Legislature makes it clear 
feds shouldn’t grab water

The noose may be tightening around the federal government’s attempts to grab privately owned state water rights as a condition for renewing special-use permits on public land.

The issue resurfaced in 2011, gaining traction in the public’s mind when ski resorts complained about a shift in policy that required them to relinquish water rights to secure permits to operate on federal land.

Things came to a head last fall after ranchers, ski operators and the general public demanded a ban on the practice, which one federal judge characterized as strong-arm tactics in a ruling against the Bureau of Land Management.

Late last year, the U.S. Forest Service backed off its demands and said it was revising its directive for issuing special-use permits. The Forest Service is an agency of the U.S. Department of Agriculture, not the Department of Interior like the BLM. But both agencies have attempted to implement the water-for-land use policy.

State and federal lawmakers weren’t satisfied that a mere policy shift was enough to prevent future grabs. The Colorado House on Tuesday passed a bill that would negate federal ownership of water rights secured through federal leasing practices.

Such a law, while sending a clear message to the federal government, is largely symbolic, because the state Legislature has little authority to direct the actions of federal agencies, even though it does have authority over state water rights. And the application of the law would be limited, obviously, to Colorado, while the reach of federal land managers extends across the West.

But U.S. Rep. Scott Tipton, whose district includes most of western Colorado, has introduced a bipartisan Water Rights Protection Act in Congress supported by more than 30 state, local and national stakeholder groups, including the National Cattleman’s Association and numerous Colorado counties, river districts and conservation groups. And Congress clearly does have the authority to direct how federal agencies may act. The bill cleared the U.S. House Committee on Natural Resources and awaits a debate by the full House.

The bill “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,” Tipton said on his website, and it would clear up the issue once and for all.

The federal government did the right thing in backing off a flawed policy. But you can’t blame politicians for going the extra mile to make sure the Forest Service, the BLM and other agencies don’t try to revive a paternalistic stance in which the federal government — acting as if it knows what’s best — usurping a state property right.


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While it remains locally fashionable to falsely accuse the federal government of seeking to “grab” western water rights via a “flawed policy” (“Legislature makes it clear feds shouldn’t grab water”), Sentinel readers deserve better from its editors.

What’s missing from the Sentinel’s opinion and ignored by anti-government panderer Scott Tipton’s proposed legislation is the underlying fact that the Forest Service is pursuing a sensible 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” – so that private rights to “beneficially use” public water obtained from National Forests under Colorado law remain dedicated to that purpose.

Since 1983 (under Republican Ronald Reagan), Forest Service permits required ski areas to title water rights used for snow-making in the name of the United States – thereby ensuring that such water rights “run with the land” and cannot be readily transferred for other purportedly “beneficial” uses – to the potential detriment of successor ski operators, local communities, graziers, and/or the national forest itself.

For the next twenty years, that common sense policy was inconsistently enforced (but not “waived”)—and some Colorado ski areas obtained water rights without so titling them. 

In 2004, Republican George Bush’s Forest Service began requiring joint ownership of those water rights with the U.S., while dubiously “grandfathering” older 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 proper completion of the public process required by the Administrative Procedures Act.  That process is still on-going, and should properly result in re-ratification of the Forest Service’s prudent 30 year-old policy.

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