[Congressional Record Volume 160, Number 42 (Thursday, March 13, 2014)]
[House]
[Pages H2385-H2401]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WATER RIGHTS PROTECTION ACT
General Leave
Mr. HASTINGS of Washington. Mr. Speaker, I ask unanimous consent that
all Members may have 5 legislative days in which to revise and extend
their remarks and include extraneous material on the bill H.R. 3189.
The SPEAKER pro tempore (Mr. Yoder). Is there objection to the
request of the gentleman from Washington?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 515 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 3189.
The Chair appoints the gentlewoman from North Carolina (Ms. Foxx) to
preside over the Committee of the Whole.
{time} 1425
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 3189) to 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
and Agriculture, with Ms. Foxx in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Washington (Mr. Hastings) and the gentlewoman from
California (Mrs. Napolitano) each will control 30 minutes.
The Chair recognizes the gentleman from Washington.
Mr. HASTINGS of Washington. Madam Chairman, I yield myself such time
as I may consume.
President Obama has made no secret of the fact that he is willing to
act unilaterally to impose new laws and regulations on the American
people, declaring that he has ``a pen and a phone.''
Over the last 5 years, there have been numerous examples of what has
become an Imperial Presidency. Under the administration, the reach of
the Federal Government has extended into nearly every sector of our
economy and ensnarled it in new red tape and regulations.
An egregious example of this is the Federal Government's concerted
effort to take water away from individuals and businesses. Water is the
lifeblood of communities and essential for a strong economy. Cities,
ranchers, farmers, businesses, along with the jobs
[[Page H2386]]
they support, all depend on a stable supply of water to survive.
For over a century, there have been established laws upholding a
State's right to manage its water and its water laws, but now, this
administration is threatening to undermine those laws and seeks to take
away private property rights--or private water rights governed under
State laws.
Madam Chairman, that is why we are here today, to consider H.R. 3189,
the Water Rights Protection Act. This bipartisan bill would protect
private property rights from Federal overreach that threatens to take
water supplies away from water users, such as ski areas, ranchers,
cities, towns, and local conservation efforts.
This bill is responding to a very real threat as the Obama
administration has sought to extort water from individuals and
businesses through the permitting process.
Now, how is this done, Madam Chairman? Federal agencies are
threatening to withhold permits needed to operate on Federal lands,
unless private water rights are turned over to the Federal Government.
Put more simply, the Federal Government is holding necessary permits
hostage unless water rights are relinquished; and they are demanding
that water rights be signed over without payment, which of course is a
violation of the Constitution's guarantee of just compensation.
Unfortunately, these businesses that are affected need both the
permits and the water in order to operate, so what the Federal
Government is doing is forcing them into an impossible situation where
either choice puts them in danger of losing their livelihood or their
businesses.
{time} 1430
During today's debate, we will hear specific examples of businesses
and families, including ski resorts and ranchers, who have experienced
this heavy-handed tactic of the Federal Government's.
It is important to be clear about the risk posed by the Federal
Government's action. This is not simply a threat to ski resorts and to
ski areas located on Federal land as, I am sure, some will argue on the
floor here today. The known problem is much greater. We have heard
testimony in our committee to that fact, and the threat is not limited
to one part of the country.
If a Federal agency can demand that a ski resort in Vail or that a
rancher in Utah has to hand over his water to get a Federal permit,
then a Federal agency can certainly do the same thing in other States--
Ohio, Florida, West Virginia. Water may be more plentiful in these
regions of the country than in the arid West, but the Federal
Government's appetite has no geographical limits when it comes to
expanding its regulatory control and its disrespect for private
property and the livelihoods of American citizens. This is a threat
being felt first by the West, but the risk is real, and it exists for
the entire country.
Madam Chairman, regardless of where the Federal Government seeks to
take water and from whom it is trying to take it, it is simply wrong,
and it must be stopped. That is why H.R. 3189 is necessary, and it is
why the bill is endorsed by numerous national and regional groups,
including the U.S. Chamber of Commerce, the National Ski Areas
Association, the American Farm Bureau Federation, the National
Cattlemen's Association, the Natural Water Resources Association, and
others.
Now, in the course of the debate, there will be claims and assertions
made today that this bill is overly broad and that it will have a whole
range of unintended consequences. Madam Chairman, I certainly don't
blame those who support the Federal takings of private water rights
from wanting to change the subject, but this bill is very focused. It
has only one consequence, and that consequence is absolutely intended.
It stops the Federal Government from taking the water of American
citizens without paying for it. It does nothing else.
In fact, this bill carefully states that this prohibition will not
affect irrigation water contracts, FERC licensing, endangered species
recovery, national parks, or any other legal authorities. Important
environmental restoration, wildlife protection and conservation work
that has been occurring for years in a positive, cooperative manner--
and that is whether it is in Puget Sound, which is in my State, in the
Chesapeake Bay, nearby here, or in the Florida Everglades--will all
continue, and all are protected. Such efforts will not be changed by
this legislation.
Madam Chairman, I want to thank and recognize the sponsor of this
legislation, our colleague from Colorado (Mr. Tipton), for all of his
hard work in advancing this important, commonsense, bipartisan
legislation.
It is time for the legislative branch to exert itself on behalf of
the American people and rein in the imperial overreach of the executive
branch and this administration. No law gives Federal agencies the
authority to take private property rights as the administration is
seeking to do. In fact, the Constitution prohibits such takings. It is
time to put an end to such tactics, so I urge my colleagues to support
this legislation and send a strong signal to this administration--to
leave private property rights alone.
I reserve the balance of my time.
Mrs. NAPOLITANO. Madam Chair, I yield myself such time as I may
consume.
The legislation we have to consider today is flawed on many levels--
it is flawed on process; it is flawed on policy; and it is flawed in
claiming that it protects States' water rights. H.R. 3189 does not
solve the problem--it creates more problems--because it is so broadly
written and has no chance of being enacted into law.
The majority introduced the Water Rights Protection Act as a way to
protect private property rights. It is not about protecting private
property rights. It is not about protecting States' water rights. It
goes in the opposite direction, that of creating a new Federal
definition of a ``water right'' when we have not had a hearing on that
particular point.
Water rights have, for more than four centuries in American law, been
defined as a matter of State law. If the majority is really concerned
about Federal overreach, creating a sweeping new Federal definition of
a ``water right'' without even a single hearing is not the best choice.
H.R. 3189 only had a hearing, and it was held during the government
shutdown, during the sequestration. As a result, the agencies affected
were not able to provide expert analysis because they were not able to
be at the hearing to talk to the bill's impacts. The bill's incomplete
legislative record was worsened by the committee markup, whereby a
clumsily drafted savings clause was added. This only added to the
confusion as to the purpose of the bill, negating the purpose of the
legislation, which I understand now makes it a broader bill in
addressing some of the issues, as have been stated by my colleague,
that it is overreach by the Obama administration, thus negating the
water rights.
Today, the manager's amendment, with four additional savings clauses,
continues to show the magnitude of the unintended negative consequences
that H.R. 3189 would have on various activities that require a Federal
permit.
There is some agreement on this bill. We both agree that the starting
point of this legislation involves a conflict between the Forest
Service and the ski resorts, which was the focus of the hearing.
Unfortunately, the Forest Service issued a declaration, a release, that
mandated certain things that are objectionable to my colleagues, and
they are now having to set out a new policy directive that is under
consideration by the OMB. We have not waited for the results of the
OMB. We can't tell until after the comment period is given to the
general public, and then it can be published.
There are currently 121 ski resorts located in 13 States that are
operating on Federal Forest Service land. That is public land that
belongs to the general public. It doesn't belong to the ski resorts,
and it doesn't belong to this body. It belongs to the people. Through
long-term special use permits, these resort companies are operating on
public--taxpayer--land, belonging to the American people, for private
profit. In many cases, these companies purchase water rights in order
to operate the resort.
The Forest Service is currently struggling with what happens with the
permitting of sales of water rights.
[[Page H2387]]
How could the agency find a new operator if there is no water to go
with that land and if it is not available, if there is no water for the
land? The Forest Service issued a directive in 2011 requiring that, as
a condition of these special use permits, the applicant must place its
water rights in the name of the United States. Who is the United States
if it isn't the American taxpayer?
To be clear, this was not because President Obama is mad with power
and wants to own water rights, as some have alluded to. Rather, it was
so that the Forest Service could include those water rights as part of
the package when seeking a new operator and issuing a new contract for
an existing ski area on public--taxpayer--land.
The court validated that directive on procedural grounds, and the
Forest Service is currently working on a new directive, as they have
stated in the letter to this committee. One, they have said, will not
involve permit applicants transferring their water rights to the
Federal Government. It would be appropriate to consider legislation
that really pinpoints and clarifies that ski area permits may not be
conditioned on the transfer of water rights to the government. New
legislation devising a real solution to this problem would not only be
welcomed, it would be a necessity. This is why we support the Polis
amendment, which addresses the narrow conflict between the ski resorts
and the Forest Service, which is the real conflict.
This bill would prevent the entire Department of Agriculture and the
entire Department of the Interior from conditioning any use of public
property on the impairment of any water right. This bill goes well
beyond ski resorts and well beyond the Forest Service to fundamentally
alter public--taxpayer--land management, including the management of
all units of the National Park System.
If this bill were to become law, grazing permits could no longer
require that some water be left in the streams for the cattle, and
bypass flows would be impacted. Any and all uses of public lands which
touch on water would be affected. Without the ability to condition
permits or authorizations on reasonable protections for water-dependent
resources, such as habitat, timber, or recreation, agencies will not be
able to comply with the conservation and multiple-use mandates required
currently by law. The bill is so broad and so irresponsible that, if it
were to be enacted, it would mean the very end of the public lands
activities it is supposed to protect, because those activities could no
longer be managed responsibly.
Congress should get out of the way, respect States' rights, and allow
the Forest Service to issue its new directive, which is not the taking
of anyone's property. Rather, it is placing responsible conditions on a
permit allowing private companies to profit from their use of public--
taxpayer--lands.
Finally, Madam Chair and Members, it is unfortunate that we are
dedicating time and energy to this aspect of water management when our
constituents and our communities are facing so many more important
water challenges. Most of the U.S., especially the Western U.S., is
suffering from drought. While 53 percent is facing moderate to
exceptional drought, the entire State of California, my State, is in
drought. We certainly have more fish to fry than talking about a bill
that is limited to ski resorts and the Forest Service.
I do urge my colleagues to worry less about these resorts and more
about the drought that is ravaging our West, the wildfires that are
threatening our lives and property, and climate change, which, if we
continue to fail to act or accept, makes snow skiing a thing of the
past. Some would say that this goes far beyond ski resort issues and
affects nationwide entities. I say let's deal with the ski issue and
the Forest Service separately, and let's support the Polis amendment.
