[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]





  H.R. 3176, TO REAUTHORIZE THE RECLAMATION STATES EMERGENCY DROUGHT 
 RELIEF ACT OF 1991, AND FOR OTHER PURPOSES; H.R. 3189, WATER RIGHTS 
                            PROTECTION ACT

=======================================================================

                          LEGISLATIVE HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            October 10, 2013

                               __________

                           Serial No. 113-46

                               __________

       Printed for the use of the Committee on Natural Resources


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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Raul R. Labrador, ID                 Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Mark E. Amodei, NV                   Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Chris Stewart, UT                    Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

                    SUBCOMMITTEE ON WATER AND POWER

                      TOM McCLINTOCK, CA, Chairman
           GRACE F. NAPOLITANO, CA, Ranking Democratic Member

Cynthia M. Lummis, WY                Jim Costa, CA
Scott R. Tipton, CO                  Jared Huffman, CA
Paul A. Gosar, AZ                    Tony Cardenas, CA
Raul R. Labrador, ID                 Raul Ruiz, CA
Markwayne Mullin, OK                 Alan S. Lowenthal, CA
Chris Stewart, UT                    Peter A. DeFazio, OR, ex officio
Doug LaMalfa, CA
Doc Hastings, WA, ex officio

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on October 10, 2013.................................     1

Statement of Members:
    Amodei, Hon. Mark E., a Representative in Congress from the 
      State of Nevada............................................    21
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................    22
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................    19
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon............................................    16
        Prepared statement of....................................    17
    Gosar, Hon. Paul A., a Representative in Congress from the 
      State of Arizona...........................................    18
    McClintock, Hon. Tom, a Representative in Congress from the 
      State of California........................................     1
    Napolitano, Hon. Grace F., a Representative in Congress from 
      the State of California....................................     3
    Tipton, Hon. Scott R., a Representative in Congress from the 
      State of Colorado..........................................     6

Statement of Witnesses:
    Corbin, David, (H.R. 3189), Vice President, Aspen Skiing 
      Company, Aspen, Colorado...................................    23
        Prepared statement of....................................    24
    Crews, Wayne, (H.R. 3176), Vice President, Competitive 
      Enterprise Institute, Washington, DC.......................    44
        Prepared statement of....................................    46
    Parker, Randy, (H.R. 3189), CEO, Utah Farm Bureau Federation, 
      Sandy, Utah................................................    26
        Prepared statement of....................................    28
    Porzak, Glenn, (H.R. 3189), Attorney, National Ski Areas 
      Association, Boulder, Colorado.............................    36
        Prepared statement of....................................    38
    Willardson, Tony, (H.R. 3176), Executive Director, Western 
      States Water Council, Murray, Utah.........................    39
        Prepared statement of....................................    41

Additional Materials Submitted for the Record:
    Heavenly Mountain Resort, Lake Tahoe, Letter submitted for 
      the record on H.R. 3189....................................    79
    Letters of support submitted for the record by Representative 
      Napolitano.................................................     4
    Letters of support submitted for the record by Representative 
      Tipton.....................................................     8
    Letter from Chairman McClintock to U.S. Bureau of Reclamation 
      on H.R. 3176...............................................    76
    Letter from Chairman McClintock to U.S. Forest Service on 
      H.R. 3189..................................................    76
    Response letters to Chairman McClintock from U.S. Department 
      of the Interior and U.S. Forest Service on H.R. 3189.......    77
    National Association of Conservation Districts, Washington, 
      DC, Letter submitted for the record on H.R. 3189...........    80
    Rio Grande Water Conservation District, Alamosa, Colorado, 
      Letter submitted for the record on H.R. 3189...............    80
                                     


 
LEGISLATIVE HEARING ON H.R. 3176, TO REAUTHORIZE THE RECLAMATION STATES 
  EMERGENCY DROUGHT RELIEF ACT OF 1991, AND FOR OTHER PURPOSES; H.R. 
                   3189, WATER RIGHTS PROTECTION ACT

                              ----------                              


                       Thursday, October 10, 2013

                     U.S. House of Representatives

                     Subcommittee on Water and Power

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 2:25 p.m., in 
room 1334, Longworth House Office Building, Hon. Tom McClintock 
[Chairman of the Subcommittee] presiding.
    Present: Representatives McClintock, Tipton, Gosar, 
Stewart, Napolitano, Costa, Huffman, Lowenthal, and DeFazio.
    Also Present: Representatives Bishop of Utah and Amodei.

   STATEMENT OF THE HON. TOM McCLINTOCK, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. McClintock. The Subcommittee on Water and Power will 
come to order. I want to apologize to all concerned regarding 
the late start today. The consolation is there are no further 
votes scheduled, so there won't be any interruptions except 
from the members.
    So welcome to all of you. A quorum is present. And today 
the Water and Power Subcommittee meets to hear two bills, one 
of which protects valuable private water rights from efforts by 
the Federal Government to expropriate those rights through what 
should be a routine permitting process. The other bill 
reauthorizes the Emergency Drought Relief Act, which provides 
Federal taxpayer dollars for local drought-related water 
projects.
    H.R. 3189, the Water Rights Protection Act, is a 
straightforward measure to prevent the U.S. Forest Service from 
demanding that privately owned ski resorts surrender long-held 
water rights under State law as a condition of receiving 
special use permits for longstanding uses of public land.
    Despite over 100 years of Federal deference to State law, 
Federal agencies have adopted the practice of demanding that 
water users transfer rights granted to them by States over to 
the Federal Government as a condition of getting a permit to 
operate on Federal lands. This amounts to an uncompensated 
taking and is a violation of both the Fifth Amendment to the 
Constitution and a violation of State law, under which the 
Federal Government must acquire water rights through the proper 
channels as would any other user.
    There are 121 ski areas on Federal public lands, 14 of 
which, by the way, are on Forest Service lands in my district. 
These ski areas rely on privately held water rights for 
snowmaking, using this water as collateral for financing to 
build and maintain their facilities, and for supplying water to 
the local communities that they support.
    In 2011 the Forest Service issued a directive that would 
effectively take these private property rights without 
compensation, in violation of State law, while jeopardizing 
these enterprises altogether, and all of the direct employment 
and spinoff economic activity and tax revenues that they 
provide. This action illustrates an increasingly hostile 
attitude by this agency toward those who make productive use of 
our vast natural forests, in this case by enhancing and 
attracting the tourism upon which our mountain communities 
depend.
    Although the principal victims of this policy have been our 
ski resorts, this subcommittee has also received reports of 
similar tactics directed against farm and ranch operations that 
rely on State-recognized water rights for irrigation and stock 
watering.
    Mr. Tipton's bill simply prohibits the Federal Government 
from using what should be a routine permitting process to 
extract long-held water rights from private users. This bill 
seeks to restore Federal accountability and responsibility and 
gets the Forest Service out of what has been historically a 
State prerogative.
    Mr. McClintock. We will also hear H.R. 3176, the Drought 
Relief Act, offered by Mr. DeFazio. This measure reauthorizes a 
program that provides Federal money for drought relief 
programs. Given the disappointing rainfall last year in many 
parts of the country, this is an important and timely subject.
    Of course the whole purpose of Federal water and power 
projects is to assure that there are ample supplies of water in 
times of drought. We will hear from the Competitive Enterprise 
Institute that natural processes produce some 45,000 gallons of 
fresh water each day for every man, woman, and child on the 
planet. The problem is that this abundant supply is unevenly 
distributed over both time and distance, which is the whole 
reason that we build dams and aqueducts in the first place. The 
more dams and aqueducts we have, the fewer water shortages we 
suffer. The problem is we haven't been building a lot of these 
projects for quite some time for reasons that this subcommittee 
has often discussed.
    When we did build them, they were financed on the 
beneficiary pays principle in which Federal money fronted for 
these projects is repaid by the users of the water and power 
that these projects provide. I am interested in knowing why 
that principle is not applicable here and whether our approach 
to drought relief ought to be aimed at producing permanent 
abundance rather than managing temporary shortages. It is 
certainly an important and timely discussion to have.
    Although the Federal agencies are not here today, we look 
forward to getting their submitted testimony and answers to 
many questions for the record. For those that are here, I look 
forward to today's testimony on how we can protect State-
recognized water rights and all the many industries and uses 
that rely on them, and how we can better prepare for drought 
conditions to avoid needless expenditures of taxpayer dollars.
    And with that, I am happy to yield to the Ranking Member, 
the gentlelady from California, Mrs. Napolitano, for 5 minutes.

STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mrs. Napolitano. Thank you, Mr. Chairman, and good 
afternoon to everybody.
    Today's hearing focuses on the two bills that address 
important water issues in the West, H.R. 3176, the 
reauthorization of the Drought Relief Act, and H.R. 3189, the 
Water Rights Protection Act. And thank you to our witnesses for 
being with us even in the presence of this government shutdown.
    I am proud to cosponsor H.R. 3176, legislation sponsored by 
my colleague, Ranking Member Peter DeFazio, which provides 
reclamation with the authority and flexibility to get water to 
entities, tribes who need it during times of drought.
    Drought costs the U.S. economy between $6 billion to $8 
billion annually, with 2012 drought costs possibly exceeding 
$35 billion. In 2013 almost 50 percent of our country is in 
moderate to severe drought. We will hear more of the effects of 
the drought in the West from the Western States Water Council 
witness. And may I add that many of the entities that are 
trying to figure out how to cope with the drought are not able 
do it alone.
    We will also hear testimony that the Federal Government 
should not help the States during times of drought. That the 
Federal Government should not help--God help California--home 
to the five most productive agricultural counties in the Nation 
and the eighth-largest economy, with their water issues. The 
argument is that California's problems are not the Nation's 
problems. I beg to differ with that. It is not that simple. 
What affects California affects the rest of the Nation. That is 
why we are the United States of America.
    H.R. 3189, offered by Representative Tipton, is legislation 
that seeks to address an issue between Forest Service and the 
ski areas in his region. The ski areas are concerned about the 
Forest Service interim directive that requires they transfer 
their water rights to the Federal Government. The Forest 
Service is concerned about their ability to manage the land if 
the ski resorts were to sell their rights. The legislation is 
so broadly written that it could apply to many actions on 
Federal lands, not just the ski resorts. So we must be careful 
about how unintended consequences may affect some other folks.
    It is the responsibility of this committee to ensure 
proposed legislation receives the proper vetting. We did not 
receive agency testimony because of the shutdown. We don't have 
all the answers to the questions we have asked of the 
administration, again because of the shutdown. Yet this hearing 
is moving forward and it will be the only, and, I repeat, the 
only opportunity for stakeholders to weigh in before markup. We 
are missing key information, without the administration's 
position on these bills and our ability to question them 
directly.
    This is not the best way to do business, nor is it the best 
way to ensure that the legislation we pass serves the best 
interest of our taxpayers and our American public. The best way 
we can help our communities with their water challenges is to 
reopen the Federal Government, and we must focus on bringing 
government back to work so employees of not only the U.S. 
Geological Survey, but other critical agencies, can work and be 
participants and comment on our issues.
    Because of the government shutdown, only 43, and, I repeat, 
only 43 people out of 8,623 USGS employees--that is less than 
half of 1 percent--are at work. We must bring back 3,311 of the 
5,077 reclamation employees that have been furloughed and are 
waiting to go back to work for our country.
    Next year is expected to be a very dry water year and we 
need them all back in their jobs to help plan for our future 
and to help our Nation's not only Ag economy, but the rest of 
our Nation. It is ironic, though, that it takes the absence of 
these employees to value their presence. They are essential to 
this country and to the legislative process, and we need them 
back at work.
    As we consider these important pieces of legislation we 
must first prioritize reopening government. We must vote on a 
clean resolution, continuing resolution, with no add-ons, I 
mean none, clean; open the Federal Government and put people 
back to work. Let us work for our citizens because that is what 
they sent us here to do.
    And, Mr. Chairman, I would like to submit for the record 
three letters of support, from the Association of California 
Water Agencies, the Family Farm Alliance, and the Western 
States Water Council, associated with the Western Governors' 
Association.
    Mr. McClintock. Without objection.
    [The letters submitted for the record by Mrs. Napolitano 
follow:]
     Letters Submitted for the Record by Representative Napolitano
          Association of California Water Agencies,
                                      Sacramento, CA 95814,
                                                   October 4, 2013.
Hon. Tom McClintock, Chairman,
Hon. Grace Napolitano, Ranking Member,
House Subcommittee on Water and Power,
Washington, DC 20515.

    Dear Chairman McClintock and Ranking Member Napolitano:

    The Association of California Water Agencies is pleased to support 
H.R. 3176, Reauthorization of the Reclamation States Emergency Drought 
Relief Act of 1991. ACWA's 450 public water agency members supply over 
90 percent of the water delivered in California for residential, 
agricultural, and industrial uses.
    The Drought Relief Act provides the Bureau of Reclamation with the 
tools it needs to help states plan for and mitigate the impacts of 
droughts. As you are aware, California is currently facing drought 
conditions and the forecast for 2014 is not looking good. ACWA believes 
programs like this will help water managers during this time of 
drought.
    ACWA appreciates your work on this legislation. If we can be of any 
assistance, please feel free to contact our Washington office at 
202.434.4760.
            Sincerely,
                                            David Reynolds,
                                     Director of Federal Relations.

                                 ______
                                 

                              Family Farm Alliance,
                                   Klamath Falls, OR 97601,
                                                   October 4, 2013.
Hon. Tom McClintock, Chairman,
Hon. Grace Napolitano, Ranking Member,
House Subcommittee on Water and Power,
1522 Longworth House Office Building,
Washington, DC 20515.

Re: Support for H.R. 3176

    Dear Chairman McClintock and Ranking Member Napolitano:

    On behalf of the Family Farm Alliance, I write to show our strong 
support for H.R. 3176, ``Reauthorization of the Reclamation States 
Emergency Drought Relief Act of 1991''.
    The Family Farm Alliance is a grassroots organization of family 
farmers, ranchers, irrigation districts and allied industries in 17 
Western states. Many of our members throughout this area have benefited 
from the Drought Relief Act in the past to help drill wells, install 
temporary pipelines and haul water during drought periods.
    The Drought Relief Act provides the Bureau of Reclamation with the 
tools it needs to help states plan for and mitigate the impacts of 
droughts. With historic drought conditions on the Colorado River, and 
grim water challenges facing our members in California, Idaho, Oregon 
and elsewhere, the Alliance believes programs like this will help water 
managers during this time of drought.
    Thank you for your work on this legislation. If we can be of any 
assistance, please do not hesitate to call me at 541-892-6244 or 
[email protected].
            Sincerely,
                                                Dan Keppen,
                                                Executive Director.

                                 ______
                                 

                      Western States Water Council
                           San Antonio, Texas
                            October 12, 2012
                            Position No. 347
position of the western states water council regarding reauthorization 
         of the reclamation states emergency drought relief act
    WHEREAS, the Western States Water Council is a policy advisory body 
representing eighteen states affiliated with the Western Governors' 
Association; and
    WHEREAS, since 1976, the Council has been actively involved in 
national drought preparedness, planning and response, as well as 
related policy development and implementation; and
    WHEREAS, in 2012 severe to extreme drought conditions exist 
throughout much of the western and central parts of the U.S., covering 
an area amounting to about two-thirds of the Nation; and
    WHEREAS, drought has been, is, and will be an ongoing fact of life 
in the relatively arid West; and
    WHEREAS, the Reclamation States Emergency Drought Relief Act of 
1991 (43 U.S.C. 2214(c)) and subsequent reauthorization through Fiscal 
Year 2012 has expired; and
    WHEREAS, Title I provided the Bureau of Reclamation with authority 
for construction, management, and conservation measures to alleviate 
the adverse impacts of drought, including mitigation of fish and 
wildlife impacts, and provided Reclamation with the flexibility to meet 
contractual water deliveries by allowing acquisition of water to meet 
requirements under the Endangered Species Act, benefiting contractors 
at a time when they are financially challenged; and
    WHEREAS, additionally, Title I authorized Reclamation to 
participate in water banks established under state law, facilitate 
water acquisitions between willing buyers and willing sellers, acquire 
conserved water for use under temporary contracts, make facilities 
available for storage and conveyance of project and non-project water, 
make project and non-project water available for nonproject uses, and 
acquire water for fish and wildlife purposes on a non-reimbursable 
basis; and
    WHEREAS, Title I also allowed Reclamation, as a ``last resort,'' to 
help smaller, financially strapped towns, counties, and tribes without 
the financial capability to deal with the impacts of drought; and
    WHEREAS, Title II authorized Reclamation to prepare or participate 
in the preparation of cooperative drought contingency plans for the 
prevention or mitigation of adverse effects of drought conditions; and
    WHEREAS, Title II authorized Reclamation to conduct studies to 
identify opportunities to conserve, augment, and make more efficient 
use of water supplies available to Federal Reclamation projects and 
Indian water resource developments in order to be prepared for and 
better respond to drought conditions; and
    WHEREAS, Title II authorized the Secretary of the Interior to study 
establishment of a Reclamation Drought Response Fund to be available 
for defraying those expenses which the Secretary determined necessary 
to implement drought plans prepared under the Act, and to make loans 
for nonstructural and minor structural activities for the prevention or 
mitigation of the adverse effects of drought; and
    WHEREAS, there is a continuing need for authority allowing 
Reclamation the flexibility to continue delivering water to meet 
authorized project purposes, meet environmental requirements, respect 
state water rights, work with all stakeholders, and provide leadership, 
innovation, and assistance; and
    WHEREAS, proposed legislative action would reauthorize the Act 
through 2017, and raise the limit on authorized appropriations.
    NOW THEREFORE BE IT RESOLVED, that the Western States Water Council 
strongly supports legislation to reauthorize the Reclamation States 
Emergency Drought Relief Act.

                                 ______
                                 
    Mrs. Napolitano. And my last plea is that I would 
respectfully request that we wait to move any of these bills 
until our government is open and we can hear from the agency 
that is supposed to be here.
    Thank you, Mr. Chair. And I yield back.
    Mr. McClintock. Thank you. Before we proceed the Chair 
would ask unanimous consent that Mr. Bishop of Utah and Mr. 
Amodei of Nevada be allowed to sit with the subcommittee and 
participate in the hearing. Hearing no objection, so ordered.
    It is customary for us to recognize any other members who 
wish to make opening statements. And the Chair is now pleased 
to recognize Mr. Tipton of Colorado for 5 minutes.

  STATEMENT OF THE HON. SCOTT R. TIPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF COLORADO

    Mr. Tipton. Thank you, Chairman McClintock, for convening 
today's hearing, and thank you for your support and engagement 
working with me on this critical issue. I would also like to 
thank Mr. Bishop, Mr. Amodei, Mrs. Lummis, Mr. Gosar, Mr. 
Simpson, Mr. Coffman, and Mr. Polis, who have all joined in 
this bipartisan effort and continue to work with me to 
safeguard Western water rights. Finally, I want to thank David 
Corbin and Glenn Porzak from Colorado and Randy Parker from 
Utah for making the trip to DC to be able to testify on behalf 
of the Water Rights Protection Act.
    Recent Federal attempts to manipulate Federal permit lease 
and land management process to circumvent long-established 
State water law and hijack privately held water rights have 
sounded the alarm for all non-Federal water users that rely on 
these water rights for their livelihood. The most recent case 
of the Federal Government's overreach and infringement on 
private property rights, which we will discuss today in the 
hearing, involves the U.S. Forest Service attempt to require 
the transfer of privately held water rights to the Federal 
Government as a permit condition on our National Forest System 
lands.
    There is no compensation for the transfer of these 
privately held water rights, despite the fact that many 
stakeholders have invested millions of their own capital in 
developing them. This Forest Service permit condition has 
already hurt a number of stakeholders in my home State of 
Colorado, including the Powder Horn ski area in Grand Junction 
and the Breckenridge ski area resort. Despite having been 
excellent stewards of the environment and their water rights, 
the Forest Service has demanded the relinquishment of State 
grant of water rights from these ski areas in order to continue 
their operations.
    These same nefarious tactics have been used in Utah, 
Nevada, and other Western States where agencies have required 
surrender of possession of water rights in exchange for 
approving the conditional use of grazing allotments. This 
Federal water grab has broad implications that have begun to 
extend beyond recreation and farming and ranching communities 
and are now threatening municipalities and other businesses.
    To add insult to injury, the Forest Service claims, 
remarkably with a straight face, that it is implementing these 
Federal agency permit conditions to prevent water rights from 
being sold off and/or used improperly. However, according to 
the Chief Forest Service Officer, Tom Tidwell, comments made in 
this very committee, there have never been any cases where 
privately held rights have been used improperly. Furthermore, 
the language of the Forest Service's water clause offers no 
guarantee that the Forest Service could not divert water to 
other locations or direct water for other purposes altogether.
    As a result of the efforts that began in October of 2011 
and encompass testimony from several hearings, conversations, 
and with numerous stakeholders across Colorado and the West, 
close collaboration with my friends on this committee, I 
introduce the bipartisan Water Rights Protection Act. This 
legislation provides critical protection for water rights and 
holders from Federal takings by ensuring that the Federal 
Government agencies cannot extort private property rights 
through unevenhanded negotiations.
    The Water Rights Protection Act offers a sensible approach 
that preserves water rights and the ability to be able to 
develop water requisite to living in the arid West. This is 
without interfering with water allocations for non-Federal 
parties or allocations that protect the environment cherished 
by all Westerners.
    As could be expected of the West-wide legislation that 
seeks to protect all water users from the relentless efforts of 
the Federal Government to extort non-Federal water rights, this 
bill is work in progress. I look forward to continuing to work 
with my colleagues from other Western States to ensure that no 
State-recognized water right goes unprotected from the class 
actions this bill prohibits.
    To this end, the brief two-page bill prohibits Federal 
agencies from pilfering water rights through the use of 
permits, leases, and other land management arrangements which 
would otherwise have to pay just compensation under the Fifth 
Amendment of the Constitution. The bill also prohibits Federal 
land management agencies from forcing water users to apply or 
acquire rights for the United States rather than for the water 
users themselves.
    Finally, this commonsense legislation provides certainty by 
upholding the longstanding Federal deference to State water law 
on which countless water users rely. The Water Rights 
Protection Act has already received endorsements of the 
American Farm Bureau Federation, the Associated Governments of 
Northwest Colorado, the California Ski Area Association, CLUB 
20, the Colorado River Water Conservation District, Colorado 
Ski Country USA, the Colorado Water Congress, the National 
Cattlemen's Beef Association, National Ski Areas Association, 
the Pacific Northwest Ski Area Association, and the 
Southwestern Water Conservation District. Mr. Chairman, I would 
like to be able to submit for the record their letters of 
support.
    Mr. McClintock. Without objection.
    Mr. Tipton. Thank you, Mr. Chairman.
    And further, we just received a letter of support that came 
in from the Family Farm Alliance for the record as well. Their 
testimony supports my bill and indicates that more water 
storage is a long-term solution to the drought.
    Mr. McClintock. Also without objection.
    [The letters submitted for the record by Mr. Tipton 
follow:]
       Letters Submitted for the Record by Representative Tipton
                   American Farm Bureau Federation,
                                      Washington, DC 20024,
                                                   October 4, 2013.
Hon. Scott Tipton,
Hon. Jared Polis,
House Subcommittee on Water and Power,
Washington, DC 20515.

    Dear Representatives Tipton and Polis:

    On behalf of more than 6 million Farm Bureau member families across 
the United States, I commend you for your introduction of H.R. 3189, 
the Water Rights Protection Act. The American Farm Bureau Federation 
endorses the Tipton-Polis bill, and will work closely with you to 
broaden bipartisan support for this measure and to gain its swift 
consideration and approval by the House of Representatives.
    H.R. 3189 grants no new rights to any party, nor does it in any way 
infringe on existing rights of individuals, states or the Federal 
Government. This legislation simply reaffirms what has been existing 
law for generations and which is expressed in numerous places in 
Federal law, including the Mining Act of 1866; the 1897 Organic Act 
establishing the U.S. Forest Service; the Taylor Grazing Act; and the 
Federal Land Policy and Management Act of 1976.
    There is no provision in Federal law authorizing or permitting the 
Forest Service or the Bureau of Land Management to compel owners of 
lawfully acquired water rights to surrender those rights or to acquire 
them in the name of the United States. Thus, H.R. 3189 does nothing 
more than assure holders of BLM or Forest Service permits that their 
lawfully acquired rights will not be abridged and that Federal agencies 
may not unlawfully use the permit process to acquire rights they do not 
currently possess.
    We look forward to working with you on this important legislation 
and again commend you for your leadership in this important area.
            Sincerely,
                                              Bob Stallman,
                                                         President.

                                 ______
                                 

              ASSOCIATED GOVERNMENTS OF NORTHWEST COLORADO
    resolution to support the water rights protection act h.r. 3189
    WHEREAS, The United States Forest Service (USFS) recently attempted 
to condition the issuance of a use permit on the permit applicant's 
transfer of privately held water rights to the USFS; and
    WHEREAS, Federal land management agencies are using coercion to 
acquire private water rights by requiring that water users seeking to 
operate on Federal land apply for water rights under the name of the 
United States rather than the name of the purchaser; and
    WHEREAS, These and related actions constitute a Federal taking of 
private property without just compensation, in violation of the Takings 
Clause of the Fifth Amendment of the United States Constitution; and
    WHEREAS, These actions are also in violation of long established 
state water laws; and
    WHEREAS, These actions have already had a negative impact on local 
ski businesses, which are important contributors to our regional 
economy; and
    WHEREAS, Many municipalities and agricultural operations in our 
region have water storage facilities similar to those owned by the ski 
resorts, and could therefore be subject to a similar taking; and
    WHEREAS, These and similar actions could be used against other 
important industries in our region, including, but not limited to, 
agriculture and energy development; and
    WHEREAS, The majority of Colorado's absolute and conditional water 
rights originate on federally controlled land, and could be subject to 
a similar taking at any point in the future; and
    WHEREAS, The Water Rights Protection Act, H.R. 3189, would protect 
communities, businesses, family farms, and other stakeholders in 
northwest Colorado that rely on privately held water rights from having 
these property rights taken by any agency of the Federal Government,
    BE IT THEREFORE RESOLVED, that the Associated Governments of 
Northwest Colorado (AGNC) fully support H.R. 3189, the Water Rights 
Protection Act; and
    BE IT FURTHER RESOLVED, that the AGNC will furnish a letter to any 
and all interested parties, attesting to our support of this Act.

                                 ______
                                 

               California Ski Industry Association,
                                           Mill Valley, CA,
                                                   October 4, 2013.
Hon. Doc Hastings, Chairman,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: Support for H.R. 3189

    Dear Chairman Hastings:

    On behalf of the members and directors of the California Ski 
Industry Association I am writing to add our support to H.R. 3189, the 
Water Rights Protection Act.
    This narrowly focused bill is designed to resolve an unfair 
regulation requiring Forest Service permittees to cede, without 
compensation, their water rights to the agency. Nineteen of 
California's twenty-six ski areas operate on Forest Service lands. We 
have a long history of working with the agency and will continue to do 
so in the future. However, our winter sports facilities on Federal 
lands are strongly opposed to the clauses that would require California 
permittees to cede their valuable water rights to the agency without 
compensation, Such clauses represent a taking and carry far-reaching 
legal and economic implications, not only for our industry but also for 
all other permittees operating on Forest Service lands.
    A recent study by San Francisco State University reported that 
California's winter sports resorts generate $1.3 billion in economic 
activity and over 16,000 Jobs in our mountain communities. Our resorts 
have millions of dollars invested in their water rights. In many cases 
the source of these rights are located outside of the permit 
boundaries.
    We appreciate your scheduling a hearing on H.R. 3189 and thank you 
and the sponsors of this important legislation.
            Sincerely,
                                               Bob Roberts,
                                                   President & CEO.

                                 ______
                                 

                                           CLUB 20,
                                  Grand Junction, CO 81502,
                                                   October 8, 2013.
Hon. Scott Tipton,
House Subcommittee on Water and Power,
218 Cannon House Office Building,
Washington, DC 20515.

Re: CLUB 20 strongly urges Congressional support and passage of H.R. 
        3189, known as the ``Water Rights Protection Act''

    Dear Congressman Tipton:

    CLUB 20 is a 60-year-old coalition of businesses, individuals and 
local governments with members representing 22 counties west of the 
Continental Divide in Colorado. Our members have been coming together 
over the past six decades to discuss matters of common concern to 
Western Colorado communities and citizens. Water has often been a focal 
point for CLUB 20 members as there are far reaching implications to 
many of the industries, communities and residents on the West Slope 
regarding privately held water rights in the region.
    Water rights are considered private property under Colorado water 
law and are managed under a strict system that has served the state 
over time. For many years, CLUB 20 policy has opposed, ``. . . any 
Federal requirement that permittees assign water rights to the United 
States in order to obtain, renew or modify Federal permits.'' CLUB 20 
understands that the McCarran Amendment requires the Federal 
Government, when requested, to adjudicate any water rights it requires 
under the substantive and procedural elements of state water law within 
the state of the desired rights.
    Our members have openly opposed and. continue to oppose the efforts 
of the U.S. Forest Service (USFS) to unilaterally require ski areas or 
agriculture producers to turn over their privately held water rights to 
the USFS as a condition of obtaining, modifying or renewing a permit to 
conduct ski area activities or maintain infrastructures to convey water 
on USFS lands. We further oppose any such provision or ruling that may 
apply to other private water rights with regard to, natural resource 
development interests or other domestic water interests.
    The explanation offered by the USFS for the ``taking'' of these 
privately held water rights, often developed at great expense to the 
owner, is that they wish to maintain the designated use of the water 
for the permit. We find that explanation disingenuous for the following 
reasons:

  1.  Requiring that the USFS be named the owner of valid, existing 
            water rights is taking a private property right without 
            compensation and appears to be a violation of the Fifth 
            Amendment to the U.S. Constitution.
  2.  It would appear that Federal ownership of these water rights 
            could be used to disallow future use of the area as a ski 
            area or other designated enterprise because the agency that 
            holds title to the water rights could deny permits based on 
            their withholding of those same water rights.
  3.  Once promulgated by the USFS regarding ski area and agriculture 
            water rights, similar decisions could be made regarding 
            grazing rights, mining rights, milling rights, energy 
            rights even municipal water rights.
  4.  This effort by the Federal Government seeks to undermine states' 
            rights with regard to water management, which our members 
            find unacceptable.

    Ski area and agriculture operators invest significant amounts of 
capital to develop their operations; in order to attract the investment 
capital necessary, they must show that they have adequate ability to 
construct and operate the facility. Without demonstrating that they 
have adequate water rights, attracting capital will be difficult if not 
impossible. Further, it has been shown time after time that Federal 
regulations can be, and are, routinely modified for one reason or 
another creating uncertainty for developers of all sorts on public 
lands. Once held in the name of the USFS, there is no guarantee that 
these water rights won't be redirected, withheld or otherwise made 
unavailable to those who made significant investments in developing 
those rights.
    We support the protections inherent in H.R. 3186 and urge passage 
of this or similar legislation which accomplishes the same purpose. 
Thank you for addressing this critical issue through the legislative 
process; we look forward to working with you to see this bill through 
the process.
            Sincerely,
                                           Bonnie Petersen,
                                                Executive Director.

