8001

• UCREFRP Catalog Number: 8001
• Author: Western Regional Instream Flow Conference.
• Title: Proceedings, Western Regional Instream Flow Conference.
• USFW Year: 1992.
• USFW - Doc Type: Oct. 2-3, 1992.
• Copyright Material: NO

any interference with the free-flowing nature of a stream,
but I think you know, there're a number of angles there.
One of them is if that initiates if the study of a river for
inclusion in the system initiates in Congress, you can have
the river protected from FERC licensing and other develop-
ments while it's under study. And one of the big problems
with Wild and Scenic is that it can't happen overnight. Very
often the issue arises, and there may be an effort to protect
a river when in fact a FERC license application, permit
application has been filed and this becomes a crisis situa-
tion. There is legislation pending right now as part of the
Energy Bill which would allow state-designated rivers,
rivers that are identified in state outdoor comprehensive
outdoor recreation plans for recreational or wildlife values,
to be excluded from FERC licensing. That has been quite
controversial with the hydro industry, and I would be
loathe to tell you whether or not it's going to pass, but that
is that's an attempt to get the state recreational planning
apparatus rolling and rolling in a way that prevents FERC
from issuing licenses to for projects on streams which a
number of which have been identified as state Wild and
Scenic rivers and outstanding recreational rivers. We had a
situation, I believe recently, in the state of Connecticut
where FERC licensed a project right on top of a state
recreational river that the state had invested a considerable
amount of money in planning to preserve and, as far as I
know, a number of officials probably felt they've done all
they needed to do to preserve it.
A-(Ed Osann) Along those lines, one of the related
provisions that is pending in the Energy Act would bar the
use of eminent domain for the construction of a FERC
license project on lands that had actually been acquired for
park or historical or recreation purposes by state or local
government, and that speaks to the Connecticut example
most directly. I don't believe that's terribly controversial. I
think that's probably likely to survive the process here.
Another point I'd make is that Congress is free to enact
legislation that would protect a particular reach of river
from FERC license projects if it chooses to do so short of
designating that reach as part of the Wild and Scenic river
system. And I believe that was the approach that was taken
in Idaho on the Henry's Fork and that may have been used
in one or two other places.
A-(Charles Gauvin) Add one other little twist on that.
We've seen lately the flip side of the congressional designa-
tion of rivers as free from hydro development. We last year
saw a bill which was initiated by the Virginia congressional
delegation to declare a portion of the Appomattox River
non-navigable and, therefore, outside FERC jurisdiction so
that FERC couldn't impose fish passage license conditions
and other license conditions. I think although Congress is
free to make these designations, that's a bit of a double-
edged sword. You have to be very careful, because what
you start seeing is a lot private legislation to essentially
make regulatory and licensing type decisions in congres-
sional committees, which is, I think most of us would feel,
a pretty poor idea.
2-Katherine Ransel, attorney with American Rivers
Northwest Office, Seattle, Washington:
I just wanted to make a comment on that question with respect
to another side issue and that is in several states there are cases
working their way up under 401 of the Clean Water Act where
the question is whether the states and Indian tribes that have
delegation of 401 authority can set instream flows for various
reasons. In the state of Washington, there's one pending right
now before the Supreme Court for the protection of their
fisheries, and this is in a FERC proceeding. So, it's a very
interesting question. Everybody thought that the Supreme Court
case of California v. FERC took care of that, and we're not ready
to concede that. And these cases are working their way up, and
we're going to have a result, probably in four or five months
from the court of last resort in Washington, so that's something
to watch.
A-(Charles Gauvin) Indeed the state courts of last resort
in Maine and Vermont have upheld state 401 decisions that
sought to protect fish habitat and to protect instream flows
against FERC projects.
Q-Directed to Ed Marston by Stan Bradshaw from Montana,
Trout Unlimited:
In my work on these issues up there I find myself sort of
caught in an ambivalence between the desire to push forward on
getting some meaningful changes in our water policies to
recognize instream flows and the conflict the apparent conflict
between that and also having a real preference for the sort of
rural agricultural environment that we have up there. I'll confine
my comments to Montana. And a number of the people activists
in Montana have expressed that same sort of ambivalence. And
your discussion about parting made me think that this might be
an issue here and that is we're seeing parts of Montana now
begin to undergo this sort of onslaught from people from other
states money people and, frankly, as an overpaid environmental
activist in Montana, the present system allows me the amenity of
enjoying those things. As we see a lot of these people coming in
and buying up the land who may actually be putting it to a less
abusive environmental use, we also see that sort of getting
beyond the grasp of those of us who use it and, frankly, I'm not
too anxious to see from a selfish standpoint Montana Jacksonized
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