The business community used the series of lawsuits that followed the court's decision as evidence that there was too much uncertainty about which waters and wetlands counted as "isolated." They requested that the administration draft a new rule to address the issue. Business interests believe the Clean Water Act was not designed to regulateevery single drop of water in the United States.

Congressional members stated that "Excluding waters from the Clean Water Act will lead to unregulated discharges of pollution into streams, ponds and wetlands and, as this pollution flows downstream, greater pollution of our lakes, rivers and coastal waters."  However, monetary compensation for the displacement of intermittent nontidal streams and intermittent nontidal wetlands exit at the state regulatory level to mitigate any potential damage from a development project.  Such monetary contributions usually cover the necessary nontidal streams and wetland replacement costs.  AAEA has  supported development projects from an environmental justice perspective that use this replacement mechanism. (See National Harbor Wetlands Testimony in Documents).

Currently, no decision has been made on rewriting the rule that defines which waters and wetlands are protected by the Clean Water Act. Officials continue to review the more than 130,000 comments responding to the administration's notice of proposed rulemaking. The legistors' letter was in response to published reports of the administration's plan. The believe the draft rule will eliminate all Clean Water Act safeguards for most waters and wetlands in the country.  Specifically, they think the ephemeral streams and intermittent wetlands that flow less than six months of the year would be stripped of federal pollution controls, potentially making them available to be filled in for development.

The Bush administration’s proposed National Water Quality Trading Policy would allow water polluters to purchase "credits" from lesser polluters to bring them into compliance with the Clean Water Act. The proposal is similar to a sulfur dioxide market-based trading system that has operated successfully under the Clean Air Act to limit the threat of acid rain. The administration believes it is a cost-effective alternative to traditional regulations that require industry to install expensive anti-pollution equipment.

The new policy uses economic incentives to enforce water quality regulations. It would allow industrial, agricultural and wastewater treatment plants to meet their regulatory obligations by purchasing offsetting credits from facilities in the same watershed that have exceeded their mandated water quality standards or from non-regulated farms that have helped clean up water.

Sediments, nutrients and microorganisms from industrial and agricultural runoff that is not directly regulated overburden about half of the country’s water bodies.  This trading program could be helpful in addressing these nonregulated non-point sources of pollution.

California agreed in 1929 to 4.4 million acre-feet a year. California's been using more than that for years and, each year, its water consumption creeps higher. Right now, California is consuming more than a million acre-feet above its legal limit.

Ken Calvert, chairman of the Resources Committee's Water and Power Subcommittee, worked for two years to handle this legislatively. Unfortunately, the senate did not respond.

Calif. Misses Water Pact Deadline

The Bush administration intends to cut flows from the Colorado River to the state's cities and farms beginning in January because water officials in Southern California failed to reach a deal on  water usage from the river before a December 31, 2002 midnight deadline. The deadline was part of an agreement reached in 2000 among seven Western states, including California that was meant to end fighting over water supplies from the Colorado River.

The Imperial Irrigation District (IID) made the agreement collapse.  Under that agreement, the IID was to transfer 200,000 acre-feet of water it has been receiving each year from its farms to the San Diego County Water Authority.  The Metropolitan Water District (MWD) of Southern California, the largest urban water district, reported that unreasonable IID proposal demands derailed the negotiations:

• Financial demands, which included $200 million in state financing for environmental and other needs that would cost every household in the state about $30. Specifically, parties could not agree on who would pay for any possible environmental damage to the Salton Sea. The inland lake is an important stop for migratory birds, but is supported by agricultural runoff from Imperial farmers.
• Provisions allowing IID to back out of the agreement in the first year if certain demands were not met.

Secretary of the Interior Gale A. Norton believes the IID transfer is crucial to the bigger agreement because it would signal the willingness of farmers in Southern California to share their water  with the state's fast-growing cities. Currently, agricultural districts get most of the water that comes from the Colorado River; an imbalance that most water experts agree must change to address the state's chronic water shortages.

In past years, the state has drawn as much as 800,000 acre-feet of extra water, enough to provide for about 1.6 million households. The biggest loser will be the MWD, which serves 17 million people in six counties, but the IID also stands to loose about seven percent of its allotment.

Farmers in the district, the Imperial Irrigation District, pay $15.50 in delivery fees for each acre-foot of water they use. San Diego offered to buy up to 200,000 acre-feet a year — about 7 percent of Imperial's supplies — for $250 per acre-foot. Though in the end the district's board approved the sale, it loaded the deal down with conditions (listed above) that the Interior Department and other water districts would not accept.

 With no deal, Secretary Norton ordered that the Imperial Irrigation District lose about the same amount of water from its annual Colorado River allotment, in this case without compensation. Separately, she directed cutbacks on surplus water to the Los Angeles-based Metropolitan Water District of Southern California. MWD complied by turning off the pumps at three of the eight pumps that tap into the Lake Havasu reservoir of Colorado River water by order of the federal government on January 1, 2003. Together, the penalties mean cities and farms in Southern California could be denied nearly 650,000 acre-feet of water from the river this year, enough to meet the needs of about 3.8 million people or a city roughly the size of Los Angeles.

The MWD, which has relied on the Colorado River for more than half of its water, has enough water on hand to meet demands across Southern California for the next two years and perhaps longer. In 2003, the public will see a heightened focus on voluntary outdoor water conservation that will make even more water available for storage and use in dry years.

The Interior Department will restore the water if a San Diego water deal can be completed.  Regardless, it is a new era of limits for water users dependent on water from the Colorado River basin.

Urban water districts are looking at solutions like desalting seawater, recycling used water and reducing demand through conservation. Unfortunately, the shift to agricultural water has actually lulled some districts into complacency about conservation. The U.S. government has not been strictly enforcing the conservation requirements in the urban sector. Moreover, authorities should be vigilant about ensuring that some of the water directed away from farms also goes to environmental projects, like restoring wetlands and water flows in depleted rivers.

In the past, California was able to sidestep its chronic water problems by dipping deeper into Lake Havasu, which gets its water from releases upstream at the Hoover Dam. Some years, California took as much as 5.2 million acre-feet, an action that irritated the other six (Arizona, Nevada, New Mexico, Colorado, Wyoming and Utah) Colorado River basin states but that was of no great consequence because those states did not need the water.

Today the situation has changed because two neighboring states on the river's lower basin, Arizona and Nevada, experienced phenomenal growth and a greater thirst for the water California was monopolizing. And the basin that feeds the Colorado River has recently undergone the worst drought on record.

That combination led to stepped-up demands by the six states for the Interior Department to force California to live within the allotment dictated in a Supreme Court ruling in 1963. In a complex set of negotiations, the states, along with the Department of the Interior, agreed to give California until 2016 to break its habit. But when the Southern California water agencies missed the deadline for the San Diego sale, the cutoff became immediate.