Madam Chair, I submit for the Record a letter dated February 11,
2014, from the National Ski Areas Association. In the very first
sentence, they are including:
I am writing on behalf of the ski industry to express the
reasons ski areas strongly support passage of the bipartisan
Water Rights Protection Act, H.R. 3189/S. 1630, and to
advocate changes to the bill to narrow its scope.
I oppose the legislation. I urge my colleagues to vote against this
bill and to support the Polis amendment.
I reserve the balance of my time.
National Ski Areas Association,
February 11, 2014.
Re: Support for Water Rights Protection Act
Rep. Scott Tipton,
Cannon HOB, Washington, DC.
Rep. Jared Polis,
Longworth House Office Building,
Washington, DC.
Sen. John Barrasso,
Dirksen Senate Office Building,
Washington, DC.
Sen. Mark Udall,
Hart Office Building Suite,
Washington, DC.
Gentlemen: I am writing on behalf of the ski industry to
express the reasons ski areas strongly support passage of the
bipartisan Water Rights Protection Act, H.R. 3189/S. 1630,
and to advocate changes to the bill to narrow its scope. At
the outset, the ski industry would like to express our deep
appreciation of your effort to protect ski area water rights
from federal encroachment over the past couple of years. Your
leadership on protecting water rights and your commitment to
working in a bipartisan fashion to solve this problem on
behalf of ski areas and other permittees on federal land have
had very positive and real effects to date. While ski areas
have enjoyed a long and successful partnership with the
Forest Service spanning almost eight decades, Forest Service
water policy is an issue on which we simply do not agree. We
have invested too much in water rights to simply hand them
over to the federal government.
As you are well aware, the Water Rights Protection Act
would stop the federal government from illegally seizing
water rights from private parties that develop them, such as
ski areas, in violation of State water law and 5th Amendment
property rights protections. The intent of the bill is
narrow--to protect valuable assets of ski areas and other
permittees that use federal land from seizure without
compensation by the federal government. Essentially everyone
agrees on the need for this protection, given recent (and
past) Forest Service policy that demands transfer of valuable
water rights to the U.S. without compensation. This policy
threatened to rock the foundation of over a hundred years'
worth of water law in the West, and again, thanks to your
intervention, beneficial changes are expected in the future.
The intention of the Water Rights Protection Act is not to
impact stream health or aquatic species in any way. Some
conservation groups contend that HR 3189 has a broader effect
than simply protecting water rights, and in fact would hinder
federal efforts to protect stream health and fish. Ski areas
and other stakeholders strongly disagree with this
interpretation of the bill and would never support a bill
that had this result. In fact, a ``savings clause'' was
included in the bill to explicitly state that the measure had
no other impacts than to protect permittees' water rights
from forced transfers. More importantly, the bill does not
alter in any way the minimum stream flow protections that are
set and enforced by the states on virtually every river and
stream. Ski areas support and abide by these minimum stream
flow requirements and would never take action to undermine
them.
However, to make it abundantly clear that ski areas have a
narrow and pointed agenda with respect to this legislation
and that we are committed to maintaining stream and aquatic
species health, we are now advocating changes to the bill to
narrow its scope even further. These changes include
narrowing the scope of the bill to apply just to the U.S.
Forest Service, and clarifying that the bill prohibits forced
transfers of ownership of water rights to the United States
by inserting the term ``title'' into the bill. We offer these
changes to demonstrate emphatically our unwavering commitment
to maintain stream health and aquatic species, and our narrow
focus of simply protecting our valuable water rights assets.
These changes are directed at solving the concrete problem at
hand, which is overreaching policy by the Forest Service that
requires a forced transfer of ownership of water rights from
permittees to the United States. The bill will continue to
benefit all permittees on Forest Service lands, not just ski
areas.
The release of a new water policy is expected from the
Forest Service sometime in 2014. Ski areas welcome this new
policy change, which we understand will not require a forced
transfer of ownership of water rights. The release of this
policy will not change the need for federal legislation
however. First, the new policy is expected to apply
prospectively, such that existing water rights subject to
past Forest Service water clauses could continue to be in
jeopardy of a taking by the Forest Service. Ski areas are
proposing an amendment to the bill to protect against the
implementation of such clauses beginning with the effective
date of this bill. Ski areas have experienced four changes in
Forest Service water policy in the last ten years. Only
Congress can help stop the pendulum from swinging and provide
ski areas the kind of stability they need to grow and succeed
in the future.
After prevailing on our challenge of the Forest Service's
water rights takings policy in federal court in 2012, ski
areas offered an alternative approach for the Forest Service
to consider that would not involve forced transfers of water
rights. We offered this alternative in the spirit of
partnership, and as
[[Page H2388]]
a way for the Forest Service to work cooperatively with ski
areas to support their viability, and the viability of
mountain communities, over the long term. The alternative
offered by ski areas was to require resorts to provide
successors in interest an option to purchase water rights at
fair market value upon sale of a ski area. We continue to
support this approach as a viable alternative that meets the
needs of the agency, provides ski areas needed flexibility,
and respects state water law.
Ski areas are great stewards of water resources. It is
important for everyone to remember that only a small portion
of water that is used for snowmaking is consumed. Most of the
water diverted from streams for snowmaking returns to the
watershed. Although it varies from region to region, studies
show that approximately 80 percent of the water used for
snowmaking returns to the watershed. Since the majority of
water used for snowmaking is water purchased by a ski area,
brought onsite through diversions, stored on-slope, and
typically released more slowly back into the watershed with
the seasonal melting of the winter snowpack, snowmaking
typically benefits the watershed in which it is taking place,
as well as downstream users, and can help counteract the
harmful effects of drought. In addition to using a whole
array of conservation measures, many resorts impound or store
water in reservoirs for use during low flow times of the year
without affecting fish or aquatic habitat. The ability to
control our water assets and investments--which will be the
outcome of passage of the Water Rights Protection Act--will
enable us to continue this stewardship in the future. It will
also allow us to continue to provide a high quality
recreation opportunity for millions of people on the National
Forests.
In closing, we thank you for your work to date on this
issue, and we look forward to continuing to work together in
cooperation to ensure the bill's passage.
Sincerely,
Michael Berry,
President.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 3 minutes to the gentleman from Colorado (Mr. Tipton), the
sponsor of this legislation.
Mr. TIPTON. Madam Chair, after listening to our Democrat colleague's
statement, probably the best thing that we can do to be able to allay
their fears is for them to read the bill. It actually protects private
property rights, and let me fill in the balance of the story from the
letter that you just cited:
The ski areas are saying that they strongly support the passage of
the bipartisan Water Rights Act, H.R. 3189.
I would like to submit for the Record letters from over 40 different
organizations--farmers, ranchers, ski areas, municipalities--that are
supporting this legislation to be able to protect private property
rights in the United States.
Madam Chair, the fear in Washington is palpable. Yesterday, we heard
from the White House of the threat of a veto, a veto against a piece of
legislation which is just codifying what is protected in the
Constitution--private property rights in this country. There is going
to be a headline in tomorrow's paper. With the affirmative passage of
this legislation, it will read that the House of Representatives stood
with the American people--stood with private property rights--to stop a
job-killing Federal water grab. That is what this legislation is about.
A very clear choice exists today. You can choose to stand with
farmers, with ranchers, with municipalities, with our ski areas to be
able to protect the Constitution regarding the Fifth Amendment for just
compensation, or you can embrace the heavy hand of government and
support a job-killing Federal water grab. That is the clear choice that
we face today.
This bill is narrow in scope. In fact, the manager's amendment that I
will be putting forward is actually going to make sure that many of the
concerns that we have just heard expressed are reasserted in that
legislation to be able to protect the Endangered Species Act, to make
sure that authorities are not currently under law or exceeded, and to
make sure that our tribes are actually protected from the heavy hand of
government being used as a tool for another Federal water grab.
{time} 1445
This is a commonsense piece of legislation--legislation that is
designed to stand for the very principle that we have in this country
of private property rights.
Protect the water of the West. Protect that private property right.
This is simple, 2-page legislation.
Madam Chair, this is legislation which serves the interests of this
country, serves the interests of the West, and I ask for its adoption.
Colorado Cattlemen's
Association
Arvada, CO, March 12, 2014.
Hon. John Boehner,
Speaker, Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, Washington, DC.
Dear Speaker Boehner and Minority Leader Pelosi: The
Colorado Cattlemen's Association (CCA) and Colorado Public
Lands Council strongly support the Water Rights Protection
Act (WRPA), (H.R. 3189). The CCA and PLC represent Colorado's
public and private lands ranching industries through a
grassroots network of affiliates and individual members. Many
of our members 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 and potentially other federal
agencies.
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.) disallows
the USFS and the Bureau of Land Management from seizing water
rights without just compensation. An issue that arose in a
USFS directive applicable to ski areas was seen by industry
as an issue that could threaten all water users, including
ranchers, as they depend on water rights on public land (and
private) to keep their businesses viable. It is important
that H.R. 3189 pass without limitation to specific
industries--ensuring ranchers have access to the water rights
they own, maintain and have developed.
We support an amendment by Representative Tipton that would
make revisions to the legislation which would clarify the
intent of the bill. We also understand that several
additional amendments have been submitted that would too
narrowly focus the legislation so as to not protect livestock
producers, and one amendment in particular that would cause
the legislation to become applicable only to ski operations.
CCA and PLC strongly oppose any amendment with exclusive
language that will jeopardize the efficacy of the bill for
our constituency, ranchers. Our members face the same threats
as ski companies do--perhaps, with more at stake, as they are
individuals and families depending on these water rights for
their livelihood. It is important to include all industries
that may be impacted in the legislation, to keep our rural
communities thriving. Rep. Tipton's bill accomplishes the
purpose of protecting all water right holders, including
ranchers.
There is no justification to include an amendment that will
only protect one type of water use, and we strongly urge all
members of the House to vote against any such amendment.
We thank you for your attention to this crucial issue, and
for supporting America's ranchers as they continue to be an
essential part of rural communities and stewards of our
public lands.
Sincerely,
Gene Manuello,
President,
Colorado Cattlemen's Association.
Tim Canterbury,
Chair,
Colorado Public Lands Council.
____
Eagle River Water & Sanitation District, Upper Eagle
Regional Water Authority,
Vail, CO, February 27, 2014.
Rep. Scott Tipton,
Washington, DC.
Rep. Jared Polis,
Washington, DC.
Senator Michael Bennet,
Washington, DC.
Senator Mark Udall,
Washington, DC.
