Tipton continues to push
The United States Forest Service announced last month that it will no longer pursue a course of action that would have required ski areas operating on public lands to surrender all or portions of their water rights to the federal agency prior to the renewal of their operating permits.
The decision relates to House Resolution 3189, the Water Rights Protection Act, which Colorado Republican Representative Scott Tipton introduced to congress in September. The bill seeks to prohibit the federal government, as represented by the secretary of the interior and the secretary of agriculture and their officers, from the taking or alteration of water rights from permit holders operating on public lands.
In the broadest sense, the bill is written to protect water rights holders, whether they are ranchers or ski areas, from being forced to relinquish their rights in order to continue their operations. However, because of the vague language of the bill, opponents argue that if passed, it could pose a significant risk to the federal government’s ability to protect river flows and aquatic habitat.
“While the bill was disguised as minor ‘fix’ for a narrow water rights conflict between Colorado’s ski industry and the U.S. Forest Service, it is in fact a sweeping attempt to stop federal agencies from managing water flexibly on our public lands,” said Matt Rice, director of Colorado Conservation for the not-for-profit group American Rivers. “If passed, the bill would allow private water users across the country to dry up rivers on public lands with impunity. It would prevent federal agencies within the Department of Agriculture and the Department of Interior from protecting fish, wildlife, and river recreation.”
In commenting on the resolution in front of the U.S. House of Representatives Committee on Natural Resources, the USFS wrote, “It is not in our interest or policy to take private water rights. Our interest is in sustaining skiing as a recreation opportunity on National Forest System (NFS) lands now and in the future. Water rights are increasingly critical to many ski areas for the purpose of snowmaking.
The USFS continued in its comment, “…the Department believes H.R. 3189 is unnecessary. Further, the Department is concerned that H.R. 3189 as drafted would impede the statutory mission of the Forest Service to provide for multiple uses, including recreation, under the Organic Administration Act and Multiple Use Sustained Yield Act … the bill could complicate the United States’ ability to prevent severance of water rights from associated permitted uses of federal lands, as necessary to ensure the continuing availability of water for snowmaking and other forest uses.”
Yet, despite the USFS’s commitment to avoid the necessity of the bill, and to pursue solutions that would not require the seizure of private water rights, HR 3189 continues to move forward in Congress with strong support continuing to come from a variety of groups and organizations, including the National Ski Areas Association, the American Farm Bureau, the National Association of Conservation Districts, the Aspen Ski Company and Crested Butte Mountain Resort.
“This is certainly an issue for the whole ski industry, and for other groups like farming and ranching; this act will protect water rights from the federal government,” said CBMR director of planning and sustainability John Sale. “CBMR is in a slightly different situation because of a longstanding memorandum of understanding regarding the maintenance of stream flows that we have with the state; however, our support has been for the National Ski Area Association, and the Colorado ski industry.”
After hearing about the USFS’s decision, Congressman Tipton said that while he is encouraged by the movement away from the taking of private water rights, a permanent solution protecting private water rights still needs to be put into place.
“Water users need certainty that all federal land management agencies, not just the Forest Service, are prohibited from future attempts to take privately held water rights,” said Tipton in a statement to the press. “Additionally, H.R. 3189 would prohibit future Forest Service officials from shifting course and engaging in similar water grabs in the future.”
According to Rice and American Rivers, it’s not that simple.
“H.R. 3189 would not just affect Colorado rivers … [It] could prohibit the Forest Service from requiring water diverters to leave some water in streams on National Forests to keep native cutthroat trout alive,” said Rice. “It could also stop the Fish and Wildlife Service from requiring flows that help salmon find fish ladders so that they can safely pass over dams.”
Congress will continue to take public feedback on H.R. 3189 as it makes it way through the House of Representatives.