BOARD00543

• Board Meeting Date: 7/28/2003
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

New Legislation

. Amendment of specific project authorizing legislation to add new purposes and/or
participants
. Special legislation, amending general Reclamation authorities, see 43 USC 2245, which
amended the Warren Act to allow certain projects in California and Nevada to use excess
capacity for storage and conveyance of non project water for all beneficial purposes (M&l,
wildlife,) not merely irrigation.

We can explore and expand on these issues, including asking representatives of Reclamation
and/or DOl to make a more detailed presentation at a f\1ture Board meeting. These issues may
also be discussed, and perhaps influenced, through the 'Water 2025 program.

McCarran Amendment Commemoration: On June 25 U.S. Senator Ben Nighthorse Campbell
introduced S.R.l83, commemorating the 50th anniversary of the McCarran Amendment. The
resolution declares that the Senate "reaffirms the policies and principles of the McCarran
Amendment that have been recognized by Supreme Court decisions and recognizes that, as a
matter of practice, the United States should adhere to State water law; and commends Western
States that maintain comprehensive systems for the qu~ntification of rights to use water for all
beneficial purposes, including environmental protection and enhancement."

Clean Water Act Hearing: On June 10 the Senate EnYironment and Public Works Committee
held a hearing on federal jurisdiction under the Clean Water Act (CWA) and a bill, S. 473 that
would override the Supreme Court's 2001 SW ANCC decision.

The U.S. Supreme Court decision in Solid Waste Agency of North ern Cook County v. U.S. Army
Corps of Engineers (531 U.S. 159), commonly known'as the SWANCC case, invalidated the
"migratory bird rule" which has been used to regulate }vetlands. The court held that the Corps of
Engineers lacked authority under 404 of the CW A to regulate the dredging and filling of isolated
intrastate ponds and wetlands, notwithstanding a Corps finding that the water in question was
used as habitat for migratory birds. '

Miccosukee v. South Florida: The U.S. Supreme Court has granted certiorari and will hear
arguments in the South Florida Water Management District v. Miccosukee Tribe case, where the
II th Circuit Court held that piping water for flood control purposes from one drainage basin to
another requires a National Pollutant Discharge Elimil1ation System (NPDES) permit, even
though no pollutants are added in the process.

The Court's decision follows the U.S. Solicitor Gener~l's brief on May 30 urging the Court not
to review the decision.

In 2002, the Eleventh Circuit Court of Appeals upheld a decision that the pumping of already
polluted water into a more pristine water body constitutes an addition of pollutants to navigable
waters from a point source, thus triggering the require/llent for a NPDES permit.

In February, fifteen western senators signed a letter t<y Solicitor Olson urging him to support
Supreme Court review of the case, as the decision could adversely affect western states and
trans-basin and intra-basin diversions. '

Since then, the Ninth Circuit, citing the Eleventh Circuit, decided Northern Plains Resource
Council v. Fidelity Exploration and Development Co"on April 10, ruling that the discharge of e

e

e