Dear Representatives Polis and Tipton and Senators Bennet
and Udall: Please be advised that we are in receipt of the
February 10, 2014 letter to you on the letterhead of the
Water Quality/Quantity Committee of the Northwest Colorado
Council of Governments (NWCCOG) regarding H.R. 3189, the
Water Rights Protection Act, and its companion bill, S-1630.
That letter gives the improper impression that all of the
listed members, associate members, and participating water
and sanitation districts support the position taken in that
letter. They do not.
As the largest municipal water provider within NWCCOG,
serving the over 60,000 customers from Vail to Wolcott, we
strongly support H.R. 3189 and S. 1630, and do not agree with
the amendments proposed by the NVVCCOG letter. In particular,
the Forest Service does not have the legal authority to
impose bypass flows and a Federal Water Rights Task Force has
so determined, and any amendment that they do would be a
major expansion of federal authority over state granted water
rights. Federal bypass requirements are really just a taking
of water rights by another name and on a smaller scale. It is
hard to imagine that the members of NWCCOG support the
federalization and taking of any of the property of their
residents and area businesses regardless of the name the
federal government gives to its taking. Moreover, bypass
flows should not be thought of as an environmental solution
to low stream flows as they
[[Page H2389]]
are not water rights that can be administered by a water
commissioner and shepherded downstream. Rather, senior water
rights from public lands that are required to be bypassed can
simply be taken up by a junior water right holder just past
the Forest Service boundary. This is one of the main reasons
why the Colorado Water Conservation Board, which is the State
agency with exclusive authority to obtain in-stream flows,
has consistently opposed federal attempts to impose bypass
flows.
We have enclosed a copy of a piece prepared by The Federal
Water Rights Task Force entitled ``The Colorado 'Bypass Flow'
Controversy'' for your review. It is an excellent review of
the limitations on existing rights of the Forest Service to
impose bypass flows and practical reasons why imposing such
flows is not a good idea. (The link for the entire report is
http://www.fs.fed.us/land/water/.)
We believe that many of the largest water users within
NWCCOG agree with our position.
Very truly yours,
Frederick P. Sackbauer, IV,
Eagle River Water & Sanitation District,
Chairman of the Board.
George Gregory,
Upper Eagle Regional Water Authority,
Chairman of the Board.
____
Colorado River District
Glenwood Springs, CO, October 9, 2013.
Re H.R. 3189.
Hon. Scott Tipton,
Washington, DC.
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 River District,
Glenwood Springs, CO, November 12, 2013.
Re H.R. 3189, Markup
Hon. Scott Tipton
Washington, DC.
Dear Congressman: As we've discussed previously, the River
District board appreciates your leadership on Colorado water
matters including your recent introduction of H.R. 3189. We
deeply appreciate your and your staff's continuing engagement
with us to refine and clarify the language to address the
critical issues of water rights' equity and ownership while
avoiding unintended consequences or inviting litigation.
Adam Eckman from the subcommittee staff shared final draft
language in preparation for markup. I believe the new and
amended language is an improvement and consistent with the
River District Board's existing support for the bill.
The River District looks forward to continuing to work with
you in support of this important legislation. Thank you and
best wishes for a successful markup.
Sincerely,
R. Eric Kuhn,
General Manager.
____
Center Conservation District,
Center, CO, October 25, 2013.
Hon. Scott Tipton,
Cannon House Office Building,
Washington, DC.
Hon. Jared Polis,
Longworth House Office Building,
Washington, DC.
Dear Reps. Tipton and Polis: The Center Conservation
District commends you for your introduction of H.R. 3189, the
Water Rights Protection Act and 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.
It is our understanding that the 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,
Danny Neufeld,
President.
____
NWRA,
Washington, DC, March 10, 2014.
Hon. Doc Hastings,
Chairman, House Committee on Natural Resources, House of
Representatives, Washington, DC.
Dear Chairman Hastings, On behalf of the Board of Directors
and the members of the National Water Resources Association
(NWRA), I write in support of H.R. 3189, the Water Rights
Protection Act. The NWRA is a nonprofit federation made up of
agricultural and municipal water providers, state
associations, and individuals dedicated to the conservation,
enhancement and efficient management of our nation's most
important natural resource, water. Our members provide clean
water to millions of individuals, families, agricultural
producers and other businesses throughout the western United
States.
Collectively, NWRA members have spent billions of dollars
investing in the development of state issued water rights and
the associated infrastructure in order to provide a safe and
reliable water supply to their customers. Their ability to
continue meeting the nation's growing demand for clean water
is dependent upon access to this vital resource. The Water
Rights Protection Act would protect NWRA members' water
rights and those who depend on the water they deliver by
preventing federal agencies from making a permit, permit
renewal or other action conditional upon surrendering a water
right. The protection of water rights is of the utmost
importance to our members. Water rights constitute a valuable
property right and as such are valuable assets that are often
irreplaceable.
For more than eighty years NWRA members have helped
finance, maintain and manage some of the most valuable and
iconic water systems in the world and have turned virtual
deserts into some of the most productive agricultural land on
the planet. To accomplish this irrigators have worked
collaboratively with federal agency partners at the Bureau of
Reclamation and Army Corps of Engineers. That collaborative
partnership, formed through contracts and other agreements,
is protected by this bill. Our members are gravely concerned
by recent efforts by the U.S. Forest Service (USFS) and the
Bureau of Land Management (BLM) that have made agency actions
contingent upon the relinquishment or modification of a water
right. These efforts go counter to the principle foundations
of western water law, fly in the face of state law and set a
dangerous precedent. Our members count on federal
infrastructure to deliver both project and non-project water.
Non-project water is privately owned; it has not been
appropriated, acquired by, or apportioned to, the United
States. In addition, many of our members deliver water
through facilities that cross USFS or BLM land. The creation
of a process through which water deliveries could be made
contingent on the modification, relinquishment or surrender
of a water right is unacceptable. Moreover, allowing such a
precedent would cause this assault on state water rights to
spread in various forms to other agencies within the
Agriculture and Interior Departments. Congress, needs to
provide the respective Secretaries with clear guidance on
this subject, H.R. 3189 provides this guidance.
The USFS and BLM efforts to curtail water rights have been
focused on western states, but the implementation of this
kind of policy would have ramifications throughout the
nation. According to the United States Geological Survey,
nearly seventy five percent of the irrigated agriculture in
the U.S. is found in the seventeen western states. These
states on average receive less than twenty inches of rain
each year, making the reliable delivery of irrigation water
vital. In order to protect our members' water rights, assure
the continued delivery of clean water to millions of people
and protect the integrity of Western water law the NWRA
supports the Water Rights Protection Act.
On behalf of NWRA's members I thank you for your attention
to the critical water supply issues facing our nation, and
for supporting our members as they continue to be stewards of
our nation's water supply and a critical part of the economy.
Sincerely,
Robert W. Johnson,
Executive Vice President.
Mrs. NAPOLITANO. Madam Chair, there is opposition to this bill from
90 conservation, recreation, and sportsmen groups, including the Grand
County Board of Commissioners, Summit County Board of Commissioners,
Eagle County Board of Commissioners, besides the other agencies.
Letters in Support of H.R. 3189
Hinsdale County; Rio Grande Watershed Association of
Conservation Districts;
[[Page H2390]]
Conejos County Board of County Commissioners; Colorado River
District; National Cattlemen's Beef Association; National
Association of Conservation Districts; National Ski Areas
Association; National Water Resources Associations; Western
Governors Association*
*WGA has taken a neutral stance on H.R. 3189.
letters in Opposition to H.R. 3189
U.S. Department of Interior; U.S. Department of Agriculture
Forest Service; Grand County Board of Commissioners; Summit
County Board of Commissioners; Eagle County Board of
Commissioners.
90 conservation, recreation, and sportsman's groups including:
California Environmental Groups; Alabama Rivers Alliance;
American Bird Conservancy; American Rivers; American
Whitewater; Appalachian Mountain Club; Atlantic Salmon
Federation; California Sportfishing Protection Alliance;
CalTrout; Chesapeake Bay Foundation; Clean Water Action;
Connecticut River Watershed Council; Deerfield River
Watershed Association; Defenders of Wildlife; Earthjustice;
Foothill Conservancy; Friends of Butte Creek; Friends of
Merrymeeting Bay; Friends of the Rivers of Virginia; Friends
of the White Salmon River; Gunpowder Riverkeeper; Hydropower
Reform Coalition; Idaho Rivers United; Lower Mississippi
River Foundation; Maine Rivers; National Audubon Society;
National Parks Conservation Association; Native Fish Society;
Natural Resources Defense Council; Northwest Resource
Information Center; Rivers Alliance of Connecticut;
Shenandoah Riverkeeper; Sierra Club; Stewards of the Lower
Susquehanna, Inc.; Tennessee Clean Water Network; Upstate
Forever; Utah Rivers Council; WaterWatch of Oregon; Yadkin
Riverkeeper Inc.
I yield such time as he may consume to my colleague from Oregon (Mr.
DeFazio).
Mr. DeFAZIO. Well, here we are again. We had a real problem. The
Forest Service did overreach and trigger this issue.
Later on, we will have an amendment offered by Mr. Polis from
Colorado--whose ski areas originally brought this issue to him and who
now opposes this bill--to narrow the scope of this bill down to assure
that the Forest Service doesn't re-propose the rule which they have
withdrawn, which would have caused the problem.
The rule was offered. There was litigation. A new rule was begun. The
Forest Service withdrew the rule. There is no rule pending. But we are
going to pass legislation that affects all water rights in the Western
United States because of a problem that doesn't currently exist.
This is fairly extraordinary. Because we held a hearing on this when
the government was shut down, not very many people knew about or got to
participate in the hearing. I was there. I read the bill. That is a bad
habit I have. I pointed out that the bill was so broadly written that
it would impact any and all Federal actions that have to do with water
in the United States of America. That goes way beyond ski areas and
water rights. It goes way beyond farmers or individual property rights.
It has untold consequences.
As a consequence, Republicans at the time denied it. But now this
bill has six savings clauses. What does that mean?
Well, the bill was so broadly and poorly drafted to begin with, they
now are carving out six exemptions to say, Oh, we didn't mean to say we
would take away tribes' water rights; we didn't mean to say that we
couldn't have any control of Bureau of Reclamation projects and deal
with flood control. Oh, we didn't mean this or that. So there are six
savings clauses in this bill because it is so poorly and broadly
drafted and has so many unfathomable and unintended effects. Then there
is the sixth savings clause which says this bill does nothing.
Now how could that be? Well, because we are here about headlines. We
are here about a headline that will be meaningless by some gullible
reporter somewhere who actually believes what they are saying on that
side of the aisle.
