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SUPREME COURT OF THE UNITED STATES
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No. 92-1911
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PUD NO. 1 OF JEFFERSON COUNTY and CITY OF
TACOMA, PETITIONERS v. WASHINGTON
 DEPARTMENT OF ECOLOGY et al.
on writ of certiorari to the supreme court of
washington
[May 31, 1994]

  Justice Thomas, with whom Justice Scalia joins,
dissenting.
  The Court today holds that a State, pursuant to 401
of the Clean Water Act, may condition the certification
necessary to obtain a federal license for a proposed
hydroelectric project upon the maintenance of a mini-
mum flow rate in the river to be utilized by the project.
In my view, the Court makes three fundamental errors.
First, it adopts an interpretation that fails adequately to
harmonize the subsections of 401.  Second, it places no
meaningful limitation on a State's authority under 401
to impose conditions on certification.  Third, it gives
little or no consideration to the fact that its interpreta-
tion of 401 will significantly disrupt the carefully
crafted federal-state balance embodied in the Federal
Power Act.  Accordingly, I dissent.

                            I

                            A
  Section 401(a)(1) of the Federal Water Pollution
Control Act, otherwise known as the Clean Water Act

(CWA or Act), 33 U. S. C. 1251 et seq., provides 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 . . . applicable provi-
sions of [the CWA].-  33 U. S. C. 1341(a)(1).  The
terms of 401(a)(1) make clear that the purpose of the
certification process is to ensure that discharges from a
project will meet the requirements of the CWA.  Indeed,
a State's authority under 401(a)(1) is limited to certi-
fying that -any discharge- that -may result- from -any
activity,- such as petitioners' proposed hydroelectric
project, will -comply- with the enumerated provisions of
the CWA; if the discharge will fail to comply, the State
may -den[y]- the certification.  Ibid.  In addition, under
401(d), a State may place conditions on a 401 certifica-
tion, including -effluent limitations and other limitations,
and monitoring requirements,- that may be necessary to
ensure compliance with various provisions of the CWA
and with -any other appropriate requirement of State
law.-  1341(d).
  The minimum stream flow condition imposed by
respondents in this case has no relation to any possible
-discharge- that might -result- from petitioners' proposed
project.  The term -discharge- is not defined in the
CWA, but its plain and ordinary meaning suggests -a
flowing or issuing out,- or -something that is emitted.-
Webster's Ninth New Collegiate Dictionary 360 (1991).
Cf. 33 U. S. C. 1362(16) (-The term `discharge' when
used without qualification includes a discharge of a
pollutant, and a discharge of pollutants-).  A minimum
stream flow requirement, by contrast, is a limitation on
the amount of water the project can take in or divert
from the river.  See ante, at 7.  That is, 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).
  The Court remarks that this reading of 401(a)(1)
would have -considerable force,- ante, at 9, were it not
for what the Court understands to be the expansive
terms of 401(d).  That subsection provides that
-[a]ny certification provided under this section shall
set forth any effluent limitations and other limita-
tions, and monitoring requirements necessary to
assure that any applicant for a Federal license or
permit will comply with any applicable effluent
limitations and other limitations, under section 1311
or 1312 of this title, standard of performance under
section 1316 of this title, or prohibition, effluent
standard, or pretreatment standard under section
1317 of this title, and with any other appropriate
requirement of State law set forth in such certifica-
tion, and shall become a condition on any Federal
license or permit subject to the provisions of this
section.-  33 U. S. C. 1341(d) (emphasis added).
According to the Court, the fact that 401(d) refers to an
-applicant,- rather than a -discharge,- complying with
various provisions of the Act -contradicts petitioners'
claim that the State may only impose water quality
limitations specifically tied to a `discharge.'-  Ante, at 9.
In the Court's view, 401(d)'s reference to an applicant's
compliance -expands- a State's authority beyond the
limits set out in 401(a)(1), ante, at 9, thereby permit-
ting the State in its certification process to scrutinize
the applicant's proposed -activity as a whole,- not just
the discharges that may result from the activity.  Ante,
at 10.  The Court concludes that this broader authority
allows a State to impose conditions on a 401 certifica-
tion that are unrelated to discharges.  Ante, at 9-10.
