Last year, the U.S. Supreme Court revived a Trump-era rule aimed at speeding up major energy projects by limiting the power of states to reduce them under the Clean Water Act. This week, the U.S. EPA announced a proposed rule to update regulatory requirements for water quality certification under section 401 of the Clean Water Act (CWA). This proposed rule would strengthen the authority of states, territories and tribes in protecting their vital water resources while supporting an efficient, predictable and common sense certification process, restoring long-standing water rights.
“The Clean Water Act has been protecting water resources for 50 years that are essential for thriving communities, vibrant ecosystems and sustainable economic growth,” said EPA Administrator Michael S. Regan. “The EPA’s proposed rule is based on this, empowering states, territories and tribes to use the powers given by Congress to protect precious water resources, while supporting much-needed infrastructure projects that create jobs and strengthen our economy.”
Congress has empowered states, territories, and tribes under section 401 of the CWA to protect the quality of their waters from adverse impacts arising from federally licensed or approved projects. Under section 401, a federal agency may not issue a permit or authorization to engage in any activity that may result in any discharge into United States waters unless the state, territory, or authorized tribe from which the discharge would be issued is CWA Section 401 water quality certificate or waives certification.
“CWA Section 401 certifications serve as the first and sometimes the only line of defense that protects tribal waters from pollutant discharges flowing inside and beyond to our reserves. Strengthening the 401 certification rules serves to protect the water and cultural values of our tribal peoples, ”said Ken Norton, chairman of the National Tribal Waters Council.
Why are water rights so crucial?
Water rights regulate how public and private landowners use water from a particular source and protect the fair use of water. Laws governing water rights vary from state to state, and water permits are issued in accordance with state laws and mandates.
Water rights depend on which American state you live in and which doctrine you follow. Most eastern states follow coastal doctrines, which stipulate that a landowner has rights to a water body that touches the boundaries of their property. Most western states follow a pre-appropriation doctrine that gives permit holders the right to divert a certain amount of water for approved, useful use.
There are various water rights in the United States, which include the following:
- Coastal water rights: Landowners have a legal permit to use a watercourse that touches their land.
- Non-coastal water rights: Non-coastal rights relate to the non-exclusive access of landowners to water in the vicinity of their property.
- Previous appropriation: The doctrine of prior appropriation stipulates that only those who have a permit can divert water from a particular water source.
- Hybrid water rights: A combination of coastal rights and pre-appropriation rights.
- Absolute power: The landowner has unrestricted access to a groundwater source.
- Correlative rights: Landowners who share a common water source are limited to a reasonable share of water, not as much as they want.
- Community water rights: Allows users living closest to the water source to prioritize water use over appropriators.
- Coastal rights: Ownership of navigable waters such as lakes, seas and oceans allows the owner unrestricted access to a water source.
- Navigable easement: the ability of the federal government to protect trade waterways, such as cargo ships; it can also be extended to those who own luxury boats or other types of recreational craft.
- Competent rights: Gives property owners the right to pump water under their property. In some cases, the appropriator may transport water outside the basin, but the right holder above has priority.
- Public trust: The state has a source of water that is managed in the public interest. This applies to waters used for recreational purposes such as swimming, boating or conservation of natural resources.
- The right to clean water: All people depend on drinking water, sanitation, hygiene and agriculture. The government has a responsibility to protect public downstream waters – in both coastal and appropriation cases – from pollutants, as high water quality is essential for survival.
A case study of tribal water rights
According to a report by the Water and Tribes Initiative, Indian households are 19 times more likely to have a lack of water supply than white households.
Since 1908, the U.S. Supreme Court has recognized that when it establishes a native reserve, it implies that it retains sufficient water rights to support that reserve. The decision from February most directly affects the Navajo nation and is permeated by the law on spring waters.
As described in JDSupra, Navaho Nation’s Reservation, founded in 1868, intersects Arizona, New Mexico and Utah and lies almost entirely within the Colorado River Basin. Since colonial contact, the Nation has competed with other tribes, non-tribal governments and non-natives for this desert water. The distribution of water from the Colorado River among the states through which it flows is regulated by a series of treaties, statutes, decrees, and treaties, which together form the legal regime generally known as the Law of the River.
The U.S. claimed in 1954 that the nation was confined to a tributary of the Colorado River, the Little Colorado River. Until 1964, the Secretary of the Interior was empowered to determine water surpluses or shortages in a given year and to adjust the supply of Colorado’s main waters – but not tributaries. The 1964 Decree expressly waives any influence on “the rights or priorities, unless a special provision is cited herein, of any Indian reservation”. Accordingly, the 1964 Decree did not rule on the nation’s rights to the main source of Colorado or its tributaries.
In the following years, the US federal government did not keep that promise to the Navajo nation. However, the Department of the Interior exercised strict control over the Colorado River water. With such control, the DOI had the power and, therefore, the responsibility to manage that water as a trustee for its tribal beneficiaries, including the Nation. A court opinion has ruled that the federal government, in its capacity as a commissioner for tribal interests, cannot disregard its obligations to ensure that tribal reserves have adequate water supplies simply because there is no explicit legal or regulatory provision imposing such a requirement.
The case, known as Winters, creates such an obligation and illustrates that states and water rights holders across the West must take tribal rights seriously regardless of whether they are formally quantified.
For many Indian communities, the first step is just to gain access to drinking water, and from there they plan to encourage a review of water management in other regions such as the Colorado River Basin.
“Water always goes where it wants,
and nothing in the end can stand against it. ”
Water is necessary for all societies as the foundation of all life on earth. With a positive momentum towards renewable energy sources, today’s society uses water for hydropower as well as for daily irrigation. Because the allocation of water rights has been a constant area of contention in U.S. law, Indians and their reserves have rarely participated in this growth and development.
If the tribes took full advantage of the Colorado River rights they control, it could mean less water for some states already facing the first water outages due to historically low levels in Powell and Mead Lakes. Insufficient investment in tribal water delivery systems, said Tracy Morris, director of the Institute of American Indian Policy at Arizona State University, creates even more stress due to the indigenous population disproportionately affected by COVID-19 and the economic effects of the pandemic.
“People could not wash their hands. People don’t have flush toilets. In some cases, they use auxiliary houses. Not all, but there is. See how complex it gets, ”she said. Funds allocated to tribes in terms of spending on infrastructure – including filling settlements on water rights – could help reduce that infrastructure gap in the coming years.
Image: “Water droplets” from sumesh2007 is licensed under CC BY-NC-SA 2.0.
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