Here is the final savings clause of this unbelievably poorly drafted
bill with unbelievable, unintended consequences:
Nothing in this act limits or expands any existing
authority of the Secretaries . . .
That is, Interior and Agriculture.
. . . to condition any permit, approval, license, lease,
allotment, easement, right-of-way, or other land use or
occupancy agreement on Federal lands subject to the
respective jurisdictions.
So in the body of the bill they create a whole bunch of problems by
threatening concessionaires in parks, issues relating to the Columbia
River in Washington and Oregon, and a whole host of projects that
relate to use of the water in the West. It is a very sensitive issue,
the use of the water in the West. Then they carve out five particular
exceptions, which are really hot button issues. Then they have this
uber exception which says this bill doesn't do anything.
So what does the bill do? Well, that is the whatever thousand-dollar
question here today. It may do something unbelievably destructive to
private property rights.
On that side of the aisle we hear about this all the time. A couple
of weeks ago, they passed another show bill pretending to deal with the
drought in California by preempting 100 years of water law in the State
of California. The Federal Government preempting it.
Now they are going to fight for water rights in the West--or, at
least that is the headline they hope they get out of this. But that is
not what they are doing because for the first time this bill has a
Federal definition in statute of water right, which would seem to
preempt or contradict the States. But it has sort of got a savings
clause. So it says we are creating a new Federal water right, but it
really doesn't mean anything because we are not affecting the States.
And oh, by the way, we have got a clause at the end saying we are not
doing anything at all anyway.
So why are we here? We are here because there was a narrow issue
which we could have, in a bipartisan way, agreed to deal with. It could
have been what is called a suspension bill. We probably wouldn't have
even had a vote on it on the floor of the House--one of those routine
bills we pass generally on Mondays or Tuesdays, travel days, requiring
a two-thirds vote because they are noncontroversial.
It could have been done that way. But no, that wouldn't have got a
headline. It would have solved a problem--a problem that used to exist
and doesn't existing anymore and might exist in the future. It would
have solved that problem if it ever existed again, if the Forest
Service proposed the rule again, which they aren't going to. But let's
just say some future administration chose to do that. We could have
preempted them that way.
But no, we couldn't just do that because how could you come here and
say you are fighting for cattlemen and you are fighting for agriculture
and you are fighting for the little guy and private property rights and
all those wonderful buzz words around here, when you are not really
doing that, but get an undeserved headline out of it if you find a
gullible reporter.
That is why we are here today. It is kind of a waste of time, to tell
the truth. If you want to fix the bill and potentially fix a future
problem if they do go after the ski area water rights again, vote for
the Polis amendment. Go back to the narrow scope of the bill. That is
where we started.
If that is adopted, that would be great, and we could vote for it. If
that is not adopted, I would recommend that Members think long and hard
about it because you may be causing unintended effects with this bill
by defining a Federal water right that potentially preempts and upends
hundreds of years of precedent in the Western United States and causes
untold damage. It will certainly make a lot of lawyers happy, but it is
not probably going to make your farmers and ranchers happy, who you
think you are pleasing here today.
Mr. HASTINGS of Washington. Madam Chairman, I am pleased to yield 2
minutes to the gentlelady from Wyoming (Mrs. Lummis), a member of the
Natural Resources Committee.
Mrs. LUMMIS. Madam Chair, this act reinforces our century-long
system, working well in our States, where the States pass water law and
administer State water law. State law is crucial in the West.
For example, take how a ski area permit is supposed to work. The
Forest Service issues a permit for the use of the land, but the water
is administered in accordance with State water law. The water does not
belong to the Federal Government.
The headline here should be, ``Keep your mitts off our water.''
If the Federal Government wants water rights, it has to pay for them,
or
[[Page H2391]]
get in line, just like other citizens and businesses. But now, instead
of waiting its turn or paying fair value, the Forest Service is
demanding water rights as a condition of ski area permits. They are
demanding the full value of water rights it had no role in developing.
The Forest Service isn't just going after ski areas. It is targeting
ranchers with grazing permits as well.
The Federal Government claims it needs the water rights because the
Federal Government knows best how to manage water for ski recreation
and grazing. The reality is the Federal Government doesn't know best at
all, and that is why States are in control of water law.
Sound water management and conservation is necessary in the arid and
semi-arid West, and the real work is done at the State and local level
by individuals. These efforts will only be harmed if we let Federal
agencies trample on State water law, substituting their judgment for
those who live near water and depend on it for their well-being.
Madam Chair, I have spent thousands of hours of my life irrigating
Wyoming's beautiful meadows.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. HASTINGS of Washington. I yield the gentlelady an additional 1
minute.
Mrs. LUMMIS. Madam Chair, when you are still and you are out in a
meadow, you can hear the water bubble into the ground, and I swear you
can hear the grass grow. It is the most amazing, fulfilling thing, and
some of the happiest hours I have spent in my entire life. This is
personal with me.
Madam Chair, I urge my colleagues to support the Tipton bill.
Mrs. NAPOLITANO. Madam Chair, may I inquire how much time remains?
The Acting CHAIR. The gentlewoman from California has 15\1/2\ minutes
remaining. The gentleman from Washington has 18 minutes remaining.
Mrs. NAPOLITANO. Thank you, Madam Chair.
Madam Chair, I will include in the Record a list of amendments
proposed that the Rules Committee did not find in order that are asking
to exempt Allegheny National Forest, Delaware River Watershed, and
Delaware Water Gap from the effects of the bill.
We also have the Chesapeake Bay Watershed, the Long Island Sound
Watershed, the Puget Sound Watershed, and Olympic National Park
Watershed. They all want to be excluded from this bill.
Summary of Amendments Submitted to the Rules Committee for H.R. 3189--
Water Rights Protection Act
summaries derived from information provided by sponsors
[Listed in Alphabetical Order]
Cartwright (PA): No. 1--Exempts the Allegheny National
Forest, Delaware River Watershed, and Delaware Water Gap from
the effects of the bill.
Connolly (VA), Van Hollen (MD), Sarbanes (MD), Scott, Bobby
(VA), Edwards (MD), Cartwright (PA): No. 13--States that no
provisions of the bill shall affect water rights agreements
within the Chesapeake Bay watershed.
Holt (NJ): No. 5--Exempts the Delaware River watershed from
this Act.
Israel (NY), DeLauro (CT), Esty (CT), Crowley (NY), Engel
(NY), Tonko (NY), McCarthy, Carolyn (NY), Bishop, Tim (NY),
Courtney (CT): No. 8--Exempts the Long Island Sound watershed
from any provision in the legislation.
Kilmer (WA), Heck, Denny (WA), Larsen, Rick (WA), Smith,
Adam (WA): No. 9--Clarifies that nothing in the legislation
would affect or apply to the Puget Sound watershed.
Kilmer (WA): No. 10--Affirms that nothing in the
legislation would affect or apply to the Olympic National
Park watershed.
Kilmer (WA), Huffman (CA): No. 11--Clarifies that nothing
in the legislation would impact or diminish the treaty rights
of federally recognized tribes and nothing would impact water
rights of federally recognized tribes.
Langevin (RI), Cicilline (RI): No. 7--Exempts the
Nanagansett Bay watershed and the Wood Pawcatuck watershed.
Lujan (NM): No. 2--Notification requirements for the
implementation of water settlements.
Mullin, Markwayne (OK): No. 4--Ensures that the federal
government cannot make Native America tribes, apply for or
acquire water rights under state law for the federal
government rather than acquiring the rights for themselves.
Prohibits the federal government from using permits,
approvals, and other land management agreements to take the
water rights of Native American tribes without just
compensation. Ensures that nothing in the Act limits or
expands the reserved water rights or treaty rights of
federally recognized Native American tribes.
Polis (CO), DeGette (CO), Perlmutter (CO), DelBene (WA),
Kuster, Ann (NH), Cartwright (PA), Huffman (CA): No. 5--
SUBSTITUTE Requires the U.S. Forest Service to issue a new
draft water directive within 60 days that does not condition
ski area permits on the transfer of title of any water right
or require any ski area permittee to acquire a water right in
the name of the United States.
Speier (CA), Miller, George (CA), Lee, Barbara (CA): No.
6--Excludes the California Bay Delta system from the
provisions of the bill.
Tipton (CO): No. 12--MANAGERS Makes several clarifying
technical changes to the bill, and clarifies that the Act
will have no effect on Bureau of Reclamation contracts,
implementation of the Endangered Species Act, certain
existing federal reserved water rights, and certain
authorities under the Federal Power Act.
Tonko (NY): No. 14--LATE Ensures that nothing in this Act
will affect or apply to the Hudson and Mohawk River
watersheds.
Tsongas (MA): No. 3--States that Nothing in this Act shall
affect or apply to the Lowell National Historical Park and
Minute Man National Historical Park.
____
Executive Office of the President, Office of Management
and BUDGET, WASHINGTON, DC, Wednesday, March 12, 2014.
Statement of Administration Policy
H.R. 3189--Water Rights Protection Act
(Rep. Tipton, R-Colorado, and 15 cosponsors)
The Administration opposes H.R. 3189, which would prohibit
the U.S. Department of the Interior (DOT) and the U.S.
Department of Agriculture (USDA) from exerting some control
over the exercise of water rights located on Federal lands.
The bill threatens the Federal government's longstanding
authority to manage property and claim proprietary rights for
the benefit of Indian tribes and reserved Federal lands, and
the broader public that depends on the proper management of
public lands and resources. It adversely affects DOI's and
USDA's ability to manage water resources to: (1) protect
ongoing public lands uses and the environment; (2) allow for
maximum beneficial use of Federal water facilities; and (3)
ensure adequate water is available for fisheries or
threatened or endangered species.
H.R. 3189 is overly broad and could have numerous
unintended consequences. For example, the bill could impede
private water rights holders from entering into voluntary
agreements with Federal agencies, which benefit State,
Federal, and private water rights holders' interests and
improve water resource management.
The bill was introduced, in part, to address the U.S.
Forest Service's ski area water rights clause proposal, which
the Forest Service has changed in response to public feedback
and will soon be publishing. The Administration looks forward
to working with Congress to address any remaining concerns
regarding the ski area water rights proposal after its
publication and to developing legislation that maintains the
Federal government's interest in protecting public lands and
waters, allows for the continuance of voluntary agreements
between the Federal government and other water rights
holders, and ensures adequate protection of the environment.
Madam Chair, I yield such time as he may consume to the gentleman
from California (Mr. Huffman).
Mr. HUFFMAN. Madam Chair, H.R. 3189 is too broad. It would not solve
the problem that it purports to address, but it would indeed impede
ongoing collaborative efforts across this country.