                                 ______
                                 

                           Colorado River District,
                                Glenwood Springs, CO 81602,
                                                   October 9, 2013.
Hon. Scott Tipton,
House Subcommittee on Water and Power,
218 Cannon House Office Building,
Washington, DC 20515.

Re: H.R. 3189

    Dear Congressman Tipton:

    The Colorado River Water Conservation District sincerely 
appreciates your leadership in Colorado and Western water matters. H.R. 
3189 is just one more example. The Colorado River District will 
recommend that its Board support H.R. 3189 with the consensus 
amendments developed by your staff, the national ski areas and the 
River District.
    With the clarifying amendments, H.R. 3189 provides responsible side 
boards to agency actions when permitting allowable activities and uses 
on Federal lands. It prohibits the transfer of ownership of privately 
held water rights in exchange for required permits. We are also pleased 
that your staff will prepare a sponsor's statement to confirm that the 
bill will not change existing law that allows reasonable permit 
conditions that can protect both the natural environment and present 
and future downstream water users dependent on the forest for critical 
water supplies.
    I want to express my genuine appreciation for your and your staff's 
willingness to work with us on language that accomplishes our mutual 
goals of protecting private property interests in western water while 
maintaining the authority to condition permits to ensure responsible 
exercise of those rights.
            Sincerely,
                                              R. Eric Kuhn,
                                                   General Manager.

                                 ______
                                 

                          Colorado Ski Country USA,
                                                Denver, CO,
                                                   October 4, 2013.
Hon. Doc Hastings, Chairman,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Hastings:

    I am writing on behalf of Colorado Ski Country USA (CSCUSA), the 
industry association and global voice of skiing and snowboarding in 
Colorado, in support of H.R. 3189, the Water Rights Protection Act. 
CSCUSA represents 20 ski areas in Colorado that operate on National 
Forest System lands under a special use permit from the U.S. Forest 
Service. These public land resorts hosted over 6.3 million skier visits 
in Colorado in the 2012/13 ski season alone, and skiing and 
snowboarding constitute a $3.0 billion annual economic impact to our 
state.
    CSCUSA supports H.R. 3189 because it would prohibit the U.S. Forest 
Service from requiring our resorts to transfer valuable water rights to 
the Forest Service as a condition of receiving a permit, or to apply 
for water rights in the name of the United States, without 
compensation.
    While the Forest Service insists that such actions would be 
intended only to maintain the long-run viability of the resorts as ski 
and snowboard areas, requiring resorts to transfer the water rights 
they need to operate so as to prevent their sale to a third party is a 
solution in search of a problem. Moreover, required transfers of water 
rights that are critical to ski area operations would politicize their 
use, with each change in administration changing priorities for water 
use.
    Furthermore, requiring transfer of valuable water rights to the NFS 
as a condition of receiving a permit raises serious Fifth Amendment 
concerns. Our member resorts' water rights were acquired and developed 
at great expense pursuant to Colorado law, and in some cases predate 
the Forest Service itself. If the NFS wants to secure its own water 
rights, it should buy them on Colorado's well-regulated water market 
like everyone else.
    Thank you for scheduling a hearing on H.R. 3189 and for your 
leadership on this issue. It means a great deal to CSCUSA and our 
member ski resorts operating across Colorado on NFS lands.
            Sincerely,
                                              Melanie Mills
                                                 President and CEO.

                                 ______
                                 

                           Colorado Water Congress,
                                          Denver, CO 80203,
                                                   October 9, 2013.
Hon. Scott Tipton,
House Subcommittee on Water and Power,
Washington, DC 20515.

Re: Colorado Water Congress Supports H.R. 3189, Water Rights Protection 
        Act

    Dear Congressman Tipton:

    The Colorado Water Congress is pleased to see the introduction of 
and hearing for Water Rights Protection Act (WRPA), H.R. 3189. The 
bipartisan bill was introduced last week. This legislation, with the 
consensus amendments developed by your office, the national ski areas 
and Colorado water users would prohibit the conditioning of any permit, 
lease, or other use agreement on the transfer or surrender of any water 
right to the United States by the Secretaries of Interior or 
Agriculture.
    The issue is of particular importance to Colorado's ski areas that 
are located in national forests. The U.S. Forest Service, through a 
2012 Interim Directive 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 National Ski Areas Association sued the Forest Service alleging 
that the directive amounts to a taking of private property rights 
without due compensation and asked for a declaration that the Forest 
Service cannot condition a ski area special use permit on the 
assignment or severance of water rights. In December 2012, the Federal 
district court entered an injunction prohibiting the Forest Service 
from enforcing the directive. The court found that the Forest Service 
violated Federal procedural laws in adopting the directive.
    This matter is of importance to the Colorado legislature that as 
recently as late August 2013 continues to investigate Forest Service 
activities in this regard. It is unfortunate that Colorado water users 
have to had to pursue both litigation and legislation to protect our 
water rights from takings by our Federal Government.
    We hope that passage of H.R. 3189 will put us on the right path 
toward a permanent resolution. We urge the House to pass this 
legislation without delay.
    The Colorado Water Congress supports H.R. 3189. Thank you for 
sponsoring the bill.
            Sincerely,
                                            Douglas Kemper,
                                                Executive Director.

                                 ______
                                 

                              Family Farm Alliance,
                                   Klamath Falls, OR 97601,
                                                   October 8, 2013.
Hon. Scott Tipton,
House Subcommittee on Water and Power,
218 Cannon House Office Building,
Washington, DC 20515.

Re: Support for ``Water Rights Protection Act'' (H.R. 3189)

    Dear Congressman Tipton:

    On behalf of the Family Farm Alliance, this letter expresses our 
formal support for your ``Water Rights Protection Act'' (H.R. 3189). 
This important legislation would prohibit the conditioning of any 
Federal permit, lease, or other use agreement on the transfer, 
relinquishment, or other impairment of any water right to the United 
States by the Secretaries of the Interior and Agriculture.
    The Alliance is a grassroots organization of family farmers, 
ranchers, irrigation districts and allied industries in 16 Western 
states. The Alliance is focused on one mission: To ensure the 
availability of reliable, affordable irrigation water supplies to 
Western farmers and ranchers. The Alliance has long advocated that 
solutions to conflicts over the allocation and use of water resources 
must begin with recognition of the traditional deference to state water 
allocation systems. Federal agencies must recognize and respect state-
based water rights and develop their management decisions according to 
state law and abide by state decrees defining both Federal and non-
Federal rights. Federal agencies need to work within the framework of 
existing prior appropriation systems instead of attempting to fashion 
solutions which circumvent current water rights allocation and 
administration schemes.
    Unfortunately, in recent years, some agencies within the Federal 
Government have repeatedly demonstrated they will not abide by this 
philosophy. These efforts constitute a Federal overreach and a 
violation of private property rights.
    For example, the U.S. Forest Service (USFS) has attempted to 
implement a permit condition that requires the transfer of privately 
held water rights to the Federal Government as a permit condition on 
National Forest System lands. There is no compensation for the transfer 
of these privately held rights despite the fact that many stakeholders 
have invested their own capital in developing the rights. Additionally, 
Federal land management agencies are leveraging Western water users in 
an effort to acquire additional water supplies for the Federal 
Government by requiring water users to apply for their rights under 
state law in the name of the United States rather than for themselves. 
USFS continues to take private water rights hostage through their 
permit conditions, despite objections from elected officials, business 
owners, private property advocates and a U.S. District Court ruling.
    Our farmers and ranchers rely on their vested water rights to 
secure operating loans, as well as irrigate crops and water livestock. 
Federal agencies should not be able to leverage those water rights 
against farming and ranching families who have long depended upon 
Federal permits and leases to support actions like grazing.
    The Water Rights Protection Act would protect communities, 
businesses, recreation opportunities, farmers and ranchers as well as 
other individuals that rely on privately held water rights for their 
livelihood from Federal takings. It would do so by prohibiting Federal 
agencies from extorting water rights through the use of permits, 
leases, and other land management arrangements, for which it would 
otherwise have to pay just compensation under the Fifth Amendment of 
the Constitution. The Water Rights Protection Act protects privately 
held water rights, prohibits Federal takings, and upholds state water 
law by:

     Prohibiting 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;
     Prohibiting the Secretary of the Interior and the 
            Secretary of Agriculture from requiring water users to 
            acquire rights for the United States rather than for the 
            water user themselves;
     Upholds longstanding Federal deference to state water law;
     Has no cost to the American taxpayer.

    Some Family Farm Alliance members in Arizona and Colorado have 
expressed some concerns with language contained in the original bill. 
We understand that they are working with you and Rep. Gosar to modify 
the language so that changes can be easily made by the Water and Power 
Subcommittee. We support H.R. 3189 with those changes.
    Thank you for this opportunity to provide support for your bill, 
which is very important to the family farmers and ranchers of our 
membership. If you have any questions about this letter, I encourage 
you or your staff to contact me at (541)-892-6244.
            Sincerely,
                                                Dan Keppen,
                                                Executive Director.

                                 ______
                                 

             National Cattlemen's Beef Association,
                                      Washington, DC 20004,
                                                   October 3, 2013.
Hon. Doc Hastings, Chairman,
Hon. Peter DeFazio, Ranking Member,
House Natural Resources Committee,
Washington, DC 20515.

Re: Support of the Water Rights Protection Act (H.R. 3189)

    Dear Chairman Hastings and Ranking Member DeFazio:

    The Public Lands Council (PLC) and the National Cattlemen's Beef 
Association (NCBA) strongly support the Water Rights Protection Act 
(WRPA) (H.R. 3189). PLC is the only national organization dedicated 
solely to representing the roughly 22,000 ranchers who operate on 
Federal lands, some of which are U.S. Forest Service (USFS) lands. NCBA 
is the beef industry's largest and oldest national marketing and trade 
association, representing American cattlemen and women who provide much 
of the nation's supply of food and own or manage a large portion of 
America's private property. Many of our members also hold private water 
rights on Federal lands, which serve as an integral part of their 
operations; thus, these water rights keep our members in business and 
rural communities thriving. However, landowners face an unprecedented 
threat to the future of their water rights on lands managed by the 
USFS.
    The USFS has been notorious for violating private property rights, 
as they have recently attempted to require the transfer of privately 
owned water rights to the Federal Government. The USFS has not provided 
adequate compensation as required by Article V of the Constitution; 
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. Furthermore, the USFS has repeatedly ignored 
established state water laws in order to perform these takes, which 
amounts to a vast overreach by the Federal Government.
    H.R. 3189, introduced by Congressmen: Scott Tipton (R-Colo.), Mark 
Amodei (R-Nev.), Rob Bishop (R-Utah), Tom McClintock (R-Calif.), and 
Jared Polis (D-Colo.) comes as a means to combat the recent directive 
that allows the USFS to execute the seizure of these water rights 
without just compensation. The language in the directive is applicable 
to ski areas specifically; however, this issue is a threat to all water 
users, including ranchers, as they depend on these rights to keep their 
business viable.
    This legislation would prohibit the Secretary of the Interior and 
the Secretary of Agriculture from, requiring the transfer of water 
rights without adequate compensation. Additionally, the bill supports 
long-established state water laws, clarifying that the Federal 
Government does not have jurisdiction.
    We strongly encourage the Natural Resource Committee to support 
this important legislation. We thank you for your attention to this 
crucial issue, and for supporting our members as they continue to be an 
essential part of rural communities and stewards of our public lands.
            Sincerely,
                                              Scott George,
                                                    NCBA President.

                                                 Brice Lee,
                                                     PLC President.

                                 ______
                                 

                    National Ski Areas Association,
                                              Lakewood, CO,
                                                   October 4, 2013.
Hon. Doc Hastings, Chairman,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: Support for H.R. 3189

    Dear Chairman Hastings:

    I am writing on behalf of the National Ski Areas Association (NSAA) 
in support of H.R. 3189, the Water Rights Protection Act. NSAA 
represents 121 ski areas in the U.S. that operate on National Forest 
System lands under a special use permit from the U.S. Forest Service. 
These public land resorts accommodate the majority of skier visits in 
the U.S. and are located in the states of Arizona, California, 
Colorado, Idaho, Montana, Nevada, New Hampshire, New Mexico, Oregon, 
Utah, Vermont, Washington and Wyoming. The ski industry generates $12.2 
billion in economic activity annually and is a major employer in rural 
economies. NSAA would like to thank the lead sponsors of this bill, 
Representatives Tipton, Polis, Amodei and McClintock, for their 
leadership on this critical issue for ski areas.
    NSAA supports H.R. 3189 because it would prohibit the Forest 
Service from issuing permit clauses that require ski areas to transfer 
ownership of valuable water rights to the United States, or apply for 
water rights in the name of the United States, without compensation. 
Water is crucial to ski area operations. Ski areas collectively hold 
water rights worth over a hundred million dollars. We developed these 
rights through our own effort and expense, and we have no intention of 
surrendering ownership of these water rights to the U.S. without 
compensation.
    This bill would prevent the Federal Government from making an end 
run around state law by merely taking water rights that it does not own 
through its permitting authority. It would not only protect ski area 
water rights--it would protect any water rights owners that operate on 
Federal land.
    In closing, we would like to thank you for scheduling a hearing on 
H.R. 3189 and for your leadership on this issue. It means a great deal 
to NSAA and all ski areas across the country operating on NFS lands.
            Sincerely,
                                             Michael Berry,
                                                         President.

                                 ______
                                 

           Pacific Northwest Ski Areas Association,
                                       La Conner, WA 98257,
                                                September 26, 2013.
Hon. Doc Hastings, Chairman,
House Natural Resources Committee,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: H.R. 3189/Water Rights Protection Act

    Dear Chairman Hastings:

    I am writing on behalf of ski areas in the Pacific Northwest 
operating on National Forest System lands. PNSAA represents 34 ski 
resorts in Washington, Oregon, Alaska, Idaho, Montana and California. 
Of the 34 members 30 operate on public land.
    PNSAA supports H.R. 3189/Water Rights Protection Act that would 
prohibit the Forest Service from issuing permit clauses that require 
ski areas to transfer ownership of valuable water rights to the United 
States without compensation. Water is crucial to ski area operations. 
Ski areas collectively hold water rights worth over a hundred million 
dollars. We developed these rights through our own effort and expense, 
and we have no intention of surrendering ownership of these water 
rights to the U.S. without compensation.
    We would like to thank you for your leadership on protecting ski 
area water rights. It means a great deal to PNSAA and all ski areas 
across the country operating on NFS lands.
            Sincerely,
                                           John A. Gifford,
                                                         President.

                                 ______
                                 

      The Southwestern Water Conservation District,
                                         Durango, CO 81301,
                                                  October 10, 2013.
Hon. Scott Tipton,
House Subcommittee on Water and Power,
218 Cannon House Office Building,
Washington, DC 20515.

    Dear Congressman Tipton:

    On behalf of the Southwestern Water Conservation District 
(``District''), we thank you for sponsoring the Water Rights Protection 
Act, H.R. 3189. This vital bipartisan bill would prohibit the 
conditioning of any permit, lease, or other use agreement on the 
transfer, relinquishment, or other impairment of any water right to the 
United States by the Secretaries of the Interior or Agriculture.
    The Southwestern Water Conservation District (SWCD) was established 
by the Colorado legislature to conserve and protect the waters of the 
San Juan and Dolores Rivers and their tributaries. Therefore, we see it 
as our statutory obligation to safeguard privately held water rights in 
the region and uphold the primacy of state water law, as H.R. 3189 
would do.
    The U.S. Forest Service has recently attempted to require the 
transfer of privately held water rights to the Federal Government as a 
condition of acquiring a National Forest System lands permit. The 
District considers such requirements tantamount to a Federal taking, 
and applauds H.R. 3189's prohibition of such conditions,
    The District encourages the House of Representatives to pass this 
legislation without delay.
    We thank you for introducing the Water Rights Protection Act and 
for your leadership on this issue of great consequence.
            Sincerely,
                                           Bruce Whitehead,
                                                Executive Director.

                                 ______
                                 

    Mr. Tipton. My hope is that today's hearing further 
strengthens the bipartisan efforts to be able to protect local 
water rights from the Federal Government and their overreach 
and takings. I appreciate the opportunity to discuss this 
important legislation, and I, along with the Ranking Member, do 
look forward to the Federal Government trying to justify taking 
Western water rights.
    With that, Mr. Chairman, I yield back.
    Mr. McClintock. Thank you. The Chair is now pleased to 
recognize Mr. DeFazio for 5 minutes.

  STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. DeFazio. Thank you, Mr. Chairman. Mr. Chairman, thanks 
for the hearing today on 3176. I appreciated being put on the 
agenda. I want to thank the Western States Water Council for 
coming to DC to testify, especially at this odd time of 
government shutdown.
    It does two simple things. It reauthorizes the 1991 
Reclamation States Emergency Act for an additional 5 years, 
until 2018. It gives BuRec the flexibility to expedite water 
transfers between projects, move nonproject water on Federal 
facilities, construct temporary structures and wells during 
times of drought. These are not long-term solutions, but they 
are sometimes required to mitigate these episodic events of 
drought.
    It also authorizes Reclamation to assist in drought 
contingency planning with all 50 States, tribes, and 
territories. The Drought Relief Act is by no means a solution, 
a total solution, but I believe it is an authority that is 
vital to BuRec when they are turned to as a last resort in 
times of emergency. But the second authority here, drought 
contingency planning, could also go to some of the issues 
raised earlier about storage and other things.
    Second, we are hearing 3189. Obviously, whenever you begin 
to discuss water rights and water law in the West it is 
incredibly emotional, it is something that is unbelievably 
complicated within and across State borders and not easily 
understood. I don't know what the Forest Service was attempting 
to do in its first directive, which I believe was overly broad 
and didn't seem to distinguish between water rights which might 
be actual, existing within the leasehold or the ski area itself 
that pertained to the Federal land or those which were acquired 
from offsite by the operator. It was thrown out by the courts 
mostly on procedural grounds, but I think in the interim they 
did hear concerns, they were in the process of developing a new 
directive, which unfortunately we won't be able to hear about 
today, and it was supposed to come out next month for a period 
of public comment, and that probably will be allowed.
    I look forward to an opportunity to have that discussion. I 
am concerned that the legislation as drafted would seem to go 
far beyond protecting the rights of the ski operators who are 
probably the object of this unknown new directive, but we don't 
know that exactly either, but it applies to all actions 
requiring a permit on Federal lands. You know, what does that 
mean for grazing? I don't quite understand the full 
implications of that. What would it mean for oil and gas 
development? Fracking takes a lot of water. There are some very 
serious issues there. There is fracking, a tremendous amount of 
fracking on private land, but there are also applications 
pending in areas of Federal land.
    So I think it could go very, very far beyond and have 
unintended consequences given the way it is broadly written. I 
appreciate that the author said it was a work in progress, and 
I think there are legitimate rights to be protected here and 
want to work to protect those, but I don't want to overreach 
either. So hopefully we won't move forward until we have an 
opportunity with a restored government to have the Forest 
Service come in and explain its new directive and see if that 
doesn't do what we think it needs to do, then take more 
targeted action.
    Thank you, Mr. Chairman.
    Mr. McClintock. Thank you.
    [The prepared statement of Mr. DeFazio follows:]
Prepared Statement of Ranking Member Peter DeFazio, a Representative in 
                   Congress from the State of Oregon
    Good afternoon and thank you for including H.R. 3176 as part of 
today's agenda. I especially would like to thank the Western States 
Water Council for coming to DC to testify on this legislation, 
especially in light of the government shutdown.
    My legislation reauthorizes the 1991 Reclamation States Emergency 
Act for an additional 5 years until 2018. This provides the Bureau 
Reclamation with the needed flexibility to expedite water transfers, 
move non-project water on Federal facilities, and construct temporary 
structures and wells during times of drought. This Act also authorizes 
Reclamation to assist in drought contingency planning with all 50 
States, tribes, and territories. The Drought Relief Act is by no means 
a silver bullet to drought. This is the authority Reclamation turns to 
as a last resort during times of emergency.
    At the time the Act was originally authorized in 1992, California 
was experiencing its sixth consecutive year of drought. Unfortunately, 
we are facing the same dry conditions as before, except that our 
droughts are more prolonged and the demands on the resource have only 
increased. In Oregon, nearly $10 million dollars was used for 
activities in the Klamath Region in 2010. Predictions for next year's 
water year in Klamath Basin and across the west are bleak, yet the 
authorization for this program has already expired. H.R. 3176 simply 
provides Reclamation with one more tool to help our communities during 
times of drought.
    I come from a region where water issues are complicated and 
complex. Water can also be expensive. H.R. 3189, legislation introduced 
by Rep. Tipton, touches at the heart of these issues. Ski Areas are 
concerned about the Forest Service's Directive to transfer their water 
rights to the Federal Government. While at the same time, the Forest 
Service is concerned about their ability to manage the land if the ski 
resorts were to sell their rights.
    A recent court ruling found that the Forest Service did not follow 
the proper administrative procedures prior to issuing the directive, 
and threw out the 2012 Directive. The Forest Service is in the process 
of revising its directives and receiving comments, which prior to the 
shutdown, would have been released next month. The public would then 
have 60 days prior to the release to comment on the new directives. 
This is an issue that seems resolvable without the need for 
legislation.
    Yet the proposed legislative solution goes above and beyond the 
disagreement between the Forest Service and the Ski Resorts, and 
overreaches to apply to all actions that require a permit on Federal 
lands. The consequences of this legislation on grazing practices and 
oil and gas development are unknown. And due to Congress's own inaction 
to reopen the Federal Government, the Administration is not here to 
testify on the impacts of this legislation.
    I know there are unanswered questions for both bills, including for 
the Drought Relief Act. We have requested this information from the 
Department and were not able to get prior to the shutdown. As a result, 
we do not have all the information available to properly consider these 
bills and will be submitting questions for the record.
    It is our responsibility to ensure that legislation receives the 
proper vetting to ensure that they are of the best interest of the 
public. Part of the process is feedback from our Federal partners. We 
cannot do this when nearly 60,000 Department of Interior employees 
remain furloughed because of the shutdown.
    We must stop fiddling while Rome burns. The answers we need for 
this hearing demand that the government be reopened.

                                 ______
                                 

    Mr. McClintock. The Chair is now pleased to recognize Mr. 
Gosar for 5 minutes.

   STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Dr. Gosar. Thank you, Chairman McClintock, for holding 
today's hearing, and to my friend, Congressman Scott Tipton, 
for introducing this important legislation.
    In the West we have a saying: Whiskey is for drinking, 
water is for fighting over. And nowhere is that more true than 
the State of Arizona. In Arizona water means life. The majority 
of my State would be an underpopulated desert without the 
forward thinking of leaders when it comes to water policy. 
Those leaders recognize that Arizona faces constraints on its 
water supply more severe than almost any other State in the 
Nation and took careful, proactive precautions to protect and 
manage our water resources. In fact, before Arizona even became 
a State, the territorial legislature adopted the 1864 Howell 
Code that established our prior appropriations doctrine over 
surface water rights.
    The pursuit of water enabled a small State of ranchers, 
miners, and farmers to take off economically and become the 
beautiful, diverse place to live in today. And the century-long 
battles over our natural resources, in particular water rights, 
had an integral role in formulating our State's political 
landscape. Today Arizona is a very independent State 
politically shaped by people of all walks of life who have 
valued States rights and self-determination. That is why this 
bill we are considering today is so important.
    Arizona has one of the most, if not the most, intricate 
State water laws in our country. The right to water is a 
carefully guarded property right held at a higher value than a 
person's home or material possessions. So the notion that the 
government can come in and hold permits, leases, and rights of 
way hostage in efforts to get a private entity to forfeit its 
private property rights, its water right, is downright 
offensive, and that is exactly what the United States Forest 
Service is currently doing.
    Under a 2011 directive pertaining to ski area special use 
permits, the Forest Service is trying to require an applicant 
for a permit to relinquish privately held water rights to the 
Federal Government as a permit condition. There is no 
compensation for this transfer of rights even though our 
constituents or their descendents have spent major portions of 
their lives and their money to develop these rights. This is an 
egregious policy that must be stopped and is a violation of our 
State sovereignty and individual property rights.
    In rural Arizona our economy is heavily reliant on 
activities on Federal lands, including the northern Arizona ski 
area, Arizona Snowbowl, our mines, our ranches, and our 
agricultural production. These industries are the bedrock of 
Arizona's five C's and our economic viability. And the Forest 
Service's policies could bring all of these important economic 
drivers to a halt.
    My friend Congressman Tipton's legislation, the Water 
Rights Protection Act, shields our constituents from this kind 
of Federal regulatory water grab and upholds our State's 
sovereignty to protect its water interests. I strongly support 
these goals. In fact, I see fighting for these goals as my 
obligation as one of Arizona's rural representatives to the 
Federal Government.
    I look forward to working with some of the experts on the 
ground in Arizona and with Scott to ensure that no State-
recognized water rights go unprotected from the class of 
actions this bill prohibits. Ultimately I look forward to 
helping the bill's sponsors quickly advance this bipartisan 
legislation. Its enactment is critical to reasserting State 
sovereignty over water rights and the economic viability of our 
Western communities.
    I look forward to hearing from the witnesses, and I yield 
back the balance of my time. Thank you.
    Mr. McClintock. Thank you. The Chair is now pleased to 
recognize the gentleman from California, Mr. Costa, for 5 
minutes.

 STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Costa. Thank you very much, Mr. Chairman.
    For the purposes of my opening comments I will direct them 
to the DeFazio bill as it relates to drought relief. And I 
think it is important that the subcommittee at the time 
consider the benefits that have accrued over the years when we 
have had to deal with States, particularly Western States, that 
have dealt with the challenges of drought conditions that we 
know are cyclical as we look at over 100 years of recorded 
weather history.
    And the fact is that the drought relief assistance from the 
Federal level has made a difference. I am looking at a series 
of printouts that indicate from 2007 to 2012, from Arizona to 
Utah, to States that have benefited from drought relief 
assistance by the Federal Government. I think it is important 
that we continue to provide support. Obviously the States have 
their own sovereignty as it relates to many of the water issues 
that are in their jurisdiction.
    However, the fact is that we know that where water flows 
food grows, and it is an absolute essential key resource as it 
relates to our urban populations as well. So there is a hand-
in-glove relationship between our water resources in America, 
and nowhere is that felt greater than in Western States because 
of the arid conditions, of course.
    The fact is that most of our infrastructure that has been 
developed for water in the West is aging. It varies in length, 
but some of it is over 100 years old. If it were not for the 
development of that water resource when the West was being 
developed, we would not have the ability to provide the 
multiple, various economies that exist in our Western States.
    I am very worried that we are treating water as we are 
treating many of the other issues around here; i.e., a 
political football. We can have differences, but the fact of 
the matter is we must invest in our water infrastructure. We 
know that the climate is changing. I don't care whether folks 
want to just discern that man has a limited role in that, I 
think that is subject to debate. But the fact is the weather 
has been changing for millions and millions of years. You just 
look at the tree ring studies done in the sequoias of the 
Sierra Nevada Mountains, where over the last thousand years, 
because these trees are as old as 2,000 years old, and older in 
some cases, where they can determine cycles that have occurred 
between the narrowness of the rings of the trees between wet 
cycles and dry cycles.
    So the fact is weather is changing, it will always continue 
to change. And if in fact the weather patterns continue to 
change, our water systems may be inadequate to deal with our 
future needs. They are inadequate to deal with California's 
current needs. We have a water system that was designed for 20 
million people. Today we have 38 million people. By the year 
2030 we will have 50 million people. And the fact is we are not 
making the same kind of commonsense solutions that our parents 
and our grandparents did generations ago.
    So obviously I will be speaking in support when we get to 
the DeFazio measure on how we can continue to support efforts 
by States that have benefited from this drought relief 
assistance, and I look forward to continue working with all of 
my colleagues--all of my colleagues--on a bipartisan basis, 
because that is the only way--only way--we ever get anything 
done in this place.
    Thank you very much, Mr. Chairman.
    Mr. McClintock. The Chair is pleased to recognize Mr. 
Amodei for an opening statement.

   STATEMENT OF THE HON. MARK E. AMODEI, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF NEVADA

    Mr. Amodei. Thank you, Mr. Chairman. And I want to thank my 
colleague from Colorado for introducing this measure.
    In the short time that I have been here this has come up 
several times, and I think it is important to note, as it 
always is, what the bill actually says. It talks about 
requiring transfer. Nothing in the legislation says please 
ignore water issues when you are making permitting decisions. 
They are legitimate things to be considered as you make any 
land use permit.
    The part that necessitates this bill in my experience is 
this: On multiple occasions you have had Federal land 
management officials not consult the State water administrator, 
State water engineer, whatever they are called in your 
particular district. They have usurped that authority 
completely and said, I have groundwater concerns and therefore 
I am conditioning your permit or I am denying it without ever 
talking to the individual who under State law has exclusive 
authority to adjudicate those matters.
    That is an important first part because those matters, if 
you don't like the way they adjudicate them, you have 
administrative processes, you have judicial processes, you have 
due process for addressing that. In a Federal permitting 
context if you usurp that State engineer's authority without 
ever even really talking to him, then what you have left is 
almost nothing. And so it is not ignore groundwater issues, it 
is please go to the person who has jurisdiction.
    And then we move to the second part, which the bill does 
say on multiple occasions we are in violation of the law in my 
State. And by the way, it is not much different from the 
Ranking Member, all Western States, it is a large amount of 
surface area that the Federal Government owns. That is the 
fact. No sense lamenting it or whatever. We can talk about what 
to do about that. But the fact is you own a large amount. And 
really you need to own the water rights, too, to have control 
over it, when you control the surface area?
    So when you tell somebody in the agricultural industry when 
there is a State law in my State that says you cannot hold 
stock water groundwater rights unless you own stock, and the 
Forest Service says we don't own stock but we want to condition 
a permit on you issuing your stock water permit to the Forest 
Service, it is a condition for a Federal permit which is in 
black letter law violation of State law.
    And when you say, what are you doing? Well, we kind of 
think we have authority under NEPA to do that. Could you please 
point that out? We just think we do for supposition for this 
connection, for that connection. And the idea is not to bash 
those folks, but it is to say you really don't have the 
authority to do that. What an ultimate act of hypocrisy to 
condition a Federal permit on violation of a State water law 
for which you really don't have that.
    I want to make two more points, though, because if it is 
really about the resource, in my State the Federal Government 
can hold water rights, just comply with State law and you can 
be issued. So it is not that you can't have them, but this 
thing where you skip the State engineer and do your own 
basically no due process process to rule on State water law or 
you require an absolute violation of State law for a Federal 
permit is not good business. And I join with my colleagues both 
from California, that is not good business regardless of what 
side of the fence you are on.
    So I want to give a shout-out to my colleague from 
Colorado, and the drafting of this is actually very, very 
elegant in terms of, my god, it is a page long and just says, 
hey, play by the State rules on water issues. If the BLM or the 
Forest Service have a concern about groundwater then go talk to 
the State engineer and whatever he or she says is what 
everybody lives with. But do not ignore the State engineer and 
bring those duties onto yourself.
    So with that, Mr. Chairman, I appreciate the opportunity to 
participate today and the courtesies the subcommittee has 
extended me, and I yield my remaining time to my colleague from 
Utah.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Bishop. Thank you, Mr. Amodei. I appreciate that.
    I want to say two things very quickly. Number one is, I 
appreciate the committee holding a hearing on these bills, very 
good bills, and I am cosponsor of one of them, and I appreciate 
the leadership of that.
    Number two, I want to specifically recognize and welcome 
Randy Parker from the State of Utah, Utah Farm Bureau 
Association, here as one of the witnesses. He understands the 
significance of water as it relates to agriculture and ranching 
in our areas and how important it is. Obviously it cannot be 
done without water rights.
    I mean, there is a cliche we have in Utah that it would be 
far better to be head of the ditch than it would be head of the 
church. That is one the issues that we have at hand here. And I 
appreciate his comments on this. He will explain why it is so 
significant to maintain water rights that have traditionally 
been there as these people have entered into these operations 
and guarantee that they are maintained.
    And so I appreciate his willingness to be here. I 
appreciate your willingness to indulge me as part of this 
committee. I came in late, so I will make up for that by 
leaving early because I have another committee right now. And 
this does not give Mr. Costa and others, and Mrs. Napolitano, a 
chance to abuse me if I leave. So I think that is probably the 
best thing I could possibly do. But I do want to thank you for 
inviting Mr. Parker and inviting me to be part of this 
committee.
    Mr. McClintock. Well, here is your hat, what is your hurry? 
Mr. Bishop actually is entitled to another 4\1/2\ minutes on 
his own.
    Mr. Bishop. To which I will yield back for everything else.
    Mr. McClintock. Well, the committee always appreciates a 
dramatic exit.
    Just for the record, the Chair wants to allay the concerns 
that were expressed earlier regarding the shutdown and the 
absence of the U.S. Forest Service. The U.S. Forest Service 
actually informed the subcommittee before the shutdown that 
they could not appear on the Tipton bill, would not discuss it. 
Their new directive is being reviewed by the OMB and they said 
they can't talk about it until the review is done and the 
directive is out for public comment. And so the shutdown does 
not affect the Forest Service's willingness to be here today. 
They were not willing to be here anyway.
    With that, and if there are no other opening statements by 
committee members, the Chair is pleased to welcome our panel of 
witnesses and once again to thank them for their patience and 
indulgence. Each witness' written testimony will appear in the 
full hearing record, so I would ask that you keep your comments 
down to 5 minutes. The timing lights are pretty simple, green 
you have all the time in the world, yellow is 1 minute, red 
means that you are out of time and out of attention of the 
membership. I think there was a study done some time ago that 
indicates that 5 minutes is about the maximum attention span of 
a Member of Congress, so keep that in mind when that red light 
goes off.
    And with that, the Chair is pleased to welcome our first 
witness today, Mr. David Corbin, Vice President for Planning 
and Development at Aspen Skiing Company from Aspen, Colorado, 
to testify.

