State Water Rights Amendment

Floor Speech

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Mr. LEE. Mr. President, water is one of our most precious resources, and it is vital to life. It is necessary for agriculture, industry, recreation, conservation, the development and growth of cities, and so many aspects of our day-to-day lives. Unfortunately, for States like Utah--States with a lot of Federal land and States that are dry in many areas--our supply for this critical resource, water, is threatened under the Antiquities Act.

Why is this the case? Well, let's review the background.

Back in 1908, the Supreme Court concluded that, when the Federal Government reserves land for an Indian reservation, it also implicitly reserves sufficient water on that 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--other Federal properties like national forests and recreation areas.

Then, in 1976, the Supreme Court held that the doctrine applied to national monuments created by the President. In other words, it affirmed the President's authority unilaterally to change the legal water rights within a State simply by designating a monument under the Antiquities Act

Now, under the Antiquities Act, the President has the authority and the discretion to create a monument, as long as there is Federal land. So it makes a State like mine, 67 percent of which is owned by the Federal Government, a sitting duck for abuse.

Now, we have talked about Antiquities Act abuses in other contexts. Here, I am focusing in on a very narrow ramification of Antiquities Act abuse, which relates to water rights. It is only that narrow ramification that I am trying to address with this amendment.

Monument designations can be and often are made without the approval of the State and its inhabitants. And, unfortunately, in recent years, these designations have grown rather significantly in size and in scope.

The result for public land States, like Utah, is involved in access and use to the water supply being significantly curtailed. In some cases, privately held water rights are even terminated altogether, and it opens up the door to even greater abuse under the Antiquities Act 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--legally established, longstanding, long- established water rights--could be eliminated, completely eliminated in Colorado, in Utah, in Arizona, in Nevada, in California through the stroke of the executive pen.

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 is why I am introducing an amendment that would prevent the President from unilaterally creating reserved water rights when designating a national monument.

Now, it is important for me to mention--now that I have explained what this amendment would do, I want to talk about what it would not do.

My amendment would not 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 themselves reside.

It would simply and fairly give States a say in the process, regardless of how you feel about national monuments or about the Antiquities Act. I have made clear in the past I have got grave concerns with the Antiquities Act, and I believe it needs to be repealed. This bill does not do that. This bill simply cabins off water rights and says that water rights need to be handled through the legal process to which they would otherwise be handled, to which they would otherwise be subjected.

This is a simple, commonsense solution to ensure that Utah and other States where there is a lot of Federal public land are guaranteed the protection of their existing water rights and a reliable water supply. It would be easy to dismiss or denigrate or downplay the importance of this if you live in a State where there is not much Federal land. But if you live in a State like mine, where most of the land is owned by the Federal Government, you can understand how quickly this could become destructive, if abused, and that is exactly why we need this amendment.

I urge all my colleagues to support it.

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