Position #2026-04 – Western Water, State Authority, and Cooperative Federalism
Policy Summary
Western states are characterized by their arid conditions and limited water resources. Western States have longstanding and comprehensive legal systems for allocating these limited supplies, including by applying the doctrine of prior appropriation to provide the foundational certainty for continued growth and prosperity. Water rights are used to benefit the public good while also being recognized, protected, and regulated as a type of property right. The future economic and environmental health of the West depends on the availability of adequate water quantities of suitable quality for myriad uses. States, tribes, local entities, and federal agencies implement various components of water laws, agreements, and management processes. Additionally, interstate compacts, court decrees, international treaties, and negotiated water rights settlements impose obligations that often require nuanced water management to ensure compliance.
These stark western water realities necessitate a specific model of deference and collaboration between states and the federal government. With very limited exceptions, the federal government has recognized and followed western water laws for more than a century, through Congressional statutes, court decisions, and executive orders. Because conditions vary significantly across the West, state-led management allows for more rational and orderly allocation and protection of water resources than unilateral, one-size-fits-all mandates from the federal government. States are in the best position to regulate water supplies according to their unique local economic and environmental conditions.
WSWC Urges Congress and the Administration to:
1. Respect state authority over water allocation, use, distribution, and administration within state borders. Western states are responsible for managing water allocation and use within their borders, including surface water, groundwater, and stored water, regardless of federal infrastructure.
2. Preserve federal deference to state water law and reject federal interference. Nothing in any act of Congress should be construed to displace state water law. Federal legislation, regulations, guidance, and policies should not preempt, erode, or interfere with state laws governing the management, appropriation, protection, use, or distribution of water.
3. Require meaningful, timely, and substantive consultation with western states. Federal agencies should engage governors, state water agencies, and their appointed representatives early in the development of legislation, regulations, guidance, or other federal actions that have federalism implications for western water.
4. Require federal water uses to obtain water rights. All federal water uses, including temporary uses, require a state-based water right, a federal reserved water right, other state authorization for use, or agreement. Federal agencies should not use western water outside those established legal frameworks. Federal waivers on obtaining state permits for federal projects should not apply to the use of western water resources. Continuous communication between states and federal agencies, including through efforts such as WestFAST, should be strengthened to support practical solutions.
Core Message
Federal deference to state water laws is based on sound principles for managing limited resources. Any federal strategy affecting western water allocation or management must respect the historic recognition of primary state authority, reflect a true state-federal partnership, and provide adequate funding for federal deference and compliance consistent with current federal statutory authorities and regulatory mandates.
What WSWC Is Asking For
1. Congress is encouraged to pass legislation requiring federal entities to comply with both substantive and procedural state laws, including water use in Western States.
2. Congress is encouraged to appropriate sufficient funding to allow federal agencies to effectively identify, quantify, and substantiate their water rights claims.
3. Policy direction should be given to ensure all federal claims for water rights filed in state courts have a sound basis in fact and law.
4. Federal agencies should be required to pay their fair share of fees and costs associated with adjudicating their claims in state court.
5. Federal agencies should work collaboratively with states to create flexible regulations that do not interfere with state water management.
6. Federal agencies should establish and implement appropriate procedures and processes for substantively consulting with states, governors, and their appointed representatives (such as WSWC) on the implications of their proposals.
Closing Statement
The federal government has at times introduced federal legislation or proposed regulatory actions that are inconsistent with sound principles of cooperative federalism. Federal agencies have, at times, dismissed these principles by diverting water resources without permits, issuing unilateral mandates, and engaging in rulemaking processes and procedures without collaborating with relevant state water agencies. WSWC supports efforts to improve communication and collaboration at all levels of government.