 STATEMENT OF DAVID CORBIN (H.R. 3189), VICE PRESIDENT, ASPEN 
                SKIING COMPANY, ASPEN, COLORADO

    Mr. Corbin. Thank you, Mr. Chairman. I understand the 
limitation on time and will try to briefly summarize the 
comments.
    My name is David Corbin. I am Vice President of Planning 
and Development for Aspen Skiing Company. We are a ski area 
operator and hospitality company located in Aspen, Colorado. 
Personally, I have 25 years experience in the ski industry, 
working first with Vail Resorts, and for the past 8 years I 
have been with Aspen Skiing Company. I had the privilege of 
working in the industry from Lake Tahoe, to the Central 
Rockies, to the White Mountains of New Hampshire, and worked on 
Federal lands in all of those locations at some point or 
another.
    Aspen Skiing Company owns four ski areas. We have four 
special use permits. We employ about 3,400 people locally in 
peak season and we host 1.4 million skier visits in Aspen, 
again on public lands. We are members of Colorado Ski Country, 
and we are likewise members of the National Ski Areas 
Association. The National Ski Areas Association is essentially 
our national body that represents our interests as an industry 
before Congress and other public agencies and performs a 
variety of activities on our behalf, but represents 121 
different ski areas across the country who operate on the 
public lands.
    We very much support--and by we, I mean Aspen Skiing 
Company, Colorado Ski Country, and NSAA--very much support this 
bill and thank Congressmen Tipton and Polis in particular as 
Colorado Representatives and sponsors, as well as the other 
sponsors. We believe the Water Rights Protection Act is very 
much essential to our business and protects our business 
interests in ways that we appreciate a great deal.
    We value and respect our partnership with the U.S. Forest 
Service. We indeed work quite closely with them. I regard my 
White River forest supervisor as a very close colleague 
personally and professionally. We likewise believe we are very 
capable and intelligent stewards of the land and work quite 
carefully to protect the environmental standards that this 
country aspires to.
    In the course of that, we likewise think that water is 
absolutely an essential element to our business. And in 
response to one of the comments I heard before, we do not get 
any water with our special use permits. When a special use 
permit comes to us, the Federal Government hasn't given us 
additional water in the course of issuing that permit. We go 
out and acquire it, we buy it, we procure it, we go ahead and 
buy it from other providers as well.
    We look to Congress to provide some assistance. Indeed the 
agency is in the process of promulgating rules and has proposed 
rules before. We believe this bill is very helpful in guiding 
or steering the agency toward what we believe would be more 
prudent rules and regs. We very much like the bill in the sense 
that it does not require us to transfer those separate water 
rights that we have purchased and developed and built 
infrastructure for on our own. We like the fact that there 
would be a prohibition against such a compulsory transfer, 
which we very much think is a taking. And we would hope 
Congress would likewise see it that way and help and support us 
in that regard.
    Ourselves, we use a fair amount of water, 200 to 250 
million gallons a year in snowmaking. That is essential to us. 
Snowmaking essentially provides the base for us to begin and 
completes our season. And for our purposes we cannot see those 
rights evaporate or be lost as it would severely jeopardize our 
ability to operate, and it would likewise financially subject 
us to very difficult circumstances because we need both 
Christmas season and end of season to essentially make our 
economics work. So to lose snowmaking and to lose the water 
associated with it would very much jeopardize our operations 
and our continued financial viability.
    We hope that you would take our testimony, written as it 
is, before you into account, and I very much appreciate the 
opportunity to speak to you today.
    Mr. McClintock. Thank you very much for your testimony.
    [The prepared statement of Mr. Corbin follows:]
   Prepared Statement of David Corbin, Vice President of Planning & 
             Development, Aspen Skiing Co., Aspen, Colorado
    Thank you for the opportunity to testify today on behalf of Aspen 
Skiing Co. Aspen Skiing Co. owns and operates four resorts in Colorado, 
Aspen Mountain, Aspen Highlands, Snowmass and Buttermilk. During its 
winter peak, ASC employs approximately 3,400 people in Pitkin County, 
Colorado, hosts nearly 1.4 Million skier visits annually, and pursuant 
to four Special Use Permits issued by the United States Forest Service, 
operates on National Forest System land, as do 120 other ski areas 
nationally. Collectively, these 121 public land resorts accommodate the 
majority of skier visits in the U.S. and are located in the states of 
Arizona, California, Colorado, Idaho, Montana, Nevada, New Hampshire, 
New Mexico, Oregon, Utah, Vermont, Washington and Wyoming. The ski 
industry generates $12.2 Billion in economic activity annually.
    At the outset, I would like to emphasize that Aspen Skiing Co., our 
state association Colorado Ski Country USA, and the national 
association, NSAA, are united in our support of H.R. 3189, the Water 
Rights Protection Act. We would like to thank the sponsors of this 
legislation, and I would like to especially thank Colorado Congressmen 
Tipton and Polis, for working together to protect the rights of ski 
areas.
    Aspen Skiing Co. greatly values and respects our partnership with 
the U.S. Forest Service. We likewise take seriously our 
responsibilities with respect to stewardship of the land and water 
resources arising from it. At the same time, we view protection of ski 
area water rights, typically privately acquired, developed and applied 
and unrelated to the original issuance of our Special Use Permits, as 
essential to our business sustainability and as a top priority for the 
ski industry as a whole.
    The ski industry is united in looking to Congress to take action to 
protect water rights and to protect the state laws that govern water 
rights allocation, administration and adjudication. We collectively 
believe that protecting water rights from encroachment by the Federal 
Government will help ensure the future success of ski areas on public 
land and the mountain communities that depend on them.
    The proposed Water Rights Protection Act would prohibit the Forest 
Service from requiring that ski areas apply for water rights in name of 
the U.S. or transfer water rights to the U.S. as a condition of our 
special use permit. As such, the Act would prohibit the Forest Service 
from issuing the very ski area water clause that it issued in 2012, 
that was the subject of a legal challenge and lawsuit brought by the 
National Ski Areas Association last year. The proposed law would 
protect ski area water rights and provide certainty to ski areas and 
other water rights holders that the Federal Government is not going to 
seize these valuable property rights without compensation. This will 
benefit ski areas and the rural economies dependent on them. Finally, 
it upholds state water law. For all of these reasons, the ski industry 
wholeheartedly supports H.R. 3189.
    By way of background, water is an essential element of our business 
and snowmaking insures that we are able to operate and offer winter 
recreation in any given year, even in years of low snowfall. Although 
Aspen Skiing Company's domestic use per year is comparatively modest, 
less than 3 million gallons a year, we use on average from 200 to 250 
million gallons a year to make snow, which returns to the watershed in 
the form of ground water and surface runoff each spring. Our cost in 
water, labor and energy to make and distribute this snow is roughly $2 
M to $2.5 M per year. Our sources of supply include rivers and streams, 
wells and springs, and municipal providers. We have acquired and hold a 
wide array of rights and interests in water, some of which include 
conventional stream and ditch appropriations dating back to 1882. 
Others include a recent $3 MM investment in a storage reservoir fed by 
a stream from which we've historically drawn, which essentially enabled 
us to open Snowmass ski area last year despite a very dry fall and 
early winter.
    The magnitude of our operational costs, acquisition and investment 
in water rights and infrastructure is not unusual. Collectively, ski 
areas invest hundreds of millions of dollars on water rights to support 
and enhance their operations and water rights are considered highly 
valuable assets to ski area owners. These water rights have been and 
are presently obtained by ski areas under long standing State law.
    Water is crucial not just to our current operations, but to our 
very sustainability and on-going vitality as recreational businesses, 
particularly in an era of drought and warming temperatures. For reasons 
both altruistic and commercial it is in our own interests to protect, 
conserve and optimize the sensible use and application of our water 
resources.
    Beyond our own viability and commercial health, ski areas are major 
employers in rural economies helping maintain employment and driving 
job creation in rural and mountain economies. The physical and economic 
sustainability of ski areas directly impacts the future health, 
maturation and growth of rural economies associated with ski areas.
    USFS water clauses that demand transfer of ownership of ski area 
water rights to the United States substantially impair the value of 
these ski area assets. The taking of these assets by the government 
hinders a ski area's access to capital, creates uncertainty with 
respect to a resort's ability to make adequate snow and operate 
successfully in the future, and most importantly, provides a huge 
disincentive for ski areas to invest in water rights and infrastructure 
in the future. Ask yourself this question: why would a ski area invest 
in water rights and infrastructure if they are simply going to be taken 
by the government? It is obviously not sound business practice to 
acquire and improve assets that are going to be taken from you. 
Unfortunately, the impact of such a punitive disincentive does not stop 
with the ski area. In so far as it adversely affects our business 
sustainability over time, it inevitably ripples through our companion 
rural economies.
    The Forest Service is now in the process of developing a new ski 
area water clause. It is our hope that this proposed legislation will 
positively shape the forthcoming policy. Like the proponents of this 
bill, the ski industry will not accept a Forest Service water policy 
that takes private water rights from ski areas. As an alternative, the 
ski industry offered a new approach to a ski area water clause in 
conjunction with the Forest Service's ongoing public process on water 
policy. This new approach would address the Forest Service's concerns 
about having sufficient water for future ski area operations, but does 
not involve government seizure of assets.
    Briefly, we offered a two part framework:

  1.  For future projects which require water for implementation, ski 
            areas will demonstrate that sufficient water is available 
            to support those projects. This would be a part of the 
            review and approval process going forward for proposals 
            that include on mountain facilities or snowmaking;
  2.  Upon sale of a ski area, resorts will provide an option to 
            purchase at fair market value sufficient water to 
            reasonably run the ski area to a successor ski area owner. 
            If the successor ski area declines to exercise such option, 
            the ski area would offer it to the local government; if the 
            local government declined to exercise the option, the 
            Forest Service would have the option to buy the water.

    As an express condition of supporting this approach, water clauses 
previously imposed upon ski area permittees by the agency must be 
declared unenforceable, superseded, and null and void, and would be 
removed from every ski area permit.
    We offered this compromise to demonstrate our willingness to work 
constructively toward resolution of this issue, and to demonstrate that 
the Federal Government need not take and own these private water rights 
to accomplish its objectives of ensuring ski area operational 
sustainability and local economic health, which we share. The bill 
under consideration today and the ski area's alternative approach to 
water policy are complimentary. We urge passage of this bill as soon as 
possible to send a clear message to the Forest Service to shape its 
policy and write its rules and regulations in a manner that respects 
water rights and state water law.
    Thank you for the opportunity to address this committee. I would be 
happy to answer or respond to any questions you may have.

                                 ______
                                 

    Mr. McClintock. The Chair is now pleased to recognize Mr. 
Randy Parker, the CEO of the Utah Farm Bureau Federation, from 
Sandy, Utah, to testify.

 STATEMENT OF RANDY PARKER (H.R. 3189), CEO, UTAH FARM BUREAU 
                    FEDERATION, SANDY, UTAH

    Mr. Parker. Thank you, Mr. Chairman, Ranking Member, and 
committee members. Thank you for the opportunity to be here.
    My name is Randy Parker. I am CEO of the Utah Farm Bureau 
Federation. I am here today representing more than 28,000 
member families in Utah and more than 6 million families who 
are members of the American Farm Bureau. Through our grassroots 
process, Farm Bureau provides policymakers with recommendations 
on water in Utah and in the Western public land States.
    Farm Bureau is concerned with the Federal Government 
expanding its reach and control over Utah and its natural 
resources. Utah farmers and ranchers want Federal agencies to 
honor State water law and to not claim ownership of water 
developed on public lands. Utah Farm Bureau supports H.R. 3189 
because it recognizes the State sovereign water rights and 
protects livestock water rights from illegal Federal claims and 
takings.
    The American Farm Bureau policy calls on Congress to dispel 
uncertainty. The Intermountain Region of the U.S. Forest 
Service has filed more than 16,000 diligence claims on Forest 
System lands in Utah challenging ownership and increasing 
uncertainty. The agency says its claims are based on Federal 
ownership of the land and water the ranchers used prior to 
Congress granting Utah statehood. Couldn't that be argued to be 
the same in every State in the Union?
    American Farm Bureau opposes any preemption of State law, 
pointing out water rights as property rights cannot be taken 
without just compensation and due process of law. Farm Bureau 
supports H.R. 3189, the Water Rights Protection Act, because it 
is designed to dispel uncertainty and recognizes State 
sovereignty and historic water law. In addition, it underscores 
the constitutional protections of just compensation and due 
process of law.
    To illustrate the need to protect livestock water rights, 
the experience of a Tooele County, Utah, grazing association is 
instructive. In the spring of 2012 ranchers were presented with 
a packet from the Forest Service that requested that they sign 
a change of use application. Change applications allow the 
Forest Service to change use of the water from livestock to 
other uses as determined by the agency. The ranchers were told 
if they did not comply it could adversely affect their turnout 
onto their forest grazing allotment. The ranchers were not only 
concerned how the action impacted their water rights, but how 
it would impact cattle grazing on those allotments into the 
future.
    The Forest Service protested, suggesting the request was in 
error and that they were only asking ranchers to sign a joint 
ownership agreement. In either case, signing a change of use 
application or agreeing to a certificate of joint ownership, 
the Federal agency is seeking a relinquishment either in whole 
or in part as a condition of access to the grazing allotment.
    In Tooele County, Utah, or anywhere across the Utah 
landscape where livestock graze on the public lands and use the 
State's water, it is the economic driver for our rural 
communities. Livestock production is the economic engine of 
Utah's rural cities and towns. Passage of H.R. 3189 will build 
rural communities by providing certainty, not by seizing assets 
through relinquishment or diminishment of livestock water 
rights.
    Livestock water is available in stock water troughs, in 
guzzlers, in seeps, and in small streams scattered across 
Utah's back country. It benefits not only sheep and cattle, but 
wildlife, like sage grass, deer and elk, and even threatened 
and endangered species like the Utah prairie dog.
    Utah has joined other Western States, like Idaho and 
Nevada, in protecting historic livestock water rights and 
limiting Federal ownership. Utah's Livestock Water Rights Act 
defined the beneficial user as the owner of the grazing permit. 
The Forest Service seized on that opportunity, filing on 
livestock water rights on every active allotment in Utah, 
claiming they are the owner of the grazing permit.
    In closing, it is important to note that the Utah Livestock 
Water Rights Act makes livestock water rights pertinent to the 
grazing allotment on which the livestock is watered. It 
provides certainty to ranchers and underscores our commitment 
to rural Utah that grazing will continue on the public lands. 
This commitment in H.R. 3189 provides greater certainty to 
ranchers and the future of public land grazing than the 
assurances of Federal bureaucrats and being at the whims of our 
fickle legal system.
    Thank you, Mr. Chairman. I look forward to questions.
    Mr. McClintock. Thank you, Mr. Parker.
    [The prepared statement of Mr. Parker follows:]
 Prepared Statement of Randy N. Parker, Chief Executive Officer, Utah 
                  Farm Bureau Federation, Sandy, Utah
    The Utah Farm Bureau Federation, Utah's largest farm and ranch 
organization, supports passage of H.R. 3189, the Water Rights 
Protection, an Act prohibiting Federal agencies from conditioning 
ongoing use of grazing permits or other use agreements based on the 
transfer, relinquishment or impairment of water rights sovereign to the 
States.
    The Utah Farm Bureau represents more than 28,000 member families 
including a significant number of livestock producers who use the 
Federal lands for sheep and cattle grazing. Livestock ranching is an 
important part of the history, culture and economic fabric of Utah and 
is a major contributor to the State's economy.
    Utah food and agriculture contributes to the State's economic 
health and provides jobs to thousands of our citizens. Utah farm gate 
sales in 2012 exceeded $1.6 billion. Utah State University analyzed the 
forward and backward linkages to industries like transportation, 
processing, packaging and determined food and agriculture are the 
catalyst for $17.5 billion in economic activity, or about 14 percent of 
the State GDP, and provides employment for nearly 80,000 Utahns with a 
payroll of more than $2.7 billion.
                           farm bureau policy
    Delegates to the November 2012 annual convention of Utah Farm 
Bureau Federation adopted policy calling on the Federal Government to 
``not claim ownership of water developed on Federal land.'' In 
addition, Utah Farm Bureau policy calls for State control of water 
rights and for livestock water rights to be held by the ranchers 
holding grazing rights as a protection against Federal encroachment on 
sovereign State waters.
    American Farm Bureau Federation representing more than 6 million 
members from across our Nation adopted policy at the January 2013 
annual convention calling on Congress to ``dispel uncertainty'' and 
provide that the ``water flowing from the reserved lands and other 
Federal lands shall be subject to State authority.'' American Farm 
Bureau opposes reserved water rights on Federal lands except through 
filing with the State for rights in accordance with State law.
    American Farm Bureau policy continues expressing opposition to 
``any Federal domination or pre-emption of State water law'' and that 
``water rights as property rights cannot be taken without compensation 
and due process of law.''
                                history
    Scarcity of water in the Western United States led to the 
development of a system of water allocation that is very different from 
how water is allocated in regions graced with abundant moisture. Rights 
to water are based on actual use of the water and continued use for 
beneficial purposes as determined by State laws. Water rights across 
the west are treated similar to property rights, even though the water 
is the property of the citizens of the States. Water rights can be and 
often are used as collateral on mortgages as well as improvements to 
land and infrastructure.
    The arid west was transformed by our pioneer forefathers through 
the judicious use of the precious water resources. Utah is the Nation's 
second most arid State, second only to Nevada. For our predecessors, 
protecting and maximizing the use of the water resources was not only 
important, it was a matter of life and death.
    Land ownership patterns and where precipitation, rain and snow, 
accumulates in the Intermountain Region of the U.S. Forest Service 
especially in Utah has been a long running cause for debate and 
conflict. The U.S. Forest Service reports that the Forest System Lands 
are the single largest source of water in the continental United States 
providing more than 14 percent of the available supply. (Attachment A)
    A review of the Forest Service maps would suggest a large portion 
of agency's captured water takes place in the western public States 
within the Snake and Colorado River Basins and in the mountains of the 
Sierra-Nevadas, the Cascades and the Rocky Mountains. These lands in 
the Intermountain Region are the source of a large portion of the 
States surface water and underground recharge. (Attachment B)
                         congressional actions
    The settlers in the arid west developed their own customs, laws and 
judicial determinations to deal with mining, agriculture, domestic and 
other competing uses recognizing first in time, first in right. Out of 
these grew a fairly uniform body of laws and rights across the western 
States. The Federal Government as original sovereign and owner of the 
land and water prior to Congress granting statehood ultimately chose to 
acquiesce to the territories and later the States on control, 
management and allocation of water.
Act of July 26, 1866
    The U.S. Congress passed the Act of July 26, 1866 [subsequently the 
Ditch Act of 1866] that became the foundation for what today is 
referred to ``Western Water Law.'' The Act recognized the common-law 
practices that were already in place as settlers made their way to the 
western territories including Utah. Congress declared:

        Whenever, by priority of possession, rights to the use of water 
        for mining, agriculture, manufacturing, or other purposes, have 
        vested and accrued, and the same are recognized and 
        acknowledged by the local customs, laws and decisions of 
        courts, the possessors and owners of such vested rights shall 
        be maintained and protected in the same; and the right of way 
        for the construction of ditches and canals for the purposes 
        herein specified is acknowledged and confirmed; but whenever 
        any person, in the construction of any ditch or canal, injures 
        or damages the possession of any settler on the public domain, 
        the party committing such injury or damage shall be liable to 
        the party injured for such injury or damage. (43 U.S.C. Section 
        661)

    This Act of Congress obligated the Federal Government to recognize 
the rights of the individual possessors of water, but as important, 
recognized ``local customs, laws and decisions of State courts.''
    Western water law or the ``doctrine of prior appropriation'' 
governs the use of water in many of the States in the west. The 
fundamental principle embodied in the doctrine of prior appropriation 
is that while no one may own the publicly owned resource, persons, 
corporations or municipalities have the right to put the water to 
beneficial use any defined by State law. For purposes of beneficial 
use, the allocation of right rests in the principle of ``first in time, 
first in right.'' The first person to use the water is the senior 
appropriator and later users are junior appropriators. In Utah, and 
across the west, this principle protects the senior water right 
priority for this scarce and valuable resource.
    Beneficial uses are determined by State legislatures generally 
including livestock watering, irrigation for crops, domestic and 
municipal use, mining and industrial uses.
The Desert Land Act of 1877
        ``All surplus water over and above such actual appropriation 
        and use . . . shall remain and be held free for appropriation 
        and use of the public for irrigation, mining and manufacturing 
        . . .''
The Taylor Grazing Act of 1934
        ``nothing in this Act shall be construed or administered in a 
        way to diminish or impair any right to the possession and use 
        of water for mining, agriculture, manufacturing and other 
        purposes . . .''
The McCarran Amendment of 1952
    Congress established a unified method to allocate the use of water 
between Federal and non-Federal users in the McCarran Amendment. (43 
U.S.C. Section 666) The McCarran Amendment waives the sovereign 
immunity of the United States for adjudications for all rights to use 
water.

        ``waives the sovereign immunity of the United States for 
        adjudications for all rights to use water.''
The 1976 Federal Land Policy Management Act
        ``All actions by the Secretary concerned under this act shall 
        be subject to valid existing rights.''

    The rights of the States to govern water has been recognized by 
generations of Federal land management agencies as directed by the U.S. 
Congress.
Gifford Pinchot
    In 1907, Gifford Pinchot, ``father'' of the United States Forest 
Service (USFS) and the First Chief Forester explicitly reassured 
western interests in the agency's ``use book'' noting that water is the 
sovereign right of the State. Pinchot declared:

    ``The creation of the National Forest has no effect whatever on the 
laws which govern the appropriation of water. This is a matter governed 
entirely by State and Territorial law.''
                             court actions
Joyce Livestock vs. United States
Idaho Supreme Court 2007--Opinion No. 23
``Beneficial Use Standard Defined''

    In the Joyce Livestock Company vs. United States, the Owyhee County 
based cattle operation had ownership dating back to 1898 including in-
stream stock water rights. The United States over-filed on the Joyce 
water rights based on a priority date of June 24, 1934--the date of 
passage of the Taylor Grazing Act. A special master recommended the 
water right claimed by the United States be granted. District Court 
said the special master erred and that the agency lacked the necessary 
intent. District Court determined that Joyce needed to show evidence 
that they believed they had acquired such water rights in their grazing 
permit applications. The United States could not show that Joyce or any 
of its predecessors were acting as it agents when they acquired or 
claimed to have acquired the water rights. As had been required, Joyce 
made application for grazing rights under the Taylor Grazing Act on 
April 26, 1935. The District Court awarded Joyce water rights with a 
priority date of April 26, 1935.
    The United States appealed the District Court ruling to the Idaho 
Supreme Court regarding the in-stream water rights for stock watering 
claimed by the United States based on ownership and control of the 
Federal land under its management obligation in the Taylor Grazing Act. 
The Idaho Supreme Court denied the United States claim and defined the 
standard of beneficial use under the constitutional method. The Idaho 
Supreme Court said:

        ``The District Court held that such conduct did not constitute 
        application of the water to beneficial use under the 
        constitutional method of appropriation, and denied the claimed 
        rights. The Idaho Supreme Court concurred holding that because 
        the United States did not actually apply the water to a 
        beneficial use the District Court did not err in denying its 
        claimed water rights.''

    H.R. 3189 supports this important legal finding: Ownership or 
control of the land does not meet the constitutional method of putting 
the water to beneficial use, generally defined in State law as non-
wasteful use of water such as agriculture, municipal, industrial, 
mining, and so forth for establishing ownership and control.

United States vs. Wayne Hage
Nevada Federal District Court (2013)
``Trespass and Access Rights Defined''

    The U.S. Forest Service and BLM in 2007 filed suit in Nevada 
Federal District Court against the estate of Wayne Hage alleging 
trespass on Federal lands arising from a long-standing conflict. Nevada 
District Court Chief Judge Robert C. Jones presided.
    At issue were water rights established by the Hage family in 1865 
based on beneficial use recognized long before Nevada was a State or 
the Forest Service was an agency of the Federal Government. Following 
the enactment of FLPMA, a pattern of harassment ensued by the Federal 
Government challenging cattle grazing rights, over-filing on livestock 
water rights and frustrating the rights of the ranchers to maintain 28 
miles of ditches across the Nevada desert to deliver long held water 
rights to pastures and livestock. The Congressional Act of July 1866 
(The Ditch Act) clearly protected the rancher's right to move water 
across the Federal lands. The Federal agency agreed, but held the 
maintenance to an impossible pick and shovel standard. The ongoing 
ditch dispute and the impoundment and sale by the U.S. Forest Service 
of $39,000 worth of cattle in 1991 moved the conflict into a series of 
lawsuits on takings and trespass.
    The U.S. Forest Service filed suit against the Hage Estate (Wayne 
died in 2006) for trespass related to cattle grazing and use of 
livestock water rights on the Federal grazing allotments. During 
questioning in a Reno courtroom on witness credibility Intermountain 
Regional Forester Harv Forsgren was found to be lying to the court. In 
a statement, Judge Jones stated: ``The most pervasive testimony of 
anybody was Mr. Forsgren. I asked him, has there been a decline in the 
region or district in AUMs (permitted animal unit months grazing). He 
said he didn't know. He was prevaricating. His answer speaks volumes 
about his intent and his directives to Mr. (Steve) Williams.'' Anybody 
of school age or older knows ``the history of the Forest Service in 
seeking reductions in AUMs and even the elimination of cattle grazing . 
. .''
    The agency's arrogance and view of the sovereign water rights of 
the State was highlighted when Steve Williams, Humbolt-Toiabe Forest 
Ranger, testified in a court deposition:

``despite the right (of the Hages) to use the water, there was no right 
to access it, so someone with water rights but no permit from the U.S. 
Forest Service would have to lower a cow out of the air to use the 
water, for example, if there were no (agency granted) permit to access 
it.''

    Judge Jones found:

     Congress prescribed grazing rights on Federal lands were 
            to be granted based on a rancher's ownership of water 
            rights established under local law and custom.
     Hage has a right of access to put his livestock water 
            rights to beneficial use, therefore the livestock could not 
            be found in trespass.
     USFS employee Steve Williams was found in contempt of 
            court and guilty of witness intimidation.
     Tonopah BLM manager Tom Seley as found in contempt of 
            court and guilty of witness intimidation.
     Williams and Seley were held personally liable for damages 
            with fines exceeding $33,000.
     The Hage's were found guilty of only two minor trespass 
            violations and were fined $165.88
     Regional Forester Harv Forsgren was excluded from 
            testifying at trial during witness credibility hearing for 
            lying to the Court.

    Chief Judge Robert C. Jones stated at the conclusion of the case:

        ``I find specifically that beginning in the late '70s and '80s, 
        first, the Forest Service entered into a conspiracy to 
        intentionally deprive the defendants here of their grazing 
        rights, permit rights, preference rights.''

    In the related ``Constitutional Takings'' case, Wayne Hage in 1991 
sued the U.S. Forest Service in the U.S. Court of Federal Claims. The 
case went to trial in 1998 to determine property interests. In 2004, a 
second trial was commenced to determine which property had been taken 
and its value. In 2008, Chief Judge Loren E. Smith ultimately awarded a 
$4.4 million plus interest judgment against the Federal Government.
    As expected the United States appealed in the Federal Circuit Court 
of Appeals in Washington DC. The Appeals Court, a three judge panel in 
2012, overturned portions of the Smith decision including the financial 
judgment citing the claims were not ripe. But the Appeals Court 
expressly did agree that the Hage's have ``an access right'' to their 
waters on the Federal lands.

    H.R. 3189 supports historic ownership of livestock water rights and 
access: The bill recognizes water rights are the sovereign rights of 
the States and provides that livestock water rights established through 
the beneficial use method shall not be surrendered as a condition of 
use or access to livestock grazing rights on Federal allotments.

Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps 
of Engineers
United States Supreme Court 159, 172-173 (2001)
``Defining Federal Agency's Administrative Authority''

    Without clear Congressional authorization, Federal agencies may not 
use their administrative authority to ``alter the Federal-State 
framework by permitting Federal encroachment upon traditional State 
power.''
    In SWANCC vs. U.S. Army Corps of Engineers the U.S. Supreme Court 
held that the Corps' use of the long controversial ``migratory bird 
rule'' adopted by the Corps and the U.S. Environmental Protection 
Agency to expand regulatory authority over isolated wetlands exceeded 
the authority granted by Congress.
    The Court chided the agency for over-reaching in its regulatory 
obligations and authority:
        ``Where an administrative interpretation of a statute invokes 
        the outer limits of Congress's power, we expect a clear 
        indication that Congress intended that result. This requirement 
        stems from our prudential desire not to needlessly reach 
        constitutional issues and our assumption that Congress does not 
        casually authorize administrative agencies to interpret a 
        statute to push the limit of congressional authority. This 
        concern is heightened where the administrative interpretation 
        alters the Federal-State framework by permitting Federal 
        encroachment upon traditional State power. Unless Congress 
        conveys its purpose clearly, it is not deemed to have 
        significantly changed the Federal-State balance.

