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o� <br />a\ <br />COMMENTS OF U.S. ENVIRONMENTAL PROTECTION AGENCY <br />beneficial uses provided for in Neb. Rev. Stat., Ch. 46, <br />regulating irrigation or the authority of Nebraska Department of <br />Water Resources." The sentence was part of the section as early <br />as June 1976. Chapter 46 of the state statutes is entitled <br />"Irrigation and the Regulation of Water." It establishes a <br />comprehensive scheme for the regulation of water in the state, <br />and gives the Department of Water Resources "jurisdiction over <br />all matters pertaining to water rights for irrigation, power, or <br />other useful purposes, except as such jurisdiction is <br />specifically limited by statue." R.D. SUPP., 1992 546 -209. <br />As explained elsewhere in this letter, the regulation of <br />flows from Lake McConaughy is essential to the protection of the <br />aquatic life beneficial use of the Platte River in the Big Bend <br />Reach. The various project operation alternatives considered in <br />the RDEIS explicitly or implicitly recognize the connection <br />between flows and such uses ( RDEIS Chapter 2). Yet, NDEQ staff <br />have indicated the department's belief that the final sentence of <br />Section 001, quoted above, effectively elevates the protection of <br />"quantitative beneficial uses," primarily the water's use for <br />irrigation and hydropower production regulated by the Department <br />of water Resources, over all other beneficial uses. <br />"Quantitative beneficial uses" are defined on a case -by -case <br />basis in individual water rights proceedings. Further, <br />determinations concerning "quantitative beneficial uses" are made <br />under state law by an agency entirely separate from the NDEQ. <br />Accordingly, the responsibility for deciding what is a beneficial <br />use of the state's waters, and the resulting priority of use, may <br />be bifurcated in Nebraska. Such bifurcation would not typically <br />be a problem for individual section 401 certification decisions <br />made by NDEQ. Few certifications involve water quantity issues. <br />However, in certain situations specifying minimum instream flows <br />in a section 401 certification could well be essential if water <br />quality standards violations are to be avoided. <br />Section 401 requires that the agency giving the <br />certification be able to state that the proposed activity will, <br />with whatever conditions the agency deems necessary to impose, be <br />conducted in a manner which will not violate state water quality <br />standards. For the Big Bend Reach of the Platte, the beneficial <br />uses component of those standards includes "warmwater" aquatic <br />life and "irrigation" uses. Yet, under the provision in the <br />state regulation discussed above, it may be that irrigation <br />beneficial use determinations by the Department of Water <br />Resources operate to constrain the authority of NDEQ in <br />protecting other beneficial uses, including aquatic life, which <br />are within its purview. Such an arrangement could appear to make <br />it impossible for NDEQ to provide reasonable assurance that the <br />beneficial uses component of the state's water quality standards <br />will be met. Again, EPA is seeking clarification of this matter <br />from the state. <br />RESPONSES TO U.S. ENVIRONMENTAL PROTECTION AGENCY <br />