currently authorized to issue §404 permits. See Oliver A. Houck, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 MD. L. REV. 1242 (1995).
94. 33 U.S.C. §1341(c).
95. See id. §1344.
96. See, e.g., 33 C.F.R. §§320.3(a), 325.1(d)(4), 325.2(b)(ii), 330.4(c), 330.6(a)(3)(iii), 336.1(a)(1), (b)(8) (1995).
97. See, e.g., Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991); Commonwealth Dep't of Envtl. Resources v. City of Harrisburg, 578 A.2d 563,567 (Pa. Commw. Ct. 1990).
98. See, e.g., PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900,1907 (1994); Keating v. FERC, 927 F.2d at 619; City of Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989); de Rham v. Diamond, 295 N.E.2d 763, 768 (N.Y. 1973). See also Sawyer, supra note 65. The U.S. Supreme Court concluded summarily in PUD No. 1 that, "[b]ecause a federal license is required, and because the [hydroelectric] project may result in discharges" into a navigable water, applicants for FERC licenses must obtain 401 certification. 114 S. Ct. at 1907.
99. 16 U.S.C. §797(e) (1994).
100. 18 C.F.R. §4.38(a) (1995). Note, however, that H.R. 961, currently under consideration in Congress, would exempt FERC hydropower projects from regulation under the Clean Water Act. See Funds for Wetlands Could be "Zeroed Out, " supra note 9, at 249.
101. See Ransel, supra note 13, at 271-72; Sawyer, supra note 65, at 1003-04. This is significant because of the number of hydroelectric projects whose licenses are expiring and because of mounting concerns over the effects of some of these dams on native stocks of anadromous fish, particularly in the Pacific Northwest. See Ransel, supra note 13, at 271 (arguing that states should be able to use §401 to "recover" designated uses that have been eliminated by dams).
102. 33 U.S.C. §§401, 403 (1994). See 33 C.F.R. §320.4 (1995) (setting forth policies applicable to the processing of all Department of the Army permits). 33 C.F.R. §320.4(d) explains that the required certification under CWA §401 is "conclusive with respect to water quality considerations." Note that most RHA §9 activities, and some §10 activities, also require a CWA §404 permit and thus are clearly subject to §401 certification. See 33 C.F.R. §§321.1, 322.1.
103. 33 U.S.C. §401; 33 C.F.R. §321.1 (1995).
104. 33 U.S.C. §§401, 509 (1994); 49 C.F.R. §§1.41(a), 1.46(c)(5) (1995).
105. See Ransel & Meyers, supra note 13, at 346 & n.39.
106. The states take a variety of approaches to identifying permits subject to 401 certification. South Carolina, for instance, recognizes that permits subject to its certification authority are "not necessarily limited to" Corps and FERC permits, S.C. CODE REGS. 61101.A.3. (1993), but its certification procedures (more extensive than most other states') nevertheless seem to have been drafted with §404 permits in mind. See id. 61-101. Similarly, Ohio's regulations specify two Corps permits as subject to certification and then add: "any other federal permit or license to conduct any activity which may result in any discharge to waters of the state." OHIO ADMIN. CODE ANN. §3745-32-02(A)(4) (Anderson 1994). Kansas regulations broadly state: "No action that impacts upon water quality shall be taken unless the department has issued a water quality certification." KAN. ADMIN. REGS. 28-16-28f(c)(1) (1993). The rule defines "action that impacts water quality" somewhat circuitously, as certain discharges of wastewater, applications for federal permits subject to §401, and "[a]ny action in which the person proposing the action requests . . . certification." Id. 28-16-28f(c)(1)(A)(i)-(iii). Minnesota rules, on the other hand, reflect some confusion about NPDES permits and certification. They provide: "If the applicant is required to obtain a certification under section 401 . . ., no [402] permit may be issued by the agency unless the agency finds that the certification has been obtained by the applicant." MINN. R. 7001.1100(2) (1995). But Minnesota itself issues NPDES permits, see id. 7001.1100(1), 7001.1470(2); thus, no certification should be required for these permits.
107. EPA predicted in 1972 that "many States, for various reasons, may waive certification." H.R. REP. No. 911, at 170, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 857 (comments of EPA on H.R. 11895 and 11896). Most waivers probably are passive (i.e., result from the state's inaction for the statutory or regulatory time period, see 33 U.S.C. §1341(a)(1)) instead of the result of any affirmative/overt action by the state. Even more ostensible "waivers" probably reflect the certifying agency's lack of notice of the proposed activity or development and/or its failure to recognize that it has any authority with respect thereto. See, e.g., WATER QUALITY DIVISION, WYOMING DEP'T OF ENVTL. QUALITY, 1994 WYOMING WATER QUALITY ASSESSMENT 293 (1994) [hereinafter WYOMING 1994 ASSESSMENT] (stating that, "[f]or the most part, the only applicable federal permits are section 404 dredge and fill permits and [FERC] licenses"); Bill DiRienzo, 404 Permitting/401 Certification, CLEAN WATER WAYS, Jan. 1992, at 1-2 (stating that, of the "variety of permits ... and licenses ... which are subject to 401 certification, only two types are of significance to Wyoming"-404 permits and FERC licenses).
108. See WETLANDS AND 401 CERTIFICATION, supra note 13, at 9. This failure to enact implementing rules suggests, I believe correctly, that §401 is self-implementing; i.e., that certifying agencies need not adopt implementing regulations. See State of California ex rel. State of California Water Resources Control Bd. v. FERC, 966 F.2d 1541, 1554 (9th Cir. 1992) (holding that FERC rule concerning §401 waiver period "was an interpretive rule that simply applied the one-year limitation set forth in the CWA"). See also infra note 392 and accompanying text.
109. 33 U.S.C. §1341(a)(1).
110. EPA's certification rule essentially recites the statute: "License or permit means any license or permit granted by an agency of the Federal Government to conduct any activity which may result in any discharge into the navigable waters of the United States." 40 C.F.R. §121.1 (a) (1995). See supra notes 29-30.
111. 33 U.S.C. §1341(a)(1).
112. BLACK'S LAW DICTIONARY 829 (5th ed. 1979).
113. 5 U.S.C. §§551-706 (1994).
114. Id. §551(8) (" 'license' includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission"). The APA definition of "license" is "extremely broad." Air N. America v. Department of Transp., 937 F.2d 1427,1437 (9th Cir. 1991); see also Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 880 n.15 (1st Cir.) (noting that the definition of "license" is very broad), cert, denied, 439 U.S. 824 (1978).
115. See, e.g., Seacoast Ami-Pollution League, 572 F.2d at 880 & n.15 (implying that APA term "license" encompasses CWA §402 permit). Cf. LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 162,179 (Senate consideration of the Conference Committee report, noting that the Committee's amendment of the definition of "citizen" in the citizen suit provision of the Clean Water Act was "based on Section 10 of the Administrative Procedures [sic] Act, 5 U.S.C. §702"); see also S. REP. No. 1236, 92d Cong., 2d Sess. 146 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 329.
116. S. 2770,92d Cong., 1st Sess. 167 (1971), reprinted in 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 1700 [hereinafter LEGISLATIVE HISTORY, VOL. 2]. The House bill contained no definition of "permit."
117. S. REP. No. 1236, 92d Cong., 2d Sess. 143-44 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 326-27. The conferees' stated reason for this amendment suggested that "permit" as defined had referred only to §§402 and 404 permits. Id. at 144, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 326. Note: This discussion of the term "permit" was not specific to the §401 context.
118. "It is the conferees' intent that a permit means any permit or equivalent document or requirement issued to regulate the discharge of pollutants." Id.
119. Id.
120. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985) (ruling that "the term 'navigable' as used in the Act is of limited import," and "navigable waters" includes "at least some waters that would not be deemed 'navigable' under the classical understanding of that term"). "[Virtually every lower court opinion on the jurisdictional issue" goes even farther, though, to hold that "permitting authority under the Water Act [by virtue of the breadth of the term "navigable waters"] extendfs] as far as the reach of the federal commerce power." BATTLE & LIPELES, supra note 14, at 48-49. The expression "discharge into the navigable waters" is used in CWA §§401, 402, and 404. Sections 402 and 404 pertain to permits issued under the authority of the CWA, while §401 applies to "any Federal license and permit," which has been construed to encompass 402 and 404 permits as well as permits issued under various other authorities. See supra notes 88-105 and accompanying text. Given the variety of "permits" potentially brought within § 401's net, it would have been difficult for Congress to draft a more specific definition to cover them all. The conferees' broad construction of "navigable waters," into which discharges subject to various "permits" may occur, thus takes on greater significance-as evidence of an intent to cast a wide net around all permits with relevance for CWA purposes. "Navigable waters" does, however, serve to limit the universe of permits subject to §401. See infra notes 151-56 and accompanying text.
121. LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 1388.
122. Id. at 1389 (emphasis added).
123. Id. at 1390 (emphasis added).
124. 114 S. Ct. 1900,1914 (1994).
125. Id. The Court was referring to right-of-way grants issued pursuant to the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §1761 (1994), by the Secretaries of Agriculture and Interior. See also 43 C.F.R. pt. 2800 (1995) (defining procedures for right-of-way permit applications). "Right-of-way" is defined to include lease, permit, license, or easement. 43 U.S.C. §1702(f) (1994).
126. 114 S. Ct. at 1914. But see California ex rel. State Water Resources Control Bd. v. FERC, 966 F.2d 1541,1561 (9th Cir. 1992) (holding that BLM right-of-way authority under FLPMA does not include facilities licensed by FERC).
127. See 43 C.F.R. §2800.0-7(a) (1995) (listing the kinds of activities that require a right-of-way grant or temporary use permit). The 401 certification process could be easily accommodated within the framework established by the 43 C.F.R. part 2800 regulations. See, e.g., 40 C.F.R. §2801.1-l(g), (k) (requiring that any right-of-way grant be as limited in scope and comply with any other applicable provision of law); 40 C.F.R. §2801.2 (requiring, inter alia, right-of-way terms "to ensure that activities in connection with the grant or permit shall not violate applicable ... water quality standards"); 40 C.F.R. §2801.3 (dealing with taking right-of-way without permit); 40 C.F.R. §2802.1 (providing for coordination among federal, state, and local government agencies during pre-application phase); 40 C.F.R. §2802.3(b)(1) (providing for applicants to submit with their applications any "State approvals required for the proposal"); 40 C.F.R. §2802.4 (denying permit approval if proposal does not meet state requirements).
128. A recent example from Wyoming involves the permitting of a proposed natural gas pipeline. The stream crossings along the proposed route would involve discharges of dredged or fill material and hence require a §404 permit. The Wyoming Department of Environmental Quality warned the project proponent that certification of two of these discharges would be denied unless compliance with a specified state water quality standard could be assured. FEDERAL ENERGY REGULATORY COMMISSION, PGT/PG&E AND ALTAMONT NATURAL GAS PIPELINE PROJECTS FINAL ENVIRONMENTAL IMPACT STATEMENT, COMMENTS/RESPONSES SA-55, SA-56 (1991). Certain facilities requiring a FLPMA rightof-way may also need a FERC license, which itself would trigger 401 review. See supra notes 98-101 and accompanying text.
129. Concerning NFS discharges and §401 generally, see infra part II.B.l. This issue takes on added significance because of 43 U.S.C. §1761(c), which authorizes the conversion of certain federal rights-of-way to permanent easements if certain requirements are met and written application is made by December 31,1996. Even if §401 applied to these rights-of-way when initially granted, it is not certain whether it is applicable now or by what mechanism it could be applied. But cf. Ransel, supra note 13, at 271 (arguing that states should be able to use §401 to "recover" designated uses that have been eliminated by dams).
130. See Ransel & Meyers, supra note 13, at 346-53.
131. See id. at 345-47.
132. Id. at 353. EPA acknowledges that "the water quality certification process is continually evolving." WETLANDS AND 401 CERTIFICATION, supra note 13, at 6.
133. WETLANDS AND 401 CERTIFICATION, supra note 13, at 20; Ransel, supra note 13, at 269, 271. Ms. Ransel's is apparently the first suggestion in the literature that §401 may apply to federal grazing permits and timber sales. Nor had the question been litigated
134. WETLANDS AND 401 CERTIFICATION, supra note 13, at 20; RODGERS, supra note 13, §4.2, at 26; id. §4.16, at 252. Nuclear facilities are licensed by the Nuclear Regulatory Commission (NRC), formerly AEC, pursuant to 42 U.S.C. §§2133-2134 (1994). See also id. §§2235, 2242 (1994). The legislative history of §401 indicates that thermal pollution from nuclear power plants was one of the concerns behind the certification requirement. See infra note 180 and accompanying text. See also S. REP. 414, 92d Cong., 1st Sess. 69 (1971), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1487 (noting that a state could deny a permit and thereby prevent the issuance of a permit or license "by such Federal agencies as the Atomic Energy Commission, Federal Power Commission, or the Corps of Engineers").
135. This list is provided for discussion purposes only. I have not examined each of these permit programs in detail with respect to CWA §401 as I have federal grazing permits issued pursuant to U.S. Forest Service and Bureau of Land Management authority. See infra part III.
136. 33 U.S.C. §§2601-2623 (1994) (vessel permits are issued pursuant to id. §2602).
137. 16 U.S.C. §§497, 497b, 551 (1994); 36 C.F.R. §251.50 (1995).
138. 7 U.S.C. §§1010-1012 (1994); 36 C.F.R. §213.3 (1995). See Duncan Energy Co. v. United States Forest Serv., 50 F.3d 584 (8th Cir. 1995) (holding that Forest Service approval was required for mineral exploration on claims owned by plaintiff underlying acquired lands within Custer National Forest).
139. 43 C.F.R. pt. 2800. According to BLM regulations, the natures of the interests in the right-of-way grant and the related temporary use permit are identical. 43 C.F.R. § 2801.1-1(a). "Right-of-way grant" and "temporary use permit" are defined at 43 C.F.R. § 2800.0-5(h) and (i), respectively. Thus, it would seem absurd to call the latter but not the former a "permit" for purposes of CWA §401. The same would seem true for at least some leases, as well as permits, covered by 43 C.F.R. part 2920, Leases, Permits, and Easements. See 43 C.F.R. §2920.0-5(c), (d) (1995) (defining leases and permits as, inter alia, authorizations to use public lands). An exception might be oil and gas leases, which do not in themselves authorize any surface disturbance and which thus would not result in any discharge. See, e.g.. Park County Resource Council, Inc. v. United States Dep't of Agric., 817 F.2d 609,622 (10th Cir. 1987) (holding that BLM's finding of no significant impact due to oil and gas leases was appropriate). But see Sierra Club v. Peterson, 717 F.2d 1409, 1411 (D.C. Cir. 1983) (holding that agency can preclude surface disturbance only if lease contains a "no surface occupancy" stipulation). In contrast, a permit to drill, obtained subsequent to an oil and gas lease, should be subject to §401. See 43 C.F.R. §§3162.2, 3162.3-1, 3592.1 (1995) (BLM regulations for drilling permits and operating plans); 36 C.F.R. § 228.106-.108 (1995) (conditions for drilling on national forests). Section 401 review of possible impacts to water due to activities conducted pursuant to an oil or gas drilling permit could be more extensive than the review triggered by the application for a § 402 permit for the discharge of produced waters from the well.
140. See 43 C.F.R. §4120.3-3 (1995).
141. See McClellan Ecological Seepage Situation v. Cheney, 763 F. Supp. 431, 441 (E.D. Cal. 1989) (noting, in dictum, that a U.S. Forest Service timber sale contract is a "license" under the Administrative Procedure Act, 5 U.S.C. §551(8)), vacated and remanded with instructions, McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir.), and cert, denied, 116 S. Ct. 51 (1995). See also Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 & n.10 (9th Cir. 1986) (discussing impacts of road construction and timber harvesting on water quality and fish habitat), rev'd sub nom. on other grounds, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1425 (9th Cir. 1989) (concerning effects of timber sale on water quality).
142. The Deepwater Port Act, 33 U.S.C. §§1501-1524 (1994), requires a license for operating a port beyond the territorial seas. States would have no §401 authority over the port area itself, but should be able to review the potential water quality impacts of traffic between shore and the port within the three-mile zone included in the Act's definition of "navigable waters." See infra notes 151-56 and accompanying text.
143. See 16 U.S.C. §1374 (1994).
144. 42 U.S.C. §§9101-9168 (1994).
145. See, e.g., Reclamation Reform Act of 1982, 43 U.S.C. §§390aa to 390zz-1 (1994). The water quality and fish and wildlife impacts of irrigation, including irrigation using federal project water, are well documented. See generally George A. Gould, Agriculture, Nonpoint Source Pollution, and Federal Law, 23 U.C. DAVIS L. REV. 461, 465-66 (1990); Gary Bobker, Agricultural Point Source Pollution in California's San Joaquin Valley, NAT. RESOURCES & ENV'T, Winter 1995, at 13; TOM HARRIS, DEATH IN THE MARSH (1991) (concerning Kesterson National Wildlife Refuge in California, where selenium in contaminated runoff caused heavy mortality and widespread deformities in wildlife, particularly fish and migratory birds). An entire article could be devoted to analyzing whether contracts to use federal irrigation project water under the Reclamation Act may be considered a "Federal license or permit" for purposes of CWA §401. Concerning the distinction between contracts and licenses, see generally Anderson v. Eby, 998 F.2d 858 (10th Cir. 1993); McClellan, 763 F. Supp. at 441.
146. 16 U.S.C. §1539(a)(1)(B) (1994). This suggestion may seem to stretch states' 401 authority to the breaking point, but consider that certification could provide a means of regulating the nonpoint source impacts of the activity that may incidentally "take" a threatened or endangered species, when otherwise those impacts might go unregulated under the Clean Water Act.
147. 42 U.S.C. §6925 (1994) (requiring permits for facilities that treat, store, or dispose of hazardous wastes). Discharges to water from these facilities may be subject to permitting under CWA §402, but if the potential discharges are not point-source-related and if the state is not authorized to administer RCRA, §401 would provide the source state authority it would not otherwise possess to regulate the possible water quality impacts of the facility.
148. See 42 U.S.C. §§7475, 7651g (1994). Major stationary sources of sulfur dioxide and nitrogen oxides can contribute to acid deposition, with known (and suspected) effects on surface water quality and vegetation. See id. §7475(d) (regarding air quality-related values). Where EPA, rather than the state, is the permitting agency, §401 review of the potential water-quality-related impacts of some of these facilities may be appropriate.
149. 43 C.F.R. §3809.1-4 to .1-7 (1995) (operating plans on BLM lands); 36 C.F.R. § 228.4-.S (1995) (operating plans on national forests). Each federal agency's regulations already require that state water quality requirements be met, e.g., 36 C.F.R. §228.8(b) (1995); 43 C.F.R. §3809.2-2(b) (1995), but stop short of authorizing the agency to veto mining on public lands. At least some in Congress do not believe that the Forest Service has statutory authority to prohibit prospecting or mining. See COGGINS ET AL., supra note 16, at 488-89 (citing letter from Montana Sen. Melcher to former Forest Service Chief John Maguire, stating House Subcommittee on Public Lands' belief that the Forest Service lacks authority to prohibit mining or prospecting). Yet all authorities agree that §401 gives states a veto power over federally permitted activities that may violate applicable water quality requirements. See infra part II.B.3.
150. See 33 U.S.C. §§2101, 2104 (1994). But note that these permits are issued under other permitting authorities, such as CWA §402 or §404. 33 C.F.R. §§322.2(g), 322.5(b), (1995). And CWA §401 would be relevant only to permits issued for artificial reefs in navigable waters. See infra notes 151-56 and accompanying text.
151. 33 U.S.C. §1341(a)(1).
152. Id. §1362(7).
153. Id. §1362(8) (" 'territorial seas' means the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles").
154. "Discharge of a pollutant" is defined to mean both "(A) any addition of any pollutant to navigable waters from any point source, [and] (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." Id. §1362(12) (emphasis added). " '[Contiguous zone' means the entire zone established or to be established by the United States under article 24 of the Convention of the Territorial Sea and the Contiguous Zone." Id. §1362(9). " '[O]cean' means any portion of the high seas beyond the contiguous zone." Id. §1362(10). Thus, as an example, states should have no authority under §401 to review permits for ocean dumping issued under §§102 and 103 of the Marine Protection, Research, and Sanctuaries Act, id. §§1412-1413 (1994).
155. H.R. REP. No. 911, 92d Cong., 2d Sess. 124 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 811 ("It should be clearly noted that the certifications required by section 401 are for activities which may result in any discharge into navigable waters. It is not intended that State certification is or will be required for discharges into the contiguous zone or the oceans beyond the territorial seas.").
