Bills Seek to Clarify Intended Clean Water Act Coverage

Legislation has been introduced in Congress supporters say would clear up ambiguity in interpreting the Clean Water Act resulting from two Supreme Court rulings and new guidelines aimed at implementing those decisions. Some claim the situation leaves states in the arid West especially vulnerable.
In the House, John Dingell (D-Mich.) and Jim Oberstar (D-Minn.), have introduced the Clean Water Restoration Act. Sen. Russ Feingold (D-Wis.) introduced the Water Resources Restoration Act in the Senate as a companion bill.

The intent of the legislation is to define and strengthen regulatory authority that has been weakened by federal agencies’ response to the two Supreme Court rulings, leaving regulators uncertain about which water bodies are regulated by the 1972 law.

In the first case, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the Supreme Court ruled that the government could not act to protect wetlands “isolated” from navigable waters because of the need to protect migorty birds.

Then last year the Supreme Court decided the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers. That decision reversed a ruling against developer John Rapanos who had filled in wetlands with sand to construct a shopping center.

A split Supreme Court ruled on that case, with five justices saying that the Clean Water Act was restricted to protecting navigable waters, such as lakes and rivers, and bodies connected to them, and four justices arguing that the law applied to other waterways. Although aligned with the majority, Associate Justice Anthony Kennedy’s concurring opinion sharply differed, leaving the lower courts the chore of deciding if the law had been violated on a case-by-case basis.

The rulings and guidelines may be of special concern to state regulators in the arid West, a region with streams that often lack flow during certain times of the year and with wetlands not likely connected to a “navigable” waterway. Whereas, according to the National Hydrolobgy Dataset, about 60 percent of the nation’s streams are nonpermanent, between 80 and 95 percent of streams in arid western states like Arizona, Utah and New Mexico do not flow year-round.

The term “navigable waters” in Section 404 of the CWA sparked much of the controversy; anyone dumping into “navigable waters” needed a permit from the U.S. Army Corps of Engineers. The proposed legislation would resolve the conflict by replacing “navigable waters” with “waters of the United States” and would further clarify the law’s intent by indicating that it would apply to intermittent streams, wet meadows and several other types of non-navigable waters. A savings clause is included confirming that present CWA exemptions, including those for agriculture, mining and silviculture, will be maintained. The bill’s sponsors say the bill would bring the law back in line with the intent of the CWA when it was passed and before judicial decisions confused the issue. All US waters will be protected, not just those that are navigable.
Various industry groups oppose the bill and are organizing strenuous opposition, believing it will bring a storm of lawsuits that will hinder permitting and real estate development. A news release from the National Water Resource Association stated, “No longer will the Clean Water Act be limited to the historic federal concern with navigable waters and Commerce Clause authority under the Constitution. Instead, this proposal will expand federal control over every possible type of water body, puddle, moist land area, man-made waterway, storage facility, conveyance system, holding facility, or re-regulating reservoir. The new definition of ‘waters of the United States’ would include everything from swimming pools and hot tubs to stock watering ponds on private property.”

AZ Raises Concerns About Navajo-NM Water Settlement Act

Arizona has some concerns about a bill introduced to settle a Navajo water rights dispute with the state of New Mexico. The Northwestern New Mexico Rural Water Projects Act, H.R. 1970, would authorize the Navajo-Gallup Water Supply Project to provide the means to build, rehabilitate and fund water infrastructure projects in northwestern New Mexico.

The project’s high cost was a red flag to federal officials. California and Arizona raised other objections. Testifying before the House Natural Resources Subcommittee on Water and Power, Gerald Zimmerman, executive director of the Colorado River Board expressed concern that the project might end up getting a disproportionate share of the Reclamation Fund, to the disadvantage of other western states.

CRB and Arizona also are concerned that the bill not run afoul of the Colorado River Compact. For New Mexico to take water from the San Juan River to serve Navajos in the northern portion of the Navajo Nation would entail a Colorado River transbasin transfer, from upper to lower basin. The Law of the River prohibits transfering Colorado River water between upper and lower basins.

CRB wants sections of the bill authorizing the interbasin transfer amended and authorization to construct facilities to accomplish such transfers be deleted.

Also Arizona and CRB urge that the legislation not be enacted unless a 2003 lawsuit filed by the Navajo Nation against Interior over its Colorado River claims is dismissed. The suit argues that Interior is not justified in allocating uncommitted Colorado River water since it has failed to take into account unquantified Navajo water rights. The suit requests that the court enjoin Interior from allocating any unallocated water from the Colorado River until Navajo rights are quantified.

The case could have very serious and far-reaching consequences for Arizona water planning and policy.

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