Western States Water Council 2005 Report

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In enrolling eligible land in the program, the Secretary was directed to consult with "...(1) the Secretary of the Interior; (2) the head of the lead water agency of the State in which the enrolled eligible land is located; and (3) any affected Indian tribes to ensure, to the maximum extent practicable, that all water and water rights transferred or acquired under this section..." in order to ensure waters "...are used to protect endangered species, sensitive species, and threatened species...." The provision included a general savings clause which states: "Nothing in this chapter - -(A) preempts any State water law; (B) affects any litigation concerning the entitlement to, or lack of entitlement to, water that is ongoing as of the date of enactment of this chapter; or (C) expands, changes, or otherwise affects the existence or scope of any water right of any individual." It then adds, "In carrying out the program, the Secretary shall - -(A) ensure, to the maximum extent practicable, that the program does not undermine the implementation of any law in effect as of the date of enactment of this chapter that concerns the transfer or acquisition of water or water rights on a permanent basis; and (B) implement the program in accordance with the purposes of such laws described in subparagraph (A) as are applicable." On December 5, the Senate began debate on S. 1731. On December 13, several western senators, led by Senator Pete Domenici (R -NM) offered an amendment on the Senate floor seeking to strip the proposed water conservation program language. Senator Domenici was joined by Republican Senators Wayne Allard (CO), Conrad Burns (MT), Ben Nighthorse Campbell (CO), Larry Craig (ID), Mike Crapo (ID), Mike Enzi (WY), Orrin Hatch (UT), Kay Bailey Hutchison (TX), Jon Kyl (AZ), Don Nickles (OK), Gordon Smith (OR) and Craig Thomas (WY). Senator Craig warned he expected debate would take some time as it "...is an issue that is anathema to western water law and the rights of States to determine the destiny of their own water." In his opening remarks, Senator Domenici said, "The language contained in this substitute requires that the Secretary of Agriculture devote 1.1 million acres of the conservation reserve program to a new water conservation program.... It would say that the Secretary of Agriculture... would have the authority to acquire this acreage..., and the water rights that come with it, and then use the water rights for the first time in derogation of State water law. In other words, they could be used for Federal purposes, not bound by State law." Senator Domenici continued, "The purpose of the old [CRP] program was to remove vulnerable land from production, not for the acquisition of water rights.... In essence, this is an attempt to pirate private water rights from individuals for purely Federal interests. 1131 Senator Reid responded that these objections to the program were based on myths. "Some claim that the water conservation program will preempt State law and allow the Federal Government to run water law in the States. That is simply not true. Any application to enroll in the program would have to be approved by the State in which the farmer farms. For example, if a rancher in Nevada decided he or she wanted to be part of this program and the Department of Agriculture decided it was a good deal, they would have to go to Mike Turnipseed, Nevada's water engineer, and if he said no deal, there would be no deal.... It does not preempt State water law." The second myth? The water conservation program would create a huge new Federal program to permanently 31 Western States Water, Issue #1439, December 14, 2001. 38