Position #489 – Supporting Legislation Requiring the Federal Government to Pay State Filing Fees in State General Stream Adjudications
WHEREAS, water is the lifeblood of each of the arid Western States, the allocation of which determines the future of each Western State’s economic, environmental, social and cultural fortunes; and
WHEREAS, each Western State has developed comprehensive systems for the appropriation, use and distribution of water tailored to its unique physiographic, hydrologic and climatic conditions found within that state; and
WHEREAS, the United States does not have a water management system that is equivalent to those of the Western States for the appropriation, use or distribution of water; and
WHEREAS, Congress has consistently recognized the primacy of state water law because of the need for comprehensive water management systems tailored to the unique needs and characteristics of the individual states; and
WHEREAS, the adjudication of water rights claims is absolutely essential for the orderly allocation of water in all the Western States where state law is based on the prior appropriation doctrine; and
WHEREAS, Congress enacted the McCarran Amendment, 43 U.S.C. § 666, to allow the joinder of the United States in state general stream adjudications, and Congress intended the United States to be subject to the same procedures as all other water right claimants joined in state general stream adjudications; and
WHEREAS, many of the Western States are conducting general stream adjudications for the purpose of quantifying all water right claims in accordance with the McCarran Amendment; and
WHEREAS, the United States is often the largest claimant of water rights in these general stream adjudications, and the adjudication of federal water right claims requires a large commitment of time, effort and resources by the state courts and by state agencies; and
WHEREAS, many of the Western States’ general stream adjudication procedures require claimants to pay a fee to offset the states’ expenses arising from state general stream adjudications; and
WHEREAS, citing the U.S. Supreme Court’s decision in United States v. Idaho, 508 U.S. 1 (1993), the United States claims immunity from the payment of adjudication filing fees required of all other claimants to offset the judicial and administrative expenses Western States incur in conducting general stream adjudications; and
WHEREAS, for the United States to be immune from sharing in the expenses of these proceedings constitutes an unfunded federal mandate to the states; and
WHEREAS, many Western States are facing budget shortfalls and limited resources, and the federal non-payment of state filing-fees is a significant impediment to their ability to begin or carry out general stream adjudications in a timely manner; and
WHEREAS, drawn out adjudications are having a detrimental impact on the willingness of stakeholders in watersheds to collaborate on joint management and planning for water supply and water quality; and
WHEREAS, the United States contends that it cannot be joined in state administrative or judicial proceedings with respect to water rights it has acquired under state law other than pursuant to the McCarran Amendment, 43 U.S.C. § 666; and
WHEREAS, it is inefficient and wasteful to require that a separate lawsuit be commenced for the sole purpose of regulating water rights acquired by the United States under state law; and
WHEREAS, the United States often claims it is also immune from paying fees to states that are required of all other water users for the appropriation, use or distribution of water; and
WHEREAS, equity and fairness dictate that federal agencies who voluntarily seek to appropriate water pursuant to state law, or who acquire water rights based on state law, should be required to comply with state law, including the payment of fees, to the same extent as all other persons.
NOW, THEREFORE, BE IT RESOLVED that the Western States Water Council supports passage of legislation that at a minimum provides for the following:
- Requires the federal government to participate in all state administrative and judicial proceedings with respect to water rights it acquires to the same extent as all other persons.
- Requires the federal government (not Native American tribes) to pay filing fees as well as comply with all other state substantive and procedural water right adjudication laws to the same extent as all other persons.
- Requires the federal government to pay applicable fees as well as comply with all other state substantive and procedural laws for the appropriation, use and distribution of water rights to the same extent as all other persons.
- Provides for state administration of all water rights.
BE IT FURTHER RESOLVED, that the Western States Water Council also urges Congress to appropriate moneys for retroactive payment of unpaid fees to states that have incurred expenses as a result of processing federal claims or federal objections to private claims in state general stream adjudications.
BE IT FURTHER RESOLVED, that absent legislation the Council encourages federal agencies to work with states and enter into memoranda of agreement or other administrative mechanisms to minimize and otherwise mitigate the expense of federal claims incurred by states in general adjudications to the maximum extent allowed by law.
Revised and Readopted
(Originally adopted Nov. 17, 1995, readopted Nov. 20, 1998 and revised and readopted
Nov. 16, 2001, Oct. 29, 2004, Nov. 16, 2007, Oct. 29, 2010, Oct. 3, 2013, and Oct. 18, 2019)