[Congressional Record Volume 141, Number 86 (Tuesday, May 23, 1995)]
[Extensions of Remarks]
[Page E1100]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


    TACOMA AMENDMENT TO H.R. 961 CLEAN WATER AMENDMENTS ACT OF 1995

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                           HON. BILL EMERSON

                              of missouri

                           HON. GREG LAUGHLIN

                                of texas

                            HON. RANDY TATE

                             of washington

                    in the house of representatives

                         Tuesday, May 23, 1995
  Mr. EMERSON. Mr. Speaker, my colleagues and I rise today to 
supplement the discussion we and several of our distinguished 
colleagues had on May 11, 1995. We were successful in amending H.R. 
961, the Clean Water Amendments Act of 1995. During the debate, Mr. 
Emerson offered his amendment, and then accepted the substitute to his 
amendment that was offered by Mr. Laughlin and Mr. Tate. The substitute 
for the amendment is called the Tacoma amendment and is described as 
follows.
  The amendment would resolve the uncertainty in regulation of 
hydroelectric projects caused by the U.S. Supreme Court's recent 
decision in PUD No. 1 of Jefferson County et al. Versus Washington 
Department of Ecology et al., known as the Tacoma case. In Tacoma, the 
Supreme Court ruled that State water quality agencies under section 401 
of the Clean Water Act may determine whether a hydroelectric project 
qualifies as a designated use of a water body, prescribe flow 
conditions for the project, and impose conditions on the project under 
either State water quality standards for any other appropriate 
requirement of State law.
  The Tacoma case brings section 401 of the Clean Water Act into 
conflict with the comprehensive licensing process already administered 
by the Federal Energy Regulatory Commission [FERC] under the Federal 
Power Act [FPA]. Under the FPA, FERC exhaustively evaluates and 
balances all public values affected by a project in a lengthy and 
comprehensive process that requires a minimum of 5 years to complete. 
The considerations examined thoroughly by FERC include all aspects of 
water quality as well as a need for power, irrigation, flood control, 
recreation, effects on Indian tribes, effects on Federal lands, 
endangered species concerns, and effects of fish and wildlife habitat.
  Thus, the problem with the Tacoma case is two-fold. First, it creates 
duplication by allowing for 50 mini-FERC processes at the State level 
to be added to the already costly and burdensome process before FERC. 
Second, it potentially leaves hydroelectric licensing conditions in the 
hands of agencies that are charged with maintaining only one value, 
namely water quality.
  In recognition that hydroelectric development frequently presents 
conflicts among competing societal values, there must be an ultimate 
arbiter that resolves such conflicts on the basis of weighing and 
balancing all interests. FERC is charged with filling that role under 
Federal law. If licensing conditions are left in the hands of water 
quality agencies who have no responsibility to the overall public 
interest it is inevitable that licensing decisions will be made on the 
basis of environmental impacts alone.
  The amendment is a compromise approach to the Tacoma problem which is 
supported by the hydroelectric industry. It uses as departure point the 
fact that the Supreme Court in Tacoma explicitly left open the question 
of what happens when section 401 conditions conflict with licensing 
conditions chosen by FERC. The amendment would allow State water 
quality agencies to exercise the broad reach of authority under Tacoma, 
but State-imposed conditions would yield in situations where FERC finds 
inconsistency with the purposes and requirements under the Federal 
Power Act. These situations should be rare.
  The Tacoma amendment is not a perfect solution for the hydroelectric 
industry, but an attempt to meet the States halfway. As directed by 
Chairman Shuster at the full committee markup of H.R. 961, 
representatives of the hydroelectric industry have met with the 
National Governors Association and the Western States Water Council in 
an attempt to achieve a consensus approach. These efforts have not been 
successful; nor have State interests come forward with any alternatives 
of their own. Resolution of the Tacoma issue is essential to the 
continued viability of hydroelectric resources since the majority of 
existing projects will undergo relicensing, and therefore section 401 
certification, within the near future.


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