Board Meeting 09/08/1983 - Laserfiche WebLink

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• • Because the plaintiffs do not dispute that the Clean Water Act was a proper exercise of congress ' s constitutional authority, the only question in this case is whether the defendant' s actions were proper under the Clean Water Act. Analysis should therefore focus on the scope of the defendant' s authority under the Clean Water Act, rather than on an emotional flummery of states' rights . Although the defendant' s actions may have a substantial effect on state water rights, such is the case with many federal laws which particulary preempt state water laws. For example, a congressional designation of a river as wild or scenic under the Wild and Scenic Rivers Act . . . will bar most dams and other diversion works from being constructed on the designated section, often limiting the exercise of state water rights . Yet this act has not been successfully challenged as an improper intrusion on state water rights . • CONCLUSION Resolution of this case depends largely on its characterization. If the case is characterized as an attempt by the defendant to condemn the plaintiffs' Colorado water rights, then the plaintiffs ' should obviously prevail . On the other hand, if the case is characterized as an attempt by the defendant to exercise federal police power in a manner required by federal statutes, then he defendant should prevail , even if his actions affect the plaintiffs ' exercise of their water rights. For the reasons set out above, I believe that the latter character- ization is preferable, and the defendant ' s actions were a proper exercise of federal police power, even though they will clearly affect the plaintiffs ' exercise of their water rights. I must limit my decision to the propriety of the exercise of such power. Whether it is prudent to vest such power is a political question which must be addressed to congress not the courts. MEMORANDUM -5- September 6, 1983