‘If you want to make sure the water stays there for that particular use, you can buy it’ — Greg Brophy to the USFS

Map of the Powderhorn Ski Area
Map of the Powderhorn Ski Area

The kerfuffle over the the US Forest Service’s permit clause for ski areas is in the news again. US Representative Scott Tipton has introduced legislation that would prohibit the USFS’s actions. Here’s the release from Congressman Tipton’s office:

Today, Reps. Scott Tipton (R-CO) and Mark Amodei (R-NV) introduced with bipartisan support the Water Rights Protection Act (WRPA) to protect privately held water rights from federal takings and uphold longstanding state water law. Reps. Rob Bishop (R-UT), Tom McClintock (R-CA), and Jared Polis (D-CO) are original co-sponsors.

In recent years the federal government has repeatedly attempted to circumvent long-established state water law in order to hijack water rights. These efforts constitute a gross federal overreach and a violation of private property rights. The U.S. Forest Service (USFS) is currently pushing the federal government’s latest attempt to ignore state law and take private water rights, despite objections from elected officials, business owners, private property advocates and a U.S. District Court ruling.

The Water Rights Protection Act would protect communities, businesses, recreation opportunities, farmers and ranchers as well as other individuals that rely on privately held water rights for their livelihood from federal takings. It would do so by prohibiting federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.

Most recently the USFS has attempted to implement a permit condition that requires the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. There is no compensation for the transfer of these privately held rights despite the fact that many stakeholders have invested millions of their own capital in developing the rights. Additionally, federal land management agencies are taking private water users hostage to acquire additional water supplies for the federal government by requiring water users to apply for their rights under state law in the name of the United States rather than for themselves.

This agency permit condition has already had a negative impact on a number of stakeholders including the Powderhorn Ski Area in Grand Junction and the Breckenridge Ski Resort where, despite having been excellent stewards of the environment and their water rights, the USFS has demanded the relinquishment of state granted water rights in order to continue their operations. The same nefarious tactics have been used in attempts to hijack privately held water rights associated with agricultural production in the heart of rural America where farmers and ranchers rely on these rights to secure loans, as well as irrigate crops and livestock. This federal water grab has broad implications that have begun to extend beyond recreation and the farming and ranching community, and are now threatening municipalities and other businesses.

“Long-held state water law protects the many uses vital to Colorado and Western States—from recreation to irrigation, domestic use and environmental protection. Unfortunately, all of this is being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals, and businesses responsible for thousands of jobs. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “Our bill will restore needed certainty by ensuring that privately held water rights will be upheld and protect users from federal takings.”

“Nothing in federal law grants federal land managers jurisdiction over Nevada’s ground water. That responsibility is one of the few states’ rights authorities remaining in Nevada and I will work all day, every day to keep it,” said Amodei. “This bill delivers a much-needed and timely reminder that the federal government must comply with state rules and decisions when it comes to Nevada’s ground water.”

The Water Rights Protection Act:

  • Prohibits agencies from implementing a permit condition that requires the transfer of privately held water rights to the federal government in order to receive or renew a permit for the use of land;
  • Prohibits the Secretary of the Interior and the Secretary of Agriculture from imposing other conditions that require the transfer of water rights without just compensation;
  • Upholds longstanding federal deference to state water law;
  • Has no cost to taxpayers.
  • Background:

    The Forest Service claims that it is implementing the agency permit condition to prevent water rights from being sold off and used improperly, however according Forest Service Chief Tom Tidwell, there have never been any such cases where the rights have been used improperly. In a November 2011 hearing, Tipton asked Tidwell if there were any examples of this occurring in the past, to which Tidwell responded with a resounding, “No.” Furthermore, it was shown that the language of the water clause offers no guarantee that the Forest Service could not divert water to other locations or direct water for another purpose altogether. Watch their exchange here.

    From The Durango Herald (Joe Hanel):

    A senior official from the Forest Service told state legislators Thursday that the agency is pressing ahead with a new rule to tie permitting for ski areas to Forest Service control of water rights used for snowmaking and other ski area functions.

    In Washington on Thursday, U.S. Rep. Scott Tipton, R-Cortez, introduced a bill to block the policy. He has bipartisan backing from Rep. Jared Polis, D-Boulder, whose district includes some of Colorado’s biggest ski areas.

    Back in Denver, Jim Peña, associate deputy chief of the Forest Service, tried to assure members of the Legislature’s water committee that his agency isn’t trying to take anyone’s water. The Forest Service wants to make sure that water rights used for skiing aren’t sold and converted to other uses, he said.

    “Sustaining ski opportunities in the long term is exactly our interest in developing a new ski water right clause,” Peña said.

    But reaction to his testimony ranged from skeptical to hostile.

    Sen. Greg Brophy, R-Wray, called the plan an illegal taking of private property.

    “If you want to make sure the water stays there for that particular use, you can buy it,” said Brophy, who is running for governor. “What you can’t do is take it from its rightful owner.”

    From The Denver Post (Jason Blevins):

    U.S. Rep. Scott Tipton this week introduced federal legislation that would prevent the Forest Service from implementing a permit clause requiring ski areas to transfer water rights to the federal government. Tipton’s brief HR 3189 was referred to the House Natural Resources Committee and the House Agriculture Committee with co-sponsorship from three Republican congressmen — from Nevada, Utah and California — and Colorado Democrat Jared Polis. The proposed legislation would prohibit any agency under the Department of Interior or Department of Agriculture from conditioning permits or leases on the transfer of private water rights.

    That’s exactly what the Forest Service proposed in a 2011 revision of its ski-area-permit regulations. The agency said the water clause ensured that water rights would never be severed from public land. “Water is becoming more valuable. Demand for water has increased over the last 30 years for many reasons,” Jim Peña, associate deputy chief of the Forest Service, told the Colorado legislature’s water committee at a meeting Thursday. “Simply put, more people require more water, and climate conditions impact the availability of that water. We are aiming to manage the risk of water being repurposed within the confines of the permit.”

    The ski industry sued the agency in early 2012, arguing that the new clause was a seizure of privately obtained water rights and usurped state water law. A district judge in December sided with the ski industry, ruling that the agency violated federal procedures when it formulated the new permit clause. The Forest Service last spring launched a series of public meetings to review the water-rights clause in ski-area permits.

    Tipton and several other Western congressmen voiced concern over the agency’s plan for ski-area water rights. Tipton spokesman Josh Green said the Western Slope Republican has been holding hearings, roundtable events and meetings with constituents on the issue for the past two years. “Through all this, one thing is abundantly clear: The Forest Service intends to move forward with the poorly conceived policy,” Green said. “You can never act too soon to try to stand up for Western water rights.”

    More coverage of the NSAA and the controversy here and here (scroll down).

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