Published on February 19, 2014
Water Law and Policy in the United States State Affairs Director Chad A. Forcey ChadForcey@irrigation.org
What is the purpose of the Irrigation Association? Vision Be the recognized authority on irrigation. Mission Promote efficient irrigation. Unifying Statement Ensure water is available for irrigation for future generations.
What‟s our biggest challenge in State Affairs? To Promote Efficiency. And efficiency can mitigate problems related to the diverse water resources of the United States.
Water Resources in the United States
A strong need for irrigation: areas where there is less than 20 inches need irrigation. (U.S. Geological Survey)
Precipitation minus Potential Evapotranspiration
Groundwater Resources: Western U.S. (white – no groundwater, colored areas indicate various types of groundwater)
Groundwater Resources: Eastern U.S. (white – no groundwater, colored areas indicate various types of groundwater)
Water Law and Policy in the United States
Common Law vs. Statutory water rights: • Common law riparian water rights: many states in the Northeast, Midwest and South – You own your water, and you can use water on your land, and beneath, as you chose, provided you do not negatively impact public health, welfare, and safety. – Rainwater may/may not be yours. • Statutory water rights: states in the West and Southwest– Water is owned by the state (or federal government in some cases), and is yours to use after receipt of state or federal permit. – Rainwater may/or may not be yours.
Use of Surface/Subsurface Water for Irrigation: • If your state has common law riparian water rights: – Very few, if any, restrictions for irrigation. • If your state is has statutory water rights: – Farmgate distribution: controlled by state/federal permit. – Landscape irrigation: controlled by state law, such as AB 1881 in California. • Restrictions due to drought: – Challenging aspect of water law and policy. – The IA is heavily involved in this issue. – More to come later in the presentation …
Use of Municipal Water for Irrigation: • Governed by backflow process, paid for by end user: – Backflow device installation, repair and testing – governed by state/local permitting, licensing, and certification. • Governed by irrigation contractor licensing, in certain states. • Restrictions due to drought (we‟ll discuss later in the presentation).
Where do we have licensing?
The Great Divides in American Water Law and Policy Water Quantity / Water Quality Land Use/ Water Resources Surface / Subsurface East / West Water Systems / Ecosystems Federal / State Adapted from Adler and Straube, 25 Wm. & Mary Envtl. & Pol‟y Rev. 1 (2000)
Surface and Subsurface • Surface Water: Rivers, lakes, streams, ponds, wetlands. • Subsurface Water: Groundwater (water table), aquifers, deposits (mines, caves, shafts)
Federal Water Legislation • CWA (1972): The Clean Water Act brought the federal government into the surface water regulation business, and has driven state policy ever since. • Since 1972, two thirds of all states have placed some legal constraint on the authority of state and local government officials to adopt aquatic resource protections beyond “waters of the U.S.” – Stringency limitations – Property-based limitations – Combinations of the two • Half the states have some provisions that extend protections beyond “waters of the U.S.” – Some pre-date stringency limitations and may not be retro-active – Limitations may only be partial
Other Water Legislation • SDWA – Safe Drinking Water Act (1974): Created national standards for drinking water in public water systems – regulates subsurface water. • ESA – Endangered Species Act (1973): Mandates restoration of species deemed endangered. Affects water policy tremendously, through surface and subsurface regulation, to restore aquatic species, particularly fish (salmon, smelt) through environmental and bio engineering, and water dispersal controls. • In our presentation today, we will focus on the CWA, as it has created the basis for state and federal water law and policy since 1972.
The Clean Water Act “Navigable” Waters: Waters of the U.S., including Territorial Seas 303 Water Quality Standard & TMDLs (Chesapeake Bay, M4 permitting) 311 Oil Spill Prevention Plans 401 State Certifcation 402 Pollutant Discharge Permits 404 Dredge and Fill Permits “TMDL” is a Total Maximum Daily Load, a watershed scale plan to lower nutrient discharge
The Clean Water Act “Navigable” Waters: Waters of the U.S., including Territorial Seas 303 Water Quality Standard & TMDLs States Tribes EPA FWS 311 Oil Spill Prevention Plans EPA 401 State Certifcation 402 Pollutant Discharge Permits States Tribes States EPA 404 Dredge and Fill Permits States EPA USACE EPA includes Regional Offices, FWS includes Field Offices, USACE includes Division and District Offices
Waters of the U.S. – Waters of the State • Two thirds of all states place some legal constraint on the authority of state and local government officials to adopt aquatic resource protections beyond “waters of the U.S.” – Stringency limitations – Property-based limitations – Combinations of the two • Half the states have some provisions that extend protections beyond “waters of the U.S.” – Some pre-date stringency limitations and may not be retroactive – Limitations may only be partial
A Short History of Waters of the U.S. • CWA (1972): legislative history indicate term should be “construed as broad as the Commerce Clause allows” • Riverside Bayview (1985): “navigable waters” include wetlands adjacent to other jurisdictional waters • SWANCC (2001): – presence/habitat for migratory birds not sufficient as sole basis for CWA jurisdiction – affected “isolated” waters – reasoning suggested some connection to navigability needed
The Rapanos Decision (2006) • Issues: does CWA cover non-navigable tributaries and their adjacent wetlands? • Result: nine justices and five opinions, with none having a majority of votes. Remanded. – Plurality/Scalia: Jurisdictional if “relatively permanent” or “seasonal” rivers, or wetlands with “continuous surface connection” to such waters. – EPA/USACE guidance currently reflects these principles.
