[Congressional Record Volume 141, Number 76 (Tuesday, May 9, 1995)]
[House]
[Page H4549]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


         AN AMENDMENT ADDRESSING HYDROELECTRIC POWER GENERATION

                                 ______


                          HON. SPENCER BACHUS

                               of alabama

                           HON. GREG LAUGHLIN

                                of texas

                    in the house of representatives

                          Tuesday, May 9, 1995
  Mr. BACHUS. Mr. Speaker, last year, the U.S. Supreme Court issued a 
decision commonly referred to as the Tacoma decision that has created 
friction, conflict, and unnecessary, duplicative regulation for the 
Nation's hydropower projects. Specifically, the Court has interpreted 
section 401 of the Clean Water Act so broadly as to supersede the 
Federal Energy Regulatory Commission's licensing authority over the 
projects under the Federal Power Act.
  The Court's opinion allows State water quality agencies to set 
conditions directly on the operation of hydropower projects, not just 
the discharges they produce. Furthermore, these conditions are not 
limited to standards set under the act but can be based on independent 
State laws that may not have water quality as their objective. The 
Court also said that water quality agencies can evaluate whether a 
project is consistent with the agency's designated uses for the water 
body, not just narrative and numeric water quality criteria. Most 
troubling, the Court also said that the conditions can directly address 
stream flows, even for aesthetic, fish and wildlife, or recreation 
purposes.
  The following amendment, which we plan to offer to H.R. 961, the 
Clean Water Act Amendments of 1995, would restore the Federal Energy 
Regulatory Commission's licensing authority by narrowing the reach of 
the Clean Water Act, in particular section 401, as to hydroelectric 
projects. The amendment would limit State water quality agencies to 
applying narrative and numeric water quality criteria to the project 
discharges. If an agency wants to go beyond those definitive criteria, 
then it would need to submit its recommendations to the Commission for 
consideration as part of the Commission's comprehensive licensing 
review of the projects. Under section 10(a) of the Federal Power Act, 
such recommendations would get serious consideration, along with the 
numerous other environmental, recreational, and other recommendations 
the Commission reviews for each project.
  Amendment to H.R. 961, as Reported Offered by Mr. Bachus of Alabama

       Page 213, after line 5, insert the following:

     SEC. 507. FEDERAL POWER ACT PART I PROJECTS.

       Section 511(a) (33 U.S.C. 1371(a)) is amended by striking 
     ``, or (3)'' and inserting the following: ``; (3) applying to 
     hydropower projects within the jurisdiction of the Federal 
     Energy Regulatory Commission or its successors under the 
     authority of part I of the Federal Power Act (16 U.S.C. 791 
     et seq.); except that water quality certification, unless 
     waived or denied, shall be issued for such projects under 
     section 401 and the water quality conditions in those 
     certifications shall become conditions on project licenses 
     and except that any water quality certification conditions or 
     denial issued under section 401 shall be limited to 
     consideration of narrative and numeric water quality criteria 
     adopted in water quality standards under section 303 and such 
     conditions shall not regulate, or such denial be based on, 
     water use or water quantities; or (4)''.
       Renumber subsequent sections of the bill and conform the 
     table of contents of the bill accordingly.
Vol. 141


WASHINGTON, TUESDAY, MAY 9, 1995

No. 76


House of Representatives