Farm Progress

Congress is taking another pass at a measure to protect water rights in the West. Will the third time be a charm?

Willie Vogt 1, Editorial Director, Farm Progress

June 5, 2017

4 Min Read
WATER RIGHTS: Farmers, and other businesses in the West, have seen water rights taken when they use public lands. A new bill being written in Congress would give state control over water use.arinahabich/iStock/Thinkstock

Farmers in the West are tired of regulatory moves that do more to hinder their efforts than help: from wildlife rules that may stand in the way of effective conservation to administrative moves that impinge on long-standing rights. It's the latter that has many concerned for the future of ranching and farming in the West, especially when it comes to water.

The challenge is the sovereign water rights of states and the way the federal government deals with those for public lands, or any land use. Randy Parker, vice president, national affairs, Utah Farm Bureau, recently trekked to Washington to represent Western producers in the debate. A new bill is being drafted the Water Rights Protection Act aiming to codify state's rights issues on water and its use.

"This is the third Congress this bill has been introduced into," Parker said. "When we introduced it the first time, the ski industry and ranchers from around the West kind of teamed up to work [on the bill]."

Rep. Scott Tipton, R-Colo., has been the lead sponsor on the measure from the beginning. The aim is to make the sovereign rights of states clear — and in the past, court cases have upheld the idea. However, in practice, Parker said that's not always true, noting that the Bureau of Land Management often demands water right before allow use of public lands — for grazing, or even ski resorts.

"We have found in Utah, for example, that the BLM through its policy said it would not allow for range improvement without an ownership interest in the water in the affected area," he said. Without water rights range improvement is challenged, and Parker and others maintain BLM does not have the right to make that demand.

Parker explained that both the BLM and the U.S. Forest Service have been making water rights demands for what the Western groups claim are specious reasons. For example, BLM claims that having water rights "provides certainty that the water will remain on the grazing allotment."

Parker said the idea was a red herring, adding that state law keeps water rights linked to the grazing associated with a specific piece of land.

The second concern raised by the federal agencies, which Parker denied was possible, is that "if the rancher owns the water on the grazing allotment, they may feel they can influence the BLM in their range management decisions."

Parker noted that this notion was troubling because ranchers have a keen interest in the value of those grazing lands. "These livestock ranchers raising cattle and sheep for 150 years have protected this ecosystem," he said. "We've got a nanny state mentality inside the Beltway that believes that what's best for that water resource is for it to be managed by the bureaucracy."

He noted that ranchers know if they don't treat this resource right in this environment, it won't be there next year.

Moving ahead
For the new bill, which is in its third iteration, Parker is confident that it is a targeted measure aimed at protecting state water rights over and above federal policy. He noted that the latest version of the measure is the "best bill we've put together," and he expressed greater confidence in this Congress of seeing it pass.

While the courts and other laws have worked to reaffirm state's rights on water control, most recently a 2013 unanimous Supreme Court decision on a case in Oklahoma, pushing a law through to settle these questions is the goal.

Parker noted that the U.S. Forest Service had filed diligence claims on 16,000 grazing contracts, asserting that those ranchers were watering their sheep and cattle on public lands that were part of the U.S. before they were part of a sovereign state. "If you go with that argument, any water that rolls off land prior to statehood would belong to the U.S. government," he noted.

Water rights are big business, and state control of water rights has been established in different cases. However, clarifying those rights in a new law would settle many questions. As for why it's taken three tries to get the bill moving? Parker noted that the Senate Majority Leader under the previous administration wouldn't let the bill move through that side of the Capitol. "Each time the bill was under development, President Obama threatened a veto," Parker said. "The former Majority Leader, not Minority Leader, of the Senate would not have the president hurt by bad publicity of the West. It never made it up for consideration," Parker said in frustration.

Under the Trump administration, Parker is more optimistic in part due to the wording of a recent executive order promoting ag and rural prosperity in America. Parker pointed out a phrase in the order, noting that the measure was to "ensure that the water users' private property rights are not encumbered when they attempt to secure permits to operate on public land."


About the Author(s)

Willie Vogt 1

Editorial Director, Farm Progress

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