    H.R. 3189 supports limiting Federal agency interpretation of 
Congressional action: The bill clearly establishes Congressional intent 
supporting the historic Federal-State relationship and rights under 
western water law. Congress, beginning with the ``Ditch Act'' and more 
recently the McCarran Amendment and FLPMA, established a Federal-State 
framework for water ``waiving the sovereign immunity of the United 
States'' in water adjudications. H.R. 3189 backs this historic Federal-
State relationship. It precludes the Forest Service and BLM from 
acquiring livestock water rights as a condition of the rancher's use of 
the grazing allotment and protects the holder of the livestock water 
right--a taking under the Constitution.
                             utah conflict
    Water conflicts between Federal land management agencies and Utah 
have challenged sovereignty, ownership and access. The conflict seems 
to be about exercising Federal control, even over the State's water. 
Increased demands, growth and higher value of water has complicated the 
relationship leading to increasing conflict between Federal agents and 
Utah's livestock ranchers. This conflict is easily detailed in the 
Intermountain Region's filing claims on all livestock water associated 
with Utah's Forest grazing allotments to its demands of individual 
ranchers to relinquish their water rights or agreeing to ``joint 
ownership'' with the Forest Service. The demands for Utah water by the 
United States Forest Service control are unrelenting.
    Via FLPMA Congress declared that the United States would retain 
remaining public domain lands unless disposal of a parcel served the 
national interest. This Federal action changed resource management 
authority and undid land grant laws that had been in place for more 
than a century. The 1960 Multiple Use--Sustained Yield Act granted 
rights, privileges, use and occupancy with a legal status and non-
revocable easement. FLPMA transitioned to greater use of ``permits'' 
and special use authorization. ``Permit holders'' now were required to 
conduct activities based on conditions specified by the granting 
Federal agency. The reasonableness of the regulations and conditions of 
use are constantly in question. Whether its regulations issued by 
headquarters or the local determination, ``reasonable'' has become a 
contentious concept.
    The current test for reasonable regulations does not address the 
constitutional takings implications specifically as relates to 
livestock water rights on Federal lands.
    The issue of ``right'' vs ``permit'' has been hotly debated for 
generations among ranchers, rancher advocates and the Federal agencies 
since FLPMA altered the relationship.
    The Taylor Grazing Act of 1934 granted a ``grazing right'' that was 
tied to a Federal grazing allotment. The courts have held that the 
rights granted by Congress to harvest forage on Federal grazing 
allotment are ``Chiefly valuable for livestock grazing.'' This legally 
recognized right in turn provided a level of assurance for ranchers to 
use their livestock water rights and ultimately to put them to 
beneficial use as required by Utah law.
    When conflicts arose, the courts generally upheld the United States 
right to control and regulate often adversely impacting access to 
Federal grazing allotments and use which were often adverse to grazing 
rights and use of livestock water rights.
    Confrontation between Federal land managers and livestock grazing 
interests became a part of doing business. Mostly, those with sheep and 
cattle grazing permits capitulated to the force of the Federal agents 
and the courts. Cuts in grazing permits and the Federal agencies 
accumulating suspended use grazing permits became common place in Utah 
and across the west. Reducing livestock numbers or limiting access to 
grazing allotments, can provide a defacto water right to the Federal 
agency based on the rancher's inability to use their livestock water 
rights.
    Under Utah law if water is not put to beneficial use for a 
prescribed period of 7 years, the water right is forfeited. Forest 
Service agents have the ability to control allotment access, determine 
use at the location of the livestock water right, set the numbers of 
sheep and cattle on the allotment using the water and ultimately the 
Federal Government determines the ability of the rancher to put his 
livestock water right to beneficial use.
    Challenging Federal authority has been almost futile. Few have the 
financial resources to engage in what the Federal agencies assured 
livestock ranchers would be costly and protracted litigation. The 
ranchers were and continue to be at a decided disadvantage to the tax-
payer funded deep Federal pockets and army of agency lawyers they would 
meet at trial.
Diligence Claims
    The aggressive posture of the Forest Service in collecting western 
water rights shows that the Intermountain Region (Utah, Nevada, Idaho 
and Colorado) has filed on or holds in ``excess of 38,000 stock water 
rights.'' These claims has been ongoing in Utah for generations. To 
date, these demands exceed 16,000 diligence claims made on livestock 
water rights scattered across Utah's forest allotments. Regional 
Forester Harv Forsgren argued these diligence claims are made on behalf 
of the United States, which was the owner of the land where livestock 
grazed prior to statehood and livestock watering took place which 
action established the Federal Government's claim to water rights.
    A ``Diligence Right'' or ``Diligence Claim'' under Utah law is a 
claim to use the surface water where the use was initiated prior to 
1903. In 1903, statutory administrative procedures were first enacted 
in Utah to appropriate water. Prior to 1903, the method for obtaining 
the right to use water was simply to put the water to beneficial use. 
To memorialize a diligence claim, the claimant has the burden of proof 
of the validity of beneficial use prior to 1903. Interestingly, the 
Intermountain Region's diligence claims pre-date the 1905 establishment 
of the Forest Service. These claims will ultimately be determined by 
the State Engineer under the guidance of the Utah Legislature.
Intermountain Region Policy
    In a letter dated June 29, 1984, Robert H. Tracy, Director of 
Watershed and Air Management for the U.S. Forest Service stated nine 
reasons why his agency needed to control the water and why livestock 
water rights should remain on the land rather than with the ranchers 
holding the grazing permits. This action identifies the transition 
point of the U.S. Forest Service to a more aggressive Federal agency in 
dealing with water issues in the western public lands States.
    The Intermountain Region has made and continues to make the 
argument that it is important for the Federal Government to hold the 
water rights to assure continued livestock grazing on public lands. In 
an August 15, 2008 Intermountain Region Briefing Paper addressing the 
2003 Nevada law that precludes the Nevada State Engineer from approving 
any new applications, permits or certificates filed by the United 
States for stock water the Regional Forester said: ``It is the policy 
of the Intermountain Region that livestock water rights used on 
national forest grazing allotments should be held in the name of the 
United States to provide continued support for public land livestock 
grazing programs.''
    The decision by Nevada to preclude the Forest Service from 
ownership of water rights led to stonewalling and ultimately little or 
no water development or investment (both agency and private) in 
livestock water rights.
    An Intermountain Region guidance document dated August 29, 2008 
provides important insights into the agency's legal strategy on Forest 
Service water claims: ``The United States may claim water rights for 
livestock use based on historic use of the water. Until a court issues 
a decree accepting these claims, it is not known whether or not these 
claims will be recognized as water rights.''
    This aggressive policy continues as Mr. Forsgren presented in 
testimony before the House Subcommittee on National Parks, Forests and 
Public Lands on March 12, 2012. He noted the Nevada legislation that 
precludes the United States from holding livestock water rights telling 
the Subcommittee: ``The Forest Service believes water sources used to 
water permitted livestock on Federal land are integral to the land 
where the livestock grazing occurs; therefore the United States should 
hold the water rights for current and future grazing.''
    The U.S. Forest Service manual currently under consideration for 
reauthorization defines a possessory claim to water rights in the name 
of the United States and directs personnel to:

        ``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 . . .''

    The United States Constitution and Utah Constitution protect 
private property from being taken by government without just 
compensation. The Utah Constitution further protects private property 
from taking or damage without just compensation. Claiming historic 
water rights without just compensation and due process violates 
Constitutional protections.
Utah Livestock Water Rights Act
    Recognizing rancher frustrations with protecting livestock water 
rights and armed with the Idaho Supreme Court Joyce Livestock decision, 
in early 2008 Utah Representative Mike Noel introduced legislation to 
define and protect the rights of ranchers holding State livestock water 
rights on Federal grazing allotments.
    As relates to H.R. 3189, The Utah Livestock Water Rights Act (Utah 
Code Title 73 Chapter 3 Section 31) provided two important and 
fundamental principles:

  1.  ``the beneficial user of a livestock watering right is defined as 
            the grazing permit holder for the allotment to which the 
            livestock watering right is appurtenant.''

    This is important because it identified livestock using the water 
as a beneficial user and associated it with the allotment managed by 
the Federal Government agencies. The Utah State Engineer was directed 
to issue a ``Livestock Water Right'' Certificate. The State Engineer 
noted for the record, the Certificate does not quantify or establish an 
adjudicated Utah water right.
    The Act however defined the ``beneficial user'' as the ``person who 
owns the grazing permit.'' The Regional Forester immediately argued the 
United States is the owner and filed for the livestock water rights on 
every active livestock grazing allotment in Utah. Recognizing the 
Nevada conundrum and faced with the claim by the Regional Forester to 
water ownership on every grazing allotment, the Utah Legislature 
amended the Utah Livestock Water Rights Act providing ``joint 
ownership''--the rancher and the Federal agency. Forest employees 
immediately and actively encouraged ranchers to sign the joint 
ownership agreement.
    In addition, Utah's Livestock Water Right Statute also provides 
that the livestock water right is tied to the grazing right and 
appurtenant to the Federal grazing allotment. It reads:

  2.  ``A livestock water right is appurtenant to the allotment on 
            which the livestock is watered.''

    This is an important provision in Utah law that addresses the 
Federal agency's argument they need to hold the water right to assure 
the multiple use and grazing mandate. Utah provides a greater level of 
assurance to this end than the Federal agency's assurances and the 
whims of the legal system.
    Utah joining Idaho and Nevada in precluding the Forest Service from 
holding or acquiring livestock water rights increased the pressure from 
the agency. The Journal of Land, Resources and Environmental Law in 
2009 noted the 2008 Utah Livestock Water Rights Act impacted Federal 
agencies and that dispute could affect their relationship with 
livestock producers ``who depend on cooperation for management of these 
grazing allotments on Federal land.''
    Before the 2009 Utah Legislature, the Regional Forester pointed out 
the Nevada conundrum to policymakers. With no interest in the water for 
the United States on Federal land in Nevada, the approvals for 
maintenance and development of water came to a standstill. This very 
real threat by the Federal Government was the catalyst for amending the 
Utah Act to provide for a certificate of ``joint ownership'' in 
livestock water.
                               h.r. 3189
                    the water rights protection act
Tooele County Grazing Association
    H.R. 3189 specifically addresses conflicts and potential 
misunderstanding between agencies and ranchers as happened in Tooele 
County Utah.
    Ranchers with livestock grazing rights on Forest Service 
administered lands in Utah's Tooele County west of Salt Lake City in 
the spring of 2012 were confronted with a packet from the local Forest 
agents seeking a ``sub-basin claim'' from the Utah Division of Water 
Rights. The packet specifically called for the ranchers to sign a 
``change of use'' application allowing the Forest Service to then 
determine what and where the use of the livestock water would be. In 
effect, the request would allow the Federal agents to then determine 
use, including changing it from livestock to wildlife, recreation or 
elsewhere.
    The ranchers objected to the Forest service request. The request 
then became a demand and the ranchers were told that not complying 
could adversely affect their ``turn-out'' or the release of their sheep 
or cattle onto their Forest grazing allotments.
    The ranchers were concerned that the actions of the Federal agents 
compromised their livestock water rights and ultimately take from them 
not only the value of their water rights, but could take the value of 
the livestock feed associated with the grazing allotment.
    The ranchers brought Utah Farm Bureau into discussions with the 
Forest personnel, Utah water rights authorities, State and local 
officials and Farm Bureau leaders. It should be noted the Forest 
personnel objected to the acquisition of strong arming to get the 
``change'' documents signed. The ranchers stood their ground pointing 
out they were in fact told not complying could hurt access onto their 
grazing allotment. This Forest Service action called for the 
relinquishment of the water right in exchange for approving the 
conditional use of the grazing allotment.
    In a follow up meeting with ranchers and Farm Bureau, local Forest 
employees were now accompanied by the Regional Forester. Mr. Forsgren 
told the group there must have been a misunderstanding. The local 
Forest agents in asking for the ``change'' application should have been 
asking for a joint ownership certificate. He further stated, any 
inference that not complying with the request would adversely impact 
access to the grazing allotment was a misunderstanding as well.
    H.R. 3189 will assure that these ``misunderstandings'' and Federal 
agents seeking ownership of livestock water rights as a condition of 
access to the Federal grazing allotment does not happen in the future. 
Congress provided for grazing on Federal lands to harvest renewable 
forage to invest in the rural economy and provide meat protein to all 
Americans. As Federal agencies manage under multiple use principles, 
the State of Utah has provided assurances that livestock water will 
remain on the land with the grazing allotment.
    This concludes my prepared testimony.

                              attachment a
                          U.S. Forest Service
               Importance of National Forest System Lands
                  in the U.S. Continental Water Supply
 
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
 

   National Forest System Lands are the largest single 
source of water in the continental United States, over 14 percent of 
available supply.
                              attachment b
                      United States Forest Service
                          Intermountain Region

 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]                                

    Mr. McClintock. The Chair is now pleased to recognize Mr. 
Glenn Porzak, attorney for the National Ski Area Association, 
from Boulder, Colorado to testify. Welcome.

 STATEMENT OF GLENN PORZAK (H.R. 3189), ATTORNEY, NATIONAL SKI 
              AREAS ASSOCIATION, BOULDER, COLORADO

    Mr. Porzak. Thank you very much. I appreciate the 
opportunity to testify today in support of H.R. 3189. I am here 
principally on behalf of the National Ski Areas Association, 
but also here on behalf of the Eagle River Water and Sanitation 
District and the Upper Eagle Regional Water Authority. With 
regard to the National Ski Areas Association, as has been 
mentioned, it has 121 members that operate under Forest Service 
lands, and that constitutes the majority of the ski area visits 
in the United States, and they are located in 13 separate 
States. Those ski areas generate over $12.2 billion in annual 
revenue.
    With regard to the Eagle River Water and Sanitation 
District and the Upper Eagle Regional Water Authority, they 
serve the over 60,000 people from the areas of Vail to Wolcott. 
That spans the congressional districts of both Congressman 
Tipton and Congressman Polis. And they are the second-largest 
municipal water supplier on the Western slope of Colorado.
    The ski industry, as has been mentioned, literally spends 
collectively hundreds of millions of dollars on the water 
rights that they use for their various operations. They are 
valuable assets to the ski area owners, and that water is 
absolutely crucial to their operations and their future growth.
    In turn, those operations and that future growth directly 
impacts the rural and mountain economies in which those ski 
resorts operate. They employ over 160,000 people in those rural 
and mountain environments, and their economies as well depend 
on that investment in the water. If there is not enough water 
for the snowmaking, for the domestic uses, then you are going 
to see a major impact to the resort communities that are in the 
vicinity of those ski areas.
    One of the important points that I want to make is that we 
talk in terms of the fact that this is a ski area issue. It is 
far more than a ski area issue. In the course of the original 
litigation over the first water right directive that was 
issued, it was discovered that not only is there a directive 
issued specifically at the ski areas, but there are other 
directives that are issued at municipal water providers, the 
grazing industry, and others. And indeed the legislation 
proposed would prevent the taking of water rights, not just of 
the ski areas, but also the municipalities and the grazers and 
other resort communities. And that is an important thing to 
keep in mind, that there is a systemwide impact, if you will, 
that we believe violates not only the Fifth Amendment of the 
U.S. Constitution, but also the congressional authorization 
that the Forest Service has.
    The next point that I want to make is that Congress has not 
delegated the authority to the Forest Service to use its 
Federal land use power to seize water rights owned by non-
Federal entities. Whether you look to the Federal Land Policy 
Management Act, to the National Forest Management Act, or any 
other of the organic Acts, they defer to State law and make it 
clear that the Forest Service does not have the authority to 
take water rights under their land use authorities.
    And the last point is that this is not a new issue. Over 20 
years ago this effort was attempted by the Forest Service, and 
as a result of that Congress formed the Federal Water Rights 
Task Force, and it issued a report in August of 1997, and I 
will just quote from that. ``Congress has not delegated to the 
Forest Service the authority necessary to allow it to require 
that water users relinquish a part of their existing water 
supply or transfer their water rights to the United States as a 
condition of the grant or renewal of the Federal permits.''
    Thank you very much. I look forward to answering any 
questions you may have.
    Mr. McClintock. Thank you, Mr. Porzak.
    [The prepared statement of Mr. Porzak follows:]
   Prepared Statement of Glenn Porzak, Attorney, National Ski Areas 
                     Association, Boulder, Colorado
    Thank you for the opportunity to testify today in support of H.R. 
3189 on behalf of the National Ski Areas Association (NSAA), the Eagle 
River Water and Sanitation District (District) and the Upper Eagle 
Regional Water Authority (Authority). The NSAA has 121 member ski areas 
that operate on National Forest System lands under a special use permit 
from the U.S. Forest Service. These public land resorts accommodate the 
majority of skier visits in the U.S. and are located in 13 States. The 
ski industry generates $12.2 billion in economic activity annually. The 
District and Authority collectively provide municipal water service to 
over 60,000 people from Vail to Wolcott. This area spans the districts 
of Congressmen Polis and Tipton in Colorado. The District and Authority 
are the second largest municipal water provider on Colorado's western 
slope.
    Collectively, ski areas have invested hundreds of millions of 
dollars on water rights to support and enhance their operations. Water 
is crucial to ski area operations and ski area water rights are 
considered valuable assets to ski area owners. Water is crucial to 
future growth of ski areas, and that future growth directly impacts the 
rural economies associated with ski areas. Ski areas are major 
employers in rural economies, employing 160,000 people, and help drive 
job creation in rural and mountain economies. The same is true for 
municipal water providers; in particular, those that provide water 
service to the resort communities. They have invested hundreds of 
millions of dollars on their water rights, and those water rights are 
essential to meeting their water service obligations to many thousands 
of people.
    This bill responds to recent Forest Service attempts to implement 
permit conditions that require the transfer of privately and publically 
held water rights on National Forest system lands to the Federal 
Government as a permit condition. There is no compensation for these 
mandated water right transfers despite the fact that the ski areas and 
municipal providers have invested millions of dollars in developing 
these water rights. The Forest Service has issued directives to this 
effect that apply to not only the ski industry, but all other special 
use permit holders on Forest System lands, including municipal water 
providers, recreation residences, resorts, marinas and other users. By 
issuing these directives, the Forest Service has not only violated the 
Fifth Amendment to the U.S. Constitution by taking property without 
paying compensation, it has attempted to use its permitting authority 
to circumvent long established Federal and State water laws. The Water 
Rights Protection Act protects these privately and publically held 
water rights, prohibits Federal takings, and upholds State water law 
by:

    --Prohibiting agencies from implementing a permit condition that 
            requires the transfer of water rights to the Federal 
            Government in order to receive or renew a permit for the 
            use of land;
    --Prohibiting the secretary of the Interior and the Secretary of 
            Agriculture from requiring water users to acquire water 
            rights for the United States, rather than for the water 
            user themselves;
    --Upholding longstanding Federal deference to State water law.

    This bill does not create new law as Congress has not delegated 
authority to the Forest Service to use its Federal land use power to 
seize water rights owned by non-Federal entities. Specifically, none of 
the governing Federal statutes delegate such authority to the Forest 
Service, including the Organic Administration Act of 1897 (16 U.S.C. 
Sec. 475, 481, & 526), Sec. 505 of the Federal Land Policy and 
Management Act of 1976 (``FLPMA'') (43 U.S.C. Sec. 1765), NFMA (16 
U.S.C. Sec. 1604(i)), or the Ski Area Permit Act of 1986 (16 U.S.C. 
Sec. 497b). In fact, FLPMA and NFMA provide for the protection of valid 
existing rights and FLPMA requires that water is to be allocated in 
accordance with water rights established under State law. See 
Sec. 701(g) and (h) of FLPMA (43 U.S.C. Sec. 1701, note re: Savings 
Provisions, Pub. L. 94-579); Sec. 505 of FLPMA (43 U.S.C. Sec. 1765); 
and NFMA, 16 U.S.C. Sec. 1604(i).
    In 1996, Congress created a Federal Water Rights Task Force, P.L. 
104-127 Sec. 389(d)(3), in response to a controversy in Colorado over 
the attempt by the Forest Service to require permit holders to 
relinquish part of their water supply for secondary National Forest 
purposes as a permit condition. In its August 25, 1997 Report, the 
Federal Water Rights Task Force concluded that ``Congress has not 
delegated to the Forest Service the authority necessary to allow it to 
require that water users relinquish a part of their existing water 
supply or transfer their water rights to the United States as a 
condition of the grant or renewal of Federal permits. . . .'' The Task 
Force further concluded that ``[u]nless Congress explicitly granted to 
the Forest Service the authority to use permitting authority to require 
bypass flows or the transfer of title to the United States, the Forest 
Service must respect and protect non-Federal water rights in its 
planning and decisions, and it must attain National Forest purposes 
through the acquisition and exercise of Federal water rights in 
priority.'' (Part VI, Paragraph 1).
    The Task Force also stated that the Forest Service must recognize 
that:

        water rights established under State law are property rights 
        for purposes of the Fifth Amendment to the United States 
        Constitution [and that] because Congress severed water from the 
        public lands and allowed third parties to obtain vested rights 
        in and to the continued use of water derived from public lands 
        absent an explicit grant of authority by Congress, the 
        authority of the Forest Service derived from the Property 
        Clause of the United States Constitution and land management 
        statutes does not include the ability to use land management 
        authority to reallocate or otherwise obtain for Federal use, 
        without the payment of just compensation, water that has been 
        appropriated by or on behalf of non-Federal parties. (Part VII 
        B, Paragraph 2).

    For the same reasons detailed by the Task Force Report, the Forest 
Service's efforts to gain control over water rights are invalid because 
they exceed the Forest Service's legal authority and the implementation 
would result in an unlawful taking of property without just 
compensation in violation of the Fifth Amendment of the U.S. 
Constitution. Thus, H.R. 3189 complies with and is supported by both 
Federal constitutional and statutory law.

                                 ______
                                 

    Mr. McClintock. The Chair is now pleased to recognize Mr. 
Tony Willardson of the Western States Water Council, based in 
Murray, Utah, to testify.

 STATEMENT OF TONY WILLARDSON (H.R. 3176), EXECUTIVE DIRECTOR, 
           WESTERN STATES WATER COUNCIL, MURRAY, UTAH

    Mr. Willardson. Thank you, Mr. Chairman and Representative 
Napolitano and the other members of the subcommittee. The 
Council is an advisory body to the Western Governors and our 
members are appointed by the Governors and represent senior 
water managers and administrators. It is actually a little 
ironic that I am here after being snowed-in in South Dakota for 
3 days, that I am here to talk about drought. And I spent 3 
days in a hotel with a good friend of Mr. Amodei's, Mr. Roland 
Westergard, who is a member of the Council.
    My testimony is based on a position, which is included for 
your review. And as part of that I would also like to recognize 
that part of this Act authorizes the Secretary to work with 
other Federal and State agencies in providing hydrologic data 
collection and water supplier forecasting. And before you, I 
believe you have a brochure which talks about another program 
that we support, the National Integrated Drought Information 
System, which includes the support of the Department of the 
Interior.
    Drought has been and continues to be serious in the West. 
This is an October 1 diagram of the extent of the drought. 
While there has been some alleviation, there is still most of 
the West that is afflicted by moderate to extreme drought, with 
a few exceptions, and with a few areas where there is still 
exceptional drought.
    NOAA has determined that three of the five most costly 
weather-related disasters, including Katrina and Superstorm 
Sandy, the other three are drought. We are still calculating 
the cost of the drought last year. Actually, it was record-
breaking and compares only to the drought of 1934 in terms of 
its persistence and magnitude. It is also unusual in its quick 
onset and has become known as a flash drought. And it will be 
some time before we can fully calculate all of the costs. But 
that highlights the need to focus resources on planning for and 
mitigating drought impacts.
    These antecedent conditions we anticipate will mean the 
drought will be with us for some time, with continuing impacts 
on the economy, the environment, and other interests. As was 
mentioned by Representative Napolitano, it is estimated that 
drought costs $6 to $8 billion a year in the United States. To 
the ski industry last year, it is estimated that skier visits 
were down nearly 12 percent in 2012 compared to 2011. Seventy 
percent of the Nation's crop and livestock production was 
affected last year. There was over a billion dollars in damages 
due to wildfire. And the Colorado River experienced its worse 
or its driest year since records began in 1985, with only 44 
percent of the average annual runoff.
    But notwithstanding the severity, in the past we have taken 
a reactive approach to responding to drought on an ad hoc 
basis, and we need to be much more proactive. In 1996 the 
Western Governors set a goal, an aggressive goal, changing the 
way we deal with drought and responding to drought and being 
more prepared. And we have worked with a number of Federal 
agencies, including the Bureau of Reclamation, to improve our 
management. One out of every five farmers in the West is served 
by the Bureau of Reclamation, along with 31 million people. And 
they have a very important role to continue to play in water 
supply management and reliability in the West.
    I mentioned, too, that with respect to the assistance that 
they provide under the Act, the authorities that are unique, 
they have the ability to participate in drought banks, as well 
as to acquire water from willing buyers and facilitate trades 
between buyers and sellers, to provide water under temporary 
contracts, and also make reclamation facilities available for 
the storage and conveyance of both project and nonproject 
water, as well as to acquire water for fish and wildlife.
    With respect to planning, Benjamin Franklin said, ``By 
failing to plan, you are preparing to fail.'' And the planning 
aspects of this bill are also important. States have primary 
authority over the allocation of use of water, and I want to 
emphasize that. But we have long supported integrated water 
resources management and planning and the need for 
comprehensive respond to drought.
    And I just conclude by saying that if the exceptional 
drought conditions that we have, and absent reauthorization of 
this bill, it will be even more difficult to address many of 
the challenges that we face and there will be serious 
consequences for small communities, for tribes, and others who 
do not have the resources that are available to them and 
assistance through this Act. Thank you very much, Mr. Chairman.
    Mr. McClintock. Great. Thank for your testimony.
    [The prepared statement of Mr. Willardson follows:]
 Prepared Statement of Anthony Willardson, Executive Director, Western 
                   States Water Council, Murray, Utah
  H.R. 3176--to reauthorize the Reclamation States Emergency Drought 
                           Relief Act of 1991
                            i. introduction
    Chairman McClintock, Ranking Member Napolitano and Members of the 
Subcommittee, the Western States Water Council (WSWC) is a non-partisan 
policy advisory body closely affiliated with of the Western Governors' 
Association (WGA). The WSWC represents 18 western States and WSWC's 
members are appointed by their respective Governors to represent their 
States. Our membership includes senior state water managers and 
administrators. Moreover, 12 Federal agencies, including the U.S. 
Bureau of Reclamation, have appointed representatives that comprise a 
Western Federal Agency Support Team (WestFAST) working with western 
Governors to address pressing western water issues, including drought.
    Our testimony is primarily based on WSWC Position #347, which 
strongly supports legislation to reauthorize the Reclamation States 
Emergency Drought Relief Act (43 U.S.C. 40), providing the Bureau of 
Reclamation with much-needed tools to respond to record-breaking 
drought. Of note, ``The Secretary is authorized to work with other 
Federal and State agencies to improve hydrologic data collection 
systems and water supply forecasting techniques to provide more 
accurate and timely warning of potential drought conditions and drought 
levels that would trigger the implementation of contingency plans.''
    The WSWC strongly supports such authorized activities and similarly 
reauthorization of the National Integrated Drought Information System 
(NIDIS).
                        ii. drought in the west
    Drought has been, is, and will be an ongoing fact of life in the 
arid West. While conditions in many areas have improved recently, much 
of the West and Midwest continue to be affected by moderate to extreme 
drought, with a few areas of exceptional drought, as illustrated by the 
U.S. Drought Monitor of October 1, 2013. In the Summer of 2012, some 
two-thirds of the country was experiencing some level of drought, and 
this past spring nearly half the Nation was affected by moderate to 
exceptional drought conditions.\1\
---------------------------------------------------------------------------
    \1\ Kelly Helm Smith, Drought Shifts West on April 23 U.S. Drought 
Monitor as Heavy Rains Drench the Midwest, Nat'l Drought Mitigation 
Ctr. News (Apr. 18, 2013), http://drought.unl.edu/NewsOutreach/
NDMCNews.aspx?id=90.
---------------------------------------------------------------------------
    Unfortunately, the most up-to-date information is unavailable due 
to the shut-down of National Oceanic and Atmospheric Administration's 
(NOAA) Web site, www.drought.gov.
    Of note, NOAA estimates that three of the five most costly U.S. 
weather related disasters were droughts--with Hurricane Katrina ranked 
#1, and Super Storm Sandy #4. The cost of the Drought of 2012 has yet 
to be fully calculated. Still, the figures available underscore the 
economic, environmental and social costs related to drought, and the 
need to focus more resources on planning for and mitigating drought 
impacts, as well as facilitating a prompt response during drought 
emergencies.
    Although recent precipitation has somewhat improved drought 
conditions, particularly in the Midwest,\2\ the U.S. Seasonal Drought 
Outlook suggests drought will likely persist in much of the West for 
some time.
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    Dry conditions this past summer follow the record breaking drought 
of 2012, which was unique in terms of its sudden onset, persistence, 
and magnitude--both in terms of extremes and the large geographic area 
affected.\3\ For example, over 60 percent of the contiguous U.S. 
experienced moderate to extreme and exceptional drought during 2012, 
with only 1934 comparable in duration and geographic extent.\4\ Last 
year, was also the warmest year on record for the contiguous U.S. 
dating back to 1895.\5\
---------------------------------------------------------------------------
    \3\ Hearing on Drought, Fire and Freeze: The Economics of Disasters 
for America's Agricultural Producers before the U.S. Senate Committee 
on Agriculture, Nutrition, and Forestry, 113th Cong. 1, 3 (Feb. 14, 
2013) (statement of Roger Pulwarty, Director, National Integrated 
Drought Information System).
    \4\ Id.
    \5\ Nat'l Climatic Data Center, Wildfires--Annual 2012 (Jan. 7, 
2013), http://www.ncdc.noaa.gov/sotc/fire/2012/13.
---------------------------------------------------------------------------
    Not surprising, these antecedent conditions coupled with the 
ongoing drought have adversely impacted a broad spectrum of economic, 
environmental, and other interests across the West and the Nation as a 
whole, the effects of which will reverberate for years to come. 
Examples include:

     According to some estimates, drought costs the U.S. 
            economy between $6 billion to $8 billion per year,\6\ with 
            the cost of the 2012 drought possibly exceeding $35 
            billion.\7\
---------------------------------------------------------------------------
    \6\ W. Governors Ass'n, Creating a Drought Early Warning System for 
the 21st Century, preface (2006), http://westgov.org/reports/
doc_download/394-creating-a-drought-early-warning-system-for-the-21st-
century-nidis.
    \7\ Pulwarty, supra note 3 at 2 (citing Aon Benfield Reinsurance 
Group's Annual Global Climate and Catastrophe Report).
---------------------------------------------------------------------------
     Agriculture accounted for much of the economic costs of 
            the 2012 drought,\8\ due in part to moderate or exceptional 
            drought conditions affecting around 70 percent of the 
            Nation's crop and livestock production at certain times 
            during the year.\9\
---------------------------------------------------------------------------
    \8\ Id.
    \9\ U.S. Dep't of Ag., Economic Research Service, U.S. Drought 
2012: Farm and Food Impacts, http://www.ers.usda.gov/topics/in-the-
news/us-drought-2012-farm-and-food-impacts.aspx#.UXhHzbU4udh.
---------------------------------------------------------------------------
     For only the third time in over 40 years, wildfires across 
            the country burned more than 9 million acres in 2012, 
            causing over $1 billion in damage.\10\ The most damaging 
            fires occurred in the West, including the Whitewater-Baldy 
            Fire which burned 297,845 acres in New Mexico's Gila 
            National Forest.\11\
---------------------------------------------------------------------------
    \10\ Pulwarty, supra note 2 at 1; Nat'l Climatic Data Center, 
Wildfires--Annual 2012 (Jan. 7, 2013), http://www.ncdc.noaa.gov/sotc/
fire/2012/13.
    \11\ U.S. Forest Serv., Whitewater-Baldy Complex Final Community 
Update (June 28, 2012), http://www.fs.usda.gov/detail/gila/news-events/
?cid=STELPRDB5377297.
---------------------------------------------------------------------------
     The Colorado River Basin experienced one of its driest 
            years in the 1895-2012 period of record, with only 44 
            percent of its annual average runoff.\12\
---------------------------------------------------------------------------
    \12\ Pulwarty, supra note 3 at 1.
---------------------------------------------------------------------------
     Skier visits to the 21 resorts that comprise Colorado Ski 
            Country USA were down 11.5 percent in 2012, compared to 
            2011.\13\
---------------------------------------------------------------------------
    \13\ Id.