156. Natural Resources Defense Council v. United States EPA, 863 F.2d 1420,1435-36 (9th Cir. 1988) (holding that certification was not required for discharges that occurred more than three miles offshore, i.e., beyond the limits of the territorial sea). The court noted that only discharges into the "navigable waters" are subject to certification under § 401, and "navigable waters" is defined in the CWA, at 33 U.S.C. §1362(7), as "the waters of the United States, including the territorial seas." Id. at 1435. This had been interpreted to mean "only those waters landward from the outer boundary of the territorial seas." Id. (citation omitted; emphasis in original). The court further found that the legislative history supported this conclusion. Id. at 1436. See supra note 155. But see Save Our Sound Fisheries Ass'n v. Callaway, 387 F. Supp. 292, 306 (D.R.I. 1974) (implying that certification would have been required for discharges of dredged spoil 4.6 miles offshore, but for the then-extant exemption in §401(a)(6) of federal agencies from the requirement to obtain a certification). (The exemption of federal agencies in §401(a)(6) was deleted by the 1977 CWA amendments.)
157. 33 U.S.C. §1341(a)(1) (emphasis added).
158. Id. §1362(16) (emphasis added).
159. Id. §1362(12) (emphasis added).
160. Id. §1362(6). This definition is not intended to be an inclusive list. See, e.g., National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 174 & n.56 (D.C. Cir. 1982). EPA itself "admits that 'sediment' is a pollutant, although not clearly listed." Id.
161. 33 U.S.C. §1362(14).
162. See id. §1362(1)-(15), (17)-(20).
163. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2413 (1995); Ratzlaf v. United States, 114 S. Ct. 655, 659 (1994) (read statutes to give independent effect to all provisions). See also National Wildlife Fed'n v. Gorsuch, 693 F.2d at 172 ("Congress [in §506(6)] used restrictive phrasing-'the term "pollutant" means dredged spoil, [etc.]'-rather than the looser phrase 'includes,' used elsewhere in the Act."; footnote omitted, emphasis in original); Ransel, supra note 13, at 269 ("[wjhere Congress took the trouble separately to define these terms, the argument that 'any discharge' in section 401 is no broader than the definition of 'discharge of pollutant' [is] only wishful thinking"). EPA's rule at 40 C.F.R. §122.2 (1995) (providing that "[d]ischarge when used without qualification means the 'discharge of a pollutant' " (second emphasis added)), is inapposite. It applies only to parts 122, 123, and 124 of EPA's regulations, which pertain to permits issued pursuant to §402 of the Act (known as NPDES permits, for the National Pollutant Discharge Elimination System established by that section). Id. For purposes of NPDES permits, "discharge" does mean a discharge of a pollutant, i.e., a discharge from a point source. Thus, this rule is not inconsistent with the comparative construction of the terms "discharge" and "discharge of a pollutant" as defined in the CWA and discussed in this part of the article. Nor does the legislative history alter this conclusion. Although the report of the Senate debate on the Conference Committee Report on S. 2770 states that " 'discharge' is a word of art in the legislation [which] refers to the actual discharge from a point source into the navigable waters," the report was distinguishing not between the terms "discharge" and "discharge of a pollutant" but between "direct" and "indirect" discharges (that is, between point source discharges directly to navigable waters and discharges indirectly into waters via publicly owned treatment plants). See LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 178.
164. Cf. Natural Resources Defense Council v. Train, 396 F. Supp. 1393 (D.D.C. 1975), aff'd, Natural Resources Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). The NRDC court concluded, based on the definition of "discharge of pollutant," which refers to point sources, that all nonpoint sources are therefore excluded from the NPDES permit requirement. 3% F. Supp. at 1395 ("[t]hus, all nonpoint sources are excluded"). Conversely, the use in §401 of the statutory term "discharge," as opposed to "discharge of pollutant," should mean that §401 is not limited to point sources.
165. See 33 U.S.C. §1362(16).
166. Similarly, the word pollutant does not appear in the discussion of §401 in the Conference Report accompanying S. 2770, S. REP. No. 1236, 92d Cong. 2d Sess. 138, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 321, nor in EPA's regulations, 40 C.F.R. part 121. On the other hand, a Corps of Engineers regulation, which purports to paraphrase the CWA certification requirement, refers to "any activity that may result in a discharge of a pollutant." See 33 C.F.R. §320.3(a) (1995). The rule's wording might be simply an oversight. Alternatively, the rule may reflect the fact that §404 permits are required specifically for the discharge of dredged material, which is a type of "pollutant." See 33 U.S.C. §1362(6) ("pollutant" includes "dredged spoil"). In any event, because the word "pollutant" does not appear in CWA §401, this regulation must be deemed to take an unjustifiably narrow view of the scope of the certification review.
167. See supra notes 10, 93. See also Natural Resources Defense Council v. Costle, 568 F.2d 1369,1379 (D.C. Cir. 1977) (holding that EPA may not exempt any category of point sources, as defined in the CWA, from regulation).
168. "Administrator" refers to the Administrator of EPA, assigned responsibility for issuing §402 permits; "Secretary" refers to the Secretary of the Army, responsible for the § 404 program. See 33 U.S.C. §§1342, 1344.
169. See, e.g., id. §1341(a)(5).
170. In fact, in documenting the amendment of §401 in 1977 to incorporate references to CWA §303, see infra note 186, the Conference Committee stated that "a federally licensed or permitted activity, including discharge permits under section 402, must be certified to comply with state water quality standards." H. REP. No. 830, 95th Cong., 1st Sess., 96, reprinted in A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977: A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, VOL. 3, at 280, Ser. No. 95-12 (U.S.G.P.O. Dec. 1977) (emphasis added) [hereinafter LEGISLATIVE HISTORY, VOL. 3].
171. 33 U.S.C. §1321.
172. Id. §1321(a)(2) (emphasis added).
173. Cf. Roosevelt Campobello Int'l Park Comm'n v. United States EPA, 684 F.2d 1041,1055-56 (1st Cir. 1982). It is possible that Congress was prompted to adopt a definition of "discharge" that included point source discharges and other "discharges" because it realized that it was exempting from point source status, and hence from regulation under the Act, some "discharges" that result in "pollution"-for instance, runoff from agricultural, silvicultural, mining, and construction activities. See 33 U.S.C. §1314(f). Indeed, the term "discharge" was used by some members of Congress to refer to such runoff. For instance, during the House debate on H.R. 11896, Rep. Wright of Texas stated that §304 called for "the development of guidelines .. . and methods to control nonpoint sources of pollutants, including those from agricultural activities. That would include discharge from livestock operations other than the 'point source' discharge covered in section 502[ ]." LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 645-46 (emphasis added).
174. Pub. L. No. 91-224, 84 Stat. 91 (1970).
175. Pub. L. No. 92-500, 86 Stat. 816 (1972).
176. See de Rham v. Diamond, 295 N.E.2d 763,766 (N.Y. 1973) (citing "any discharge" language in §21(b) of the former statute, 33 U.S.C. §1171).
177. For example, during the Senate debate on the 1970 Water Quality Improvement Act (S. 7), Sen. Jennings Randolph spoke of the Senate Public Works Committee's consultations with an expert advisory panel on such topics as "the impact of land mismanagement from highway construction, from urban development, from mining, or from sanitary landfills"; "biological imbalances created by dredging, thermal pollution, pesticides, and air pollution"; and "problems connected with flooding and dam construction, the effects of building reservoirs, and the use of nuclear energy." 115 CONG. REC. 28,962 (1969). See also H.R. REP. No. 911, 92d Cong., 2d Sess. 106 (1972), reprinted in LEGISLATIVE HISTORY, VOL. I, supra note 29, at 793 (discussing fact that "nonpoint sources of pollution are a major contributor to water quality problems," and that more stringent effluent limitations on point sources may not be sufficient to achieve water quality standards); ADLER ET AL., supra note 1, at 171 ("[NFS] pollution was widely acknowledged as a water quality problem even before 1972"). In the 1972 Amendments, Congress enacted CWA §208(b), which called for areawide waste treatment management plans that would, inter alia, identify nonpoint sources of pollution and establish methods for controlling them "to the extent feasible." 33 U.S.C. §1288(b)(2)(F).
178. WETLANDS AND 401 CERTIFICATION, supra note 13, at 20, 22 (quoting, first, H.R. REP. No. 127, 91st Cong., 1st Sess. 6 (1969), and second, 115 CONG. REC. H9030 (Apr. 15, 1969), and 115 CONG. REC. S28, 958-59 (Oct. 7,1969); emphasis added); see also id. at 22.
179. LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1256 (Sen. Muskie is considered "the key Congressional architect of the Clean Water Act of 1972."). Beverly M. Smith, The Viability of Citizens' Suits Under the Clean Water Act After Gwaltney of Smithfield v. Chesapeake Bay Foundation, 40 CASE W. RES. L. REV. 1, 13 (1989-90)).
180. Pub. L. No. 91-224, §21(a), 84 Stat. 91 (1970). See, e.g., 115 CONG. REC. 9027, 9036, 9050 (1969) (comments of Rep. Reid of New York, stating that §21 was "specifically intended to require that the [AEC] take thermal pollution into consideration when issuing licenses for nuclear generating facilities").
181. 115 CONG. REC. 9027 (1969) (emphasis added); see also id. at 9050.
182. Id. at 9030. See supra note 179 and accompanying text. Other senators and representatives echoed these comments. Sen. Cooper from Kentucky, for example, made it unmistakably clear that many federal activities had been discussed in the context of §21 and that all federal activities were meant to be included: Many Federal activities contribute directly to water pollution and these include such diverse activities as naval vessels discharging sewage and waste into the waters of the United States, dredging activities of the Corps of Engineers, and sewage and waste disposal from Federal facilities of all kinds. Indirectly, the Federal Government contributes to pollution in its licensing activities over such things as nuclear power plants, hydroelectric power plants licensed by the [FPC] and dredge and fill permits issued by the [Corps]. S. 7 will require, without exception, that all Federal activities that have any effect on water quality be conducted so that water quality standards will be maintained. . .. . .. Section 16 of the bill [section 21, as enacted] provides an integrated and comprehensive program designed to require compliance with applicable water quality standards in all Federal activity and federally licensed or permitted activity [sic].... [S]ection 16 makes no exception for any licensed or permitted activity from its operative principle of State certification. Furthermore, section 16 is consistent with, and arises out of the policy of the 1965 [water quality] act that the primary responsibility for controlling water pollution rests with the States. . . . 115 CONG. REC. 28,971 (1969) (emphasis added). See also id. at 28,955 (remarks of Sen. Muskie, describing the bill's "mechanism for insuring that all Federal activities will comply with the philosophy and intent of the Nation's water quality program"); id. at 28,956 (Sen. Muskie, stating that the bill "explicitly requires that all federally supported public works projects and programs be planned, developed and administered with full consideration of their impact on our air, water and land"); id. at 67 (remarks of Sen. Young, indicating that Title II of the bill, including §16, is addressed to "all Federal moneys spent on public works activities which affect the environment"). Rep. Eilberg stated: "Federal agencies which control property or issue licenses and permits for construction or development, have a major role to play in pollution control, since many of these facilities and operations affect water quality. . . . [Section 21] simply means that the Federal Government, in all of its activities, will lead the way in preventing pollution." Id. at 9051 (emphasis added). Similarly, Rep. McEwen of New York stated that the §21(b) certification requirement "applies to anything where a [federal] license is required." Id. at 9027 (emphasis added). McEwen was responding to an implicit suggestion by a colleague that the certification provision was addressed principally to thermal pollution. At least one member of the Senate also believed that §21 was "directed primarily at thermal discharges, and pollution from dredged spoil." Id. at 28,958 (comments of Virginia Sen. Spong). But such views were clearly in the minority. See supra note 181. Moreover, nothing in the language of §21 (b) or the current § 401 gives them credence today.
183. LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1389 (emphasis added).
184. Id. at 1390 (emphasis added).
185. See H.R. REP. No. 911, 92d Cong., 2d Sess. (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 753, 808 ("Section 401 is substantially section 21(b) of the existing law amended to assure that it conforms and is consistent with the new requirements of the [FWPCA]"); accord S. REP. No. 414, 92d Cong., 2d Sess. 69 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1487. See also LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 143, 147 (letter from EPA Administrator Ruckelshaus to President Nixon, in which Ruckelshaus describes §401 as a "State certification mechanism like that now provided by Section 21 of the [FWPCA]"); id. at 852 (letter from Ruckelshaus to House Public Works Committee, noting that "Section 401 is essentially the same as the present section 21(b)"); LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1204, 1393-94, 1487. Accord RODGERS, supra note 13, §4.2, at 25. Section 21 addressed both pollution from federal lands and facilities (in paragraph (a)) and state certification of federally permitted activities (in paragraph (b)). The operative language of §21 (b) was: 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 of the United States, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or if appropriate, from the interstate water pollution control agency having jurisdiction ..., that there is reasonable assurance .. . that such activity will be conducted in a manner which will not violate applicable water quality standards. ... No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided [herein]. § 21 (b) of Pub. L. 91-224, 84 Stat. 91 (1970), reprinted in 1970 U.S.C.C.A.N. 97,116 (emphasis added). The italicized language denotes those provisions that differ from CWA § 401(a)(1). First, §401(a) uses the abbreviated term "navigable waters," defined by the Act as "waters of the United States." 33 U.S.C. §1362(7). Second, §401(a) requires states (or interstate agencies) to certify "that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316 and 1317 of [title 33]." Id. §1341(a). As noted above, the purpose of this revision of §21 (b) was to assure that the certification requirement "conforms and is consistent with the new requirements of the [1972 FWPCA]." LEGISLATIVE HISTORY, VOL. 1. supra note 29, at 808. (Note: The reference to § 1313 was added to this sentence of §401(a) by the 1977 amendments. See infra note 186.) Furthermore, paragraphs (2) through (5) of §21(b) contained provisions substantially similar to those of paragraphs (2) through (5) of §401 (a). In paragraph (5), as in the first paragraph of the certification provision, the phrase "applicable provisions of section 1311, 1312,1313,1316 or 1317 of [title 33]" has replaced the "applicable water quality standards" language of §21(b)(5).
186. H. REP. No. 830, 95th Cong., 1st Sess. 96, in LEGISLATIVE HISTORY, VOL. 3, supra note 170, at 280. This amendment was "intended to clarify the requirements of section 401. It is understood that section 303 is required by the provisions of section 301," which had been included in §401 since 1972. Id. (emphasis added). That water quality standards are a relevant consideration in the certification review process is reflected in the language of § 21(b) in the 1970 Act, see supra note 178, and in the 1972 legislative history. See, e.g., LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 404 ("state certification that appropriate water quality standards and limitations will not be violated"). See also PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1909 (holding that §301 incorporates §303 by reference and quoting legislative history that "[s]ection 303 is always included by reference where section 301 is listed") (quoting 1977 U.S.C.C.A.N. 4471). Accordingly, EPA has provided by regulation that "State certification ... shall include: (1) Conditions which are necessary to ensure compliance with the applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 307 and with appropriate requirements of State law." 40 C.F.R. § 124.53(e)(1) (1995) (emphasis added). See also 114 S. Ct. at 1909 (citing 40 C.F.R. § 121.2(a)(3)).
187. 40 C.F.R. pt. 121 (1995).
188. Pub. L. No. 91-224, 84 Stat. 91 (1970).
189. See WETLANDS AND 401 CERTIFICATION, supra note 13, at iv n.53 (noting, however, that the rules "may have some anomalies as a result").
190. See supra note 177 and accompanying text.
191. 33 U.S.C. §1288 (directing states to prepare areawide waste treatment plans encompassing nonpoint sources of pollution).
192. See infra notes 265-69 and accompanying text (discussing primary role of states in setting water quality standards and combatting water pollution).
193. Section 511(d) of the bill, which became CWA §511(c), 33 U.S.C. §1371(c), concerns the relationship between certifications and review of federal projects pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. §§4321-4370d (1994).
194. 42 U.S.C. §§4321-4370d (1994). NEPA requires, inter alia, that federal agencies assess the environmental impact of any proposed "major federal action." Id. §4332. NEPA, whose passage preceded the 1972 FWPCA amendments by three years, makes no distinction between water pollution caused by point and nonpoint sources.
195. Debate on the provision indicated that the "discharges" and "activities" believed to be subject to §401 included permits issued by the Corps, EPA, AEC, FPC, and other agencies; facilities such as dams; and other activities, such as coal mining. See H.R. REP, 911,92nd Cong., 2d Sess. 406, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 875, 883.
196. See, e.g., H.R. REP. 911, 92d Cong., 2d Sess. 414 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 883 (separate comments of 11 Congressmen); id. at 875 (comments of Reps. Abzug and Rangel, endorsing views of 11 Congressmen, supra). See also LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 606 ("[s]uch a weakening of NEPA should not be allowed").
197. See LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 331-32.
198. Section 511(c), as amended in conference and enacted, specifies that the only "major Federal action[s]" under the CWA that will trigger NEPA review are the issuance by EPA of §201 grants and §402 permits. 33 U.S.C. §1371(c)(1).
199. See id. §1371(c)(2).
200. Section 511(c) is plainly addressed solely to NEPA issues, not to the states' §401 authority generally. EPA Administrator William Ruckelshaus summarized the effect of § 511(c)(1) (as amended by the Conference Committee and ultimately passed) this way: "A State certification under Section 401 or a permit under Section 402 shall be determinative of water quality considerations for purposes of Federal licenses, except that licenses or permits other than those issued under this enrolled bill nevertheless may require an [EIS]." LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 143, 158.
201. Moreover, §401 applies to any federally permitted activity that may cause a discharge, even if it is not a "major federal action" subject to NEPA. See 42 U.S.C. § 4332. Thus, in the realm of water-polluting activities, §401's application is even broader than NEPA's.
202. See, e.g., statement of Rep. Wright in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 538 ("States would have to certify ... that any such discharge would have to comply with the applicable provisions of the 1977,1981 and other goals of this act. Including the "no discharge" and point limitations .... What we are trying to do in all of this is to reduce pollution in streams in the first place"; emphasis added). Cf. 115 CONG. REC. 28,955 (1969) (comments of Sen. Muskie, describing the certification and federal facility provisions of S. 7 as "providing] an orderly mechanism for insuring that all Federal activities will comply with the philosophy and intent of the Nation's water quality program"; emphasis added).
203. "Pollution" is defined in the CWA as the "man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." 33 U.S.C. § 1362(19). According to Professor Rodgers, the Act's "sweeping definition of 'pollution,' with its emphasis on bad effects, is oblivious to the instrumentality of the change for the worse. A physical invasion by foreign matter obviously suffices; but water can become polluted in other ways (by interferences with flow, application of heat, and so on), as the statute recognizes." RODGERS, supra note 13, §4.10, at 145 (emphasis added). Professor Rodgers also says that "[fjor simplicity, the universe of the causes of water pollution should be considered as covered fully by the categories of point and nonpoint sources." Id. EPA's description of NPS pollution is similar: " 'nothing more than a pollution problem not involving a discharge from a point source.' " National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, at 166 n.28 (D.C. Cir. 1982) (quoting EPA memorandum).
204. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900 (1994).
205. The Court stated that 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." 114 S. Ct. at 1907. The first discharge noted by the Court clearly is a point source discharge; the second, however, may not be. First, while discharges of dredged and/or fill material are not always discharges from a point source, see 40 C.F.R. §232.2 (1995) (requiring §404 permits for the discharge of dredged or fill material at specified disposal sites, whether or not from a point source), the discharges involved in constructing the diversion facilities in this case undoubtedly would be point source discharges subject to CWA §404, 33 U.S.C. §1344. See, e.g., Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991); Gorsuch, 693 F.2d at 177. Backhoes, loaders, and/or other heavy equipment would be required in the diversion and construction activities. These types of equipment (or "rolling stock") engaged in such activities have been held to be point sources of pollutants. See, e.g., Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897,922 (5th Cir. 1983); United States v. Larkins, 657 F. Supp. 76,78-79 n.2 (W.D. Ky. 1987), aff'd, 852 F.2d 189 (6th Cir. 1988), cert, denied, 489 U.S. 1016 (1989). The second discharge cited by the Court-water discharged from the tailrace (clearly a "discrete conveyance [such as a] pipe,... tunnel, [or] conduit")-also could be a point source discharge, but only if h has been contaminated by "pollutants." See Gorsuch, 693 F.2d at 165 n.22 (noting that EPA has required §402 permits for grease, oil, or other materials in water passed through a dam via pipes or spillways). The D.C. Circuit held that a dam per se is not a point source, nor is the water simply released from the reservoir to the stream below the dam, unless it has been contaminated by the addition of pollutants from "the outside world," i.e., from sources outside the river. See id. at 175; see also United States ex rel. TVA v. Tennessee Valley Water Quality Control Bd., 717 F.2d 992, 999-1000 (6th Cir. 1983), cert, denied, 466 U.S. 937 (1984). The respondents apparently did not argue that this tailrace water would contain added "pollutants." See Respondents' Brief at *36, PUD No. 1. In sum, the first of the two discharges named by the Court is a point source discharge; the second probably is not.
