Western States Water Newsletter

Highlights

WSWC Fall (211th) Meetings: At its 211th Meetings in Las Cruces, New Mexico, the Western States Water Council adopted four positions on state water authority, water quality primacy, Indian water rights settlements, and USDA programs. Members also shared lessons from the Rio Grande compact settlement, state capacity and federal water data challenges, and emerging issues, including state authority over federal water uses, water reuse for data centers, and support for rural water systems.

Interior/Wyoming Yellowstone Agreement: Interior Secretary Burgum and Wyoming Governor Gordon initiated a 60-day congressional review period of an MOA to return Clean Water Act Section 401 and related authority over Wyoming’s portion of Yellowstone National Park to the Wyoming DEQ. The agreement addresses water quality concerns that arose under a 2023 EPA Rule that treated Yellowstone and 15 other national parks as lands of exclusive federal jurisdiction for the first time under CWA 401, which led to litigation by Wyoming and other states.

ACWA/Senate Permitting Bill Analysis: On October 1, the Association of Clean Water Administrators released an analysis of the Clean Water Act provisions in the Bipartisan American Affordability and Jobs Act of 2026 (S. 5653), covering changes to Section 401 certification, Section 404 permitting and litigation, and judicial review of water quality criteria and WOTUS definitions. Of particular interest to western states, the bill would also limit Section 401 certification to specified “water quality requirements,” add new procedural steps for certifying states, and extend the maximum term for state-issued NPDES permits up to ten years.

DHS/New Mexico Water Law Waiver: On October 2, the U.S. Department of Homeland Security issued a Federal Register notice waiving the McCarran Amendment, the New Mexico Water Code, and the state’s groundwater regulations to expedite border wall construction in New Mexico. The same day, the United States removed to federal court New Mexico’s lawsuit alleging unauthorized well drilling, unpermitted diversions, and meter tampering in three groundwater basins to supply that construction.

United States v. Idaho: On October 16, Idaho filed an answer and counterclaims in the Department of Energy’s federal lawsuit, which disputes the state’s authority to curtail or require mitigation for the federal groundwater right serving the Idaho National Laboratory. Idaho argues that the McCarran Amendment and state law allow it to administer decreed federal water rights, including federal reserved rights, the same as any other water right in times of shortage.

Nevada v. Burgum/Arizona Intervention: Arizona has filed a motion to intervene in Nevada’s lawsuit challenging DOI’s August 2026 Record of Decision for operating Lake Powell and Lake Mead from 2027 through 2036. It argues that the framework fails to require Upper Basin deliveries to Lake Mead and exposes the Lower Basin to cuts of up to 3 million acre-feet per year. The state says it also wants to preserve the two-year Lower Basin Agreement with California and Nevada, which DOI did not adopt.