Once again, I am afraid that the majority has ignored an opportunity
for a bipartisan, solution-oriented engagement on an issue and instead
chosen the same old attack-and-accuse and overreach politics.
This legislation stems from a very legitimate concern that was raised
by the ski industry regarding how the Forest Service was proposing to
handle water rights in public leases for ski areas. This was something
that we could have worked together on. In fact, I think the House could
have found a constructive bipartisan solution. We could have had this
resolved by now.
Instead, the Republican leadership held a hearing on this issue
during the government shutdown, meaning that we did not have the
opportunity to question the Forest Service. Instead of the benefit of a
dialogue and a conversation, we had an empty chair. Of course, the
attacks on that empty chair ensued as part of the political theater.
Had the GOP bothered to actually talk to the Forest Service, they
would have found a receptive partner in a solution to this problem.
They would have found, in fact, that a solution was already in the
works.
Had the Republican majority actually worked with the Forest Service,
they could have influenced a proposal
[[Page H2392]]
that is being revised right now by the Forest Service. Instead, we are
dealing with a bill here today that goes far beyond the scope of the
issue at hand and could affect voluntary agreements and contracts
across this country.
In fact, this bill before us today could stop the Federal Government
from taking the very actions that could help ensure recreational
opportunities for Americans, like skiing, rafting, kayaking, and
fishing. Preventing water right holders from entering into agreements
with Federal agencies could put our recreational economy at risk and
could impede our ability to implement important water agreements
throughout the West.
We still have an opportunity to get back on a constructive track
here. We have a chance to pass an amendment--the Polis amendment--that
narrows the bill's scope to its original intent and would address the
concerns of the ski areas.
I urge my colleagues to support the Polis amendment to address the
ski area water rights issues, and I encourage my colleagues on the
other side of the aisle to work with us to try to salvage this bill and
focus on the real concern at hand.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentlemen from California (Mr. McClintock),
another member of the Natural Resources Committee.
{time} 1500
Mr. McCLINTOCK. Madam Chairman, people need to understand exactly
what is going on here. The U.S. Forest Service and other Federal
agencies have begun demanding that privately-owned businesses surrender
their long-held water rights simply as a condition of receiving routine
renewals in their special use permit so that they can continue to
operate on public land.
This is a radical departure from more than 100 years of Federal
deference to State law on this issue. It amounts to an uncompensated
taking and is a violation of the Fifth Amendment of the Constitution,
and it is an affront to State law, under which the Federal Government
must acquire water rights through the proper channels as would any
other user.
Now, there are 121 ski areas on Federal public lands that are
affected by this practice; 14 of them are in my district. These
businesses rely on their water rights for snowmaking. They use this
water as collateral for financing to build and maintain their
facilities and for supplying water to the local communities 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 all together and all
the direct employment, spinoff economic activity, and tax revenues that
they provide.
This involved far more than ski resorts. Our Subcommittee on Water
and Power 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 directs Federal agencies to stop perverting
what should be a routine permitting process into an excuse to extract
long-held water rights from private owners.
Mrs. NAPOLITANO. Madam Chair, I now yield such time as she may
consume to the gentlewoman from Massachusetts (Ms. Tsongas).
Ms. TSONGAS. Madam Chair, I rise in opposition to H.R. 3189 because
it could have severe unintended consequences for the Third District of
Massachusetts, which I represent.
A hearing on the bill was held in a most untimely manner, during a
government shutdown, thus preventing the Forest Service, Fish and
Wildlife Service, National Park Service or any other administration
official from answering questions on this legislation.
Given the harsh statements about these very important agencies coming
from the other side of the aisle, it seems only fair to have given them
a chance to address these charges. According to ``Views'' of this
legislation submitted by the Department of Interior after the fact,
this bill ``could significantly impact the Department's ability to
manage water-related resources within public lands.'' It also goes on
to say that ``the legislation is overly broad and could have numerous
unintended consequences that would affect existing law and voluntarily
agreements.''
My constituents echo this statement. From a local organization that
works tirelessly to protect our rivers and watershed in Massachusetts,
they say: ``The bill is so very broad it is fairly impossible to assess
its true impact. On those very grounds it should not be passed.''
I will be supporting the Polis amendment to narrow the scope of this
legislation to its original purpose and to address the legitimate
concerns of the ski industry. If this amendment is not adopted, I urge
my colleagues to heed the advice of my constituents and to reject this
bill.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentleman from Utah (Mr. Bishop), a member of
the House Natural Resources Committee.
Mr. BISHOP of Utah. Madam Chair, when the ranking member was
speaking, he quoted from the bill and said: This does not limit the
Secretary's right, nor does it expand the Secretary's right. So he said
then, What does it actually do?
What it does is very simple. It stops the Federal Government from
hurting people. This came to view in the Federal Government trying to
take away water rights from ski resorts, and not just in Colorado. It
was all ski resorts. As I have said repeatedly, the ski resorts in Utah
are far more significant and far better than the ski resorts in
Colorado. It affects all of us.
It is not just limited to ski resorts. We also found out these same
tactics have been used by BLM and other entities to affect farmers and
ranches, same concept, same area.
So what the Tipton bill is trying to do is solve the problem for
everybody, not just for a few people. Even people in the East who have
water rights will be protected by this bill, whether they recognize
that or not.
I want to introduce you to a guy by the name of Tom Lowry. He came to
our committee to testify about what they were doing. This is a person,
as soon as he got his ranch, the Federal Government--the BLM in this
case--started to attack his private water rights. It took him $800,000
in legal fees to go through the system to try and protect his rights.
He eventually got to the Idaho Supreme Court and won, where the
Supreme Court said: You are right, the Federal Government was wrong,
they have to back up. But it cost him 800 grand in legal fees to do it.
That is what the Tipton bill is trying to solve--the rights of those
ranchers and those farmers, the rights of ski resorts to actually
conduct business and have their rights protected.
That is why any effort to try and limit this down to say, oh, let's
just deal with the ski resorts because we care about them, and forget
the Tom Lowrys of this world, is a ridiculous approach. The issue is,
How can we protect the rights of our people? That is what Congress is
supposed to do. The Forest Service hasn't solved their problem yet.
They have withdrawn their rules but haven't changed the rules. They
have still yet to propose new ones. It is the purpose, and the right,
and the responsibility of Congress to step in.
The CHAIR. The time of the gentleman has expired.
Mr. HASTINGS of Washington. I yield the gentleman an additional 30
seconds.
Mr. BISHOP of Utah. It is the responsibility of Congress to tell the
bureaucracy what they can and cannot do. We establish laws, not their
rules and regulations, and we should tell them they have to respect the
rights of individuals, and treat them as real people, and not take away
their personal property rights, and that is exactly what the Tipton
bill does.
Mrs. NAPOLITANO. Madam Chair, may I ask how many speakers my
colleague from the other side has?
Mr. HASTINGS of Washington. Madam Chair, I have at least four others,
besides myself, that want to address this very important issue.
Mrs. NAPOLITANO. Madam Chair, I reserve the balance of my time.
Mr. HASTINGS of Washington. I am very pleased to yield 2 minutes to
the gentleman from Missouri (Mr. Smith)
[[Page H2393]]
another member of the Natural Resources Committee.
Mr. SMITH of Missouri. Madam Chairwoman, I am proud to stand here
with my colleagues today in support of H.R. 3189, the Water Rights
Protection Act. With the drought going on in California, and the
Federal Government strong-arming private property owners into giving up
their water rights, I am afraid that some of my colleagues may think
that the Federal confiscation and mismanagement of water resources only
affects the West.
Let me tell you, this issue of the Federal Government intruding on
private property and water rights is not just limited to the West. In
my district in southeast Missouri, time and time again, ill-thought
Federal policy has threatened, and will continue, unfortunately, to
threaten, private landowners.
In my now 9 months and 8 days in Congress, we have already had to
fight back Federal attempts to restrict citizens in my district from
using water.
The Department of the Interior tried to create restrictive ``buffer
zones'' as a part of the National Blueway System that would have taken
away private property rights. Fortunately, we got this program stopped.
While the legal framework for water rights is different in the West,
this administration's disregard for private landowners applies
everywhere.
I urge my colleagues to support this bill to protect water rights not
only because it will protect holders of water rights in Western States,
but also because it sends a strong, direct message that Congress is
tired of these schemes to administratively take away private property
rights.
Mrs. NAPOLITANO. Madam Chair, there is no taking of anybody's water
rights in this case and the majority knows it. Claiming this is a
taking is misleading and irresponsible.
The only way State or private water rights could, I repeat, could be
transferred or diminished in any way is if the owner of those rights
volunteers to a transfer or a limitation to a portion of those rights
as part of a deal to receive the permission to use Federal land.
Volunteering to limit your water rights in exchange for the use of
Federal land, taxpayer land, is the opposite of taking.
The various court cases the majority has thrown around deal with
legitimate, I repeat, legitimate water rights issues; cases where there
are overlapping or conflicting claims over the same water. This is not
that type of a case.
I defy my colleagues to produce any case law holding that a decision
to give up a water right, voluntarily, in order to get another Federal
benefit is a taking. There are no such cases.
Madam Chair, I reserve the balance of my time.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentleman from Colorado (Mr. Gardner), who I
think was a member of the committee but is not anymore.
Mr. GARDNER. Madam Chair, I thank the chairman for his work on this
very important issue, and my colleague from Colorado (Mr. Tipton) for
his hard work to protect Colorado water rights.
You know, if you go to the capitol of Colorado, you go into the
rotunda of that great and beautiful building, there on the wall on a
mural are the words of a poem by Thomas Hornsby Ferril, and that poem
says: ``Here is a land where life is written in water.''
The foundational laws of our great State deal with the waters of
Colorado, the four corners of our State, whose agriculture, commerce,
industry, and municipalities depend on that water and, yes, our ski
industries, our farmers, our ranchers.
Thank goodness for legislation like this that will protect our water
rights. Thank goodness for legislation like this that will make sure
that the State's water law remains supreme.
How dare this body think that the Federal Government has a right to
control our water or to condition permits based on the blackmail of a
permit issuance from a ski resort, from a farmer, from a city.
These rights have gone through Colorado water law for decades, over a
century. Hundreds of millions of dollars have been spent in Colorado to
adjudicate these rights.
To think that the Federal Government can come in and take them
because they won't issue a permit unless you give it to them, that is a
taking of water. The Federal Government has no right to do that.
It is our State law in water that remains supreme. It is our State
law that must remain supreme when it comes to the water of our land.
