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

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VV'ESTER.N STATES VV'ATER. COUNCZLo

Creekv;.., Pltua, Suite A-201/942 East 7145 South/MidvaJe, Utah 1J4IJ47/(801) 561-53IJ() / FAX [phone]

MEMORANDUM

TO:

Council Members

L& FROM:
DATE:

D. Craig Bell, Executive Director

November 12, 1993

RE:

Response from the Federal Energy Regulatory Commission

Enclosed please find the letter I received from Elizabeth Moler, Chair of the Federal Energy
Regulatory Commission, She was responding to my letter asking for written clarification on her
decision not to proceed with negotiations toward a memorandum of agreement between the
Commission and western states concerning hydroelectric licensing.

"

The substance of the letter is described in the enclosed newsletter article. The bottom line is
that Ms. Moler viewed the draft MOA as an attempt to reverse the Court's ruling in California v. FERC
(the Rock Creek case). While conceding that an MOA could be an effective means for bettering
relationships, she states that "these agreements are for the purpose of improving consuitation and
cooperation, and do not administratively reverse the law as written by Congress and interpreted by
the courts."

The draft MOA was prepared by Council members and submitted to FERC last April. The first
official response was communicated by John Clements, Deputy Director of the Hydropower Ucensing
Division, at our recent meetings in October. He conveyed the substance of Ms. Moler's conclusions,
noting her view that the kinds of changes addressed in the MOA would have to be made by the
Congress.

With this in mind, I wanted to remind you of current Congressional activity regarding these
matters. As you know, S. 1114, a bill to reauthorize the Clean Water Act, includes language amending
Section 401 of the Clean Water Act under which states are authorized to certify or refuse certification
for a proposed project requiring a federal permit or license. Without such certification, or a waiver
thereof, no federal license or permit may be granted to the proposed project. Various courts have
reached different results with regard to the scope of this section, including the question of whether the
certification can cover protection of designated uses included in water quality standards. Section 602
of S. 1114 would clarify Congressional intent by adding to the first sentence of Section 401 (a)(1) an
amendment, so that the sentence would read in pertinent part as follows:

,

Any applicant for a federal license or permit to conduct any activity...which may result in any
discharge into the navigable waters, shall provide the licensing or permitting agency a
certification from the state in which the discharge originates or will originate...that any such
discharge will comply with the applicable provisions of Sections 301, 302, 303, 306, and 307 of
this Act, and that anv such activitv will complv with water Quality standards adopted under
Section 303 and allow for the protection, attainment, and maintenance of desiQnated uses
included in the standards."