Needed: US Water Commission to Find Ways to Increase Water Supply

Twenty-First Century Water Commission bill awaits congressional action.

Robert S. Lynch, an attorney with Robert S. Lynch & Associates, contributed this Guest View. Mr. Lynch devotes most of his practice to water, electricity and environmental law issues.

Two Congresses ago, Congressman John Linder of Georgia introduced H.R. 135, the Twenty-First Century Water Commission bill. The bill sets up a national commission to study ways to increase water supply throughout the United States similar to the last national study of this nature put forth by the National Water Commission in 1973. The bill passed the House in both the 108th and 109th Congresses, only to die in the Senate Environment and Public Works Committee. It was reintroduced in this Congress and has passed both House Committees (Natural Resources and Transportation and Infrastructure). The T&I Committee amended it from its original introductory form to emphasize climate change as an area of inquiry for the commission. The House bill has been languishing on Calendar No. 429 since June 4, 2008.

The companion bill in the Senate, S. 2728, was reported by the Senate Environment and Public Works Committee on August 22 of this year. It currently resides on Calendar No. 941 but a hold has been placed on the bill by Senator Coburn of Oklahoma. Apparently Oklahoma has no water problems worthy of national consideration. The hold places the bill in good company, at least, since Senator Coburn has seen fit to place holds on a great number of bills. As I dictate this, and Congress is about to adjourn having theoretically remedied the mess on Wall Street, the likelihood for this bill passing in this Congress devolves around whether and to what extent a lame duck session will occur.

What does the bill do? First, it declares as a national concern that we must find ways to increase our water supplies. Second, it creates a nine-member commission. The appointments to the commission vary slightly between the House and Senate versions of the bill as do the directions to the commission as to what to emphasize in its deliberations. For the most part, however, both versions direct the commission to focus on the supply side aspect of water supply in contrast to the numerous bills that have been considered by Congress lately on drought management and conservation, the demand side of the equation. And, most importantly for water lawyers like me, both versions respect the primary role of the States in managing and adjudicating water rights.

You might ask why a Congressman from Georgia (the Atlanta suburbs) would care about water. This is a Western issue, isn?t it? Well, Atlanta is the largest city in the United States without a major river running through it. It is more or less dependent on Lake Lanier, a nearby Corps of Engineers project that is subject of litigation with Florida and Alabama and has been for some years. To make matters worse, Georgia just lost a decision in federal court over operation of Lake Lanier.

Georgia (and a number of other Eastern states) are now learning the lesson former Congressman Jay Rhodes has turned into a catchphrase for this bill: "Drought, it?s not just for the West anymore."

Water rights, infrastructure financing, environmental impacts and mitigation, species habitat, river basin ecology, scientific developments and, yes, even climate change, must figure in any national discussion of increasing water supply. The only certainty is that not starting that dialogue only postpones addressing solutions to our increasingly stressed water supplies.

There have been a number of bills introduced in this Congress and the last several focusing on specific solutions to specific problems, some of them in particular states and some of them regional in application. Perhaps the most notable of these is the bill authorizing a new interstate compact for the Great Lakes - St. Lawrence River Basin (S.J.Res. 45; H.R. 6577). However, none of the legislation looks at water supply from a nationwide perspective except the Twenty-First Century Water Commission bill. National policy and programs emanated from the National Water Commission report in 1973. Without a national look again, it will be difficult to adjust current policies and programs to the needs of the Twenty-First Century.

I had the pleasure of working with Congressman Linder to fashion H.R. 135 and have worked with him and his office and water organizations and attorneys throughout the West and the United States since then attempting to produce a bill that could accomplish some good. We made great progress in the House during a period of time in which many of the Eastern states were in severe drought. We may have to wait for a similar unfortunate set of circumstances in order to get this commission approved by the Senate. That is unfortunate but it may be political reality. In the meantime, I will continue to do what I can to help this legislation along because I believe we will never get to a place where we can talk about outside-the-box solutions until we have a bully pulpit from which to speak.