State Seeks Full Control Over Water in Its Rivers

Attorneys for California urged the U.S. Supreme Court on Tuesday to give the states broad new authority to regulate the water flowing into hydroelectric power plants.

In court briefs supporting the state, environmentalists argued that states should have full control of water flowing in their rivers and streams so they can protect fish, wildlife and recreational opportunities. In a rare show of unanimity, all 49 other states and the nation’s major environmental groups have lined up on California’s side.

On the other side, the federal government and the utility industry argue that the Federal Power Act of 1920 gave federal regulators “exclusive authority” over all matters affecting hydroelectric power plants. Utility officials fear that in dry seasons states will reduce their water supply and force plants to shut down.

This case, which could rewrite the law on water power, began quietly enough. In 1987, a small investor-owned power plant was set to begin operation near Placerville. Officials of the Federal Energy Regulatory Commission had granted the plant a license to operate and the permission to divert water from the South Fork of the American River.

But state water officials balked, contending that a trout spawning area in the river would be harmed.

This issue is particularly significant on the West Coast because half of the nation’s hydropower is in California, Oregon and Washington, the court was told. California has 492 licensed plants.

“We believe Congress (in the 1920 law) intended to preserve the state’s traditional control over its water rights,” state Deputy Atty. Gen. Roderick E. Walston argued.

For more than four decades, the high court has taken the opposite view. A 1946 ruling said federal regulation of hydropower preempts the state’s authority, and the U.S. 9th Circuit Court of Appeals relied on that precedent in ruling against California in this case.

Several justices Tuesday suggested that the state’s attorney should take his plea to Congress. “Is this the first place you go to change the law?” asked Justice John Paul Stevens.

But the states also have a powerful advocate. Chief Justice William H. Rehnquist, a longtime defender of states’ rights, appeared to take up California’s side.

In 1978, Rehnquist wrote an opinion saying that the states should have authority to control water flowing into federal reclamation areas. Lawyers for California, citing that opinion, say the same principle should be applied to hydropower projects.

But the court’s conservative allies often split on federal-vs.-state cases. Justice Sandra Day O’Connor, a former state legislator, typically sides with Rehnquist in support of the states. However, Justices Byron R. White and Antonin Scalia, who served in the U.S. Department of Justice, usually side with federal officials.

On Friday morning, the justices will vote behind closed doors on this case, California vs. FERC (Federal Energy Regulatory Commission), 89-333. An opinion is expected within three months.