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Idahoans Push for State Control of Water

by Faith Bremner, Washington Bureau
The Idaho Statesman, March 15, 2001

WASHINGTON -- Idaho's all-Republican congressional delegation is pushing for legislation that water experts say would radically change Western water law and make it harder for the federal government to get water for endangered species, wilderness areas and Indian tribes.

Sen. Mike Crapo, who practiced water law before coming to Congress in 1992, introduced the State Water Sovereignty Protection Act in the Senate earlier this month on behalf of himself and Sen. Larry Craig. Rep. Mike Simpson is expected to introduce an identical bill in the House, co-sponsored by Rep. Butch Otter.

"This bill would have a dramatic impact on how easily the federal government could meddle in water supply," said David Haddock, who litigates environmental and constitutional law cases for the conservative Pacific Legal Foundation in Sacramento, Calif.

"It's a two-edge sword. It's great for farmers and those who use water. But it's possible that those who care more about fish protection may be left in the lurch," Haddock said.

Crapo and Simpson introduced the same bill in previous years, but it never got out of committee. They hope to gain momentum this year, but don't expect passage.

"It's difficult, with Congress being divided as it has been for the last few years, to move ahead on such a significant piece of legislation," Crapo said.

Historically, states have controlled how water is used and distributed within their borders, and in the early 1900s they largely ignored water for wildlife and recreation. Since the 1970s, the federal government has gotten more involved in how states, particularly arid Western states, manage their water.

Using myriad federal laws -- including the Endangered Species, Clean Water and Federal Land Policy Management acts -- federal agencies have twisted arms to get Western states and their big water users -- mostly farmers and cities -- to set aside water for wildlife and recreation. Sometimes states voluntarily surrendered the water; sometimes the federal government had to sue to get it.

The Crapo-Simpson bill would require the federal government to stand in line like everyone else to get water allocations. Abolished would be the concept of federal implied water rights, carved out by federal courts to ensure that federally reserved lands get the water they need to serve the purposes for which Congress and presidents set them aside. Federally reserved lands include Indian reservations, military and Department of Energy facilities, national parks, monuments, wildlife refuges and wilderness areas.

Simpson said the Idaho Legislature has been responsive to federal requests for water for the Snake River and for salmon recovery, allowing the federal government to lease water from willing sellers.

"The people of Idaho care about clean water, salmon recovery, our national parks and wilderness," Simpson said. "That's why we live here, because we want clean water."

Steve Malloch, a lawyer for Trout Unlimited, said the bill is a back-door attack on parks, national monuments and wilderness areas. Because water is so precious and contentious in the West, Congress and presidents seldom specify that such areas are entitled to water, so they have had to rely on the implied reserve water right, he said.

Idaho has been hostile toward setting aside water, and the water sovereignty bill will make things worse, Malloch said. On Feb. 22, the Idaho Supreme Court ruled the Deer Flat National Wildlife Refuge, parts of which were first set aside in 1909, does not have an implied federal reserve water right.

If that decision stands, the federal government will have to ask the state for a water right that will be junior to those owned by farmers. The Justice Department has yet to decide whether to appeal to the U.S. Supreme Court.

"Trout Unlimited is very interested in trying to promote healthy rivers, and the biggest threat to rivers is the lack of water," Malloch said. "Idaho is an extremely difficult state to work in and to try to protect flowing rivers."

Crapo said he did not intend to include Indian reservations in the list of federal lands that would lose their implied reserved water rights and said the bill may have to be amended. In an attempt to exclude Indian reservations, the bill says it does not interfere with any "treaty or other international agreement to which the United States is a party."

But not all Indian reservations were created by treaties. In Nevada and California, they were created by executive order, for example.

The rest of the bill would put the federal government at the mercy of the states whenever a federal entity wanted to create a new park or facility that would need water. That could make it difficult, if not impossible, for the federal government to build projects that face strong local opposition, such as nuclear waste dumps and military testing facilities, said Joseph Sax, a professor of water law at the University of California, Berkeley.

"It would be like saying no federal project will go forward in any state unless the state wants it," Sax said. "In essence, it would shut down the constitutional notion of federal supremacy."

For example, the bill could give the state of Nevada more ammunition in its battle to keep the Department of Energy from building a nuclear waste dump at Yucca Mountain. If it ever opens, the repository will receive highly radioactive waste that now is being stored all over the United States.

Last year, Nevada's water engineer denied the Department of Energy groundwater it needed to build and maintain the nuclear waste dump at Yucca Mountain, citing threats to public health, safety and the state's tourism-based economy.

DOE appealed the decision to a federal court, which last fall ruled that state courts should decide the matter. The decision is a victory for Nevada, because it is believed no state judge -- all of whom are popularly elected -- will ever overturn the state engineer's decision.

Simpson said Nevada and other states should have sovereignty over their water, even if it means the Yucca Mountain dump isn't built and states, including his own, must continue to store their high-level nuclear waste.

"If it interrupts it (Yucca Mountain development), that's the way it is," Simpson said. "I suspect the federal government will have to do some serious negotiating with the state of Nevada."

Crapo said that if the bill becomes law, Congress still could force Nevada to supply water for the site by saying it is a national priority.

While the federal government could still help itself to states' water from time to time, Crapo said, "I'm trying to get Congress to do so less regularly and to do it in thoughtful ways."

Faith Bremner, Washington Bureau
Idahoans Push for State Control of Water
The Idaho Statesman, March 15, 2001

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