206. E.g., Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991); Niagara Mohawk Power Corp. v. New York Dep't of Envtl. Conserv., 624 N.E.2d 146 (N.Y. 1993), cert, denied, 114 S. Ct. 2162 (1994); City of Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989); Environmental Defense Fund v. Tennessee Water Quality Control Bd., 660 S.W.2d 776 (Ct. App. Tenn. 1983); State of California ex rel. State Water Resources Control Bd. v. FERC, 966 F.2d 1541 (9th Cir. 1992); National Wildlife Fed'n v. FERC, 912 F.2d 1471, 1483-84 (D.C. Cir. 1990); City of Klamath Falls v. Environmental Quality Comm'n, 851 P.2d 602, 604 (Or. Ct. App. 1993), aff'd, 870 P.2d 825 (Or. 1994); Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274,1279 (Or. Ct. App. 1986); Power Authority v. Williams, 475 N.Y.S.2d 901, 904-05 (N.Y. App. Div. 1984). But see infra notes 214-17 and accompanying text (discussing Commonwealth Dep't of Envtl. Resources v. City of Harrisburg, 578 A.2d 563 (Pa. Commw. Ct. 1990)).
207. 475 N.Y.S.2d 901, 904 (N.Y. App. Div. 1984).
208. Id. (emphasis added).
209. The court noted that under New York law [a] thermal discharge is defined as one which results or would result in a temperature change in the receiving water. Obviously, this regulation is addressed to the effect that the discharge will have on the receiving waters and does not require that the discharge must be of a heated liquid in order to qualify .... Id. at 905 (emphasis in original). While not using the term "nonpoint source pollution," the court in essence rejected the argument that §401 requires a "discharge of a pollutant" (in this case, heat; see 33 U.S.C. §1362(6)). It held instead that the discharge from the dam of uncontaminated water, which would cause thermal pollution and which had been held to be nonpoint source pollution in Gorsuch, 693 F.2d at 166, 168, 183, was subject to the State's §401 authority. See Power Authority v. Williams, 475 N.Y.S.2d at 904-05.
210. See supra note 206.
211. Again, City of Harrisburg can be viewed as an exception. See infra notes 214-21 and accompanying text. Most cases apparently presume the existence of a discharge; hence, they do not discuss whether it originates from a point source or a nonpoint source. Bogardus, supra note 64, at 51.
212. National Wildlife Fed'n v. FERC, 912 F.2d 1471, 1484 (D.C. Cir. 1990). National Wildlife Federation did not cite National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). See supra note 205.
213. In other words, the issue of where the discharge "originated" related solely to determining which state was authorized to certify the dam.
214. 578 A.2d 563, 566-67 (Pa. Commw. Ct. 1990).
215. Id. at 567.
216. Id. at 566.
217. Id. at 567 (emphasis added).
218. 33 U.S.C. §1362(6).
219. 578 A.2d at 567 (emphasis added).
220. See supra note 164 and accompanying text.
221. See 578 A.2d at 566. Cf. Niagara Mohawk Power Corp. v. New York State Dep't of Envtl. Conserv., 624 N.E.2d 146, 150 (N.Y. 1993) ("[w]hatever the outcome in the Supreme Court of the United States [in PUD No. 1], we respectfully reach a different conclusion"), cert, denied, 114 S. Ct. 2162 (1994).
222. Ransel, supra note 13, at 268-69; Ransel & Meyers, supra note 13, at 347; ADLER ET AL., supra note 1, at 203-04,246. Adler et al. also argue, however, that state 401 authority is not adequate and that it should be expanded and clarified by Congress. ADLER ET AL., supra note 1, at 245-46. Ransel and Meyers conclude that "any project that could cause or contribute to a water quality violation should be submitted to the states for section 401 certification." Ransel & Meyers, supra note 13, at 348. But even this characterization of §401's scope is too narrow. An applicant for a federal permit to conduct any activity which may result in a discharge should apply to the proper state for certification; only then can the state determine whether such activity might cause or contribute to violations of WQS. See also 40 C.F.R. §121.24 (1995) (referring to "waters which might be affected by the proposed activity"; emphasis added, thus reinforcing that it need not be certain that a discharge resulting from an activity will affect waters before conditions may be imposed on the activity). Sawyer agrees that nonpoint source impacts should be subject to §401 review, but it is not clear whether he contemplated the application of §401 to a federal activity which involved no point source discharge, but only NFS impacts. See, e.g., Sawyer, supra note 65, at 998 ("certification authority extends to the full activity, not just to point source discharges associated with the activity") (emphasis added).
223. LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1255 (comments of Sen. Muskie, introducing debate on S. 2770, referring to an article by Professor Rodgers).
224. RODGERS, supra note 13, §4.16, at 253 (citing Environmental Defense Fund v. Tennessee Water Quality Control Bd., 660 S.W.2d 776 (Tenn. Ct. App. 1983) (involving certification of a dam, not a point source)). Contra Bogardus, supra note 64. Bogardus's analysis is internally inconsistent and insupportable, however, even without the benefit of the Supreme Court's subsequent decision in PUD No. 1. For instance, she cites as the applicable definition of "discharge" for purposes of §401 the definition of "discharge of a pollutant" in 33 U.S.C. §1362(12), even though the term "pollutant" appears nowhere in § 401. Id. at 46. She later acknowledges the definition of "discharge" in 33 U.S.C. § 1362(16), but attributes no significance to its use of the word "includes" instead of "means," see supra text at notes 158-63, and proceeds with her analysis as if "discharge" and "discharge of a pollutant" were equivalent terms. Id. at 51. Furthermore, she refers to "fish, wildlife and recreation" as "nonwater quality factors." Id. at 88. Indeed, in advice to FERC license applicants seeking to challenge certification decisions, she includes "designated uses" of water in the category of "factors unrelated to water quality"] Id. at 100 (emphasis added). She also contradicts herself regarding the reviewability in federal court of certification conditions. See id. at 95-96. And, despite the clear terms of CWA §301 and the legislative history to the contrary, she declares that "section 402 does not require the discharge to meet water quality standards as a condition to a permit," since CWA §303 is not among the sections of the Act listed in §402(a)(1). Id. at 67 & n.216. Cf. supra note 186 and accompanying text.
225. 33 U.S.C. §1341(a)(1).
226. Id. §1341 (d).
227. See supra part II.A.2.
228. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900 (1994). See supra notes 80-85 and accompanying text.
229. See 33 U.S.C. §1314(f)(2)(F). Hydrologie/habitat modification, or hydromodification, is one of eight categories of NFS pollution identified by EPA. EPA, GUIDELINES FOR THE PREPARATION OF THE 1988 STATE WATER QUALITY ASSESSMENTS 19 (Apr. 1, 1987). Hydromodification includes engineering projects, such as dams and stream channelization, which result in flow changes and which then cause increased sedimentation and habitat alteration. Ohio's certification regulations expressly authorize the state agency to deny certification if "obstructions or alterations in waters of the state will result in adverse long or short term impact on water quality." OHIO ADMIN. CODE 3745-32-05(B) (Anderson 1995). Pennsylvania requires every applicant for certification "for every dam, water obstruction or encroachment" to prepare an environmental assessment of the proposed project. 25 PA. CODE §105.15(b) (1995). See also 40 C.F.R. §230.11(b) (1995) (requiring evaluation of impacts of proposed discharges of dredged or fill material on water circulation, flow, etc.); 33 C.F.R. §320.4 (1995) (requiring, inter alia, consideration of direct and indirect effects of proposed discharges of dredged or fill material on fish and wildlife). For examples of hydromodification BMPs, see, e.g., Hydrologie Modifications Best Management Practices, in WYOMING NONPOINT SOURCE MANAGEMENT PLAN (Oct. 1992).
230. 114 S. Ct. at 1908-09 (citing 33 U.S.C. §1341 (a), (d)).
231. 114 S. Q. at 1909.
232. Id. See supra notes 44-49 and accompanying text.
233. See 114 S. Ct. at 1912-14. Basically, petitioners argued that the CWA governs water quality, not quantity, and therefore a condition regulating stream flow was outside a state's authority under §401. See id. at 1912. The Court declared this distinction "artificial." Id.
234. Id. at 1913.
235. Id. at 1910. See supra notes 59-77 and accompanying text.
236. 114 S. Ct. at 1913 (quoting 33 U.S.C. §1362(19)). The Court did not attempt to link the Act's definition of "pollution" directly to the provisions of §401. Instead, the discussion seemed guided by the notion that any water pollution, resulting from an activity subject to §401 review, was an appropriate object of that review. Indeed, in responding to a further argument by the petitioners, based on §§101 (g) and 510(2) of the Act, the Court stated bluntly that those sections "do not limit the scope of water pollution controls that may be imposed on [water] users .... The certification merely determines the nature of the use to which that proprietary right [i.e., a state water right] may be put under the Clean Water Act." 114 S. Ct. at 1913 (emphasis added).
237. See National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165-66 (D.C. Cir. 1982).
238. 114 S. Q. at 1913 (citing 33 U.S.C. §1314(f) regarding the changes in water flow or circulation that result from dams). The Court noted that EPA regulations also reflect this "concern with the flowage effects of dams and other diversions." Id. (citing 40 C.F.R. § 131.10(g)(4) (1992)).
239. See Ransel, supra note 13, at 268-69; Sawyer, supra note 65, at 997-99.
240. See supra note 206.
241. As discussed above, City of Harrisburg is an exception. See supra notes 214-21 and accompanying text.
242. 684 F.2d 1041,1044 (1st Cir. 1982).
243. Id. at 1056.
244. Id. (quoting 33 U.S.C. §1311(b)(1)(C)).
245. Id. (emphasis in original).
246. 33 U.S.C. §1321 (a)(2) (denning "discharge" to include, inter alia, "any spilling" of oil, but excluding discharges in compliance with an NPDES permit; emphasis added). See supra note 171 and accompanying text.
247. 33 U.S.C. §1370 (emphasis added).
248. Id. §1362(19). See also California v. EPA, 511 F.2d 963, 972 (9th Cir. 1975) (stating that §510 "specifically distinguishes between . . . discharges of pollutants . . . and . . . 'pollution' "), rev'd on other grounds, 426 U.S. 200 (1976).
249. See, e.g., S. 2770, 92d Cong., 2d Sess. (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1685.
250. Id.
251. See, e.g., LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1487, 1685 (report on S. 2770); LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 834, 853 (report on H.R. 11896).
252. S. REP. No. 1236, 92d Cong. 2d Sess. 138 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 321. Although the Conference Report (dated September 1972) indicates that no language requiring compliance with state law had appeared in the clean water bills (S. 2770 and H.R. 11896) prior to the Conference Committee's work, earlier versions of the bills (during the prior session of Congress) had contained such a provision. EPA's comments on those bills are revealing. In a letter to the House Committee on Public Works, dated December 13, 1971, the agency summarized §401(d) this way: "[Certifications] are to assure compliance with . . . 'any other applicable water quality requirement in such State.'... Section 401(d) provides that any certification is to set forth . . . any more stringent requirement under State law as provided for in section 510 of the Act." H.R. REP. No. 911, 92d Cong., 2d Sess. 166 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 853. (EPA's letter is also reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1204.) EPA interpreted this provision as authorizing states to "certify as to ... any applicable State requirement saved under Section 510." H.R. REP. No. 911, 92d Cong., 2d Sess. 166 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 853 (comments of EPA on H.R. 11895 and 11896, submitted to House Public Works Committee). (EPA called H.R 11895 and H.R. 11896 "identical bills." Id. at 834.) The Senate Public Works Committee had summarized the provision as "mak[ing] clear that any water quality requirements established under State law, more stringent than those requirements established under this Act, also shall through certification become conditions on any Federal license or permit." S. REP. No. 414, 92d Cong., 2d Sess. 69 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1487. EPA recommended that "applicable water quality requirement" be defined as "any applicable effluent limitations under Section 301 or 302 of this Act, or prohibition, effluent standard, or pretreatment standard under Section 307 of this Act, or any more stringent water quality requirement under State law as provided in Section 510 of this Act." H.R. REP. No. 911, 92d Cong., 2d Sess. 166 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 853. I was unable to determine more precisely when, or why, this state law/§ 510 language was removed from the clean water bills.
253. S. REP. No. 1236, at 138, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 321 (emphasis added). The language emphasized in the text is identical to the language of §401(d) as enacted, with the trivial exception that the statute says "such certification" (emphasis added).
254. Senate Consideration of the Report of the ConJ. Comm., Exh. 1, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 161, 176. The second sentence quoted in the text calls to mind the qualification in §510, to wit, "except that... such State ... may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the [requirements] under this chapter." 33 U.S.C. §1370.
255. Indeed, Professor Rodgers has said: "Section 401 adds muscle to the no-preemption pretensions of section 510 . . . ." RODGERS, supra note 13, §4.2, at 26 (footnote omitted).
256. See 33 U.S.C. §1341 (d).
257. See supra note 252.
258. According to EPA, the legislative history of §401 (d) "indicates that the Congress meant for the States to impose whatever conditions on the certification are necessary to ensure that an applicant complies with all State requirements that are related to water quality concerns." WETLANDS AND 401 CERTIFICATION, supra note 13, at 23.
259. 33 U.S.C. §1251(d).
260. WETLANDS AND 401 CERTIFICATION, supra note 13, at 23 (emphasis added). Cf. B.C. CODE REGS. 61-101.F.3 (1993) (requiring certifying agency to consider "all potential water quality impacts of the project, both direct and indirect, over the life of the project"); id. 61-101.C.l(c) (requiring certification applicants to describe "all proposed activities associated with the proposed permitted project either directly or indirectly, including planned or proposed future development"); DiRienzo, supra note 107, at 1-2 (stating that the Wyoming "Water Quality Division will... considerf ] all the potential water quality impacts of the project, direct and indirect, over the life of the project"). Moreover, a "State's authority under Section 401 includes consideration of a broad range of chemical, physical, and biological impacts." WETLANDS AND 401 CERTIFICATION, supra note 13, at 6.
261. 33 U.S.C. §1341(a)(3). This paragraph provides in relevant part: The certification obtained ... with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Administrator, . . . the State ... notifies such agency ... that there is no longer reasonable assurance that there will be compliance with the applicable provisions ... of this title because of changes since the construction license or permit certification was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) applicable effluent limitations or other requirements. See also id. §1341(a)(4) (providing for review of the activity by the certifying agency prior to its commencement if the activity is not subject to a federal operating permit).
262. Id. §1341 (a)(5) (emphasis added).
263. Livestock grazing serves as an example. See infra part III. On the other hand, the statute does employ the awkward concept 'operation of an activity' in 33 U.S.C. § 1341 (a)(5), see supra text accompanying note 262, but this should be construed merely as reflecting Congress's intention that states take account of the continuing impacts of any activity to be certified.
264. See Ransel & Meyers, supra note 13, at 348-52 (reaching the same conclusion, based on the language of §401 and legislative history). In fact, these commentators conclude that "the basic letter and intent of section 401 fully support the broadest possible application of the provision." Id. at 352; accord Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274,1279 (Or. Ct. App. 1986) (holding that the State "must include limitations reflecting [State land use] goals and plans in section 1341 certificates to the maximum extent that the CWA allows-that is, to the extent that they have any relationship to water quality"). See also Bangor Hydro-Elec. Co. v. Board of Envtl. Protection, 595 A.2d 438, 442-43 (Me. 1991) (holding that, in "reviewing a forty year [FERC] license for compliance with water quality . . . standards," it was proper for the State to consider goals set forth in the designated uses). The U.S. Army Corps of Engineers' approach to permitting accords with EPA's view of certification, A Corps regulation, which sets forth general policies for reviewing applications for all Department of the Army permits, describes how the agency will evaluate "activities which may adversely affect the quality of waters." 33 C.F.R. §320.4(d) (1995). The rule provides: The evaluation [of the proposed activity's compliance with applicable water quality requirements] should include the consideration of both point and non-point sources of pollution. It should be noted, however, that the Clean Water Act assigns responsibility for control of non-point sources of pollution to the states. Certification of compliance with applicable effluent limitations and water quality standards required under provisions of section 401 of the Clean Water Act will be considered conclusive with respect to water quality considerations.... Id. Note that many of the long-range water quality impacts of Corps-permitted activities, such as dams and wetland fills (collectively labeled "hydromodification"), are nonpoint source pollution. See supra notes 205-29. The rule further provides that the Corps will consider "[a]ll factors which may be relevant," including the proposed project's cumulative impacts and reasonably foreseeable benefits and detriments. 33 C.F.R. §320.4(a) (describing the public interest review process). This rule discloses that both point and nonpoint source impacts of Corps-permitted activities are subject to certification, and that all project impacts-short- and long-term, direct and indirect-should be accounted for in the certification and permitting processes.
265. 33 U.S.C. §1251(b).
266. For example, during the Senate debate on the bill (S. 7) that contained §401's predecessor, Sen. Cooper from Kentucky stated: "[S]ection 16 [which contained the certification and other federal facility requirements] is consistent with, and arises out of the policy of the 1965 [water quality] act that the primary responsibility for controlling water pollution rests with the States." 115 CONG. REC. 28,971 (1969); accord id. ("the [States'] primary responsibility to control water pollution" is "relevant to understanding section 16"). Three years later, in leading off the Senate debate on S. 2770 in November 1971, Sen. Muskie noted that "Federal legislation in the field of water pollution control has been keyed primarily to an important principle of public policy: the States shall lead the national effort to prevent, control, and abate water pollution." LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1255. See also District of Columbia v. Schramm, 631 F.2d 854, 860-61 (D.C. Cir. 1980) (discussing legislative history regarding state-federal authority for the § 402 permit program adopted in 1972).
267. In 1971 EPA Administrator William Ruckelshaus told the Senate Committee on Public Works that "strengthening] the current [water pollution control] law ... can only be done if we preserve the concept of water quality standards. The new law must build upon the existing foundation of water quality standards and employ effluent limitations as a tool for the achievement of those standards." LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1180.
268. See H.R. REP. No. 215, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3313,3322; H.R. CONF. REP. No. 1022,89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3324, 3325-26.
269. See 33 U.S.C. §1313.
270. Respondents' Brief at *16, PUD No. 1 (citing LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 176); id at *16 (noting that in 1977 §401 was amended "to remove any possible doubt 'that state water quality standards would be imposed through §301, and thus certification by the State would include consideration of water quality standards' ").
271. S. REP. No. 414, 92d Cong., 2d Sess. 69 (1972), reprinted in LEGISLATIVE HisTORY, VOL. 2, supra note 116, at 1487, quoted in Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp. 742, 771 (N.D. Miss. 1980).
272. 40 C.F.R. §121.24 (1995). For purposes of its water quality standards rules, EPA defines "[s]erve the purposes of the Act" as meaning, inter alia, "that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water." 40 C.F.R. § 131.2 (1995) (citing CWA §§101(a)(2) and 303(c)). Similarly, the Act's "purpose" may be equated with its "objective," i.e., "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," CWA §101 (a), or it could comprise either or both of the "goals" stated in that section for achieving this "objective," id. §101(a)(1), (2). The EPA certification rule seriously undermines the argument that conditions imposed in certifications must relate solely to water quality standards adopted pursuant to the procedures of CWA §303. See supra note 54 and accompanying text (discussing limit of PUD No. 1 holding).
273. See supra note 260.
274. See 33 U.S.C. §§1288, 1329.
275. See supra text accompanying note 30 for the text of §401(d).
276. 33 U.S.C. §1341(d).
277. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1909 (1994). See supra note 54 and accompanying text. Recall that the Court did not classify state WQS as among the "other appropriate requirements of State law," but instead considered them to be among the "other limitations" to which the statute refers. See 114 S. Ct. at 1909; see also supra text accompanying note 54. But see Ransel, supra note 13, at 268. But the Court used the statutory term "other limitations" to refer also to certification conditions designed to ensure compliance with state WQS. Compounding the confusion, the Court then equated the latter "limitations," i.e., conditions, with "any other appropriate requirement of State law." See 114 S. Ct. at 1909. The Court stated: "A certification requirement that an applicant operate the project consistently with state water quality standards... is both a 'limitation' to assure 'compliance with ... limitations' imposed under §303, and an 'appropriate' requirement of State law." Id. at 1910-11 (emphasis added). The latter construe-tion, however, would seem more in line with the provisions and apparent intent of § 401 (d).
278. 114 S. Q. at 1909.
