By Veronica Harrison

Rep. Scott Tipton (R-CO) reintroduced the Water Rights Protection Act (WRPA) at a hearing of the House Natural Resources Subcommittee on Water, Power and Oceans on May 18, 2017.

The bill passed the House of Representatives in the 113th and 114th Congresses with bipartisan support, but it never received a vote in the Senate.

WRPA would uphold state water laws and water-rights assignments against federal regulatory agencies’ attempts to reduce property owners’ water rights.

The bill includes provisions prohibiting federal agencies from imposing permit conditions requiring the transfer of privately held water rights to the federal government to receive or renew a permit for the use of federal land. It would also prohibit the secretary of the interior and the secretary of agriculture from requiring the transfer of water rights without just compensation, and it would uphold federal deference to state water laws governing public lands.

The federal government often tries to turn privately owned land into public property by restricting water rights, says John Baden, chairman of the Foundation for Research on Economics and the Environment. Baden owns a family ranch in Bozeman, Montana that dates back nine generations.

“The federal government will do everything they can to get you off the land, illegally claiming water rights to get your property,” said Baden.

Wielding Water as Weapon

Ron Arnold, executive vice president for the Center for the Defense of Free Enterprise, says the federal government uses control of water to extort concessions from federal lessees and western property owners.

“It’s a way to get people off of land,” said Arnold. “In the West, water laws are very specific; the water doesn’t necessarily come with the land.

“In many western states, you only gain water rights through use,” Arnold said. “You have to show beneficial use of water, according to the law. This bill will give you the right to own the water without having to constantly prove beneficial use.”

Concern for Fairness

Tipton says he hopes his bill will ensure fairness to western water users, providing them the certainty they need to prosper and thrive in the West, where dry and waterless conditions are the norm.

“The federal government owns nearly half of all land in the West and almost 36 percent of land in Colorado,” said Tipton in a statement. “Any permit condition that requires the lessee to turn over their water rights to the federal government, without compensation, is an assault on private land and water rights.

“The steady flow of federal agency actions to assert federal control over private water rights directly interferes with the ability of the American people to access their private property,” Tipton’s statement said. “These federal water grabs undermine the long-held state water law and prior appropriation doctrine that protects water use in the West.”

The statement added, “The Water Rights Protection Act would uphold longstanding federal deference to state water law and provide certainty for water users and property owners.”

Importance ‘Can’t Be Overstated’

Baden says control of water is critical on ranches in the West and recent attempts to regulate water there by the federal government have been harmful.

“The importance of water to those living in agriculture cannot be overstated,” said Baden. “One cannot grow crops or raise livestock without access to water.

“On our ranch, apart from scenery, the beneficial use of our land comes from bountiful water, both natural and the water diverted for irrigation from the Gallatin River in 1885,” said Baden. “Our major property rights in water date from 1866 and 1883 and are attached to the land.”

Skiers’ Rights

Control of water is also critical for ski areas operating on federal land, says Geraldine Link, director of public policy for the National Ski Areas Association (NSAA). NSAA went to court in 2012 to prevent U.S. Forest Service efforts to force ski-slope operators to cede their water rights as a condition of receiving permits to operate.

“Ski areas are economic drivers in rural communities,” said Link. “If we don’t have water, we can’t make snow, meaning ski operations cannot continue to provide a high-quality recreation opportunity for millions of people in the national forests. This affects the entire community, not just the ski area.

“We have invested hundreds of millions of dollars in water rights because water is such an important resource for snowmaking and other key aspects of our operations,” Link said. “NSAA’s goal is to protect the water resources held by our members. We would do nothing to impact stream health or aquatic species in any way.”

Ski operators support the WRPA, says Link.

“The goals of the WRPA, to put in statute prohibitions against the taking of private water rights through permit conditions by the federal government, will provide us more certainty in the long term, providing the segment of the skiing industry that depends on federal permits the stability it needs to grow and succeed in the future,” Link said. “The intent of this bill is narrow: to protect valuable property interests of permittees using federal land from seizure without compensation by the federal government.

“Contrary to claims made by those who oppose the bill, WRPA does not alter in any way the minimum stream flow protections that are set and enforced by the states on virtually every river and stream,” Link said. “And the bill expressly states, ‘[N]othing in this Act affects the implementation of the Endangered Species Act.’”

Veronica Harrison (vharrison@heartland.org) is marketing director at The Heartland Institute. This article was reprinted with permission from heartland.org, a product of The Heartland Institute (https://www.heartland.org/news-opinion/news/congress-considers-water-rights-protection-bill).