New EPA Regulation • The EPA is writing a rule to clarify the definition of “waters of the United States”, as the Supreme Court ordered they do, for the sake of regulatory certainty. • This will potentially bring a greater scope of waters under its authority. • Lawsuits are sure to follow, as the new rule is due out by March of this year.
What Waters are at Issue? adjacent wetlands non-navigable tributaries navigable-in-fact waters adjacent wetlands isolated waters
What Waters are at Issue? adjacent wetlands Rapanos non-navigable tributaries Riverside Bayview navigable-in-fact waters adjacent wetlands 9-6-07 SWANCC isolated waters 25
Why are They Important? “20% of remaining wetland acreage” -USFWS Prairie Potholes Bogs Vernal Pools Playas 26Carolina Bays
Why are They Important? Streams that flow for only part of the year comprise 59% of the nation’s stream miles; they are the “workhorses of the watershed.”
Why are They Important? More than 117 million Americans are dependent on these seasonal or headwater streams for drinking water. Darkest orange indicates counties most dependent on these waters for drinking water
Has the Federal Government gone too far? – Justice Antonin Scalia (writing for the plurality of the court): “In applying the definition to “ephemeral streams, wet meadows, storm sewers and culverts, directional sheet flow during storm events, drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term „waters of the United States‟ beyond parody.”
What do the states say, in response? • Rulemaking or legislation will be necessary to fully identify the scope of our nation‟s waters (acknowledges the need to clarify scope of jurisdiction) • Regional technical guidance necessary to account for regional differences (e.g., stream channel structure in east versus west) • Limits of jurisdiction needs to be more directly addressed (especially tributaries) • Economic analysis should address state costs (303, 401, 402) • Should not exclude waters that citizens would obviously find important, or include areas not intended to be regulated like stormwater detention basins Summarized from joint letter signed by ECOS, CSO, ASIWPCA, ASDWA, NASF, AFWA, GPC, ASFPM, ASWM
In Texas … Municipal water districts across the State of Texas had considered banning irrigation entirely: on the home landscape, the business landscape, within retail garden centers, and for nursery and greenhouse operations. The IA joined a coalition to fight for the rights of our members in Texas, and to promote Smart Water Application Technologies. We were successful in rolling back stage 4 restrictions in the Dallas area.
In California …
California Mitigation • Hiring a qualified irrigation professional for irrigation system installation and maintenance. These qualified individuals include: – Irrigation professionals certified by the IA‟s Select Certified program. – Irrigation professionals certified by the CLCA‟s Certified Water Manager program. – California state licensed landscape contractors. • Installing efficient irrigation products and technologies, such as: – Drip irrigation. – Microspray irrigation. – Irrigation smart controllers labeled by the U.S. EPA WaterSense program. • Having an irrigation system audited for distribution uniformity and checked for underground leaks. If necessary, systems should be repaired by qualified irrigation professionals.
Public Financing of Water Infrastructure
California California: The California Water Bond CA is considering passage of an $11.1 billion initiative to upgrade the state‟s outdated water system. This project is necessary to increase California‟s water resources after over a decade of drought, large population increases, extreme pressures on farmland, and needs in the nation‟s largest irrigated landscape sector.
What kinds of projects are needed? A combined total of $4.4 billion for water supply and system operational improvement: projects like dams, reservoirs, and canals … … like the Friant Dam expansion project near Fresno, CA.
Reservoir Upgrades Headwaters of the Friant Canal system, and Millerton Lake – the irrigation lifeblood of California‟s Central Valley near Fresno, CA
Capacity Expansion …
Why Increase Capacity with a Secondary Dam?
CA Must Capture and Store Water from Extraordinary Rainfall Events.
Price tag for the Friant Dam expansion: $4.1 billion
Let‟s work together, and make a difference! ChadForcey@irrigation.org
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