279. See Niagara Mohawk Power Corp. v. New York State Dep't of Envtl. Conserv., 624 N.E.2d 146 (N.Y. 1993), cert, denied, 114 S. Ct. 2162 (1994). Niagara Mohawk, a FERC case, held that the "any other appropriate requirement[s] of state law," to which the State is limited in formulating certification conditions, consist solely of standards and requirements adopted pursuant to CWA §303. 624 N.E.2d at 151. The court appeared to be influenced in large part by a belief that state review should not interfere with the FERC licensing scheme. The decision preceded the Supreme Court decision in PUD No. 1, which presumably has done much to allay such concerns regarding state interference with FERC licensing.
280. This interpretation is premised on the conclusion that any reference to CWA § 301 incorporates §303. See 114 S. Ct. at 1909. Thus, the language in §401(d), "other limitations . . . necessary to assure that any applicant. . . will comply with any applicable . . . limitations under section 1311," read in connection with §301(b)(1)(C)'s "any more stringent limitation, including those necessary to meet water quality standards," refers to those water quality standards adopted pursuant to §303. 33 U.S.C. §§1311(b)(1)(C), 1341 (d). But see Mobil Oil Corp. v. Kelley, 426 F. Supp. 230, 234 (S.D. Ala. 1976) ("301(b)(1)(C) effectively incorporates into federal law all state water quality . . . law or regulations which are more stringent than otherwise provided by federal law"; emphasis added).
281. Statutory terms should be interpreted without rendering superfluous other provisions in the statute. See Ratzlaf v. United States, 114 S. Ct. 655, 659 (1994).
282. See Arkansas v. Oklahoma, 112 S. Ct. 1046, 1059 (1992).
283. 33 U.S.C. §1341(a)(1) provides that "the State in which the discharge originates or will originate, or, if appropriate,... the interstate water pollution control agency having jurisdiction over the navigable waters" may certify the discharge. But "[i]n any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator" of EPA. Id.
284. 40 C.F.R. §121.24 (1995) (emphasis added).
285. See supra notes 271-74 and accompanying text. See also 40 C.F.R. §124.53(e)(3) (1995) (indicating that appropriate state law requirements include, but are not limited to, state water quality standards). Recognizing (though not conceding the legitimacy of) the argument against the applicability of unapproved standards, EPA has recommended that a state "adopt[ ] water quality standards that include all the water quality related considerations that it wishes to include in the 401 certification review." WETLANDS AND 401 CERTIFICATION, supra note 13, at 27. See also infra notes 324-26 and accompanying text (regarding the "deny/condition" dilemma).
286. Arnold Irrigation Dist. v. Department of EnvtI. Quality, 717 P.2d 1274,1276,1279 (Or. Ct. App. 1986) (emphasis in original).
287. Id. (emphasis added). Contra Fourth Branch Assocs. v. Department of Envtl. Conserv., 550 N.Y.S.2d 769 (N.Y. App. Div. 1989). Arnold Irrigation reinforces the conclusion supra in the text that the certification review embraces nonpoint source pollution. The text of the opinion leaves some doubt as to the plaintiffs' exact concerns about the facility. (The court noted only that the facility would "divert water from the Deschutes River." 717 P.2d at 1276.) But it seems reasonable to assume that, since the State was attempting to impose land use requirements on the project, its concerns related to
288. Friends of the Earth v. United States Navy, 841 F.2d 927, 929 (9th Cir.), inj. dissolved, 850 F.2d 599 (9th Cir. 1988). The case concerned the U.S. Navy's efforts to obtain all necessary approvals to build a home port facility at Everett, Washington. The contested condition was only one of several conditions in the certification.
289. Id. at 936 (noting that the U.S. Supreme Court had rejected the same argument in California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987)).
290. Id. The SMA requires local jurisdictions to adopt Shoreline Management Programs (SMP), which "constitute use regulations for the various shorelines of the state." WASH. REV. CODE §90.58.100(1) (1995). The City of Everett's SMP, with which the Navy objected to complying, governed dredging activities and disposal of dredged spoil. Friends of the Earth, 841 F.2d at 935.
291. 841 F.2d at 935.
292. Id. The Navy apparently did not argue that the Shoreline Management Act did not qualify as "any other appropriate requirement of State law" for purposes of CWA §401.
293. 40 C.F.R. §121.2(a)(4) (1995) (emphasis added). Cf. OHIO ADMIN. CODE ANN. §§ 3745-32-05(C) (Anderson 1995) ("director may impose such terms and conditions . . . as are appropriate or necessary to ensure compliance with the applicable laws and to ensure adequate protection of water quality"). The terms "desirable" and "appropriate" illustrate the broad authority (and discretion) to be accorded certifying agencies.
294. 40 C.F.R. §124.53(e)(1) (1995). Note that this rule uses the terms "applicable," with respect to federal requirements, and "appropriate," with respect to state requirements. This undermines the views of the PUD No. 1 dissenters, Bogardus, and perhaps others that "appropriate requirement of State law" in §401 (d) applies only to conditions related to the sections of the CWA specified in §401 (a). See PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900,1916 (1994) (Thomas, J., dissenting). Consider further the subsequent paragraphs of 40 C.F.R. §124.53: State certification ... shall include:... (2) When the State certifies a draft permit instead of a permit application, any conditions more stringent than those in the draft permit which the State finds necessary to meet the requirements listed in paragraph (e)(1) of this section. For each more stringent condition, the certifying state agency shall cite the CWA or State law references upon which that condition is based. Failure to provide such a citation waives the right to certify with respect to that condition; and (3) A statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards ....
295. Id. §124.53(e)(2)-(3). These provisions indicate that certification is intended to act as a check on the permitting process. They further imply that a certifying state may propose conditions in addition to, but not necessarily more stringent than, conditions already included in the draft permit without identifying the legal basis of such conditions (although states probably would identify the authority for, or otherwise explain, any condition advanced). On the other hand, a "State may not condition or deny a certification on the grounds that State law requires a less stringent permit condition." 40 C.F.R. §124.55(c) (1995) (emphasis added). Cf. 33 U.S.C. §1370 (prohibiting states from adopting less stringent effluent limitations or other limitations or standards than those adopted under the federal act).
296. WETLANDS AND 401 CERTIFICATION, supra note 13, at 23; see also id. at 25-26 ("Congress meant for the States to condition certifications on compliance with any State and local law requirements related to water quality preservation."). See also supra text accompanying note 270. EPA's interpretation of the statute is, of course, entitled to deference. It is also instructive in this regard that EPA has no veto authority over state certification decisions, as it does over state §402 permitting matters, see 33 U.S.C. §1342(c)-(d), or state- or Army Corps of Engineers-issued §404 permits, see id. §1344(c), (j). These disparities highlight the breadth of the states' authority under §401.
297. Dredge-and-fill permits are issued by the U.S. Army Corps of Engineers (or a delegated state) under §404 of the Clean Water Act, 33 U.S.C. §1344.
298. See WETLANDS AND 401 CERTIFICATION, supra note 13, at 23-27.
299. Id. at Appendix D. See also id. at 29 (noting that one state has conditioned certification of nationwide permit by, inter alia, excluding from the permit's coverage isolated or headwater wetlands of known or suspected high value).
300. See id. at 24.
301. See generally ADLER ET AL., supra note 1, at 203.
302. See, e.g., Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1044 (1st Cir. 1982) (noting that the Maine Department of Environmental Protection certified a proposed oil refinery and marine terminal pursuant to §401(a)(1)).
303. E.g., PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1914 (1994) (holding that a state may include minimum streamflow requirements in a 401 certification for a hydroelectric project); Georgia-Pacific Corp. v. Vermont Dep't of Envtl. Conserv., 628 A.2d 944 (Vt. 1992).
304. Alaska Department of Environmental Conservation Certificate of Reasonable Assurance, Beaufort Sea 340, NPACO 071-OYD-2-820562 (Nov. 20, 1984) (401 certification for Sohio Alaska Petroleum Co.'s Endicott Causeway in the Beaufort Sea).
305. Virgin Islands Conservation Soc'y v. Virgin Islands Bd. of Land Use Appeals, 857 F. Supp. 1112, 1122-23 (D.V.I. 1994). Cf. de Rham v. Diamond, 295 N.E.2d 763, 766 n.5 (N.Y. 1973) (describing conditions in the certification of a hydropower project, including monitoring, terminating operations upon the occurrence of WQS violations, and "initiat[ing] any change in the operation of said facility which may be required to halt and reverse any significant salt water intrusion," imposed under 401's predecessor, 33 U.S.C. § 1171(b)); WYOMING 1994 ASSESSMENT, supra note 107, at 293 (stating that many certifications are conditioned upon "implementation of project specific [BMPs], design criteria and/or water quality monitoring and erosion control plans").
306. Miners Advocacy Council v. State Dep't of Envtl. Conserv., 778 P.2d 1126, 1130 (Alaska 1989), cert, denied, 493 U.S. 1077 (1990).
307. Flax v. Ash, 538 N.Y.S.2d 891, 893 (N.Y. Sup. Ct. 1988) (certification was " 'contingent upon the applicant. .. requesting and obtaining all permits, certifications, approvals or authorizations for all stages, phases, and/or locations ... as may be required by federal or state law").
308. Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274,1276,1279 (Or. Ct. App. 1986). Cf. Friends of the Earth v. United States Navy, 841 F.2d 927,929 (9th Cir.), inj. dissolved, 850 F.2d 599 (9th Cir. 1988).
309. See 40 C.F.R. §122.44 (1995). Cf. MINK R. 7001.1470(2) (1995) (providing that § 401 certification conditions "shall be established in the same manner as special conditions are established ... for [NPDES] permits"). The NPDES requirements include such conditions as monitoring requirements, best management practices, and compliance with a CWA § 208(b) water quality management plan-provisions readily adaptable to non-NPDES permits. See 40 C.F.R. §122.44(d)(vii)(B)(6), (i), (k).
310. At least one court has upheld a state's authority pursuant to §401 to require from a federal permit applicant information concerning mitigation measures to be used to demonstrate compliance with water quality standards. Bangor Hydro-Electric Co. v. Board of Envtl. Protection, 595 A.2d 438, 443 (Me. 1991). The State of Maine had concerns about the potential impacts of the FERC project on anadromous fish passage, recreation, and water quality, id. at 441, and had denied certification pending the receipt of sufficient information upon which to assess the project's compliance with state water quality standards. The court held that information concerning mitigation "clearly bear[s] on the attainment of designated uses." Id. at 443.
311. WETLANDS AND 401 CERTIFICATION, supra note 13, at 25 (referring to the guidelines, at 40 C.F.R. pt. 230, for dredge-and-fill activities promulgated by EPA pursuant to CWA §404(b), 33 U.S.C. §1344(b)).
312. Id. This "framework" resembles the approach embodied in the Council on Environmental Quality's guidelines for implementing the National Environmental Policy Act. See 40 C.F.R. §1508.20 (1995).
313. 40 C.F.R. §230.10(b)(1).
314. 33 U.S.C. §1341(a)(1).
315. On the other hand, some information may be as readily available to the agency as to the applicant. See WETLANDS AND 401 CERTIFICATION, supra note 13, at 35-36 (noting that, for wetlands certifications decisions, useful resource information may be available from other agency programs, such as The Nature Conservancy's Natural Heritage Program, U.S. Fish and Wildlife Service's Wetlands Values Data Base, etc.)
316. E.g., 40 C.F.R. §124.85(a)(1) (1995) ("The permit applicant always bears the burden of persuading the Agency that a permit authorizing pollutants to be discharged should be issued and not denied. This burden does not shift."). See also APA, 5 U.S.C. §556(d) (1994) ("Except as otherwise provide by statute, the proponent of a rule or order has the burden of proof.").
317. 33 U.S.C. §1341(a)(1). See also id. §1341(a)(2) ("[i]f the imposition of conditions cannot insure such compliance [with applicable water quality requirements] such agency shall not issue such license or permit"); id. §1341(a)(4) (providing for suspending a license or permit if it is determined that operation of a facility, for which a construction license was certified, will violate water quality requirements); id. §1341(a)(5) (providing for suspending a license or permit upon entering of a judgment that operation of the facility has violated water quality requirements).
318. Both the 1970 and 1972 (current) provisions state emphatically: "No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided [herein]." §21(b)(1), Pub. L. 91-224, 84 Stat. 91; 33 U.S.C. § 1341(a)(1).
319. H.R. REP. No. 911, 92d Cong., 2d Sess. 122 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 753,809 (section-by-section analysis of H.R. 11896; emphasis added). The Senate Public Works Committee explained that §401 continues the authority of the State or interstate agency to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source .... Should such an affirmative denial occur no license or permit could be issued by such Federal agencies as the Atomic Energy Commission, Federal Power Commission, or the Corps of Engineers unless the State action was overturned in the appropriate courts of jurisdiction. S. REP. No. 414,92d Cong., 2d Sess. 69 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1487 (section-by-section analysis of S. 2770; emphasis added). The Senate Report thus reaffirms that this authority was not new, but rather was a continuation of states' power under §21(b) of the Water Quality Act of 1965. See supra notes 185-89 and accompanying text. Some in Congress in 1970 had thought that the provisions of §21 should be even stronger. See, e.g., 115 CONG. REC. 9041 (1969) (comments of Rep. Schwengel of Iowa); id. at 9043 (comments of Rep. Edwards of California).
320. "The existing water quality standards program envisions preventive policies rather than abatement procedures as the best method of pollution control. [The certification] provision of S. 7 applies that policy." 115 CONG. REC. 28,955 (1969) (comments of Sen. Muskie describing S. 7's provisions for certification and federal compliance with water quality standards). See also id. at 28,958 (comments of Sen. Spong: S. 7 "takes a preventive approach toward activities over which the Federal Government already exercises a degree of control"); id. at 28,967 (comments of Sen. Young: "Committee on Public Works recognized that pollution must be controlled at its source before it enters the bodies of water"). This preventive approach also underpins the Clean Water Act prohibition on pollutant discharges unless expressly permitted. 33 U.S.C. §1311 (a) ("Except as in compliance with this . . . title, the discharge of any pollutant by any person shall be unlawful.").
321. 33 U.S.C. §1251(b) (emphasis added).
322. See, e.g., Keating v. FERC, 927 F.2d 616, 624 (D.C. Cir. 1991); United States v. Marathon Dev. Corp., 867 F.2d 96, 99-100 (1st Cir. 1989) (declaring that the "legislative history of section 401 of the Act... confirms that Congress intended to give the states veto power over the grant of federal permit authority for activities potentially affecting a state's water quality"); Mobil Oil Corp. v. Kelley, 426 F. Supp. 230,235-36 (S.D. Ala. 1976) (§ 401 "continues the authority of the state ... to deny a permit"); Power Authority v. Williams, 475 N.Y.S.2d 901 (N.Y. App. Div. 1984) (upholding denial of certification); Miners Advocacy Council v. Department of Envtl. Conserv., 778 P.2d 1126, 1129 (Alaska 1989) (overturning a certification because reasonable assurance of compliance with WQS was lacking), cert, denied, 493 U.S. 1077 (1990); City of Klamath Falls v. Environmental Quality Comm'n, 851 P.2d 602 (Or. Ct. App. 1993) (upholding denial of certification of hydroelectric facility), aff'd, 870 P.2d 825 (Or. 1994). Professor Rodgers has stated: "Section 401 offers a veto power to states with water quality related concerns about the licensing activities of the various federal agencies, including the [EPA, FERC, Corps, and NRC]. A denial of certification can stop the project. ..." RODGERS, supra note 13, §4.2, at 26. See also id. §4.16, at 252; Sawyer, supra note 65, at 993, 1007 (citing the legislative history of certification as revealing Congress's intent to "assure that Federal . . . agencies cannot override state water quality requirements"). See also WETLANDS AND 401 CERTIFICATION, supra note 13, at 15-18 (describing wetland fill cases in which certification was denied).
323. See supra notes 60,69 (noting concerns of dissenters in PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900 (1994)); Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 778 n.21 (1984) (noting that the "ultimate decision whether to issue [a FERC] license belongs to the Commission"; thus, FERC may choose not to issue a license, rather than issue one with certification conditions that it deems inappropriate); Bogardus, supra note 64, at 83-89 (arguing that state §401 authority should be limited to criteria components of state water quality standards). Bogardus, who takes a narrower view of §401 than probably any other commentator, concedes, however, that §401 "grants states authority to veto a federal project." Id. at 45.
324. See Ransel, supra note 13, at 257-60,272-74; Seth Handy, Resurgence of the River Treasure: Jefferson PUD and a Comprehensive Plan for Hydroelectric Power, 20 VT. L. REV. 201 (1995); Laura Underwood, Note, Better Late Than Never: States Regain the Right to Regulate Stream Flows Under the Clean Water Act: PUD No. 1 of Jefferson County v. Washington Department of Ecology, 26 TEX. TECH. L. REV. 187 (1994).
325. WETLANDS AND 401 CERTIFICATION, supra note 13, at 26-27.
326. Id. at 26 (emphasis in original).
327. 33 U.S.C. §1341(a)(1).
328. Id. §1341(d). See 40 C.F.R. §124.53(e)(3) (1995) (indicating that appropriate requirements of state law include, but are not limited to, state water quality standards). See also supra part II.B.2.
329. As noted in the text accompanying note 186, supra, §401 was amended in 1977 to include references to CWA §303. The House Report explained that this was a clarifying amendment: "It is understood that section 303 is required by the provisions of section 301," which had been included in §401 since 1972. H.R. REP. No. 830, at 96, in LEGISLATIVE HISTORY, VOL. 3, supra note 170, at 280. The Supreme Court's endorsement of this legislative history in PUD No. I, see supra note 186, would appear to lay to rest any suggestion that the 1977 amendment's effect was to authorize states, under paragraph 401(a)(1), to deny certification of a proposed activity if it determined that the activity would not comply with water quality standards adopted pursuant to §303, but not to condition the activity, under §401(d), to ensure such compliance. (Indeed, common sense and the "greater includes the lesser" principle support the same conclusion.) In addition, EPA's regulations provide: "State certification ... shall include: (1) Conditions which are necessary to ensure compliance with the applicable provisions of CWA sections 208(e), 301,302, 303, 306, and 307 and with appropriate requirements of State law ... ." 40 C.F.R. § 124.53(e)(1) (1995) (emphasis added).
330. 33 U.S.C. §1341(d) (emphasis added).
331. Section 401 (a) does, however, use the terms "any water quality requirements" and "applicable water quality requirements." See id. §1341(a)(2) (regarding certification of interstate effects; emphasis added).
332. Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274 (Or. Ct. App. 1986). The basis for the State's denial of certification was the applicant's failure to show that its proposed activity would comply with the local land use plan and ordinances. Id. at 1276,1278.
333. See WETLANDS AND 401 CERTIFICATION, supra note 13, at 26 (citing Marmac Corp. v. Department of Nat. Resources, No. CA-81-1792 (Kanawha County, W. Va., 1982)).
334. Id.
335. Id. at 27.
336. Congress apparently did not discuss certification denials based on predicted WQS violations, but it did expressly contemplate conditioning certifications on this basis: "If a State establishes more stringent limitations and/or time schedules pursuant to Section 303, they should be set forth in a certification under Section 401." LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 171 (Senate consideration of the Conference Committee Report on S. 2770). See also supra note 270 and accompanying text (regarding purpose of certification to assure compliance with WQS).
337. See 40 C.F.R. §121.2(a)(3) (1995) (requiring state certification to include a statement of reasonable assurance that activity will be conducted in compliance with applicable water quality standards).
338. 33 U.S.C. §1365.
339. See 40 C.F.R. §124.55(e) (1995) (review and appeals of state certifications "shall be made through the applicable procedures of the State," and not through federal appeal procedures); H.R. REP. No. 911, at 66, 122, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 809 ("If a State refuses to give a certification, the courts of that State are the forum in which the applicant must challenge the refusal . . . ."); id. at 811 (rejecting any intent to authorize EPA to review all state certifications). See also 33 U.S.C. § 1371(c)(2) ("Nothing in [NEPA] shall be deemed to-(A) authorize any Federal agency ... to review ... the adequacy of any certification under section 1341 of this title [CWA § 401]"); Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041,1056 (1st Cir. 1982) (rejecting EPA authority to review state certifications, and citing CWA §511(c)(2)); Keating v. FERC, 927 F.2d 616, 622-23 (D.C. Cir. 1991) (citing cases holding that disputes over certification "are properly left to the states themselves"); United States v. Marathon Dev. Corp., 867 F.2d 96,101-02 (1st Cir. 1989) (holding that nationwide permit #26 was not valid in Massachusetts, and thus not available to defendants, because the State had denied certification, and further holding that challenges to the certification itself or to the process must be brought in state court).
