II

106TH CONGRESS

1ST SESSION S. 685

To preserve the authority of States over water within their boundaries, to

delegate to States the authority of Congress to regulate water, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 23, 1999

Mr. CRAPO (for himself and Mr. CRAIG) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

To preserve the authority of States over water within their

boundaries, to delegate to States the authority of Congress to regulate water, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘State Water Sov5 ereignty Protection Act’’.

6 SEC. 2. DEFINITION OF STATE.

7 In this Act, the term ‘‘State’’ includes the District

8 of Columbia, the Commonwealth of Puerto Rico, the Com-
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1 monwealth of the Northern Mariana Islands, American

2 Samoa, Guam, and the Virgin Islands.

3 SEC. 3. USE OF STATE LAW BY UNITED STATES FOR AC4 QUIRING AND EXERCISING WATER RIGHTS.

5 (a) IN GENERAL.—When the United States seeks to

6 appropriate water or acquire a water right in a State or

7 to exercise any right with respect to a water right in a

8 State, the United States shall be subject to all procedural

9 and substantive laws of the State relating to the alloca10 tion, adjudication, appropriation, acquisition, use, and ex11 ercise of water rights to the same extent as a private per12 son is subject to those laws.

13 (b) CONSENT TO JOINDER.—

14 (1) IN GENERAL.—Consent is given to join the

15 United States in any administrative or judicial pro16 ceeding of a State relating to the allocation, adju17 dication, appropriation, acquisition, use, or exercise

18 of a water right to the same extent as any private

19 person may be joined in such a proceeding.

20 (2) WAIVER.—The United States, when a party

21 to a proceeding described in paragraph (1)—

22 (A) shall be deemed to have waived any

23 right to plead that the State laws are inappli24 cable or that the United States is not amenable
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1 to the State laws by reason of its sovereignty;

2 and

3 (B) shall be subject to the judgments, or4 ders, and decrees issued in any such pro5 ceeding, and may obtain review of those judg6 ments, orders, and decrees in the same manner

7 and to the same extent as a private person

8 under like circumstances.

9 (c) NO IMPLIED FEDERAL RESERVED WATER

10 RIGHTS.—The withdrawal, designation, or other reserva11 tion of land by the United States for any purpose (whether

12 by statute or administrative action) does not give rise by

13 implication to a Federal reserved right to water relating

14 to that purpose.

15 SEC. 4. MANAGEMENT AND CONTROL OF WATER IN A

16 STATE.

17 (a) IN GENERAL.—Notwithstanding any other provi18 sion of law—

19 (1) management and control over water in a

20 State shall be subject to and in accordance with the

21 laws of the State in which the water is located;

22 (2) Congress delegates to each State the au23 thority to regulate water, including the authority to

24 regulate water in interstate commerce (including
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1 regulation of usufructuary rights, trade, and trans2 portation); and

3 (3) the United States, and any agency or officer

4 on behalf of the United States, may exercise man5 agement and control over water in a State only in

6 compliance with the laws of the State in which the

7 water is located.

8 (b) SUIT BY PRIVATE PARTIES.—The United States

9 waives sovereign immunity with respect to any claim for

10 declaratory, equitable, or injunctive relief brought by a

11 nongovernmental entity against the United States under

12 the laws of a State relating to the management or control

13 of water in the State.

14 SEC. 5. COSTS AND FEES RELATING TO ADMINISTRATIVE

15 OR JUDICIAL PROCEEDINGS.

16 In any administrative or judicial proceeding in which

17 the United States participates under this Act or section

18 208 of the Act of July 10, 1952 (commonly known as the

19 ‘‘McCarran Amendment’’) (43 U.S.C. 666), the United

20 States shall be subject to the imposition of costs and fees

21 to the same extent as costs and fees may be imposed on

22 a private person.

23 SEC. 6. SAVINGS PROVISIONS AND DISCLAIMERS.

24 (a) IN GENERAL.—Nothing in this Act—
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1 (1) permits an appropriation of water under

2 State law that interferes with any treaty or other

3 international agreement to which the United States

4 is a party; or

5 (2) affects, impairs, diminishes, subordinates,

6 or enlarges the rights of the United States or any

7 State to water under any treaty or other inter8 national agreement to which the United States is a

9 party or under any interstate compact.

10 (b) NO EFFECT ON OTHER ACTS.—Nothing in this

11 Act affects or modifies—

12 (1) section 208 of the Act of July 10, 1952 (43

13 U.S.C. 666);

14 (2) the Submerged Lands Act (43 U.S.C. 1301

15 et seq.); or

16 (3) the Outer Continental Shelf Lands Act (43

17 U.S.C. 1331 et seq.).

Æ