Here is a land where life is written in water. Those words will
remain in our great State. Our laws will remain, and thank goodness for
legislation like this to make sure that our State can control its
water, not Washington, D.C.
Mrs. NAPOLITANO. Madam Chair, the base bill actually creates all
kinds of uncertainty, and allows a ski area owner to sell their water
rights.
If you are a local business owner in that area who depends on the ski
resort business, let's say you own a restaurant or an equipment store
or have a hotel, H.R. 3189 means that you have no idea, from one year
to the next, whether the resort, which brings people to town, will
still be operating if it has water.
If the water rights are not tied to the resort in any way, which is
what H.R. 3189 wants to ensure, there is no guarantee that the owners
won't sell the water, leaving the Forest Service holding a ski resort
that cannot operate without that water because the water rights have
been previously sold.
It is the Forest Service that is trying to create some minimal
certainty that the resort would have current water rights to keep
running, even if the current owners were to leave.
It is H.R. 3189 that is trying to prevent that certainty.
Madam Chair, I reserve the balance of my time.
Mr. HASTINGS of Washington. Madam Chair, I am very pleased to yield 2
minutes to the gentleman from Louisiana (Mr. Scalise), a former member
of the House Natural Resources Committee.
{time} 1515
Mr. SCALISE. I thank the chairman for yielding, and I want to thank
the gentleman from Colorado (Mr. Tipton) for leading on this issue.
Madam Chair, I rise in strong support of this legislation that
finally puts a check and a balance on Federal agencies that are
literally out there shaking down landowners over their property rights.
When you look at what the Federal Government is doing and you wonder
why people are losing faith in the government, why people don't trust
government, when a Federal agent shows up and says the only way you can
get a permit is if you give up your property rights to your water,
literally, extortion is coming from Federal bureaucrats.
This is not the way our government is supposed to operate, Madam
Chair. This is what this legislation is here to remedy.
When you look at what is going on, it is not just the Secretary of
the Interior and the Secretary of Agriculture. We have seen this from
other Federal agencies. Look at what the EPA does with their sue-and-
settle process, where they literally go behind the cloak of darkness
and cut secret deals and, again, force people to do things that aren't
even in statute, just as a condition of getting basic permits. This is
not how government is supposed to operate.
So while we have seen some of the egregious abuses limited in the
Western parts of our country, this is not just a Western issue, Madam
Chair. All Americans ought to be concerned when the Federal Government
is literally shaking down and extorting Americans and forcing them to
give away their private property rights just as a condition of getting
a permit.
It is not right. It is not the right way to treat people. It is not
the right way for the Federal Government to operate. This bill finally
remedies that problem. It stops those abuses. I urge strong support of
the legislation.
Mrs. NAPOLITANO. Madam Chair, H.R. 3189 turns the status quo on its
head in order to provide a certain class of users a new advantage over
all other users of our public lands.
It strikes me as interesting that I have heard farmers and ranchers
mentioned a couple of times, although this, apparently, also affects
grazing lands, which I believe farmers and ranchers
[[Page H2394]]
do use; and unfortunately, I am sure they have not looked at it well
enough to understand what really could happen.
The status quo is that Federal land managers have to try to balance
multiple competing uses of our public/taxpayer lands--recreation,
timber, grazing, conservation, energy production, and the list goes on.
Under the status quo, one of the tools land managers use to achieve
this balance is the ability to condition certain uses of public lands--
taxpayer lands--on an agreement to transfer or limit water rights.
If you want the ability to graze or cut timber or build a dam on
public lands, you have to agree to leave some water in the river for
other uses, like recreation, habitat protection, et cetera.
If that authority is taken away, as the bill would do, then certain
kinds of users of our public lands get to take all the water they want,
leaving everybody else literally hanging high and very dry.
The status quo is balanced. H.R. 3189 tips the scale all the way in
favor of a certain class of users and turns the status quo into chaos.
I reserve the balance of my time.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentleman from Georgia (Mr. Woodall), a member
of the Rules Committee.
Mr. WOODALL. I thank the chairman for yielding.
Madam Chair, this is often characterized as a Western issue, and it
is not a Western issue. The water wars that go on in the West are
certainly a special type of battle; but this is an American issue in
what it does.
There are two really interesting things going on, on the House floor
today, that I hope all of my colleagues and I hope the American people
are watching.
On the one hand, there is a really neat moment of agreement that is
happening here. You hear so much about disagreement in Washington. The
Federal Government issues an order that says, in order to continue to
exercise your business, you must surrender your private property to the
government. Well, we could all agree that is outrageous.
I thank the gentleman from Colorado (Mr. Tipton) for leading in the
effort to repeal that, which has been a bipartisan effort on both sides
of the aisle. We have an actual order--an actual proposal, and we can
come together and agree that this is not who we are, as a people. It is
very interesting, and I am glad that we are able to do that.
The second thing that is happening, Madam Chair, is that there is a
concern that a certain class of citizen is going to get a higher and
better use of land; and I just want to point out that that certain
class is the owner of a private property right. Right? That is actually
the debate that is happening here.
If you own something, if something belongs to you, should you be
allowed to use it? Or in the name of creating a better country, in the
spirit of maximizing the utility of Federal lands, should the Federal
Government be able to take that from you and redistribute it, so that
things are fairer? That is a legitimate discussion to have.
I come down on the side of my friend from Colorado who says not only
is it outrageous that the government tried to take private property
rights in this circumstance; but why not take this step now to
recognize that private property means something? Not only are we going
to protect our ski resorts, but we are going to make sure this never
happens to any other American citizens again.
``Extortion'' is a strong word. It is a strong word, but I can think
of no other word to apply to what the government was trying to do here
today. I am grateful to my friends on both sides of the aisle for
moving to stop that.
Mrs. NAPOLITANO. I reserve the balance of my time, Madam Chair.
Mr. HASTINGS of Washington. Madam Chair, I am very pleased to yield
1\1/2\ minutes to the gentleman from California (Mr. LaMalfa), a member
of the Natural Resources Committee.
Mr. LaMALFA. I thank the chairman for yielding.
Madam Chair, I am glad to be able to speak today on H.R. 3189. This
bill will have a great impact on many of the resource holders in my
district here in the northeast part of California.
Yes, we are going through a drought, but this isn't just an issue
that might affect ski resorts or even ranchers. This is a property
rights issue that we should be looking at all across the country.
It is very dangerous when the U.S. Forest Service or BLM can just
come in and arbitrarily decide, after long-held water rights--some of
these ranches have been around 150 years or more--that they can change
the game--change the rules.
The ranches have been around longer than some of these bureaucracies;
yet they want to come in and say: we are going to change the game
because we have decided it should be different.
Now, when you have this type of right under fire for something as
beneficial--farming and ranching, grazing is actually beneficial to
forest land, towards fire suppression--and yet, we have people who
think that this is somehow a special right or something that is going
to take additional water away from other people.
These are already adjudicated water rights--pre-1914 water rights in
California. They are not taking more than what already belongs to them,
so it is really a misnomer to think that we are now somehow rejiggering
this because it is going to take more from other people.
For 150 years, they have been around; and now, in this day and age,
because of the thoughts of a few bureaucrats who want to do this by
extortion--which is what it is--you get a permit only if you give up
something that has belonged to you for many, many years.
It belongs to them because it is a long-held water right--a long-held
property right, so I am glad to help sponsor and support this bill.
Mrs. NAPOLITANO. Madam Chair, I yield myself such time as I may
consume.
My colleague is right, but then let's hold a hearing on the water
rights themselves and bring the impacted and affected parties to the
table, so that there is a fair hearing which is open, transparent, and
fair, but we haven't done that.
We are talking about H.R. 3189, which essentially was set up to deal
with the differences between the ski resorts and the Forest Service.
Water belongs to the State, and the State gives people the right to
use it. It is owned by the people of the United States.
I reserve the balance of my time.
Mr. HASTINGS of Washington. Madam Chairman, I will reserve the
balance of my time.
Mrs. NAPOLITANO. Madam Chair, I yield such time as he may consume to
the gentleman from Colorado, Congressman Polis.
Mr. POLIS. I thank the gentlewoman for yielding.
Madam Chair, I want to make it clear that I was an original sponsor
of this bill. Like my colleague from Colorado (Mr. Tipton), I wanted to
address the 2011 directive as it affected ski resorts.
However, this bill, in markup and through the manager's amendment,
became worse. We were unable to get the improvements that we needed to
narrow the scope; and it became a Republican job-killing, water-
grabbing bill, which was not the original intent.
Even the areas where the intent was to help the ski areas--in Summit
County and Eagle County in my district, in Pitkin County in Mr.
Tipton's district--the counties have all come out against this very
bill.
It is a Republican water-grabbing, job-killing bill, and absent the
amendment that I proposed, it is not something that I can support. I
encourage my colleagues on my side of the aisle who value recreational
opportunities, like fishing and white-water rafting, to join me in
opposing this bill, unless the Polis amendment is incorporated into the
bill.
We will soon begin a debate on that amendment. This debate would
focus the actual bill to fulfill its purpose, and I hope that this body
will adopt it.
Mr. HASTINGS of Washington. Madam Chairman, I will advise my friend
from California that I am prepared to close and will reserve the
balance of my time.
Mrs. NAPOLITANO. Madam Chair, I am certainly grateful for the
opportunity to have this dialogue, and I
[[Page H2395]]
think it is very important for the American people to listen in and
understand that one bill that was meant to cover a specific issue has
been turned into a gigantic--I would say--mess.
We understand the reasoning behind it, to some extent, and we trust
that our colleagues understand and are prepared to vote on something
that may have unintended consequences in their own backyards.
This bill is flawed. It is flawed on process, on policy, and in
claiming that it does protect State water rights. The Governors
Association has indicated that they wanted to ensure that the states'
water rights remain protected.
We welcome legislation that devises a real solution to a targeted
problem, which the amendment that Mr. Polis has on the floor will
address. We are supportive of that amendment and hope others will
support his amendment, which was made in order.
We, unfortunately, feel that H.R. 3189 does not solve the problem. It
creates more problems and has no chance of being enacted into law, and
I trust that we will do the right thing by the people because we are
talking about protecting the U.S. public, their lands, and their water.
I yield back the balance of my time.
Mr. HASTINGS of Washington. I yield myself the balance of the time.
Madam Chairman, let me just comment on a few points here that were
made by my friends on the other side of the aisle. There was some
concern about the timing of the hearing and the people who were
invited.
I just want to make this point: when the hearing was held, we have to
have advance notice. We had witnesses coming in from across the
country, so we are going to have the hearing on the day we said because
of the expense incurred by those private citizens who wanted to come
here and testify to help protect private water rights.
