Wednesday, October 3, 2012

Fort on Tribal Water Rights

Fort2Denise Fort (New Mexico) has posted Policy Questions Concerning Tribal Water Marketing on SSRN.  Here's the abstract:

Pressures to market water rights are growing, especially because municipal and industrial users can pay higher prices for water rights than can traditional agricultural uses. Water rights held by tribes are different in some key respects from water rights held by nontribal entities, in that a tribe’s ability to lease water rights is dependent on Congressional approval. The sale or lease of water rights by nontribal entities generally requires approval of a state agency. Sales and leases are becoming accepted tools of water management in many western states. Tribal water rights tend to be established through settlements. Settlements provide benefits to multiple parties, often involve federal funding for new water projects, and must be approved by the Congress. Thus, it is possible for tribes to obtain Congressional authorization for leasing as part of water settlements. But, tribes must affirmatively bargain for the ability to market water as part of proposed settlements, thereby reducing their position in settlements. Should there be a presumptive right in tribes to market water, and, if so, should there be an opportunity for involvement by other stakeholders in the review of specific leasing proposals? Second, state’s strenuously guard their water (as defined by compacts, etc.) against interests in other states. Should tribes be constrained by these interests, or should interstate marketing be permitted when a tribe can receive greater compensation for a transaction with an entity in a different state?

Steve Clowney

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