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<br />. ' <br /> <br />,e <br /> <br />- <br /> <br />, <br /> <br />nfl163" <br /> <br />FEDERAL ENERGY REGULATORY COMMISSION <br />WASHINGTON, DC 20428 <br /> <br />OFFICE OF THE CHAIR <br /> <br />November 2, 1993 <br /> <br />Mr, D. Craig Bell <br />Executive Director <br />Western states Water Council <br />Creekview Plaza, suite A-201 <br />942 East 7145 South <br />Midvale, Utah 84047 <br /> <br />15'\': ~~) 6' /s <br />4::> . r... .~?> <br />t.';;.' J 1::< ,? <br /> <br />\~~;~ /D' .' .' - _~~i; <br /> <br /> <br />Dear Mr, Bell: <br /> <br />"~<~~.c_. <br /> <br />Thank you for your letter of October 15, 1993, concerning my <br />decision not to proceed with negotiations toward a memorandum of <br />agreement (MOA) between the Commission and the Western States <br />Water Council concerning hydroelectric licensing. I certainly <br />understand your disappointment. But, after reviewing the draft <br />MOA, I concluded it does not provide a sound basis for further <br />discussions because the Commission lacks authority to carry out <br />the type of agreement you propose. <br /> <br />The chief difficulty with the Council's proposed memorandum <br />is its inconsistency with california v, FERC, gt~, 495 U.S. <br />490, ~ denied, 497 U,S. I040 (1990). There, the Supreme Court <br />reaffirmed its long-standing holding in the First ~ case that <br />the federal government occupies the field of licensing and <br />regulating hydroelectric projects, and held that the Commission's <br />authority to set minimum flows for protection of fish and <br />wildlife preempts non-consumptive state water rights laws. <br /> <br />The Council's proposal, if adopted, would effectively <br />reverse the Court's ruling. For instance, it provides for <br />subordination of the Commission's license to existing state water <br />rights, including those established for minimum flow purposes. <br />Similarly, it contemplates blanket Commission recognition of <br />future upstream diversions of water under state water rights that <br />could interfere with a licensed project or even render it <br />uneconomic. Subordination to 'such rights may be in the public <br />interest in a given case, but that decision cannot be made before <br />the fact and the commission cannot, by negotiation, delegate to <br />states its responsibility to make that decision, Similarly, the <br />Commission cannot delegate to states the independent authority of <br />other federal agencies to provide mandatory terms and conditions <br />in Commission issued licenses. <br /> <br />An MOA can certainly be an effective means for bettering <br />relations between government agencies if they properly recognize <br />each participant's legal responsibilities and authority. Indeed, <br />the Commission has MOAs with other federal and state agencies. <br />