U.S. Rep. Scott Tipton: Federal attempts to take private water loom in the West
April 14, 2015
After much public outcry, the federal government has attempted to distance itself from its most recent attempt to trample state law and take or interfere with private water rights. While administration officials are claiming "there's nothing to see here," short of guarantees that can only be provided through legislation, our private water rights — on which countless Westerners and communities rely for their livelihood — will continue to be at risk.
Last year, Department of Agriculture Undersecretary Robert Bonnie stated during a Congressional hearing that the Environmental Protection Agency and the U.S. Army Corps of Engineers' proposed Clean Water Rule, which essentially seeks to regulate essentially all forms of surface water on public and private land, would in no way pertain to groundwater. Undersecretary Bonnie painstakingly emphasized that farmers and ranchers would be unaffected by the proposed EPA rule because of an agriculture exemption.
However, the devil was in the details of agency directives and manuals. At the same time these assurances were being made, the Forest Service was moving forward with a Groundwater Management Directive to establish regulations which could directly interfere with private water users' ability to access their water. This broad directive could impact any farmer or rancher that engages in common agriculture practices such as lawfully utilizing their water rights for diversion out of a stream, filling a stock pond or irrigating a field. The directive also runs contrary to states' longstanding authority over groundwater management.
Weeks later, the Forest Service came forward with a "compromise" on a separate longstanding water rights issue that impacted permit users on public lands, which include primarily ski areas and some ranchers. The agency stated it would no longer require the transfer of water rights as a permit condition so long as those rights remained tied to the land. This was the fourth change in the ski area permit condition in 10 years, and there are no guarantees that it won't be changed again. It's also worth noting that there has never been a case, according to Forest Service Chief Tom Tidwell, where a permittee has sold off water rights from the land for other uses, or inappropriately. The government is attempting to solve a problem that doesn't exist.
While the Forest Service's "compromise" seemed to take a step back from outright coercing private ski area water rights from owners as a conditional use of permit, the reality is that the Forest Service simply regrouped before once again pressing forward with actions aimed at illegally obtaining rights granted by state water law.
The agency's most recent attempt at "compromise," the Groundwater Management Directive, instructed Forest Service personnel to assume interconnectivity of surface water and ground water, "regardless of whether State law addresses these water resources separately." Under the directive, if the federal government says its water rights are senior, regardless of historic usage and state law, private water users including ski areas, municipalities and agriculture producers, are out of luck.
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So much for "compromise."
In short, a pattern has emerged in which the federal government responds to public outcry by claiming to back away from attempts to interfere with private water rights, shifting the focus elsewhere, and all the while enforcing and pursuing policies to accomplish the same ends through quieter channels.
While ski areas have been high profile targets in recent water rights battles, this issue isn't limited to them or to only the Forest Service. Ranchers are suffering the same fate regarding their grazing permits on BLM lands, and all private water rights holders could be impacted by similar policies coming out of federal land management agencies.
Short of legislation to codify long-held state water law and priority-based systems, and to prohibit uncompensated takings, as the Water Rights Protection Act (WRPA) seeks to do, the federal government will continue attempts to take private water rights or restrict water users from accessing them, as we've seen many times before.
All valid water rights deserve strong protections from potential abuses by any federal agency.
That is why I'm reintroducing WRPA in the 114th Congress. We've worked with stakeholders throughout Colorado and other impacted Western states to put forward a commonsense bill that will include the same protections introduced last Congress, as well as strengthened language to further safeguard against backdoor attempts, like the Forest Service Groundwater Management Directive, to circumvent state law and infringe on private water rights.
As before, the bill maintains environmental safeguards, and will not impact Bureau of Reclamation water contracts in any way. Likewise, the legislation will have no impact on bypass flow authority or any other authority existing within a jurisdiction. These are outside the scope of the legislation.
This legislation is solely intended to protect privately held water rights from federal takings. Introduction is the first step in the process, and as the bill advances through the committee process, we are committed to continuing to work with community stakeholders ensure Western water users can have the certainty needed to prosper and thrive in the arid West.