CWA and SDWA

The Clean Water Act (CWA) begins with the ambitious goal "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." The CWA, among other things, both prohibits "discharge of any pollutant" defined as "any addition of any pollutant to navigable waters," except as permitted by the CWA, and "discharge of dredge or fill material into the navigable waters" except as permitted by the CWA.

Because the primary focus of the CWA is surface water, it has limited implications for the existing framework in the Palouse Basin. However, should future water supply solutions rely on surface water, or dredge and fill associated with surface water sources, understanding of the CWA may become important.

The Safe Drinking Water Act (SDWA) regulates the water quality of public water systems, such as the municipal water supplies within the Palouse Basin. The Act authorizes state implementation of drinking water regulation. Idaho Department of Environmental Quality implements this through the Idaho Rules for Public Drinking Water Systems [pdf], and Washington Department of Health establishes rules regulating public water supplies. The Act also provides for designation of a "sole source aquifer" if "the Administrator [of the EPA] determines...that an area has an aquifer which is the sole or principal drinking water source for the area and which, if contaminated, would create a significant hazard to public health..." Interestingly, the aquifers in the Palouse Basin are not among the three designations of "sole source aquifer" in Idaho. In addition, the Act authorizes federal oversight of state wellhead protection plans designed to prevent contamination of wells used for drinking water. Idaho implements this through the Idaho DEQ Wellhead Protection Program. Finally, the Act was amended in 1996 to provide for state development of source water assessment plans. The Washington Department of Health and the Idaho Department of Environmental Quality implement these provisions.

ESA

Endangered Species Act (ESA)

The surface water source in the Palouse Basin - the Palouse River - does not itself provide habitat for endangered species (the Palouse Falls hinders upriver migration of anadramous fish). However, instream flow is a critical aspect of habitat for anadromous fish. One of the critical stages in the life cycle of anadromous fish is the migration of smolts to the ocean. Fast currents not only spare the energy of the fish, but reduce the time they are exposed to prey during migration. Thus, the contribution of the Palouse River to the flow of the Snake and Columbia during migration is subject to scrutiny under the ESA. The closures to new allocation of water recommended by the Washington Department of Fish and Wildlife to protect these species are discussed below under state level action.

Interstate Apportionment/Compacts

Water allocation decisions and even implementation of federal water quality laws, occur at the state level. However, the U.S. Constitution provides three means for states to either resolve disputes on shared water resources or develop a means for management coordination: (1) a suit under the original jurisdiction of the United States Supreme Court, (2) congressional apportionment, or (3) negotiation of an interstate compact approved by Congress. To date, Idaho and Washington have not pursued any of these means.

Water Allocation

Both Idaho and Washington follow the doctrine of prior appropriation for both surface water and groundwater. In Idaho this is a matter of constitutional law, whereas the Washington Constitution has no mention of prior appropriation.

Two factors associated with the doctrine of prior appropriation as currently interpreted by most state courts, present barriers to efficient management of the water resource. First, although initial judicial rules developed to define the doctrine integrated a basic understanding of the resource at the time, the interpretation by courts that the scientific aspects of the doctrine became part of the property right locked the doctrine in a 19th Century understanding of the resource. At that time groundwater use was limited, and the relation between ground and surface water poorly understood. Because some of the historically understood scientific aspects of the resource have been incorporated into constitutional provisions in Idaho, addressing the integration of modern science may be more difficult in that state.

Second, the doctrine was developed at a time when the west was primarily a place of economic exploitation, not community. Thus, the doctrine does not adapt to social and ecological needs that do not reflect an economic interest and has a tendency to promote an aristocracy of the inheritors of early water rights. As water becomes scarce, this aristocracy can exercise a level of control over the future of the western states not normally associated with democracies.

Fish Flows

Washington law provides that "[i]t is the policy of this state that a flow of water sufficient to support game fish and food fish populations be maintained at all times in the streams of this state." To implement this policy, Ecology is required to provide notice to the director of the Washington Department of Fish and Wildlife of every application to divert or store water. Although the final decision is left to Ecology, it may refuse a permit on the basis of impact on fish. In addition, to implement these provisions, the Department of Fish and Wildlife has developed summer surface water source limitations to identify surface water sources on which new permits for diversion or storage of water should not be issued for the period of low summer flow. Due to the needs of anadromous fish on the Snake and Columbia Rivers discussed above, the Department of Fish and Wildlife considers the Palouse River to be one in which summer surface water source limitations are necessary.

These limitations would affect any solution for diversion or storage of water on the Palouse River during the summer months. The limitations are not binding on Idaho. However, as noted above, in addition to political remedies, Washington does have the ability to seek the original jurisdiction of the U.S. Supreme Court should it seek to stop any effort by Idaho to develop the Palouse River.

Municipal Water Suppliers

In Idaho and Washington, as in most states, municipal providers are an exception to the rule that a water right may only be obtained for a use that will be implemented within a reasonable time period. Instead, municipal providers may obtain a water right for anticipated future needs by providing information on anticipated growth. In Washington, technical assistance in municipal water resource planning for conservation and efficiency falls under the authority of the Department of Health. Idaho does not appear to have a similar state level authority for assistance with water conservation.

Land Use Planning and Zoning

In the absence of irrigated agriculture on the Palouse, population growth and lifestyle are the primary drivers for increased water consumption. Thus, land use planning and zoning would appear to be the perfect avenue to plan for and manage growth in water use. However, the locus of water allocation at the state level and land use planning at the local level present a barrier to integration of the two.

On March 2, 2005, the Latah County Board of Commissioners enacted an emergency Ordinance No. 258 [pdf] establishing the "Moscow Sub-basin Groundwater Management Overlay Zone." The ordinance was passed following preliminary approval of an application for a relatively large groundwater use for agriculture and clay processing by Naylor Farms. The ordinance prohibited the following land uses within the overlay zone: natural resource mineral extraction and processing, confined animal feedlot operations exceeding 200 animal units, and golf courses. Naylor Farms challenged the ordinance in district court. Although district court Judge Carl Kerrick refused to interfere with the local governments basis for finding an emergency, he found the ordinance to be in conflict with Article XII, section 2 of the Idaho Constitution which establishes that a valid exercise of police power by local government may not conflict with general laws. Judge Kerrick found the conflict with general law to lie in the preemption of local authority over water management by general laws placing that authority at the state level. Although the county had argued that the ordinance merely regulated land use, the title of the ordinance - "Moscow Sub-basin Groundwater Management Overlay Zone" - led the court to find that argument to be "somewhat disingenuous."