The Obama administration has launched a new battle over water rights that threatens not only the the economies of arid Western states, which largely voted against him in the 2008 election, but their very existence.
WND reported last month that the federal government was creating obstacles for Tombstone, Ariz., to restore its water supplies following last year’s forest fire and monsoon-triggered floods in the nearby mountains. The federal government said crews could not use machinery to rebuild pipelines and spring-water collection systems.
Now, a letter contradicting longstanding federal practice asserts a claim to water in arid Western states, such as Utah, Montana, Colorado, New Mexico and Arizona, that supersedes all other authorities, including decisions by state water courts.
“Federal water rights are entitled to a form of protection that is broader than what may be provided to similarly situated state law rights holders,” states a letter from Julie Decker, the deputy state director in the U.S. Department of the Interior to the Arizona Department of Water Resources.
The letter was objecting to state plans to do a routine “Designation of Adequate Water Supply,” which reviews water resources, rights and uses when changes are proposed.
Decker’s letter said water is not “legally” available for some users who may want to develop property in the area, because “the expressed federal reserved water right created by Congress is senior to all junior water users who initiate uses after the date of the establishment of the reservation.”
Nick Dranias, who holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute, called it an “existential threat to the Western states.”
The institute is fighting on behalf of Tombstone for its right to repair its water supply system and use the water.
A statement from the institute said the city of Tombstone “is no longer the only one fighting the federal government for water rights.”
“The latest move by the federal Bureau of Land Management appears to herald a bigger and much more comprehensive effort to seize water and access rights on federal lands throughout the Western states,” the statement said.
The newest dispute is the federal government’s letter concerning water rights in Arizona’s San Pedro Riparian watershed. The letter came in response to a request by Sierra Vista’s Pueblo del Sol Water Co., which claims water rights in the area but is being told it cannot use the water without the federal government’s permission.
“This new federal policy not only defies decades of deference to and accommodation of state sovereignty over water law, but it throws a noose around Arizona’s neck, for which water is life,” the institute said.
“The growing federal stranglehold over water rights in Arizona is a direct assault on state autonomy. There is perhaps no better way for the federal government to quell restive Western states, like Arizona, that dare to resist federal immigration, health care, and unionization policies.”
Dranias explained the situation to people in regions of the country where water is more plentiful.
“Water is the lifeblood of the arid Western states. Development would not exist without pretty intensive development of scarce water. That is only possible with the incentives created by ownership,” he said.
Without assurances that water is available, there is no possibility that economic development can occur, he said. In fact, some states have provisions, such as in Colorado, saying a homeowner cannot occupying a building unless a water right is documented for the structure.
He said it was only a few decades back that the U.S. Supreme Court ruled in a New Mexico case that the federal government deferred to states on water rights.
Now, however, the policy is being repudiated, threatening virtually every water user west of the Mississippi River.
Dranias cited the Tombstone dispute, in which federal officials won’t give the city permission to take equipment into a protected region to repair damage from a forest fire and monsoon-induced flooding. The city has obtained its water from the area since Wyatt Earp helped build a pipeline.
“The federal government doesn’t care about a direct threat to human life, a direct threat to property, a direct threat to the economy. It is will to risk all of that in pursuit of whatever they’re trying to claim as a superior position of water rights,” he said.
Tombstone, which can document through federal letters its ownership of the rights back 130 years, is in a far superior position to most water users in the West. Dranias told of Arizona ranchers who own specific spring-fed water rights but only leased rights-of-way for pipelines.
The federal government is demanding as a condition for renewing the pipeline permits that ranchers cede to the federal government all water ownership and rights, he said.
The radical “green,” or ecological, element appears to be playing a role, Dranias noted.
As part of the litigation over Tombstone’s water, he said, emails to the U.S. Fish and Wildlife Service from various activists cheered the fires and floods that destroyed Tombstone’s water supply system.
“Hooray, the water’s running free again,” he said the emails expressed.
“Any state like Arizona … is facing the same situation,” he said.
Dranias said the fight over Tombstone’s water simply cannot be lost, because of the implications that could ripple across the nation, even beyond the West.
The state has declared the Tombstone situation an emergency, but, even so, federal officials refuse to allow repairs. Losing the case could set a precedent that emergency measures needed to mitigate oil spills and other environmental problems might not be allowed because of restrictions by the federal government, he said.
Federal officials have declined to answer questions about the court case.