[Congressional Record Volume 140, Number 148 (Wednesday, November 30, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: November 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. FORD:
  S. 2563. A bill for the relief of land grantors in Henderson, Union, 
and Webster Counties, KY, and their heirs; to the Committee on the 
Judiciary.


             the kentucky land grantors relief act of 1994

  Mr. FORD. Mr. President, for many years I have introduced legislation 
to help a group of Kentuckians and their heirs get an opportunity to 
have their day in court. Last September, their cause got a giant push 
forward when the Senate unanimously passed a resolution on their 
behalf. The resolution authorized the U.S. Court of Claims to study 
their situation and make a report back to the Senate.
  During this consideration, there has been some confusion as to 
exactly who would be covered under the original legislation. So today, 
I am reintroducing legislation that I hope will clear up any 
misunderstandings or misinterpretations. This new language makes it 
unequivocally clear who is to be covered under my original legislation, 
S. 794.
  The fact is, many folks have gotten the short end of the stick on 
this matter and I hope that they can receive some kind of restitution. 
Anyone who lost their land and their right to buy it back, or the 
mineral rights for that matter, should be considered for restitution. 
Fair is fair, these fine people have waited long enough, let us let all 
of them have their share of justice.
  For those of my colleagues that are unfamiliar with this situation, I 
ask unanimous consent that the bill and the full text of a newspaper 
article on the subject from the Henderson Gleaner be entered into the 
Record.
  I thank my colleagues for their time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2563

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AUTHORIZATION.

       The Secretary of the Treasury is authorized and directed to 
     pay, out of money not otherwise appropriated, to the 
     individuals (and in any case in which such individual is 
     deceased, the heirs of such individual) who were the former 
     owner of properties located in Henderson, Union, and Webster 
     Counties, Kentucky which were condemned or otherwise procured 
     by the United States Government in order to provide the 
     approximately 36,000 acres necessary for the military 
     training camp known as Camp Breckinridge, the sum of $      , 
     such sum being in full satisfaction of all claims by such 
     individuals against the United States arising out of such 
     sale.

     SEC. 2. REASON FOR RELIEF.

       The individuals described in Section 1 assert that they 
     were--
       (1) promised they would be given priority to repurchase 
     land sold by the United States Government; and
       (2) paid less than reasonable value due in part to the 
     refusal of the United States government to compensate the 
     owners for mineral, oil and gas rights.

     SEC. 3. ATTORNEY FEES.

       No part of the amount appropriated by this Act in excess of 
     ten percent thereof shall be paid or delivered to or received 
     by any agent or attorney on account of services rendered in 
     connection with this claim, any contract to the contrary 
     notwithstanding. Violation of the provisions of this section 
     is a misdemeanor punishable by a fine not to exceed $1,000.
                                  ____


      Descendants of Those Evicted for Army Camp Will Get Hearing

                           (By Frank Boyett)

