Taking on water

Rep. Scott Tipton

Legislation recognizing the water laws of Colorado and other western states could discourage federal efforts to claim water, said U.S. Rep. Scott Tipton, R-Colo.

Tipton will introduce legislation aimed at codifying western water law to deter federal pre-emption of water rights, he said.

“The West is under assault at this time,” Tipton said Saturday at the fall meeting of Club 20, the Western Slope advocacy organization.

The most recent battleground over water is a demand that ski areas surrender water rights to the U.S. Forest Service as a condition of obtaining their permits to operate on lands administered by the Forest Service.

Forest Service officials said the requirement was necessary to assure the continued use of the water for skiing. Many ski areas use their water rights to make snow.

Ski areas, and others, sued the Forest Service and gained a temporary victory when a federal judge ruled that the agency hadn’t followed federal procedures when it applied the directive in 2011 to the new owners of Powderhorn Mountain Resort near Grand Junction.

The new owners were required to agree to the directive before they could open the mountain that ski season.

The National Ski Areas Association said the demand amounted to a federal taking of private property.

Tipton said he will unveil the legislation, which will amount to a simple, two-page bill, in September.


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While it remains locally fashionable for disingenuous politicians to suggest that “The West is under assault” by the federal government (Gary Harmon, “Taking on water”), Congressman Scott Tipton’s proposed legislation may be a superfluous stunt – because Western water has long been subject to state water law under the McCarran Amendment (1952) and Colorado River Water District v. United States (1976).

What’s missing from Tipton’s claim (and Harmon’s reporting) is that the Forest Service is pursuing a long-standing policy requiring “that ski areas surrender water rights to the U.S. Forest Service as a condition of obtaining their permits to operate on lands administered by the Forest Service”.

Since 1983 – during President Ronald Reagan’s administration—Forest Service permits have required ski areas to title water rights used for snow-making in the name of the United States.  Doing so ensures that those water rights “run with the land” and cannot be readily transferred for other uses – to the potential detriment of successor ski operators, local communities dependent on ski operations, graziers, and/or the national forest itself.

For the next twenty years, that policy was inconsistently enforced (but not necessarily legally “waived”), such that many Colorado ski areas obtained water rights without so titling them.  In 2004, the Bush Administration’s Forest Service began requiring joint ownership of such water rights with the U.S., while dubiously “grandfathering” previous non-compliant permits.  In 2011, President Obama’s Forest Service sought to restore consistency to the policy by requiring compliance as a condition for permit renewal.

In December 2012, a federal court – without ruling on the renewal conditions – ordered the Forest Service to withdraw its directive, pending completion of the public process required by the Administrative Procedures Act.  That process is now under way, and may well result in re-ratification of the Forest Service’s prudent 30 year-old policy.

I wonder if Tipton has met Chris Treese?

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