Chad Forcey at the Irrigation Association outlines the current state of water law across the U.S., and what irrigation contractors can do to stay up to date on their local regulatory environment.

1. Water Law and Policy
in the United States
State Affairs Director Chad A. Forcey
ChadForcey@irrigation.org

2. What is the purpose of the Irrigation Association?
Vision
Be the recognized authority on
irrigation.
Mission
Promote efficient irrigation.
Unifying Statement
Ensure water is available for
irrigation for future generations.

3. What‟s our biggest challenge in State Affairs?
To Promote Efficiency.
And efficiency can mitigate
problems related to the
diverse water resources
of the United States.

4. Water Resources
in the United
States

5. A strong need for irrigation: areas where there is less
than 20 inches need irrigation. (U.S. Geological Survey)

6. Precipitation minus Potential Evapotranspiration

7. Groundwater Resources: Western U.S. (white – no groundwater,
colored areas indicate various types of groundwater)

8. Groundwater Resources: Eastern U.S. (white – no groundwater, colored
areas indicate various types of groundwater)

9. Water Law and Policy
in the United States

10. Common Law vs. Statutory water rights:
• Common law riparian water rights: many states in
the Northeast, Midwest and South – You own your water, and you can use water on your land,
and beneath, as you chose, provided you do not negatively
impact public health, welfare, and safety.
– Rainwater may/may not be yours.
• Statutory water rights: states in the West and
Southwest– Water is owned by the state (or federal government in
some cases), and is yours to use after receipt of state or
federal permit.
– Rainwater may/or may not be yours.

11. Use of Surface/Subsurface Water for Irrigation:
• If your state has common law riparian water rights:
– Very few, if any, restrictions for irrigation.
• If your state is has statutory water rights:
– Farmgate distribution: controlled by state/federal permit.
– Landscape irrigation: controlled by state law, such as AB
1881 in California.
• Restrictions due to drought:
– Challenging aspect of water law and policy.
– The IA is heavily involved in this issue.
– More to come later in the presentation …

12. Use of Municipal Water for Irrigation:
• Governed by backflow process, paid for by end
user:
– Backflow device installation, repair and testing – governed
by state/local permitting, licensing, and certification.
• Governed by irrigation contractor licensing, in
certain states.
• Restrictions due to drought (we‟ll discuss later in the
presentation).

13. Where do we have licensing?

14. The Great Divides in American Water Law
and Policy
Water Quantity / Water Quality
Land Use/ Water Resources
Surface / Subsurface
East / West
Water Systems / Ecosystems
Federal / State
Adapted from Adler and Straube, 25 Wm. & Mary Envtl. & Pol‟y Rev. 1 (2000)

15. Surface and Subsurface
• Surface Water: Rivers, lakes, streams, ponds,
wetlands.
• Subsurface Water: Groundwater (water table),
aquifers, deposits (mines, caves, shafts)

16. Federal Water Legislation
• CWA (1972): The Clean Water Act brought the
federal government into the surface water regulation
business, and has driven state policy ever since.
• Since 1972, two thirds of all states have placed some legal
constraint on the authority of state and local government
officials to adopt aquatic resource protections beyond
“waters of the U.S.”
– Stringency limitations
– Property-based limitations
– Combinations of the two
• Half the states have some provisions that extend
protections beyond “waters of the U.S.”
– Some pre-date stringency limitations and may not be retro-active
– Limitations may only be partial

17. Other Water Legislation
• SDWA – Safe Drinking Water Act (1974): Created
national standards for drinking water in public water
systems – regulates subsurface water.
• ESA – Endangered Species Act (1973): Mandates
restoration of species deemed endangered. Affects
water policy tremendously, through surface and
subsurface regulation, to restore aquatic species,
particularly fish (salmon, smelt) through
environmental and bio engineering, and water
dispersal controls.
• In our presentation today, we will focus on the
CWA, as it has created the basis for state and
federal water law and policy since 1972.

18. The Clean Water Act
“Navigable” Waters: Waters of the U.S.,
including Territorial Seas
303
Water
Quality
Standard
& TMDLs
(Chesapeake
Bay, M4
permitting)
311
Oil
Spill
Prevention
Plans
401
State
Certifcation
402
Pollutant
Discharge
Permits
404
Dredge
and
Fill
Permits
“TMDL” is a Total Maximum Daily Load, a watershed scale plan to lower nutrient discharge

19. The Clean Water Act
“Navigable” Waters: Waters of the U.S.,
including Territorial Seas
303
Water
Quality
Standard
& TMDLs
States
Tribes
EPA
FWS
311
Oil
Spill
Prevention
Plans
EPA
401
State
Certifcation
402
Pollutant
Discharge
Permits
States
Tribes
States
EPA
404
Dredge
and
Fill
Permits
States
EPA
USACE
EPA includes Regional Offices, FWS includes Field Offices, USACE includes Division and District Offices

20. Waters of the U.S. – Waters of the State
• Two thirds of all states place some legal constraint
on the authority of state and local government
officials to adopt aquatic resource protections
beyond “waters of the U.S.”
– Stringency limitations
– Property-based limitations
– Combinations of the two
• Half the states have some provisions that extend
protections beyond “waters of the U.S.”
– Some pre-date stringency limitations and may not be retroactive
– Limitations may only be partial