       After three decades of struggle, the descendants of 1,500 
     families evicted from their farms to form Camp Breckinridge 
     in World War II apparently will finally get a full hearing in 
     court.
       The U.S. Senate passed a resolution Tuesday that authorizes 
     the U.S. Court of Claims to study the situation and make a 
     report back to the Senate on possible compensation. U.S. Sen. 
     Wendell Ford has sponsored similar resolutions in every 
     congressional session since 1979, but up to now has never 
     been able to get a unanimous vote in the Judiciary Committee, 
     which is necessary before special relief legislation can be 
     sent to the Senate floor.
       ``All these families ever wanted was to have their day in 
     court and be given the opportunity to rectify the injustices 
     done to them by the government,'' Ford said. ``Their 
     determination and perseverance should be an example to 
     everyone who refuses to give up on what they think is right. 
     They have stayed together, never given up, and now will have 
     the opportunity under this legislation to present their case 
     in a court of law.''
       The story has its beginning more than 50 years ago. In 
     1942, less than two months after the attack on Pearl Harbor, 
     the federal government authorized the construction of an army 
     camp on 36,000 acres in Henderson, Union and Webster 
     counties, with the bulk of the base in Union County.
       Farmers were paid roughly $3.5 million for their land, and 
     were told to vacate almost immediately.
       Most farmers accepted the low payments the government 
     offered, on the promise the government would give them first 
     chance to buy back their farms once the war was over.
       Thousands of men were trained at Camp Breckinridge during 
     World War II, and the camp was reactivated during the Korean 
     War.
       Meanwhile, the law under which the farmers were promised 
     their land back was repealed, and the farmers were unaware 
     that the deadline had passed for them to file claims to 
     reacquire their land.
       In the early 1960s, however, the land was declared surplus. 
     The government subsequently sold the land at auction for 
     about $40 million--much of that money coming from the sale of 
     the coal and oil rights. The farmers were never paid for the 
     mineral rights, because Camp Breckinridge was supposed to be 
     only a temporary military camp.
       At that point the farmers organized the Breckinridge Land 
     Committee and tried to get their land back. They filed a suit 
     in U.S. District Court in Owensboro in 1965, maintaining that 
     they had been promised first chance at the land. The court 
     ruled against them, pointing out that the law under which 
     they made their claim had been repealed and the deadline had 
     long passed for filing claims.
       An appeals court also ruled against them, and the U.S. 
     Supreme Court refused to hear the case.
       The land committee languished for about a decade, and then 
     reorganized in the late 1970s, at which point Ford got 
     involved.
       ``They were not able to get to the merits of their case in 
     a court of law,'' said Robert Mangas, a lawyer who works in 
     Ford's office. ``All we did (with passage of the resolution) 
     was to give them their day in court.''
       Mangas said the U.S. Court of Claims should be able to 
     resolve the case fairly quickly. A decision possibly could be 
     made within a matter of months, he said, since the land 
     committees has kept most of the pertinent documents, and 
     there may be no need for hearings.
       ``They have a lot of discretion on how formal the 
     proceedings get or how much evidence they feel is 
     necessary,'' he said.
       Ruby Higginson Au, whose father owned a major farm in the 
     area, has been one of the leaders of the Breckinridge Land 
     Committee for more than 15 years, and wrote a book about the 
     subject in the mid-1970s.
       ``We are delighted (Ford) was able to get it through this 
     time,'' she said from her home in Prospect. The committee is 
     now looking for a lawyer to represent it before the Court of 
     Claims, she said, and will be meeting at 7:30 p.m. Friday at 
     the Union County Courthouse.
       ``There will be a lot of happy faces there on Friday 
     evening,'' Mrs. Au said.
       ``We are certain it will be a positive recommendation'' 
     from the Court of Claims. ``We feel that we have a very 
     strong case. We had a very strong case in 1965, but the 
     attitude of the judges was that the government never does 
     anything wrong.''
                                 ______

      By Mr. PRESSLER:
  S. 2565. A bill to amend the Fair Labor Standards Act of 1938 to 
exempt employees who perform certain court reporting duties from the 
compensatory time requirements applicable to certain public agencies, 
and for other purposes; to the Committee on Labor and Human Resources.


          THE COURT REPORTER FAIR LABOR STANDARDS ACT OF 1994

  Mr. PRESSLER. Mr. President, on November 8, the American people sent 
a strong, clear signal to Washington: They want less government and 
they want it now. Today, I rise to introduce a bill which addresses a 
problem that illustrates why the American people sent this signal. It 
is a glaring example of the Federal Government sticking its nose into a 
situation that everyone is happy with. Let me explain.
  The U.S. Department of Labor [DOL] has adopted a position concerning 
the status of official court reporters under the Fair Labor Standards 
Act of 1938 [FLSA]. Currently, official court reporters enjoy a unique 
status among Government workers. In most States, they are treated as 
both Government employees and independent contractors. While performing 
their primary duties of recording and reading back court proceedings, 
they are considered employees of the court and are typically 
compensated with an annual salary and benefits.
  However, in addition to their in-court duties, court reporters in 
most jurisdictions are required to prepare and certify transcripts of 
their stenographic records for private attorneys, litigants, and 
others. The reporter and his or her assistants prepare and deliver 
transcripts using their own equipment, without any supervision by the 
court. The court reporter bills the attorney or other client directly 
and collects a per-page fee set by law or court rule. In charging this 
fee, the court reporter usually earns twice the amount or more earned 
during an hour of salaried work for the court. Indeed, it is possible 
for a court reporter to earn more from private transcription work than 
from his or her annual salary.
  When working for a private fee, the court reporter is clearly acting 
as an independent operator, as has been specifically determined by the 
Internal Revenue Service. The fee income is treated as separate and 
apart from the annual government salary for taxation purposes. In fact, 
in my home State of South Dakota, court reporters are required to 
collect and pay sales tax on this income. They also file self-
employment income forms with the Internal Revenue Service.
  The transcription services provided by court reporters are invaluable 
to private parties. They are able to obtain a highly accurate recording 
of court proceedings quickly and reliably. Court reporters are small 
businessmen and businesswomen performing a cost effective and timely 
service. There may be many flaws in our system of justice, but our 
system of court reporting is not among them.
  As I stated earlier, everyone is happy with the current situation as 
it now exists. Everyone, that is, except the U.S. Department of Labor. 
Unfortunately, DOL has not yet recognized the independent capacity of 
court reporters. An August 26, 1994, letter from the Wage and Hour 
Division of the Labor Department took the position that, while 
preparing transcripts for attorneys, litigants, and other parties, 
official court reporters in the State of Oregon still are acting as 
employees of the court for purposes of FLSA. Similar letters have been 
received regarding official court reporters in Indiana and 
North Carolina. Official court reporters in the vast majority of States 
operate in circumstances similar to as these three States.

