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<br />
<br />O"l~l~
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<br />January 24, 1992
<br />Issue No. 923
<br />
<br />WESTERN
<br />STATE:8WATER
<br />
<br />eweB
<br />JAN Z 9 1992
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<br />TIlE WEEKLY NEWSLETIER OF TIlE WESTERNSTATESWA1ER COUNCIL
<br />
<br />Creekview Plaza, SUite A-201 I 942 East 7145 So. I Midvale"UtaIJ, 84047 I (801) 561-5~OO,1 .fAll:,(801) 255-9642
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<br />editor - Tony Willardson
<br />typist - carrie curvin'
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<br />ENERGYIWATER QUALITY
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<br />FERC/Clean WaJ.er Act-Section 401
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<br />The Federal Energy Regulatory Commission
<br />(FERC) has issued a new rule governing the submittal';
<br />of proposed hydropower license conditions and
<br />establishing a comprehensive prefiling consultation
<br />process. Effective January 2, the final rule was
<br />published on December 2 (56 FR61137-159). Before
<br />filing for a license, applicants 'must consult with
<br />federal and staJ.e resource agencies, and Indian tribes
<br />(see WSW #916). Of particular note, water resource
<br />management agencies specnically include 'agencies
<br />administering disposition of water rights.'
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<br />Regarding state water quality certification, the
<br />revised rule requires an applicant provide FERC with
<br />'proof of the date on which the certifying agency
<br />received the request for water quality certnication,'
<br />but does notrequire,that.it,Jlecompleteor,fiI,e,d 'in
<br />accordance with applicable law.' The state certifying
<br />agency is deemed to have waived the certnication
<br />requirements ....n it has not denied or granted a
<br />request...within one year.... ',of"th,e ,date it was
<br />received. Certifying agencies that haVEl,notaCted on
<br />a pending requElslby the effective date, January 2,
<br />will have one year from that date-in which to grant or
<br />deny certnication and avoid:awaivElr. ," Further; ,FERC
<br />has in the past requirEldan applicant to file for a new
<br />state water quality certnicate whenever any material
<br />amendment was made to a license application: Now
<br />a second water quality review will be required only n
<br />the new proposal'would have a material adverse
<br />impact on the water quality in the discharge from the
<br />'proposed proj8et." '
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<br />These changes were opposed by the National
<br />Wildlne FederaJ.ion, American Rivers. the State of
<br />Oregon, and the Calnornia Water Resources Control
<br />
<br />0,'
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<br />chaiJ;1llan ';;" William'H.Young,
<br />executive director'-Craig,Bell
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<br />Beard, which argued they go beyond FERC's
<br />authority, invade states' powers to make water quality
<br />determinations, conflict with state court legal
<br />precedents, and, attempttCJo restrict states' powers
<br />under the Cle;!n Water ActSeC!ion 401 (to cOlldition
<br />dlrtnication,and require 'thai the applicant,:'saJ.isfy
<br />other appropriate state laws); FERC Commi,ssioner
<br />Elizabeth Anne Moler agreed. Dissenting in part from
<br />, the order issuing the rule, Moler observed that under
<br />the Clean Water Act, 'Water quality certnication is a
<br />matter left sOleIY,I(ilj the. Sl;!te'or other certifying
<br />authoril?; not tcfFERC. Asihe.'Congress recognized.
<br />AT]he purpOse of the certnication mechanism
<br />provided in this law is to assure that the federal
<br />Ucensing or permitting agencies cannot override state
<br />water quality req'uirements."That purpose cannot be
<br />met under the CommiSSion's regulations.'
<br />
<br />Commissioner Moler also took exception to
<br />changes in the Commission's determination of a
<br />fishway.,While now recognizingthe need fpr both
<br />upstream and downstream fish passage tacilitie,s. ,the
<br />_ -. _1, "._".
<br />new rule attempts to define which types of fish can
<br />be protected with fishways. Fishways, by law. can be
<br />required by th,e Secretaries oflnteriorand Commerce.
<br />Moler states, 'TheCommiilsion here trespasses on
<br />this statutory charge, no less than when it originally
<br />and wrongly decided to limit fishways, to only
<br />upstream applications. The Commission's decision to
<br />limit the statutoiy exercise 'of the authority oUhe two
<br />cabinet officers was accompanied by muchrhetoric....
<br />It is not for uS...to police the Secretaries.....
<br />
<br />Moler concludes, 'ThelWo aspects of the rule
<br />from which I dissent share a common thread. In
<br />each the majority acts to limit statutorily prescribed
<br />authorities of other agencies, 'state and federal. . This
<br />is a disturbing trend. The error lies in the majority's
<br />seeming inability to recognize the limits of its own
<br />jurisdiction.'
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