Private water rights bill clears House

A fight over access to water for ski resorts on public land spilled into the House today, and prompted passage of a bill to protect all private water rights from being taken by the federal government.

The House passed the Water Rights Protection Act in a 238-174 vote. Democrats mostly opposed the bill as an unnecessary reaction to a federal proposal on water rights that has since been withdrawn, although 12 Democrats voted for it.

{mosads}The legislation is a response to a 2011 U.S. Forest Service proposal to require ski resorts on public land to transfer their water rights to the federal government. Republican supporters of the bill say that proposal is the latest sign of government overreach that must be blocked.

“This bill is responding to a very real threat, as the Obama administration has sought to extort water from individuals and businesses through the permitting process,” said House Natural Resources Committee Chairman Doc Hastings (R-Wash.).

“The federal government is holding necessary permits hostage unless water rights are relinquished,” he added. “And they are demanding that water rights be signed over without payment, which of course is a violation of the Constitution’s guarantee of just compensation.”

The bill from Rep. Scott Tipton (R-Colo.), H.R. 3189, would create new protections aimed at preventing the federal government from holding up permits for operating on federal land until water rights are signed over to the government.

Democrats responded by arguing that the government proposed that certain water rights be signed over to the government in order to ensure that these rights stay with the land being used under a permit. Rep. Grace Napolitano (D-Calif.) said the U.S. Forest Service was trying to ensure that companies operating on public land don’t sell off water rights associated with the land they’re using.

She said the Forest Service is worried that if permit holders sell water rights to the land they used, it would become impossible to lease the land later on.

“This was not because President Obama is mad with power and wants to own water rights,” she said. “Rather, it was so the Forest Service could include those water rights as part of a package when seeking a new operator and issuing a new contract for an existing ski area on public, taxpayer land.”

Democrats also noted that the Forest Service dropped the rule, and is working up another proposal that gets at this issue but doesn’t require the transfer of water rights to the government.

“There’s no rule pending,” said Rep. Peter DeFazio (D-Ore.). “But we’re going to pass legislation that affects all water rights in the western United States because of a problem that doesn’t currently exist.”

Republicans countered that the issue goes beyond water rights for ski resorts on public lands, and that the Obama administration is trying to claim the rights to other entities. Rep. Rob Bishop (R-Utah) cited one example of a person with private water rights who spent $800,000 in legal fees to protect his water rights from the government.

“That’s what the Tipton bill is trying to solve,” Bishop said. “The rights of those ranchers and those farmers. The rights of ski resorts to actually conduct business and have their rights protected.”

On Wednesday, the White House said it opposes the bill, but did not say President Obama would veto it. The White House noted that the Forest Service has pulled back its initial proposal, and said it wants to work with Congress if there are any remaining issues once the Forest Service comes out with a new rule.

Rep. Jared Polis (D-Colo.) proposed an amendment to the legislation that would narrow the bill to only ensure that the Forest Service cannot require ski resorts to hand over water rights to the government. Polis said he agreed that the Forest Service went too far, but said the bill is now much more broad.

The House rejected Polis’s amendment, however, in a 175-236 vote. Republicans said the amendment would have elevated the rights of ski resorts over other groups, including Native American tribes.

Before final passage, the House also approved two Republican amendments from:

— Scott Tipton (R-Colo.), clarifying that the bill would not affect Bureau of Reclamation contracts, implementation of the Endangered Species Act, existing reserved federal water rights and authorities under the Federal Power Act. Accepted in voice vote.

— Markwayne Mullin (R-Okla.), ensuring that Native American tribes can’t be forced apply for or acquire water rights under state law and transfer them to the federal government. Accepted in voice-vote.