    Notwithstanding the severity of these impacts and the relative 
frequency of drought in many parts of the West and the Nation, in 
general, we have to often taken a reactive approach to drought, 
responding on an ad hoc basis to each drought crisis as it develops. 
However, over the years, many western States and Federal agencies have 
undertaken more proactive approaches to coordinated planning and 
preparedness intended to avoid or mitigate adverse impacts before they 
happen.
    Of note, in the 1996 Drought Response Action Plan, the WGA set an 
aggressive goal of changing the way our Nation prepares for and 
responds to drought, with subsequent efforts by the WGA and the WSWC 
designed to promote a comprehensive, coordinated, and integrated 
response to drought at all levels of government. We have worked with 
Federal agencies, including the Bureau of Reclamation, to promote, 
proactive, cooperative drought contingency planning and response.
        iii. the reclamation states emergency drought relief act
    The Bureau of Reclamation is the Nation's largest wholesale water 
supplier, providing water to over 31 million people and supplying 
irrigation water to one out of five western farmers.\14\ 
Notwithstanding Reclamation's vital role as a water supplier in the 
West, the Act constitutes the whole of its specific drought response 
and planning authority. Consequently, failure to reauthorize the Act 
will limit Reclamation's ability to deliver assistance in response to 
present drought impacts and also limit its ability to help States, 
tribes, and other stakeholders plan for mitigating and minimizing 
future drought impacts.
---------------------------------------------------------------------------
    \14\ U.S. Bureau of Reclamation, Bureau of Reclamation: Facts and 
Information, (Jan. 4, 2013), http://www.usbr.gov/main/about/fact.html.
---------------------------------------------------------------------------
A. Title I--Assistance During Drought
    Title I of the Act authorizes Reclamation to undertake 
construction, management, and conservation measures during drought to 
minimize or mitigate damage or loss, including authority to act as a 
``last resort'' to aid smaller towns, counties, and tribes that lack 
the financial capacity to address drought impacts on their own. It also 
authorizes Reclamation to acquire water to meet diverse requirements 
under the Endangered Species Act, while at the same time benefiting 
water users and water delivery contractors at a time when they often 
face significant financial challenges. Other beneficial drought 
response actions that Reclamation can undertake under Title I include:

     Participation in water banks established under Federal 
            law;
     Facilitation of water acquisitions between willing buyers 
            and willing sellers;
     Acquisition of conserved water for use under temporary 
            contracts;
     Making Reclamation facilities available for storage and 
            conveyance of project and non-project water;
     Making project and non-project water available for non-
            project uses; and
     Acquisition of water for fish and wildlife purposes.

B. Title II--Drought Contingency Planning
    Title II of the Act responds to Benjamin Franklin's oft-quoted 
adage: ``By failing to plan, you are preparing to fail.'' Specifically, 
it authorizes Reclamation to assist and participate in the preparation 
of drought contingency plans in all 50 States and U.S. territories to 
help prevent or mitigate future drought-related losses. Title II also 
authorizes Reclamation to conduct studies to identify opportunities to 
conserve, augment, and make more efficient use of water supplies that 
are available to Federal Reclamation projects and Indian water resource 
developments to better prepare for and respond to drought conditions.
    States have primary authority over the allocation and protection of 
water resources within their borders. However, the WSWC has long 
supported integrated water resource management and encourages the 
development of comprehensive water plans with State leadership and 
Federal assistance. This includes a comprehensive and integrated 
response to drought in which States work with Federal agencies, local 
communities, and other stakeholders to develop proactive drought 
preparedness and contingency plans.
    Title II authorizes Reclamation to engage in exactly this type of 
planning, which is critical to the social, environmental, and economic 
well-being of the West. Reauthorization of the Act is needed to 
maintain Reclamation's ability to carry out this important work. 
Otherwise, States, tribes, and local communities will likely be 
deprived of much needed technical assistance and expertise at a time 
when some projections indicate that large portions of the West, 
particularly the Southwest, will become hotter and drier in coming 
years. Many of these areas are also experiencing increasing demands on 
already scarce water supplies due to rapidly growing populations, 
environmental requirements, energy resource development and other 
factors. As a result, the need for effective drought preparedness and 
contingency plans has never been greater. Of note, many of the 
enumerated elements of such plans, including water banks and water 
rights transfers (both temporary and permanent), may require State 
authorization.
                             iv. conclusion
    The exceptional drought conditions of 2012 and the ongoing drought 
that covers much of the West underscores the need to reauthorize the 
Act. Reauthorization will provide Reclamation with clearer direction 
and greater flexibility to continue delivering water and much needed 
financial and technical assistance to States, tribes and local 
communities suffering from record-breaking drought impacts. 
Reauthorization will also facilitate more effective State-based and 
other grassroots drought preparedness and mitigation efforts. Absent 
reauthorization, Reclamation will lack critical authority to provide 
emergency assistance.
    Moreover, given our member States' experience with implementation 
of the Act, it may be well to further evaluate the current needs of the 
States, tribes and local communities and Reclamation's existing 
authorities and capability to assist in meeting those needs as 
appropriate. With minor exceptions, such as the drilling of wells, the 
Act authorizes only temporary, non-structural actions. To maximize the 
effectiveness and efficiency of such actions, they should be considered 
and undertaken within the context of both State emergency drought 
response plans, but broader State water planning activities.
    Notably, the Act provides that the programs and authorities become 
operative ``only after the Governor or Governors of the affected State 
or States . . . has made a request for temporary drought assistance. . 
. .'' Further, the Act states, ``All actions taken pursuant to this 
chapter pertaining to the diversion, storage, use, or transfer of water 
shall be in conformity with applicable State and applicable Federal 
law.'' Last, ``Nothing in this chapter shall be construed as expanding 
or diminishing State, Federal, or tribal jurisdiction or authority over 
water resources development, control, or water rights.''
    The WSWC appreciates the opportunity to submit this testimony and 
urges the Committee to favorably report H.R. 3176 to reauthorize the 
Act.

   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]                              

    Mr. McClintock. And the Chair is now pleased to recognize 
Mr. Wayne Crews, Vice President for Policy and Director of 
Technology Studies for the Competitive Enterprise Institute 
based in Washington, DC, to testify. Welcome to the committee.

     STATEMENT OF WAYNE CREWS (H.R. 3176), VICE PRESIDENT, 
        COMPETITIVE ENTERPRISE INSTITUTE, WASHINGTON, DC

    Mr. Crews. I am Wayne Crews, Vice President for Policy at 
CEI, and I thank the committee for the invitation to address 
Federal drought relief funding and planning. I come at this 
issue from the perspective of one who spends most of my time on 
tech and frontier policy issues, industry policy issues, 
including compiling an annual Federal regulation report called 
``Ten Thousand Commandments.''
    Given environmental barriers to urgently needed water in 
the West, I completely understand the desire for the funding in 
H.R. 3176, and granted the dollars sought are trivial in 
context of the current budget battles, but I caution against 
any fostering of any further declaration of dependence on 
Federal dollars in any sector.
    The regulatory reforms and infrastructure liberalization 
actually needed for plentiful, adaptable, environmentally 
conscious Western water should dominate our attention. The good 
news is water is not getting more scarce overall, it is an 
earthly constant. The bad news is we artificially interrupt 
access to water, so management and allocation of that constant 
supply does matter.
    The Western and California natural environment is a world 
wonder, but so, too, is the remarkable manmade infrastructure. 
Western environments are some of the most altered on Earth, and 
yet environmental protection is not alien to providing 
plentiful water, the opposite is true. Restraints like waste 
stream recapture, conservation and stewardship, property rights 
regimes, liability and insurance all must evolve alongside 
infrastructure. Governments often magnify environmental damage 
and risks. Water resources and environmental amenities should 
be better integrated into the property rights wealth-creating 
sector, an evolution long since derailed not just here but 
elsewhere, like in electromagnetic spectrum, electricity and 
transportation grids.
    Instead of the Drought Reclamation Act, I advocate 
increasing separation of water and State. We should lessen 
having government steer while the market merely rows.
    Federal policies can be contradictory, too. We hear a lot 
about a Federal infrastructure bank and we are endlessly 
regaled about the urgency of bolstering critical 
infrastructure, but these sentiments are certainly undercut by 
onerous permitting and environmental regulations that aggravate 
drought out West.
    The fact is, as a free society becomes wealthier, cross-
industry creation of infrastructure like water should become 
easier, not harder. The vastly poorer America of 100 years ago 
built overlapping, redundant infrastructure. So if we can't do 
it today, it is largely because of manmade policies, not 
genuine drought.
    Infrastructure can take many forms, but all around better 
reservoir storage, pipelines and canals, trucking and 
transport, and crude oil carriers can aid supply and lessen 
artificial drought and lessen impetus for Federal funding. So, 
too, can improved trade between cities, farmers, and private 
conservation campaigns. Improving water infrastructure can also 
reduce the waste that now depletes some 17 percent of annual 
supply, as noted in a Competitive Enterprise Institute by 
Bonner Cohen last year.
    All this can supplement direct sourcing alternatives, 
including drilling, gray and wastewater treatment and 
reclamation, storm water harvesting and surface storage, and, 
OK, even desalination where it is economically rational. When 
linking investment to human needs, private investors can test 
low-probability projects, counting on rare successes to offset 
the failures. Markets need to be good at killing bad projects. 
As CEI's founder Fred Smith puts it, instead of trying to 
improve speeds by picking particular horses to run on the 
economic racetrack, we must improve the track itself so all the 
horses can go faster, and letting jockeys keep more of their 
earnings means more jobs in these suffering areas, too. Thus we 
also need sweeping regulatory liberalization. In my written 
testimony I cover reform options to enable a private sector 
flush with research and development cash and investment cash to 
dwarf H.R. 3176.
    Finally, this is the Water and Power Subcommittee, and I 
think it is vital to step back and explore dismantling these 
regulatory silos that artificially separate our great network 
industries like water, electricity, transportation, 
telecommunications. Leaving antique 19th and 20th century 
infrastructure regulation intact hampers 21st century 
investment.
    [3:25 p.m.]
    Mr. Crews. Our primary challenge is to integrate modern 
water resources further into the market process and the 
sophisticated property rights and capital market systems of the 
modern world. Despite everything, gallons cost less than a 
penny and, yes, even fill swimming pools and quench lawns in 
deserts.
    The last time I spoke in the subcommittee I was asked if I 
thought access to water was a right. Now committee members who 
believe it is must consider the full implications of that 
question. What makes abundant water the most critical of 
critical infrastructures possible? Thank you.
    [The prepared statement of Mr. Crews follows:]
     Prepared Statement of Clyde Wayne Crews Jr., Vice President, 
            Competitive Enterprise Institute, Washington, DC
       For every action, there is an equal and opposite government 
                                                           program.
                                                              --unknown

    The Competitive Enterprise Institute (CEI) is a non-profit public 
policy research organization dedicated to advancing individual liberty 
and free enterprise with an emphasis on regulatory policy. We 
appreciate the opportunity to discuss issues surrounding H.R. 3176, a 
bill reauthorizing parts of the Reclamation States Emergency Drought 
Relief Act, which ``authorizes emergency response and planning 
assistance that would minimize and mitigate losses and damages 
resulting from drought conditions.'' \1\
---------------------------------------------------------------------------
    \1\ U.S. Department of the Interior, Bureau of Reclamation Web 
site: http://www.usbr.gov/drought/.
---------------------------------------------------------------------------
    We see issues surrounding water access and supply in the West and 
notably Central Valley California as elements of broader 
infrastructure, property rights and economic growth policy.
    Competitive and localized rather than Federal approaches to 
expanding infrastructure industries and the technologies and 
innovations underlying them, along with broader Federal regulatory 
liberalization more generally, will be more effective than Federal 
funding of particular projects at boosting innovation and resource 
wealth, enhancing consumer well-being, facilitating commerce and trade 
and advancing national prosperity.
    Water, like other ``public goods'' resources largely non-privatized 
prior to the Progressive era, largely has never been brought into the 
competitive realm since the progressive era interruption of extensions 
of private property rights, which has had long-term consequences.\2\ 
Like spectrum, airsheds and environmental amenities generally, water is 
one of the fundamental resources that never fully entered the wealth 
creating sector.
---------------------------------------------------------------------------
    \2\ See Fred L. Smith Jr., Eco-Socialism: Threat to Liberty Around 
the World, paper presented at the Mont Pelerin Society Regional 
Meeting, Chattanooga, Tennessee, September 20, 2003. http://cei.org/
pdf/3818.pdf.
---------------------------------------------------------------------------
           a manmade western waterscape needs less washington
        California is a beautiful fraud; a magnificent put-on, an 
        exquisitely lush illusion. From the farmlands of the Central 
        Valley to the swimming pools, green lawns and flowering 
        landscapes of Southern California, it is all a brilliantly 
        engineered masterpiece, an extensive rearrangement of the 
        existing natural order, created by the ingenuity and will of 
        man, and costing billions of taxpayer dollars in the process.
                                                       --Aquafornia \3\

    \3\ http://www.aquafornia.com/index.php/where-does-southern-
californias-water-come-from/.
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    The Reclamation States Emergency Drought Relief Act, H.R. 3176, 
covers 17 western states (and Hawaii), and all 50 with respect to 
planning.
    My summary with regard to H.R. 3176, the reauthorization of the 
Reclamation States Emergency Drought Relief Act, is that one needn't 
give the world's 8th largest economy $15 million from Federal taxes for 
relief actions and planning. California is not the only recipient of 
course, but the bill is counterproductive with respect to water access 
goals. If that money is allocated, there's no reason it should not be 
paid back. Meanwhile, regulatory liberalization is a better option for 
strengthening this vital industry.
    California is the land of milk and honey but also the realm of 
hundreds of dams, canals, aqueducts and reservoirs. Granola and hippie 
legacy notwithstanding, California's is perhaps the most manipulated 
environment on the planet, but the nature lovers seem happy remaining 
there marinating in the ``artificiality.''
    That's not an insult. Water resource development supports entire 
cities and towns. Remake of the landscape is total. When one turns on 
the tap, that water often comes from hundreds of miles away. Nothing 
water-wise is natural in the State, which--one can dream--should make 
it easier rather than harder to address grave political battles.
    While today's California would have shut down yesterday's before it 
ever started, a dose of reality is required in western water policy. If 
ruthless, brutal drought and flood cycles--which would render most 
lifestyles impossible--are unacceptable, and they most assuredly are, 
then active water management is necessary, and is a good thing.
    Western states should fund resolution of their environmental 
problems and water access issues without involving the far less blessed 
rest of the Nation, who have their own crises. If funds from are 
received, they should be reimbursed.
    Longer term we must emphasize regulatory liberalization, 
environmental rationality, and, longer term, better bring California's 
vast delta and glacial and reservoir water resources under market 
systems/regimes to ``balance'' the warring agricultural/irrigation in 
lower central valley, drinking water, industrial, environmental set-
asides and recreational uses.
    Californian's actions show that they've accepted irretrievable 
change, even though, as John McPhee pointed out, there are only a 
handful of river deltas where two rivers combine. There is no denying 
the grandeur of the Central Valley, ``Far more planer than the planest 
of plains'' as McPhee put it, noting that the got there before the 
``mountains set up like portable screens.'' The Central Valley Project 
(CVP) irrigates three million acres, water that could come from the 
Delta or nearby or hundreds of miles further.
    Like the natural environment, the manmade water infrastructure 
itself is a world wonder. The valley is the most productive 
agricultural economy; almonds, artichokes, everything. With pipelines 
and pumps traversing hills, the CVP is said to be a net producer of 
energy/ recapture in the Valley at CVP; that's good, what are lessons 
from that in terms of liberalizing infrastructure to better meet 
consumers' needs.
    But it gets hot, and fruit trees are painted white to avoid 
sunburn. Geologically the Delta levees are tissue paper. The State will 
have to upgrade them since they aren't going to last. The State is home 
to the highly energy intensive tech industry; it is friendly toward 
high levels of immigration; its population is growing. So droughts must 
be managed, water better stored and allocated. Anticipation and 
planning matter. Policymakers' job is to prevent further derailment of 
bringing environmental resources and amenities into the pricing 
institutions of markets and property rights, regardless of the failure 
(universal, not just in California) of building those institutions in 
the past. Such regimes are too young as human institutions to have done 
it right.
    It's one thing to argue against taxpayer dollars for unreimbursed 
well drilling and Reclamation plans as in the H.R. 3176 instance, and 
this report does that; It also advocates regulatory reforms, and 
environmental rationality so as to ease production. Long term, it is 
worthwhile and meaningful to fit this debate into the context of the 
context of ``big assets,'' critical infrastructure, water pricing and 
access and environmental health. Rather than send money, policymakers' 
job is the opposite: to prevent the machinations that interrupt market 
clearing prices and result in shortages and misallocations.
     what's in the reclamation states emergency drought relief act
    Water availability is a core national infrastructure concern. The 
specific legislative issue in H.R. 3176, a bill reauthorizing parts of 
the Reclamation States Emergency Drought Relief Act, is what role the 
Federal Government should play in drought planning and mitigation. At 
the core is reauthorization to spend $15 million in remaining funds. 
The original act passed in 1991, created largely because of a 6-year 
California drought, but the planning applies to all 50 States.
    The Bureau of Reclamation says (BOR) ``The Act authorizes emergency 
response and planning assistance that would minimize and mitigate 
losses and damages resulting from drought conditions.'' \4\
---------------------------------------------------------------------------
    \4\ http://www.usbr.gov/drought/.
---------------------------------------------------------------------------
    The Act itself can be summarized as follows: \5\
---------------------------------------------------------------------------
    \5\ http://www.usbr.gov/drought/102-250.html.

        Title I: Assistance During Droughts: Allows Reclamation to 
        undertake activities that would minimize or mitigate drought 
        damages or losses within the 17 Reclamation States including 
        tribes within those States, and Hawaii. Any construction 
        activities undertaken shall be limited to temporary facilities, 
---------------------------------------------------------------------------
        with the exception of well construction.

        Title II: Drought Contingency Planning: Provides for assistance 
        in drought planning. All 50 States and U.S. territories are 
        eligible.

    The bill is rather open-ended, providing for conducting studies and 
technical assistance that even includes controversial desalination 
projects. The ``Plan Provisions'' including but not limited to the 
below are precisely what market actors should manage, not the Federal 
Government as a mini-FEMA.

  1.  Water banks.
  2.  Appropriate water conservation actions.
  3.  Water transfers to serve users inside or outside authorized 
            Federal Reclamation project service areas in order to 
            mitigate the effects of drought.
  4.  Use of Federal Reclamation project facilities to store and convey 
            nonproject water for agricultural, municipal and 
            industrial, fish and wildlife, or other uses both inside 
            and outside an authorized Federal Reclamation project 
            service area.
  5.  Use of water from dead or inactive reservoir storage or increased 
            use of ground water resources for temporary water supplies.
  6.  Water supplies for fish and wildlife resources.
  7.  Minor structural actions.

    Water utilities and irrigation districts are not required to repay 
Federal funds used for well drilling (the bulk of support under the 
law) in times of drought; they benefit in perpetuity. In California, 
most went to the San Joaquin Valley district.
    We require alternatives to this flawed program, at the very least, 
repayment of funds. The San Joaquin Water Reliability Act of Rep. Devin 
Nunes is another alternative; he stresses jobs and seeks to turn on the 
Delta water export pumps to former levels.\6\ Fishery groups criticize 
Nunes for an ``assault on California's fisheries and rivers'' and for 
wanting to ``seize much of the water devoted to California's fisheries 
and the environment, delivering it instead to the agribusiness barons 
of the western San Joaquin Valley.'' \7\ In the face of such 
opprobrium, it is understandable that irrigation districts and 
utilities that receive less water owing to Delta related environmental 
restrictions would like the ``compensation'' the $15 million 
represents, but that is less than a band-aid particularly if the 
funding discourages needed conservation or is seen as a replacement for 
regulatory liberalization needed. So at the least, the bill should 
require that the funds be returned to taxpayers.
---------------------------------------------------------------------------
    \6\ Nunes bill http://www.gpo.gov/fdsys/pkg/BILLS-112hr1837ih/pdf/
BILLS-112hr1837ih.pdf and summary; http://nunes.house.gov/
uploadedfiles/legislative_summary_of_the_sacramento-
san_joaquin_valley_water_reliability_act.pdf.
    \7\ http://blog.sfgate.com/zgrader/2011/07/25/congressman-nunes-
attempt-to-destroy-californias-salmon-and-fishing-jobs/.
---------------------------------------------------------------------------
    Irrigation once was a more individualized matter; the 1877 Desert 
Land Act that amended the Homestead Act provided for a 25 cents per 
acre down payment on 640 acres; the new owner would bring a portion 
under irrigation within three years, and could receive full title upon 
proof of irrigation and payment of an additional dollar per acre.\8\ In 
that former world, one was to prove one had irrigated land oneself to 
receive a land grant, however fraud-riddled that was.
---------------------------------------------------------------------------
    \8\ Fite-Reese, An Economic History of the United States, 2nd 
Edition.
---------------------------------------------------------------------------
    Make no mistake, property rights claims are a mish-mash in the 
West; Native Americans have rights dating back to time immemorial; the 
BOR to 1905; the National Wildlife Refuges to 1928 and 1964; the 
homesteaders have rights claims dating to whenever they first settled 
in the basin extending into perpetuity.\9\
---------------------------------------------------------------------------
    \9\ Observation by CEI Fellow Robert J. Smith.
---------------------------------------------------------------------------
    Policymakers' objective should be to increasingly liberalize the 
marketplace, including improving the regulatory environment such that 
we better avoid man-made droughts; and payments under the guise of this 
bill at the very least should achieve that end. Longer term, subjecting 
water strategy decisions and investment to marketplace pressures that 
address competing interests will become increasingly important, and if 
those pressures have been subverted by past political choices, to 
return them to the private realm, or to make the private realm more 
relevant to future choices.
               a fountain of solutions for western states
    Periodic western droughts and environmental fallout from water 
access policy is not unique. Rather, such issues are globally 
contentious. A Wall Street Journal book review on the ``unhappy 
descent'' of Turkey's Meander River couldn't help but invoke common 
laments that: \10\
---------------------------------------------------------------------------
    \10\ Alice Albinia, ``A Famous River's Unhappy Descent,'' Wall 
Street Journal, July 23, 2012. p. A11 (A review of Meander, by Jeremy 
Seal).

        In North America, so much water is taken out of the Colorado 
        that it no longer reaches the sea. Nor does the Rio Grande. Or 
---------------------------------------------------------------------------
        the River Jordan. Or China's Yellow River.

    Access to water in times of plenty and in times of drought is a 
fundamental infrastructure concern everywhere; further, the issues 
surrounding innovation and research in water policy are elements of 
broader science and manufacturing policy.
    Aggravations abound locally and so do penalties. One Oregon man 
catching rainwater on his own property received 30 days in jail for 
apparently breaking a 1925 law against personal reservoirs,\11\ but 
when scarcity and emotions run high, strange things happen.
---------------------------------------------------------------------------
    \11\ Kendra Alleyne, ``Man Sentenced to 30 Days for Catching Rain 
Water on Own Property Enters Jail'', CNS News, August 8, 2012. http://
cnsnews.com/news/article/man-sentenced-30-days-catching-rain-water-own-
property-enters-jail.
---------------------------------------------------------------------------
    In addition to developments like rainwater theft prosecution, water 
policy can be fundamentally perverse and distortionary: water supply 
systems may not cover their debts, operations and capital replacement 
needs, and as governmental monopolies, they sometimes ``are used as 
cash cows to support more labor-intensive functions of local 
government, such as fire and police.'' \12\
---------------------------------------------------------------------------
    \12\ G. Tracy Meehan III, ``Flood Zones: A Market Solution to the 
Challenge of Water Supply,'' (A book review of The End of Abundance by 
David Zetland), Weekly Standard, July 16, 2012. pp. 36-37.
---------------------------------------------------------------------------
    Efforts like H.R. 3176, the Reclamation States Drought Relief Act, 
and the desalination programs this Committee has addressed add to such 
problems.
    The first Delta levees appeared around the time of the Gold Rush so 
the altered landscape has long been a fixture. The Federal Government 
role enlarged during the Great Depression.
    But impulses that foster national governmental programs that 
exacerbate misallocation of water and money should be resisted. That is 
the problem with H.R. 3176; Policymakers should subject water policy 
decisions, pricing, investment and conservation to marketplace 
pressures, alien as that may be. In the current battle that means 
requiring reimbursement for well drilling at the very least.
    But further, streamlining permitting and competitive approaches to 
infrastructure and the technologies underlying it and regulatory 
liberalization represent ``fountain'' of solutions be more effective 
than politics at boosting innovation, enhancing consumer well-being, 
facilitating commerce and trade, and contributing to California's and 
United States prosperity.
    How can we be sure? Charles Fishman, author of The Big Thirst: The 
Secret Life and Turbulent Future of Water, penned a rundown of myths 
about water, noting even our ignorance of where it goes upon 
disappearing down the drain.\13\ In terms of quantity, water is 
actually not getting more scarce; it's constant on earth. And the salty 
oceans? They're actually:
---------------------------------------------------------------------------
    \13\ Charles Fishman, ``Five Myths About Water,'' Washington Post, 
April 6, 2012. http://www.washingtonpost.com/opinions/five-myths-about-
water/2012/04/06/gIQAS6EB0S_story.html.

        Olympian springs of fresh water--every day, the sun, the sea 
        and evaporation combine to make 45,000 gallons of rainwater for 
        each man, woman and child on Earth. . . . Even in the United 
        States, where we use water with profligacy, the oceans are 
        making more fresh water for each of us in a month than we'll 
---------------------------------------------------------------------------
        use in a decade.

