During the February 3, 2010 House Natural Resources hearing, witnesses discussed the effects of current and proposed federal initiatives that could impact the implementation of the State Water Plan (Interim charge 2).
Some key federal initiatives that were reviewed:
• Clean Water Restoration Act
In 1972, the Clean Water Act gave the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers the authority to regulate “navigable” waters of the U.S., such as lakes, rivers and oceans. State governments are responsible for all other waters.
However, two Supreme Court rulings known as SWANCC (2001) and the Rapanos Decision (2006) left state and federal regulators, as well as landowners and manufacturers, confused regarding “navigable waterways,” and which waters are protected by the Clean Water Act, and which waters are not. However, the Clean Water Restoration Act (S.787), in its current written form, seeks to clarify jurisdictional questions raised by language within the Clean Water Act and replaces the words “navigable waters” with the words “waters of the United States.”
Some opponents of the legislation argue the bill would allow federal regulation of ponds, erosion features, ditches, even rain water. If true, then any permitting of new construction that would involve water would require a federal permit. Some opponents of this legislation are quick to point out that any jurisdiction over navigable waters is because they can be used for interstate commerce. The federal government can regulate interstate commerce under Section 8 of the Constitution.
The bill was passed out of the U.S. Committee on Environment and Public Works as amended on June 18, 2009. Currently there is no U.S. House companion of the legislation.
• FEMA Map Modernization
Most flood maps are more than 10 years old and, as a result, were outdated because of physical changes in the floodplains caused by land use, development, erosion, and natural forces. A national effort, called Map Modernization has the intended goal to produce more reliable flood risk data, and at the same time, convert data to a digital format, which will enable communities to overlay and analyze the new flood data with our digitalized information. The data also contains information such as street layouts, demographics, infrastructure, and even evacuation routes.
Information on map modernization can be found at: http://www.fema.gov/plan/prevent/fhm/mm_main.shtm
During the committee hearing, members voiced their concern on rumors of the mandatory purchase requirement for areas in the 100 year flood plain being expanded to the 500 year flood plain. It was clarified by FEMA Region 6 staff that there were no known plans for expansion.
• Fastrill
The City of Dallas has sent a response to the Supreme Court regarding the building of Fastrill reservoir along the Neches River in East Texas. The city argues the U.S. Fish and Wildlife Service gave “short shrift” to the city’s long term water plans for its own plans to build a wildlife refuge in Anderson and Cherokee counties. The city also argues that Fish and Wildlife misrepresented data it used to draw environmental conclusions about the land in question.
The wildlife refuge was approved in 2006 and, when complete, would occupy much of the same land the reservoir would otherwise use.
In March 2009 the U.S. Fifth Circuit Court of Appeals ruled in favor of the federal government affirming a lower court decision defending the creation of the Neches River National Wildlife Refuge, is consistent with other court rulings. The case was then sent to the Supreme Court. The Supreme Court has yet to decide whether to take the case. The Texas Water Development Board (TWDB) hopes to hear back from the Supreme Court by February 17, 2010.
Dallas officials expect a 27 percent increase in water demand by 2060 and have said 14 additional reservoirs are recommended to meet the needs through 2060. It would cost $569 million to build Lake Fastrill, which would supply 112,100 acre-feet of water to Dallas each year.
Final City reply to the courts: http://www.scribd.com/doc/25541025/FINAL-City-Reply-Brief-to-US-Supreme-Court-1-19-10
• Review of Principals and Guidelines
The White House Council on Environmental Quality released a proposal to the National Academy of Sciences (NAS) for their review that would significantly change the principles and guidelines that govern America’s water resource planning. The proposal would require that such projects help to improve the economic well-being of the Nation for present and future generations, better protect communities from the effects of floods and storms, help communities and individuals make better choices about where to build based on an understanding of the risk, and protect and restore the environment.
The proposal calls for the development of water resources projects to be based on sound science, increased consideration of both monetary and non-monetary benefits to justify and select a project, improved transparency, and consideration of nonstructural approaches that can solve the flooding problem without adversely impacting floodplain functions. The proposal would also expand the scope of the Principles and Guidelines to cover all Federal agencies that undertake water resource projects.
The Administration is sending the new draft Principles and Guidelines to both the Federal Register for public comment and, in accordance with WRDA 2007, to the National Academy of Sciences (NAS) for its review. The NAS review is expected to be completed by November 2010. Additionally, CEQ will take public comment on the new draft Principles and Guidelines for 90 days via the CEQ website (http://www.whitehouse.gov/administration/eop/ceq/initiatives/PandG).
In the Water Resources Development Act of 2007, Congress instructed the Secretary of the Army to develop a new Principles and Guidelines for the U.S. Army Corps of Engineers (section 2031). In an effort to modernize the approach to water resources development, the Obama Administration is expanding the scope of the Principals and Guidelines to cover all federal agencies that undertake water resource projects, not just the four agencies (i.e., U.S. Army Corps of Engineers, Bureau of Reclamation, Natural Resources Conservation Service and the Tennessee Valley Authority) which are subject to the current Principles and Guidelines.
Members on the panel were concerned on the communication and coordination between the state and federal government. They were urged by witnesses to stay vigilant on the ever changing landscape of federal initiatives that could inhibit Texas’ State Water planning abilities.