USFS claims water rights should be tied to the land

Oct 7, 2013

A long-standing water battle brewing between the U.S. Forest Service and private water rights holders has incited a bill aimed at protecting those who rely on privately-held water rights for their livelihood.

Rep. Mark Amodei (R-NE) and Rep. Scott Tipton (R-CO) introduced the Water Rights Protection Act to protect privately-held water rights from federal takings and uphold long-standing state water law.

The representatives say the U.S. Forest Service (USFS) is pushing the federal government’s latest attempt to disregard state law and take private water rights, despite objections from elected officials, business owners, private-property advocates and a U.S. District Court ruling.

The Act would prohibit federal agencies from confiscating water rights through the use of permits, leases and other land-management arrangements.

In addition, it would:

• Prohibit agencies from implementing a permit condition that requires the transfer of privately-held water rights to the federal government in order to receive or renew a permit for the use of land.

• Prohibit the Secretary of the Interior and the Secretary of Agriculture from imposing other conditions that require the transfer of water rights.

• Uphold long-standing federal deference to state water law.

• Have no cost to taxpayers.

The Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) hailed the introduction. The bipartisan bill was introduced last week with additional co-sponsors: Rob Bishop (R-UT), Tom Mc- Clintock (R-CA) and Jared Polis (D-CO).

Both Tipton and Polis are, in part, taking this on for Colorado’s ski areas. USFS is forcing ski areas to turn over the private water rights before renewing any ski business permits.

The Forest Service argues that water rights established on national forest land should be tied to the land, and that the federal government should own those water rights.

But, according to supporters of the Act, that is just not how it works.

“That’s not the system we use out here in the West,” said Geraldine Link, the National Ski Areas Association’s director of public policy. “We were pleased to see a bipartisan bill. To us, this is about one of the most crucial issues in the West; water.”

According to Link, there is no federal statute that gives the Forest Service the authority for the water, and the U.S.

Supreme Court has ruled repeatedly that water is regulated by the states.

According to PLC and NC- BA, the legislation provides a means to combat a recent directive that allows the USFS to seize private water rights without just compensation.

“The U.S. Forest Service has taken a page out of the Environmental Protection Agency playbook and continues to illustrate its disregard for property rights through its continued efforts to federalize all waters in the U.S.,” said PLC president and CO rancher Brice Lee. “The USFS has failed to provide adequate compensation; instead, they have attempted to acquire these rights in exchange for special use permits, likely in violation of a recent Supreme Court ruling in Koontz. It is clear this bureaucracy is grossly overstepping its bounds and has to be prevented from usurping our members’ private property rights.”

The USFS has recently attempted to require the transfer of privately owned water rights on federal lands to the federal government as a condition of issuing standard land use permits. The agency has not provided adequate compensation as required by Article V of the Constitution and has repeatedly ignored established state water laws in order to perform these tasks.

“With 40 percent of the western cow herd spending some time on public lands, the ability to have secure water rights is imperative, not only to producers but to the economy,” said NCBA president Scott George, a rancher and dairy producer from Cody, WY. “This legislation is a commonsense bill that provides certainty to ranchers and leaves water management to the states where it belongs. The USFS must be accountable to citizens and the states and cannot, at will, circumvent state water laws at the expense of landowners.”

The legislation proposed would prohibit the Secretary of the Interior and the Secretary of Agriculture from requiring the transfer of water rights without adequate and just compensation. Additionally, the bill supports long-established state water laws, clarifying that the federal government does not have jurisdiction.

Both Lee and George ask the House to take up and pass this legislation without delay, encouraging other representatives to co-sponsor and urging swift passage out of committee. — Traci Eatherton, WLJ Editor