Arizona Water Resource Volume 11 Number 4

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May - June 2003 TT TT Law Would Create National Water Commission Arizona Water Resource Abill introduced in the U.S. House calls for a major water plan- ning effort at the national level. The bill is in response to concerns about inconsistencies and discrepancies in U.S. water management, with federal, state, interstate and local agencies all sharing jurisdic- tion. Its intent is to provide the framework to encourage coordina- tion and planning among water resource management agencies. The bill states that there has not been a comprehensive assess- ment of water resources in the United States since 1978, and there has not been a comprehensive review of water policies since 1973. The bill intends to remedy the situation. Titled the Twenty-First Century Water Commission Act or HR135, the bill would create a seven - member panel of water policy experts to study U.S. water availability issues and project future water supply and demand. The commis- sion also would review current water manage- ment programs at each level of government and develop recommendations for a comprehensive water strategy. The bill would authorize $9 mil- lion to support designated activities. The commission's task would be to craft a report identifying ways to ensure a dependable water supply for the next 50 years. More specifically, the duties of the commission are to use existing water assessments and conduct such additional assessments as may be necessary to project future water supply and demand; study cur- rent water management programs of federal, state and local agen- cies and private sector entities directed at increasing water supplies; and consult with representatives of such agencies and entities to develop recommendations for a comprehensive water strategy. In adopting its recommendations, the commission is to respect the rights of states in regulating water rights and uses; identify in- centives to ensure a dependable water supply for the nation over the next 50 years; develop strategies to avoid unfunded mandates; eliminate duplication among federal agencies; consider all available technologies, make recommendations for capturing excess water and flood water for conservation and subsequent use in times of drought; develop financing options for public works projects; and develop strategies to conserve existing water supplies and repairs to infrastructure. The commission would issue interim reports every six months and a final report within three years. The commission would dis- band a month after the issuance of the final report. Some officials not in favor of the bill defend the status quo. They argue that the current regional and incremental approach to water policy allows for appropriate consideration of geographic differences and states' rights. Other critics include some conserva- tionists who say they are concerned that the bill favors structural solutions and construction of new supplies over improved water management. U.S. Rep.. John Linder of Georgia introduced the bill. Proposed Law Would Protect Utilities From Lawsuits Abill has been introduced in the U.S. House that would shield wa- ter utilities from lawsuits if they are in compliance with federal and state regulations. Called the Drinking Water Standards Preservation Act or HR 306, the act would amend the Safe Drinking Water Act to provide procedures for claims relating to drinking water. The act designates conditions that would need to be met be- fore a public utility could be found liable for personal or property damages due to its deliv- ery of water with a regulated contaminant. In effect, a plaintiff would have to demonstrate that the public water system had violated regu- lations in a negligent manner and that the viola- tion did in fact cause the injury. In other words, a utility would have to be clearly in violation of the SDWA to be subject to liability. In the case of an unregulated contami- nant, the plaintiff must establish that substan- tial scientific evidence exists that the substance in the water which the plaintiff claims caused the injury was of such a nature, and in such amounts, that it was reasonably likely to have caused the injury; that the injury actually was caused by delivery of water that contained such a substance; that the water system knew or should have known that the substance was in the drinking water at such a level and was likely to cause the injury; and that it was feasible for the supplier to have removed such contaminant to a safe level. The bill is in response to a growing number of lawsuits against water utilities, many of them prompted by improved methods of establishing cause - and - effect relationships between various con- taminants and debilitating health conditions. Proponents of the bill argue that if a utility is meeting established drinking water standards it should not be penalized for not providing protection above and beyond what is required by law. What is at stake they argue is the established procedure for setting national drinking water standards. Per the Safe Drinking Water Act, EPA now sets such standards. It is then up to the states to set drinking water standards at least as strict as EPA's to maintain primacy over drinking water programs in their state. Tommy Holmes, AWWA legislation program manager, says, "We don't always agree with EPAs outcome but it is a pretty thoughtful process that could be undermined by 12 jurors in state court." In cases filed in California, the State Supreme Court has ruled that compliance with the SDWA is an absolute defense for utilities regulated by the California Public Utilities Commission The major- ity of water systems, however, are not regulated by the PUC. A