  While the Court's interpretation seems plausible at
first glance, it ultimately must fail.  If, as the Court
asserts, 401(d) permits States to impose conditions
unrelated to discharges in 401 certifications, Congress'
careful focus on discharges in 401(a)(1)-the provision
that describes the scope and function of the certification
process-was wasted effort.  The power to set conditions
that are unrelated to discharges is, of course, nothing
but a conditional power to deny certification for reasons
unrelated to discharges.  Permitting States to impose
conditions unrelated to discharges, then, effectively
eliminates the constraints of 401(a)(1).
  Subsections 401(a)(1) and (d) can easily be reconciled
to avoid this problem.  To ascertain the nature of the
conditions permissible under 401(d), 401 must be read
as a whole.  See United Savings Assn. of Texas v.
Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365,
371 (1988) (statutory interpretation is a -holistic endeav-
or-).  As noted above, 401(a)(1) limits a State's author-
ity in the certification process to addressing concerns
related to discharges and to ensuring that any discharge
resulting from a project will comply with specified
provisions of the Act.  It is reasonable to infer that the
conditions a State is permitted to impose on certification
must relate to the very purpose the certification process
is designed to serve.  Thus, while 401(d) permits a
State to place conditions on a certification to ensure
compliance of the -applicant,- those conditions must still
be related to discharges.  In my view, this interpretation
best harmonizes the subsections of 401.  Indeed, any
broader interpretation of 401(d) would permit that
subsection to swallow 401(a)(1).
  The text of 401(d) similarly suggests that the condi-
tions it authorizes must be related to discharges.  The
Court attaches critical weight to the fact that 401(d)
speaks of the compliance of an -applicant,- but that
reference, in and of itself, says little about the nature of
the conditions that may be imposed under 401(d).
Rather, because 401(d) conditions can be imposed only
to ensure compliance with specified provisions of
law-that is, with -applicable effluent limitations and
other limitations, under section 1311 or 1312 of this
title, standard[s] of performance under section 1316 of
this title, . . . prohibition[s], effluent standard[s], or
pretreatment standard[s] under section 1317 of this title,
[or] . . . any other appropriate requirement[s] of State
law--one should logically turn to those provisions for
guidance in determining the nature, scope, and purpose
of 401(d) conditions.  Each of the four identified CWA
provisions describes discharge-related limitations.  See
1311 (making it unlawful to discharge any pollutant
except in compliance with enumerated provisions of the
Act); 1312 (establishing effluent limitations on point
source discharges); 1316 (setting national standards of
performance for the control of discharges); and 1317
(setting pretreatment effluent standards and prohibiting
the discharge of certain effluents except in compliance
with standards).
  The final term on the list--appropriate requirement[s]
of State law--appears to be more general in scope.
Because this reference follows a list of more limited
provisions that specifically address discharges, however,
the principle ejusdem generis would suggest that the
general reference to -appropriate- requirements of state
law is most reasonably construed to extend only to
provisions that, like the other provisions in the list,
impose discharge-related restrictions.  Cf. Cleveland v.
United States, 329 U. S. 14, 18 (1946) (-Under the
ejusdem generis rule of construction the general words
are confined to the class and may not be used to enlarge
it-); Arcadia v. Ohio Power Co., 498 U. S. 73, 84 (1990).
In sum, the text and structure of 401 indicate that a
State may impose under 401(d) only those conditions
that are related to discharges.

                            B
  The Court adopts its expansive reading of 401(d)
based at least in part upon deference to the -conclusion-
of the Environmental Protection Agency (EPA) that
401(d) is not limited to requirements relating to
discharges.  Ante, at 10.  The agency regulation to which
the Court defers is 40 CFR 121.2(a)(3) (1993), which
provides that the certification shall contain -[a] state-
ment that there is a reasonable assurance that the
activity will be conducted in a manner which will not
violate applicable water quality standards.-  Ante, at 10.
According to the Court, -EPA's conclusion that activi-
ties-not merely discharges-must comply with state
water quality standards . . . is entitled to deference-
under Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984).  Ante, at 10.
  As a preliminary matter, the Court appears to resort
to deference under Chevron without establishing through
an initial examination of the statute that the text of the
section is ambiguous.  See Chevron, supra, at 842-843.
