by Bob Unru
The Obama administration has launched a new battle over water rights
that threatens not only the the economies of arid Western states, which
largely voted against him in the 2008 election, but their very
WND reported last month
that the federal government was creating obstacles for Tombstone, Ariz.,
to restore its water supplies following last year’s forest fire and
monsoon-triggered floods in the nearby mountains. The federal government
said crews could not use machinery to rebuild pipelines and
spring-water collection systems.
Now, a letter contradicting longstanding federal practice asserts a
claim to water in arid Western states, such as Utah, Montana, Colorado,
New Mexico, Arizona and others, that supersedes all other authorities,
including decisions by state water courts.
“Federal water rights are entitled to a form of protection that is
broader than what may be provided to similarly situated state law rights
holders,” states a letter from Julie Decker, the deputy state director
in the U.S. Department of the Interior to the Arizona Department of
The letter was objecting to state plans to do a routine “Designation
of Adequate Water Supply,” which reviews water resources, rights and
uses when changes are proposed.
said water is not “legally” available for some users who may want to
develop property in the area, because “the expressed federal reserved
water right created by Congress is senior to all junior water users who
initiate uses after the date of the establishment of the reservation.”
Nick Dranias, who holds the Clarence J. and Katherine P. Duncan Chair
for Constitutional Government and is director of the Joseph and Dorothy
Donnelly Moller Center for Constitutional Government at the Goldwater Institute, called it an “existential threat to the Western states.”
The institute is fighting on behalf of Tombstone for its right to repair its water supply system and use the water.
A statement from the institute said the city of Tombstone “is no
longer the only one fighting the federal government for water rights.”
“The latest move by the federal Bureau of Land Management appears to
herald a bigger and much more comprehensive effort to seize water and
access rights on federal lands throughout the Western states,” the
The newest dispute is the federal government’s letter concerning
water rights in Arizona’s San Pedro Riparian watershed. The letter came
in response to a request by Sierra Vista’s Pueblo del Sol Water Co.,
which claims water rights in the area but is being told it cannot use
the water without the federal government’s permission.
“This new federal policy not only defies decades of deference to and
accommodation of state sovereignty over water law, but it throws a noose
around Arizona’s neck, for which water is life,” the institute said.
“The growing federal stranglehold over water rights in Arizona is a
direct assault on state autonomy. There is perhaps no better way for the
federal government to quell restive Western states, like Arizona, that
dare to resist federal immigration, health care, and unionization
Dranias explained the situation to people in regions of the country where water is more plentiful.
“Water is the lifeblood of the arid Western states. Development would
not exist without pretty intensive development of scarce water. That is
only possible with the incentives created by ownership,” he said.
Without assurances that water is available, there is no possibility
that economic development can occur, he said. In fact, some states have
provisions, such as in Colorado, saying a homeowner cannot occupying a
building unless a water right is documented for the structure.
He said it was only a few decades back that the U.S. Supreme Court
ruled in a New Mexico case that the federal government deferred to
states on water rights.
Now, however, the policy is being repudiated, threatening virtually every water user west of the Mississippi River.
Dranias cited the Tombstone dispute, in which federal officials won’t
give the city permission to take equipment into a protected region to
repair damage from a forest fire and monsoon-induced flooding. The city
has obtained its water from the area since Wyatt Earp helped build a
“The federal government doesn’t care about a direct threat to human
life, a direct threat to property, a direct threat to the economy. It is
will to risk all of that in pursuit of whatever they’re trying to claim
as a superior position of water rights,” he said.
Tombstone, which can document through federal letters its ownership
of the rights back 130 years, is in a far superior position to most
water users in the West. Dranias told of Arizona ranchers who own
specific spring-fed water rights but only leased rights-of-way for
The federal government is demanding as a condition for renewing the
pipeline permits that ranchers cede to the federal government all water
ownership and rights, he said.
The radical “green,” or ecological, element appears to be playing a role, Dranias noted.
As part of the litigation over Tombstone’s water, he said, emails to
the U.S. Fish and Wildlife Service from various activists cheered the
fires and floods that destroyed Tombstone’s water supply system.
“Hooray, the water’s running free again,” he said the emails expressed.
“Any state like Arizona … is facing the same situation,” he said.
Dranias said the fight over Tombstone’s water simply cannot be lost,
because of the implications that could ripple across the nation, even
beyond the West.
The state has declared the Tombstone situation an emergency, but,
even so, federal officials refuse to allow repairs. Losing the case
could set a precedent that emergency measures needed to mitigate oil
spills and other environmental problems might not be allowed because of
restrictions by the federal government, he said.
Federal officials have declined to answer questions about the court case.