The second point is this was a bipartisan bill, as my colleague from
Colorado (Mr. Polis) admitted. He was an original cosponsor of the
bill. Maybe that was a reason why my friends on the other side of the
aisle did not call a witness for or against the original legislation.
I just wanted to make that point. The hearing was scheduled, and it
had to go through because of the expense of the private citizens coming
in to testify.
I want to make another point, too, that some of my colleagues have
made. Several of them have said that this legislation redefines Federal
water rights.
Madam Chairman, that is simply not true. If they read the bill, they
would see that the definition is for the purpose of this act only,
meaning that the definition is only for this act, so that doesn't hold
up either.
Just about all of my colleagues on the other side that talked about
the Federal lands and so forth--I will acknowledge that this is about
Federal activity on Federal lands, but nowhere--nowhere did my
colleagues suggest or say that the Federal Government had the water
rights.
Why? Because that is states' rights; and as my colleague from Wyoming
said: Yes, it is Federal land; but it is State water, and you have to
mesh those together.
And finally--I think this is probably more important than anything
else, and frankly, a debate like this has been going on for some time.
{time} 1530
We agree--we agree, both sides--that ski resorts have been
potentially compromised by the threat of the Federal Government saying
``no permit unless you give up water.'' Both sides agree on that. The
question is, What is the remedy?
The big difference I think between the two sides is this. Their
remedy is, well, the rulemaking isn't over. Let's find out what the
rulemaking is, and then we will respond to it. Our side takes a
different approach. Our side says wait a minute. We are the House of
Representatives. We are part of the Congress. We make the law.
That is what this legislation does. It makes the law saying the
Federal Government cannot extort, through the permitting process, State
water rights. It is as simple as that. And so if we are going to
continue to have the debate in this House on divisions between the two
parties and what their philosophy is, frankly, I welcome this, because
it appears every time we have a debate similar to this, their side says
let the bureaucracy write the laws. We say wait a minute. That is not
the way it is supposed to be. We are the Congress. We write the laws.
That is what this debate is about here today, and I look forward to the
amendment process.
In the meantime, I urge my colleagues to support this legislation. It
has been characterized as a Western piece of legislation, but as Mr.
Woodall says, indeed, it is not. It affects all water rights which are
the province of the States.
It is good legislation, and I yield back the balance of my time.
Mr. CONNOLLY. Madam Chair, this legislation before us today claims to
resolve a local and narrow conflict over water rights between the U.S.
Forest Service and the Colorado ski industry. Unfortunately, this
bill's scope and impacts have been expanded far beyond its originally
stated intent.
Under the guise of addressing a specific local water rights issue
the Republican majority is once again trying to tie the hands of
agencies across the government as they work to protect and restore our
waterways, public lands, and watersheds by restricting all actions that
require a federal permit.
The deleterious effects, both intended and unintended, resulting
from this deeply flawed bill will ripple far and wide across our
country including in my region, most notably the Chesapeake Bay.
The Chesapeake Bay watershed is a national treasure stretching more
than 64,000 square miles, encompassing six states, 150 major rivers and
streams, and is home to more than 17 million people. It is America's
largest estuary. But the Bay is in need of restoration.
Since 1983 federal, state, and local stakeholders have worked
together to implement and refine the Chesapeake Bay Watershed
Agreement. As a result we have seen significant improvements in
phosphorus and sediment pollution reduction, better management of
fisheries including the restoration of blue crab, and restoration of
habitats and wetlands.
According to the Chesapeake Bay Foundation's 2012 State of the Bay
Report, of the 13 indicators being monitored, improvements have been
made in five and only one indicator declined. Of particular importance,
habitat scores received a B+ and rockfish and crab fishery restoration
received an A and B+ respectively.
That progress has been achieved only by using all the tools at our
disposal, including requiring conditional permitting for water rights.
There is still more work to be done to get the Bay restored to full
health. That is why I offered an amendment with colleagues from
Virginia, Maryland, and Pennsylvania that would ensure that no
provisions in the bill would affect water rights agreements within the
Chesapeake Bay watershed. Sadly, the Republican-controlled Rules
Committee refused to allow a floor vote on this.
One wonders about the true intent of this bill. Why didn't
Republicans accept our amendment to protect the Bay? Why did they
refuse similar amendments that would protect other local treasures
including the Long Island Sound in the Northeast, the Puget Sound in
the Northwest, and the California Bay Delta? All of these projects are
threatened by this bill.
Unless this bill is amended to address these discrete local issues,
I urge my colleagues to oppose H.R. 3189, an overreach that will harm
watersheds across the nation.
The CHAIR. All time for general debate has expired.
Pursuant to the rule, the amendment in the nature of a substitute
recommended by the Committee on Natural Resources, printed in the bill,
shall be considered as an original bill for the purpose of amendment
under the 5-minute rule and shall be considered read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 3189
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Water Rights Protection
Act''.
SEC. 2. TREATMENT OF WATER RIGHTS.
The Secretary of the Interior and the Secretary of
Agriculture--
[[Page H2396]]
(1) shall not condition the issuance, renewal, amendment,
or extension of any permit, approval, license, lease,
allotment, easement, right-of-way, or other land use or
occupancy agreement on the transfer of any water right
directly to the United States, or any impairment of title, in
whole or in part, granted or otherwise recognized under State
law, by Federal or State adjudication, decree, or other
judgment, or pursuant to any interstate water compact; and
(2) shall not require any water user to apply for or
acquire a water right in the name of the United States under
State law as a condition of the issuance, renewal, amendment,
or extension of any permit, approval, license, lease,
allotment, easement, right-of-way, or other land use or
occupancy agreement.
SEC. 3. DEFINITION.
For purposes of this Act, the term ``water right'' means
any surface, groundwater, or storage use filed, permitted,
certificated, confirmed, decreed, adjudicated, or otherwise
recognized by a judicial proceeding or by the State in which
the user acquires possession of the water or puts it to
beneficial use.
SEC. 4. IMPACT ON EXISTING AUTHORITY.
Nothing in this Act limits or expands any existing
authority of the Secretaries to condition any permit,
approval, license, lease, allotment, easement, right-of-way,
or other land use or occupancy agreement on Federal lands
subject to their respective jurisdictions.
The CHAIR. No amendment to the committee amendment in the nature of a
substitute shall be in order except those printed in part A of House
Report 113-379. Each such amendment may be offered only in the order
printed in the report, by a Member designated in the report, shall be
considered read, shall be debatable for the time specified in the
report equally divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject to a demand
for division of the question.
Amendment No. 1 Offered by Mr. Tipton
The CHAIR. It is now in order to consider amendment No. 1 printed in
part A of House Report 113-379.
Mr. TIPTON. Madam Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 3, line 13, insert ``(including joint and sole
ownership)'' after ``water right''.
Page 4, line 9, insert ``legally recognized'' after
``existing''.
Page 4, line 10, insert ``issue, grant, or'' before
``condition''.
Page 4, after line 13, insert the following:
SEC. 5. EFFECT ON RECLAMATION CONTRACTS.
Nothing in this Act shall in any way interfere with
existing or future Bureau of Reclamation contracts entered
into pursuant to Federal reclamation law (the Act of June 17,
1902 (32 Stat. 388, chapter 1093), and Acts supplemental to
and amendatory of that Act).
SEC. 6. EFFECT ON ENDANGERED SPECIES ACT.
Nothing in this Act shall affect the implementation of the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
SEC. 7. EFFECT ON FEDERAL RESERVED WATER RIGHTS.
Nothing in this Act limits or expands any existing
reserved water rights of the Federal Government on lands
administered by the Secretary of the Interior or the
Secretary of Agriculture.
SEC. 8. EFFECT ON FEDERAL POWER ACT.
Nothing in this Act limits or expands authorities pursuant
to sections 4(e), 10(j), or 18 of the Federal Power Act (16
U.S.C. 797(e), 803(j), and 811).
The CHAIR. Pursuant to House Resolution 515, the gentleman from
Colorado (Mr. Tipton) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Colorado.
Mr. TIPTON. Madam Chair, I offer this amendment to further strengthen
and improve this bipartisan bill. As we heard during general debate,
the bill has one goal: to eliminate Federal extortion of private
property.
The Federal Government cannot and should not take and seize what it
does not own without compensation, but that has been happening, and the
threat continues to exist for a host of individuals and businesses who
responsibly use our public lands for multiple purposes.
This bill ends this Federal property rights grab; however, we just
heard a litany of charges that the bill impacts other Federal actions.
Nothing could be further from the truth. The bill already has a savings
clause ensuring that any existing Federal authorities are not impacted.
Importantly, the Federal Government does not have the authority to take
private property rights without just compensation; but, to further
clarify, my amendment reiterates the specific actions into the bill--
the protection of existing Federal water contracts.
The Colorado River Water District, the Family Farm Alliance, the
National Water Resources Association, all organizations whose members
have contracts with the Bureau of Reclamation, already support this
bill, and that should have been enough. Yet we heard rhetoric from the
other side today that water contracts are in danger despite the ardent
support of water organizations.
This amendment specifically reiterates this protection, ensuring
implementation of the Endangered Species Act and any flows needed for
the species, the protection of reserved water rights for national parks
and other Federal lands, and continuing the hydropower relicensing
process for non-Federal dams. These additions to the bill are a simple
reiteration of protections already built into the bipartisan bill.
Yet, in a good-faith effort to dispel any myths, I offer these
provisions to ensure, once and for all, that the only thing the bill
does is protect private water rights owners from being extorted by the
Federal Government through underhanded administrative means.
Mr. HASTINGS of Washington. Will the gentleman yield?
Mr. TIPTON. I certainly yield to the chairman.
Mr. HASTINGS of Washington. I thank the gentleman for his work on the
underlying bill and his amendment.
I support the amendment.
Mr. TIPTON. Madam Chair, I reserve the balance of my time.
Mrs. NAPOLITANO. Madam Chair, I rise in opposition to the amendment.
The CHAIR. The gentlewoman from California is recognized for 5
minutes.
Mrs. NAPOLITANO. Madam Chair, the amendment doesn't fix the bill
because the bill cannot be fixed.
The savings clause in the base bill and the savings clauses that will
likely be added by the manager's amendment are symptoms of the problem
with the initial bill, not the solution.
If you have a 4-page bill and you need to insert five different
savings clauses, you have a problem, my friends. The need to insert
layer upon layer of text trying to explain that you don't mean for the
bill to do this or that proves beyond any doubt that the bill is a
massive and dangerous overreach.
We have no idea how these savings clauses operate in the context of
the bill, but what we do know is that, even with the five savings
clauses, you haven't caught all the problems.