  If allowed to stand, this interpretation would require State and 
local courts to pay court reporters one and one-half times their 
regular rate of pay for all transcription work performed during 
overtime hours in a given week. The DOL position threatens to 
dramatically impact State and local court budgets. They will either 
have to increase their salary budgets or cut costs elsewhere, possibly 
including job reductions. In return, they would receive nothing except 
additional administrative duties and headaches.
  The Labor Department's position also exposes State and local courts 
to potentially explosive liability costs from court reporters suing for 
overtime back-pay. If a suit is successful, the court would owe the 
reporter at least 2 years worth of overtime back-pay. The amount would 
be doubled if the court could not demonstrate that it was acting in 
good faith and could go back 3 years if the violation were deemed 
willful.
  Faced with exposure to hundreds of millions of dollars of liability 
nationwide, State and local courts are considering dramatic changes in 
their pay practices and how transcription work is to be performed. Many 
of these contemplated changes include severe reductions in the number 
of court reporter positions. Meanwhile, court reporters who continue to 
perform transcription work may be required to do it for substantially 
reduced compensation. In addition to their own loss of income, the high 
level of productivity encouraged by a per-page method of billing would 
be lost. An already overburdened judicial system would suffer even 
greater inefficiencies.
  In short, no one involved in the court reporting system is happy with 
DOL's position. State and local courts would face increased salary 
budgets and liability exposure. Court reporters would lose a 
significant part of their income and, in some cases, their jobs. 
Private parties would lose the productivity and efficiency of the 
current method of transcription.
  So why is this change being considered? After all these years, why 
has the Department of Labor suddenly decided that the Fair Labor 
Standards Act applies in situations never before contemplated? What 
extraordinary benefits will result from this governmental meddling? 
These are all questions better directed to the Secretary of Labor 
because I do not know the answers.
  I do have a solution, however: Keep government out of the situation. 
Don't fix what is not broken.
  The bill I am introducing today would allow an exemption from the 
Fair Labor Standards Act for official court reporters while they are 
performing transcription duties for a private party, provided there is 
an understanding between the court reporters and their State or local 
court employer. The bill also would bar lawsuits by court reporters for 
overtime back-pay.
  Note that only State and local court reporters would be affected. 
Federal court reporters already enjoy a complete exemption from FLSA. 
Passage of my bill would ensure similar treatment for government court 
reporters regardless of whether they work for a Federal, State, or 
local court.
  Interestly, this exemption from the so-called ``protection'' of the 
Federal wage and hour laws is being sought by the very workers the laws 
were designed to protect--the court reporters themselves. They have 
already asked the Department of Labor to reconsider its position and 
the matter is currently under review. Obviously, if the Department's 
position is reconsidered and the exemption is granted, legislation will 
not be necessary. I sincerely hope this is what happens.
  Mr. President, it is not often that labor and management are in 
agreement on the best solution regarding contentious labor issues. In 
this case, however, everyone agrees that the current system serves 
everyone's best interests. Despite the fact that they could recover 
huge back pay awards, the court reporters are willing to forego the 
opportunity to bring suits in order to preserve the current system. 
That is why the National Court Reporter Association strongly supports 
this legislation. The bottom line is: Court reporters do not want the 
protections of the Fair Labor Standards Act for their transcription 
work.
  Again, I hope the Department of Labor eliminates the need for this 
bill by giving a reasonable interpretation to the current law that 
permits labor and management to work these issues out to their mutual 
benefit without the helping hand of the Federal Government. I urge the 
Department to reconsider its position. If it does not, I will act 
quickly in the new Congress in seeking enactment of the exemption 
through legislation.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2565

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Court Reporter Fair Labor Standards 
Act of 1994''.

     SEC. 2. LIMITATION ON COMPENSATORY TIME FOR COURT REPORTERS.

