Flow Protection through Federal Water Quality Law and Regulation

Overview

The intent of the US Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Water quality components of the Act are aimed at protecting the full scope of benefits that clean and abundant water provide to society at large. Instream flow is fundamental to achieving these goals. Rising demand for water withdrawals, recent droughts, climate change and the highly engineered nature of many of our streams threaten existing and classified designated
uses that are dependent on flow. These include aquatic life, primary and secondary recreation, and water supply. The Clean
Water Act does not allow the impairment of existing and classified designated uses of streams and rivers in favor of off-stream uses.

State water quality standards required under the Clean Water Act are made up of beneficial uses, narrative and numeric criteria, and the anti-degradation policy. The courts have been clear that water quality standards can be affected by water flow and that regulation of flow as necessary to protect a designated use contained in a water quality standard, such as propagation of fish
and wildlife, falls under the authority of the Clean Water Act.

This workshop will focus on how the US Clean Water Act can be used to protect instream uses and strategies to better ensure flow protection. Flow enhancement and protection can be integrated into numerous state and federal water quality programs – Section 401 water quality certification, stormwater, TMDL, monitoring and assessment, standards, etc. Different approaches that are
being applied or can be used in the Southeast, Northeast and Western regions of the country will be explored. A brief comparison of U.S. law and regulation to those of Canada and Mexico that may be used for flow protection will also be provided.

Round 1: 8:30 AM to Noon
Round 2: 1:30 PM to 5:00 PM

Agenda

  • Introduction of Workshop and Brief Overview of Canadian and Mexican Federal Laws Similar to US Clean Water Act – Gerrit Jöbsis, American Rivers (15 minutes)
  • The US Clean Water Act in Context with other Federal Laws and Regulations – Richard Roos-Collins, The Water and Power Law Group (30 minutes)
  • The US Clean Water Act, Flow Protection and Water Quality Regulations – Susan Hansen, USEPA Region 4 (20 minutes)
  • How Flow Regulation can be Integrated into Numerous Water Quality Programs – Lisa Perras Gordon, EPA Region 4 (15 minutes)

Break (30 minutes)

  • Regional Flow Initiatives
    1. EPA Region 4 – Southeast (20 minutes)
      • Approaches used by EPA Region 4 – Lisa Perras Gordon
      • Advancing Tennessee’s Flow Programs – Paul Davis, TN Dept. Environment and Conservation
    2. California and the Pacific Northwest (20 minutes) – Richard Roos-Collins
      • Prior Appropriation and the Clean Water Act – Conflicting Authorities?
      • Approaches used by State and Federal Agencies
    3. EPA Region 1 – New England (30 minutes)
      • Evolution of federal and state programs– Ralph Abele, EPA Region1
  • Panel Session: Advancing Flow Protection at Regional and State Levels(30 minutes)
    Paul Davis, Richard Roos-Collins, Susan Hansen, Lisa Perras Gordon, Ralph Abele and Gerrit Jöbsis

Speakers

Ralph Abele is the Instream Flow Coordinator at EPA Region 1. He leads EPA’s instream flow efforts and works extensively with the New England states to develop state flow policies. He has been with EPA since 1998. He began his career with the U.S. Fish and Wildlife Service in 1979. He holds a B.S. in Geology from AlleghenyCollege and a M.S. in Geology from the University of Massachusetts.

Paul Davis serves as Director of the Division of Water Pollution Control in the Tennessee Department of Environment and Conservation. Paul has worked in the water pollution control program since 1974 and has been director since 1988. He has undergraduate and graduate degrees from the University of Tennessee and is licensed to practice environmental engineering in Tennessee.

Lisa Perras Gordon has worked at the EPA Region 4 office in Atlanta since 1985. For the past ten years she has worked in the development and implementation of Water Quality Standards. Ms. Gordon has been addressing issues relating to flow alteration and helped to initiate the creation of the EPA Region 4 Water Protection Division Flow Alteration cross-program workgroup. She earned her B.S. from SUNY Albany in NY.

Susan Hansen is an Assistant Regional Counsel in the U.S. Environmental Protection Agency, Region 4’s Office of Water Legal Support. Among her duties, Ms. Hansen has worked on issues relating to water quantity and quality and is the legal representative on the Region’s newly created Flow Alteration Workgroup. Ms. Hansen received her J.D. degree from GeorgiaStateUniversity in 1999.

Gerrit Jöbsis is Southeast Regional Director for American Rivers, a national conservation organization, leading efforts to protect and restore the region’s rivers and their clean water to sustain people, wildlife and nature. For more than 20 years, Gerrit has worked with conservation organizations, and state and federal agencies on hydropower relicensing, instream flow protection, and an array of ecological and recreational issues affecting rivers, wetlands and their waters.

Richard Roos-Collins is Principal in the Water and Power Law Group based in the San Francisco Bay Area.  Since 1991 he has represented public agencies, non-profit organizations, and other entities in cases to enhance the environmental and economic benefits of resources management.  He specializes in complex settlement negotiations.  He formerly was DeputyAttorney General, California Department of Justice (1989-1991) and Attorney-Advisor, U.S. Environmental Protection Agency (1986-1989).