Apr 29 2021
Water is one of our most precious resources. It is vital to agriculture, industry, recreation, conservation, the development and growth of cities, and a myriad of other needs.
Unfortunately, for states like Utah, our supply for this critical resource is threatened under the Antiquities Act.
Why is this the case?
Let’s review some background.
In 1908, the Supreme Court held that when the federal government reserves land for an Indian reservation, it also implicitly reserves sufficient water on the land to fulfill the purposes of the reservation, creating the “federal reserved water rights” doctrine.
In later cases, the Court expanded that doctrine to apply to other federal properties like national forests and recreation areas.
Then, in 1976, the Court held that the doctrine applied to national monuments created by the president. In other words, it affirmed the president’s authority to unilaterally change the legal water rights within a state simply by designating a monument under the Antiquities Act.
But monument designations can be, and often are, made without the approval of a state and its inhabitants. And unfortunately, in recent years these designations have significantly grown in size and scope.
The result? For public lands states like Utah, access to and use of the water supply is significantly curtailed. In some cases, privately held water rights are even terminated.
And it opens the door to even greater abuse under the Antiquities Act further down the road.
Imagine for a moment if a proposal for a national monument were designated in just one river basin such as the Grand Canyon.
In order to preserve the flow of water on the Colorado River through the Grand Canyon, water rights could be eliminated in Colorado, Utah, Arizona, Nevada, and California.
A reservation of water could reduce or eliminate drinking water for communities across the West. It could eliminate irrigation water for almonds or grapes in California, or Sudan grass in Utah.
The perils are endless.
That’s why I am introducing an amendment that would prevent the president from unilaterally creating reserved water rights when designating a national monument.
It would not, however, prevent the president from creating a national monument itself. And furthermore, it would still allow for water rights to be acquired for a monument through the state system in which the water rights reside.
It would simply and fairly give states a say in the process, however you feel about national monuments.
This is a simple, common sense solution to ensure that Utah and other public lands states are guaranteed the protection of their existing water rights and a reliable water supply.
I urge my colleagues to support it.