    Fishman continues, ``We never really use it up. Water reemerges 
from everything we do with it, whether it's making coffee or making 
steel, ready to use again.''
    That's a useful insight for California's feast/famine water 
predicament. Water is constant; its allocation and pricing that matter, 
and it is regulations and environmental over-reach that often 
discourage properly priced supply. Shortages are not really at hand 
when demand has grown without price adjustments.
    Water is both a necessity and a luxury good. We use more as we get 
wealthier, which requires more energy, which itself requires still more 
water. Nonetheless, overall the Nation uses less water than in the 
1980s (agriculture and power remain the largest users); families use a 
little more than back then.\14\
---------------------------------------------------------------------------
    \14\ EPA on average family use http://www.epa.gov/WaterSense/pubs/
indoor.html.
---------------------------------------------------------------------------
    But it doesn't always rain in the same places, and over time 
populations shift (sometimes even in response to artificially prolific 
water supplies). California represents the peak expression of this 
reality.
    Challenges loom. ``America's population is expected to grow by 100 
million--a 30-percent increase--by the middle of the 21st century,'' 
notes Bonner Cohen in ``Fixing America's Crumbling Underground Water 
Infrastructure.'' \15\ And infrastructure won't be cheap. Cohen 
continues, ``Over the next 20 years, upgrading municipal water and 
wastewater systems is expected to cost between $3 [trillion] and $5 
trillion. Building and replacing water and sewage lines alone will cost 
some $660 billion to $1.1 trillion over the same time period.''
---------------------------------------------------------------------------
    \15\ Bonner R. Cohen, ``Fixing America's Crumbling Underground 
Water Infrastructure,'' Competitive Enterprise Institute, Issue 
Analysis 2012 No. 3, April 11, 2012. http://cei.org/sites/default/
files/Bonner%20Cohen%20-
%20Fixing%20America%27s%20Water%20Infrastructure.pdf.
---------------------------------------------------------------------------
    There's no need for Malthusian despair, because in the face of it 
all, gallons of water cost Californians and Americans less than a 
penny. Decisions may be reacting to broader mismanagement.\16\ Fifteen 
million seems trivial. But on the other hand, as G. Tracy Mehan, 
writing in The Environmental Forum, put it, ``Scottish lawns and 
recreational swimming are luxury items in arid areas and should bear 
the cost of scarcity in the price of water. Moreover, low water rates 
are basically middle-and upper-class subsidies.'' \17\
---------------------------------------------------------------------------
    \16\ David Zetland has noted an interesting co-existence of cheap 
water and bad finances more generally http://www.aguanomics.com/2012/
02/link-between-cheap-water-and-bad.html.
    \17\ G. Tracy Mehan III., ``The Future of Water: Technology, 
Economics, Political Will,'' The Environmental Forum, May/June 2012, p. 
6-7.
---------------------------------------------------------------------------
 policy context: avoid having government steer while the market merely 
                                  rows
    The Reclamation States Drought Relief Act program is 
counterproductive and unnecessary. When one knows the Federal 
Government will step in, it changes behavior. Like other interventions 
in free society, it changes the trajectory and risk calculus of those 
acting within the framework.
    Economic calculation requires market signals; Federal planning 
approaches are extra-market and distortionary. Even without drought, 
economic miscalculation plagues planned systems.
    We need more fresh water in estuaries, but rarely is there mention 
of property rights. Notwithstanding environmental battles, which often 
take on religious overtones, allowing price of water to fluctuate is a 
part of the answer. Reacting to market price of water is a means of 
conservation, just as in every other walk of life.
    As policy discussions unfold surrounding drought preparedness and 
water policy generally, several challenges confront policymakers. These 
involve such matters as:

     Federal Spending's Distortionary Impact and the 
            Limitations of Federal Research and Planning
     Federal Policy vs. Markets in Drought Preparedness

Federal Spending's Distortionary Impact and the Limitations of Federal 
        Research and Planning
    Subsidies like that in the Reclamation States Drought Relief Act 
are not merely unneeded, they can be unfair, since only certain States 
are involved yet all required to pay.
    Funding of western water is unfair to taxpayers across the rest of 
the country who are far less resource-blessed. America's economy is 
faced not with just scarcity of water, but a scarcity of funds. 
Granted, the scale of projects under H.R. 3176 of a few million is not 
a lot of money compared to America's several trillion in Federal 
outlays.
    While the sums involved are virtually irrelevant in the modern 
spending context, they matter in other ways for how California and 
other western States conduct water policy, and provide lessons for the 
rest of the Nation.
    The expectation of funds, and the impression created in the 
original legislation and the H.R. 3176 reauthorization can set up 
unhelpful prioritization of paltry Federal dollars when far graver 
concerns exist for which Federal funding is not and cannot be the 
answer in California and the rest of the West.
    More importantly, Federal spending's effects on the nature of water 
research, production and conservation itself reverberate beyond the 
dollars at issue. The dollars foster a ``leveraging'' of a negative 
rather than the positive kind in that parties should not look to the 
Federal Government and Reclamation for guidance. In the United States, 
private investors, localities, states and regions are the proper locus 
of investment to avoid the perpetuation of water policy's detachment 
from marketplace pressures.
    Government research has been underway for decades on energy 
reduction, desalination, treatment of waste capture and more. In 
markets, research is itself competitive, driven by reaction to consumer 
needs and to what rivals do. But in typical funding legislation of 
which H.R. 3176 is one example, competition and rivalry aren't central, 
making both the goals and the methods to achieve them questionable with 
respect to sustainability in the proper sense of the term.
    The supporters of Federal research and projects tend to be from 
States that would directly benefit, but of course that's the case with 
many government programs. Except when a local earmark or project is at 
stake, politicians commonly accept that government has no innate 
ability to pick among competing technologies using taxpayer money. 
Moreover, government plans operate on an election timeline that doesn't 
conform to market schedules, undermining efficient execution by 
governmental bodies on research, development and construction efforts 
on desalination.
    Politicians cannot assign rational priorities to the stream of 
``significant'' projects, thus they will select popular ones benefiting 
local constituencies; simply note the continuing funding of new 
libraries in the digital age (as opposed to, say, handing out wireless-
enabled laptops), new post offices, and clamoring over tech programs 
for rural small businesses.
    The hazards of a government appropriations process and the 
accompanying lobbying for sub-optimal projects are numerous. In the 
space program, entrenched contractors and legislators from flight-
center districts enjoy cost overruns, and lobby against cheaper 
unmanned flights. An ethic of revolutionizing space flight becomes 
unthinkable. There's no need to recreate or perpetuate such a situation 
in water policy or any realm.
    In the Federal R&D sweepstakes, bolstering promising technologies 
has been compared to efforts to improve the speed records at a 
racetrack by picking the R&D horses to run.\18\ Beyond the technologies 
for generating clean water and a clean environment, however, the 
condition of that racetrack and the rewards available also matter. 
Greater ``speeds'' might be had by improving the track--the business 
and regulatory environment--and by letting ``jockeys'' (private 
investors) keep more of their earnings.\19\
---------------------------------------------------------------------------
    \18\ The horse and track analogy appears in Fred L. Smith, Jr., 
Testimony before the Subcommittee on Energy and Environment, House 
Committee on Science, Hearings on the Fiscal Year 1999 Budget. March 
24, 1998. http://cei.org/outreach-regulatory-comments-and-testimony/
testimony-subcommittee-energy-and-environment-house-commi.
    \19\ Fred L. Smith, Jr., 1998. http://cei.org/outreach-regulatory-
comments-and-testimony/testimony-subcommittee-energy-and-environment-
house-commi.
---------------------------------------------------------------------------
    The government-picking-technologies model undermines economic 
liberty, innovation, wealth creation, ``national competitiveness'' (a 
frequent rationale for government R&D) and consumer benefits, and is 
itself a source of risk. Many have argued that viable technologies 
don't need subsidy, and non-viable technologies probably can't be 
helped by one. Otherwise, we distort markets, create bubbles and tee up 
future rippling recessions. Rather than picking the winning horses (or 
worse, the Federal Government actually being one of the horses, which 
worsens the situation with water policy), government's legitimate role 
is to improve the track on which all the horses run; that means 
liberalizing the regulatory environment within which entrepreneurs 
operate, for starters (the Appendix offers regulatory reform 
alternatives).
    One aspect of liberalization must be privatization of Federal 
research efforts rather than creating new ones as research legislation 
does (which itself would remove constituencies for government funding). 
The typical emphasis is on government spending rather than 
privatization. During the 1990s, it was proposed that essential 
military aspects of Federal labs be transferred to the Department of 
Defense, while commercial aspects should be privatized by offering them 
to the industries they supposedly benefit or by allowing research 
staffs to take them over via an employee buyout approach.
    Privatization of Federal research is a particularly hard sell when 
the topic at hand is public funding expansion. Perhaps one approach is 
to limit Federal funding for technologies that do not yet exist, and 
grow out of the problem.
    Overly abundant taxpayer funding is incompatible with a future 
optimally and lightly regulated water sector specifically, or with 
limited government generally. With interventionist water policy, we 
already observe the seeds for new regulation created by the direct 
impacts, indirect impacts and externalities of the intervention itself.
    Normally, America urges developing nations to embrace markets and 
reject government-steering philosophies for enterprises like growing 
wheat or making shoes. Yet we enable government oversight of advanced 
networks and infrastructure at home, such as water, the Federal 
Communications Commission's National Broadband Plan and net neutrality 
rules, and the heavy regulation of electricity.
    Government steering and subsidies can offload technologies onto 
inefficient paths, and can generate artificial booms. One lesson of the 
telecom meltdown is that government can contribute to the inflation of 
unsustainable technology and research bubbles; we may be at risk of a 
similar ``green technology'' bubble now.\20\ Note again that Federal 
legislation currently artificially favors use of renewable energies, 
precisely the kind of distortions being noted here. Regardless, we have 
a regional or state issue on our hands, not a Federal one.
---------------------------------------------------------------------------
    \20\ Spain's King Juan Carlos University released findings that 
each ``green job'' created by the Spanish wind industry cost four other 
jobs elsewhere. ``The Big Wind Power Cover-Up,'' Investor's Business 
Daily, March 12, 2010. http://www.investors.com/NewsAndAnalysis/
Article.aspx?id=527214.
---------------------------------------------------------------------------
    Moreover, there are opportunity costs to governmental funding of 
technological research. Politics cannot determine optimal research 
portfolios: Why the mix of activities and contingency planning (like 
unreimbursed gifts of wells) instead of investments in permanent 
pipelines from northern California or from other states or corridors; 
or repair of leaky infrastructure; or water portage via cargo shipping? 
Or other options.
    We can lessen burdens of the inevitable drought and flood periods 
while avoiding the distortions and bubbles created by governmental 
steering undisciplined by markets. The dilemma is by no means special 
with regard to water. In other sectors, why might we witness a National 
Nanotechnology Initiative and a National Broadband Plan, instead of a 
biotech agenda? Why not space travel, robotic asteroid mining, or more 
dollars for fuel cells and the hydrogen economy? The proper emphasis 
for research is impervious to political resolution. Political dominance 
of production can and will create entire industries, even an economy, 
disconnected from actual consumer demands and preferences.
    Of course, no political party is immune from channeling Federal 
dollars to districts in defiance of scientific or economic merit. 
Problems arise when the Federal Government heavily involves itself in 
the very production of knowledge itself rather than in laying the 
legal, property rights, and contractual foundations of new commercial 
endeavors.
    Policy ought not to disconnect research and planning from the 
voluntary market process. Policy can advance human welfare and remain 
most relevant when pulled into being by the actual needs of mankind, 
including practical ones; that best occurs in private-sector investment 
as opposed to taxpayer funded.
    Congress continually revisits the question of what the Federal 
Government should be doing; but rather than embrace the invitation to 
expand spending on damsel-in-distress endeavors (obviously Washington 
can't fund every crisis resolution in every state), Congress should 
foster private research (primarily via economic liberalization) rather 
than appropriate funds or steer research and investment.
    A bit of the ``broken window fallacy'' \21\ comes into play here: 
we may see H.R. 3176's ``ceremony'' and ribbon-cutting, but not seen is 
the alternatives neglected thanks to the redirection of resources and 
changed behavior.
---------------------------------------------------------------------------
    \21\ See Frederic Bastiat, ``That Which is Seen, and that Which is 
Not Seen,'' 1850. http://bastiat.org/en/twisatwins.html.
---------------------------------------------------------------------------
    Furthermore, it is inappropriate for network industries to all 
remain walled off from one another in a legislative appropriations 
environment whether for commercial purposes or with respect to 
``critical infrastructure'' security goals. When governments set the 
agenda it undermines the swirling competition, cooperation, and ``co-
opetition'' needed for U.S. economic health, such as hypothetical 
alliances with other network industries for, say, water transport and 
storage options.
    Outcome-oriented Federal interventions as opposed to broader 
liberalizations that leave outcomes up to the choices and dispersed 
knowledge of others will produce prominent successes that advocates can 
point to, but fall short taken as a whole and compared to the 
potential. Policymakers could easily use the $15 million provided in 
H.R. 3176 to ``prove'' how great it was that Washington spent it, but 
what a interventions, subsidies, and regulations create an economy made 
up of suboptimal entities and approaches (in this case water 
infrastructures and all the attendant social and environmental ills 
that may resemble what they would under enterprise). Those 
inefficiencies will propagate throughout the economy and over the 
years. Unpreparedness for drought is one of those results.
Federal Policy vs. Markets in Drought Preparedness
    Scarcity of water itself in a free, highly mobile society like the 
United States--if that is what drives political fights and 
intervention--is a creature of poor policy. We ought to recognize the 
true causes of scarcity and drought unpreparedness, and avoid 
perpetuating the ``Declaration of Dependence'' on Federal dollars and 
decisions that affects some of America's most crucial infrastructure 
industries and technologies.
    Conversely, however, even if the private sector did not invest 
``enough'' in research like that authorized in H.R. 3176, that too is 
reason for Federal restraint. States reliant on the process may have a 
role, but that's their business and their prerogative to fund (although 
State funding can be similarly vulnerable inefficient.)
    Indeed, water markets are hardly free ones. Because of heavy 
governmental involvement and the distortions and shifting of relative 
pricing it creates, it's not even clear in every case of private sector 
investment that it should be doing so particularly if subsidies or 
grants are the impetus.
    The costs and benefits of water policy decisions should always be 
as explicit as possible, never obscured. Policy must never mask the 
otherwise necessary confrontation of underlying water scarcity and the 
reality of recurring drought, which exacerbates problems and induce 
calls for Federal intervention.
    Federal and local policymakers' primary task, as distinct from 
programs like the H.R. 3176, should be unwinding of interference with 
water price signals so that private investors can react and build the 
robust critical infrastructure actually needed, the scale of which 
could be far beyond today's infrastructure, perhaps founded upon 
business models not contemplated today.
    Those price signals should incorporate mitigation of state actors' 
own potential negative environmental impacts, as property-rights based 
production demands. Among much else, such market pressures can do a 
better job compelling a polluter to internalize or treat waste streams, 
and to conserve for the inevitable drought stretch better than H.R. 
3176's studies and planning.
    Diverting energy and effort into policies that may further disguise 
real prices by spreading costs to non-involved taxpayers, such as H.R. 
3176 does with well drilling will further delay any needed general or 
specific reckoning with the way water is marketed and priced in 
California and the Reclamation states (and by extension the United 
States) and will aggravate environmental disputes. Bearing burdens and 
dealing with ``externalities'' is a critical yet normal part of well-
functioning markets. Prince signals matter: Better sometimes for the 
water to cost more and reduce demand and usage.
    Bolstering industry requires vigorous competition among ideas for 
private funding. The national government's role in actually fostering 
such knowledge wealth is limited, but its role in liberalizing the 
American economy so that others can foster that wealth is a profound 
responsibility, perhaps the primary duty of government.
  Separation of State and Water: Options for Expanding Reliable Water 
                                Supplies
    A few non-exhaustive options for improving water supply follow. 
These are alternatives to the Reclamation States Drought Relief Act 
approach.
Infrastructure Advances and Other Innovations
    Markets in infrastructures matter. Innovation and basic research 
itself do not proceed in isolation in genuine markets. Economic sectors 
can inform and enrich one another, making it advisable to tear down 
regulatory silos artificially separating infrastructure industries and 
better exploitations of rights-of-way (water, power, communications, 
transportation) wherever possible so that knowledge, ideas, products, 
and collaboration--and water--flow more freely.
    As a free society becomes wealthier, creation of infrastructure for 
needs like water should become easier, not harder. The America of 100 
years ago that built overlapping, tangled infrastructure with a 
developing-world-level GDP can build today's, if allowed. Well-
functioning capital markets already are our ``infrastructure bank.'' 
Energy infrastructure, communications infrastructure, electricity 
infrastructure, the infrastructure capabilities of the water sector--
all would benefit far more from a concerted deregulation and 
liberalization campaign than government spending and research. Pushing 
politically favored infrastructure projects while leaving 19th and 20th 
century infrastructure and antitrust regulation intact, undermines the 
goals of legislation like the Reclamation States Drought Relief Act. 
(The Appendix, ``Economic Liberalization: An Alternative to Government 
Spending In Service to Water Abundance'' presents such an outline.)
    The pricing of regulated-utility water will frequently diverge from 
the optimum, compounding allocation and availability problems over 
time. In any event, without advocating for any particular alternative, 
and while stressing the underlying issue of water's character as a non-
competitive, non-market enterprise out of sync with the modern world, 
other infrastructure expansion approaches could be appropriate, and 
would benefit from regulatory liberalization. These include:

     Better transport, including pipelines/aqueducts/trucking/
            shipping: Advances among these matter and change economics 
            drastically, particularly if other network industries with 
            rights of way collaborated far more than they do today.\22\ 
            Crude oil carriers can be converted to water carriers.\23\
---------------------------------------------------------------------------
    \22\ See introduction in Adam Thierer and Wayne Crews, What's Yours 
Is Mine, Cato Institute: Washington, D.C. 2003.
    \23\ Noted in Wikipedia's entry on desalination, http://
en.wikipedia.org/wiki/Desalination.
---------------------------------------------------------------------------
     Greater stored supplies in the event of levee breach and 
            drought; more efficient collaborative use of reservoirs and 
            capturing of runoff.
     Trade: Relatedly, trade allows for coping with competing 
            priorities and grappling with scarcity. G. Tracy Mehan for 
            example notes that ``[E]merging water markets allow . . . 
            for trades between cities, farmers, and even NGOs such as 
            Trout Unlimited.'' \24\
---------------------------------------------------------------------------
    \24\ Mehan, May/June 2012.
---------------------------------------------------------------------------
     Gray/wastewater treatment and reclamation is an 
            alternative for sourcing, for agriculture and industry if 
            not for drinking, taking pressure off the latter.
     Improvements in stormwater harvesting techniques.
     Conservation: Anderson and Snyder in Water Markets note 
            that ``Markets are providing agricultural and urban users 
            with more reliable supplies and with an incentive to 
            conserve, and are enabling environmentalists to purchase 
            instream flows to protect fish and recreational 
            opportunities.''
     Unleash affordable energy: There is no workaround for the 
            fact that Federal and State policies disdainful of 
            conventional energy are inconsistent with the presumed goal 
            in proposed Federal legislation of advancing access to 
            water. Reducing onerous energy regulations would reduce 
            economic uncertainty and enhance water markets.

    President Obama and others have suggested a desire to boost 
antitrust enforcement.\25\ That's unfortunate. Instead, policymakers 
should relax antitrust so that firms within and across industry sectors 
can collaborate on business plans to bring infrastructure wealth to a 
higher level, including water infrastructure. Markets require 
competition, sometimes merger, and sometimes merely the kind of 
cooperation or ``partial merger'' often miscast as damaging collusion.
---------------------------------------------------------------------------
    \25\ http://www.nytimes.com/2009/05/12/business/economy/
12antitrust.html?_r=1&adxnnl=1&adxnnlx=1268514088-MohE/8/
mpcqIAEXJNqJ1JQ.
---------------------------------------------------------------------------
Reduction of Water Waste and Improved Contracting
    Another ``alternative'' alongside regulatory liberalization is to 
avoid wasting existing supplies. Regulatory and tax relief in the 
industry can aid this endeavor. And ending such waste might be a 
condition of receiving H.R. 3176 funding. Bonner Cohen notes that 
leaking pipes alone cost 17 percent \26\ of the annual water supply:
---------------------------------------------------------------------------
    \26\ Cohen, 2012, p. 4.

        Water main breaks and leaking water supply pipes cost American 
        taxpayers billions of dollars every year in lost water and 
        repair costs. Necessary upgrades promise to place additional 
        stresses on taxpayers long into the future. Building and 
        replacing water and sewage lines alone will cost some $660 
        billion to $1.1 trillion.\27\
---------------------------------------------------------------------------
    \27\ Cohen, 2012, p. 3.

    Repairs can sometimes be cheaper than other funding schemes. Cohen 
further notes that changing inefficient policies such as restrictions 
on PVC pipe use, and emphasizing competitive procurement bidding for 
crumbling underground infrastructure,\28\ and particularly 
privatization, can save great sums.\29\ Such forms of non-market 
inertia make ordinary infrastructure more costly than it needs to be 
and may improperly inflate the appeal of costly projects.
---------------------------------------------------------------------------
    \28\ Cohen 2012.
    \29\ For example see Leonard Gilroy and Harris Kenny, Annual 
Privatization Report 2010: Water and Wastewater, Reason Foundation, May 
2011. http://reason.org/files/
water_annual_privatization_report_2010.pdf.
---------------------------------------------------------------------------
Streamline General Regulatory Burdens
    Permitting nightmares and other regulations that can make it an 
overly difficult process to construct and operate water infrastructure 
should be reviewed and relaxed,\30\ particularly since legislation 
often would paradoxically promote regulation of the technology and its 
byproducts.
---------------------------------------------------------------------------
    \30\ ``Substantial uncertainties remain about the environmental 
impacts of desalination, which have led to costly permitting delays.'' 
The National Academies' Water Information Center, Desalination: A 
National Perspective, 2008. http://dels-old.nas.edu/water/
dyn.php?link_id=5291&session_id=0kqg3jkjuqrkq740sim7g15b77.
---------------------------------------------------------------------------
    Government funding like that in H.R. 3176 too often invites 
regulation. Regulatory concerns propel government regulatory oversight 
of the technology when Federal dollars become involved; the thrust 
becomes one of government funding projects yet endlessly studying and 
regulating their risks. Since recipient businesses and contractors can 
become so dependent on political funding, they go along with the 
oversight, cutoff from envisioning alternative approaches to either 
securing funding or managing hazards. The Valley just wants its water 
and could be seduced into acquiescing to unnecessary rules.
    Options for general reform of regulatory policy in the Appendix.
Taxpayer Funding Misdirects Resources by Prolonging Inefficient 
        Projects
    Markets have to be good at killing bad projects as well as at 
creating new ones.\31\ Governmental programs like the Reclamation 
States Drought Relief Act are less capable of systematic pruning.
---------------------------------------------------------------------------
    \31\ Auren Hoffman, ``To Grow a Company, You Need to Be Good at 
Killing Things,'' Summation, February 21, 2010. http://
blog.summation.net/2010/02/to-grow-a-company-you-need-to-be-good-at-
killing-things.html.
---------------------------------------------------------------------------
    Once entrenched virtually all interested parties seek to grow 
government rather than pull the plug on exhausted or ill-considered 
funding projects, from relatively tiny ones like H.R. 3176's few 
millions to the gargantuan like the Superconducting Supercollider. The 
result is higher taxation and dollars directed to multiplying, 
uncoordinated ends. Science resembles any other rent-seeking interest 
in this respect. In testimony before congressional panels, most seek 
more money, not less; more government rather than less.
    In proposing an end to the Advanced Technology Program years ago, 
Michael Gough offered a real test of taxpayer support: ``Let the 
government give taxpayers who want to invest . . . a deduction from 
their income . . . [and] share in any profits that flow from it. That's 
what taxpayers get from private investments. It's not what they get 
[when government] takes tax money . . . and invests it in private 
enterprise.''
Salt Water Distillation to Freshwater
    One approach specifically referred to expanding supply to in H.R. 
3176, the Reclamation States Emergency Drought Relief Act, is 
desalination, or the removal of salt (sodium chloride) from seawater or 
brackish water to render it fit for human consumption or other uses.
    The problem is that Desalination at bottom is an energy-intensive, 
by-product-laden means of making expensive potable water. And given its 
energy intensity, more expensive electric power is a factor undermining 
its prospects. Higher electricity prices would cause ``less 
electricity-intensive'' substitutes like conservation, water purchases, 
and pricing changes to rise in relative importance.\32\
---------------------------------------------------------------------------
    \32\ Congressional Research Service, August 15, 2011. p. 3.
---------------------------------------------------------------------------
    Still, desalination may have a role to play but probably not the 
one envisioned in the Reclamation States Emergency Drought Relief 
Act.\33\ If we are to judge by private sector involvement, desalination 
is on a trajectory to become increasingly cost-effective for certain 
applications, particularly as water prices respond to market signals as 
demand for fresh water increases. Public and private investment 
overseas where the incentives line up differently probably inform 
domestic policy better than anything H.R. 3176 could do.
---------------------------------------------------------------------------
    \33\ Clyde Wayne Crews Jr., House of Representatives Testimony, 
Gov't Role in Investment, Water Desalination Policy, May 23, 2013. 
http://www.scribd.com/doc/143263731/Wayne-Crews-House-of-
Representatives-Testimony-Gov-t-Role-in-Investment-Water-Desalination-
Policy-May-23-2013.
---------------------------------------------------------------------------
    Desalination at bottom is one category of purification; some 
industries require even higher purities of water than desalination 
would create, conduct substantial research, and pay the price to 
achieve purity. Water augmentation, driven by industrial needs, is 
where the advances are most likely to be most efficient and broadly 
informative. Lessons from this sweep of experimentation are 
transferable and more on point than H.R. 3176.
Address Environmental Concerns With All Interests Involved
    Environmental concerns plague virtually every project of any kind. 
Ironically, governments often alter environments and generate 
environmental problems. Environmental impacts of subsidized 
desalination in H.R. 3176, for example, such as the impact on aquatic 
creatures and the uncertainty over numerous options for disposal of 
waste streams, are the very types of impacts that in other contexts 
like pipelines and fracking are deal breakers.
    It is more than understandable that irrigation districts and 
utilities would appreciate the funds in H.R. 3176 to in a sense 
``compensate'' for failure to deal with excesses of the Endangered 
Species Act that have restricted their access to water. Their 
frustration is understandable; it is a constant debate of how much 
water to leave in streams for environmental purposes vs. how much to 
allocate to urban, agricultural and recreational uses when the right 
answer depends upon how much precipitation happens, which varies.
    Free enterprise can excel at managing environmental risks and waste 
streams when given a chance. In normal markets, before firms can 
attract investors and launch, disciplinary institutions like liability 
and insurance must be secured. One must satisfy many stakeholders, 
including capital markets, insurers, upstream business suppliers, 
horizontal business partners, downstream business customers, consumers, 
public and global markets. And environmental interests; property rights 
mean one must not pollute a neighbor's property.
    The Endangered Species Act is at the root of California water 
disputes; farmers and southern Central Valley would have the water they 
need if the pumps at the Sacramento/Joaquin delta were turned on, as 
dramatically pointed out by Rep. Nunes. and others. State Water 
Contractors General Manager Terry Erlewine said: \34\
---------------------------------------------------------------------------
    \34\ http://www.acwa.com/news/delta/water-supplies-curtailed-once-
again-protect-delta-smelt.

        This year is proving to be another example of why the current 
        system is unreliable and unsustainable. The water supply for 25 
        million people and millions of acres of farmland depends on 
        where a few dozen fish are located in the Delta's sprawling 
        waterways. Until we build a better infrastructure system that 
        protects both fish and water supplies, we're forced to operate 
        under regulations that have high costs for California's public 
        water agencies, farms and economy, while producing little if 
---------------------------------------------------------------------------
        any benefit for the fish.

    Fifty mayors from the San Joaquin Valley also wrote a letter to 
President Barack Obama to observe the impact of the water rules in 
California. And Association of California Water Agencies Executive 
Director Timothy Quinn: \35\
---------------------------------------------------------------------------
    \35\ Ibid.

        We have the wrong infrastructure in the Delta, and it's been 
        apparent for decades. . . . Conveyance improvements, coupled 
        with habitat restoration and other measures to address Delta 
        stressors, can get us out of this cycle of conflict and on the 
        road to a water system that works for the economy and the 
---------------------------------------------------------------------------
        environment.

    One big problem with allowing the Endangered Species Act to 
interfere with California's water needs is that it isn't clear that 
water use as opposed to other factors is the cause of the problem. 
Ballast discharge has been blamed; ammonia from waste treatment has 
been blamed.
    The second big problem is that the ESA doesn't work. Over 2000 
endangered species are listed; As of September 2012, only 56 had been 
delisted: 28 due to recover, 10 due to extinction.
    The ESA's punitive nature makes it particularly bad at enlisting 
landowners in the effort to save species with incentives.
    Apart from the Federal Government's worsening the problem, 
conservationists, biologists policymakers have the actual decisions 
about banking species, farming them, relocating them, ``sponsorship'' 
programs, habitat restoration and other creative options, likely 
themselves prevented by the act. There are alternative approaches that 
deserve consideration, such as a ``salmon certificate'' system proposed 
in a 1999 Washington Policy Center paper that makes economic and 
environmental tradeoffs more clear.\36\
---------------------------------------------------------------------------
    \36\ http://www.washingtonpolicy.org/publications/brief/saving-our-
salmon-using-free-market-protect-environment.
---------------------------------------------------------------------------
    Unless California wants to go back to unmanaged droughts and 
floods, they are going to have to accept infrastructure and perhaps 
projects like the Bay Delta Conservation Plan, especially if they value 
is the environment. The population is going to grow; levees will fail.
Better Pricing of Water Supplies
    As Adam Smith and the classical economists teach, water and 
diamonds have vastly different marginal and total utilities.\37\ Each 
can be worthless or priceless under different circumstances. Both the 
supply side of life and the demand side of life matter across the 
board.
---------------------------------------------------------------------------
    \37\ See also G. Tracy Mehan III. and Ian Kline's reference to the 
same in ``Pricing as a Demand-Side Management Tool: Implications for 
Water Policy and Governance,'' Journal of the American Water Works 
Association, February 2012. pp 61-66.
---------------------------------------------------------------------------
    Long term, we should embrace the opportunity to solve more than one 
problem at a time when it comes to integrating flood management with 
water supply planning. The need to pay for one's own wells has been 
mentioned, since more Federal dollars delays having to deal with bigger 
problems, like the need to change permitting regulations, use more 
groundwater in drought years, create new insurance products, and create 
alternatives to the Endangered Species Act that actually--brace for 
it--save species. This requires enlisting the property owner and 
downstream consumer in positive ways.
    Water utilities are usually sourcing-to-delivery monopolies, rarely 
subject to market forces. Problems with efficient investment exist in 
such models, as do disincentives of local elected officials to tolerate 
the rate increases that a market would dictate and perhaps implement.
    The state of play is reviewed in books like Water Markets: Priming 
the Invisible Pump by Terry L. Anderson and Pamela Snyder, which 
surveys water law and how water markets have emerged in the United 
States, ``including discussion of the restrictions by state and Federal 
governments, which increased over the past century.'' \38\
---------------------------------------------------------------------------
    \38\ Terry L. Anderson and Pamela S. Snyder, ``Priming the 
Invisible Pump: Water Markets Emerge,'' PERC Policy Series No. 9, 
February 1997. Property and Environment Research Center, http://
www.perc.org/articles/article198.php.
---------------------------------------------------------------------------
    Steve Maxwell in The Future of Water makes an important note about 
a sometimes overly casual attitude toward the miracle of easily 
available fresh water: ``The most important job utilities around the 
world may have in the coming decades is convincing people that water is 
valuable--and that it is reasonable to pay more for this luxury than 
the bargain prices we have traditionally taken for granted.'' \39\
---------------------------------------------------------------------------
    \39\ Cited in Mehan, May/June 2012.
---------------------------------------------------------------------------
    In reviewing top water expert and researcher David Zetland's book 
The End of Abundance, G. Tracy Meehan summarized: ``[T]he water sector 
can encourage better stewardship and a greater degree of social harmony 
by substituting pricing and market allocation of limited water supplies 
for political management.'' \40\
---------------------------------------------------------------------------
    \40\ Mehan, May/June 2012.
---------------------------------------------------------------------------
    Water isn't unique in widespread inefficient pricing and 
allocation, of course: anything politically or bureaucratically managed 
can be vulnerable to quantity and pricing shocks and constraints. Where 
water prices are artificially low, shortages will result. The chapter 
``Why Water Crises?'' in Water Markets: Priming the Invisible Pump, by 
Anderson and Snyder, describes the price mechanism's essential role in 
preventing crises: \41\
---------------------------------------------------------------------------
    \41\ Terry L. Anderson and Pamela Snyder, Water Markets: Priming 
the Invisible Pump, Cato Institute: Washington, D.C., 1997. p. 11.

        Higher water prices would also reduce the need to build costly 
        supply projects and delivery systems that dam and divert free-
        flowing streams. Higher prices would encourage private, profit-
        making firms to enter the water supply industry, taking the 
        burden off the public treasury. If the price mechanism were 
        allowed to operate, demand could be reduced, supply could be 
        increased, water would be reallocated, and water crises would 
---------------------------------------------------------------------------
        become obsolete.

    Proper pricing is an ``alternative'' to ``costly supply projects.''

    Similarly, David Zetland notes that ``Shortages can be ended much 
more quickly by a change of incentives than supply side actions to 
build a desalination plant or transfer water from neighbors who 
probably can't spare a drop.'' \42\ As it stands, the realities of non-
scarcity pricing of water and of permitting and approval barriers seem 
to defy the vision of legislative instruments. As Zetland puts it in a 
hypothetical context regarding supplying California's municipal needs 
via desalination:
---------------------------------------------------------------------------
    \42\ David Zetland, The End of Abundance: Economic Solutions to 
Water Scarcity, 2011. p. 6.

        But if it's possible to get approval for this kind of project 
        and raise prices so far, why not just raise prices and skip the 
        project? Higher prices would leave more water for nature, save 
        a lot of money, and still leave humans with adequate supplies. 
        . . . [T]the policies affecting supply and demand are more 
        important for ending shortages than technology.\43\
---------------------------------------------------------------------------
    \43\ Zetland, The End of Abundance, p. 183.