       Section 7(o) of the Fair Labor Standards Act of 1938 9 (29 
     U.S.C. 207(o)) is amended--
       (1) by redesignating paragraph (6) as paragraph (7); and
       (2) by inserting after paragraph (5) the following new 
     paragraph:
       ``(6) A public agency may not be considered to be in 
     violation of subsection (a) with respect to an employee who 
     performs court reporting transcript preparation duties if 
     such public agency and such employee have an understanding 
     that the time spent performing such duties outside of normal 
     working hours or regular working days is not considered as 
     hours worked for the purposes of subsection (a).''.

     SEC. 3. EFFECTIVE DATE OF AMENDMENTS.

       The amendments made by section 2 shall take effect as if 
     included in the provisions of the Fair Labor Standards Act of 
     1938 to which such amendments relate, except that such 
     amendments shall not apply to an action--
       (1) that was brought in a court involving the application 
     of section 7(a) of such Act to an employee who performed 
     court reporting transcript preparation duties; and
       (2) in which a final judgment has been entered on or before 
     the date of enactment of this Act.
                                 ______

      By Mr. WALLOP:
  S. 2566. A bill to amend the Federal Water Pollution Control Act to 
restore State control over the allocation and granting of water rights 
and FERC control over the licensing of hydroelectric projects, and for 
other purposes; to the Committee on Energy and Natural Resources.


              legislation to overturn the tacoma decision

  Mr. WALLOP. Mr. President, I send to the desk for appropriate 
reference legislation to overturn the Supreme Court's decision in PUD 
No. 1 of Jefferson County, et al v. Washington Department of Ecology, 
et al. (generally referred to as Tacoma) in order to restore the 
jurisdiction of the 50 States over decisions with respect to the 
allocation of water and reassert the proper role of the Federal 
Government and the States within the framework set forth in the 
Constitution.
  Tacoma is contrary to the intent of Congress as expressed in the 
Clean Water Act and several other laws, and the results of this 
decision are bad public policy. Tacoma deserves to be overturned, and 
the legislation I am today introducing would do so by amending the 
Clean Water Act to restore the state of the law to where it was prior 
to Tacoma.
  By misinterpreting the Clean Water Act, and by ignoring the extensive 
legislative history of the Federal power Act, the Electric Consumers 
Protection Act of 1986, and the Energy Policy Act of 1992, the Tacoma 
decision threatens State water law and the integrity of the FERC 
hydroelectric licensing process. Tacoma may also give the EPA effective 
control over a host of other federally authorized activities requiring 
a Clean Water Act section 401 certificate, such as natural gas 
pipelines and electric transmission lines crossing waterways, as well 
as structures such as oil and gas drilling rigs sited in waterbodies 
and wetlands. Let me explain why.
  The Tacoma case involved a hydroelectric project proposed by the city 
of Tacoma on the Dosewallips River in the State of Washington. Under 
the Clean Water Act, an applicant for a Federal license for an activity 
involving discharges into navigable waters (such as a FERC license to 
build a hydroelectric project) must obtain a section 401 certificate 
from the State in which the discharge will occur. The section 401 
certificate contains conditions to require the licensee to comply with 
State water quality standards.
  The State of Washington included in its section 401 certificate for 
the project a requirement that the licensee provide minimum stream 
flows for fish habitat--requirements which were clearly unrelated to 
the prevention of water pollution.
  Because the section 401 certificate limited the amount of water that 
could be used for the production of electricity by the project, the 
city of Tacoma protested that the minimum stream flows would render the 
project economically infeasible. More importantly, the city of Tacoma 
contended that imposing stream flows for fish habitat were not proper 
water quality requirements pursuant to section 401 of the Clean Water 
Act.
  The city of Tacoma argued that sections 510(2) and 101(g) of the 
Clean Water Act specifically exclude regulation of water quantity 
allocations--reserving that to the several States. I can understand why 
the city of Tacoma made that argument, because that is what the plain 
language of those sections says. Section 510(2) states:

       Except as expressly provided in this act, nothing in this 
     act shall * * *  (2) be construed as impairing or in any 
     manner affecting any right or jurisdiction of the States with 
     respect to the waters (including boundary waters) of such 
     States.

  Moreover, section 101(g) states:

       It is the policy of Congress that the authority of each 
     State to allocate quantities of water within its jurisdiction 
     shall not be superseded, abrogated or otherwise impaired by 
     this act. It is the further policy of Congress that nothing 
     in this act shall be construed to supersede or abrogate 
     rights to quantities of water which have been established by 
     any State.

