Position #449 – Regarding Preemption of State Law in Federal Legislation (July 22, 2020)
WHEREAS, the future growth, prosperity and economic and environmental health of the West and the Nation depend upon the availability of adequate quantities of water for myriad uses; and
WHEREAS, Western states have primary authority and responsibility for the appropriation, allocation, development, conservation and protection of water resources, both groundwater and surface water, including protection of water quality, instream flows and aquatic species; and
WHEREAS, the Congress has historically deferred to state water law as embodied in Section 8 of the Reclamation Act, Section 10 of the Federal Power Act, Section 101(g) and 101(b) of the Clean Water Act, and myriad other statutes; and
WHEREAS, any weakening of the deference to state water would be inconsistent with over a century of cooperative federalism and a threat to water rights and water rights administration in all western states; and
WHEREAS, federal deference to state water law is based on sound principles for the protection of private property rights and the collective public interest in managing our water resources and the environment; and
WHEREAS, states are primarily responsible and accountable for their own water development, management and protection challenges, and are in the best position to identify, evaluate and prioritize their needs and plan and implement strategies to meet those needs; and
WHEREAS, any legislation related to any federal water policy, water plan or planning process must recognize, defer to and support State, tribal and local government water laws, agreements, and management processes; and
WHEREAS, the federal government should explicitly recognize and provide support for ongoing watershed and state water management efforts both in and between the states, tribes and local entities, closely consult with the states and provide appropriate technical and financial assistance; and
WHEREAS, the federal government should avoid strategies that increase unilateral mandates on state, tribal and local governments; and
WHEREAS, from time to time federal legislation and regulatory actions have been proposed that are not consistent with sound principles of cooperative federalism and primary state water related laws, authorities and responsibilities; and
WHEREAS, legislation preempting or discharging requirements for compliance with state law is not consistent with a balanced federalism approach.
NOW, THEREFORE, BE IT RESOLVED, that nothing in any act of Congress should be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to: (a) water or watershed management; (b) the control, appropriation, use, or distribution of water used in irrigation, municipal, environmental, or any other purposes, or any vested right acquired therein; or (c) intending to affect or in any way to interfere with any interstate compact, decree or negotiated water rights agreement.
BE IT FURTHER RESOLVED, that the Administration and Congress should strive to ensure federal laws, policies, rules and regulations are consistent with the principles set forth herein.
Revised and Readopted
See former Positions #406 – June 29, 2017; #365 – July 18, 2014; and #331 – July 29, 2011