Clean Water Act case to affect Nevada

Western lawmakers are urging the U.S.

Supreme Court to hear and reverse a lower court decision involving the Clean Water Act that could have serious implications for western states, including Nevada.

Senators from Arizona, California, Oregon, Colorado, New Mexico, Idaho, Montana, Nebraska,Texas and Utah two weeks ago signed a letter to the U.S.

Solicitor General asking him to recommend the court hear the case and reverse it "in order to preserve the sanctity of state and local control over land and water resource use determination."

Neither Sen.

Harry Reid (D-Nev.) nor Sen.

John Ensign (R-Nev.) signed the letter, written by the National Water Resources Association, an association of rural water districts, municipal water entities, commercial companies and individuals.

Jack Finn, Sen.

Ensign's press liaison, said Sen.

Ensign did not have time to confer with his constituents before the letter was sent.

Finn said that Sen.

Ensign likely will send a separate, similar letter to the Solicitor General after he hears from people he is working with in Nevada.

Lisa Moore, in Sen.

Reid's office, said Sen.

Reid also did not receive the letter in time, but had no plans at this time to add his name or draft a separate letter.

Similarly, the Conference of Western Attorneys General wrote a letter asking the court to hear the case, which Nevada Attorney General Brian Sandoval did not sign.Tom Sargent, the AG's public information officer, said the Nevada AG was given two days to decide whether to sign the CWAG letter and was unable to discuss the issue with the state's water resources officials in time.

He's now talking with CWAG about signing on and supporting CWAG's efforts, said Sargent.

The case at hand is Miccosukee Tribe of Indians v.

South Florida Water Management District.

It specifically involves the pumping of water through a series of levees and canals in the Everglades to prevent flooding adjacent developments, according to the NWRA.

A lower court ruled that such transfer of water between basins a common practice, particularly in the West requires a National Pollution Discharge Elimination System permit under the Clean Water Act.

The argument is that such transfers are "point source discharge" and, under the act, must be regulated so pollutants are not transferred from one water source to another.

In the Florida case, the moved water contains high levels of naturally occurring phosphorous that exceed water quality standards.

An NPDES permit would require water conveyors to build costly wastewater treatment facilities for any transfer of water, even if the water already met clean water standards, according to Peter Nichols, an attorney with Trout,Witwer & Freeman PC, a Denver law firm representing the NWRA, Western Coalition of Arid States,Western Urban Water Coalition and the Metropolitan Water District of Southern California.

"If you needed an NPDES permit, it would be cost prohibitive.

And if it couldn't be treated it couldn't be moved," said Nichols.

"It would stop trans-basin diversions."

The law firm cites several cases in which water is transferred between basins, including much of the water used by the City of Colorado Springs, 45 percent of the Denver municipal water supply and 100,000 acre feet of water imported into Salt Lake City.

In northern Nevada, Fallon area farmers often use water diverted from the Truckee River and there are plans being considered to import water into the Reno area from northern Washoe County.

In January, the Supreme Court asked the Solicitor General for its opinion on the case.

That same day the court denied a hearing to 630 cases, and asked for the Solicitor General's input on three cases, including the Miccosukee v.

South Florida case, said Nichols.

"They seem to be quite interested in the Clean Water Act," said Nichols.

The case is just one of a handful of similar cases involving the Clean Water Act that the lower court circuits have had differences of opinion about.

Three circuits ruled that an NPDES permit is not required to transfer water.

Three others, ruled the federal law does require a permit.

Such disagreement among the lower courts is one reason the Supreme Court likes to hear a case.

Another issue of interest to the Supreme Court is federalism, or states' rights.

"We argue that the Clean Water Act interferes with states' right to allocate water," said Nichols.

In its brief,Trout,Witwer & Freeman says it is a legal maxim that the rights to use water are to be determined according to the law of the states.

In fact, the attorneys note, the Clean Water Act reiterates this.

It says: "It is the policy of Congress that the authority of the State to allocate quantities of water within its jurisdiction shall not be superceded, abrogated or otherwise impaired by this Act." The Supreme Court will decide whether to hear the case sometime this fall.