U.S. High Court Agrees to Rule on State-Federal Water Rights

The Supreme Court said Monday it would decide whether states or federal regulators control the water that flows into hydroelectric power plants--a dispute with vital environmental and economic consequences in the West.

Attorneys for California, joined by 43 other states and key national environmental groups, say state officials may protect fish by limiting the water diverted into power plants.

But federal regulators, backed by the power industry, say that the financial health of hundreds of plants could be threatened if states are allowed to limit the flow of water to them.

The dispute arose over a small privately owned power plant on a tributary of the American River near Placerville in Northern California. But the conflict itself dates back to passage of the Federal Power Act in 1920.

The law gave the Federal Energy Regulatory Commission the authority to regulate all aspects of hydroelectric power plants, but another section of the law said that nothing in it preempts state authority “relating to the control, appropriation, use or distribution of water.”

For more than four decades, the Supreme Court has sided with federal regulators in power plant disputes, but Chief Justice William H. Rehnquist, a states’ rights proponent, may be ready to tip the balance in the other direction.

In the 1946 case of First Iowa Hydro-Electric Cooperative vs. the Federal Power Commission, the high court ruled that the federal regulators may grant a power license without getting a state’s approval.

However, in a 1978 case, known as California vs. U.S., involving federal dams and irrigation, Rehnquist said that states could put conditions on the operation of federal projects. State attorneys hope that Rehnquist, as chief justice, can fashion a majority to overrule the First Iowa decision.

“Our view is that the states are entitled to have their own separate voice in these matters,” said California Deputy Atty. Gen. Roderick E. Walston.

More than half of the nation’s hydroelectric power is generated in the western states, he said, but low levels of rainfall also cut the river flow during several months of the year. In California, there are 492 hydroelectric power plants licensed to operate and use water flowing in rivers and streams, he said. Some are owned by private investors, others by utilities and still others by regional government agencies.

Lawyers for these plants say they were built and licensed with the understanding that they could depend on a single set of water regulations from the Federal Energy Regulatory Commission. It would scare off investors, they say, if states could limit the water flow.

Despite the broad impact of a potential Supreme Court ruling, the actual stakes in the case before the court are quite small.

They concern a trout spawning area in a one-mile stretch of the South Fork of the American River. In 1987, the Rock Creek power plant was licensed to take water out of the river, run it through the turbines and return it to the river one mile downstream. During the dry season, the plant was required to maintain a “minimum flow” in the river of 11 cubic feet per second.

But the state Water Resources Control Board said the plant must maintain a river of 30 cubic feet, nearly three times as much. Otherwise, it said, the trout would suffer.

In response, federal regulatory officials said California had no authority to set its own water-flow requirements, and in June, the U.S. 9th Circuit Court of Appeals upheld that decision. The case of California vs. Federal Energy Regulatory Commission, 89-333, will be heard early next year, with a ruling due by July.

In another action, the court let stand a ruling allowing damage suits against the federal government for injuries caused by servicemen on military bases. This case grew out of an accident at the Point Mugu Navy base near Oxnard. The ruling applies throughout California and the other western states.

In 1980, 10-year-old Christa Washington, who lived in naval housing, was badly burned by an explosion caused by two off-duty servicemen. In February, the 9th Circuit Court of Appeals ruled that the federal government is responsible for the conduct of its servicemen on base and, therefore, must pay for Christa’s injuries. The Justice Department appealed without success. (U.S. vs. Washington, 89-482.)