340. Lake Erie Alliance for the Protection of the Coastal Corridor v. United States Army Corps of Eng'rs, 526 F. Supp. 1063, 1074 (W.D. Pa. 1981) (citing U.S.C. § 1371(c)(2)), aff'd, 707 F.2d 1392 (3d Cir.), cert, denied, 464 U.S. 915 (1983)). See also 40
341. C.F.R. §124.55(e) (restricting review of state certification to state procedures); Mobil Oil Corp. v. Kelley, 426 F. Supp. 230, 234 (S.D. Ala. 1976). Cf. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1920 (1994) (Thomas, J., dissenting) ("federal courts have uniformly held that FERC has no power to alter or review §401 conditions, and that the proper forum for review of those conditions is state court").
342. Not all authorities acknowledge these exceptions, suggesting instead that all certification suits belong in state court. See PUD No. 1,114 S. Ct. at 1920 (Thomas, J., dissenting); Ransel, supra note 13, at 274.
343. See United States v. Puerto Rico, 551 F. Supp. 864, 865 (D.P.R. 1982), aff'd, 721 F.2d 832 (1st Cir. 1983). See also WETLANDS AND 401 CERTIFICATION, supra note 13, at i n.6 (apparently referring to Puerto Rico). The United States challenged the Commonwealth of Puerto Rico's denial of certification to naval bombing activities, alleging jurisdiction under 28 U.S.C. §1345 (providing for suits by the United States to be brought in federal district court). Relying partly on the provision in CWA §313, 33 U.S.C. §1323 (concerning federal facilities' compliance with water pollution control laws), which allows for removal to federal court of suits against the federal government, the courts held that the district court did have jurisdiction of the United States' action, despite the fact that the certification involved questions of nonfederal law. See 551 F. Supp. at 868-69.
344. Keating, 927 F.2d at 623-24. Keating held that a state's authority in such circumstances is limited by §401(a)(3) and is reviewable by the federal courts. Id.
345. Lake Erie Alliance, 526 F.Supp. at 1074-75. Jurisdiction in Lake Erie Alliance, which involved two claims with respect to certification under §401, was predicated on 28 U.S.C. §1331 and on the Administrative Procedure Act, 5 U.S.C. §706, not on CWA § 505. 526 F. Supp. at 1066. The court did not hold expressly that it had such jurisdiction over the certification claims, but simply addressed the plaintiff's claim that certification was required.
346. Id. at 1074. See also United States v. Marathon Dev. Corp., 867 F.2d 96,102 (1st Cir. 1989) ("reject[ing] defendants' argument that the discretionary nature of the Massachusetts certification process poses constitutional concerns," while holding that the "proper forum for such a claim is state court"; emphasis added).
347. 33 U.S.C. §1365(a)(1).
348. Id. §1365(f). This definition, including the parts not quoted, is distinctly broader than the definition of "effluent limitation" in §502(11), which is limited to restrictions on point sources. Id. §1362(11). See also Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1,16 n.26 (1981) (noting that the phrase "any effluent standard or limitation" as used in §505(e) is not necessarily limited to the "terms of the FWPCA" but "also could refer to state statutory limitations or to 'effluent limitations' imposed as a result of court decrees under the common law of nuisance"). But see Sierra Club v. Abston Constr. Co., 620 F.2d 41,43 (5th Cir. 1980) (misstating the definition of "effluent limit" for purposes of citizen suits); United States v. Earth Sciences, Inc., 599 F.2d 368, 371-72 (10th Cir. 1979) (making the same error).
349. 33 U.S.C. §1365(a)(2). Note, however, that the civil penalties provision (CWA § 309(d), id. §1319(d)), which is referenced in this paragraph, makes no mention of CWA § 401. Assuming arguendo that §1365(a) precludes district courts from imposing civil penalties for violations of 401 certifications, it does nothing to infringe on the courts' usual equitable discretion. See generally Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982) (stating that "[t]he exercise of equitable discretion . . . must include the ability to deny as well as grant injunctive relief").
350. See Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211, 216 (S.D.N.Y. 1975), aff'd, 532 F.2d 280 (2d Cir. 1976).
351. In fact, some courts, without a nod to CWA §505(f)(5), pronounce that all challenges to 401 certifications belong in state court. E.g., United States v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir. 1989) ("Any defect in a state's section 401 water quality certification can be redressed. The proper forum for such a claim is state court, rather than federal court, because a state law determination is involved."). See also id. at 102 ("reject[ing] defendants' argument that the discretionary nature of the Massachusetts certification process poses constitutional concerns," and holding that the "proper forum for such a claim is state court"). On the other hand, in an early case involving a certification issue, jurisdiction was premised on the CWA citizen suit provision, as well as on the APA and 28 U.S.C. §1331(a). See Save Our Sound Fisheries Ass'n v. Callaway, 387 F. Supp. 292, 297 (D.R.1.1974). The plaintiff alleged that the defendants (federal officials and a government contractor) had violated the CWA by not obtaining certification. Id. at 304-05. The court found jurisdiction proper under the latter statutes, however, and thus found it unnecessary to "reach the question of the applicability of the 'citizen suit' provisions," including the defendants' argument that CWA §505 authorizes suits only for substantive, not procedural, violations of the Act. Id. at 298,299 n.7,300 n.9. The court implied that, but for the then-extant exemption of federal agencies from the certification requirement, the Corps of Engineers' proposed dumping would have been subject to §401. Id. at 306. But its opinion gives no clue as to whether the court would have found, on these facts, a remedy under the CWA citizen suit provision.
352. Two related issues are whether anyone (and if so, whom) can be sued if (1) a project proceeds without 401 certification, or (2) water quality standards are violated despite compliance with the 401 certification. These issues are considered infra.
353. The Senate Public Works Committee's report on S. 2770 contains the following cursory explanation of §505(f): "[CJitizens are granted authority to bring enforcement actions for violations of... provisions of certification under section 401." S. REP. No. 414, 92d Cong., 2d Sess. 82 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1500 (emphasis added). The phrase "provisions of certification" suggests that the Committee was referring to conditions imposed in a certification. (The term would seem to have little if any meaning if applied to a certification that merely professed reasonable assurance that all applicable water quality requirements would be met, and which imposed no conditions.) This interpretation is supported by another statement in the Senate Report: "[A] certification becomes an enforceable condition on the Federal permit or license." Id. at 1487 (emphasis added). It is difficult to see how a certification could be "enforceable" unless it set forth conditions or express requirements. On the other hand, "provisions of certification" (the phrase used by the Senate Committee) arguably could also refer to provisions of the certification process, for instance, the procedures outlined in § 401 (a) or in the implementing regulations. See, e.g., United States v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir. 1989) ("rejecting] defendants' argument that the discretionary nature of the Massachusetts certification process poses constitutional concerns") (emphasis added). The Senate Committee also declared that "the [citizen suit] provision in this bill is carefully restricted to actions where violations of standards and regulations or a failure on the part of officials to act are alleged." S. REP. No. 414, 92d Cong., 2d Sess. 81 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 2, supra note 116, at 1499. The legislative history of §401's precursor, §21(b) of the 1970 Water Quality Improvement Act, contains a few observations concerning judicial review of certifications. Sen. Spong remarked that §21 (b) provided "for the suspension or termination of a certificate in the event a court of competent jurisdiction finds that a facility is operating in violation of water quality standards." 115 CONG. REC. 28,959 (1969). Rep. Edmondson stated that, if an applicant for certification believes "his rights have been interfered with" (e.g., by a denial of certification for reasons other than water pollution), "the judicial procedures available now in the State courts to require action by the State would be available to the applicant. In a case where the [Interior] Secretary is the certifying authority, the Federal courts would be available to the applicant." Id. at 1026. And Sen. Cooper, in discussing S. 7's provisions for certification and federal compliance with state water quality standards, termed "relevant" the existing provision in the law for judicial review of "alleged violations of standards." Id. at 28,971. Most references to the citizen suit provision in the 1972 legislative history, however, are mere recitations of the provisions of §505(f). See, e.g., H.R. REP. No. 911, 92d Cong., 2d Sess. 134 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 821 (section-by-section analysis of H.R. 11896). Substantive debate over the citizen suit provision was apparently limited to discussions of the proper scope of the category of persons or citizens authorized to sue. See, e.g., id. at 162,179 (Senate consideration of the Conference Committee report, noting that the Committee's amendment of the definition of "citizen" in the citizen suit provision was "based on Section 10 of the Administrative Procedures [sic] Act, 5 U.S.C. §702"); id. at 329, 671-75, 821.
354. PUD No. l v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1914 (1994) (referring to §401).
355. 33 U.S.C. §1369.
356. Id. §1365(a), (f)(5).
357. Id. §1341 (d). In other words, construing §505 to allow challenges to certifications results in an anomaly. CWA §509, id. §1369, dictates that appeals of §402 permits issued by the EPA Administrator shall be in the federal circuit courts of appeals. But §505 prescribes that review of an alleged "violation of certification" (which certification becomes a condition on the permit, id. §1341 (d)) shall be in the district courts. This arguable discrepancy could be used to support an argument that only violations of certification conditions (like violations of NPDES permit conditions, see id. §1365(f)(6)), not certifications per se or the certification process, are actionable under §505, with review of both in the district courts. See infra note 384 and accompanying text.
358. One early federal case, Sun Enterprises, Ltd. v. Train, sheds a little light on this issue, although the court's reasoning is far from clear. 384 F. Supp. 211 (S.D.N.Y. 1975), aff'd, 532 F.2d 280 (2d Cir. 1976). The State of New York had certified, and EPA had issued, a §402 (NPDES) permit for a proposed discharge of treated sewage into a stream that bordered plaintiff's property. The plaintiff had challenged the proposed development on numerous grounds, including an allegation that the State's certification was "incomplete." 384 F. Supp. at 220. In response to this allegation, the court stated: "[NJeither the federal nor state defendants could be said to be in violation within the meaning of section 505(a) of the state certification allegedly made here. Review of the action of the state defendants in rendering a certification ... is not, at least in this case, within the jurisdiction of this Court for the reasons set forth [in this opinion]." Id. (emphasis added). The only "reasons" the court gave were, first, that review of a permit issued by EPA may be had only in the federal courts of appeals (under CWA §509), and, second, that review of the certification would "interrupt[ ] the administrative process" and "intrufde] upon the functions of the Court of Appeals and the state courts." Id. The court did not explain what a "violation of ... certification under section 401" might consist of, nor in what kind of case a district court might have jurisdiction to review "the action of [a] state defendant[ ] in rendering a certification." Id. It could be inferred (by a sort of process of elimination) that only a violation of a provision, or condition, of certification by a permittee could, in this court's view, constitute a "violation of ... certification under section 401."
359. See generally supra part II.B.2 (discussing certification conditions).
360. See supra note 351.
361. See 33 U.S.C. §1365(f)(6). See generally O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642, 648 (E.D. Pa. 1981) (suggesting how to interpret the phrase "in violation of an effluent standard or limitation" in §1365(a)(1)); Natural Resources Defense Council v. Train, 510 F.2d 692, 700, 701 & n.46 (D.C. Cir. 1974) (discussing CWA citizen suit provision).
362. Thus, it would seem that a condition of a certification of a §402 permit should be enforceable via §505(f)(5) or 505(f)(6). Congress must have intended the two subparagraphs to encompass different things, however. Otherwise one or the other is "mere surplusage," an interpretation the courts shun. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995); see also Ratzlaf v. United States, 114 S. Ct. 655, 659 (1994) (read statutes to give independent effect to all provisions). Accordingly, §505(f)(5), relating to certification, must encompass certifications of permits other than §402 permits, to which subparagraph (6) pertains.
363. While §505 does not expressly authorize citizen suits for alleged violations of § 404 permits, the Clean Water Act indicates that such was Congress's intent. See 33 U.S.C. §1344(p) (providing that compliance with a §404 permit "shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1317, and 1343"; emphasis added). See also Glicksman, supra note 15, at 117 & n.381 (citing cases in which "courts have permitted [citizen] suits against the Army Corps of Engineers in connection with alleged violations of the dredge and fill permit provisions").
364. See 33 U.S.C. §1341(d).
365. See id. §1365(f)(5), (6).
366. 56 F.3d 979 (9th Cir. 1995), reh'g denied, 1996 WL 30487 (Jan. 24, 1996).
367. 11 F.3d 900 (9th Cir. 1993).
368. 56F.3dat990.
369. Id. at 985 (quoting NPDES permit).
370. Id. at 986.
371. Id. at 987-88 (citing PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1910-14 (1994)). PUD No. 1 was decided after the Ninth Circuit's initial ruling in NEA. The NEA decision on rehearing vindicates Professor Rodgers. Several years earlier he had written: "[W]ater quality standards are part of the grammar of the [NPDES] permit obligations that are the essence of citizen suit oversight. It is true, moreover, that a water quality standard is an example of the sort of preexisting obligation, oft-forgotten, that conforms snugly to the citizen-as-conscience model of citizen suits." RODGERS, supra note 13, § 4.5, at 70 (footnotes omitted).
372. The court also found the legislative history helpful. For instance, it noted that the "Senate Committee first outlined the dual purposes of water quality standards: 'The standards are intended to function ... as a measure of performance . . . [and] to provide an avenue of legal action against polluters. If the wastes discharged by polluters reduce water quality below the standards, actions may be begun against the polluters.' " 56 F.3d at 986 (quoting S. REP. No. 414, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3671).
373. Cf. 40 C.F.R. §121.25 (1995) (authorizing, where several specified conditions met, suspension of a federal license for uncorrected violations of WQS). But see Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 849 (9th Cir. 1987) (ruling that judicial review of violations of WQS by nonpoint sources (logging activities) is available under the APA but not the CWA citizen suit provision). Accord Marble Mtn. Audubon Soc'y v. Rice, 914 F.2d 179,183 (9th Cir. 1990); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F. Supp. 1502 (D. Or. 1991).
374. See infra part III. This interpretation of §§401 and 505 conforms with the provision in §401(a)(5) for suspending or revoking a certified federal license "upon the entering of a judgment under this chapter that such facility or activity has been operated in violation of" several enumerated sections of the Act, including the WQS provisions in §303. This proviso plainly contemplates that certified activities and operations will be subject to suit under the Clean Water Act for violations of WQS. Furthermore, EPA §401 regulations provide, under certain conditions, for suspension of an uncertified federal permit if the permittee cannot come into compliance with subsequently promulgated and applicable WQS. 40 C.F.R. §121.25(a).
375. Cf. Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211, 216, 220-21 (S.D.N.Y. 1975) (reasoning that a certification cannot be challenged before the permit is issued), aff'd, 532 F.2d 280 (2d Cir. 1976).
376. See 33 U.S.C. §1341(d) ("[a]ny certification provided . . . shall set forth any . . . limitations, and monitoring requirements necessary to assure that any applicant . . . will comply with any applicable [requirements]"; emphasis added). See id. §1341 (a)(2). Where a discharge may affect a state other than the state in which the discharge occurs, the permitting agency "shall condition such license or permit in such manner as may be necessary to insure compliance with applicable water quality requirements." Id. (emphasis added). The usual means of assuring such latter compliance would be through the imposition of conditions in the certification. See id. §1341(d). EPA regulations require "reasonable assurance," as opposed to complete, or total, assurance. 40 C.F.R. §121.2(a)(3) (1995).
377. This raises the issue of the appropriate bases for denying and conditioning permits. See supra parts II.B.2 and 3. Recall, however, that the dissenters in PUD No. 1 contended that the majority opinion makes any requirements appropriate. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct 1900,1918-19 (1994) (Thomas, J., dissenting). A similar concern was expressed during debate on the certification provision in H.R. 4148, ultimately enacted as the Water Quality Act of 1970. Rep. Harsha queried whether a "State, for reasons other than water pollution, may refuse to grant such certification." 115 CONG. REC. 1026 (1969). In response, Rep. Edmondson assured him, first, that it could be assumed that the "States and the Federal Government will act in good faith" concerning such matters, and, second, that judicial review would be available to an applicant for certification who believed "his rights [had] been interfered with." Id.
378. 5 U.S.C. §706(2)(A) (1994) (describing scope of review of agency actions under APA).
379. See Miners Advocacy Council v. Department of Envtl. Conserv., 778 P.2d 1126, 1131-33 (Alaska 1989), cert, denied, 493 U.S. 1077 (1990). The Alaska Supreme Court overturned the State's certification, holding that the conditions therein did not provide reasonable assurance that applicable state water quality standards would be met by all mines covered by the permits. Id. at 1138-40.
380. See 33 U.S.C. §1341(a)(1)-(5); 40 C.F.R. §121.21-.28 (1995).
381. Contra Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211, 216 (S.D.N.Y. 1975) (declining to interfere with the administrative process by reviewing the certification), aff'd, 532 F.2d 280 (2d Cir. 1976). See supra note 356. Procedural requirements respecting certification are minimal. The statute sets forth certain notice requirements in 33 U.S.C. § 1341 (a), and EPA and some other federal agencies have promulgated rules concerning the application procedures and processing, the timing of review, etc. See, e.g., 40 C.F.R. pt. 121 (1995) (EPA); 33 C.F.R. pt. 325 (1995) (Corps of Engineers); 18 C.F.R. §4.38 (1995) (FERC).
382. See 33 U.S.C. §1341(a)(1).
383. Id. §1365(a)(1), (f)(5). Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49 (1987), may present an obstacle to citizen suits alleging a violation of the certification process. Gwaltney construed the "in violation of" language of 33 U.S.C. §1365(a) to mean that a plaintiff must allege, in good faith, some ongoing violation. Id. at 64-67. Once a certification has been issued, however, the certification process is complete. At that point it could be argued that any alleged violation of the certification must address the certification document itself, including any conditions. If this interpretation were to hold sway, process violations would appear to be unredressable by means of citizen suits. Cf. Sun Enterprises, Ltd. v. Train, 394 F. Supp. 211, 220 (S.D.N.Y. 1975) (declining to review state's alleged "fail[ure] to make a 'complete' certification"), aff'd, 532 F.2d 280 (2d Cir. 1976). The Sun Enterprises court stated that "State certification is merely a step in the administrative process," and held that "[r]eview by this Court of a state certification under section 401 . . . would not only result in interruption of the administrative process, but would also be an unwarranted intrusion upon the functions of the [federal] Court of Appeals [under CWA §509] and the state courts." 394 F. Supp. at 220. But note: In cases where the United States is certification applicant and plaintiff, jurisdiction can be founded on 28 U.S.C. §1345 (1994). See United States v. Puerto Rico, 721 F.2d 832, 839 (1st Cir. 1983). In Puerto Rico, the United States contested Puerto Rico's denial of certification. Because its suit was brought under 28 U.S.C. §1345, rather than 33 U.S.C. §1365 (indeed the case contains no mention of the CWA citizen suit statute), it did not allege that any person was "in violation of ... certification under section 401." If Gwaltney is given full effect in the certification arena, the United States would seem to be in a better, or at least different, position than other plaintiffs, in that it can pursue in federal court certain claims that nonfederal plaintiffs could bring only in state court, if at all.
384. But see infra note 401 and accompanying text.
385. The statute specifies that if the certifying agency "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application." 33 U.S.C. §1341 (a)(1). States also may "fail to certify" an activity by affirmatively waiving certification. See, e.g., 18 C.F.R. § 4.38(e) (1995) (allowing noncompliance with requirements waived in writing by resource agency); Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp. 742, 771 (N.D. Miss. 1980) (holding that affirmative waivers of §401 requirements are allowed). See infra note 397 and accompanying text. Some agencies, by regulation, prescribe the contents and form of the certification application, e.g., 18 C.F.R. §4.38(b)-(d), (g), (h) (1995) (FERC licenses), and the effective waiver period, e.g., id. §4.38(f)(7)(ii).
386. Cf. 33 U.S.C. §1365(a)(2) (authorizing suits against the EPA Administrator for alleged failure "to perform any act or duty under this chapter which is not discretionary"). This discretion might be analogized to agencies' discretion to exercise their enforcement authority. See, e.g., Administrative Procedure Act, 5 U.S.C. §701(a)(2) (1994) (agency action "committed to agency discretion by law"); Heckler v. Chaney, 470 U.S. 821 (1985). The majority view in the CWA context is that CWA §309, which provides for enforcement, imposes only discretionary duties. See, e.g., State Water Control Bd. v. Train, 559 F.2d 921, 927 & n.34 (4th Cir. 1977) (dictum); Zemansky v. EPA, 16 Envtl. L. Rep. (Envtl. L. Inst.) 20,862 (D. Alaska Apr. 7,1986); Caldwell v. Gurley Refining Co., 533 F. Supp. 252, 255-57 (E.D. Ark. 1982), aff'd, 755 F.2d 645 (8th Cir. 1985); Smith, supra note 179, at 71 ("Case law has established that section 505 does not authorize citizens to compel federal and state regulatory agencies to prosecute law violators."). But see South Carolina Wildlife Fed'n v. Alexander, 457 F. Supp. 118, 134 (D.S.C. 1978) (finding a nondiscretionary duty under § 309(a)(3) once the Administrator "finds" a violation of the Act); accord LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 174. On the other hand, the discretionary authority in §401 may be distinguishable. See infra notes 400-03 and accompanying text. Furthermore, states presumably may override the waiver option, choosing to require the designated agency either to certify or refuse certification to a proposed activity. For example, Oregon law seems to require the agency to either deny or approve certification of hydroelectric projects. See City of Klamath Falls v. Environmental Quality Comm'n, 851 P.2d 602,604 (Or. Ct. App. 1993) (citing OR. REV. STAT. §468B.040), aff'd, 870 P.2d 825 (Or. 1994). Or there may be a requirement in state law, enforceable by citizens, that the state act to protect water quality. For instance, the court in Arnold Irrigation District v. Department of Environmental Quality concluded, on the basis of state land use law, that if the State "grants petitioners' request for a [§ 401] certificate, it must require, as a condition of that certificate, that petitioners comply with the water-related portions of the [applicable] land use regulations." 717 P.2d 1274, 1279 (Or. Ct. App. 1986) (emphasis added).