  This Clean Water Act language is clear on its face, but apparently 
not so for the Clinton administration. The EPA and the Department of 
Justice decided to read into the Act something that Congress not only 
did not intend, but specifically rejected. They argued that water 
quantity and water quality are inseparable, and thus water quality 
programs cannot fulfill the act's goal of protecting the biological 
integrity of the Nation's waterways without control of stream flows.
  I think I know a little about congressional intent with respect to 
section 101(g), because in 1977 I was the one who added it to the Clean 
Water Act and that provision has generally been referred to as the 
Wallop amendment. There is no question that section 101(g) was intended 
to assure that the Clean Water Act would not be used for the purpose of 
interfering with State water right systems. It reinforced the already 
existing prohibition against interference with State water rights in 
section 510(2), which was part of the original Clean Water Act enacted 
in 1972. As I said on this floor in 1977:

       The amendment speaks only--but significantly--to the rights 
     of States to allocate quantities of their water and to 
     determine priority uses. It recognizes the differences in 
     types of water law across the Nation. It recognizes patterns 
     of use, and the historic allocation rights contained in State 
     constitutions.

  When enacting this provision, the Congress recognized that legitimate 
water quality measures taken under the Clean Water Act may, at times, 
have some incidental effect on individual water rights. The addition of 
section 101(g) was not to preclude minor, incidental effects. We sought 
then, and all Members of the Senate continue to seek now, the 
application of standards necessary to improve the quality of our 
Nation's waters. Everyone favors that.

