Tipton: Forest Service Is Waging Multiple Assaults on Water Rights

WASHINGTON—Today, Congressman Scott Tipton (R-CO) called the latest Forest Service permit condition for ski area water rights insufficient to protect water users from agency abuses, and stressed the need for the Senate to pass the Water Rights Protection Act (H.R. 3189) to provide long-term certainty that private water users need, and protect them from federal attempts to infringe on their private property. The House passed Tipton’s locally-driven bill with bipartisan support in March.

Tipton also blasted the Forest Service for saying one thing while doing another as the agency continues to wage an assault on private water rights through backdoor efforts to obtain rights granted by long-held state water law.

“The Forest Service’s latest ski area permit condition does nothing in terms of providing certainty or protecting water users from future federal agency abuses. It’s the fourth variation of the ski area permit clause put forward in the last ten years, and there’s nothing to stop the agency from revising it again. The Forest Service is once more claiming the permit condition is needed to prevent water rights from being sold off and used improperly. Aside from the problem that this is an overreach by the federal government, the Forest Service’s concern that these water rights are being sold off or used improperly has no basis in reality.  Even Forest Service Chief Tom Tidwell has testified in Committee that there were no instances of this having occurred in the past,” said Tipton. “The Administration’s track-record of infringing on private water rights and blocking user access to those rights warrants intense skepticism of any agency proposal. The Forest Service’s rhetoric with this latest ski area condition doesn’t match the agency’s actions on the whole. Even as it attempts to persuade that all is well and that it is backing away from using permit conditions as a means to confiscate private water rights, the Forest Service is actively attempting to obtain private water or block access to it through back-door administrative actions. These actions include doubling-down on a current Forest Service policy to obtain water rights in the name of the United States (including rights from permittees) in its proposed Groundwater Directive and under an existing manual. The Forest Service is saying one thing with the ski area permit condition, and doing the exact opposite through other administrative actions. As it currently stands, there is no certainty or protection for ski areas or any other private water rights users.  One thing however is certain—as long as the Forest Service continues to go after private water rights, it will have a fight on its hands from me.”

Despite the Forest Service’s insistence that under the new ski area permit condition it will no longer require the transfer of water rights, Forest Service manual 2441.32 (Possessory Interests), which is currently being enforced, instructs the agency to continue to claim water rights of permittees.

Section 2541.32 of the 2007 Forest Service Water Uses and Development Manual directs:

“Claim possessory interest in water rights in the name of the United States for water uses on National Forest System lands as follows:

1. Claim water rights for water used directly by the Forest Service and by the general public on the National Forest System.
2. Claim water rights for water used by permittees, contractors, and other authorized users of the National Forest System, to carry out activities related to multiple use objectives.  Make these claims if both water use and water development are on the National Forest System and one or more of the following situations exists:

• a. National Forest management alternatives or efficiency will be limited if another party holds the water right.
• b. Forest Service programs or activities will continue after the current permittee, contractors or other authorized user discontinues operations.”

See the full manual HERE.

The Forest Service Groundwater Management Directive reinforces the policy under Manual 2540 to obtain water rights in the name of the United States, but this time in the context of a massive watershed wide groundwater policy. The scope of the overall policy combined with the directive to “obtain water rights under applicable state law for groundwater and groundwater dependent surface water needed by the Forest Service” could give regional Forest Service staff the agency approval to go after any water right arising on and off Forest Service lands that they deem necessary to carry out the broad objectives of the manual.

“While the Forest Service would like to give the impression that it is backing away from obtaining private water rights with its latest ski area permit condition, the policy currently in effect at the agency combined with its new Groundwater Management Directive indicates that nothing is farther from the truth, and that it is actually gearing up for an even greater attempt to obtain private water,” said Tipton. “Until legislation like the Water Rights Protection Act is signed into law, private water rights users including ski areas, agriculture producers, municipalities, recreationalists and others will continue to be at risk of abuse from federal land management agencies. I strongly urge my colleagues over in the Senate, including the Senators from Colorado, to join me in standing up for private water rights and pass this needed legislation which already cleared the House with bipartisan support.”

The Water Rights Protection Act (H.R. 3189):

• Prohibits federal land management 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;
• Prohibits the Secretary of the Interior and the Secretary of Agriculture from imposing other conditions that require the transfer of water rights without just compensation;
• Upholds longstanding federal deference to state water law; and
• Has no cost to taxpayers.