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. WESTERN STATES WATER May 5, 1995 Issue No. 1094 G recycled paper conserves water THE WEEKLY NEWSLETTER OF THE WESTERN STATES WATER COUNCIL Creekview Plaza, Suite A-201 /942 East 7145 So, / Midyale, Utah 84047/ (801) 561-5300 / FAX (801) 255-9642 Chairman - Larry Anderson; Executive Director - Craig Bell; Editor - Craig Bell; Typist - Cheryl Redding CONGRESSIONAL UPDATEIWATER QUALITY Clean Water Act On May 9th, the House Transportation and Infrastructure Committee plans to take its bill to reauthorize the Clean Water Act, H.R. 961, to the House Rules Committee. The bill is then scheduled for floor debate for the following three days, May 10-12. At this time, the committee plans to inciude an amendment providing that the Federal Energy Regulatory Commission (FERC) could override conditions imposed by states pursuant to Section 401 of the Act, if FERC determines that the conditions conflict with purposes of the Federal Power Act. The amendment was prepared by the hydropower industry to offset the Supreme Court ruling in the Tacoma case (WSW#1046). . Hydropower industry representatives met with WSWC members in Durango to explain their concerns with the Tacoma decision, and a subsequent meeting was planned in Seattle to facilitate further dialogue. However, industry representatives determined that it would not be worth the time and expense to pursue a subsequent meeting, and turned to Chairman Shuster of the House Transportation Committee for a legislative fix. It is not yet clear whether the amendment will be offered as part of a package of amendments recommended by Chairman Shuster, or on the floor as a free standing amendment. State organizations, including the National Governors' . Association, the Western Governors' Association, and the WSWC, are urging their respective members to contact Chairman Shuster's office, as well as other members of the House Transportation Committee and members of their respective delegations, to urge that the amendment not be included in the paCkage offered by the Chairman, and asking them to oppose the amendment as it would substantially impair an important state prerogative. . Although several provIsIons of H.R. 961 make significant changestp the Clean Water Act (WSW # 1092), it is expected to pass the House with little trouble. Democratic opponents, led by Ranking Minority Member, Norman Mineta (D-CA), and Representative Sherwood Boehlert (R-NY) are expected to pursue amendments. . However, their strategy is not yet clear. Regulatory Takings John Leshy, Solicitor of the Interior Department, has provided WSWC with an analysis of two takings bills currently before Congress (S. 605 and H.R. 925). Both bills would compensate property owners whenever certain federal actions diminish property values by amounts exceeding specific percentages (33% and 20%, respectively). The bills define compensable property as including water rights. Mr. Leshy states: "These bills may have sweeping and disruptive effects on existing water management in the United States, especially in the West." He offers several reasons for his conclusion. H.R. 925 applies to specified regulatory laws, including federal reclamation laws and the Endangered Species Act. It requires compensation for reductions in fair market value resultinQ from actions taken or directed by federal agencies. S. 605 applies to federal actions taken under any law and also to state agency actions carried out, funded by, or delegated under federal regulatory programs. Compensation can be based on reduction in fair market value or business losses, whichever is greater. Both bills have an exemption from compensation for actions taken to prevent a "nuisance," as locally defined, but as interpreted by federal courts. Both bills define property as including the "right" to "use" or "receive" water. Mr. Leshy points out: "Water ights are regarded as rights to 'use' water, not to