Accommodations of the Appropriation Doctrine and Federal Goals Under Sections 208 and 404 of Public Law 92-500 and Section 10 of the Rivers and Harbors Act of 1899

We have been drawn into this present inquiry from the safe space of our traditional state water law practice, largely because of our apprehension of irrigation return flow pollution regulation and federal control over dredge and fill activities and navigation impediments. The two topics have turned out to be rather clearly separable and we have accordingly divided the work. Nevertheless, the general fear of the federal presence is a thread common to both topics. We are mindful of Professor Corker's remarks to you in 1971 in which he observed that most commentators on states' rights sound like Paul Revere: The FEDERALS Are Coming!1

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So be it. It appears that they are coming from several directions, that they began arriving a long time ago and that their presence cannot now be removed. The only hope is to lull them into some sort of complacency by accomplishing their purpose for them, thereby retaining the critical state sovereignty to ourselves.

SECTION 208 OVERVIEW

After the decision in NRDC v. Train (the Flannery decision)2 that the Environmental Protection Agency could not categorically exempt small irrigators from point source regulation of irrigation return flow, we were awakened to a new federal act. The Federal Water Pollution Control Act Amendments of 19723 set out a broad federal program aimed at cleaning up the nation's waters