PLF to forest service: stop coveting private water rights

Last Friday Pacific Legal Foundation filed this comment letter with the United States Forest Service, in opposition to a proposed policy that would prevent the owners of private water rights from transferring them under state law from existing uses to other more economical uses. The American West has an interesting history of privately held rights to use water on federal lands. The United States adopted an active policy for settling its new territories through the Homestead Act, which led to private ownership of most land between the Mississippi and the Rocky Mountains, as well as on the West Coast.  But in the Great Basin and other Western high desert regions (generally the area between the Cascade and Sierra Mountains on the West and the Rockies on the East), there were relatively few takers for homesteads.  This region is generally arid; only those limited areas with adequate surface water supplies were ultimately homesteaded. That doesn’t mean that the rest of the land lay unproductive.  By federal policy, most of the remaining public land in the West remained open for cattle grazing, timber production, and mining.  Section 9 of the Mining Act of 1866 explicitly deferred to state law on the question of whether and how these miners, ranchers, and others established water rights on the public lands they were using.  By the end of the Nineteenth Century, the result was a patchwork, in which the federal government owned most of the land, while private parties owned extensive water rights for stockwatering and mining and milling, as well as for farming in those areas with enough water for irrigation...more