There may not be sufficient documentation to prove that Mark Twain ever said, “Whiskey is for drinking; water is fighting over,” but Nevada ranchers and farmers are having to fight over water with two branches of their own federal government. It’s enough to drive one to drink.
First, the Environmental Protection Agency rewrote the rules for the Clean Water Act in such a way that gives it authority over just about any stream, dry creek bed or backyard wading pool in the country, even though the law as originally written was meant to protect navigable interstate waterways from pollution. This would allow the Interior Department to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.
At a recent meeting of the Nevada Conservation Commission, state engineer Jason King, whose office determines who in Nevada has rights to various water sources, was quoted as saying, “I look at this as an attempt to get into the regulation of the amount of water — an attempt to get their nose under the tent.”
As if grabbing a claim on every drop of water on the surface were not enough insult and injury, the U.S. Forest Service, a division of the Agriculture Department, has published a “Proposed Directive on Groundwater Resource Management” that would give it virtual veto power over the use of any aquifer remotely connected to any land under Forest Service jurisdiction.
The Western Governors Association has sent a letter to Agriculture Department Secretary Tom Vilsack challenging his agency’s authority to carry out this proposal and asking for answers to a number of questions. The letter, signed by Nevada Gov. Brian Sandoval and others, notes Congress gave states sole authority over groundwater in the Desert Land Act of 1877 and the Supreme Court upheld this exclusive authority in a 1935 court case.
Among the questions posed by the governors are: “Given the legislative and legal context, what is the legal basis for the U.S. Department of Agriculture (USDA) and USFS assertion of federal authority in the context of the Proposed Directive?” and “How will USFS ensure that the Proposed Directive will not infringe upon, abrogate, or in any way interfere with states’ exclusive authority to allocate and administer rights to the use of groundwater?”
Additionally, several Western congressmen — including Nevada’s 2nd Congressional District Rep. Mark Amodei — are attempting to insert language in a 2015 appropriations bill that would protect privately held water rights from federal takings. The language was drafted by Amodei and Rep. Scott Tipton of Colorado. It passed the House in March as the Water Rights Protection Act. Putting the language in the appropriations bill increases the chances it will be signed into law.
“Nothing in federal law grants federal land managers jurisdiction over Nevada’s groundwater. That responsibility is one of the few states’ rights remaining in Nevada and I will work all day, every day to keep it,” said Amodei. “With its inclusion in the Interior appropriations bill, this much-needed and timely reminder keeps the pressure on the federal government to comply with state rules and decisions when it comes to Nevada’s groundwater. Anything less amounts to what increasingly looks like a war on the West by this administration.”
Amodei noted that in recent years various federal land agencies have made a concerted push to acquire water rights, including cases in which land managers demanded that water users apply for their water rights under state law in the name of the agency rather than for themselves.
In another letter to Vilsack signed by Western congressional members, including Amodei and Nevada Sen. Dean Heller but no other member of the Nevada delegation, the secretary is told the proposal would impose “a chilling effect on existing and future water resource development and the uses dependent on that development not only within NFS lands but outside these lands.”
The letter notes that the action could adversely affect job creation and is being taken without sufficient input from the states, farmers, recreational users, ranchers and other affected parties. “We therefore urge you to withdraw this ill-timed and punitive Directive,” the letter concludes.
The feds already control 87 percent of Nevada land, now they are coming for the water, too. Some are putting up a fight.