There has been an ongoing struggle with the Washington Department of Ecology over rainwater harvesting, and it has finally been resolved – for now. It is in jeopardy, depending on actions taken by the US Congress.
The State of Washington has jurisdiction over “all waters above, upon, or beneath the surface of the earth, located within the state and over which the state has sole or concurrent jurisdiction.” (RCW 43.27A.020). That includes rainfall. There have been tussles in the legislature on a recurring basis over rainwater collection, with occasional threats to start regulating rain barrels under home downspouts and blocked efforts to fully implement sustainable design practices.
DOE Policy 1017 “Water Resources Program Policy Regarding Collection of Rainwater for Beneficial Use,” effective October 9, 2009, formalizes what common sense has told us all along. Collecting rainwater falling on roofs and putting it to beneficial use before it continues on its way as storm water is good stewardship. In some areas of the state (e.g. the San Juan Islands), there may be no other source of fresh water. Capturing rainwater for use on site is a key component of sustainable building design. Conserving water is a good thing everywhere in Washington.
Now the other Washington is quietly pushing a bill drastically impacting both urban sustainable design and rural economic sustainability. Senate Bill 787 Clean Water Restoration Act is intended to address perceived shortcomings of the Clean Water Act of 1977.
In a 2005 US Supreme Court ruling (Rapanos v. United States), the Army Corps of Engineers regulatory authority under the Clean Water Act was confirmed as applying only to “navigable waters,” as stated in the Act. “Navigable waters” are those connected to interstate commerce as defined under the Commerce clause of the Constitution. The definition has been tortuously interpreted to apply to the smallest of tributary streams as long as it could carry a canoe, but at least giving the Act a Constitutional veneer.
In the Rapanos case, the Corps attempted to extend their authority to a prairie pothole in the middle of a cornfield, clearly not navigable, by claiming broad authority over “all waters of the United States” and ignoring the explicitly limited definition carried within the Act.
S.787, if passed in its current form, would bend to the wishes of the Army Corps of Engineers and change the definition from “navigable waters” to “all waters,” with a lengthy definition extending jurisdiction to “all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.”
Based on the Corps previous attempts at regulating rain puddles in cornfields and the EPA’s definition of a playa lake (a temporary sheet of water in a slight depression in a flat area during the rainy season), the effect of S.787 is a transfer of authority over intrastate water and rainwater to the federal government.
It took a long time in the state of Washington to work out a sensible start to resolving rainwater harvesting policy. Overlaying the Army Corps of Engineers and the EPA on top of our own DOE is not going to be an improvement. S787 must be modified or killed before the House takes action to pass a companion bill.
Sen. Maria Cantwell (D) is a co-sponsor. Contact her office and tell her what you think.