DENVER, Colo. (July 27, 2016) – A bill signed into law earlier this year by Colorado Gov. John Hickenlooper applies state water law to federal agencies under certain situations; specifically the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS).
A bipartisan coalition of two Democrats and two republicans introduced House Bill 1109 (HB1109) in January. The legislation applies state water law to federal agencies, specifically the BLM and the USFS, and prohibits state enforcement of federal actions that infringe on certain state water rights.
Both chambers of the Colorado legislature unanimously approved the measure. The House voted 65-0 and the Senate passed the bill 33-0. Hickenlooper signed HB1109 into law on April 21. It will go into effect 90 days after the legislature adjourned, which was May 11.
Section 1 of the bill affirms the basic tenants of Colorado water law found in Article XVI section 5 and 6 in the state constitution.
Section 5. Water of streams public property. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.
Section 6. Diverting unappropriated water priority preferred uses. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes.
In Colorado, water rights are established by making an appropriation, as stipulated by the constitution. State water courts confirm such appropriations. HB1109 declares that federal agencies are subject to state water law.
“The United States Forest Service and the Bureau of Land Management are subject to the jurisdiction of Colorado Water Courts for their water right claims in Colorado.”
The legislation goes a step beyond simply making a declaration. It prohibits the state engineer and the state division of engineers from enforcing or administering any efforts by the Bureau of Land Management or the U.S. Forest Service that:
- Requires a full or partial transfer of ownership in a water right to the USFS or the bureau;
- Restricts the use or alienability (sale or transfer) of the water right; or
- Requires a third party that supplies water to a federal special use permit holder to supply the water for a set period of time or in a set amount
By refusing to enforce or administer such efforts, Colorado can thwart federal acts or programs which rely on them.
This isn’t merely speculation. Precedent already exists.
Nevada successfully exercised its water rights to thwart construction of a nuclear waste disposal site on Yucca Mountain. State authorities denied the DOE’s five applications for the use of water to construct and operate the proposed dump. The feds sued Nevada, arguing that federal law preempted state water law. But a federal judge disagreed.
In its 2007 opinion, the court found that the issues presented by the DOE did not involve federal preemption of state water law. In the U.S. District Judge’s opinion,
“The validity of Western states’ groundwater rights and the right to regulate water in the public interest is not a right to be taken lightly, nor is it a right that can cavalierly be ignored or violated by a federal agency.”
Regarding the federal preemption argument he wrote,
“At present…the only public interest issue is whether state officials can be precluded from exercising their lawfully mandated duties, or whether a federal agency can run roughshod over a state’s rights or interest without specific authority and mandate to do the precise activities it wishes to do.”
Refusal to enforce federal efforts or provide resources to federal programs rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program The anti-commandeering doctrine rests primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Constitutionally, the regulation of water within a state remains the right and responsibility of the state government. HB1109 simply affirms and codifies this authority within state law and shows a path forward for other states that might want to stop things like mass, warrantless surveillance programs.
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