Last year, the US Supreme Court revived a Trump-era rule to speed up large energy projects by limiting states’ power to limit them under the Clean Water Act. This week, the US EPA announced that it announced a proposed rule for updating 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 to protect their vital water resources. while supporting an efficient, predictable and sensible certification process and restoring long-held water rights.
“For 50 years, the Clean Water Act has protected the water resources that are essential for thriving communities, vibrant ecosystems and sustainable economic growth,” said EPA Administrator Michael S. Regan. “The proposed EPA rule builds on this foundation by giving states, territories and tribes the power to use the powers granted by Congress to protect scarce water resources, while supporting much-needed infrastructure projects that create jobs and strengthen our economy.”
Congress has granted powers to states, territories and tribes under section 401 of the CWA to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, the Federal Agency may not issue a license or permit to conduct any activity that may result in any discharge into United States waters unless the State, territory, or authorized tribe from which the discharge originates is issued by the CWA. § 401 water quality certification or certification waives.
“CWA Section 401 certification serves as the first and sometimes the only line of defense to protect tribal waters from the discharge of pollutants flowing into and out of our reserves. Strengthening the 401 certification rule serves to protect the water and cultural values of our tribal nations, ”said National Tribal Water Council President Ken Norton.
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 US state you live in and what doctrine follows. Most eastern states follow coastal doctrine, which dictates that landowners have rights to a body of water that touches their property boundaries. Most Western states follow the previous doctrine of appropriation, which gives permit holders the right to divert a certain amount of water for approved, beneficial use.
There are a number of water rights in the United States, including the following:
- Coastal water rights: Landowners can by law use a watercourse that affects their land.
- Non-coastal water rights: Non – coastal rights concern the landlord ‘s non – exclusive access to the water adjacent to his land.
- Previous appropriation: The doctrine of prior appropriation dictates that only those who have a permit can drain water from a particular water source.
- Hybrid water rights: A combination of coastal rights and pre – emptive rights of appropriation.
- Absolute domination: The landowner has unrestricted access to a groundwater source.
- Correlation rights: Landowners who share a common water source are limited to a reasonable proportion of water, as opposed to as much as they want.
- Community water rights: Allows users who live closest to the water source to use water in preference to the possessors.
- Maritime rights: Owning navigable waters such as lakes, seas and oceans allows the owner unrestricted access to a water source.
- Navigable servitude: The ability of the federal government to protect navigable waterways for trade, such as cargo ships; It can be extended to those who own luxury boats or other types of recreational craft.
- Superior rights: Gives property owners the right to draw water from under their property. In some cases, the appropriator may transport water outside the river basin, but the parent rights holder takes precedence.
- Public confidence: The government owns a water resource that is managed in the public interest. This applies to waters used for recreational purposes, such as swimming, boating or conserving natural resources.
- The right to clean water: All people are dependent on water for drinking, hygiene, hygiene and agriculture. The government has a responsibility to protect public groundwater – in both coastal and expropriation cases – from contaminants, as high water quality is essential for survival.
Tribal Water Rights case study
According to the Water & Tribes Initiative, Native American households are 19 times more likely to lack water pipes than white households.
Since 1908, the US Supreme Court has recognized that when it establishes the original reservation, it assumes that it reserves sufficient water rights to support the reservation. The February decision has the most direct impact on the Navajo people and is spread by native water law.
As described in JDSupra, the Navajo Nation Reservation, founded in 1868, crosses Arizona, New Mexico and Utah and lies almost entirely in 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 between the states through which it flows is governed by a mosaic of compacts, laws, decrees, and treaties that together form a legal regime commonly known as the River Act.
The United States claimed in 1954 that the nation was restricted to a tributary of the Colorado River, the Little Colorado River. In 1964, the Secretary of the Interior was empowered to determine the surplus or shortage of water that year and to regulate the supply of waters to the main tribe of the Colorado River – but not tributaries. The 1964 decree expressly denied any effect on “the rights or priorities of any Indian reservation, unless a special provision is made there.” The 1964 decree therefore did not determine the nation’s rights to the main tribe of Colorado or its tributaries.
Over the following years, the US federal government failed to deliver on that promise to the Navajo people. Nevertheless, the Department of the Interior exercised strict control over the water of the Colorado River. With such control, the DOI had the power and thus the responsibility to manage this water as a trustee for its tribal recipients, including the nation. The Court of Justice has ruled that the Federal Government, in its capacity as tribal interest administrator, cannot ignore its obligations to ensure that tribal reserves have sufficient water supplies simply because there is no explicit legal or regulatory provision requiring such a requirement.
The case known as Winters creates such an obligation and shows that states and water rights holders across the West must take tribal rights seriously, whether or not they have been formally quantified.
For many Native American communities, the first step is to gain access to drinking water, and from there they plan to push for a reassessment of water management in other regions, such as the Colorado River Basin.
“Water always goes where it wants,
and nothing can stand against it in the end. “
Water is essential for all societies as the basis of all life on Earth. With a positive impetus towards renewable energy, 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 American law, Native Americans and their reservations have rarely contributed to this growth and development.
If the tribes took full advantage of the rights they have on the Colorado River, it could mean less water for some states, which are already facing the first ever water restriction due to historically low levels at Lakes Powell and Mead. Insufficient investment in tribal water supply systems, said Traci Morris, director of the Institute of American Nation Policy at Arizona State University, is creating even greater stress due to indigenous populations that have been disproportionately hit by COVID-19 and the economic impact of the pandemic.
“People could not wash their hands. People don’t have flush toilets. In some cases, they use sheds. Not all, but it’s out. See how it works, “she said. Funding for tribes in the infrastructure spending plan – including the implementation of water rights agreements – could help close this infrastructure gap in the coming years.
Image: “Water droplets” from sumesh2007 is licensed under CC BY-NC-SA 2.0.
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