  But, as is clear from a plain reading of the statute, and as is 
abundantly clear from the accompanying legislative history, Congress 
never intended that a section 401 water quality certificate could be 
used to require activities not related to clean water. For example, 
Congress never intended to allow the State of Washington to use the 
Clean Water Act to require the city of Tacoma to maintain a level of 
stream flow in order to enhance a fishery, or the State of Vermont to 
require the spillage of water over a dam to make the project more 
aesthetically pleasing. Although there may be some who want to employ 
the Clean Water Act to achieve these ends, that is not what Congress 
intended.
  Unfortunately, and to the surprise and dismay of this Senator, the 
Supreme Court did not agree, and based its decision on other than a 
plain reading of the law. It ruled in Tacoma that a State may include 
minimum stream flow requirements in a section 401 water quality 
certificate notwithstanding the plain meaning of the act. The Court 
held that Clean Water Act sections 101(g) and 510(2) preserved only the 
authority of each State to allocate water quantity as between users, 
and did not limit the scope of water pollution controls that may be 
imposed on users who have obtained a water allocation. This has serious 
and far-reaching consequences.
  Under the Tacoma decision, any condition may be imposed to enforce a 
``use'' of a water body designated in a water quality standard under 
the Clean Water Act. Such uses can be extremely broad. For example, 
they may include fish and wildlife habitat, swimming, boating, fishing, 
and other recreational activities. There appears to be no meaningful 
check on the imposition of onerous or even project-breaking conditions 
by section 401 certifications, so long as the conditions relate to the 
designated use. In one case, a license applicant was even required to 
construct access roads and paths, low-water stepping stone bridges, a 
boat launching facility, and a residence and storage building. What 
that has to do with water quality, I do not know.
  Worse yet, the Supreme Court made clear that the scope of its ruling 
reaches beyond the FERC hydroelectric licensing at issue in Tacoma, to 
all federally authorized activities that may result in a discharge into 
waterways and wetlands. These may include:
  Permits under section 404 of the Clean Water Act for the discharge of 
dredged and fill material associated with the construction of water 
supply projects, gas pipelines, electric transmission lines, and other 
structures that must be built in waterbodies and wetlands.
  Permits for installation of structures in navigable waters under the 
Rivers and Harbors Act.
  Permits from the Secretary of Interior or Agriculture for the 
construction of reservoirs, canals and water storage systems on Federal 
lands.
  The Court's decision is particularly perplexing in light of 
Congress's actions in the Electric Consumers Protection Act of 1986 and 
the Energy Policy Act of 1992. In both acts, the Congress considered, 
but affirmatively rejected, any expansion of the EPA's powers over 
stream flows. Furthermore, in the Energy Policy Act of 1992, the 
conference committee quite emphatically rejected an effort to permit 
fish and wildlife agencies to include flows within their conditions, 
and limited them solely to structural modifications. That entire debate 
and determination has been rendered meaningless by the Court's ruling 
that allows EPA to bootstrap impermissible requirements from the Fish 
and Wildlife Service under the guise of a mandatory condition from 
section 401. The careful balancing of fish and wildlife agency 
recommendations agreed upon in the ECPA of 1986 and contained in 
section 10(j) of the Federal Power Act have also been overridden by 
this decision.
  Mr. President, it has been asserted by some that the Tacoma decision 
is a great victory for States rights. As a champion of States rights, I 
would only wish that were true; but it is not. I believe that Tacoma 
actually shrinks State authority to make decisions about their water 
resources; it instead gives the basic authority to the EPA. Let me 
explain why.
  Although under the Clean Water Act it is State water quality agencies 
who issue the section 401 certificate, they do so pursuant to 
Environmental Protection Agency requirements. It can not be stressed 
enough that the Clean Water Act is a federal statute, administered by 
the States under the direction of the EPA. States are involved in the 
issuance of section 401 certificates only if the EPA approves the State 
program; otherwise the EPA issues the certificate. It is the EPA that 
establishes the water quality standards necessary for the State to 
issue such a certificate, and thus it is the EPA that determines to 
what extent and under what conditions the States will be allowed to 
exercise their federally delegated functions. In effect, then EPA gets 
to decide when the States will jump; the States only have the 
discretion to ask the EPA How high?
  Tacoma thus gives the EPA, not the States, enhanced authority to 
prescribe restrictive requirements for water uses designated to protect 
fish and wildlife, recreation, aesthetics or other uses. It also gives 
the EPA enhanced authority to refuse to approve proposed State 
standards that do not adhere to EPA-established requirements. This 
enhanced authority to impose requirements on proposed projects and 
projects seeking renewals is both broad and ambiguous--but it derives 
from the Clean Water Act and it is in the hands of the EPA.
  Since the Tacoma decision, the EPA has taken an increasingly 
interventionist approach to State water allocation issues. In the State 
of Nebraska, for example, where two hydroelectric projects are now 
undergoing FERC relicensing, the EPA has threatened to invalidate--and 
itself assume control over--the State's section 401 certification for 
the projects. the EPA has given strong indications that because 
Nebraska's stream flow allocations are determined through the State's 
water rights process, that the State's water quality program fails to 
comply with the Clean Water Act. Further, the EPA has indicated that 
quantitative water rights for irrigation and hydropower granted 
pursuant to beneficial use determinations under State law must be able 
to be preempted by the EPA or the State water quality agency enforcing 
designated uses for fish and wildlife under the Clean Water Act. What 
is particularly pernicious in this case is that the EPA is not 
concerned with health or safety, but with controlling another Federal 
agency's recommendations. Under the Federal Power Act, fish and 
wildlife agencies make recommendations for conditions in a license. The 
Federal Power Act requires the FERC to give equal consideration to 
those recommendations, but it does not require the FERC to blindly 
accept them. Using the Tacoma decision, the EPA is requiring States to 
