Washington, D.C. – U.S. Senator Chuck Hagel (R-NE) along with fourteen other Senators today sent a letter to the House members of the Farm Bill Conference Committee. In the letter Hagel reiterated his concerns with the water rights provision that was included in the Senate farm Bill.

“I am hopeful that the conferees will produce a responsible farm bill -- one that I can vote for and one that will benefit agriculture producers,” Hagel said. “The conferees must remove the controversial Water Conservation Program. This program is shortsighted and would set a dangerous precedent by allowing the Federal Government to interfere in state and individual water rights.”

A copy of the letter is below.

Honorable Larry Combest, Chairman Honorable Charles Stenholm, Ranking Member House Committee on Agriculture 1301 Longworth HOB Washington DC 20515

Dear Gentlemen:

The Senate-passed version of the Farm Bill includes section 215 entitled the “Water Conservation Program” and section 1240R the “Water Benefits Program.” Both sections contain language allowing for the purchase or lease of water. We remain adamantly opposed to the inclusion of these sections in the Farm Bill and respectfully request that you support their removal in Conference.

Even at first glance, it is clear that statutory changes of this magnitude affecting ownership of water rights should have been introduced as separate legislation. The erratic nature of the many drafts created during floor debate strongly supports our claim that legislation should have been introduced, referred to and reviewed in Committee, and then brought to the Senate floor with the opportunity for a full floor debate.

We are not only concerned with the lack of proper procedure, but with the significant misrepresentations put forth by the proponents of these provisions during the debate on the Senate floor. First of all, during floor debate, proponents claimed that the “Water Conservation Program” is based on the Oregon Conservation Reserve Enhancement Program (CREP). This is, in fact, incorrect. The only element the Water Conservation Program borrows from the Oregon CREP is the irrigated land rate payment given to farmers for leaving water in-stream. However, the Water Conservation Program uses entirely different means to keep the water in-stream – requiring the sale or lease of the water right itself. Under the Oregon CREP the water, not the water right, is leased voluntarily; therefore, the farmer has the continuous option to terminate the agreement. This is not an option if the water right itself is vested, even temporarily, with the government.

Another misconception is that the Water Conservation Program is a “state” program. This, however, is merely an appearance. Not only is the Secretary of Agriculture given new authority over the Endangered Species Act, which is unprecedented, but the Secretary would approve actions, set guidelines and would be able to remove eligibility. The state, ultimately, is only tasked with fulfilling predetermined federal mandates.

A third concern we have with the Water Conservation Program and the Water Benefits Program is whether they can truly be applied in accordance with state law. The language currently refers to protecting in-stream flows. Some states, like New Mexico, have never declared in-stream flow as a beneficial use. For any state to participate in the new Water Conservation Program it must preemptively declare in-stream flow as a beneficial use, something that many in New Mexico and other states are vehemently opposed to doing.

In addition, the language associated with the Water Conservation Program is inconsistent with Federal Reclamation law and some language may even be in direct conflict with the Reclamation Act of 1902. This brings up complex issues of the ownership of water rights in a Reclamation project. Is the entity that holds those water rights the Secretary of the Interior, the irrigation district under contract to the Secretary or the individual landowner who receives the water under contract with the District? Does this change if the land is under a management contract or is leased in accordance with Reclamation law? Must all parties agree? If one landowner enters into an agreement, what happens to the repayment obligations of the District? Can the District be forced to transfer water outside District boundaries by the landowner? Must the Secretary of the Interior agree? These are very critical issues that many of our farmers face daily and yet, they remain entirely unresolved under the current language.

Last, we are extremely concerned about the impacts of changes in land use on a variety of fronts. As land use is altered to meet the requirements of this program, agriculture infrastructure itself is at risk. There is nothing in the current language that would account for the tax base in rural and urban communities and counties if the program were to take hold and reduce or eliminate current land values.

We believe that the Water Conservation Program and the Water Benefits program are misguided attempts to establish government ownership of water as the automatic outcome of environmental disputes – disputes in which our farmers find themselves increasingly the target, and not the partner of the federal government in achieving shared environmental goals. This is a shortsighted and dangerous position and we are hopeful that our concerns will persuade you to strike this program from the Conference version of the Farm Bill.