Last year, the US Supreme Court revived a Trump-era rule intended to fast-track big energy projects by limiting the states’ power to curtail them under the Clean Water Act. This week, the US EPA announced announced a proposed rule to update the regulatory requirements for water quality certification under Clean Water Act (CWA) Section 401. This proposed rule would strengthen the authority of states, territories, and Tribes to protect their vital water resources while supporting an efficient, predictable, and common-sense certification process, restoring long-held water rights.
“For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth,” said EPA Administrator Michael S. Regan. “EPA’s proposed rule builds on this foundation by empowering states, territories, and Tribes to use Congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy.”
Congress provided authority to states, territories, and Tribes under CWA Section 401 to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the state, territory, or authorized Tribe where the discharge would originate either issues a CWA Section 401 water quality certification or waives certification.
“The CWA Section 401 certifications serve as the first and sometimes the only line of defense protecting tribal waters from pollutant discharge flowing within and on to our reservation lands. A strengthening of the 401 certification rule serves to protect our tribal nations’ water and cultural values,” said National Tribal Water Council Chairman Ken Norton.
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Why are Water Rights so Pivotal?
Water rights regulate how public and private landowners use water from a specified 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 US state you live in and which doctrine it follows. Most eastern states follow a riparian doctrine, which dictates that the landowner has rights to the body of water that touches the borders of their property. Most of the western states follow a prior appropriation doctrine which gives permit-holders the right to divert a specified amount of water for an approved, beneficial use.
A variety of water rights exist across the United States, which include the following:
- Riparian water rights: Landowners are legally allowed to use the watercourse that touches their land.
- Non-riparian water rights: Non-riparian rights refer to a landowner’s non-exclusive access to the water adjacent to their property.
- Prior appropriation: The doctrine of prior appropriation dictates that only those with a permit may divert water from a specific water source.
- Hybrid water rights: A combination of riparian rights and prior appropriation rights.
- Absolute dominion: A landowner has unrestricted access to a groundwater source.
- Correlative rights: Landowners who share a common source of water are limited only to a reasonable share of the water, as opposed to as much as they want.
- Community water rights: Allows users who live closest to a water source priority use of water over appropriators.
- Littoral rights: Ownership of navigable waters like lakes, seas, and oceans allows the owner unrestricted access to the source of water.
- Navigable servitude: The federal government’s ability to protect navigable waterways for commerce, like freight ships; may also extend to those who own luxury boats or other types of recreational vessels.
- Overlying rights: Provides property owners the right to draw water from underneath their property. In some cases, the appropriator may transport water outside a basin, but the overlying rights holder gets priority.
- Public trust: The government owns a water source that is managed for the public interest. This pertains to waters used for recreational purposes like swimming, boating, or preserving natural resources.
- Right to clean water: All humans depend on water for drinking, sanitation, hygiene, and agriculture. The government has a responsibility to protect public downstream waters—in both riparian and appropriative cases—from contaminants, as high water quality is essential for survival.
A Case Study of Tribal Water Rights
Native American households are 19 times more likely to lack piped water services than white households, according to a report from the Water & Tribes Initiative.
Since 1908, the US Supreme Court has recognized that when it establishes a Native reservation, it implied reserves sufficient water rights to support that reservation. A decision in February impacts the Navajo Nation most directly and is rippling through Native water law.
As described in JDSupra, the Navajo Nation’s Reservation, established in 1868, intersects Arizona, New Mexico, and Utah and lies almost entirely within the drainage basin of the Colorado River. Since colonial contact, the Nation has competed with other tribes, non-tribal governments, and non-native people for this desert water. The allocation of water from Colorado River among the states that it flows through is governed by a patchwork of compacts, statutes, decrees, and contracts, which together constitute a legal regime generally known as the Law of the River.
The US asserted in 1954 asserted that the Nation was limited to a tributary of the Colorado River, the Little Colorado River. By 1964, the Secretary of the Interior was granted the authority to determine water surpluses or shortages in a given year and to adjust the delivery of Colorado River mainstem waters — but not the tributary waters. The 1964 Decree specifically disclaimed any effect as to the “rights or priorities, except as specific provision is made herein, of any Indian Reservation.” Therefore, the 1964 Decree did not adjudicate the Nation’s rights to the Colorado mainstem or its tributaries.
Over subsequent years, the US federal government’s failed to honor that promise to the Navajo Nation. Yet the Department of the Interior exercised strict control over the Colorado River’s water. With such control, DOI had the power and, thus, the responsibility to manage that water as trustee for its tribal beneficiaries, including the Nation. Court opinion decreed that the federal government, in its capacity as the trustee for tribal interests, cannot ignore its obligations to assure that tribal reservations have adequate water supplies just because there is no explicit statutory or regulatory provision imposing such a requirement.
The case, known as Winters, creates such an obligation and illustrates that states and water right holders throughout the West must take tribal rights seriously regardless of whether they have been formally quantified.
For many Native American communities, the first step is just gaining access to drinking water, and from there they plan to push for a reexamination on water management in other regions like the Colorado River Basin.
“Water always goes where it wants to go,
and nothing in the end can stand against it.”
Water is essential to all societies as the foundation to all life on earth. With positive momentum toward renewable energy sources, today’s society uses water for hydropower as well as daily living irrigation. Because allocations of water rights has been a constant area of contention in US law, Native Americans and their reservations have seldom shared in this growth and development.
If tribes were to use the full amount of the Colorado River rights they control, that could mean less water for some states already dealing with first-ever water cuts due to historically low levels in Lakes Powell and Mead. Underinvestment in tribal water delivery systems, said Traci Morris, director of the American Indian Policy Institute at Arizona State University, creates even greater stress due to Native populations that have been hit disproportionately hard by COVID-19 and the pandemic’s economic ripple effects.
“People couldn’t wash their hands. People don’t have flushing toilets. They’re using outhouses in some cases. Not all, but it’s out there. Look how compounded that becomes,” she said. Funding set aside for tribes in the infrastructure spending plan — including to fulfill water rights settlements — could help narrow that infrastructure gap in the coming years.
Image: “Water droplets” by sumesh2007 is licensed under CC BY-NC-SA 2.0.