adopt those recommendations as a part of the mandatory conditions 
attached to a Clean Water Act section 401 certificate, which is 
mandatory. The Governor of Nebraska has rightly characterized EPA's 
actions as a ``power-grab that will concern all Western States.'' He is 
right. It sure concerns me.
  Another recent example of EPA's zealous and arrogant approach is in 
the State of California, where EPA has sought to impose--over the 
objections of the State--water quantity standards for fish habitat in 
the San Francisco Bay Delta. Enforcement of these EPA dictated 
standards would restrict upstream diversions for irrigation, water 
supply and other beneficial uses.
  In addition to these and other actions, EPA officials have publicly 
made clear that the agency intends to use the Tacoma decision as a way 
to insinuate its control over water allocation issues, in the name of 
watershed protection and ecosystem management, in derogation of State 
authority and private property rights.
  It is evident that under the new Federal land and water use planning 
scheme envisioned by the EPA, the States' role will be rendered 
secondary and subordinate to EPA's centralized control. They will 
merely be the instrument of the EPA. It is also clear that EPA's water 
use determinations under the Clean Water Act will be made with little 
or no consideration of economic impacts or balancing of competing uses 
such as irrigation, water supply, and hydropower.
  I am also very troubled by the Tacoma decision because it will result 
in duplicative and potentially conflicting regulation of hydroelectric 
projects. In the Federal Power Act Congress gave the FERC the exclusive 
authority to license hydroelectric projects. By allowing Clean Water 
Act section 401 certificates to include conditions unrelated to clean 
water, the Tacoma decision creates a schizophrenic federal regulatory 
process for hydroelectric projects. One agency or the other ought to be 
in charge; but not both.
  I am also very concerned that the Tacoma decision will encourage 
extreme environmental groups to demand section 401 certifications (with 
restrictive conditions) on Federal authorizations that are only 
incidental to permits for activities that may result in a discharge. An 
example of such an incidental authorization is a permit for a right-of-
way across Federal lands for a road, pipeline, drilling rig, or 
transmission line that will cross a wetland. The strategic aim of these 
groups is to convert State section 401 proceedings into an alternative 
forum for conditioning or vetoing any and all Federal authorizations 
deemed to clash with the objectives of these particular groups. Thus, 
such a group recently filed a suit in Oregon alleging that a State 
section 401 certification is required even for Federal grazing permits, 
because livestock discharge into waterbodies.
  This is a very troubling decision. I understand the motivation of EPA 
and the Department of Justice in the litigation. They are simply 
continuing this administration's assault on federalism and particularly 
on State jurisdiction and control over water resources. Secretary 
Babbitt has led an assault under the various land management and 
reclamation authorities within the Department of the Interior, and 
Administrator Browner is simply following that example and 
consolidating power within her operation. I am perplexed by the Court's 
decision, however, in large part because the majority opinion was 
written by Justice O'Connor and joined by the Chief Justice and Justice 
Kennedy, three persons who should have some understanding and 
sensitivity to Western water issues and who normally resist Federal 
preemption. Justice Thomas's dissent is precisely on point.
  I do not have an explanation for the Court's rationale in this 
decision. Perhaps they simply believed the administration and thought 
that this was a victory for State's rights. Clearly the State of 
Washington did, although they were wrong, as Nebraska has found out.
  I want to make clear in introducing this legislation that I am not 
opposed to what the State of Washington attempted to do. I believe the 
State of Washington should have that authority as a simple matter of 
its authority to grant or deny a water right in accordance with its 
substantive and procedural laws. I am opposed to the concept that the 
State of Washington can exercise jurisdiction over its waters only when 
some bureaucrat in EPA decides to permit it. I am opposed to using the 
clean Water Act to bootstrap into mandatory conditions the 
recommendations of fish and wildlife agencies that are supposed to be 
the subject of careful consideration and balancing by FERC under the 
Federal Power Act. The Supreme Court was wrong when it failed to 
overturn First Iowa and it was wrong when it entered the Tacoma 
decision. Maybe the Court thought that in Tacoma it was giving the 
States the jurisdiction over the allocation of water that it denied 
them in Rock Creek and other decisions permitting First Iowa to stand. 
If they thought that, they were badly mistaken.
  Mr. President, in large part the elections this year were a reaction 
to the ever increasing intrusion of the Federal Government into areas 
historically reserved to the States and to the continuing subversion of 
the concept of federalism established by the Constitution. Water rights 
are simply one example, although a very important one to those of us 
from the arid West. Government is supposed to be the servant of the 
people, not their master. For good or ill, the sovereign State of 
Washington, not the Administrator of EPA, should make the decisions 
with respect to the highest and best use of the waters of the State of 
Washington. It should not be the objective of the Federal Government to 
constantly experiment with new ways to test the limits of Federal 
authority under the Constitution.
  We have come a long way since 1977 when my amendment adding section 
101(g) to the Clean Water Act was passed. I submit to my colleagues 
that the intent of my amendment has been subverted. Again, that intent 
was to ensure that States' historic rights to allocate quantity and 
establish priority of usage remained inviolate, and that State-granted 
water rights could not be effectively taken away by EPA or State water 
quality agencies under the guise of pollution control. We have an 
opportunity before us now to make a choice about what the purposes and 
scope of the act should be. I, for one, do not believe it should be a 
comprehensive Federal land and water use planning statute that 
federalizes water use decisions in this country. This legislation would 
amend section 101(g), 410, and 510 of the Federal Water Pollution 
Control Act to clarify that the act is limited to protecting water 
quality and may not be used to infringe on State-granted water rights 
or State authority to allocate water.
  Mr. President, I ask unanimous consent that a copy of the bill and a 
section-by-section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2566

