By the states, by the feds


It’s a long-running battle that loosely seemed to be settled a long time ago. But not quite.

In general, broad terms, most regulation of water rights happens on the state, not the federal, level. That has been true in considerable part because the feds – by way of congressional action – simply gave up its claim to manage water rights, as long as the states – or, any particular state – did so in a comprehensive way. The McCarran Act putting this in place was a formative piece of legislative in the area.

But it isn’t absolute, and it didn’t answer all questions. It left open the area of federal reserved rights, for example, the idea that the federal government implicitly has the right to enough water to carry out its legal responsibilities (water forest lands, for example).

A recent 9th Circuit Court of Appeals seemed to extend some of that principle to the area of groundwater, which is relatively new territory in the area of federal water rights. The decision generated quite a bit of concern in a number of western states, and 10 of them have filed an action challenging the decision.

One of those appellants is Nevada Attorney General Adam Paul Laxalt, who remarked, “Western states like Nevada are particularly impacted by the current uncertainty of groundwater rights created by this recent Ninth Circuit decision. By filing this brief, my office encourages the Supreme Court to take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference. As I have consistently demonstrated throughout my tenure as Nevada’s attorney general, my office stands ready to defend our state from unlawful federal overreach regardless of the source.”

As that office went on to explain, “Nevada’s brief explains how the Ninth Circuit’s decision creates significant uncertainty for all states, which have historically controlled water resources within their state. The brief encourages the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to provide guidance to all states, including Nevada, on how to manage their groundwater resources.”

It’s an uncertain case.

The federal limitations on water right governance are – or at least have been treated as – a matter of self-governance, largely. The legal standing of the states is a little unclear, and there’s some risk: An adverse decision could put at risk a number of prerogatives that most states have to now taken for granted.

But then, they may not feel they have a choice.

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