Tipton on right track in water-rights fight

Every few years, it seems, someone with the U.S. Forest Service — usually in Washington, D.C. — decides it would be a great idea if national forests owned all the water originating on their lands, and state water laws be damned.

And every few years in response, congressional representatives from Western states must rise up to fight the attempted bureaucratic water grab.

Colorado’s 3rd District Congressman Scott Tipton is one of those leading the charge now. He is fighting a proposed Forest Service policy to require those holding private water rights on national forest lands — such as ski areas and ranchers with Forest Service grazing permits — to transfer their water rights to the Forest Service as a condition of having their permits renewed.

The issue is to be discussed today during a meeting of the House subcommittee on National Parks, Forests and Public Lands, of which Tipton is a member.

One problem for the Forest Service is that those water rights are private property under Colorado law and the Fifth Amendment to the U.S. Constitution. They can’t be taken without compensation.

Congress has not given the Forest Service authority to require permittees to transfer those water rights to the federal agency, Tipton wrote in a letter to Secretary of Agriculture Tom Vilsack.

With the ranchers’ water rights, the Forest Service may be confronted with another problem that’s equally serious. In some cases, those water rights were legally established prior to the designation of the national forest in question.

And, as the National Park Service learned in a 1980s court case when it attempted to require people passing through Colorado National Monument on their way to Glade Park to pay a national parks fee, the federal government has no authority to change the operation of facilities that are subject to pre-existing rights.

Forest Service officials have reportedly told permittees they will be allowed to continue using those rights as they have in the past. But that may only be true until the next change in administration or Forest Service leadership.

Tipton is right to question this policy for permittees. Here’s hoping he and others in Congress persuade the Forest Service to drop the notion of this water-rights transfer demand.


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