States Ask High Court to Define ‘Fractured’ Groundwater Rights

CARSON CITY, Nev. (CN) – Ten states on Tuesday asked the U.S. Supreme Court to clarify a recent Ninth Circuit ruling they say essentially wiped out state groundwater rights in favor of federal oversight.

Nevada Attorney General Adam Laxalt led the states’ coalition in filing a 25-page friend-of-the-court brief with the nation’s high court, challenging what Laxalt calls a "federal overreach on groundwater rights."

"This brief encourages the Supreme Court to clarify whether the federal reserved water right doctrine extends to groundwater and, if so, under what circumstances, so as to provide guidance to all states, including Nevada, on how to manage their groundwater resources," Laxalt said in a statement.

"As the driest state in the nation, Nevada has a paramount interest in the rules governing the management and allocation of the scarce water resources within its borders," the brief states.

"Nevada has the highest percentage in the nation of land under federal ownership or control, with a large portion of that land subject to possible claims of federal reserved water rights," the brief says.

The brief stems from a recent Ninth Circuit ruling which held the Agua Caliente Band of Cahuilla Indians has a priority right to groundwater previously controlled by the Coachella Valley Water District in Southern California.

The tribe previously paid the water district for the water it received.

“Does the implied federal reserved water rights doctrine recognized in Winters v. United States, 207 U.S. 564 (1908), always pre-empt state-law regulation of groundwater?" the amicus brief asks.

Winters clarified the water rights of federally recognized aboriginal tribes in the United States.

Nevada and the other states say the Ninth Circuit has never extended the water rights doctrine to groundwater from the U.S. Supreme Court's 1908 ruling in Winters.

"By imposing the federal reserved water rights over groundwater in nearly a fifth of our nation's states, Agua Caliente is literally a watershed opinion washing away the authority and control that states have traditional exercised over groundwater resources," the amici states say.

They add: "In the absence of this court's guidance, the application of federal reserved water rights to groundwater has flowed in at least three different and irreconcilable directions."

One state says the federal government has no water rights, while others say federal water rights exist only where states inadequately manage water rights, the brief says.

"And now the Ninth Circuit has rejected both approaches because 'state water rights are preempted by federal reserved rights,'" the states say, adding: "The split of authority could not be wider or more fractured.”

Joining Nevada are Arizona, Arkansas, Idaho, Nebraska North Dakota, South Dakota, Texas, Wisconsin and Wyoming.

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