WSP12258

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 1/7/1994
• Author: Western States Water
• Title: Western States Water 1994 - Issues 1025-1076
• Water Supply Pro - Doc Type: Publication

The second day was devoted to case studies. These
included the complex and challenging situations in the
San Francisco Bay/Sacramento-San Joaquin Delta in
California and the Edwards Aquifer in Texas, as well as
unique impacts in Alaska resulting from the decline of
salmon runs in the Northwest. One session dealt with
interstate effects in the Colorado River Basin, the
Columbia-Snake system, and the Missouri River system.
Over lunch, a California attorney involved in developing
habitat conservation plans (HCPs) offered candid views
on their advantages and disadvantages, and made
recommendations for the group's consideration. Next,
the afternoon session focused on efforts to integrate
water management and fish and wildlife management
issues regarding protection of endangered species, both
within states and river basins. These case studies were
followed by a brief group discussion and assignments to
smailer working groups to deveiop recommendations to
improve ESA implementation.

These small groups met Friday morning. One group
addressed how states can take a proactive role in
preempting application of the ESA A second group
considered how to avoid arbitrary ESA implementation,
particularly how to use the new policy directives issued
by the Administration to change ESA Implementation. A
third group prepared recommendations for amending the
Act. Later, the small groups reported, and there was a
general discussion to refine and reach consensus
regarding the recommendations of the smaller groups.
Lastly, there was a discussion of what next steps would
be appropriate to further the recommendations of the
group. The recommendations will be reviewed by
attendees and then forwarded to the members of the
cosponsoring organizations for their consideration. They
will also be discussed at a meeting of the WSWC's
Endangered Species Act Subcommittee during meetings
in San Antonio, Texas on December 7-9.

L1TIGA TION/ENVIRONMENT,WA TER QUALITY

California Regional Water Quality Control Board v.
Committee to Save the Mokelumne River

The U.S. Supreme Court has accepted no new cases
for its new term, and has denied certiorari to the appeal
of two California agencies that have been held liable
under the Clean Water Act for discharging acid mine
drainage water Into the Mokelumne River (WSW #1 062).
The East Bay Municipal Utility District (EBMUD) and one
of California's regional water quality control boards

helped construct a dam to collect and channel polluted
runoff, from the abandoned Penn Mine in the Sierra .
Nevadas, away from EBMUD's downstream reservoirs.
However, the dam allows some polluted runoff to reach
the river, and the Ninth Circuit Court ruled in 1993 that
the agencies therefore violated the Clean Water Act.
The petioners sought review of the ruling, claiming that
the actual flow of acid runoff, which has been polluting
the river for twenty years, was substantially reduced due
to their efforts. They also argued that the ruling was
contrary to Superfund policies protecting states that
clean up hazardous waste from liability.

James City County v. EPAlWare Creek Dam

The U.S. Supreme Court also denied certiorari in
James City County. Viroinia v. EPA (4th Cir. 1993). The
Court found EPA's veto of an Army Corps of Engineers'
404 permit was legally based solely on environmental
harms without considering the community's need for
water, even though the county and Corps determined
that constructing a dam and reservoir on Ware Creek
was the "only practical long-term solution" to water
needs. EPA had vetoed the permit, stating the dam
would harm fish and wildlife, and that other less
environmentally damaging alternatives were available.
The federal court for the Eastern District of Virginia .
overturned the veto (WSW #864), finding that EPA had
"not met its statutory duty of showing...the Ware Creek
Reservoir will have an unacceptable adverse effect."

EPA appealed, and the Fourth Circuit Court of Appeals
affirmed in part, then remanded the decision. EPA again
vetoed the permit. The county filed suit challenging the
veto, and the district court again ordered issuance of the
permit. EPA again appealed, and the court of appeals
ultimately upheld the veto, stating, "The EPA's only
function relating to the quantities of available water is
limited to assuring purity in whatever quantities the state
and local agencies provide. its veto based soiely on
environmental harms was proper." The county argued
the appellate court Improperly granted EPA discretion to
ignore relevant factors, such as the lack of any practical
alternative to the dam. The county's position was
supported by briefs signed by eight states, including
California, Nevada and Wyoming.

WESTERN STATES WATER COUNCIL

The December 7-9 meetings in San Antonio, Texas
will be at the Sheraton Gunter Hotel, 1-800-222-4276.

The WESTERN STATES WATER COUNCIL is an organization of representatives appointed by the Governors .
of member states - Alaska, Arizona, California, Colorado, Hawaii, Idaho, Nevada, New Mexico, North Dakota,
Oregon, South Dakota, Texas, Utah, and Wyoming, and associate member states Montana, and Washington.