387. 33 U.S.C. §1341(a)(1) (emphasis added).
388. Id. §1341(a)(4) (emphasis added).
389. Id. §1341 (a)(3).
390. Id.
391. See Flax v. Ash, 538 N.Y.S.2d 891, 892-93 (N.Y. Sup. Ct. 1988) (stating that the CWA "requires that any applicant for a federal permit... must obtain a waiver or certification . . . [which] means that in the instant case, the Navy had to obtain a certificate"). The statute also does not state whether an applicant is responsible for demonstrating a waiver where it has not received a certification. Such a demonstration presumably could not be made unless the applicant could show that the certifying agency had notice-provided either by the applicant or the permitting agency-that a permit was being sought for an activity that might result in a discharge. Two commentators have noted that state water quality agencies "do not seek out applications for certification." Ransei & Meyers, supra note 13, at 345. Cf. 33 U.S.C. §1341(a)(1) (referring to a state's inaction "on a request for certification").
392. See, e.g., supra note 315 and accompanying text.
393. City of Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989) (emphasis added). Cf. 33 U.S.C. 1341(a)(1). The court subsequently noted, however, that the applicant "never made a 'request' for certification within the meaning of FERC's regulations," 876 F.2d at 1111, and stated in a footnote: "We rest our holding solely on our reading of the FERC regulations and do not purport to decide the meaning of 'request' under [§ 401(a)(1)]." Id. at 1111 n.l.
394. E.g., OHIO ADMIN. CODE ANN. §3745-32-03 (Anderson 1995) (providing that filing an application with the Corps for a §404 permit or an RHA §10 permit constitutes application to the State for certification, but requiring applicants for any other permits to submit an application for certification); MINN. R. 7001.1420 (1995) (requiring "[a]ny person who is required by [CWA §401] to obtain a certification . . . [to] make application to the agency"). Cf. 25 PA. CODE §105.15(b) (1995) (referring to "an applicant requesting water quality certification"); WASH. ADMIN. CODE §173-225-030 (1995) (referring to the filing of an application for certification with the department); KAM. ADMIN. REGS. 28-1628f(c)(iii) (1993) (referring to a request for certification by the person proposing the action). It seems reasonable to expect federal agencies to adopt procedures for notifying potential applicants for federal permits that the activities subject to those permits are also subject to §401 review by the respective states. Similarly, states should promulgate rules or, at a minimum, policies, describing their review procedures. On the other hand, §401 contains no requirement that EPA or any other agency issue rules concerning certification procedures. In other words, the statute appears to be self-implementing. Cf. WETLANDS AND 401 CERTIFICATION, supra note 13, at 9, 30 (discussing the advisability of implementing regulations, and observing that many states do not have such rules, but not suggesting that states lack power to exercise their §401 authority absent such rules); Summit Hydropower Partnership v. Commissioner of Envtl. Protection, 629 A.2d 367, 373 (Conn. 1993) ("The procedures that any state need adopt to process §401 water quality certification requests are determined by the statutes promulgated by each state."). See also supra note 108.
395. 40 C.F.R. §121.11 (a) (1995).
396. See, e.g., 33 C.F.R. §325.2(b)(1) (1995) (rules for certification of Department of Army, or Corps, permits); 40 C.F.R. §124.53 (1995) (rules for certification of EPA-issued NPDES permits). The Corps provides that the district engineer will (1) notify the permit applicant if certification is necessary and (2) obtain from the applicant or the certifying agency a copy of the certification. 33 C.F.R. §325.2(b)(1). EPA provides that if it has not received a copy of the certification by the time it has prepared a draft permit, it will send a copy of the draft permit to the certifying agency. 40 C.F.R. §124.53(c).
397. Ransel, supra note 13, at 270 (citing Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11, 1994)). The parties are awaiting a ruling on their summary judgment motions. Personal Communication with Bill Marlett, Executive Director, Oregon Natural Desert Association (Feb. 22,1996).
398. Ransel, supra note 13, at 270. By "waiver," Ransel referred to the provision in § 401(a)(1): "If the state . . . fails or refuses to act on a request for certification, within a reasonable time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application." 33 U.S.C. §1341(a)(1).
399. See 33 U.S.C. §1341(a)(1) (pertinent provision quoted supra note 396).
400. In Environmental Defense Fund, Inc. v. Alexander, 501 F. Supp 742, 771 (N.D. Miss. 1980), the State of Alabama had "decided to waive the requirements of §401." In view of §401(a)(1)'s provision waiving the certification requirements where a state "fails or refuses to act on a request for certification," the court reasoned that it would be "illogical" not to allow "affirmative waivers." Id. Accordingly, the court held that "a state may make an affirmative decision to waive §401 certification." Id. The court cited an exhibit and an affidavit as evidence of the State's decision, but the form or content of its waiver was not apparent from the decision.
401. See supra note 374 and accompanying text. A plaintiff might allege that the state's affirmative waiver was, in effect, a statement of reasonable assurance that the activity as proposed would comply with all applicable water quality requirements, and that this decision was arbitrary. In Alaska Center for the Environment v. Reilly (ACE), the plaintiff argued, and the court held, that the State's failure, over a period of more than 10 years, to submit to EPA pollutant load calculations (called TMDLs) for Alaska waters constituted a constructive submission of no TMDLs, i.e., a submission that no TMDLs were necessary. 762 F. Supp. 1422, 1426, 1429 (W.D. Wash. 1991). TMDLs, or "total maximum daily loads," are required by 33 U.S.C. §1313(d). This failure by the State, the plaintiff argued, had triggered EPA's nondiscretionary duty to adopt TMDLs for the state. 762 F. Supp. at 1426,1429. The court held that EPA did have a nondiscretionary duty, under the circumstances, to establish TMDLs. Id. at 1429 (following Scott v. City of Hammond, Ind., 741 F.2d 992 (7th Cir. 1984)). The court concluded that an inadequate state submission under the statute includes a state's "deliberate, silent inaction." Id. In ACE the plaintiff was suing not the State, for its "constructive submission," but EPA, under 33 U.S.C. § 1365(a)(2), which authorizes suit against the Administrator for an alleged failure to perform any nondiscretionary act or duty. In contrast, in the hypothetical case of a challenge to a state's affirmative waiver of certification, the complaint would allege a "violation of . . . certification," by the state, by virtue of its illegal, or arbitrary, "constructive certification." See id. §1365(a)(1), (f)(5).
402. Scott, 741 F.2d at 998 (referring to a state's failure, over a period of several years, to submit to EPA pollutant load calculations under CWA §303(d)). See also ACE, 762 F. Supp. at 1428 ("it is unlikely that Congress intended an important aspect of the federal water pollution control scheme to be frustrated by the failure of a state to act," citing Scott, 741 F.2d at 997). CWA §§303(d) and 401 (a) differ significantly, however, in that the state's duty under §303(d) seems to be nondiscretionary (the statute repeatedly uses the term "each state shall"), while §401 (a) acknowledges that a state may "fail[ ] or refuse[ ] to act." A further difference is that §303(d), unlike §401(a), imposes a duty on EPA to act if the state fails to adequately perform its duties under the section.
403. See ACE, 762 F. Supp. at 1428 n.7 (citing NRDC v. New York Dep't of Envtl. Conserv., 700 F. Supp 173, 179 (S.D.N.Y. 1988)).
404. See supra note 384 and accompanying text.
405. Cf. RODGERS, supra note 13, §4.16, at 253.
406. See 5 U.S.C, §701(a)(2) (1994).
407. RODGERS, supra note 13, §4.16, at 253.
408. By "permitting decisions" I refer to any of the myriad permits and licenses to which §401 applies, as discussed in part II.B.L, supra.
409. On the other hand, it is true that the "proof" required of the agency may be less extensive in the initial certification decision than in enforcement cases. At the latter point there should be more "hard data" available and thus less need to rely on "guesses," and the burden is on the agency to prove a violation of a certification condition. See infra notes 501-05 and accompanying text.
410. For an example of a reference to the use of modeling in the §401 context, see In re Petition of U.S. Army Corps of Eng'rs for a Dredged Material Placement Regulation, No. R92-17,1994 111. ENV LEXIS 135, at *12-19 (111. Pollution Control Bd. Feb. 3, 1994); S.C. CODE REGS. 61-101.C.l.(c) (1993).
411. As EPA has explained: While the procedure varies from State to State, a State's decision to grant or deny certification is ordinarily subject to an administrative appeal, with review in the State courts designated for appeals of agency decisions. Court review is typically limited to the question of whether the State agency's decision is supported by the record and is not arbitrary or capricious. The courts generally presume regularity in agency procedures and defer to agency expertise in their review. WETLANDS AND 401 CERTIFICATION, supra note 13, at 8 (noting, in a footnote omitted here, that a federal agency applicant may obtain review of a certification decision in federal court). See also Power Authority v. Williams, 475 N.Y.S.2d 901, 903-04 (N.Y. App. Div. 1984) (requiring a rational basis for denying 401 certification); de Rham v. Diamond, 295 N.E.2d 763, 773 (N.Y. 1973) (reviewing record for evidence that State's certification was "rational and reasonable"); Lake Erie Alliance for the Protection of the Coastal Corridor v. United States Army Corps of Eng'rs, 526 F. Supp. 1063,1074 (W.D. Pa. 1981) (indicating that Ohio courts review 401 decisions to determine if they are "reasonable and lawful"). Cf. Hi-Line Sportsmen Club v. Milk River Irrigation Dist., 768 P.2d 13, 16 (Mont. 1990) (rejecting a certification amendment as "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record").
412. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (holding that the APA exception to the general rule of reviewability for action "committed to agency discretion" is "a very narrow exception .. . applicable in those rare circumstances where ... there is no law to apply"), abrogated in part on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
413. The applicable law, enumerated in §401, includes a state's water quality standards. See, e.g., supra note 50 and accompanying text. At least one state court has held that a state has authority, pursuant to §401, "to enforce all water quality-related statutes and rules," potentially including state and local land use plans and laws. Arnold Irrigation Dist. v. Department of Envtl. Quality, 717 P.2d 1274,1279 (Or. Ct. App. 1986) (emphasis in original).
414. Miners Advocacy Council v. Department of Envtl. Conserv., 778 P.2d 1126,1139 (Alaska 1989), cert, denied, 493 U.S. 1077 (1990). The state had certified, as a group and without analysis of individual or site-specific information, 539 NPDES permits for placer mining operations. The permits set an effluent limit (0.2 ml/1) for total suspended solids (TSS) equal to twice the state standard (0.1 ml/1) for TSS in the receiving waters. Id. at 1130. Finding no statutory or regulatory requirement that NPDES permits be certified individually, the court upheld the state's authority to issue such a "blanket" certification, "provided the certification ensures that Alaska water quality standards will be met." Id. at 1133. But the court concluded that the State had not provided reasonable assurance that all placer mines would meet the TSS standard. Specifically, the court found that the State was relying on dilution of the mines' effluent by the water of the receiving
415. Hi-Line Sportsmen Club v. Milk River Irrigation Dist., 768 P.2d 13, 16 (Mont. 1990).
416. E.g., Summit Hydropower Partnership v. Commissioner of Envtl. Protection, 1992 WL 175241 (Conn. Super. Ct. July 20,1992) (holding that the state agency had exceeded its legal authority), rev'd, 629 A.2d 367, 373 (Conn. 1993) (holding that plaintiff was not entitied under state law to a hearing on the denial of its certification request); Commonwealth Dep't of Envtl. Resources v. City of Harrisburg, 578 A.2d 563 (Pa. Commw. Ct. 1990).
417. The "substantial policy and technical uncertainties . .. prompt[ ] a deferential review in the courts. Thus, a noticeable soft glance is extended to certification choices, either to deny or to grant. . .." RODGERS, supra note 13, §4.16, at 253 (footnotes omitted); see also id. at 254 & n.72 (citing case law example "of extreme tolerance not only of the certification choices but also of the methods the agency uses to get there"). See, e.g., Bangor Hydro-Electric Co. v. Board of Envtl. Protection, 595 A.2d 438,443 (Me. 1991); Environmental Defense Fund v. Tennessee Water Quality Control Bd., 660 S.W.2d 776, 781 (Tenn. Ct. App. 1983); City of Klamath Falls v. Department of Envtl. Quality, 851 P.2d 602, 60607 (Or. Ct. App. 1993) (Rossman, J., dissenting) (asserting that majority opinion provides only a few of the relevant facts and affirms "an absurd result"), aff'd, 870 P.2d 825 (Or. 1994). But cf. de Rham v. Diamond, 295 N.E.2d 763, 768 (N.Y. 1973) (applying rational basis test to State's determination, but also holding that State's authority under §401 is very limited).
418. Cf. United States v. Marathon Dev. Corp., 867 F.2d 96, 102 (1st Cir. 1989) ("reject[ing] defendants' argument that the discretionary nature of the [state's] certification process poses special constitutional concerns," and holding that "[a]ny defect in a state's section 401 water quality certification can be redressed" in state court).
419. Prior to the Supreme Court's ruling in PUD No. 1 v. Washington Department of Ecology, 114 S. Ct. 1900 (1994), some Clean Water Act scholars had suggested that, because of conflicting case law in this area, the success of the §401 program hinged on congressional clarification of the statute and the states' powers thereunder. ADLER ET AL., supra note 1, at 205. PUD No. 1, however, should help heal some of the division in the courts and alleviate the hesitancy that may have dissuaded states from exercising their authority more fully. And the divided case law to which Adler et al. referred may be due as much to the failure of states and other parties in earlier cases to argue for broad 401 authority based on a comprehensive evaluation of the statutory language, legislative history, and agency interpretations, as to the (heretofore) lack of a clear precedent.
420. For instance, livestock grazing is conducted on approximately 104 of the 191 million acres managed by the U.S. Forest Service, and 170 of the 178 million acres of lands managed by the Bureau of Land Management (BLM) in the western states, outside of Alaska. See, e.g., GAO, RANGELAND MANAGEMENT: FOREST SERVICE NOT PERFORMING NEEDED MONITORING OF GRAZING ALLOTMENTS 2 (May 1991) [hereinafter FS MONITORING]; GAO, RANGELAND MANAGEMENT: COMPARISON OF RANGELAND CONDITION REPORTS 2 (July 1991) [hereinafter RANGELAND CONDITION REPORTS]; DEP'T OF INTERIOR-BUREAU OF LAND MANAGEMENT, PUBLIC LAND STATISTICS 6 (Sept. 1992); COGGINS ET AL supra note 16, at 688.
421. Sedimentation, or siltation, is literally the process of depositing soil and other materials in surface waters.
422. MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 2. Nutrients are the leading pollutant in lakes. Id. Livestock grazing can result in both siltation and nutrient pollution. See infra notes 427-31 and accompanying text.
423. EPA subdivides agricultural activities into several source categories of nonpoint source pollution, including grazing. MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 15 (table 4).
424. MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 2, 13, 17. Indeed, "[a]griculture is the leading source of water pollution in the United States, even when point source impacts are included in the analysis." Id. at 17. See also Water Pollution: Nearly 40 Percent of U.S. Water Bodies Impaired, EPA Says in Report to Congress, ENV'T REP. CURRENT DEV'TS, Jan. 5, 1996, at 1596 (summarizing National Water Quality Inventory: 1994 Report to Congress, which reports that agriculture is the leading cause of pollution of rivers and lakes).
425. "Rangeland and irrigated cropland problems are significant sources of pollution in western states. In fact, 99.5 and 89 percent, respectively, of the reported river mileage impacted by rangeland and irrigated cropland are found in the 11 western states . . . ." MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 17-18. ("Reported" refers to the states' 1989 NFS assessment reports required by 33 U.S.C. §1329(a).)
426. Preliminary Summary of Findings: Western States Water Council's Nonpoint Source Pollution Survey I-B-2, in NONPOINT SOURCE POLLUTION CONTROL WORKSHOPTECHNICAL ISSUES (July 25-28, 1989) (papers presented at Western States Water Council Conference). This statistic resulted from a survey conducted by the Western States Water Council of its 15 member states (all western states, including Alaska) in 1988.
427. WYOMING 1994 ASSESSMENT, supra note 107, at 10.
428. Id. But cf. MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 16 (reporting that 51-75% of impacts to both Wyoming and Arizona streams are caused by siltation).
429. See, e.g., F. BRANSON ET AL., RANGELAND HYDROLOGY (2d ed. 1981); GRAZING MANAGEMENT: AN ECOLOGICAL PERSPECTIVE (Rodney K. Heitschmidt & Jerry W. Stuth eds., 1991); GAO, PUBLIC RANGELANDS: SOME RIPARIAN AREAS RESTORED BUT WIDESPREAD IMPROVEMENT WILL BE SLOW 11 (1988) [hereinafter RIPARIAN RESTORATION]. LYNN JACOBS, WASTE OF THE WEST: PUBLIC LANDS RANCHING (1991); Braun, supra note 15; FS MONITORING and RANGELAND CONDITION REPORTS, supra note 418.
430. TROUT UNLIMITED, THE INVISIBLE MENACE: AGRICULTURAL POLLUTED RUNOFF IN OUR NATION'S STREAMS 5 (1994). The term "salmonid" refers to any of the various species of trout and salmon. "Riparian areas" can be defined as those areas bordering streams (lakes are sometimes included as well), whose vegetation and hydrology are influenced by the presence of the water in the stream channel or, during dry periods, the elevated water table.
431. Nitrogen and phosphorous are contributed by livestock manure as well as by fertilizers applied to forage crops, such as hay, grown to sustain livestock during nongrazing periods. See AGRICULTURE AND WATER QUALITY IN THE GREAT PLAINS: STATUS AND RECOMMENDATIONS 3 (1992) (Report of Great Plains Agricultural Council Water Quality Task Force). Excess loads of these nutrients can contribute to enhanced growth of algae and eventual consumption of dissolved oxygen in the stream, in a process called eutrophication. See TROUT UNLIMITED, supra note 428, at 3 (citing JAHN & SCHENK, LOW-INPUT SUSTAINABLE AGRICULTURE: POLICY DEVELOPMENTS AND IMPLICATIONS FOR FlSH AND WILDLIFE (Wildlife Mgmt. Inst., 1990)); Deborah Moore & Zach Willey, Water in the American West: Institutional Evolution and Environmental Restoration in the 21st Century, 62 U. COLO. L. REV. 775, 777 n.8 (1991).
432. See GRAZING MANAGEMENT, supra note 427, at 155-56. The protozoan Giardia is a well-known example in the West. Livestock, humans, and some wildlife species are all sources of this water-borne parasite, which can cause severe illness in humans.
433. "Overgrazing [during the late 1800s and early 1900s in the American West] caused millions of acres of grasslands to become desert. Lands which produced grass 'up to your stirrups'. .. became, and remain today [1960] virtual deserts." PHILLIP O. Foss, POLITICS AND GRASS: THE ADMINISTRATION OF GRAZING ON THE PUBLIC DOMAIN 4 (1960). "[E]ven one season of misuse [i.e., more than moderate grazing] may cause degradation and subsequently invasion by exotic annuals, thus predisposing the site to fire. After one or more burns, the diverse native plant community is converted to an impoverished community of exotic annuals." Roger Rosentretter, Displacement of Rare Plants by Exotic Grasses 170, 174, in PROCEEDINGS-ECOLOGY AND MANAGEMENT OF ANNUAL RANGELANDS (U.S. Forest Service, 1994) (Rept. No. INT-GTR-313). "Sites converted to annuals [e.g., by overgrazing] . . . represent low-quality watersheds with increased susceptibility to soil erosion and are prone to desertification ...." Id. at 170. See also COUNCIL ON ENVIRONMENTAL QUALITY, DESERTIFICATION OF THE UNITED STATES (1981).
