A court ruling granting virtually unlimited control over the use of water to the federal government is causing alarm among groups that rely on rivers and other bodies of water.
And the folks at the Pacific Legal Foundation are trying to have the decision overturned.
“Under this ruling, federal agencies all over the nation can claim reserved water rights at any time, with the explicit purpose of preventing existing water uses in, above or below their facilities, even if those uses have been in place for decades, and even if stopping or reducing them would have severe economic, environmental and other consequences for the federal agency’s neighbors,” explains Anthony Francois, a senior attorney for Pacific Legal.
“It’s easy to imagine how this unchecked power could be abused, creating a regulatory and legal nightmare for those affected by the decision.”
The complaint was brought by John Sturgeon, who argued with the National Park Service about whether he could pilot a hovercraft upriver in Alaska and go through the state’s remote national parks to reach hunting grounds upstream.
Francois explained that hovercraft are an important mode of transportation in Alaska, where there are few roads.
But Park Service rules prohibit hovercraft in national parks nationwide.
Sturgeon claims that a special statute, applicable only in Alaska, allows him to fly upriver whether or not he is transiting one of the parks.
The San Francisco-based 9th U.S. Circuit Court of Appeals decided against Sturgeon in a broad ruling that is now creating the problems.
The judges said the Park Service can ban hovercraft “anywhere in the country because it owns water rights in the rivers flowing through the parks, and those rights give them the authority to regulate the use of the rivers.”
Pacific Legal said the ruling “has wider national implications than hovercraft, which are against federal regulations in national parks anyway. When courts determine that federal agencies own what are called ‘reserved water rights’ for the facilities they manage, they trump any other water rights developed after the facility was created.”
“Since reserved water rights aren’t apparent at the time the federal facility is established, they can upend the settled expectations of others who establish competing water uses without knowing that federal rights later will be claimed and recognized.”
Francois explained: “This creates serious uncertainty for stakeholders upstream or downstream, including landowners, farmers and ranchers, and municipal authorities. Federal reserved water rights can be claimed decades after cities and towns develop drinking water supplies, or farms and ranches establish irrigation rights. Should federal bureaucrats decide to enforce a newly claimed reserved water right against these stakeholders, it could lead to their experiencing shortages, or even going entirely without their water. Not very neighborly of the federal government.
“Recognizing that the power to overturn existing water developments is a recipe for abuse, the Supreme Court has limited the ability of federal bureaucrats to claim reserved water rights for their facilities. Implied rights must be clearly discernible from the law or presidential act that establishes the facility. The claimed water right must be essential for the facility to fulfill its primary purpose. And the courts may not award more water than is necessary to fulfill that purpose,” he said.
“These prudent limits on federal bureaucrats’ abilities to claim water rights serve to protect existing urban and farming developments that have grown up over decades, upstream and downstream from federal land.”
It’s the 9th Circuit that decided not to use that precedent, he explained.