    As a longer term vision in a very complex world, we need to attune 
competitive markets more thoroughly to the task of discovering the 
value of water itself.
    Politically expanding a fundamentally scarce and poorly priced 
supply of a resource like water in less-blessed places seems to have 
entrenched artificial new problems and can encourage difficult-to-
sustain migratory and settlement patterns. Such perverse incentives 
echo the policy of Federal flood insurance for continuously building on 
hurricane-prone areas after consecutive knock-downs. Policymakers 
shouldn't make it artificially attractive for more people to move into 
areas like arid regions. That would be create perverse justification 
for legislation, and worse, would sow the seeds ``necessitating'' more 
legislation years hence.
                               conclusion
    Like many industries, water policy often suffers from too much 
government.
    Occasionally the problem isn't market failure, but the failure to 
have markets. ``Doing something'' about legitimate water needs is not 
the same as spending money and initiating governmental research and 
coordination. When linking innovation to human needs and promoting 
infrastructure, markets trump the legislative process--and where they 
don't, policy should shift to ensure that they can.
    America's great infrastructure firms are segregated into regulatory 
silos (telecommunications, electricity, water, sewer, cable, railroad, 
airline, satellite, air traffic control, roads). In a freer market, 
they could collaborate to expand infrastructure wealth development and 
boost environmental amenities, but it would require a mindset different 
from the constricted legislative one that sets terms today.
    Interestingly, the dollars allocated to water in the various 
Federal acts over the decades seems to total perhaps a few billion. 
Removing barriers to private research and manufacturing and 
infrastructure could yield far greater gains than relying upon 
appropriations that invite rent-seeking and that may threaten safety 
and environmental improvements. Government's proper stance is one of 
benevolent indifference or neutrality, since many technologies, most 
not in existence yet, will always compete for scarce investment dollars 
whether the projects are small scale or grand infrastructure.
    Congress has a far more important job to do that it can't escape by 
sprinkling cash around as in H.R. 3176. As discussed in Still 
Stimulating Like It's 1999: Time to Rethink Bipartisan Collusion on 
Economic Stimulus Packages,\44\ there exists a natural tendency toward 
stagnation when government fails to perform its ``classical'' function 
of ensuring that prices of materials, labor and other inputs aren't 
distorted by interference in the economy.
---------------------------------------------------------------------------
    \44\ Wayne Crews, Still Stimulating Like It's 1999: Time to Rethink 
Bipartisan Collusion on Economic Stimulus Packages, Competitive 
Enterprise Institute, February 2008. http://cei.org/cei_files/fm/
active/0/6425.pdf.
---------------------------------------------------------------------------
    With water supplies, we have, not a funding problem, but a larger 
resource management problem. As David Zetland summarizes in The End of 
Abundance:

        The end of abundance means the supply side/cost recovery model 
        of water management no longer delivers the results we want, but 
        that model still dominates the business--from California to 
        China, Florida to Fiji--and it will cause trouble until we 
        change the way we manage water. Economics offers an alternative 
        focus on balancing supply and demand.\45\
---------------------------------------------------------------------------
    \45\ Zetland, The End of Abundance, p. 6.

    Unlike Zetland, I don't think there needs to be an end to 
abundance. Markets expand output in tangible products and intangible 
services. They also help maximize the production of useful 
information--including research and scientific information about 
technologies whose applicability is uncertain yet holds promise for 
people and the environment.
    The task is to bring modern water resources further into the market 
process, and to lay the groundwork for tomorrow's discoveries and 
advances to be informed and funded by market rather than political 
processes. Reauthorizing Federal water projects would do the opposite 
in many respects. It will take legislation of a different form than 
H.R. 3176 to address the underlying boom/flood and bust/drought 
problems in water supply.
    Appendix: Economic Liberalization--An Alternative to Government 
                 Spending in Service to Water Abundance
    We've noted some specific hazards of government steering the 
market. We need alternative approaches--other than Federal spending--to 
advance science and manufacturing, of which water infrastructure an 
example. Such approaches involve fostering a general business 
environment wherein a private sector flush with health can fund its own 
research and ventures. There is a need for cataloging and limiting 
Federal over-regulation to foster a wealthier economy, one capable of 
carrying out an array of research regimes with less temptation to seek 
an ear in Washington.\46\
---------------------------------------------------------------------------
    \46\ More detail on the suggestions here appear in Wayne Crews, 
``The Other National Debt Crisis: How and Why Congress Must Quantify 
Federal Regulation,'' Competitive Enterprise Institute, Issue Analysis 
2011 No. 4. http://cei.org/sites/default/files/Wayne%20Crews%20-
%20The%20Other%20National%20Debt%20Crisis.pdf.
---------------------------------------------------------------------------
Sunset Regulations and Implement a Regulatory Reduction Commission
    More than 60 departments, agencies, and commissions issue some 
3,500 regulations a year in thousands of Federal Register pages 
(documented in Ten Thousand Commandments: An Annual Snapshot of the 
Federal Regulatory State.\47\) Costs of regulations are estimated to 
top $1 trillion annually. Congress should implement a bi-partisan 
``Regulatory Reduction Commission'' to survey existing rules and 
assemble a package to eliminate with a straight up-or-down vote, no 
amendments allowed.
---------------------------------------------------------------------------
    \47\ http://cei.org/sites/default/files/Wayne%20Crews%20-
%2010,000%20Commandments%202011.pdf.
---------------------------------------------------------------------------
Require Congressional Approval for Major Business Regulations
    Of 3,500 annual regulations, 100 plus are ``economically 
significant.'' These rules should require an expedited congressional 
approval before they are effective. Apart from the competitiveness and 
innovation issues at issue in legislation, the delegation of 
legislative power to unelected agencies has long needed attention.
Perform Basic Deregulatory Housekeeping

     Re-discover federalism, that is, circumscribe the Federal 
            role regarding investment and regulatory matters best left 
            to States and private enterprise. Congress should look at 
            what the Federal Government does that it could eliminate, 
            or that States could do instead to provide a research and 
            manufacturing boost.
     Improve the ethic of quantifying regulatory costs and 
            selecting the least-cost compliance methods.
     Codify the executive order on ``Regulatory Planning and 
            Review'' (E.O. 12866), or, Reagan's E.O. 12291, which 
            provided for more external review.
     Require OMB's Regulatory Information Service Center to 
            publish details on major and minor rules produced by each 
            agency and strengthen its oversight.
     Reinstate the Regulatory Program of the U.S. Government, 
            which formerly appeared routinely as a companion document 
            to the Budget.
     Declare Federal Register notices as insufficient notice to 
            small business.
     Hold hearings to boost the scope of the Small Business 
            Administrations' ``r3'' regulatory review program.
     Lower the threshold at which a point-of-order against 
            unfunded mandates applies.
     Implement a supermajority requirement for extraordinarily 
            costly mandates.
     Lower the threshold for what counts as an ``economically 
            significant'' rule, and improve explicit cost analysis.
     Explore, hold hearings on, and devise a limited 
            ``regulatory budget.''
     Establish an annual Presidential address or statement on 
            the state of regulation and its impact on productivity and 
            GDP.
     Sunset regulations after a fixed period unless explicit 
            reauthorization is made.
     Publish data on economic and health/safety regulations 
            separately.
     Disclose transfer, administrative, and procedural 
            regulatory costs.
     Explicitly note indirect regulatory costs.
     Require agencies and the OMB to recommend rules to 
            eliminate rules and to rank their effectiveness.
     Create benefit yardsticks to compare agency effectiveness.

Implement Annual Regulatory Transparency to Accompany the Federal 
        Budget
    In attempting to implement economic liberalization for the wealth-
creating sector, a ``Regulatory Report Card'' should be part of the 
basic housekeeping just noted.

Regulatory Transparency Summary. . .with five-year historical tables. . 
 

     Total major ($100 million-plus) rules and minor rules by 
            regulatory agency.
     Numbers/percentages of rules impacting small business.
     Numbers/percentages featuring numerical cost estimates.
     Tallies of cost estimates, with subtotals by agencies and 
            grand total.
     Numbers and percentages failing to provide cost estimates.
     Federal Register analysis: pages, proposed, and final 
            rules by agency.
     Most active rulemaking agencies.
     Rules that are deregulatory rather than regulatory.
     Rules that affect internal agency procedures alone.
     Numbers/percentages required by statute vs. rules agency 
            discretionary rules.
     Rules for which weighing costs and benefits is statutorily 
            prohibited.
     Detail on rules reviewed by the OMB, and action taken.

                                 ______
                                 

    Mr. McClintock. I want to thank all of the witnesses for 
their testimony. We will now go to questions by the members. 
Each member will have 5 minutes and may be submitting 
additional questions if they can't get all of them in during 
the constraints on the time.
    The Chair will begin, and I would like to begin with the 
Tipton bill. Mr. Corbin, Mr. Parker, and Mr. Porzak, each of 
you have highlighted attempts by the administration to 
expropriate water rights that are recognized under State law by 
various types of water users. Heavenly Mountain Resort near 
Lake Tahoe in my district employs about 1,215 people. The jobs 
are contingent on the availability of millions of gallons of 
water annually that are held by the ski area to make snow. I 
know the loss of that privately held water would be 
catastrophic for the local economy.
    Mr. Corbin, representing a ski area in the second-nicest 
part of the country, I wonder if you could tell us what impact 
this would have on the resorts in your ski area.
    Mr. Corbin. Thank you, Mr. Chairman. I appreciate it. And I 
have worked in Tahoe, as well the Rockies, so I view them both 
quite fondly.
    Mr. McClintock. Why in the world would you go to the 
Rockies? Have you no ambition?
    Mr. Corbin. I have been in the Rockies and then worked at 
Northstar, sir.
    If we were to lose our water rights and literally lose the 
use of that water we would be very severely impacted, both 
operationally and financially, as I alluded to earlier. It is 
very key for us to make sure that we have adequate snow in the 
opening of the season, for example, Christmas holidays, and 
likewise in the spring season.
    Our business of offering winter recreation is really one 
done in 120 days, and if we lose any significant portions of 
that because we don't have adequate snow, then we would be very 
severely compromised. Guests would not have a good experience, 
we might not have an adequate base for people to ski on, we 
might not then last an adequate number of days to basically 
cover our sort of fixed cost, if you will----
    Mr. McClintock. So basically what is at stake with the 
Federal Government taking these water rights as a condition of 
special use permits for you to use Federal land is the resorts 
and the economy that they support would be severely impacted, 
perhaps to the point of closing down?
    Mr. Corbin. We would be very severely impacted, yes, sir.
    Mr. McClintock. And, Mr. Parker, what about your 
operations?
    Mr. Parker. Yes, and I am going to be specific to Utah 
here, and you can extrapolate this across the public land West. 
But if you take Utah as an example, livestock agriculture makes 
up about 75 percent of our farm gate sales. Agriculture and 
food in Utah is a $17.5 billion industry, making up 14 percent 
of the State's GDP. It provides 80,000 jobs--this is just Utah, 
this is 1 of the 12 public land States--provides 80,000 jobs 
and about $2.7 billion in wages. And the foundation of that is 
sheep and cattle grazing on the public land. So it would be 
very problematic to our State's economy.
    Mr. McClintock. So, Mr. Porzak, if I wanted to shut down 
these operations, destroy the economies in the local 
communities, is there a more effective way of doing that than 
demanding that the local ski resorts turn over their water 
rights as a condition of continuing to operate?
    Mr. Porzak. A more effective way is just to deny the 
special use permit. You are effectively doing the same thing. 
Two practical issues----
    Mr. McClintock. Well, essentially we are giving you the 
right to continue to operate but taking away the means of doing 
so, is that essentially it?
    Mr. Porzak. That is correct. And just one practical matter 
is that the water rights are valuable assets, and they are 
collateral for the operation loans for the ski resorts. So if 
you take away that asset, you have destroyed the collateral for 
that loan and undercut the ability to obtain that loan.
    The other factor is that, as I mentioned, the ski industry 
collectively has spent hundreds of millions of dollars to 
develop these water rights. If they know that the Federal 
Government is just going to take those water rights away from 
them, you have destroyed the incentive for that investment, and 
that investment is the driving force for that ski area and then 
in turn the local economy.
    Mr. McClintock. OK. Very briefly, turning to Mr. Crews, all 
of our water projects have been based or at least are supposed 
to be based on a beneficiary pays principle, meaning the 
Federal Government will front money, but ultimately the local 
water users will repay it through the water that is purchased. 
The DeFazio bill obviously is simply grants by Federal 
taxpayers to local water users. Is there a better way of 
providing the programs financially?
    Mr. Crews. Yeah, if you are going to do it, surely the 
beneficiary should pay. And in programs like that the wells are 
drilled and in perpetuity those wells get to be maintained in 
that area. Ideally you would have those----
    Mr. McClintock. Hold that thought. I will get back to you. 
My time is out.
    Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    Well, Mr. Willardson, why is the Federal drought planning 
important?
    Mr. Willardson. Well, as I mentioned, the Bureau of 
Reclamation controls a lot of water in the West. This bill also 
provides it with authority to provide help to the communities 
that cannot otherwise help themselves, as well as to provide 
for assistance to Indian tribes. Under the drought planning 
authority that has helped Arizona develop its drought plan, as 
well as the State of New Mexico and the State of Hawaii. They 
have also assisted the Hopis, the Navajo, the Zunis, and also 
the Hualapai in Arizona, in the Southwest, in development of 
drought plans.
    Because of the situation with the Bureau of Reclamation and 
as you are intimately familiar in the State of California with 
the coordinated operation of the State Water Project and the 
Central Valley Project, there are limitations on the ability of 
the Bureau to move nonproject water, and that authority is also 
provided through this bill.
    And one other important fact is----
    Mrs. Napolitano. Quickly.
    Mr. Willardson [continuing]. This legislation exempts those 
kinds of contracts from restrictions of the Reclamation Reform 
Act with respect to acreage, and it does require that water 
provided by the Bureau be repaid with interest, including a 
portion of the capital costs.
    Mrs. Napolitano. Would you explain briefly please, because 
my time is running out, what would happen, what would be the 
impact on States--California is a donor State, we give more 
taxes than we get back, that said--if the Drought Relief Act 
was not reauthorized.
    Mr. Willardson. I think you would see a very limited 
ability for the Bureau of Reclamation to participate in State 
drought planning and response activities, and that would have a 
significant impact, primarily on those small and local 
communities and disadvantaged communities.
    Mrs. Napolitano. Do you have any comment as to what some of 
the States are currently planning, the Western States, to 
effectively look at how drought is going to be affecting them, 
since we are running into drought cycles?
    Mr. Willardson. There are a number of things that the 
States are trying to do. Obviously conservation and more 
efficient use is key to any of our water issues. Also, the 
development of other storage alternatives, groundwater 
management. They are trying to diversify their portfolios, 
water reuse and recycling. Desalinization is something that 
California and Texas have goals to provide water.
    So there are many different areas on both the supply and 
the demand side that impact us not only in drought, but 
obviously in trying to increase the reliability of future 
supplies.
    Mrs. Napolitano. Thank you. And there are some concerns as 
to infrastructure itself. It is guesstimated that there are 22 
water main breaks a day, which lose as much water as we 
normally would use.
    Mr. Willardson. Infrastructure and aging infrastructure is 
a huge challenge in the West and elsewhere.
    Mrs. Napolitano. Right.
    Mr. Corbin, we understand the Forest Service is in the 
process of developing or was in the process of developing a new 
directive to be released this fall, but what is the urgency of 
moving this legislation now and why not work with the Forest 
Service to solve the issue administratively? And I say that 
because I have had issues with some of my transportation folks, 
with some of my water agencies. And I work with the 
administration, the agencies bring them to the table and say, 
OK, sit down and try to figure it out and let us know where we 
can help, but certainly as much as we can stay out of their 
way.
    Mr. Corbin. I think it is urgent because indeed this 
process of rulemaking has been going on for some time. And in 
the course of that we have previously seen proposed rules that 
indeed have been, I think, very harsh with respect to our 
industry. We have previously offered compromise to the Forest 
Service suggesting that indeed if the stated goal is to protect 
water for use in the permit areas----
    Mrs. Napolitano. Is this before or after the directive was 
put out?
    Mr. Corbin. This compromise was proposed this past summer, 
following the 2012 directive, yes. And it was a compromise 
suggesting that the water could be, in effect, protected for 
use within the permit areas simply by going ahead and having 
the permittees recognize that we would provide water if it were 
necessary for some action we requested approval of, and 
subsequently, if we were to sell and transfer our permit, that 
we would offer it indeed to the subsequent transferees so it 
would stay with the ski area. If that transferee did not want 
the water, we would offer it to the local government; if not 
them, the Forest Service. So we have already suggested a 
compromise.
    Mrs. Napolitano. Thank you. My time has run out. I will 
look for a second round.
    Mr. McClintock. Great. Thank you.
    Mr. Tipton.
    Mr. Tipton. Thank you Mr. Chairman.
    And I think what I would like to start out with is, Mr. 
Willardson, I know you were here to be able to testify on H.R. 
3176, but since you are with the Western States Water Council, 
maybe briefly could you say are you supportive of the Water 
Rights Act bill that we have.
    Mr. Willardson. The Council has not addressed the bill or 
taken a position, but I can tell you on my reading that it is 
very consistent with our long-term support for protecting 
State-granted private property rights, and I would expect that 
we will be sending a letter in support of the legislation for 
the record.
    I would also note that we are working with the Federal 
agencies in what we call our Federal Agency Support Team, 
including the Forest Service, to identify potential needs of 
the Federal agencies and how those needs can be met within 
State law.
    Mr. Tipton. Great. Well, I truly appreciate your support 
for State rights and private property rights. And I would like 
to follow up a little bit in terms of the question of my good 
friend, the Ranking Member's question in regards to the urgency 
of being able to pass this legislation and to be able to have 
it move forward.
    And, Mr. Corbin, Mr. Porzak, perhaps you would like to be 
able to address this.
    Does it disturb you--well, first of all, let's go, Mr. 
Porzak, to your point.
    Mr. Corbin, I think you addressed it as well.
    You have invested millions of dollars developing, paying 
for water rights. That is a balance sheet item for you, I think 
that you noted. Is that correct?
    Mr. Porzak. That is correct.
    Mr. Tipton. Does it disturb you that as you noted, Mr. 
Porzak, that there has been no authority granted by the 
Congress of the United States--by the Congress of the United 
States--but we have an agency, through a rulemaking process, 
that is trying to take your private property. Does that speak 
to you of the urgency?
    Mr. Porzak. It absolutely does it, and it creates great 
uncertainty, and great uncertainty inhibits investment.
    Mr. Tipton. You know and I know when we are looking at some 
of the bureaucracy here in Washington it mystifies them when we 
are talking about a balance sheet item. You seem to indicate 
that there is some actual value with water. Is that correct?
    Mr. Porzak. The Forest Service has admitted that, that they 
see enormous value, and that is the principal reason they want 
control over that value.
    Mr. Tipton. And with the proposed rule that they put 
forward that was only slapped down because they did not follow 
their own administrative procedures initially to be able to 
come forward with, what is the Forest Service going to offer 
you for this valuable resource that you have invested money in 
and paid for?
    Mr. Porzak. They have offered nothing.
    Mr. Tipton. Nothing. That speaks to the urgency, really, of 
legislation of Congress acting on behalf of private property 
rights and Western water rights, don't you think?
    Mr. Porzak. Absolutely.
    Mr. Tipton. Great. Do you have any insights, Mr. Porzak, 
why you noted 20 years this goes back, which I think speaks to 
the urgency. It is Groundhog Day every day for the Forest 
Service, they just keep doing the same thing over and over 
again in terms of overreach. What do you suppose, why do they 
continue to try and pursue your water rights?
    Mr. Porzak. They have actually, one of the principal 
attorneys for the Forest Service has written a Law Review 
article, which is a road map to exactly what they are doing. 
And they tried in the U.S. Supreme Court, U.S. v. New Mexico, 
and lost there to get the right to this water under Federal 
Reserve rights, they have tried in the State supreme courts, 
and they lost in that venue as well. And so now the strategy is 
to use their permitting authority as an end run around State 
water law to basically obtain those water rights for free. That 
has always been their game plan.
    Mr. Tipton. Ignore State water law, ignore Congress, just 
write a rule.
    Mr. Porzak. Yes. And there has always been a Federal 
deference to State water laws. And that is particularly 
important throughout the West because so much water rises on 
the Forest Service or Federal lands, and that is the issue that 
we face where it is basically an end run around, as I 
mentioned, to that State water law.
    Mr. Tipton. We are talking about the U.S. Forest Service. 
Do you see any other Federal agencies that are going to try and 
pursue these policies as well?
    Mr. Porzak. In your area the CLUB 20, which you are 
familiar with. That question was put to the regional head of 
the BLM, and they asked, it was in May of 2012, what they 
thought about the Forest Service efforts. And they announced at 
that public meeting that they thought what the Forest Service 
was doing was great and if they succeeded they were going to do 
the same. And as a result of that, CLUB 20 passed its policy in 
May of 2012 opposing those efforts by all Federal agencies.
    Mr. Tipton. So the people don't want it, the State doesn't 
want it, the private property owners don't want this, but the 
Federal Government, the BLM, the Forest Service, perhaps others 
are going to continue a policy of taking.
    Mr. Porzak. That is correct.
    Mr. Tipton. With that, I yield back.
    Mr. McClintock. Mr. Huffman.
    Mr. Huffman. Thank you, Mr. Chair.
    And thanks to the witnesses for being here and testifying. 
I am struck by some interesting contradictions in the testimony 
that we have heard today. And we have heard some very 
passionate testimony about deferring to State water law, a 
proposition I generally agree with. But we also heard some 
testimony on the issue of Western drought planning and drought 
relief, that we should simply clear away environmental 
obstacles to accessing water and leave more to the private 
sector and to market forces rather than becoming more dependent 
on public dollars.
    Well, if we are to listen to this side of the table and 
defer to State water law, the State of California says all 
water belongs to the people, that it is not a public commodity 
that can just be bought and traded and moved around without 
regard for the multiple beneficial uses that have to be 
balanced. And so there is an interesting contradiction that 
emerges on these complex issues. And I guess I would say 
nothing is quite as simple as it sometimes seems in these types 
of hearings.
    I had practiced enough water law in my career to know that 
these are very complicated issues, and I respect the testimony 
that we have heard from the ski industry and others. I want to 
understand this issue better. But I also know that we are 
hearing all kinds of legal terms of art and legal theories and 
legal issues about takings being discussed, and we have only 
one side of the story represented.
    You may be right, all right? But I am having a hard time 
sorting it out and understanding the merits of what I am 
hearing because we don't have anyone from the Forest Service 
here to explain. I hear a lot of concerns and anxieties about 
what might happen if the policy goes in a certain direction, 
but I haven't heard anybody say that their snowmaking water has 
been actually taken away from them, that they are not able to 
make snow with it, or maybe that they wouldn't even be able to 
make it under this policy change.
    So there are a lot of questions I would love to ask of the 
folks who actually are being accused of these things, but they 
are not here. And there are a lot of questions I would like to 
ask, technical, legal, policy questions to folks like CRS, 
which would be a wonderful resource to have in the room. They 
are not here either because we are in the middle of this absurd 
government shutdown.
    So I appreciate that we have scratched the surface of some 
interesting things today, but I just want to also express my 
frustration that we haven't been able to go beyond a pretty 
selective piece of that surface by virtue of the limitations 
that I have just discussed. And I hope perhaps the next time we 
discuss it--I am happy to continue the discussion--that we can 
have a more complete set of facts before us.
    Thanks, Mr. Chairman.
    Mr. McClintock. If the gentleman will yield, I just want to 
assure him that the U.S. Forest Service informed the 
subcommittee prior to the shutdown that it would not be able to 
testify on this bill, it was not willing to testify on this 
bill because the new directive was being reviewed by the OMB, 
and that they were embargoed to comment on it. And so that has 
nothing to do----
    Mr. Huffman. And reclaiming my time, Mr. Chair, if I might, 
I guess I would suggest that maybe instead of just leaving it 
at that and vilifying them for the problem they had in being 
unable to testify, work with them. Why does everything have to 
be so adversarial with the Forest Service and these other 
agencies? Find a time that works for them when they are not 
subject to that constraint, get them in here so that we can 
have a complete discussion.
    Mr. McClintock. If the gentleman will yield again, I would 
also point out that the minority had the opportunity to name a 
witness to this panel for this bill and did not.
    Mr. Huffman. Well, we have the same government shutdown 
problems that you do right now in getting witnesses. And I 
yield back.
    Mr. McClintock. Mr. Gosar.
    Mrs. Napolitano. The gentleman wants to respond.
    Mr. Porzak. If I might respond to two issues that you 
raised. One is, as one who has specialized in Western water law 
for 40 years now, one thing I recognize is that each of the 
Western States are different. And while they have common water 
principles, they are very different. And that is why it is so 
important to defer to that State water law because what may 
work in California might not work in Colorado or Utah or other 
States.
    The second issue is that when you do question the Forest 
Service, one question that I would ask them is that they say 
they want to preserve this water for that ski area or for the 
municipality or whatnot, but yet when the ski industry and the 
municipal interests ask them to agree to limit, if they took 
the water right, to limit it to the use to which it was 
previously put, and they absolutely refused to do that. They 
wanted the ability to change the water and to determine how 
much was truly needed for a ski use or a municipal use, and 
then be free to use the rest of that water for another purpose. 
I would challenge them on that.
    Mr. McClintock. Mr. Huffman, we are still on your time.
    Mr. Huffman. Thank you, Mr. Chairman. I would just say I 
hope we can get a chance to hear from them, and it is a 
discussion I would be happy to continue if we can get all the 
parties around the table to actually have it in the right way. 
Thank you, Mr. Chair. I will yield back.
    Mr. Parker. In Utah, it is interesting, there are a couple 
of points that I think are important. One is by statute the 
State of Utah has said those water rights that are related to 
livestock are appurtenant to the land, so they can't be 
transferred outside of that grazing allotment. The second part 
that I think is important is--it just left me, but----
    Mr. McClintock. Mr. Huffman's time is about to expire. We 
will go to Mr. Gosar and perhaps you can continue it there.
    Dr. Gosar. You want to start me at a new 5?
    Mr. McClintock. Yes, you will start at a new 5, that is 
correct.
    Dr. Gosar. Thank you. I think the last two people asking 
questions recalibrated mine.
    So, Mr. Corbin, what kind of financial aspect can you 
quantify for me in legal fees you spend to validate your water 
rights? What kind of money do you spend to validate those 
rights from the industry?
    Mr. Corbin. For the industry?
    Dr. Gosar. For the industry.
    Mr. Corbin. I honestly couldn't tell you. I know that we as 
a ski company made a contribution to NSAA to participate in the 
lawsuit that occurred last year. I could not tell you off the 
top of my head how much we individually contributed or what the 
legal fees incurred by NSAA were in that lawsuit last year. I 
can tell you in any litigation we are involved in they are 
substantial.
    Dr. Gosar. I would like to quantify that. I would like that 
question answered. I would like you to go back into your 
records and quantify that for me.
    For you, Mr. Parker, how about you? Can you quantify 
legally what it costs you--let's just say over the last 20 
years and break it down in those areas--how much it costs you 
to legitimize your water claims?
    Mr. Parker. This is a broad area because there is continual 
challenges legally in Utah that are related to access to the 
land. And that access to the land is basically the access to 
the water. And so you have got to almost lump those together 
because as the Federal agencies reduce livestock numbers, let's 
say an allotment has 300 head of cattle that use the water on 
there and it is cut to 150, the Forest Service gains de facto 
water for 150 cattle because there are only half of the number 
there drinking now. Even without going through a court action, 
they gain water rights because of an action that reduces cattle 
numbers on it.
    Stock producers and the agencies are at legal loggerheads. 
It is almost a continual battle. But the problem is, as we 
know, that the deep pockets of the Federal Government are 
pretty tough to beat when you are a rancher with a----
    Dr. Gosar. And that is what I am after. You know, the whole 
portal in the Western States is, if it doesn't have the water, 
you don't have a right. There is no access for that. So there 
is a purpose to where I am coming back to.
    So Mr. Porzak, from your legal opinion and from law over 
the last 40 years, are there some remedies, are there some 
opportunities for the industries that are dictated by this 
water usage to be compensated for their plight versus the 
Federal Government?
    Mr. Porzak. You cannot compensate. Water is a threshold and 
indispensable commodity. It is why it is often difficult to 
settle water cases, because it is not a traditional business 
transaction where you can just compensate people with dollars 
and cents. You can't do without the water. If you don't have 
the water for the municipal providers you can't serve the 
residents. If you don't have the water for the ski industry you 
can't make snow, you can't provide the domestic requirements 
and all the other uses. So it is so indispensable that there is 
no other alternative.
    Dr. Gosar. So in regards to the private industry and the 
segments that are dependent upon this versus, as you quantified 
it, the deep pockets of the Federal Government, wouldn't 
something like equal access to justice, shouldn't that have 
some application for those that are egregiously harmed by the 
Federal Government? Shouldn't there be some type of 
compensation for an egregious action by the Federal Government 
over States and individuals?
    Mr. Porzak. There should be, but that is not what the ski 
industry or the municipal providers are asking for. They are 
just asking----
    Dr. Gosar. Well, I am well aware that is not what they are 
asking. The problem is, I have been sitting here for 2 years 
and I am a dentist impersonating a politician and there is a 
core problem here, we see radical environmental groups, we see 
the Federal Government chastising over and over and over again 
borrowing from the Federal Government's power of the purse to 
manipulate and negate your ability to defend yourself. So to me 
I think that there has got to be some mechanism here, whether 
it be the Equal Access to Justice funding that is equivocal in 
funding to your needs.
    I see you want to talk.
    Mr. Parker. Yes. Generally, ranchers don't have access to 
the Equal Access to Justice Act because we are not claiming 
something is in violation of the law in these circumstances. 
You have to find the agency at fault in some way violating the 
Federal law, and this may rise to that level.
    Dr. Gosar. But that is what they are doing. My whole point 
is they are violating the Federal law because there is no 
Federal law that allows this jurisdiction. That is my whole 
point.
    I am trying to live outside the box. My time has expired.
    Mr. McClintock. Thank you.
    Mr. Stewart.
    Mr. Stewart. Thank you, Mr. Chairman, for holding this 
hearing.
    To the witnesses, thank you for coming. I know that it is 
inconvenient for you, for some of you it is expensive, you have 
other things to do. Thanks for being here with us today. Thanks 
for the service you give to your country.
    If you don't mind I am going to spend a little time with 
you, Mr. Parker, both of us coming from Utah. And we have known 
each other for a little time. I look at you and I think, OK, 
here is a guy who maybe has spent a little time on a horse----
    Mr. Parker. Yes.
    Mr. Stewart [continuing]. Knows a little bit about 
ranching, knows a little bit about farming. I want you to know 
that I do as well. I grew up farming and ranching. We still 
have both my family farm and my in-laws have a ranch and it is 
deep in our blood and we appreciate that lifestyle. I mean, 
there is nothing more American than the family farm or the 
family ranch, and it is something that we want to protect.
    Mr. Parker, would you consider yourself an expert on 
ranching and farming concerns?
    Mr. Parker. I have been involved in ranching since I was 
born, yes, cattle and sheep ranching, yes, sir.
    Mr. Stewart. And you represent a fairly large organization, 
as I understand, right?
    Mr. Parker. We do, 6 million member families in the United 
States that I am speaking for today.
    Mr. Stewart. Six million. That is a substantial number.
    Mr. Parker. Yes.
    Mr. Stewart. And I appreciate that. It seems to me, as I 
said, that you can speak with some authority then about farming 
and ranching concerns. And I would like to go back to your 
opening statement, if I could, something that you mentioned 
briefly, but I think it is worth coming back to, and that is 
your telling of what happened in Tooele County, which is a 
fairly rural county in Utah, it is west of Salt Lake. It is a 
county that I represent by the way. And you go back a few 
years, 2012, where we had agents from the Forest Service who 
were denying ranchers and farmers grazing permits unless they 
agreed to relinquish their private livestock water rights.
    Look, that to me is just unheard of, and it is egregious to 
think of the impacts that that could have on these, what are 
almost in every case, family farms and family ranches. And I 
just wondered if you would elaborate on that and maybe just 
ask, have you ever heard or seen an example of such what I 
consider an abuse of power?
    Mr. Parker. This is, as far as I have seen it, as 
aggressive as I have seen it based on the livestock industry.
    I think I want to start by noting that, like the ski 
industry, water is part of the balance sheet for livestock 
producers as well. It is part of the asset base that they 
borrow against.
    For that group in Tooele County, they initially were asked 
to sign a change of use application, which would have 
transferred the right to use that as livestock water to the 
Federal agency, and then they would determine what they wanted 
to use it for. That is what a change of use application would 
allow. So they would turn over their ability to maintain that 
as livestock water on that allotment.
    The Forest Service objected and said, well, we made a 
mistake, we only wanted them to sign a joint ownership 
agreement, and we really didn't mean it, they wouldn't be able 
to use their grazing allotment. Well, you know, that is after 
the cow is out of the gate, so to speak.
    And either way you cut it, that is a diminishment----
    Mr. Stewart. Right.
    Mr. Parker [continuing]. Or a relinquishment of value and 
of a right that is granted under the sovereign rights of the 
State of Utah through the State engineer. It is a taking. There 
is no question about it.
    Mr. Stewart. There is no question. I mean, I may own my 
home, but if someone demands joint ownership agreement of my 
home that is a substantial reduction of my rights and private 
property.
    Can you tell us very quickly, how was that resolved? What 
was the outcome of that?
    Mr. Parker. The regional forester intervened and said, we 
really didn't mean to go there, and so they have kind of backed 
away from it at this point. But my view is what happens with 
the ski industry will be a telltale sign of how much further 
this creep could get into the livestock industry.
    Livestock water across the State of Utah, the second most 
arid State in the Nation, if we don't have that broadly 
dispersed water for those livestock to graze out there on those 
rangelands the grazing value is gone, as is the water value.
    Mr. Stewart. Well, and so in this case maybe they backed 
off a little, although they haven't backed off entirely on 
this, it hasn't been closed. But we know there are instances in 
Nevada, for example, where BLM and Forest Service agents ended 
up, some of them, in criminal charges and actually going to 
jail for----
    Mr. Parker. In the Hage case, yes, absolutely.
    Mr. Stewart. Yes.
    Mr. Parker. They overfiled on their water, it went to 
court. The Supreme Court wouldn't hear it because they said it 
isn't ripe. But, yes, that is where we have been.
    Mr. Stewart. That is exactly right.
    So I see my time is up, but just very quickly, Mr. 
Chairman, look, when you have Federal agents that are acting in 
direct conflict of the law and they are doing what I consider 
extorting something as precious as water rights out of private 
citizens, well, how would we expect those citizens to react? 
How would we expect them not to have some, you know----
    Mr. McClintock. We will take that as a rhetorical question.
    Mr. Stewart. Yes.
    Mr. McClintock. But there has been a request for a second 
round, so we will get back to that in a few minutes.
    Mr. Stewart. OK. Thank you, Mr. Chairman. I appreciate it.
    Mr. McClintock. And I would like to pick up on that very 
point with Mr. Parker and Mr. Porzak.
    Are we seeing an adversarial relationship begin to develop 
between this Government and the people, and particularly 
between the U.S. Forest Service and the users of our public 
lands? I raise that point because I am getting increasingly 
frantic complaints throughout my district of abusive behavior, 
most recently with the shutdown. Concessionaires who own their 
own shops, who own their own businesses literally being forced 
to close their doors solely because they are leasing land from 
the Federal Government.
    Now, in the 17 shutdowns that have occurred over the past 
37 years this has never happened before. It seems that the U.S. 
Forest Service is going out of its way to make life difficult 
for people, to inconvenience people, and almost seem to be 
reversing the entire original purpose of the Forest Service, 
which Gifford Pinchot described as managing the public lands 
for the greatest good for the greatest number in the long run. 
Are we seeing a fundamental change in this relationship?
    Mr. Porzak. The Forest Service and the ski industry, as Mr. 
Corbin pointed out, have always had a great working 
relationship. They have truly worked as partners on many 
issues. Where the line got drawn, though, was with respect to 
the takings of their water rights. That was the one time that 
the ski industry turned around and actually initiated a lawsuit 
against the Forest Service. It is clear on this issue a wedge 
has really been driven by the administration.
    Mr. McClintock. So this is unprecedented, and it is a 
fundamental shift in the relationships that have previously 
existed between the Government and the people.
    Mr. Porzak. Yes, Mr. Chairman.
    Mr. Parker. Mr. Chairman, from a livestock and agriculture 
standpoint, this is timber as well, if you go back to the 1960 
Multiple Use Sustained Yield Act, there was a right granted to 
do certain things on the public land under that multiple use 
banner. FLIPMA changed that, and everything now is based on 
permitting, and those permits can be changed based on the whims 
of either Washington, DC, or the agents out there on the 
ground.
    So, yes, we have seen a much more adversarial relationship 
because we have changed from a right to a permit and those 
permits can basically go all over the place based on whatever 
the politics of the day are.
    Mr. McClintock. Mr. Corbin, I am not going to put you in 
that hot seat, but I have talked to a number of operators over 
the years who tell me they are simply scared to death of giving 
candid answers because of their fear of retaliatory actions by 
the Forest Service. So I will excuse you from being placed in 
that position.
    Mr. Crews, under the drought relief program, in your view, 
are the authorities provided under the program narrowly 
tailored toward the purpose of drought relief?
    Mr. Crews. No, I don't think they are. There are too many 
provisions there that are unreimbursed. The bulk of the money 
does go to well drilling, but contingency planning and 
transport and all these other provisions that are there don't 
get reimbursed by the beneficiary of the program. And I think 
in essence the approach is wrong. 
    Mr. McClintock. Are there also expenditures in this other 
than drought relief in the narrow sense?
    Mr. Crews. Well, there is drought relief, there is solar 
panel, there is desalination, there are program choices that 
don't necessarily make a lot of sense.
    Mr. McClintock. Mr. Willardson, I have got two basic 
propositions. The first is that cheaper water is better than 
more expensive water, and that more water is better than less 
water. If we can agree on these propositions then I think we 
can also agree that the entire purpose of our water policy is 
to protect against droughts; in other words, to store water 
during wet years in order to have it in dry years, to move it 
from wet areas to dry areas, and to assure that in times of 
drought there is plenty to go around. Doesn't that mean we 
should be building more storage?
    Mr. Willardson. I agree with your premise. And also I would 
point out that in 1995, I believe, with the Western Water 
Policy Review Commission, that the comments from the States all 
included storage as a solution to the problems that they face.
    I would also point out, being a quasi-economist, that in 
Utah we have been criticized for having low water rates. Well, 
in the Salt Lake Valley we are at the base of the mountain 
which is fed by snowpack. There is very little distribution, 
there is very little treatment required, and subsequently the 
water is cheap. Now, does that mean we should artificially 
increase the price above what it is for production to encourage 
conservation? The State has set a goal of 25 percent reduction 
in use, but it is through other areas besides increasing price 
artificially.
    Mr. McClintock. Thank you. My time has expired.
    Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    Mr. Corbin, in April this year, nearly 108 ski resorts in 
24 of those States sent a letter of support of climate change 
plan. Are the resorts concerned about the impact of climate 
change and drought on the water resources available to the ski 
resorts, and how does this affect your business? And as a 
follow-up to that, what do you think the Federal role is in 
helping to deal with those two issues?
    Mr. Corbin. Indeed, we are very concerned about climate 
change or certainly the ongoing droughts that we have been 
experiencing recently in the West. As I said, water is kind of 
existential to our business. Without the water we are not in 
business. So to the degree that climate change, increasing 
temperatures, those sorts of things affect us, the desire on 
our own part to very carefully manage, conserve, optimize the 
use of our own water that we have obtained is very critical to 
us. So we believe we are incented perhaps more than anyone, for 
reasons that are both altruistic and economic, to preserve that 
water and use it wisely.
    Mrs. Napolitano. Thank you.
    There are so many questions that I would have. And I agree 
with Mr. Jared Huffman that there are many things that we 
cannot ask because the people are not here to ask.
    And, Mr. Chair, my staff was only given 6 business days to 
find a witness, so it is a little hard, especially with a 
shutdown, to be able to ensure that we have adequate 
representation.
    But I don't disagree on 3176. I just think we need to have 
more input and more information to be able to make a more 
informed decision. Because we are here--well, it is 3189, 
sorry--that our role is to ensure that whatever law is passed, 
that whatever we look at, whatever input we have, that it is 
good for the people that we represent. That should be our 
number one priority. Second, that it is fair for the people, 
that they have a voice. We are supposed to be their voice. And 
also the last one, and I consider that just as important, is 
that it is good for business and it is good for the economy, 
because without that the people will suffer.
    So with all that, we need to continue to ensure that we 
have all of the parties represented, that we have the voices of 
those that sometimes don't speak, can't speak for themselves, 
they can't afford attorneys, they don't have the ability to 
come in and say to Congress, you need to help us, whether it is 
financially or economically or viably, whatever. So I would 
suggest that we continue to have conversations and be able to 
figure out whether this can be resolved administratively, with 
our help or without our help, and that we understand that our 
responsibility is to all of you, as well as to the people that 
we all represent, and that we continue to find solutions that 
don't include spending an inordinate amount of money in 
attorney fees.
    So with that, Mr. Chair, I yield back.
    Mr. McClintock. And I would remind the gentlelady that the 
notice was the same as the minority party used to give the 
majority party when the minority was the majority and the 
majority was the minority.
    Chair recognize Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman. Just a couple of 
follow-up questions.
    Mr. Parker, when you were commenting about permits that can 
be changed on a whim, if I wrote down your comment correctly, 
effectively what you are saying is, correct me if I am in 
error, but you are worried that once a rule is put into place 
they can also change it. Does that speak to the importance of 
the Water Rights Protection Act?
    Mr. Parker. That is absolutely right. In fact, one of the 
big challenges in the Hage case that Mr. Stewart brought up was 
whether or not the Federal Government could, in fact, stop 
access to the water. The Federal Court in Nevada and the 
District Court of Appeals in Washington, DC, both agreed that 
there is a right of access to those water rights, those 
livestock water rights.
    Mr. Tipton. I appreciate that.
    And, Mr. Porzak, maybe you would like to get in on this as 
well, because we have talked about ski areas. We know the 
economic importance that Mr. Corbin has pointed out, certainly 
in my district and Mr. Polis' district, who is cosponsor of 
this legislation as well.
    But you had spoken to the point that this is far more than 
just a ski area issue. You had mentioned the municipal water, 
grazing rights that Mr. Parker can certainly speak to, Mr. 
Amodei had to step out, but we have heard of water rights being 
taken by the Forest Service down in the State of Nevada as a 
condition of permit.
    When we are talking about the municipal water that we are 
dealing with in Colorado, is this a real threat? And, again, 
why do you suppose the Federal Government, the Forest Service, 
is trying to pursue this taking?
    Mr. Porzak. It is control over a resource that is 
indispensable and enormously valuable. And they have made it 
clear that they want to have the control so that they can 
decide how that water is allocated and used. And time is of the 
essence on this issue to avoid future litigation.
    Mr. Tipton. So we can settle it once and for all to be able 
to protect your private property rights. We don't have to worry 
about rules being rewritten. To use your quote, going back 20 
years, this is not a new issue, it is time that we settle it, 
and this is a good piece of legislation to be able to 
accomplish that?
    Mr. Porzak. That is correct. And that is why we are so 
supportive of this legislation.
    Mr. Tipton. Thank you.
    Mr. Parker.
    Mr. Parker. And the point I wanted to add to this is the 
States do allow, Utah does allow the Federal Government 
ownership of water. They just have to go through the same 
process as anybody else. They have to step up and show that 
they are going to put it to beneficial use. They have to apply, 
like anybody else. And if they are taking a water right that 
belongs to somebody else, they have to pay for it. What in the 
world is wrong with that?
    Mr. Tipton. You know, and I believe that is accurate in 
Colorado as well. We are just not going to allow the Federal 
Government to be able to put themselves in the first position 
at the expense of our ski areas, at the expense of our farm and 
ranch communities, at the expense of our municipalities. They 
have to play by the same rules as the rest of us.
    Thank you, gentlemen. I appreciate your testimony here 
today. We do look forward to the Forest Service coming up and 
trying to express why in the world they believe they have the 
right to be able to take private property. Thank you.
    And with that I yield back, Mr. Chairman.
    Mr. McClintock. Thank you.
    Mr. Stewart is next. Mr. Stewart, if I could request, if 
you have any questions of Mr. Porzak could you make them first? 
He has to get out of here to the airport.
    Mr. Stewart. Actually, I don't, Mr. Chairman.
    Mr. McClintock. Mr. Porzak, I want to thank you so much for 
being here and welcome you to leave at your discretion.
    Mr. Porzak. Thank you, Mr. Chairman. I appreciate it.
    Mr. Stewart. I want to know how come he can go home and we 
don't get to.
    Mr. Porzak. I got the last seat on this airplane today.
    Mr. McClintock. Mr. Stewart.
    Mr. Stewart. Yes. I am going to be very brief. You all have 
been patient with us as we delayed for the vote, and it is 
getting late, so I won't take but a few minutes. But I want to 
pursue what Mr. Tipton was saying and maybe draw some 
conclusions from it. Let's for the moment give the Forest 
Service or BLM agents the benefit of the doubt. Let's suppose 
that they have reasons for some of the things that they have 
done or at least that they had some objective that they were 
trying to achieve. And I would ask maybe Mr. Corbin or again my 
friend Mr. Parker, have they explained to you what it is that 
they are hoping? Why is it that they would exert these rights 
when it would be contrary to tradition and law?
    Mr. Parker. The argument that they have made from a 
livestock standpoint is they suggest that that is the way they 
can assure that it will be there in the future to maintain 
their multiple use obligation and allow grazing. But we have 
already made that happen in Utah under State statute, we have 
made it livestock water rights appurtenant to the land.
    Mr. Stewart. I think that is exactly right, their desire to 
tie that water to the land. And I am going to come back to 
that.
    Mr. Corbin, did you want to add to that?
    Mr. Corbin. I would agree. And the same rationale has been 
given to us, that the stated purpose is to have the water 
available for the special use permit in the ski area per se. 
But as has been testified here already, in the rule that was 
proposed in 2012 there really wasn't such a restriction. It was 
indeed contemplated that uses might be other than skiing and 
outside of our permit areas for other purposes, whether that is 
aquatic systems elsewhere or not.
    Mr. Stewart. Whatever it might be.
    Mr. Corbin. It could be anything, yes.
    Mr. Stewart. That is right. Which brings me to the point I 
would like to make on that, and that is, while they wanted to 
ensure that the land and the water were tied so that it would 
continue to be used for the purpose that it was being used, 
they were afraid essentially that the water rights would be 
sold downstream for other uses or for some other cause. But, 
you know, we asked--not myself, I wasn't in Congress at the 
time--but the Congress asked the Chief if he had any examples, 
even one, of that occurring, and this was several years ago and 
his answer was no, we don't have a single occurrence where that 
has actually been what took place.
    And I am wondering, in the ensuing 2 or 3 years since then, 
are either of you aware of any example of that occurring?
    Mr. Corbin. In my experience, no sir, I am not aware of any 
ski area that has essentially stripped itself of its water and 
sold it as----
    Mr. Stewart. Of course not. Of course they wouldn't do 
that.
    Mr. Corbin. It would severely hamper your ongoing 
enterprise. So there is no real reason to strip your water off 
your ski area.
    Mr. Stewart. There is no-self interest of you doing that.
    Mr. Parker, do you----
    Mr. Parker. And if you take where livestock water is, 
across Utah in particular, it has been developed out there 
across the landscape and it is an arid landscape. And a lot of 
them are just troughs where seeps have been run into it for 
water for livestock and wildlife. It would be impossible to be 
able to transfer that dispersed water out there across the Utah 
landscape, put it into a pipe, and send it to some 
municipality. It can't happen. The best use of it is livestock 
water for the economic opportunities that it affords rural 
Utah.
    Mr. Stewart. Well, and so I started out my questions to you 
by saying let's give the agency agents the benefit of the doubt 
trying to understand why they are doing this. But their own 
reason, their justification, it is chasing a ghost. I mean, 
they are trying to solve a problem that doesn't exist. What 
they are trying to do is to preclude a problem that by their 
own admission does not exist.
    Mr. Parker. If you look at the findings in the Hage case, 
particularly when the Federal Government, the agents filed a 
trespass suit against the family, the agencies are strong 
arming these individuals out of being able to clean their 
ditches, out of using their water right. These are Federal 
agents that by court were fined for illegal activities against 
those ranching families. Very few of them have the financial 
wherewithal to do this. The Hage's did and they found it pretty 
tough treading to go through the court system.
    Mr. Stewart. Well, thank you. Again, to all of the 
witnesses, you have helped me make I think some important 
points with your experience.
    And, Mr. Chairman, I yield back.
    Mr. McClintock. Thank you.
    I would like to thank our witnesses for their valuable 
testimony today and again for their patience on our late start. 
Members of the subcommittee may have additional questions, and 
we would ask that you respond to those in writing. The hearing 
record will be open for 10 business days to receive those 
responses.
    And if there is no further business, without objection, the 
subcommittee stands adjourned.
    [Whereupon, at 4:17 p.m., the subcommittee was adjourned.]