21. A Short History of Waters of the U.S.
• CWA (1972): legislative history indicate term should
be “construed as broad as the Commerce Clause
allows”
• Riverside Bayview (1985): “navigable waters”
include wetlands adjacent to other jurisdictional
waters
• SWANCC (2001):
– presence/habitat for migratory birds not
sufficient as sole basis for CWA jurisdiction
– affected “isolated” waters
– reasoning suggested some connection to
navigability needed

22. The Rapanos Decision (2006)
• Issues: does CWA cover non-navigable tributaries
and their adjacent wetlands?
• Result: nine justices and five opinions, with none
having a majority of votes. Remanded.
– Plurality/Scalia: Jurisdictional if “relatively permanent” or
“seasonal” rivers, or wetlands with “continuous surface
connection” to such waters.
– EPA/USACE guidance currently reflects these principles.

23. New EPA Regulation
• The EPA is writing a rule to clarify the definition of
“waters of the United States”, as the Supreme Court
ordered they do, for the sake of regulatory certainty.
• This will potentially bring a greater scope of waters
under its authority.
• Lawsuits are sure to follow, as the new rule is due
out by March of this year.

24. What Waters are at Issue?
adjacent wetlands
non-navigable tributaries
navigable-in-fact waters
adjacent wetlands
isolated waters

25. What Waters are at Issue?
adjacent wetlands
Rapanos
non-navigable tributaries
Riverside Bayview
navigable-in-fact waters
adjacent wetlands
9-6-07
SWANCC
isolated waters
25

26. Why are They Important?
“20% of remaining wetland
acreage” -USFWS
Prairie Potholes
Bogs
Vernal Pools
Playas
26Carolina Bays

27. Why are They Important?
Streams that flow for only part of the year comprise 59% of the nation’s
stream miles; they are the “workhorses of the watershed.”

28. Why are They Important?
More than 117 million Americans are dependent on these seasonal or
headwater streams for drinking water.
Darkest orange
indicates
counties most
dependent on
these waters
for drinking
water

29. Has the Federal Government gone too far?
– Justice Antonin Scalia (writing for the plurality of the court):
“In applying the definition to “ephemeral streams, wet
meadows, storm sewers and culverts, directional sheet flow
during storm events, drain tiles, man-made drainage
ditches, and dry arroyos in the middle of the desert, the
Corps has stretched the term „waters of the United States‟
beyond parody.”

30. What do the states say, in response?
• Rulemaking or legislation will be necessary to fully
identify the scope of our nation‟s waters (acknowledges
the need to clarify scope of jurisdiction)
• Regional technical guidance necessary to account for
regional differences (e.g., stream channel structure in
east versus west)
• Limits of jurisdiction needs to be more directly addressed
(especially tributaries)
• Economic analysis should address state costs (303, 401,
402)
• Should not exclude waters that citizens would obviously
find important, or include areas not intended to be
regulated like stormwater detention basins
Summarized from joint letter signed by ECOS, CSO, ASIWPCA, ASDWA, NASF, AFWA, GPC, ASFPM, ASWM

31. Drought Mitigation

32. Drought Mitigation

33. In Texas …
Municipal water districts across the State of Texas had
considered banning irrigation entirely: on the home
landscape, the business landscape, within retail garden
centers, and for nursery and greenhouse operations.
The IA joined a coalition to fight for the rights of our
members in Texas, and to promote Smart Water Application
Technologies. We were successful in rolling back stage 4
restrictions in the Dallas area.

38. In California …

39. California Mitigation
•
Hiring a qualified irrigation professional for irrigation system installation and
maintenance. These qualified individuals include:
– Irrigation professionals certified by the IA‟s Select Certified program.
– Irrigation professionals certified by the CLCA‟s Certified Water Manager
program.
– California state licensed landscape contractors.
•
Installing efficient irrigation products and technologies, such as:
– Drip irrigation.
– Microspray irrigation.
– Irrigation smart controllers labeled by the U.S. EPA WaterSense program.
•
Having an irrigation system audited for distribution uniformity and checked for
underground leaks. If necessary, systems should be repaired by qualified
irrigation professionals.

40. Public Financing of Water Infrastructure

41. California
 California: The California Water Bond
CA is considering passage of an $11.1 billion initiative to
upgrade the state‟s outdated water system. This project is
necessary to increase California‟s water resources after over
a decade of drought, large population increases, extreme
pressures on farmland, and needs in the nation‟s largest
irrigated landscape sector.

42. $11.1 billion

43. What kinds of projects are
needed?
 A combined total of $4.4 billion for water supply and system
operational improvement: projects like dams, reservoirs, and canals …
… like the Friant
Dam expansion
project near Fresno,
CA.

44. Reservoir Upgrades
Headwaters of the Friant Canal system, and Millerton Lake – the
irrigation lifeblood of California‟s Central Valley
near Fresno, CA

45. Capacity Expansion …

47. Why Increase Capacity
with a Secondary Dam?

48. CA Must Capture and Store Water
from Extraordinary Rainfall Events.

49.  Price tag for the
Friant Dam
expansion:
$4.1 billion

50. Let‟s work together, and make a difference!
ChadForcey@irrigation.org