More importantly, the Court invokes Chevron deference
to support its interpretation even though the Govern-
ment does not seek deference for the EPA's regulation
in this case.  That the Government itself has not
contended that an agency interpretation exists reconcil-
ing the scope of the conditioning authority under 401(d)
with the terms of 401(a)(1) should suggest to the Court
that there is no -agenc[y] construction- directly address-
ing the question.  Chevron, supra, at 842.
  In fact, the regulation to which the Court defers is
hardly a definitive construction of the scope of 401(d).
On the contrary, the EPA's position on the question
whether conditions under 401(d) must be related to
discharges is far from clear.  Indeed, the only EPA
regulation that specifically addresses the -conditions-
that may appear in 401 certifications speaks exclusively
in terms of limiting discharges.  According to the EPA,
a 401 certification shall contain -[a] statement of any
conditions which the certifying agency deems necessary
or desirable with respect to the discharge of the activity.-
40 CFR 121.2(a)(4) (1993) (emphases added).  In my
view, 121.2(a)(4) should, at the very least, give the
Court pause before it resorts to Chevron deference in
this case.

                           II
  The Washington Supreme Court held that the State's
water quality standards, promulgated pursuant to 303
of the Act, 33 U. S. C. 1313, were -appropriate-
requirements of state law under 401(d), and sustained
the stream flow condition imposed by respondents as
necessary to ensure compliance with a -use- of the river
as specified in those standards.  As an alternative to
their argument that 401(d) conditions must be dis-
charge-related, petitioners assert that the state court
erred when it sustained the stream flow condition under
the -use- component of the State's water quality stand-
ards without reference to the corresponding -water
quality criteria- contained in those standards.  As
explained above, petitioners' argument with regard to
the scope of a State's authority to impose conditions
under 401(d) is correct.  I also find petitioners' alterna-
tive argument persuasive.  Not only does the Court err
in rejecting that 303 argument, in the process of doing
so it essentially removes all limitations on a State's
conditioning authority under 401.
  The Court states that, -at a minimum, limitations
imposed pursuant to state water quality standards
adopted pursuant to 303 are `appropriate' requirements
of state law- under 401(d).  Ante, at 11.  A water
quality standard promulgated pursuant to 303 must
-consist of the designated uses of the navigable waters
involved and the water quality criteria for such waters
based upon such uses.-  33 U. S. C. 1313(c)(2)(A).  The
Court asserts that this language -is most naturally read
to require that a project be consistent with both compo-
nents, namely the designated use and the water quality
criteria.-  Ante, at 13.  In the Court's view, then, the
-use- of a body of water is independently enforceable
through 401(d) without reference to the corresponding
criteria.  Ante, at 13-14.
    The Court's reading strikes me as contrary to com-
mon sense.  It is difficult to see how compliance with a
-use- of a body of water could be enforced without
reference to the corresponding criteria.  In this case, for
example, the applicable -use- is contained in the follow-
ing regulation: -Characteristic uses shall include, but not
be limited to . . . [s]almonid migration, rearing, spawn-
ing, and harvesting.-  Wash. Admin. Code (WAC)
173-201-045(1)(b)(iii) (1990).  The corresponding criteria,
by contrast, include measurable factors such as quanti-
ties of fecal coliform organisms and dissolved gases in
the water.  WAC 173-201-045(1)(c)(i) and (ii).  Al-
though the Act does not further address (at least not
expressly) the link between -uses- and -criteria,- the
regulations promulgated under 303 make clear that a
-use- is an aspirational goal to be attained through
compliance with corresponding -criteria.-  Those regula-
tions suggest that -uses- are to be -achieved and
protected,- and that -water quality criteria- are to be
adopted to -protect the designated use[s].-  40 CFR
131.10(a), 131.11(a)(1) (1993).
  The problematic consequences of decoupling -uses- and
-criteria- become clear once the Court's interpretation of
303 is read in the context of 401.  In the Court's view,
a State may condition the 401 certification -upon any
limitations necessary to ensure compliance- with the
-uses of the water body.-  Ante, at 12, 13 (emphasis
added).  Under the Court's interpretation, then, state
environmental agencies may pursue, through 401, their
water goals in any way they choose; the conditions
imposed on certifications need not relate to discharges,
nor to water quality criteria, nor to any objective or
quantifiable standard, so long as they tend to make the
water more suitable for the uses the State has chosen.
In short, once a State is allowed to impose conditions on
401 certifications to protect -uses- in the abstract,
401(d) is limitless.
