9377 ‎(2)‎

• 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

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Davis, Graham & Stubbs 7/17/91
Greg Hobbs
MEMO NDUM
Presented at
"The Clean Water Act and the Arid West in the 1990's"
Co-sponsored by the State Bar Associations of
Arizona, Colorado, New Mexico, and Utah
July 18, 1991
San Diego, California
RE: Conflicts Between the Clean Water Act and State Water
Allocation and Administration Systems
The EPA 404(c) vetoes of the Two Forks and James City
County (Virginia) 404 permits for water development projects have
focused attention on the conflict between the 404 program and
state-authorized water development projects. While these cases
illustrate problems with the 404 program, western states should
not limit their concern to Section 404, because other provisions
of the Clean Water Act present equal, if not greater, threats to
state primacy over the allocation and administration of water
rights.
It is also critical that states recognize that the
issue is not limited to future projects, because EPA takes the
position that existing dams and diversions are within the
category of nonpoint sources of pollution, and existing non-
point sources of pollution will probably be controlled in the
future through cross-compliance or the adoption of a new
regulatory program under the CWA.
In summary, EPA and the environmental community are
laying a broad legal and policy foundation for regulations which
establish water quality standards defined by naturally occurring
aquatic habitat, and which expand the scope of CWA regulations to
activities which do not include the "discharge of pollutants"
These changes will then be used by EPA to assert that the
diversion of water, which does not by itself include a discharge
of a pollutant, but may impair aquatic habitat by lowering water
levels in a stream or lake or adversely affect water quality by
concentrating pollutants from other sources, can be restricted on
the theory that it would cause or contribute to a violation of
water quality standards.
F i 1DxT? ?NF 1 ?iUtAR? 9 0 d 5? 2