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,d view ot what constitutes the publiC mterest, we reject these sub- md not so subtle attempts to dismantle the prior appropriation :rine and conclude that a reassignment of the 404 permitting func- from the Corps to EP A is not in the public interest. However, the 10rs remain convinced that a water quality/quantity synthesis is ;ible only through rigorous regulation of point and non point pollu- s, so that the states may continue their historic role of allocating ~r for beneficial use under the appropriative system, without even- federal usurpation. i The United States Supreme Court has held that the jX>tential ie of federal regulatory jurisdiction under the commerce clause'6 is ~mely broad. 17 But federal water quality law, specifically the In Water Act, contains substantial protections for water rights. : I of this article examines the carefully crafted compromise of 7, by which Congress retained the jurisdictional reach of section 8 of the Act, but kept permit issuance with the Corps and inserted Ion 101(g)19 to safeguard state water allocation systems and deter- ~tions. Section 10 1 (g) was adopted in direct reaction to the sug- ion of the Water Resources Council in 1977 that water quality .lations should be utilized to impose instream flow requirements other riparian values upon the states to rectify water quality ,lems.20 Part II discusses section 10 1 (g), including its historical and legal tage and its application to federal permitting decisions by the )s and EP A. In the mid-nineteenth century, Congress severed the ~r from the public lands, disclaimed the riparian doctrine as the of the nation, and deferred to the states for the allocation of water the creation and administration of water rights, with the very lim- exception of the navigation servitude21 and federal reserved water ~s. 22 In the 1977 Clean Water Act, Congress reaffirmed the his- ! role of state water systems in the federal process, and federal ! ~. u.s. CONST. art. 1, ~ 8. cI. 3. See generally L. TRIBE, supra note 9, ~~ 5~4 to -8, at 305-17. r. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537-57 (1985) (federal Fair Labor ~rds Act held to apply to stale and municipal employees); see also Natural Resources Defense U.... Callaway, 392.F. Supp. 685, 686 CD.D.C. 1975) (general jurisdictional reach ofelean Water fnstrued broadly). I. 33 U.S.c. 11344. I. Id. 11251(.). ._ Hobbs & Raley, supra note 1, at ~ 24.03[1]. I. United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702-03 (1899). !. California v. United States, 438 U.S. 645, 662 (1978).