9377

• UCREFRP Catalog Number: 9377
• Author: Colorado Water Workshop.
• Title: 16th Annual Colorado Water Workshop.
• USFW Year: 1991.
• USFW - Doc Type: Western State College.
• Copyright Material: NO

s. 10Bl (the 1991 Clean Water Act Reauthorization Bill)
signals an important shift from the historic focus on the use of
a chemically based definition of water quality to protect
existing and reasonably foreseeable uses of water to the Use of
an ecologically based definition of water quality to restore the
nation's waters to their naturally occurring condition.!/
Because the diversion and Use of water under a state water right
has unavoidable impacts on naturally occurring aquatic habitat,
the implementation of this change in the west presents a direct
conflict with state water allocation and administration systems.

BACKGROUND

Congress has historically deferred to the states to
allocate and administer water rights,l/ and water quality
protection has been primarily a federal program. The 1972
Federal Water pollution Control Act, as amended in 1977 and 1987,
regulates water pollution through several key programs
(collectively referred to as the "Clean Water Act" or "CWA").
Section 301 makes the discharge of a pollutant illegal, unless
otherwise authorized under the CWA. The discharge of pollution
from "point sources" is regulated by the Section 402 or NPDES
program, administered by EPA directly or by states which have
accepted delegation of the program. NPDES permits are limited by
federally set "effluent standards" and by any additional
restrictions which are required to meet wpter quality standards
set by the states to protect existing and future uses of water.
"Nonpoint" sources were originally to be addressed in locally
defined "208" programs under the '72 and '77 versions of the Act.
However, Section 319 of the '87 CWA Amendments shifted the focus
on nonpoint programs to state defined -voluntary Best Management
Practices ("BMPs") .~/ The "dredge and fill" of "waters of the

1/ EPA asserts that the legal authority for this position is
found in Section 101(a) of the Clean Water Act, which states
that "The objective of this Act is to restg{e and maintain
the chemical, biQ1Qqical and physical integrit~ of the
Nation's waters. . . ." However, EPA's February 11, 1991
Paper on "Arid Area and Water Efficiency Issues," implicitly
recognizes that the existing authority to require the
implementation of Biological Criteria, particularly when
applied to protect instream flows, may need to be
"clarified."

1/ ~,~, Mining Act of 1866; Homestead Act of 1870; Desert
Land Act of 1877; Carey Act of 1894; Taylor Grazing Act of
1934; California v. United $t~t~~, 438 U.s. 645 (1982); and
the Wallop Amendment, 33 U.S.C. 1251(g).

:1/ Nonpoint sources include overland flows from agricultural,
urban, silvicultural and mining activities, and also water
quality impacts of dams and diversions.

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