FederalLawsandLicenses

From Water Wiki

The federal government has important interests in water allocation.

Contents 1 Navigability 2 Energy 3 Federal statutes 4 Trade agreements

Navigability

Streams that are considered navigableunder federal law have a federal navigational servitude--a right under federal law for passage over the waters to ensure navigation between the states. The  U.S. Army Corps of Engineers (USACE) operates dams and reservoirs for multiple purposes. 

Energy

The Federal Energy Regulatory Commission (FERC), a successor agency to the Federal Power Commission, issues licenses to hydroelectric generating facilities over a certain size, and these licenses are important sources of law regarding the timing and size of releases from dams that generate power. The Tennessee Valley Authority also regulates water use for multiple purposes, but with major federal interests in energy and navigability. In the western United States, the Bureau of Reclamation is an important federal actor with respect to water.

Federal statutes

important to water allocation questions:

• Water Supply Act (“WSA”), 43 U.S.C. § 390b(d)

Covers “water supplies for domestic, municipal,
industrial, and other purposes,” specifically acknowledging that
primary responsibility for their development is lodged in States
and localities. Id. § 301(a), § 390b(a). Authorizes storage “in
any reservoir project surveyed, planned, constructed or to be
planned . . . by the Corps of Engineers or the Bureau of
Reclamation” so long as the costs of construction or
modification are adequately shared by the beneficiaries. Id. §
301(b), § 390b(b).

But "Modifications of a reservoir project heretofore
authorized, surveyed, planned, or constructed to
include storage as provided in subsection (b) of this
section which would seriously affect the purposes for
which the project was authorized, surveyed, planned,
or constructed, or which would involve major
structural or operational changes shall be made only
upon the approval of Congress as now provided by law.
Id., § 301(d), § 390b(d).

• Flood Control Act (“FCA”), 33 U.S.C. § 708
• National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et.seq.
• Tennessee Valley Authority Act, § 26
  
• dozens, if not hundreds, perhaps thousands of acts authorizing particular federal water projects

Trade agreements

An important, legally unresolved,  question is the extent to which federal treaties and trade agreements (e.g. NAFTA, GATT) preempt states from regulating water. Concern over this issue is a major driver behind the efforts of the Great Lakes States to work through a federally-sanctioned compact towards control over Great Lakes water.