Presentation

Impacts of Select Federal
Environmental Laws on
Water Resources
Tom Wilmoth
Husch Blackwell Sanders LLP
tom.wilmoth@huschblackwell.com
John Wesley Powell
Report on the Lands of the Arid Region
of the United States. Washington:
U.S. Government Printing Office, 45th
Congress 2nd Session H.R. Exec. Doc.
73 (1878)
Reclamation Act, Section 8
“ [N]othing in this Act shall be construed as
affecting or intended to affect or to in any
way interfere with the laws of any State or
Territory relating to the control,
appropriation, use, or distribution of water
used in irrigation, or any vested right
acquired thereunder, and the Secretary of
the Interior, in carrying out the provisions of
this Act, shall proceed in conformity with
such laws, … .”
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California v. U. S.
438 U.S. 645 (1978)
“From the legislative history of the Reclamation Act
of 1902, it is clear that state law was expected to
control in two important respects. First, and of
controlling importance to this case, the Secretary
would have to appropriate, purchase, or condemn
necessary water rights in strict conformity with
state law. … Second, once the waters were
released from the [New Melones] Dam, their
distribution to individual landowners would again
be controlled by state law.”
Platte River Recovery
Implementation Program;
Final Environmental
Impact Statement
(April 2006)
“http://platteriver.unk.edu/plattephotos/”
Endangered Species Act,
Section 2(e)
Federal agencies shall “cooperate with
State and local agencies to resolve
water resource issues in concert with
conservation of endangered species.”
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U.S. v. Glenn-Colusa Irr. Dist.
788 F. Supp. 1126
(E.D. Cal. 1992)
“This provision does not require … that
state water rights should prevail over
the restrictions set forth in the [ESA].
… The Act provides no exemption from
compliance to persons possessing state
water rights … . Moreover, enforcement
of the Act does not affect the District's
water rights but only the manner in
which it exercises those rights.”
The Big Three
Clean Water Act (CWA)
Endangered Species Act (ESA)
National Environmental Policy Act
(NEPA)
http://www.illuminati-news.com/bfrscl.htm
Clean Water Act
Section 303 - Water Quality Standards
Section 402 - National Pollutant Discharge
Elimination System
Section 404 - Wetlands
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Clean Water Act (cont’d)
Hot Topics
– Jurisdictional Waters Post Rapanos

June 2007 Guidance from Corps/EPA
<<http://www.usace.army.mil/cw/cec
wo/reg/cwa_guide/rapanos_guide_me
mo.pdf.>>
– Stormwater Regulation
 New

NDEQ General Permit
Top EPA Enforcement Priority
“http://platteriver.unk.edu/plattephotos/”
Endangered Species Act

Section 4 – Listing

Section 7 – Consultation

Section 9 – Takings

Section 10 – Incidental Take / Habitat
Conservation Planning
“http://en.wikipedia.org/wiki/Image:Pallid.jpg”
Endangered Species Act
(cont’d)
Hot Topics
– Federal Water Project Consultations
– Unlawful Take Prohibition
– Climate Change
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Endangered Species Act
(cont’d)

Broader Solutions
– Platte River Recovery
Implementation Plan
– Missouri River Recovery
Implementation Committee
– Lower Colorado River Multi-Species
Conservation Program
National Environmental
Policy Act


Section 102
Council on Environmental Quality
Regulations (50 C.F.R. Parts 1500
– 1508)
National Environmental
Policy Act (cont’d)

Highlights
– Procedural Statute
– Despite narrow statutory language,
applies broadly to most federal actions
that are not categorically excluded
– Environmental Assessments / Findings of
No Significant Impact
– Environmental Impact Statements
“http://platteriver.unk.edu/plattephotos/”
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National Environmental
Policy Act (cont’d)
Example: Red River Valley Water
Supply Project, ND
Final EIS (Nov. 2007)
Thorny Issues

Interbasin transfer of biota
withdrawals on Missouri River
system
 Impact of
“http://nd.water.usgs.gov/canoeing/images/downtownFMriver.jpg”
National Environmental
Policy Act (cont’d)

The Big Concern: Cost and Delay

Streamlining Efforts Underway
- E.g., Proposed DOI NEPA regulations,
73 Fed. Reg. 126 (Jan. 1, 2007)
S. Marburger
Questions and “Answers”
Tom Wilmoth
Husch Blackwell Sanders LLP
402 458-1502
tom.wilmoth@huschblackwell.com
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