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<br />,e <br /> <br />" <br /> <br />I <br /> <br />00103; <br /> <br />Council Members <br />November 12, 1993 <br />Page 2 <br /> <br />As you no doubt know, the term "navigable waters" in the Clean Water Act is very broadly <br />defined to include all "waters of the United States." Designated uses must be included in water <br />quality standards along with the criteria for such waters based upon such uses. The basic use <br />designations contempiated by the statutes and/or EPA rules are: public water supply; protection and <br />propagation of fish, shellfish, and wildlife; recreation; agriculture; industry; and navigation. <br /> <br />The state of Washington relied on the current language of the Act to defend its imposition of <br />an instream flow requirement in a Section 401 certificate to ensure compliance with Washington's <br />water quality standards. The Washington Supreme Court upheld this action. The court said: "the <br />Section 401...certificate may include conditions to enforce all state water quality-related statutes and <br />rules.... Inasmuch as issues regarding water quality are not separable from issues regarding water <br />quantity and baseflows, we"'hold that [Washington law on baseflows] qualifies as an 'appropriate <br />requirement of state law' for purposes of [CWA] Section 401." The court also rejected the applicant's <br />contention that the Federal Power Act, as interpreted in the Rock Creek case, precluded the state <br />action. However, as earlier indicated, other courts have reached different results, finding that 401 is <br />limited to control pollution discharges, and the U.S. Supreme Court has agreed to review the <br />Washington ruling. It is expected that states will be supporting Washington's position in the form of <br />an amicus brief. However, seeking a clarifying amendment from Congress is not seen as inconsistent <br />with this effort. <br /> <br />Several states and public interest groups have voiced strong support for the clarifying <br />amendment (the Council testified in support, consistent with its position on reauthorization of the <br />Clean Water Act). However, hydropower interests are lobbying intensely in opposition. The Senate <br />Subcommittee on Clean Water, Fisheries and Wildlife is currently in the process of a write-up with the <br />hope that they can pass a bill out of Subcommittee for consideration by the full Senate Environment <br />Committee before the end of this session. <br /> <br />Also, in light of the response from the Federal Energy Regulatory Commission to any further <br />negotiations, the possibility exists that a bill will be introduced similar to S. 106 in the last Congress, <br />which would amend the Federal Power Act to address state concerns. <br /> <br />In light of these developments, you may wish to provide copies of the enclosed letter to <br />members of your Congressional delegation in support of one or both of the above Congressional <br />proposals to address these longstanding issues. I am including, for your reference, a copy of my <br />letter to Ms. Moler which generated her response, and a copy of S. 106. <br /> <br />If you have any questions regarding the foregoing, or if we can be of any assistance, please <br />let us know. <br /> <br />Enclosures <br /> <br />f:\cheryl\11-12com.me <br />