434. RIPARIAN RESTORATION, supra note 427, at 2, 10.
435. See, e.g.. National Wildlife Fed'n v. Bureau of Land Mgmt., No. UT-06-91-1, at 15 (Dec. 20, 1993) [hereinafter Comb Wash Decision] (stating that overgrazing in the Comb Wash allotment in Utah has increased erosion, damaged the vegetation, and adversely affected recreation and archaeological sites). See also MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 1 ("[wjildlife and recreation are the uses most affected by NPS pollution"); JOHN HORNUNG, NAT'L WILDLIFE FED'N, GRAZING TO EXTINCTION: ENDANGERED, THREATENED AND CANDIDATE SPECIES IMPERILED BY LIVESTOCK GRAZING ON WESTERN PUBLIC LANDS iii (1994).
436. RIPARIAN RESTORATION, supra note 427, at 2. The BLM reports that riparian areas constitute 8.7% of all public lands that it manages, but this figure accounts for Alaska. When Alaska is excluded (its riparian acres account for more than 6 million of the 6.9 million riparian acres on public lands nationwide), the national percentage of riparian lands decreases to less than 0.5%. See DEP'T OF INTERIOR-BUREAU OF LAND MANAGEMENT, MANAGING THE NATION'S PUBLIC LANDS 19 (FY 1992 Annual Report); PUBLIC LAND STATISTICS 1991, supra note 418, at 6, 38. In some western states, riparian areas comprise a large fraction of the state's total wetlands. See, e.g., WYOMING 1994 ASSESSMENT, supra note 107, at 294 ("because a large percentage of wetlands are [riparian], wetland management is roughly equivalent to riparian management").
437. See David Wann & Jack Wilbur, Agricultural Sediment: The Case of Otter Creek, 17 EPA J. 11,12 (Nov./Dec. 1991). According to the Wyoming DEQ, "[rjiparian zones are the most environmentally significant lands within a watershed." WATER QUALITY DIVISION, WYOMING DEP'T OF ENVTL. QUALITY, WYOMING NONPOINT SOURCE MANAGEMENT PLAN 71 (1989) [hereinafter WYOMING NPS PLAN] (draft plan, approved by EPA in all respects but grazing). This is, of course, equivalent to saying that riparian areas are, collectively, the most environmentally significant lands.
438. RIPARIAN RESTORATION, supra note 427.
439. Id.
440. See id. at 10.
441. Id. at 8. The agency determined that "many thousands of miles of riparian areas ... need restoration." Id. at 18. The BLM has set a goal "to get 75 percent of the riparian (streamside)-wetland acres on BLM lands into proper [functioning] condition by 1997." MANAGING THE NATION'S PUBLIC LANDS, supra note 434, at 17, 19. Ongoing controversy marks the condition of public rangelands in general. Some claim that current range conditions are the best they have been this century. RANGELAND CONDITION REPORTS, supra note 418, at 6 (citing THADIS Box, RANGELANDS, NATURAL RESOURCES FOR THE 21ST CENTURY 113-18 (1990)); S. 1459 §101(a)(2) (Sen. Domenici's 1996 livestock grazing bill). Others cite less optimistic statistics, such as the stable or declining trend of much of the range. E.g., RANGELAND CONDITION REPORTS, supra note 418, at 3-4 (reporting that NRDC concluded that over 68% of BLM rangelands were in unsatisfactory condition); JACOBS, supra note 427. Conversely, a GAO official testified that, while the trend is that most public rangelands are stable or improving, the condition of more than half those lands is only poor or fair, and 20% of allotments are overstocked and hence susceptible to further damage. GAO, MANAGEMENT OF PUBLIC RANGELANDS BY THE BUREAU OF LAND MANAGEMENT, TESTIMONY OF JAMES DUFFUS III, ASSOCIATE DIRECTOR, BEFORE THE SUBCOMM. ON NATIONAL PARKS AND PUBLIC LANDS OF THE HOUSE COMM. ON INTERIOR AND INSULAR AFFAIRS, Attachment I, at 2, 5-6 (1992) [hereinafter GAO TESTIMONY]. Jacobs summarized recent (and nearly contemporaneous) reports done by BLM itself; by GAO, based on surveys of BLM range managers; and by NWF and NRDC, using data from EISs prepared by BLM during 1978-85. These three studies revealed that 2.4-6% of BLM range is in excellent condition; 23-30% is in good condition; 31-42% is in fair condition; and 12-26.4% is in poor condition. BLM range managers further reported that they did not know the condition of 14% cf the range. JACOBS, supra note 427, at 491. See also RANGELAND CONDITION REPORTS, supra note 418, at 3 (citing same studies).
442. RIPARIAN RESTORATION, supra note 427, at 11.
443. Id. at 3,19. "Livestock management" includes fencing to restrict cattle access to streams and/or herding animals to limit the area or duration of their use. Id. at 3. See also Tony Davis, The Southwest's Last Real River: Will It Flow On?, HIGH COUNTRY NEWS, June 12,1995, at 1,10 (discussing creation of nation's first Riparian Conservation Area on San Pedro River in Arizona, and the successful revegetation and bird repopulation achieved after cattle were removed from the river). "[S]o many other areas in the West also would respond dramatically if [land managers] were to remove cows." Id. at 10.
444. Forest Service grazing permits are issued under the general authority of 16 U.S.C. § 551 (1994), 43 U.S.C. §1752 (1994), and 36 C.F.R. §§222.3-.4 (1995). BLM issues grazing permits per 43 U.S.C. §§315b and 1752 (1994), and 43 C.F.R. subpart 4130 (1995). See also infra note 460.
445. See 16 U.S.C. §§528-529,1601,1604 (1994); 43 U.S.C. §§1712,1732,1901 (1994). A thorough examination of the agencies' statutory mandates and guiding regulations is well beyond the scope of this article. Many valuable articles and treatises are available to the reader who wishes to explore this area further. See, e.g., GEORGE C. COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW (1995); Scott W. Hardt, Federal Land Management in the Twenty-First Century: From Wise Use to Wise Stewardship, 18 HARV. ENVTL. L. REV. 345 (1994); Richard Whitman, Clean Water or Multiple Use? Best Management Practices for Water Quality Control in the National Forests, 16 ECOLOGY L.Q. 909 (1989).
446. See, e.g., Comb Wash Decision, supra note 433; JACOBS, supra note 427; Joseph M. Feller, What is Wrong with the BLM's Management of Livestock Grazing on the Public Lands?, 30 ID. L. REV. 555 (1993-94); RIPARIAN RESTORATION, supra note 427, at 2, 10; GAO, RANGELAND MANAGEMENT: MORE EMPHASIS NEEDED ON DECLINING OR OVERSTOCKED GRAZING ALLOTMENTS (1988) [hereinafter DECLINING AND OVERSTOCKED ALLOTMENTS]; Steve Hinchman, Turmoil on the Range, HIGH COUNTRY NEWS, Jan. 24,1994, at 1,11 (citing citizen challenges to grazing plans both "in the courts and on the ground"). See also GAO TESTIMONY, supra note 439, Attachment I, at 5-6 ("[BLM] is often more concerned with meeting the immediate needs of its livestock permittees than with ensuring the longer-term, broader-based viability of the resource").
447. 33 U.S.C. §§1288, 1329.
448. See generally Robert Beck, Water Pollution and Water Quality: Legal Controls, in 3 WATERS AND WATER RIGHTS 202-03 (2d ed. 1984);
449. Daniel R. Mandelker, Controlling Nonpoint Source Water Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479 (1989).
450. For water quality planning under CWA §303, EPA has defined "best management practices," or BMPs, as: Methods, measures or practices selected by an agency to meet its nonpoint source control needs. BMPs include but are not limited to structural and nonstructural controls and operation and maintenance procedures. BMPs can be applied before, during and after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters. 40 C.F.R. §130.2(m) (1995).
451. See, e.g., 33 U.S.C. §1288(b)(2)(G) (calling for areawide waste treatment management plans, which shall "set forth procedures and methods (including land use requirements) to control to the extent feasible [nonpoint sources of pollution]"); id. § 1329(b)(2)(A)-(B) (mandating state NFS management programs, which shall include "[a]n identification of [BMPs] which will be undertaken" and "[a]n identification of programs (including, as appropriate, nonregulatory or regulatory programs . . . ) to achieve implementation of [BMPs]"; emphasis added). Wyoming's approach to NPS pollution may be typical of western states'. Wyoming DEQ, the state agency charged with NPS pollution control, wrote: [Wyoming's] 1988 Nonpoint Source Assessment [required by CWA §319(a)] identified several land use activities which result in water quality impairment in Wyoming. Rather than allow the federal government to step in and dictate a program to our mining, oil and gas, construction, timber, and agricultural industries, the state chose to develop a voluntary program using education, public information, and financial assistance to demonstrate the benefits of nonpoint source pollution control. Beth Pratt, Why a Nonpoint Source Plan for Wyoming?, CLEAN WATER WAYS, Oct. 1991, at 3. The threat of federal intervention perceived by the State, however, is imaginary§ 319 gives no federal agency the authority to "step in" and devise an NPS program for a state if it does not adopt one itself. See also WYOMING NPS PLAN, supra note 435, at 7; Whitman, supra note 443, at 942-43 (both making same mistake). One wonders whether the State would have prepared any program had it correctly interpreted the federal statute.
452. See generally John H. Davidson, The 1987 Nonpoint Source Pollution Amendments and State Progress Under the New Program, in WATER QUALITY CONTROL: INTEGRATING BENEFICIAL USE AND ENVIRONMENTAL PROTECTION (June 1-3, 1988) (short course sponsored by the Natural Resources Law Center, University of Colorado, Boulder); Mandelker, supra note 446.
453. TROUT UNLIMITED, supra note 428, at 10.
454. Cf. DECLINING AND OVERSTOCKED ALLOTMENTS, supra note 444, at 49-50 (documenting little increase in financial investment by permittees participating in experimental stewardship program, despite significantly increased BLM funding).
455. The Forest Service has, however, adopted silviculture BMPs, which it includes where appropriate as conditions in timber contracts. FOREST SERVICE MANUAL 2509.22 (SOIL AND WATER CONSERVATION PRACTICES HANDBOOK) (adopted in WYOMING DEP'T OF ENVTL. QUALITY, SILVICULTURE BEST MANAGEMENT PRACTICES (Sept. 1992)). See also Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688,697 (9th Cir. 1986) (stating that BMPs are "merely a means to achieve the appropriate state Plan water quality standards"), rev'd sub nom. on other grounds, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).
456. RIPARIAN RESTORATION, supra note 427, at 51 (emphasis added). The following examples of BMPs applicable to grazing reflect the emphasis on animal management: 1. grazing rotation-moving livestock among pastures and limiting the time spent in (or forage removed from) each pasture 2. location of salt or other supplements to disperse livestock and attract them away from waterbodies 3. installing ponds or tanks to substitute for streams used by livestock for water 4. seasonal grazing 5. fencing 6. runoff diversion structures, such as retention dams 7. manure containment structures 8. judicious use of pesticides and fertilizers, including amount, timing (date and time of day), formulation, and application method 9. Integrated Pest Management (IPM) See TROUT UNLIMITED, supra note 428, at 8-10; Davidson, supra note 449, at 40. None of these practices or ideas is new. As Professor Davidson observed, "Most have been around since the 1930's as have Soil Conservation Districts." Id.
457. In the grazing context, see, e.g., Foss, supra note 431, at 198-200; JACOBS, supra note 427; DENZEL FERGUSON & NANCY FERGUSON, SACRED Cows AT THE PUBLIC TROUGH (1983).
458. RIPARIAN RESTORATION, supra note 427, at 46-49. See also GAO, RANGELAND MANAGEMENT: BLM EFFORTS TO PREVENT UNAUTHORIZED LIVESTOCK GRAZING NEED STRENGTHENING (Dec. 1990). The GAO authors were told by BLM field personnel that "[grazing] permittees are managing BLM," not vice versa, RIPARIAN RESTORATION, supra note 427, at 46-47; that "riparian areas remain in generally poor condition" because BLM managers "fear the political power wielded by certain permittees" and so "have not taken strong action on ... compliance problems," id. at 47; and even that a local manager had been told by his supervisor to "apologize to [a] permittee" whom the manager had ordered to stop unauthorized cutting of trees in a riparian area "and [to] deliver the wood to his ranch"! Id. After describing the success of the relatively few riparian restoration projects, the GAO report's authors also observed (one cannot but wonder whether with tongue in cheek): "Surprisingly, however, considering that the lands involved are federal, not private, obtaining comparable cooperation or enforcement in other locations has not been achieved. In these instances, ranchers question the value of riparian improvement efforts and effectively oppose any restrictions on their livestock's access to riparian areas." Id. at 51 (emphasis added).
459. See, e.g., RIPARIAN RESTORATION, supra note 427, at 20-28, 56, 63-64, 69.
460. See, e.g., id. at 26, 32, 59, 62.
461. See, e.g., id. at 20, 22, 30, 61, 71.
462. See supra note 442.
463. 33 U.S.C. §1341(a)(1). Forest Service grazing permits are issued under the general authority of 16 U.S.C. §551,43 U.S.C. §1752, and 36 C.F.R. §§222.S-.4 (1995). BLM issues grazing permits per 43 U.S.C. §§315b and 1752, and 43 C.F.R. subpart 4130 (1995). The Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §1702(p), defines "grazing permit and lease," for purposes of both agencies, as "any document authorizing use of [the respective lands] for the purpose of grazing domestic livestock." See also 36 C.F.R. §222.1(b)(5) (1995). BLM grazing "leases" are authorized by 43 U.S.C. §315m (1994). The only difference (other than the specific statutory authority) between leases and permits is that permits authorize use "within," while leases authorize use "outside," grazing districts established under 43 U.S.C. §315. See 43 C.F.R. §4100.0-5 (1995). As functionally equivalent authorizations, both should be treated as "licenses or permits" for purposes of §401 certification. Professor Feller has suggested that a grazing permit should qualify as an APA "license." Joseph M. Feller, Grazing Management on the Public Lands: Opening the Process to Public Participation, 26 LAND & WATER L. REV. 571, 584 n.105 (1991). It should also qualify as a "Federal license or permit" for purposes of CWA §401.
464. 33 U.S.C. §1341(a)(1).
465. See supra note 120 and accompanying text (discussing the extremely broad definition and interpretation of "navigable waters" under the Clean Water Act). Certification should apply to all permits except those on allotments where water must be hauled in or where water is pumped from a well into metal tanks. (If pumped groundwater is stored in earthen ponds or tanks and has thus created an artificial wetland, however, that wetland may nonetheless qualify as a "navigable water" entitled to protection under the CWA, including §401. See, e.g., Leslie Salt Co. v. United States, 896 F.2d 354, 357-59 (9th Cir. 1990), cert, denied, 498 U.S. 1196 (1991)). But see 51 Fed. Reg. 41,206, 41,217 (1986) (Corps comments on final §404 rules, noting that artificial ponds "used exclusively for ... stock watering" are generally excepted from definition of "navigable waters").
466. As discussed in detail in earlier parts of this article, there is no requirement that the "discharge" be a "discharge of a pollutant." Nevertheless, concentrated animal feeding operations (CAFOs) are expressly identified in the CWA as point sources of pollutants. 33 U.S.C. §1362(14). One commentator has suggested that water gaps and other areas where livestock concentrate adjacent to water can be analogized to, and perhaps should be regulated as, CAFOs. Braun, supra note 15, at 71 n.88. Public land grazing operations, however, probably do not qualify as CAFOs as defined by EPA. See 40 C.F.R. §122.23 & pt. 122 app. B (1995).
467. "[OJnce the threshold condition, the existence of a discharge, is satisfied," the agency is authorized under §401 (d) to impose "additional conditions and limitations on the activity as a whole." PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900,1909 (1994) (emphasis added). See also supra parts II.B.l and 2.
468. See supra notes 427-41 and accompanying text.
469. Cf. PUD No. 1, 114 S. Ct. at 1909 (stating that §401 authorizes states to impose additional conditions once the existence of a discharge is established). Cf. S.C. CODE REGS. 61-101.F.5. (1993) (requiring denial of certification if the proposed activity "permanently alters the aquatic ecosystem," "adversely impacts waters containing State or Federally recognized rare, threatened, or endangered species," or "adversely impacts special or unique habitats"); In re Petition of Silver Star Hydro, Ltd., No. WQ 92-03,1992 Cal. ENV LEXIS 3, at *14, *19 (State Water Resources Control Bd. Mar. 19,1992) (affirming denial of certification for, inter alia, applicant's failure to sufficiently document occurrence of rare plants in project area or effects of proposed project on vegetation, including riparian vegetation).
470. Complaint 1 1, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11,1994). The suit was brought under the CWA citizen suit provision, CWA §505,33 U.S.C. §1365. The plaintiffs alleged that "Camp Creek suffers from degraded water quality due to grazing. Water quality problems in Camp Creek caused in whole or in part by grazing include . .. increased sediment, increased summer and decreased winter temperatures, and the presences [sic] of fecal coliform and fecal streptococci." Id. 119. The plaintiffs' "precise claim" was that "it is a violation of §401 to issue a license or permit without requiring 'certification under §401.' " Plaintiffs' Memorandum in Opposition to Defendant's and Defendant-Intervenors' Motions for Summary Judgment, and Judgment on the Pleadings at 25, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11, 1994) (citing 33 U.S.C. §1365(5)(f)). See supra note 345 and accompanying text (discussing §505 and how it may apply to certifications).
471. Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 9, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11,1994) (citing Federal Defendant's Answer to Plaintiff Intervenor's Complaint at 1 16).
472. See Memorandum in Support of the United States Forest Service's Motion for Judgment on the Pleadings and in the Alternative for Summary Judgment at 2, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed Dec. 15,1994) [hereinafter Defendant's Memorandum]. After initially arguing that §401 applies solely to point source discharges, the Forest Service subsequently amended its position and asserted that §401 "should be read to apply only to a limited set of three specific nonpoint sources - dams, agricultural storm water discharges, and irrigated agriculture return flows." Plaintiffs' Memorandum in Opposition to Defendant's and Defendant-Intervenors' Motions for Summary Judgment, and Judgment on the Pleadings at 5, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11, 1994) (citing Forest Service's Motion on the Pleadings at 24). The agency's argument is premised on a distinction among nonpoint sources between (1) diffuse runoff and (2) discharges from conveyances that Congress has excepted from point source status. Defendants' Memorandum at 5. According to the Forest Service, "discharge" as used in §401 encompasses the latter but not the former: " '[Discharge' in section 401 (a) means addition of pollutants by means of conveyance facilities such as pipes ...." Id. at 24. This argument converts the CWA's (and EPA's) point source-nonpoint source dichotomy into a trichotomy. No support for this distinction can be found in §401; indeed, the certification statute contains neither of the key terms "conveyance" or "pollutants." Moveover, the Forest Service's construction is inconsistent with the interpretation of the agency charged with administering the CWA. See supra note 203. Nor did the Forest Service attempt to reinforce its argument by suggesting what exempted point sources, i.e., "irrigated agriculture return flows" or "agricultural stormwater discharges," are subject to federal permitting and thus reviewable under §401.
473. Memorandum in Support of Plaintiffs' Motion for Summary Judgment at 19, Oregon Natural Desert Ass'n v. Thomas, No. 94-522 (D. Or. filed May 11,1994) (quoting OR. ADMIN. R. 340-48-005; emphasis in memorandum).
474. Personal communication with Bill Marlett, Executive Director, Oregon Natural Desert Association (Feb. 22, 1996).
475. According to at least one commentator: "[FJree market economics is driving all but some of the wealthiest public-land ranchers out of business.... Without support from the government, which provides roads, water and forage to ranchers for little or, in some cases, no fees, many cattle operations would leave public land, some experts believe." Timothy Egan, Grazing Bill to Give Ranchers Vast Control of Public Lands, THE NEW YORK TIMES, July 21, 1995, at Al, C18. See also JACOBS, supra note 427, at 380 (noting, inter alia, that federal expenditures on ranching programs exceed grazing permit fee revenues to the U.S. Treasury by 10 times). Indeed, instead of relying on economics, both ranchers and agencies often cite maintenance of the ranching lifestyle and cultural traditions to justify continuing grazing programs. GAO, RANGELAND MANAGEMENT: BLM's HOT DESERT PROGRAM MERITS RECONSIDERATION 3, 49-50 (Nov. 1991); JACOBS, supra note 427, at 500-01, 504-05.
476. See Taylor Grazing Act, 43 U.S.C. §315b (1994) ("grazing privileges ... shall not create any right, title, interest, or estate in or to the lands"); FLPMA, 43 U.S.C. §1752(h) ("Nothing in this Act shall be construed as modifying in any way [existing law] with respect to the creation of right, title, interest or estate in or to public lands or lands in National Forests by issuance of grazing permits and leases.").
