In PUD No. 1 of Jefferson County v. Washington Department of Ecology (Tacoma), the U. S. Supreme Court held that a state may include minimum stream flow requirements in a certification issued pursuant to section 401 of the Clean Water Act insofar as necessary to enforce a designated use contained in a state water quality standard. However, the Court stated that this authority was not unlimited. In Tunbridge Mill Corporation, Project No. 11090, Order Issuing License (Tunbridge), the Federal Energy Regulatory Commission decided that its prior decisions regarding the mandatory nature of conditions contained in state water quality certifications were incorrect. FERC ruled previously that review of the appropriateness of section 401 conditions was within the preview of state courts, not the Commission. The Commission concluded that to the extent states include conditions that are unrelated to water quality, those conditions are beyond the scope of section 401 and are thus unlawful.
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