  To illustrate, while respondents in this case focused
only on the -use- of the Dosewallips River as a fish
habitat, this particular river has a number of other
-[c]haracteristic uses,- including -[r]ecreation (primary
contact recreation, sport fishing, boating, and aesthetic
enjoyment).-  WAC 173-201-045(1)(b)(v).  Under the
Court's interpretation, respondents could have imposed
any number of conditions related to recreation, including
conditions that have little relation to water quality.  In
Town of Summersville, 60 FERC -61,291, p. 61,990
(1992), for instance, the state agency required the
applicant to -construct . . . access roads and paths, low
water stepping stone bridges, . . . a boat launching
facility . . . , and a residence and storage building.-
These conditions presumably would be sustained under
the approach the Court adopts today.  In the end, it is
difficult to conceive of a condition that would fall outside
a State's 401(d) authority under the Court's approach.

                           III
  The Court's interpretation of 401 significantly
disrupts the careful balance between state and federal
interests that Congress struck in the Federal Power Act
(FPA), 16 U. S. C. 791 et seq.  Section 4(e) of the FPA
authorizes the Federal Energy Regulatory Commission
(FERC or Commission) to issue licenses for projects
-necessary or convenient . . . for the development,
transmission, and utilization of power across, along,
from, or in any of the streams . . . over which Congress
has jurisdiction.-  16 U. S. C. 797(e).  In the licensing
process, FERC must balance a number of considerations:
-[I]n addition to the power and development purposes for
which licenses are issued, [FERC] shall give equal
consideration to the purposes of energy conservation, the
protection, mitigation of damage to, and enhancement of,
fish and wildlife (including related spawning grounds
and habitat), the protection of recreational opportunities,
and the preservation of other aspects of environmental
quality.-  Ibid.  Section 10(a) empowers FERC to impose
on a license such conditions, including minimum stream
flow requirements, as it deems best suited for power
development and other public uses of the waters.  See
16 U. S. C. 803(a); California v. FERC, 495 U. S. 490,
494-495, 506 (1990).
  In California v. FERC, the Court emphasized FERC's
exclusive authority to set the stream flow levels to be
maintained by federally licensed hydroelectric projects.
California, in order -to protect [a] stream's fish,- had
imposed flow rates on a federally licensed project that
were significantly higher than the flow rates established
by FERC.  Id., at 493.  In concluding that California
lacked authority to impose such flow rates, we stated:
-As Congress directed in FPA 10(a), FERC set the
conditions of the [project] license, including the
minimum stream flow, after considering which
requirements would best protect wildlife and ensure
that the project would be economically feasible, and
thus further power development.  Allowing Califor-
nia to impose significantly higher minimum stream
flow requirements would disturb and conflict with
the balance embodied in that considered federal
agency determination.  FERC has indicated that the
California requirements interfere with its compre-
hensive planning authority, and we agree that
allowing California to impose the challenged require-
ments would be contrary to congressional intent
regarding the Commission's licensing authority and
would constitute a veto of the project that was
approved and licensed by FERC.-  Id., at 506-507
(citations and internal quotation marks omitted).
California v. FERC reaffirmed our decision in First Iowa
Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 164
(1946), in which we warned against -vest[ing] in [state
authorities] a veto power- over federal hydroelectric
projects.  Such authority, we concluded, could -destroy
the effectiveness- of the FPA and -subordinate to the
control of the State the `comprehensive' planning- with
which the administering federal agency (at that time the
Federal Power Commission) was charged.  Ibid.
  Today, the Court gives the States precisely the veto
power over hydroelectric projects that we determined in
California v. FERC and First Iowa they did not possess.
As the language of 401(d) expressly states, any condi-
tion placed in a 401 certification, including, in the
Court's view, a stream flow requirement, -shall become
a condition on any Federal license or permit.-  33
U. S. C. 1341(d) (emphasis added).  Any condition
imposed by a State under 401(d) thus becomes a
-ter[m] . . . of the license as a matter of law,- Depart-
ment of Interior v. FERC, 952 F. 2d 538, 548 (CADC
1992) (citation and internal quotation marks omitted),
regardless of whether FERC favors the limitation.
