Despite federal policy change, law needed to protect water

By Rep. Scott Tipton

With great foresight, the founders of this nation endeavored to protect private property from the federal government.

In the West, we know that this protection extends to privately held water rights. Unfortunately, recent history has shown that the federal government is more than willing to overreach its authority to try to acquire private water rights, through coercion if necessary.

I was somewhat encouraged that the U.S. Forest Service recently acknowledged its flawed and unnecessary policy regarding ski-area water rights and indicated that its future water-rights clause may no longer require the transfer of privately owned water rights.

However, it needs to be noted that this clause has yet to be seen and the agency’s comments indicate that we will only see a temporary fix for one group of water users in a single region.

The Forest Service’s latest policy shift doesn’t provide the same level of protection as the bipartisan Water Rights Protection Act — which is supported by more than 30 state, local and national stakeholder groups, including the National Cattlemen’s Association, along with numerous Colorado counties, river districts and conservation groups.

The policy shift also falls far short of giving private water users much certainty, and it is the fourth change in Forest Service water policy for ski areas in the last 10 years.

According to the National Ski Areas Association, “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. 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.”

Federal attempts to seize private water rights aren’t limited to ski areas. The same tactics have been used by both the Bureau of Land Management and Forest Service in attempts to take or interfere with private water rights associated with agricultural production in the heart of rural America, where farmers and ranchers rely on their rights to secure loans, irrigate crops and water livestock.

During a House Natural Resources Committee hearing in October, Tim Lowry, who ranches near the Oregon-Idaho border, testified that from almost the moment his family purchased their ranch, the BLM began attempts to inhibit their ability to utilize their water rights.

After a decade-long legal battle that has racked up more than $800,000 in legal fees for Lowry, the Idaho Supreme Court ruled in his favor and against federal attempts to hijack his privately held livestock water rights.

We’ve heard similar stories out of Utah, where the Forest Service denied ranchers access to rangelands for grazing until they transferred their private water rights; and in Nevada, where Forest Service and BLM employees attempted to violate state law by eliminating livestock watering rights.

It is unforgivable that the federal government would put people in a position of choosing between their lawfully acquired property and financial ruin. I know for certain that many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service or BLM to protect what is rightfully theirs under state law.

Nor should they have to.

That is why I joined with my colleagues Reps. Mark Amodei, R-Nev., and Jared Polis, D-Colo., to introduce the Water Rights Protection Act. This common-sense bill would protect communities, businesses, recreational opportunities and farmers and ranchers, as well as other individuals who 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.

It would provide these vital protections for private property owners without affecting water allocations for nonfederal parties or allocations that protect the environment.

The bill has been approved by the House Natural Resources Committee and is awaiting a vote in the full House, probably early next year.

In order to permanently protect private water rights from federal takings and provide certainty for all water users, Congress must act and pass this bipartisan legislation.

Water is the lifeblood of the West, and it is vital for Colorado’s economic health. I will continue to work to advance this needed legislation to protect all water users and ensure that our most precious resource is not subject to the control of Washington bureaucrats.

Rep. Scott Tipton represents Colorado’s 3rd Congressional District, which includes much of western Colorado.


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