ML042790316

Summary of Statutory and Other Legal Restrictions on Water Use in the Vicinity of BFN

ML042790316
Person / Time
Site:	Browns Ferry
Issue date:	05/27/2004
From:	Burzynski M Tennessee Valley Authority
To:	Document Control Desk, Office of Nuclear Reactor Regulation
References
Download: ML042790316 (1)

Text

SUMMARY

OF STATUTORY AND OTHER LEGAL RESTRICTIONS ON WATER USE IN THE VICINITY OF BFN TVA has substantial authority to control water withdrawals from its reservoir system if they adversely impact TVA's responsibilities under the TVA Act, including for navigation and power generation. Note, however, that except for a few isolated locations, water supplies in the Tennessee Valley region are adequate and are expected to remain so for several more decades.

TVA's authority over the withdrawal and use of water arises in two contexts: (1) the authority of the United States under the Commerce Clause of the U.S. Constitution as exercised in the enactment of the TVA Act, and (2) as a riparian property owner. The former provides TVA significant authority over water withdrawals that would adversely affect TVA's ability to carry out its responsibilities in the Tennessee River system. The latter potentially is subject to state control of water within each state's jurisdiction.

As the federal entity charged by the TVA Act with managing the Tennessee River system, TVA exercises federal authority to control the waters of the system for commerce. This includes not only the right to control water for purposes of navigation, flood control, and power generation, but also watershed development and protection. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 426 (1940). TVA, not the states, generally establishes how its integrated system of reservoirs should be operated and how the water in its system is to be allocated.

Because TVA has custody and control of significant property along the reservoir system, TVA also has the same riparian rights to use water as similarly situated private property owners. As a riparian, TVA has the right to use water flowing across or adjacent to TVA property in reasonable ways. TVA can file a legal action to prevent water uses that are unreasonable and infringe on TVA's right to make reasonable use of the water. What constitutes reasonable use would be a question of state law. As long as states do not harm TVA's current riparian rights, they are free to modify their water rights systems. United States v. Rio Grande Dam and Irrigation Co., 174 U.S.

690, 703 (1899). State control over riparian water rights does not diminish TVAs control over the water in the Tennessee River system as the federal manager of that system.

The following summarizes pertinent water-related legislation in Alabama that is potentially relevant to BFN (Wheeler Reservoir levels and flows):

Alabama Principal Sections 9-10B-1 to 30, Alabama Water Resources Act Legislation Authorized All persons, defined to include federal and state agencies, who divert Withdrawals more than 100,000 gallons per day must file a declaration of beneficial use providing estimated quantities and identifying beneficial uses.

Permits A Certificate of Use must be obtained. There is no statutorily prescribed expiration date for certificates, and permitting agency must issue a certificate to anyone who files a declaration of beneficial use.

Exclusions In-stream uses including recreation, navigation, water oxygenation systems, and hydropower generation are excluded. Nothing in the law is to affect rights of riparians or the rights, duties, or power of state agencies.

Use Restrictions Use in capacity stress areas can be restricted.