By Sen. Wayne Allard
February 14, 2004
"It is the policy of Congress that the authority
of each State to allocate quantities of water within its jurisdiction should not
be superseded, abrogated or otherwise impaired by this act . . . \[and\] that
nothing in this Act should be construed to supersede or abrogate rights to
quantities of water that have been established by any state."
- Clean Water Act of 1972, as amended by the 95th Congress
The
greatest environmentalist ever to live in the White House, President Theodore
Roosevelt, in May of 1908 gathered representatives from all the states for an
ambitious, first-of-its-kind conference "to consider the question of the
conservation and use of the great fundamental sources of wealth of this
Nation." Roosevelt understood that state and local governments play an
essential role in protecting the environment. Appropriately, he reached out to
recruit participation of the states in order to determine the progressive future
of America's environmental policies.
Almost a century later, there is a case - heard recently by the U.S. Supreme
Court - that will decide whether the role of government that Roosevelt
envisioned for the nation will stand. At issue in South Florida Water Management
District v. The Miccosukee Tribe of Indians is the very existence of the current
water management system used at state and local levels across the country. The
sanctity of state and local control over water-use determinations is at stake.
Along with 11 of my Republican and Democrat colleagues in the Senate, I urged
the U.S. Department of Justice to file a friend of the court brief in this case
because the threatened misapplication of one section of the Clean Water Act
could stymie state and local officials who are seeking to protect and manage
their water resources responsibly.
The facts of the case concern whether state and local governments, which add no
pollutants to water they move for water supplies or flood control, should be
required to secure the same permits as industrial polluters who add pollutants
to water they discharge. In the 30-year history of the act, state and local
water providers have never been treated the same as industrial polluters for
purposes of this section of the law. Instead, they were rightfully assumed to
move water in their states to protect the public interest and protect the
environment consistent with the law's historic requirements.
Roosevelt sought to empower the states and encourage them to manage their water
resources wisely. But the unfortunate result of the current case, should a
majority of the Supreme Court reach the wrong conclusion, will be to tie the
hands of states and subject them to an unreasonable federal permitting
requirement. Such an outcome would overturn current water-management practices
in much of the country.
No longer will New York City or Denver or Los Angeles be able to move water for
drinking purposes. No longer will California or Arizona or Montana be able to
move water to agricultural areas as they have in the past. Instead, by reading
into the Clean Water Act an unintended provision to restrict state and local
agencies' authority to move water to which they add no pollutants, the court
would cripple the ability of these institutions to meet the water needs of their
residents. The only alternative remaining would be for these states and local
agencies to then go through a costly, time-consuming permitting process
established by Congress to regulate industrial polluters.
The impact this case has already had in lower courts is clear: Sue in federal
court on this basis (as the plaintiffs have), and a federal judge will be
empowered to supersede all the relevant experience these water agencies have
earned in a half-century or more of regulatory practice.
No party involved in this case - which reviews the authority of the South
Florida Water Management District to move runoff into designated areas to avoid
catastrophic flooding - wants to harm sensitive ecosystems; nor are any
environmental villains on trial here. At stake are the powers of the states to
regulate their own environmental laws, just as they do every day with respect to
intrastate commerce and judicial powers.
I do not believe that Congress intended to inflict this counterproductive
restriction on the states when it passed the act.
The intent of the act was not to usurp the authority of state and local agencies
but rather to have its strictures applied on a case-by-case basis, with each
alleged violation to be investigated by the Environmental Protection Agency. To
that end, the act is a careful balancing of the appropriate role of the state
vis-a-vis the federal government. To see the facts otherwise would usher in a
new era of unmitigated interference and bureaucracy in the everyday affairs of
state regulators.
Federal regulation of the simple movement of water is in direct contradiction of
the well-established balance between state and federal interests, and would
erode the Roosevelt vision. Let us now hope that the Supreme Court, which heard
both sides' arguments in mid-January, will have the wisdom to acknowledge the
rights and responsibilities of state governments and local water authorities to
move water within their states for the benefit of its citizens.
Republican Sen. Wayne Allard is the junior senator from Colorado and is a
member of the Senate Committee on Environment and Public Works.
Source:
http://www.rockymountainnews.com/drmn/opinion/article/0,1299,DRMN_38_2654118,00.html
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