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

In addition, EPA has promulgated a "National Guidance
on Water Quality Standards for Wetlands," which identifies dams
and diversions as one of the primary threats to wetlands and will
be used in future 404 permitting decisions to further restrict
water development. Under this guidance (and also under most of
the proposed 404 amendments), the diversion of water and
resulting drainage of wetlands caused by the reduction of the
water table or stream levels would arguably be a violation of the
standards.
SOLUTIONS?
Looking at these problems, it is clear that the basic
issue is whether the states or EPA will have the final say in the
resolution of conflicts between water quality goals and state
water allocation and administration systems. While the 1977
Wallop Amendment to the Clean Water Act was intended to reserve
this.authority to the states, EPA and the environmental community
have seized upon language in the Riverside case which interprets
this provision to mean that Congress only required an
"accommodation" to state systems. They then argue that, because
101(g) is only in the "goals and policy" provisions of
Section 101, CWA regulations under 401, 402 or 404 can restrict
the exercise of a state water right even if a discharge of a
pollutant is not present. One response to this argument would be
to reincorporate the Wallop Amendment in the substantive portions
of the CWA, perhaps as a part of Section 510, which would clarify
that it is a limitation on the authority of EPA under the CWA.
Other and better solutions may become apparent in the course of
further consideration of this issue.
in addition, western states should carefully scrutinize
the expansion of the CWA to activities which do not include the
"discharge of a pollutant," as this definition is key to the
arguments that Congress did not intend to regulate water quality
impacts associated with the diversion of water, but instead
intended to defer to state water allocation systems. Similarly,
the west may want to oppose the introduction of the concept of
"ecological integrity" into the CWA, because it ratifies EPA's
change in the purpose of the Act from water quality protection to
protection of aquatic habitat.
Finally, EPA's attempt to engage in basin-wide water
planning and management should be strongly resisted, as this will
develop in the future into an EPA-controlled challenge to state
authority to make water allocation and administration decisions,
and to develop and use interstate water allocations.
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