Rep. Scott Tipton (CO-3) spearheaded a hearing in the House Natural Resources Subcommittee on Water and Power, [April 25, 2013], to draw attention to recent federal attempts to circumvent long-established state water law in the Western United States in order to hijack privately held water rights. With Colorado jobs and the economic health of rural communities at stake, Tipton has led the charge in Congress to protect privately held water rights in Colorado and other Western states.
Read Tipton’s opening statement.
In her testimony, Geraldine Link of the National Ski Areas Association, laid out what is at stake for Colorado’s economy should the federal government succeed in taking away privately held water rights that ski areas, communities and other businesses rely on for their livelihoods.
“Collectively, ski areas have invested hundreds of millions of dollars on water rights to support and enhance their operations…Water is crucial to future growth of ski areas and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers in rural economies, employing 160,000 people, and help drive job creation in rural and mountain economies,” Link said. “US Forest Service (USFS) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets…These types of water clauses provide a disincentive for ski areas to acquire more water rights in the future… If ski areas stop investing in water rights for the future, the outlook for the rural economies dependent on them would be bleak.”
Read Link’s full testimony.
The USFS is moving forward to implement a permit condition to require the transfer of privately held water rights to the federal government, without any compensation, as a permit condition on National Forest System lands. Last year, the National Ski Areas Association filed suit against the Forest Service to block implementation of the permit directive. In December 2012, the United States District Court for the District of Colorado vacated the 2012 USFS directive, and ordered the agency to pay $125,000 to cover the Ski Area Association’s legal fees.
In January 2013, the USFS announced that it intended to initiate a public comment process as it once again ramps up efforts to implement a directive that would require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. The USFS justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snow making and grazing.
Tipton asked Link if there has been a case of these water rights being sold or used improperly by the ski industry.
Link replied that this is a “made up issue,” and that there has been no such case. As such, she said that it’s believed that the USFS intends to use the water for other purposes, including endangered species protection, rather than for continued snowmaking and grazing as the agency has stated.
“The Agency’s most recent explanation for its policy which is, ‘saving the ski areas and the ski communities,’ is really just a cover for a longstanding objective of getting more water for the woods, for these other purposes,” Link said. “If the Agency were truly aiming to keep the water with the ski areas, why under its 2012 policy for example, which was struck down in federal court, was the Forest Service not willing to guarantee that the water would actually stay with the ski areas?”
VIDEO: Watch Tipton question the witnesses.
The implications of the USFS water grab extend past the ski area association and into the heart of rural America where farmers and ranchers rely on privately held and developed water rights to secure loans, as well as irrigate crops and livestock.
“This policy isn’t limited to ski areas. The Forest Service has also been implementing a similar requirement for grazing permits in several western states,” Tipton said. “Many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.”
In addition to seeking the relinquishment of water rights through ski area permits, the USFS has begun implementing back door ways to control private water rights.
In his written testimony, Gary Derck, CEO of Durango Mountain Resort, told the committee that although the resort has been a good steward of the environment and its water rights, the Forest Service has repeatedly denied access to develop those water rights, jeopardizing those privately held rights under state law.
“A few years ago, the policies of the USFS took a distinct and concerning change of course. Local USFS officials began telling us that they were no longer in charge of making decisions relative to water rights and water access … and that direction/decisions on these matters was now coming from ‘higher up in the Forest Service,’” wrote Derck. “Apart from the obvious “taking” issue of our private water rights, we are concerned that it appears that our local USFS representatives have been directed to “stand down” and stop working collaboratively with us to help us with what we need to continue to make snow, operate/improve our business, maintain/grow our employment, and provide the recreational activities and services we currently provide for the Four Corners region and the town of Durango.”
Read Derck’s full testimony.
In response to Derck’s testimony, Tipton told the Committee, “This is nefarious and coercive, and it has to stop.”
To add to the list of federal threats to state water law, the Department of Interior recently issued Secretarial Order 3321 establishing the National Blueways System. This is a “source to mouth, watershed-wide” federal program about which little is known, and which has raised the fears of many local water conservation districts who are already doing an outstanding job of managing precious water supplies.
In February, Tipton joined 22 of his colleagues in urging Secretary Salazar to withdraw the Blueways Order, writing, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion…Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers would be a usurpation of state authority.”
The Administration tuned-out this request and included funding in its FY2014 budget to expand the Blueways Program.
Russell Boardman, Supervisor of the Shoshone Conservation District in Frannie, Wyoming testified on the Blueways Program during the hearing.
“I would ask how a designation that requires no public notice, no comment opportunity and was created without coordination or consultation with affected landowners, local governments or states, could result in increased coordination…our district and all others in Wyoming are already coordinating with private, state and local entities and we are already promoting best practices and we are already sharing information and resources,” Boardman said. “We fail to see how a Blueways designation will enhance this. In fact, we are concerned in Wyoming that this designation will hamper these efforts by creating fear, confusion and controversy. Real conservation occurs at the grassroots level. If there is a commitment to grassroots conservation then local efforts like the ones implemented by our conservation district should be supported, rather than trumped by a Secretarial edict.”
Read Boardman’s full testimony.
“The bottom line is this: we continue to see a trend of federal intrusion into state water law which protects all of the uses we hold dear, from recreation to irrigation, domestic use and environmental protection. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “This isn’t a political battle, it’s a regional one. Water is the lifeblood of the West.”
The hearing, entitled “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service…
In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses, the Herald previously reported.
Tipton, R-Cortez, grilled Agriculture Secretary Tom Vilsack in a March hearing about the topic, saying the struck-down directive was an attempt to circumvent state law. “The focus here is making sure that we use our forests … in the most appropriate way,” Vilsack said then. “We need to balance that with the interests of those who need the water for economic purposes,” he added, citing the ski industry.
State legislators rebelled against the practice this year and passed a resolution condemning the Forest Service for its policy.
But the Forest Service managed to scuttle a much more substantive bill, which would have changed Colorado water law to prohibit the federal government from demanding water rights in return for issuing land-use permits.
Undersecretary of Agriculture Harris Sherman, who oversees the Forest Service, personally called several state lawmakers and asked them to kill the bill. It has been sitting idle on the House calendar for two weeks, and its sponsor, Rep. Jerry Sonnenberg, R-Sterling, said he expects it to die when the yearly session ends in two weeks.
Sonnenberg has argued that the Forest Service policy takes direct aim at Colorado’s long-standing principle that water rights allow the owner to use or sell the water for any purpose anywhere in the state, as long as a court approves.