WSP07982

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 1/8/1993
• Author: Western States Water
• Title: Western States Water 1993 - Issues 973-1024
• Water Supply Pro - Doc Type: Publication

streamflow conditions were appropriate and necessary
to assure compliance with state law, as envisioned
under CWA. The court said, 'the Section 401..,
certificate may include conditions to enforce all state
water quality-related statutes and rules.... Inasmuch
as issues regarding water quality are not separable
from issues regarding water quantity and baseflows,
we...hold that [Washington law on baseflows] qualifies
as an 'appropriate requirement of state law' for
purposes of [CWA] Section 401.'

The court next considered the contention that the
FPA preempted Ecology's action. The applicants
relied on the U.S, Supreme Court's decision In the
Rock Creek case (WSW #836), where the Court held
that FERC has exclusive power to establish bypass
streamflows under the FPA. The Washington Supreme
Court distinguished the Rock Creek holding, noting
that it dealt with the scope of powers saved for states
under FPA Section 27, whereas in issuing a CWA
Section 401 certification Ecology derived authority to
act directly from provisions of applicable federal law,
The court noted that Section 401 of the CWA,
'completely alters the legal context and renders
untenable Tacoma's preemption argument.' The court
continued, 'when the FPA and the [CWA] are
considered together, the comprehensive scheme that
emerges Is one In which Congress left room for the
state to supplement the FPA through the [CWA]
Section 401 certification process.' 'Simply put,' the
court said, 'federal preemption...does not
apply... where a state is acting to fulfill its federally
mandated role....'

The court also rejected the applicant's contention
that Ecology's streamflow was Inappropriate because
it was established to enhance, rather than simply
preserve, the Dosewallips fishery. The court said, 'Our
examination of the record leaves us with the...
conviction that...Ecology's intent was clearly to
preserve... the fishery.'

The ruling may be appealed to the United States
Supreme Court.

WATER QUAUTY

Clean Water Act - Reauthorization

State and local officials testified March 31 and April
1 at CWA reauthorization hearings held by the

Subcommittee on Water Resources and Environment
of the House Public Works and Transportation
Committee. The hearings are the first In a series
(WSW #985). Witnesses identified protecting the state
and local role in water quality management, flexibility
for state and local entities in carrying out CWA
requirements, watershed protection and the related
topic of controlling non-point source pollution (NPSP),
funding, and wetlands management issues as
particularly Important.

.

Several witnesses described the need for flexibility
in meeting the Intent, rather than focusing on the
specific requirements, of federal programs as essential
to relieve administrative and financial pressure on
overburdened state and local regulators. Regarding
watershed management, several witnesses said such
an approach should be taken to pursue the most
efficient and least expensive avenue to improvement
of overall water quality. Holistic and coordinated
approaches to instigating and empowering grassroots,
watershed efforts on many levels are needed,
according to witnesses. Several witnesses also
emphasized the need for Increased funding to carry
out existing federal requirements, as well as any new
mandates that may be established. The plight of rural
communities, with limited resources, and their Inability
to cope with large funding requirements of existing
federal law, was stressed. Testimony on wetlands
called for a more definite goal and direction in national
wetlands policy and consolidation of regulation in a
single regulatory entity.

.

MEETINGS

The Association of State Wetland Managers
(ASWM) and a broad range of cooperating parties will
cosponsor two symposia in May and June: 'Wetlands
and Watershed (Water Resources) Management' will
be held at the Nugget Conference Center, Sparks,
Nevada, on May 10-12; and 'International Wetlands
Symposium - Improving Wetland Public Outreach,
Training and Education,...' will be held at the
Concourse Hotel, Madison, Wisconsin, June 15-19.
Also, ASWM has available a broad range of technical
publications dealing with wetland management, and
plans to have more wetland publications printed in the
next few months. For more information and meeting
registration materials contact John Kusler, ASWM
Executive Director, Box 2463 Berne, New York, 12023-
9746; [phone].

The WESTERN STATES WATER COUNCIL is an organization of representatives appointed by the Governors of .
member states - Alaska, Arizona, Califomia, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, North Dakota,
Oregon, South Dakota, Texas, Utah, Washington, and Wyoming, and associate member state Oklahoma