Using 401 to protect streamflow in the Dosewallips River

The Dosewallips River originates in the glacial peaks of the Olympic National Park, a World Heritage Site and International Biosphere Reserve. While dams blanket the state of Washington, the Dosewallips runs free.

The Dosewallips was caught in a power struggle between Washington state and the federal government. The struggle began in 1982, when Jefferson County Public Utility District and the city of Tacoma proposed to build a new hydroelectric project on the Dosewallips River.

The Elkhorn Project, named after a nearby Forest Service campground, would divert water from the river to generate electricity and discharge the water back to the river a little more than one mile downriver.

About 75 percent of the water would leave the river for power generation. Because the project required a license from the Federal Energy Regulatory Commission, it also needed a Clean Water Act, Section 401 certification from the state of Washington certifying that the project was in compliance with state water quality standards.

The quality of the Dosewallips River was highly regarded by the state, which designated it as “Class AA” waters, the highest designation possible. Uses for the stretch of river affected by the hydro project include salmon migration, rearing, spawning and harvesting. The state's water quality standards mandate that these "existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to [such] . . . uses will be allowed."

The Washington Department of Ecology, relying on the expertise of the region's fisheries agencies and tribes, determined that the salmon fishery in the Dosewallips would be harmed if the project withdrew the amount of water it proposed for electrical generation.

The agency required, as a condition of certification, a minimum instream flow ranging between 100 and 200 cfs, depending on the season. Tacoma challenged the state's authority to condition the certification on a minimum instream flow, but the Washington Supreme Court concluded that the instream flow requirement was a proper exercise of state authority under Section 401. It also held that states may impose any conditions which are reasonably necessary to enforce numeric and narrative criteria. The Court pointed out that Washington's standards specify that "aesthetic values shall not be impaired." This ruling appeared to conflict with a California court decision that favored less state authority in a similar case.

The U.S. Supreme Court agreed to resolve the conflict concerning the proper scope of Section 401. The Court affirmed the Washington Supreme Court in a seven-to-two opinion. The Court rejected the attempts to defeat the instream flow requirement imposed by Section 401 conditions.

Most importantly, the Supreme Court held that the use designations of water bodies — such as the salmon fishery on the Dosewallips — could form the basis of Section 401 conditions. The Court found there may well be occasions when the criteria alone would not protect the designated uses.

This story has been excerpted from Ransel, Katherine P., "The Sleeping Giant Awakens: PUD No.1 of Jefferson County v. Washington Department of Ecology," 25 Envtl. L. 255 (1995).

For more information, contact American Rivers’ Northwest Regional Office. (www.amrivers.org)