Federal agencies seek multiple routes to control state water

By Rep. Scott Tipton

Water is the lifeblood of the West. While Easterners may find it difficult to understand, the people of Colorado need no reminder that state water law and the rights it protects are sacred to Westerners of all political stripes.

Our century-old water-law system has sustained the population of our cities and towns and made responsible use of our natural resources possible. Today it is the bedrock of our livelihoods.

In the fall of 2011, it came to my attention that the U.S. Forest Service was attempting to upend this framework by requiring that private water rights be turned over to the federal government in order to renew a ski area permit. No compensation was to be given, despite the fact that ski areas and other permit holders have invested millions in developing the rights and depend on them as collateral for loans.

Powderhorn Mountain Resort near Grand Junction was among the first in Colorado to be targeted by this Forest Service policy.

The Forest Service justified 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.

However, as acknowledged by Forest Service Chief Tom Tidwell in a November 2011 congressional hearing, there has never been a case in which a ski area has sold off its water rights and diverted the water away from the recreation area. This was confirmed by the National Ski Area Association in a Water and Power subcommittee hearing last week.

As if this blatant attempt to take private water rights isn’t bad enough, the Forest Service has come up with new ways to attempt to control private water rights.

During last week’s hearing, I presented the written testimony of Gary Derck, a business owner in my district who operates Durango Mountain Resort. Although he has been a good steward of the environment and his water rights and has worked closely with the Forest Service in the past, the agency has in recent years repeatedly denied Derck access to develop those water rights.

In his testimony Derck wrote, “A few years ago, the policies of the Forest Service took a distinct and concerning change of course. Local Forest Service officials began telling us that they were no longer in charge of making decisions relative to water rights and water access ... that direction/decisions on these matters was now coming from ‘higher up’ in the Forest Service. 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.”

This policy isn’t limited to ski areas. The agency has also been implementing a similar requirement for grazing permits in several Western states. Many of the ranchers in my district can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.

To add to the list of federal threats to state water law, former Interior Secretary Ken Salazar recently issued a secretarial order to establish the National Blueways System: a “source-to-mouth, watershed-wide” federal program that has raised fears in many local water conservation districts that are already doing an outstanding job of managing and protection our water supplies.

In February, I joined with my colleagues to urge Secretary Salazar to withdraw the order. We wrote, “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 implications of the National Blueways System for Colorado and other Western states could be devastating, as the federal government disregards long-held, locally-tailored state water law in favor of a Washington-knows-best approach to regulating Western rivers.

This is the latest action in a trend of federal intrusion into the state water law that protects all of the uses we hold dear, from recreation to irrigation, domestic use to environmental protection.

To undermine this system is to create risk and uncertainty for all Western water users.

I fully intend to protect the privately held water rights upon which many Colorado communities and businesses rely, and will meet the Forest Service and Department of Interior at every turn — through oversight and, if need be, legislation — as they attempt to take those rights away.

Rep. Scott Tipton represents Colorado’s 3rd Congressional District, which includes Mesa County and most of western Colorado.


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It’s true that water is the lifeblood of the West. But it is also the lifeblood of the planet, and the century-old water law system that grew out of battles, chicanery and interstate agreements is on a collision course with the realities of unsustainable growth beyond the 100th meridian.

The rights that grew out of early settlement and small-scale agriculture were crafted before anyone thought of making artificial snow, let alone of ski resorts on the flanks of the desert. There was no Las Vegas, no Phoenix, and no acres of lawn being grown on the Front Range. No oil shale extraction or fracking or polluted dust clouds melting winter snows prematurely.

Unlike Rep. Tipton, I don’t believe something won’t happen because it hasn’t happened yet. And while today’s rights holders may indeed be fine stewards of the resource, as water becomes more valuable to private interests, it will become increasingly difficult to protect for those farmers and ranchers and sportsmen whose way of life depends on it.

The Forest Service regs may indeed be annoying and perhaps wrong from our local perspective, but we must also deal with the big picture, and it is not pretty.

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