Senators champion water users, states' rights

February 24, 2003

provided by the National Water Resources Association (NWRA)

http://www.nwra.org

nwra@nwra.org

Fifteen members of the United States Senate signed a bipartisan letter to
Solicitor General Olson supporting the Supreme Court’s review of the Eleventh
Circuit decision in the Miccosukee Tribe of Indians v. So. Florida Water
Management District case. (Please see the text of the letter provided
below.)

The Eleventh Circuit’s ruling establishes a precedent for requiring a
National Pollution Discharge Elimination System (NPDES) permit, under the
Clean Water Act, for transferring water from one basin to another.

Such a requirement, if allowed to stand, would be a devastating regulatory
blow for Western States already burdened with Endangered Species Act flow
mandates and drought-reduced water supplies.

The National Water Resources Association applauds the following Senators for
their defense of states' historic rights over their respective water
resources:

Jon Kyl (R-Arizona)
Diane Feinstein (D-California)
Ron Wyden (D-Oregon)
Wayne Allard (R-Colorado)
Pete Domenici (R-New Mexico)
Larry Craig (R-Idaho)
Max Baucus (D-Montana)
Ben Nelson (D-Nebraska)
Gordon Smith (R-Oregon)
Mike Crapo (R-Idaho)
Ben Nighthorse Campbell (R-Colorado)
Orrin Hatch (R-Utah)
Conrad Burns (R-Montana)
Kay Bailey Hutchison (R-Texas)

February 21, 2003

Hon. Theodore B. Olson, Solicitor General
Office of the Solicitor General
950 Pennsylvania Ave., NW
Washington, D.C. 20530-0001

Re: Miccosukee Tribe of Indians v. So. Fla. Water Mgmt. Dist. (SFWMD), 280
F.3d 1364 (11th Cir. 2002)

Dear Solicitor General Olson:

We urge you to support the petition for certiorari in Miccosukee Tribe of
Indians v. So. Florida Water Mgmt. Dist. 280 F.3d 1364 (11th Cir. 2002).

This Eleventh Circuit decision must be reversed in order to preserve the
sanctity of state and local control over land and water resource use
determinations.

Under the Miccosukee opinion, any transfer of water containing a measurable
quantity of constituents from one basin or sub-basin to another through a
ditch, tunnel, canal, pipeline or other conveyance structure in the
legitimate exercise of water rights and in order to fulfill municipal,
agricultural and industrial water supply demands would require an NPDES point
source discharge permit.

This would be true despite the fact that the entity moving the water does not
add any pollutants; it merely transports the water.

Such a constraint upon the ability to move water to the place of need, for
example from high mountain run-off areas to dry low-lying urban corridors,
could significantly impair Western economies and exacerbate our drought
situation, while interfering with land use planning decisions.

As you are aware, the Supreme Court has invited you to file a brief
expressing the views of the United States in this case.

The Circuits are now equally divided.

While the First, Second and now Eleventh Circuits have held that such basin
transfers are point sources that require permits, the Fourth, Sixth and D.C.
Circuits have interpreted the Act as requiring the introduction of a
pollutant from a point source before such a permit is mandated.

In finding that such water conveyance activities trigger a need for a permit,
Miccosukee implicates every trans-basin and intra-basin diversion, thereby
threatening our ability to use our limited water resources to meet both
traditional consumptive uses, as well as environmental demands.

For example, much of the water upon which certain threatened or endangered
species now depend is trans-basin return flows, while what were historically
dry arroyos or ephemeral stream systems are now perennial in nature due to
the use of imported waters.

The federal government has long recognized the right to use water is to be
determined under the laws of the states.

Federal regulation of the simple movement of water, as would be the case
under Miccosukee, is in direct convention of this well-established balance
between state and federal interests, as reflected in Section 101(g) of the
Clean Water Act.

The Supreme Court is clearly interested in this case, not only for its CWA
post-SWANNC issues, but also its federalism implications.

We believe the United States has an obligation to protect the interests of
all its citizens from the impacts of an overly broad court holding, the
practical implications of which may not have been fully considered.

We therefore once again urge you to support the petition for certiorari.

Sincerely,

United States Senator

cc:

The Honorable Gale Norton
Secretary of the Interior

Mr. Paul Clement
Principal Deputy Solicitor General

The Hon. LTG Robert B. Flowers
Commander
HQ, US Army Corps of Engineers

Mr. Ed Kneedler
Deputy Solicitor General

The Honorable Christie Todd Whitman
Administrator, Environmental Protection Agency

The Honorable Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division

For a copy of the signed letter, please contact the NWRA office by phoning
703-524-1544 and we will be happy to fax you a copy.