       Be it enacted by the Senate and House of Representatives of 
     the United States in Congress assembled,

     SECTION 1.

       (a) Section 101(g) of the Federal Water Pollution Control 
     Act is amended to read as follows:
       ``(g) Authority of States Over Water.--
       ``(1) The authority of each State to allocate quantities of 
     water within its jurisdiction shall not be superseded, 
     abrogated, or otherwise impaired by this Act.
       ``(2) Nothing in this Act shall supersede or abrogate 
     rights to quantities of water which have been established by 
     any State. Federal agencies shall cooperate with State and 
     local agencies to develop comprehensive solutions to prevent, 
     reduce, and eliminate pollution in concert with programs for 
     managing water resources.
       ``(3) Nothing in this Act authorizes the regulation of 
     quantities of water, or impairs or affects any right or 
     authority of a State with respect to the allocation of water 
     (including boundary waters) by such State.
       ``(4) Nothing in this Act authorizes an action which 
     impairs or affects any water right established by State law, 
     an interstate water compact, or a Supreme Court decree.
       ``(5) Nothing in this Act authorizes an action which 
     respect to other matters, including, but not limited to, 
     aesthetics, not directly related to water quality.''.

     SEC. 2.

       (a) Section 401(a)(1) of the Federal Water Pollution 
     Control Act is amended by adding prior to the period in the 
     first sentence the following:
       ``: Provided, That any such discharge will comply with 
     narrative and numeric water quality criteria based on 
     designated uses adopted in water quality standards under 
     section 303 of this Act: Provided further, That such 
     certification shall not regulate water use or water 
     quantities''.
       (b) Section 401(d)(1) of the Federal Water Pollution 
     Control Act is amended by adding ``narrative or numeric water 
     quality criteria under section 303 (not including water use 
     or water quantities),'' prior to ``standard of performance'', 
     and by adding ``related to such limitations, criteria or 
     standards'' prior to ``set forth in such certifications''.

     SEC. 3.

       Section 510 of the Federal Water Pollution Control Act is 
     amended--
       (a) by striking ``(1)'';
       (b) striking ``;'' through ``States''; and
       (c) by adding at the end thereof the following: ``Nothing 
     in this Act authorizes the regulation of quantities of water, 
     or impairs or affects any right or authority of a State with 
     respect to the allocation of water (including boundary 
     waters) by such State. Nothing in this Act authorizes an 
     action which impairs or affects any water right established 
     by State law, an interstate water compact, or a Supreme Court 
     decree. Nothing in this Act authorizes an action with respect 
     to other matters, including, but not limited to, aesthetics, 
     not directly related to water quality.''
                                  ____


                      Section-by-Section Analysis


                               Section 1

       This section amends section 101(g) of the Clean Water Act 
     (``the Act''), which provides that the authority of each 
     State to allocate quantities of water within its jurisdiction 
     may not be superseded, abrogated or otherwise impaired by the 
     Act, and that the Act shall not supersede or abrogate rights 
     to quantities of water that have been established by any 
     State. The first two paragraphs of this section essentially 
     restate section 101(g), though with one significant 
     difference. The new section omits the phrase that section 
     101(g) is ``the policy of Congress''. Consequently, the new 
     section eliminates any possibility that the section merely 
     expresses a Congressional policy that State water law and 
     water rights should be accommodated where possible. Instead, 
     the section is a direct statement of law and establishes a 
     barrier between water quality and water quantities. The 
     intent is to completely reject any assertion that there is a 
     relation between quantity and quality and that regulation of 
     quantity could be accomplished through regulation of quality.
       This section also adds three additional paragraphs to 
     section 101(g). The first paragraph expressly states that the 
     Act does not authorize the regulation of quantities of water, 
     nor does it impair or affect the authority of States 
     respecting the allocation of water. The second paragraph 
     expressly states that the Act does not authorize actions 
     impairing or affecting any water right established by State 
     law, interstate water compact, or Supreme Court decree. The 
     last paragraph expressly states that the Act does not 
     authorize any action concerning other matters, such as 
     aesthetics or construction of boat ramps, not directly 
     related to water quality.


                               Section 2

       This section amends section 401 of the Act, which requires 
     that applicants for Federal licenses or permits for 
     activities involving discharges into navigable waters, such 
     as a license to build a hydropower project, must obtain a 
     certification from the State that the activity will comply 
     with State water quality standards. Section 2 of the bill 
     makes clear that the discharge must comply with narrative and 
     numeric water quality criteria based on designated uses 
     adopted in water quality standards under section 303 of the 
     Act. The section also provides that State 401 certifications 
     may not regulate water use or water quantities. Lastly, the 
     section clarifies that the limitations set forth in the State 
     certifications, which become conditions of the Federal 
     license or permit, are restricted to narrative or numeric 
     water quality criteria under section 303 of the Act.


                               Section 3

       This section amends section 510 of the Act, which concerns 
     State authority. The amended section provides that nothing in 
     the Act authorizes the regulation of quantities of water, or 
     impairs or affects any right or authority of a State 
     concerning the allocation of water by the State.
       In addition, this section provides that the Act does not 
     authorize any action impairing or affecting any water right 
     established by State law, interstate water compact, or 
     Supreme Court decree.
       Finally, this section provides that nothing in the Act 
     authorizes any action with respect to other matters, such as 
     aesthetics, not directly related to water quality.

                          ____________________