Tipton Water Rights Protection Act Clears House Committee (NSAA vs. USFS)

Trail map for Powderhorn Ski Area via liftopia
Trail map for Powderhorn Ski Area via liftopia

Here’s the release from US Representative Scott Tipton’s office:

Today, the House Natural Resources Committee passed Rep. Scott Tipton’s (R-CO) Water Rights Protection Act (H.R.3189) with bipartisan support, clearing the effort to protect privately-held water rights from federal takings for a vote in the House of Representatives.

Over the years, the Forest Service has engaged in numerous attempts to require the transfer of privately-held water rights as a permit condition, amounting to an outright federal taking. During an October 29 House Natural Resources Subcommittee on Public Lands and Environmental Regulation hearing water users testified about their experiences with federal land management agencies interfering with their privately held water rights. Read more here.

“While I am encouraged that the Forest Service acknowledged their flawed and unnecessary policy, and has indicated that their future water rights clause may no longer require the transfer of privately-owned water rights, this clause has yet to be seen, they have aggressively pursued such takings for over two years, and their comments indicate that we will likely only see a temporary fix for one group of water users in one region,” said Tipton. “Water users need certainty that all federal land management agencies, not just the Forest Service, are prohibited from future attempts to take privately-held water rights. Additionally, H.R. 3189 would prohibit future Forest Service officials from shifting course and engaging in similar water grabs in the future.”

Read Tipton’s full statement here.

The National Ski Areas Association (NSAA) reiterated support for H.R. 3189 in light of the Forest Service announcement.

“Despite this announced change in policy, we still need Congress to pass the Water Rights Protection Act. The policy change announced by the agency this week is the fourth change in Forest Service water policy for ski areas in ten years. These changes are disruptive, create uncertainty and adversely impact our operations, planning and future growth. The ski industry can’t afford to be subjected to a different water policy with each Administration,” wrote Michael Berry, President of NSAA. “Only federal legislation can give us the long term protection we need of an outright statutory prohibition on the taking of our water rights by the federal government. H.R. 3189 is complementary to the agency’s efforts to develop a new policy.”

Read the full NSAA letter here.

During today’s markup, Tipton attached an amendment to H.R. 3189 to make technical corrections and clarify the scope of the bill.

The full text of Tipton’s amendment is available here.

Tipton’s full statement on the amendment is available here.

Tipton introduced H.R. 3189, the Water Right Protection Act, in September with bipartisan support from Rep. Jared Polis (D-CO). It has received strong support from a broad coalition of local, state and national stakeholders, and a companion bill is being carried in the Senate by John Barrasso (WY).

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.
  • Endorsements to date: National Ski Areas Association, American Farm Bureau, National Cattlemen’s Beef Association, Family Farm Alliance, Public Lands Council, National Association of Conservation Districts, Pacific Northwest Ski Area Association, California Ski Industry Association, Colorado Water Congress, Colorado Ski Country USA, Associated Governments of Northwest Colorado, Colorado River Water Conservation District, Southwestern Water Conservation District, Rio Grande Water Conservation District, Upper Arkansas Water Conservancy District, Rio Grande Watershed Association of Conservation Districts, Montrose County Commissioners, Mesa County Commissioners, Montezuma County Commissioners, Conejos County Commissioners, Gunnison County Commissioners, Rio Grande County Commissioners, Montezuma Valley Irrigation Company, Garfield County Commissioners, Aspen Ski Company, Durango Mountain Resort, Crested Butte Mountain Resort, San Luis Valley Water Conservancy District, Center Conservation District and Club 20.

    More coverage from John Stroud writing for the Glenwood Springs Post Independent. Here’s an excerpt:

    On Wednesday, Forest Service Chief Tom Tidwell issued a statement saying his agency had agreed to a policy change, brokered with the help of U.S. Sen. Mark Udall of Colorado, that would protect water resources without asking ski areas to turn over water rights to the federal government.

    Tipton, R-Cortez, responded Thursday after the House committee vote that, while “encouraged” by Tidwell’s statement, it only affects one group of water users.

    The water rights bill, which has bipartisan support, is meant to protect the rights of other users as well, including agricultural operations and energy development, according to Tipton and several supporters of the bill from western Colorado…

    “They [USFS] have aggressively pursued such takings for over two years, and their comments indicate that we will likely only see a temporary fix for one group of water users in one region,” he said.

    Tipton said other federal agencies have also used the practice of requiring the transfer of private water rights in exchange for permitting, amounting to a “taking,” he said.

    His bill would prohibit future Forest Service officials and other agencies from changing policy as leadership changes, Tipton said.

    From The Durango Herald (Joe Hanel):

    The [USFS] told Congress that it no longer plans to force ski areas to turn over their water rights as a condition for maintaining their operating permits.

    Even so, the House Committee on Natural Resources passed a bill Thursday by Rep. Scott Tipton, R-Cortez, that would forbid the Forest Service from demanding that permit holders – from ski areas to ranchers – relinquish their water rights…

    [US Senator Mark Udall] said, “The Forest Service’s statement on these water rights is a victory for our state and our resort communities that depend on outdoor recreation, and it’s a victory I am proud to have fought for.”

    Udall and his staff had several meetings with senior Forest Service officials during the last several months to explain the policy’s potential harm to Colorado, said Udall spokesman Mike Saccone.

    The Forest Service has tried sporadically for years to get legal control over snowmaking water rights, because of worries the rights could be sold to real estate developers or others not interested in using the water for skiing.

    A federal judge in Denver slapped down the Forest Service’s last attempt in 2012 to make a national ski water policy, but the agency’s attempts to give it another shot upset Republicans and Democrats in the state Legislature and Congress.

    From the Sky-Hi Daily News (Leia Larsen):

    “Winter Park owns water rights, like any other ski area,” said Winter Park Resort planner Dough Laraby. “Water rights cost money, and you need them to operate a ski area.”

    The National Ski Areas Association, or NSAA, had sued the U.S. Forest Service over the permit changes, winning a victory in 2012 when a U.S. District judge found they violated federal procedural law. The NSAA applauded the federal agency’s recent decision, but said ski areas still need more legislative protections against future policy changes.

    “This is the fourth change in 10 years, we can’t afford to be subject to changes with every administration that comes along,” said Geraldine Link, public policy director with the NSAA. “We’re looking to Congress to put protections in place. At a minimum, you can’t take water rights without compensation.”

    The U.S. Senate and House of Representatives introduced a bill in late October, called the “Water RIghts Protection Act,” that would prohibit the U.S. Forest Service from adding water rights conditions to permits, including those issued to ski areas that operate on federal forestland, like Winter Park Resort. U.S. Sen. Mark Udall (D-Eldorado Springs), who serves on the Natural Resources Committee but didn’t sponsor the bill, issued a press release welcoming the U.S. Forest Service’s decision to cease water rights takeovers. Udall said it will ensure Colorado’s ski industry can continue to thrive. He helped broker the negotiation after working with the U.S. Department of Agriculture, which houses the Forest Service…

    But conservation groups worry ski areas’ retention of water rights will have negative consequences for streams and rivers. They said the proposed legislation puts private interests above the federal government’s responsibility to protect the environment.

    More water law coverage here. More NSAA vs. USFS coverage here.

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