477. No one doubts that the chemical industry, for example, should pay for preventing or controlling its pollution. But agriculture has escaped such accountability. As the Agriculture Branch Chief for the Federal Office of Management and Budget (OMB) put it: "For any other sector of the economy, allocating the financial burden for prevention of contamination is an easily settled matter: The polluter pays and is compelled to do so through regulation." Susan Offutt, The Issues and the Policy: View from OMB, 17 EPA J. 28, 30 (Nov./Dec. 1991).
478. Even 30 years ago, the President's Science Advisory Committee stated: "The public should come to recognize individual rights to quality of living, as expressed by the absence of pollution, as it has come to recognize rights to education, to economic advance, and to public recreation .... There should be no 'right to pollute.' " 115 CONG. REC. 28,962 (1969) (Sen. Randolph, quoting Committee's 1965 Report; emphasis added). Yet the Nation persists in excusing agriculture from pollution controls, including those required of other industries. See, e.g., 33 U.S.C. §1342(1)(1) (exempting irrigation return flows from §402 permit requirement); id. §1362(14) (excepting irrigation return flows and agricultural stormwater discharges from definition of point source); 42 U.S.C. §6903(27) (1994) (Resource Conservation and Recovery Act (RCRA) exemption of solid or dissolved materials in irrigation return flows from definition of solid waste); id. § 9601(14)(C) (Comprehensive Environmental Response, Compensation, and Liability Act definition of hazardous substance, incorporating RCRA exemptions).
479. 33 U.S.C. §1251(b) (emphasis added).
480. Id. §1251(a).
481. The federal facilities section states: Each department, agency, or instrumentality of the ... Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity ... which may result, in the discharge or runoff of pollutants,. .. shall be subject to, and comply with, all Federal, State, interstate, and local requirements . . . respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity .... Id. §1323(a). See also Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 848 (9th Cir. 1987) (stating that CWA "requires all federal agencies to comply with all state requirements," and citing 33 U.S.C. §1323); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417,1424 (9th Cir. 1989) (stating that "[t]he CWA also requires states to implement water quality standards with which federal agencies must comply," and citing §§1313, 1323).
482. With respect to the Forest Service, see Multiple-Use, Sustained-Yield Act, 16 U.S.C. §528 (1994) ("national forests are established and shall be administered for ... watershed . . . purposes"); id. §475 (national forests are established "for the purpose of securing favorable conditions of water flows"); National Forest Management Act, 16 U.S.C. §1604(e)(1) (1994) (forest plans shall "provide for multiple use and sustained yield of the products and services obtained [from the forests, including] . . . watershed"); id. § 1604(g) (Agriculture Secretary shall promulgate guidelines (1) providing for obtaining inventory data on soil and water, (2) specifying guidelines for plans to "insure consideration of [and] provide for... watershed," and (3) insuring that timber will be harvested only where waterbodies are protected and watershed conditions are not "irreversibly damaged"). With respect to BLM, see 43 U.S.C. §1701 (a)(8) (1994) (public lands shall be managed to protect water resource values); id. §1702(a) (areas of critical environmental concern include areas "where special management attention is required ... to protect and prevent irreparable damage to important ... fish and wildlife resources"); id. §1702(c) ("multiple use" includes watershed, wildlife, and fish); id. §1712(c)(8) (BLM land use plans "shall . . . provide for compliance with applicable pollution control laws, including State and Federal. . . water . . . standards or implementation plans"); id. §1732 (Interior Secretary shall manage public lands under principles of multiple use and sustained yield, and shall regulate occupancy and use under terms and conditions consistent with all applicable law). The mandate to manage the national forests "for the purpose of securing favorable conditions of water flows," 16 U.S.C. §475 (1994) (emphasis added), takes on added significance in light of the Supreme Court's recent admonition that any distinction between water quantity and quality is "artificial." PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1912 (1994).
483. 43 U.S.C. §§1901-1908 (1994).
484. Id. §1901(b)(2); see also id. §1903(b) (stating the goal of rangeland management is the improvement of those lands).
485. With respect to the Forest Service, see, e.g., 36 C.F.R. §§222.1(b)(2) (1995) (defining "allotment management plan" as a document which, inter alia, prescribes how livestock operations will be conducted in order to meet the multiple-use, sustained-yield and other objectives of land management); 222.1(b)(19) (defining "range betterment" in terms of "improving] forage conditions, fish and wildlife habitat, watershed protection, and livestock production"); 222.4(a)(4) (authorizing the Secretary to cancel or suspend a grazing permit if the permittee "does not comply with provisions or requirements in the grazing permit or the regulations of the Secretary"); 222.4(a)(6) (authorizing the Secretary to cancel or suspend a grazing permit if the permittee "is convicted for failing to comply with Federal laws or regulations or State laws relating to protection of air, water, soil and vegetation, fish and wildlife, and other environmental values when exercising the grazing use authorized by the permit"); 222.4(a)(7) (authorizing the Secretary to "[m]odify the terms and conditions of a permit to conform to current situations brought about by changes in law ... or other management needs"); 222.4(a)(8) (authorizing the Secretary to "[m]odify the seasons of use, numbers, kind, and class of livestock allowed or the allotment to be used ... because of resource condition or permittee request"); 222.10(a) (requiring "range improvement programs where necessary to arrest range deterioration . . . with resulting benefits to wildlife, watershed protection, and livestock production"). With respect to BLM, see, e.g., 43 C.F.R. §§4100.0-8 (requiring grazing to be in accordance with both multiple-use, sustained-yield principles and land use plans, which must establish "resource condition goals and objectives"); 4130.6 (requiring permits to contain "conditions ... appropriate to achieve management and resource condition objectives for the public lands"); 4130.3-2 (providing for other permit conditions, including "authorization to use, and directions for placement of supplemental feed, including salt, for improved .. . rangeland management," and restrictions on grazing to restore plant vigor and to prevent compacting wet soils).
486. See, e.g., supra notes 439-41 and accompanying text (concerning GAO report on degraded condition of public land riparian areas).
487. WETLANDS AND 401 CERTIFICATION, supra note 13, at 9.
488. See id. at 18.
489. See supra notes 108 and 392 and accompanying text.
490. Idaho and Montana, for example, enacted a Stream Channel Protection Act and Natural Streambed and Land Preservation Act, respectively. These acts require certain design standards and management practices, or require permits for stream alteration activities. See DiRienzo, supra note 107, at 3.
491. See id. Wyoming, for instance, "believes that through educational programs, public participation and cooperation, voluntary implementation of conservation practices, and innovative applications of current regulatory programs, adequate protection for the state's streams, lakes and wetlands will be achieved." Id. According to the Wyoming DEQ, Wyoming's Nonpoint Source Management Plan, "[w]hen completed,... will play an important role in the 401 certification process." Id. at 2. However, "adoption of the ... Plan will not significantly change how certification decisions are made. Applications will still be evaluated on a case-by-case basis and appropriate mitigative conditions will be attached even if they have not been officially adopted as BMP's." Id.
492. Wyoming DEQ offers a case in point. Despite its recognition of the value of riparian areas, Wyoming DEQ has advised that statewide riparian "typing and mapping must be performed" before "meaningful and defensible BMP's and other measures to protect the resource" can be developed. WYOMING NFS PLAN, supra note 435, at 71 (emphasis in original). Yet, as we have seen, many studies have been done on the effects of grazing and other agricultural activities in riparian areas, and much is known about the causes of, and means for remedying, riparian damage. See supra notes 427, 432, 453 and accompanying text. Moreover, a certifying agency need not be able to prove that any particular conditions will necessarily achieve their intended purpose. See supra note 408 and accompanying text. Thus, Wyoming's concern about being able to defend BMPs or other pollutionprevention measures is probably overblown. Indeed, it seems certain that the DEQ's recommendation is, at least in part, politically motivated. Wyoming's Nonpoint Source Management Plan has not yet been fully approved by EPA because of differences over its grazing provisions. In fact, the State has not yet adopted final grazing BMPs. See MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 33 (table 6); Personal communication with Beth Pratt, Wyoming Department of Environmental Quality (Apr. 16,1996). This is so even though (or perhaps because) grazing is a major, if not the chief, source of NPS pollution in the state. See supra text at notes 424-26. According to the Wyoming DEQ, the extent of federal lands in Wyoming and the use of much of them for livestock grazing complicate efforts to control NPS pollution. Not only do these lands present funding problems, but the grazing activities conducted thereon contribute significantly to NPS pollutant loadings in Wyoming waters. MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 112. While NPS control efforts on these lands could provide tremendous benefits, DEQ argues that many grazing permittees cannot afford to share the cost of implementing BMPs. Id.
493. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1914 (1994).
494. See 33 U.S.C. §1341(a)(1)-(2). For instance, grazing might be incompatible with maintaining the high stream values in a watershed with steep slopes and highly erodible soils; or extended rest from grazing might be required to restore soil and vegetative conditions, and hence water quality, in a watershed that has been impacted by many years of heavy overgrazing. See, e.g., RIPARIAN RESTORATION, supra note 427. Cf. 33 U.S.C. § 1343(c)(2) (prohibiting issuance of a §402 permit for ocean discharges "where insufficient information exists on any proposed discharge to make a reasonable judgment on any of the guidelines [relating to environmental effects] established pursuant to this subsection").
495. See supra note 455 and accompanying text (discussing the political clout of some permittees and BLM managers' reluctance to take a hard line on range condition and compliance problems).
496. "Sagebrush rebels" and "Wise Use" proponents in certain western states will undoubtedly attempt to thwart any effort by state environmental protection agencies to further regulate private activities on federal public lands. See, e.g., Marianne Lavelle, "WiseUse" Movement Grows: Activist counties battle the federal government over land-use controls, THE NAT'L L.J., June 5,1995, at Al;
497. Elizabeth Larson, Secessionism in the West, THE DEFENDER, Nov. 1994, at 1, 9;
498. John Howard, Western Revolt, THE DEFENDER, Nov. 1994, at 1;
499. Phil Brick, Determined Opposition: The Wise Use Movement Challenges Environmentalism, ENV'T, Oct. 1995, at 16.
500. ADLER ET AL., supra note 1, at 204; see also Ransei & Meyers, supra note 13, at 345.
501. While resource and other practical concerns cannot be ignored, the Senate, at least, did not intend such obstacles to thwart the goals of certification. Describing the certification and federal facility provisions of S. 7, Sen. Muskie stated that the "task [of controlling the wastes of federal agencies and their licensees and permittees] will be neither easy nor inexpensive. Nevertheless, the [Senate Public Works] committee expects that it will be accomplished." 115 CONG. REC. 28,955 (1969). Congress anticipated that the certification requirement would affect how federal agencies did business. The Senate Public Works Committee "recognized that the implementation of [§ 21 of the 1970 Water and Environmental Quality Improvement Act] will cause an adjustment in practices followed in dredging and, of course, in all other activities conducted pursuant to a Federal license or permit." 115 CONG. REC. 28,971 (1969) (emphasis added).
502. See WETLANDS AND 401 CERTIFICATION, supra note 13, at 23. See also In re Petition of Silver Star Hydro, Ltd., No. WQ 92-03, 1992 Cal. ENV LEXIS 3, at *12 (State Water Resources Control Bd. Mar. 19, 1992) (citing 23 CAL. CODE REGS. tit. 23, §2200, which provides for a $500 certification fee for general NPDES storm water permits, as well as other charges).
503. See, e.g., OHIO ADMIN. CODE ANN. 3745-32-05(D) (Anderson 1995) (authorizing state agency to "require that the applicant perform various environmental quality tests"); S.C. CODE REGS. 61-101.C.3. (1993) (authorizing state agency to "require the applicant to provide water quality monitoring data,. . . modelling results, or other environmental assessment"). See also supra note 315 and accompanying text.
504. See supra note 453, infra note 509. Cf. S.C. CODE REGS. 61-68.E.(1) (1993) (authorizing state to require BMPs for control of stormwater runoff as a condition of certification). This approach would also serve to help forestall possible complaints that the agency was taking a piecemeal, or inconsistent, approach to certification decisions.
505. See Miners Advocacy Council v. Department of Envtl. Conserv., 778 P.2d 1126, 1133 (Alaska 1989), cert, denied, 493 U.S. 1077 (1990). Cf. S.C. CODE REGS 61-101.A.4. (1993) (authorizing "general certifications for categories of activities or for activities specified in Federal nationwide or general dredge and fill permits"); id. 61-101.F.4. The certifying agency could then amend the "standard conditions" applicable to the type of activity on a case-by-case basis depending on the circumstances, including the particular project's expected impacts.
506. See 33 U.S.C. §1341 (d).
507. I leave it to others to consider the related question of whether both agenciescertifying and permitting-may enforce these conditions. See, e.g., HOLME ROBERTS & OWEN LLC, COLORADO ENVIRONMENTAL LAW HANDBOOK 32 (3d ed. 1994) (stating that "representatives [of the certifying agency] are permitted to enter and inspect the area of the dredge and fill activity to determine compliance with the certification" and citing 5 CCR 1002-18 §2.4.6.1); U.S. Army Corps of Engineers Regulatory Guidance Letter (RGL-92-4), 60 Fed. Reg. 13,703, 13,706-07 (1995) (explaining Corps's discretionary enforcement policy concerning §401 conditions); S.C. CODE REGS. 61-101.I.2.-3. (1993) (certification conditions enforceable by federal or state agency; state may conduct inspections to determine compliance).
508. See supra note 406 and accompanying text. For instance, Wyoming's NFS Program coordinator has stated that, even where water quality data exist, determining the specific cause of water quality problems in watersheds containing several potential sources of pollution can be difficult or even impossible. "But if we find a dead cow in a stream and we can sample the water immediately above and below it, then we know what and who is causing the problem. And we can enforce the water quality standards against that operator." Personal communication with Beth Pratt, Wyoming Department of Environmental Quality (Sept. 27, 1994). (Given the livestock industry's political clout in Wyoming and elsewhere in the West, see supra note 455, however, the cow probably would need to be branded for the enforcement agency to take action.)
509. PUD No. 1 v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1912 (1994).
510. See id. at 1911. Recall that the State of Washington did a study to determine what minimum stream flow was necessary to support the designated fishery uses of the Dosewallips River. Apparently, no one challenged that study, nor did the courts examine its findings or conclusions.
511. See supra note 407 and accompanying text.
512. The federal agency need not determine that the permitted activity is causing or contributing to water quality standards violations before instituting enforcement proceedings to redress a violation of a permit (certification) condition. Cf. Mumford Cove Ass'n, Inc. v. Town of Groton, 640 F. Supp. 392,395 (D. Conn. 1986) (citing Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 623 (2d Cir. 1976)) (no requirement to show a "direct causal link between the violations of [an] NPDES permit and the pollution [of a body of water]"). Admittedly, agency enforcement of the law respecting federal grazing permits is often lax. See, e.g., supra note 455 and accompanying text. But certifying agencies at least can impose clear conditions, violations of which will not be difficult for the federal agency (or a citizens group) to detect or enforce.
513. Such conditions may include quality assurance and control protocols to ensure that the data obtained are accurate and the methods for obtaining them comparable to methods used by the state.
514. These biennial reports are required by 33 U.S.C. §1315(b).
515. Id. §1288. See S. CONF. REP. No. 1236, 92d Cong., 2d Sess. 116 (1972), reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 299 ("to the extent possible, the plan is required to include control over pollution related to agriculture, mine water, construction, and salt water intrusion"); see also id. at 300 (§ 208 plans are also "required to identify, if appropriate, 'silviculturally' related nonpoint sources of pollution as well as agriculturally related nonpoint sources").
516. See 33 U.S.C. §1329(b). Section 319 requires states to design best management practices (BMPs) and programs to achieve their implementation. Monitoring by grazing permittees of the effectiveness of the BMPs they implement would provide useful information for improving those practices or designing better ones.
517. See id. §1313(d).
518. Some states provide by regulation for requiring modelling or monitoring by certification applicants. E.g., S.C. CODE REGS. 61-101.C.3. (1993); OHIO ADMIN. CODE ANN. 3745-32-05(0) (Anderson 1995).
519. See RIPARIAN RESTORATION, supra note 427, at 41-44 (discussing federal agency personnel cuts in recent years and the agencies' consequent inability to "implement a quality and timely riparian improvement program"); FS MONITORING, supra note 418, at 4-5 (discussing effect of staffing reductions between 1979 and 1990 on the agency's ability to monitor declining and/or overstocked allotments); GAO, RANGELAND MANAGEMENT: INTERIOR'S MONITORING HAS FALLEN SHORT OF AGENCY REQUIREMENTS 19-21 (Feb. 1992) (citing staff reductions and the need to prioritize range activities as the reasons for BLM's inability to meet monitoring requirements and goals).
520. See, e.g., supra notes 467-71 and accompanying text (discussing case pending in Oregon).
521. See, e.g., WYOMING 1994 ASSESSMENT, supra note 107, at 310, 313 (noting the "complexities in accounting for levels of natural background nonpoint source pollutants (such as sediment)"). In their §319 assessments of NFS pollution, states identified "natural sources" affecting the uses of their waters, along with source categories such as agriculture, mining, silviculture, etc. See MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 14-22. It must be kept in mind, however (despite the contrary inference in the Wyoming report), that only /tu/nan-caused alteration of water constitutes "pollution" under the Clean Water Act. See 33 U.S.C. §1362(19). "Natural," or "background," levels of sediments do not constitute "pollution."
522. See, e.g., John H, Davidson, Commentary: Using Special Water Districts to Control Nonpoint Sources of Water Pollution, 65 CHI.-KENT L. REV. 503, 507 (1989).
523. See MANAGING NONPOINT SOURCE POLLUTION, supra note 17, at 17, 19, 22.
524. According to the House Committee on Public Works, "integrity" as used [in the Act's purposes section, §101(a)] is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is [sic] maintained. . . . Although man is a "part of nature" . . . , "natural" is generally defined as that condition in existence before the activities of man invoked perturbations which prevented the system from returning to its original state of equilibrium.... [MJan has exceeded nature's homeostatic ability to respond to change. Any change induced by man which overtaxes the ability of nature to restore conditions to "natural" or "original" is an unacceptable perturbation. . . . [W]e would describe that ecosystem whose structure and function is [sic] "natural" as one whose systems are capable of preserving themselves at levels believed to have existed before irreversible perturbations caused by man's activities. Such systems can be identified with substantial confidence by scientists. . . . H.R. REP. No. 911, 92d Cong., 2d Sess. 66 (1972), 76-77, reprinted in LEGISLATIVE HISTORY, VOL. 1, supra note 29, at 753, 763-64 (emphasis added).
525. Compare RODGERS, supra note 13, §4.10, at 154-55 (dismissing NPDES permittees' attempts to blame permit violations on storms or other natural events). See also Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114 (2d Cir. 1994), cert, denied, 115 S. Ct. 1793 (1995).
526. If any evidence were needed to support this prediction, it can be found in the GAO's anecdotal data concerning the livestock interests' political clout and reluctance to take steps to restore riparian areas. See supra note 455 and accompanying text. See also note 493 and accompanying text.
527. An amended but substantially similar version of S. 852, S. 1459, was passed by the Senate on March 21,1996. Other 1995 bills included H.R. 1713 (introduced by Cooley, ROre.); S. 629 (introduced by Thomas, R-Wyo.) (would prohibit federal agencies from requiring NEPA environmental assessments for renewals of grazing permits); S. 636 (introduced by Daschle, D-S.D.) (would require Agriculture Secretary to issue new term permits to holders of expired or about-to-expire grazing permits); H.R. 2032 (introduced by Rep. Hansen, D-Utah) and S. 1031 (introduced by Sen. Thomas, R-Wyo.), would allow states to assume management of all BLM lands and resources within their borders.
528. DOI hits back at GOP grazing proposal; Domenici tinkering, PUB. LANDS NEWS, July 20, 1995, at 4.
529. See supra note 182. No reason appears (in the legislative history or elsewhere) why the federal activities subject to certification should not include federal lands grazing (or logging, or pipeline construction, or outfitting, or innumerable other activities).
530. See Ransel, supra note 13, at 283.
531. See California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987) (holding that neither forest service regulations, federal land use statutes, nor the Coastal Zone Management Act preempted California Coastal Commission's imposition of permit requirement on operation of unpatented mining claim in national forest).
532. See supra note 475 and accompanying text.
533. E.g., Michael Oppenheimer, Context, Connection, and Opportunity in Environmental Problem Solving, ENV'T, June 1995, at 10.
534. See 33 U.S.C. §1341(a).
535. See id. §1344(c), (g)-(1).
536. See WETLANDS AND 401 CERTIFICATION, supra note 13.
537. See supra part III.C.2.C.