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NATIONAL BLUEWAYS SYSTEM: SHOULD THE FEDS BUTT OUT?

July 25, 2013

By Laura Carno

Watch Dog Wire

There is an old adage: “Whiskey is for drinking; Water is for fighting.” Private property rights are taking center stage when it comes to a relatively new National Blueways System designation coming out of the Department of Interior (DOI).

Not many have heard of the National Blueways System designation, but it has lawmakers from affected districts hot under the collar this week.

The designation sounds nice enough. Former Secretary of the Interior Ken Salazar signed aSecretarial Order last May and issued this press release. It establishes “a program to recognize river systems conserved through diverse stakeholder partnerships that use a comprehensive watershed approach to resource stewardship”. Sounds benign. But like an Executive Order signed by the President, a Secretarial Order also bypasses Congress, and the scrutiny it would get if it had been legislation.

Is it a big deal for the federal government to provide, as DOI’s Rebecca Wadder calls it, “a pat on the back” to states that are managing their watersheds “correctly”? Some say that it provides the federal government an additional foot in the door to the states. Some are suspicious because they were not consulted. At minimum, if it’s really just “a pat on the back”, doesn’t the DOI have better things to do with our tax dollars?

Wyoming Congresswoman Cynthia Lummis is concerned about the imposition of this designation in her state without any local discussion or input. She details her concerns here.

Then at a hearing last week, Missouri Congressman Jason Smith, and Colorado Congressman Scott Tipton, expressed their displeasure with the program to the new Secretary of the Interior, Sally Jewell. You can see those animated discussions here andhere. At this hearing, Jewell discusses pausing the Blueways program so she can look in to it. Both Congressmen, like Congresswoman Lummis are concerned about the lack of local input ahead of such designations. Congressman Tipton is additionally concerned about how this will impact private property rights. In Colorado, water rights are property rights. Ranchers and farmers own property along our waterways. Will they be restricted in their crop or livestock management by yet-to-come regulations that fall under the “resource stewardship” goal?

And Secretary Jewell has not released the stakeholder list to Congressman Tipton. Tipton asked in a hearing whether a New Jersey resident who once rafted on the Colorado River could be considered a stakeholder. Russell Boardman, supervisor of the Shoshone Conservation district in Frannie, WY, responded, “As I read it, yes.”

Additionally, Secretary Jewell, Agriculture Secretary Tom Vilsack and US Senator Mark Udall were in Ft. Collins, CO last week to announce “a federal, local and private partnership to reduce the risks of wildfire to Colorado’s water supply”.  This initiative is a part of President Obama’s Climate Action Plan.  Although the Blueways System was not discussed, the themes are the same as Blueways.  At their press conference, Secretary Vilsack said, “When a forest fire takes place, it can compromise the water supply that is in those reservoirs.”  In fact, it is the federal government’s own forest management policies that restrict healthy thinning, thus reducing wildfire risk.  If the feds simply left forest management to the states, would we be in a safer position?

Is this really about the federal government trying to subvert private property owners’ water rights and to undercut state water law? In December of 2012 in Colorado, a U.S. District Court Judge overturned a law that would require ski areas to turn over their water rights to the Forest Service. The rather disturbing details can be found here. I will say again: water rights are private property rights according to Colorado law. Should the federal government be able to tell the state that long held private property rights can be taken away by a federal rulemaking?  Although overturned in December, it may come back.  How would this affect ranchers and farmers who count on their water rights to manage their crops or livestock?

More importantly, if federal agencies, whether the Department of Interior or the US Forest Service require private property owners to turn over their water rights (which amounts to ataking), what precedent does that set for other takings of private property?

Water rights are a matter of state law.  These are best handled at the state level, or if interstate agreements are necessary, the states can handle those agreements themselves.  Federal agencies are not necessary.

See the orignial post here.