                                ------                                


            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

 Letter from Chairman McClintock to Bureau of Reclamation on H.R. 3176
                   U.S. House of Representatives,  
                    Committee on Natural Resources,
                                            Washington, DC,
                                                  October 18, 2013.
Hon. Michael L. Connor, Commissioner,
U.S. Bureau of Reclamation,
1849 C Street, NW,
Washington, DC 20240.

    Dear Commissioner Connor:

    As you know, I invited you to testify on H.R. 3176 at the Water and 
Power Subcommittee's October 10, 2013 hearing. However, you or any 
other agency personnel did not testify or submit comments on the 
legislation.
    While you unfortunately chose not to attend, it is your agency's 
responsibility to provide the Administration's views on H.R. 3176. As 
such, I request that you provide written comments on the bill no later 
than November 1, 2013.
    Thank you for your attention to this matter.

            Sincerely,
                                  Tom McClintock, Chairman,
                                   Subcommittee on Water and Power.

                                 ______
                                 

  Letter from Chairman McClintock to U.S. Forest Service on H.R. 3189
                   U.S. House of Representatives,  
                    Committee on Natural Resources,
                                            Washington, DC,
                                                  October 18, 2013.
Hon. Tom Tidwell, Chief,
United States Forest Service,
1400 Independence Ave., SW,
Washington, DC 20250.

    Dear Chief Tidwell:

    As you know, I invited you to testify on H.R. 3189 at the Water and 
Power Subcommittee's October 10, 2013 hearing. However, you or any 
other agency personnel did not testify or submit comments on the 
legislation.
    While you unfortunately chose not to attend, it is your agency's 
responsibility to provide the Administration's views on H.R. 3189. As 
such, I request that you provide written comments on the bill no later 
than November 1, 2013.
    Thank you for your attention to this matter.

            Sincerely,
                                  Tom McClintock, Chairman,
                                   Subcommittee on Water and Power.

                                 ______
                                 

Response to Chairman McClintock from U.S. Department of the Interior on 
                               H.R. 3189
                   U.S. Department of the Interior,
                                            Washington, DC,
                                                 November 13, 2013.
Hon. Tom McClintock, Chairman,
House Subcommittee on Water and Power,
Washington, DC 20515.

    Dear Mr. Chairman:

    This letter provides the views of the Department of Interior 
(Department) on H.R. 3189, the Water Rights Protection Act, which was 
the subject of a legislative hearing by the Subcommittee on Water and 
Power. The Department has serious concerns that H.R. 3189 could 
significantly impact the Department's ability to manage water-related 
resources within public lands managed by the Department. The 
legislation is overly broad and could have numerous unintended 
consequences that would affect existing law and voluntary agreements. 
The Federal Government retains the right to regulate government lands 
under Article IV, Section 3 of the Constitution. Pursuant to that 
provision, the United States has authority to reserve water rights for 
its reservations and its property. Although the Federal Government 
generally defers to the States in the allocation and regulation of 
their water rights, a bill prohibiting two Federal departments from 
exerting some control over the exercise of water rights located on 
Federal lands threatens to undermine their longstanding authority to 
manage property and claim proprietary rights for the benefit of Indian 
tribes and reserved Federal lands. The bill would create uncertainty 
for many existing voluntary arrangements that are designed to produce a 
more efficient operation of U.S. facilities in the wake of climate 
change and reduction of water supplies.
    H.R. 3189 may prohibit parties from voluntarily entering into 
agreements with the Department or its bureaus with respect to water 
rights in order to protect State, Federal or third party interests. For 
example, this bill could prevent the Bureau of Reclamation from 
partnering with parties who use groundwater for recreational activities 
on Reclamation lands, since the recreational users often apply jointly 
with Reclamation for a State permit since Reclamation is the land 
owner. Further, there are numerous examples where the Bureau of 
Reclamation has contracts with water users that include the transfer or 
relinquishment of pre-existing private water rights in exchange for a 
license or contract that provides project benefits at Reclamation 
facilities, e.g. storage or delivery of water. The bill, as written, 
may prohibit renewal of such contracts, thus interfering with 
voluntary, mutually beneficial agreements that improve water resource 
management. We do not believe it was the intent of this legislation to 
prohibit such agreements and we believe the Department should be 
explicitly excluded.
    The legislation would also prohibit the National Park Service from 
exercising its authority to perfect water rights in the interest of the 
United States for waters diverted from or used on National Park Service 
lands, including operations associated with National Park Service 
concessioners, lessors or permittees. The requirement that all water 
rights on National Park Service lands be held in the name of the United 
States is grounded, in part, on the potential damage and disruption 
that privately held water rights could cause to park resources and 
operations.
    As drafted, the legislation would also impose unnecessary 
restrictions on the Bureau of Land Management's ability to 
cooperatively mitigate impacts to sensitive water resources. The BLM 
frequently partners with public land users through collaborative 
agreements to plan, finance, and develop water resources. The 
legislation would not provide additional protections for the holders of 
water rights beyond current BLM policy, and if enacted, would 
jeopardize the BLM's ability to manage water-related resources vital to 
many multiple uses on public lands.
    We appreciate the opportunity to present the Department's views on 
H.R. 3189. The Office of Management and Budget has advised that there 
is no objection to the transmittal of these views from the standpoint 
of the Administration's program. If you have any questions, please call 
me, or Libby Washburn, Deputy Commissioner for External & Governmental 
Affairs, Bureau of Reclamation, at 202.513.0616.

            Sincerely,
                                               Anne Castle,
                         Assistant Secretary for Water and Science.

                                 ______
                                 

               Prepared Statement of USDA Forest Service
                 h.r. 3189, water rights protection act
    Chairman McClintock, Ranking Member Napolitano, and Members of the 
Subcommittee, thank you for the opportunity to provide the U.S. 
Department of Agriculture's views on H.R. 3189, the Water Rights 
Protection Act. We defer to the U.S. Department of the Interior for its 
views on this bill as it pertains to its bureaus.
    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. Our interest is not in taking the water right, but in 
assuring that a necessary amount of water is available so that skiing 
can continue to be an important recreation opportunity in the National 
Forests.
    Based on comments and a series of town hall meetings held this 
year, we will be proposing changes to the ski area water rights clause 
that address the concerns associated with the previous ski area water 
rights clause. We believe that these changes will provide assurances to 
the public and communities that depend on economic activities from ski 
areas that they will continue to provide recreation opportunities. 
Further, we believe that these objectives can be met without requiring 
the transfer of privately owned water rights to the Government. Once 
the proposed permit clause is published in the Federal Register, the 
public will have an opportunity to comment, and the Forest Service will 
determine how to proceed based on those comments.
    Because we are moving forward expeditiously with an opportunity for 
public comment on the ski area water rights clause in response to a 
2012 court decision, 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 (MUSYA). Specifically, the 
bill would preclude the Forest Service from requiring as a condition of 
a permit issued for MUSYA purposes, such as a ski area or grazing 
permit, the transfer of associated water rights to a succeeding 
permittee. Thus, 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.
    In addition, the legislation could also generate litigation over 
imposition of conditions on a special use authorization or a Federal 
Energy Regulatory Commission license to require a bypass flow. 
Inability to impose bypass flow requirements would significantly affect 
the Forest Service's management of water resources to protect the 
environment, e.g., to ensure adequate water is available for fisheries 
or threatened and endangered species.
    Thank you again for this opportunity to comment on H.R. 3189.

                                 ______
                                 

             Letters Submitted for the Record on H.R. 3189

                          Heavenly Mountain Resort,
                                            Lake Tahoe, NV,
                                                   October 7, 2013.
Hon. Tom McClintock, Chairman,
Hon. Mark Amodei,
House Subcommittee on Water and Power,
1522 Longworth House Office Building,
Washington, DC 20515.

Re: H.R. 3189--Water Rights Protection Act

    Dear Chairman McClintock and Congressman Amodei:

    Heavenly Mountain Resort operates a public land ski area in the 
States of California and Nevada under a Special Use Term Permit from 
the USDA Forest Service.
    Heavenly supports H.R. 3189 the Water Rights Protection Act as 
proposed for the following reasons:

  1.  Water rights developed, paid for and perfected by the ski area 
            permittee are a right of use that is protected by the State 
            Constitution: any taking of those rights by the Federal 
            Government requires fair and equitable compensation;
  2.  In Nevada for example, all surface and groundwater water is owned 
            by the State which grants the rights to use it through the 
            State Engineer to private and public entities through a 
            detailed permitting system. It is not possible for a 
            private ski area permittee to transfer to the Federal 
            Government something that it does not own;
  3.  Tourism and outdoor recreation is the economic base of our 
            community and provides several thousand direct and indirect 
            jobs annually;
  4.  In the Sierra Nevada mountains in particular where natural 
            snowfall has been inconsistent in recent years, the ability 
            to acquire and utilize water rights for snowmaking is a 
            critical business issue that allows resorts like Heavenly 
            to have successful ski seasons;
  5.  Using the water rights to make snow and manage it throughout the 
            season supports a significant number of jobs in our 
            community: in particular early season snowmaking is 
            critical to our local economy both directly and indirectly 
            because it provides consistency as to when we can open to 
            the public;
  6.  Based on our presence in the community and our long-term 
            commitment to its sustainability and economic well-being, 
            Heavenly is clearly better suited than the Federal 
            Government to responsibly use and reliably protect this 
            valuable resource; and
  7.  While we enjoy a close working relationship with the Forest 
            Service in providing high-quality outdoor recreation to the 
            American public, their previous attempts at requiring 
            transfer of water rights as a permit condition is 
            unnecessary and appears to be a solution in search of a 
            problem that does not actually exist in our industry.

    Thank you for the opportunity to provide our input to this 
important bill. I am sorry that I cannot be with you in person to 
present our testimony.
    Please share it with members of the subcommittee and add it to the 
hearing record.

            Sincerely,
                                             Andrew Strain,
                 Vice President of Planning & Governmental Affairs.

                                 ______
                                 

    National Association of Conservation Districts,
                                            Washington, DC,
                                                  October 21, 2013.
Chairman Hastings, and Ranking Member DeFazio,
Committee on Natural Resources,
Chairman McClintock, and Ranking Member Napolitano,
Subcommittee on Water and Power,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: The Water Rights Protection Act--H.R. 3189

    Dear Chairman Hastings, Ranking Member DeFazio, Chairman McClintock 
and Ranking Member Napolitano:

    The National Association of Conservation Districts (NACD) supports 
the bipartisan H.R. 3189, the Water Rights Protection Act. NACD 
represents America's 3,000 locally led conservation districts working 
with millions of cooperating landowners and operators to help them 
manage and protect land and water resources on private and public lands 
in the United States. Established under State law, conservation 
districts share a single mission: to work cooperatively with Federal, 
State and other local resource management agencies and private sector 
interests to provide technical, financial, and other assistance to help 
landowners and operators apply conservation to the landscape.
    NACD understands that water is a vital natural resource that needs 
to be protected. This bill would prevent Federal agencies from 
requiring public-lands users to turn over water rights as a condition 
of issuing or renewing permits. Not only is compelling individuals to 
relinquish water rights for permits unfair to those who have paid to 
use their water permits, the required waiver of water rights to the 
Federal Government overlooks State laws concerning water rights 
transfer and ownership as well as Constitutional takings issues.
    Stakeholders ranging from individual ranchers and farmers to 
municipalities rely on private water rights to provide drinking water, 
provide agricultural water, run their operations, and secure loans. The 
loss of these water rights would take away their ability to address 
local water concerns and plan ahead to meet their specific long-term 
water needs. H.R. 3189 would secure water rights for those that have 
paid for them and provide stakeholders the stability they need to 
appropriately plan for and manage natural resources at the local level.
    Thank you for your consideration of these important water resource 
issues as they pertain to H.R. 3189.

            Sincerely,
                                            Earl J. Garber,
                                                         President.

                                 ______
                                 

            Rio Grande Water Conservation District,
                                         Alamosa, Colorado,
                                                  October 15, 2013.
Hon. Scott Tipton,
218 Cannon House Office Building,
Washington, DC 20515.

    Dear Representative Tipton:

    One of the Rio Grande Water Conservation District's purposes is 
``for the conservation, use and development of the water of the Rio 
Grande''. We understand that there has been an attempt by certain 
Federal agencies to require Federal permittees to assign their private 
water rights to the Federal Government as a condition of the permit. If 
this policy continues it will create a great risk to the water users 
both in the San Luis Valley and statewide. The Rio Grande Water 
Conservation District supports H.R. 3189, The Water Rights Protection 
Act, aid will work with you to garner support for this bill to ensure 
protection of privately owned water rights from claims by Federal 
agencies.
    As we understand, H.R. 3189 was introduced as a means to protect 
water users from the seizure of privately owned water rights without 
just compensation. We believe that H.R. 3189 grants no new rights to 
any party, nor does it in any way infringe on existing rights of 
individuals, States or the Federal Government. It appears to us that 
this legislation simply reaffirms what has been existing law for 
generations and which is expressed in numerous places in Federal law, 
including the Mining Act of 1866; the 1897 Organic Act establishing the 
U.S. Forest Service; the Taylor Grazing Act; and the Federal Land 
Policy and Management Act of 1976. The bill supports long-established 
recognition of the primacy of State water law and the title to water 
rights that are established thereunder.
    We are aware of no provision in Federal statutory law authorizing 
or permitting the Forest Service or the Bureau of Land Management to 
compel owners of lawfully acquired water rights to surrender those 
rights or to require that they be in the name of the United States. 
H.R. 3189 does nothing more than assure holders of BLM or Forest 
Service permits that their lawfully acquired water rights will not be 
abridged and that Federal agencies may not use the permit process to 
acquire water rights that are owned by non-Federal entities.
    We thank you for taking a leadership role in addressing this 
crucial issue and look forward to working with you on this important 
legislation.

            Sincerely,
                                           Steven Vandiver,
                                                   General Manager.

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