State, Federal Lawmakers Mix it Up Over Water

By Headwaters News, 5-16-07

In Wyoming, water is a wild and scenic issue.  In Arizona, ground and surface water apparently never meet in the Legislature. And in New Mexico – if it’s visible at some point in the year, the state can regulate it.

Water – it’s the stuff legislation is made of today.

At a Senate subcommittee hearing in Washington, D.C., Wyoming Sen. Craig Thomas’ bill to designate 443 miles of waterways in northwestern Wyoming as “wild and scenic,” played to an appreciative audience.  The Casper Star-Tribune reported that the nation’s top fly fisherman, Jack Dennis, coach of Fly Fishing Team USA and honorary chairman of Campaign for the Snake Headwaters, gave the bill a big thumbs up – as did officials from the Agriculture and Interior Departments. 

The bill seems likely to sail through subcommittee hearings, although Sen. Thomas indicated that he was willing to tweak the bill a bit to meet with Idaho Sen. Larry Craig’s requirement that such designation not cause impacts for his constituents who depend on Jackson Lake water for irrigation.

In Arizona, where state law still doesn’t acknowledge the connection between groundwater and surface water, state lawmakers’ failure to pass legislation to protect rivers at risk was criticized by the Sonoran Institute, whose latest report says unregulated pumping of groundwater is threatening three of the state’s rivers. 

The Arizona Republic reports that the Tucson-based conservation group’s examination of three rivers in the state found that rampant development in Pinal and Pima counties have emptied the Santa Cruz along its final stretches.  Arizona’s last free-flowing river, the San Pedro, disappears into the dust for miles at a stretch, due to growth in Cochise County.  And thousands of small wells, and a future pipeline project, have siphoned the Verde’s waters to the point where it’s existence is also threatened,

In New Mexico, the issue is surface water and who has the authority to regulate the quality of that water.  A recent decision by a state appeals court gives the state Environment Department the authority to regulate all the surface water in the state, an important detail in one of the five states where the federal government, i.e., the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, hold responsibility for issuing waste discharge permits for mining, construction and other industrial businesses as well as to cities. 

Over the past several years, federal agencies have taken an increasingly narrower view of waters covered by the 1972 Clean Water Act.  Thus, the New Mexico Appeals Court decision giving the state control over all surface water means the New Mexico Environment Department can now have a say in the water quality of discharges from industrial facilities. Unless, of course, the New Mexico Mining Association, New Mexico Home Builders Association, the New Mexico Oil and Gas Association, the New Mexico Cattle Growers Association, Chino Mines Co. and Phelps Dodge, decide to take the issue to the New Mexico Supreme Court.  Then, that court will have to decide who has the final say in surface water quality.

And the effort under way to reform the 135-year-old Mining Law of 1872 could have an impact on western waters, too.  The West is home to many abandoned mines, and the Interior Department estimates that nearly 40 percent of Western waterways are polluted by mining waste.  Under legislation to reform the 1872 act proposed by West Virginia Rep. Nick Rahall, hard rock and mineral mines would have to pay a net 8 percent royalty fee on metals and minerals taken from federal lands, a fee that could raise $100 million each year toward the $32 billion estimated needed to clean up Western waterways polluted by mining waste.