Because of 401(d)'s mandatory language, 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.  Section
401(d) conditions imposed by States are therefore
binding on FERC.  Under the Court's interpretation,
then, it appears that the mistake of the State in
California v. FERC was not that it had trespassed into
territory exclusively reserved to FERC; rather, it simply
had not hit upon the proper device-that is, the 401
certification-through which to achieve its objectives.
  Although the Court notes in passing that -[t]he
limitations included in the certification become a
condition on any Federal license,- ante, at 6, it does not
acknowledge or discuss the shift of power from FERC to
the States that is accomplished by its decision.  Indeed,
the Court merely notes that -any conflict with FERC's
authority under the FPA- in this case is -hypothetical-
at this stage, ante, at 21, because -FERC has not yet
acted on petitioners' license application.-  Ante, at 20-21.
We are assured that -it is quite possible . . . that any
FERC license would contain the same conditions as the
State 401 certification.-  Ante, at 21.
  The Court's observations simply miss the point.  Even
if FERC might have no objection to the stream flow
condition established by respondents in this case, such
a happy coincidence will likely prove to be the exception,
rather than the rule.  In issuing licenses, FERC must
balance the Nation's power needs together with the need
for energy conservation, irrigation, flood control, fish and
wildlife protection, and recreation.  16 U. S. C. 797(e).
State environmental agencies, by contrast, need only
consider parochial environmental interests.  Cf., e.g.,
Wash. Rev. Code 90.54.010(2) (1992) (goal of State's
water policy is to -insure that waters of the state are
protected and fully utilized for the greatest benefit to
the people of the state of Washington-).  As a result, it
is likely that conflicts will arise between a FERC-
established stream flow level and a state-imposed level.
  Moreover, the Court ignores the fact that its decision
nullifies the congressionally mandated process for
resolving such state-federal disputes when they develop.
Section 10(j)(1) of the FPA, 16 U. S. C. 803(j)(1), which
was added as part of the Electric Consumers Protection
Act of 1986 (ECPA), 100 Stat. 1244, provides that every
FERC license must include conditions to -protect,
mitigate damag[e] to, and enhance- fish and wildlife,
including -related spawning grounds and habitat,- and
that such conditions -shall be based on recommenda-
tions- received from various agencies, including state
fish and wildlife agencies.  If FERC believes that a
recommendation from a state agency is inconsistent with
the FPA-that is, inconsistent with what FERC views as
the proper balance between the Nation's power needs
and environmental concerns-it must -attempt to resolve
any such inconsistency, giving due weight to the recom-
mendations, expertise, and statutory responsibilities- of
the state agency.  803(j)(2).  If, after such an attempt,
FERC -does not adopt in whole or in part a recommen-
dation of any [state] agency,- it must publish its reasons
for rejecting that recommendation.  Ibid.  After today's
decision, these procedures are a dead letter with regard
to stream flow levels, because a State's -recommenda-
tion- concerning stream flow -shall- be included in the
license when it is imposed as a condition under 401(d).
  More fundamentally, the 1986 amendments to the FPA
simply make no sense in the stream flow context if, in
fact, the States already possessed the authority to
establish minimum stream flow levels under 401(d) of
the CWA, which was enacted years before those amend-
ments.  Through the ECPA, Congress strengthened the
role of the States in establishing FERC conditions, but
it did not make that authority paramount.  Indeed,
although Congress could have vested in the States the
final authority to set stream flow conditions, it instead
left that authority with FERC.  See California v. FERC,
495 U. S., at 499.  As the Ninth Circuit observed in the
course of rejecting California's effort to give California
v. FERC a narrow reading, -[t]here would be no point in
Congress requiring [FERC] to consider the state agency
recommendations on environmental matters and make
its own decisions about which to accept, if the state
agencies had the power to impose the requirements
themselves.-  Sayles Hydro Associates v. Maughan, 985
F. 2d 451, 456 (1993).
  Given the connection between 401 and federal
hydroelectric licensing, it is remarkable that the Court
does not at least attempt to fit its interpretation of 401
into the larger statutory framework governing the
licensing process.  At the very least, the significant
impact the Court's ruling is likely to have on that
process should compel the Court to undertake a closer
examination of 401 to ensure that the result it reaches
was mandated by Congress.

                           IV
  Because the Court today fundamentally alters the
federal-state balance Congress carefully crafted in the
FPA, and because such a result is neither mandated nor
supported by the text of 401, I respectfully dissent.