The only responsible policy is the one offered by Mr. Polis in his
substitute amendment which focuses, again, strictly on the main issue
that brought this to the forefront, and that was the Forest Service and
the ski resorts. Everything else is just a failed attempt to fix the
bill.
Madam Chair, I reserve the balance of my time.
Mr. TIPTON. Madam Chair, I suppose I can bring some good news. It is
not a 5-page bill, but actually a 3-page bill that we have actually put
forward.
What I think we are really frustrated about is that we often hear
from our colleagues that they want to be able to have bipartisanship.
They are concerned about endangered species. While it is already
protected in the bill, we add a further savings clause to be able to
protect it.
They are concerned about the Federal Government being able to
continue operations under legal authority--already protected in the
original bill. We put in an additional savings clause to be able to
address that.
We are concerned even more than they are, apparently, about standing
up for Native American tribes in some proposed amendments that we are
going to be putting forward to protect them from using Native tribes as
a tool to extort water for the Federal Government.
This is a commonsense, sensible piece of legislation. Our colleagues
want to say that it is expanded. Actually, I have the original bill in
my hand. They say it is simply about ski resorts. We have common
ground. I, too, want to be able to protect ski resorts, but I am not
willing to sacrifice, on the altar of the Federal Government, our farm
and ranch communities in addition to our municipalities.
Looking at the original bill, it doesn't mention ski areas once, yet
an author of an amendment today said it has become more broad. Show me
how.
This is a good piece of legislation. The manager's amendment
addresses their very concerns.
[[Page H2397]]
With that, I reserve the balance of my time.
Mrs. NAPOLITANO. Madam Chairman, I yield 2 minutes to my colleague
from Colorado (Mr. Polis).
Mr. POLIS. Madam Chair, I want to be clear that the concerns are by
no means limited to the Endangered Species Act. The Republicans may
care about endangered species, but they don't care about jobs. The
Forest Service, the BLM, Interior, and Agriculture agencies all have
relevant authority with regard to bypass flows. None of those are
mentioned under this particular manager's amendment.
What this manager's amendment shows is Republicans care more about
endangered species than they do about jobs in our mountain resort
areas. This manager's amendment added the term ``impairment of title.''
We wanted this limited to ``transfer of title'' because ``impairment of
title'' actually expands the scope of the bill from the original bill.
In addition, the so-called savings clause actually appears to negate
the very bill that it appears in.
This takes a bill that we had offered language to the committee and
to Representative Tipton to make this a bipartisan bill. I think it
could have very closely unanimously passed the House, certainly enough
to pass a suspension, and instead they made a bill that even the very
ski areas that they are claiming to help--actually, all the counties
that I have that have ski resorts actually oppose this job-killing
Republican water grab bill.
Mr. TIPTON. Madam Chair, how much time remains?
The CHAIR. The gentleman from Colorado has 1\1/2\ minutes remaining.
The gentlewoman from California has 2\1/2\ minutes remaining.
Mr. TIPTON. Madam Chair, for the point of clarity, to ease the
concerns of my colleague from Colorado, the National Ski Areas
Association endorses this bill today. That has not changed. Also, to
alleviate the concerns that you just demonstrated, no existing
authorities will be impacted under this legislation. No existing
authorities will be impacted. No bypass flows will be impacted.
Effectively, what this bill is doing, Madam Chair, is we are
codifying existing practice, which I think we all agree is a desirable
thing to have continue.
This is about political theater. The job-killing part of what is
happening right now is being conducted by the Federal Government. They
are killing jobs with a Federal Government water grab.
Either you stand with the farmers, the ranchers, and long-held
practices of the West or you don't. If you don't, I do, and that is
what this bill continues to support.
Madam Chairman, I reserve the balance of my time.
Mrs. NAPOLITANO. Madam Chair, I know I have said it before, the ski
resort association wants to focus on this bill, so I am suggesting that
we do approve the Polis amendment and then hold a hearing--an open
hearing and a transparent hearing--for those agencies that are impacted
so they may have the ability to have a word and be able to move this
forward. I might add that the savings clause does not include the
national parks. So all the units, Grand Canyon and others, are
impacted.
I reserve the balance of my time.
Mr. TIPTON. Madam Chair, again, I will refer my colleagues to the
text of the bill. No Federal water rights that they currently have are
going to be impaired. That includes national parks.
We continue to hear about the upcoming Polis amendment. The original
bill that Mr. Polis and I introduced never specifically mentioned just
ski areas. It talks about any permit. So if you care about farmers, if
you care about ranchers, if you care about municipalities, and if you
care about ski areas, which we all share, let's protect those private
property rights from Federal extortion.
With that, I yield back the balance of my time.
Mrs. NAPOLITANO. Madam Chair, when we considered the bill in
committee, the majority claimed the bill had nothing to do with the ESA
or the bypass flows or FERC or reclamation projects, which we pointed
out that it did. Now they have a savings clause for each one of those
issues. Now they admit their mistakes. Sadly, when a bill has this many
holes in it, no amendment can fix them all, so this bill cannot be
saved by this amendment.
I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Colorado (Mr. Tipton).
The amendment was agreed to.
amendment no. 2 offered by mr. mullin
The CHAIR. It is now in order to consider amendment No. 2 printed in
part A of House Report 113-379.
Mr. MULLIN. Madam Chair, I have an amendment at the table.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 3, line 18, insert ``(including any federally
recognized Indian tribe)'' after ``water user''.
Page 4, line 7, insert after the period ``Such term shall
include water rights for federally recognized Indian
tribes.''.
Page 4, after line 13, insert the following:
SEC. 5. EFFECT ON INDIAN WATER RIGHTS.
Nothing in this Act limits or expands any existing
reserved water right or treaty right of any federally
recognized Indian tribe.
The CHAIR. Pursuant to House Resolution 515, the gentleman from
Oklahoma (Mr. Mullin) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Oklahoma.
Mr. MULLIN. Madam Chair, protecting the rights of the sovereign
tribes is a top priority of mine, and I am proud to work with
Congressman Tipton in supporting the Water Rights Protection Act and
offering this amendment to clarify protections for the water rights of
American Indian tribes. Many tribes rely on reserved water rights and
water rights guaranteed by treaty to provide critical water supplies
for their people. This amendment makes clear that these water rights
are fully protected.
This amendment also ensures that the Department of the Interior and
the Department of Agriculture can't use one-sided permits, licenses,
approvals, and other land management tools to take water from Indian
tribes without just compensation. American Indian tribes have a
distinguished record of being outstanding stewards of their water
supplies and should never have to fear forfeiture of their water rights
to the Federal Government. By prohibiting these Federal agencies from
using heavy-handed tactics to take Indian water rights, we can
proactively protect tribes from the potential Federal water grabs.
{time} 1545
Taken together, H.R. 3189 and this amendment provide comprehensive
water rights protections for all water users and help ensure the water
supply certainty and jobs that are dependent on those rights.
I thank the chairman and urge a ``yes'' vote on this amendment.
I reserve the balance of my time.
Mrs. NAPOLITANO. Madam Chair, I rise in opposition to the amendment.
The CHAIR. The gentlewoman from California is recognized for 5
minutes.
Mrs. NAPOLITANO. Madam Chair, this amendment does not fix the bill
because the bill cannot be fixed.
The savings clause in the base bill and the savings clause that Mr.
Mullin's amendment includes are symptoms of the problem that we pointed
out before in this bill, not the solution. The amendment would be the
sixth savings clause added to this 4-page bill.
I do support Representative Mullin's and Representative Cole's
efforts in protecting our Native American communities' water rights. As
the gentleman from Oklahoma (Mr. Cole) mentioned at the Rules Committee
last night, Native American water rights are the oldest water rights in
the system. They are time immemorial, and yet we choose to ignore them.
I remember Congressman Kildee repeatedly saying, under the
Constitution, they hold the first water rights in the United States,
and yet we do not recognize them. Yet, since Republicans took the
majority 4 years ago, there has been no legislation, no oversight
hearings on any Indian water rights settlements.
If we want to support Native American water rights, Congress should
consider tribal water rights legislation, enact tribal water rights
legislation, and fund tribal water rights legislation.
I reserve the balance of my time.
[[Page H2398]]
Mr. MULLIN. I yield 1 minute to the gentleman from Washington,
Chairman Hastings.
Mr. HASTINGS of Washington. Madam Chair, I thank the gentleman for
yielding, and I want to commend the gentleman from Oklahoma for his
hard work on behalf of Native Americans.
American Indian tribes rely on their water rights to provide critical
supplies to their people and to promote and expand their local
economies. These rights must be protected from Federal regulations that
are designed to take water without paying for that water, and this
amendment does just that.
This forward-looking amendment simply allows tribes to have the same
protections that are afforded to others in the bill by prohibiting the
Federal Government from using routine permits to extort private water
rights. It also preserves the water rights guaranteed to tribes by
treaty and by Federal reservation. Although this bill already does the
latter, we believe it is important to clarify this important
protection, so I urge my colleagues to support this commonsense
amendment. I commend the gentleman for offering it.
Mrs. NAPOLITANO. Madam Chair, I reserve the balance of my time.
Mr. MULLIN. In Indian country, we have learned that we can never just
take something that the Federal Government says and take it as truth.
We have to always verify. This is simply trying to clarify that the
Federal Government has no rights to come onto the Indian land and tell
us how we can and can't use our water. This is just simply saying,
look, we have the rights; the treaties say we have the rights, and we
want to make sure that the Federal Government doesn't come in and grab
our water rights. There should be zero opposition to this. There should
be bipartisan support.
I yield back the balance of my time.
Mrs. NAPOLITANO. Madam Chair, this bill is so badly written we really
have no idea--I repeat, no idea--what impact this may have on tribes.
Yes, Mr. Mullin, I totally support water rights for Native Americans.
We have been working on that for at least 8 years in my subcommittee,
as well as other water rights owners. We don't oppose your amendment,
and we honestly really truly hope this will offer adequate protection
to tribes. They deserve it. It is a long time coming. But, as we have
said, the bill is beyond repair. Even if we were to adopt the
amendment, H.R. 3189 is dangerous legislation that must be defeated.
I urge my colleagues to vote against this amendment; although, I
don't oppose the amendment, but I do oppose the bill, H.R. 3189.
I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Oklahoma (Mr. Mullin).
The amendment was agreed to.
Amendment No. 3 Offered by Mr. Polis
The CHAIR. It is now in order to consider amendment No. 3 printed in
part A of House Report 113-379.
Mr. POLIS. Madam Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. PROHIBITION ON CONDITIONING SKI AREA PERMIT ON
TRANSFER OR ACQUISITION OF WATER RIGHTS ON
BEHALF OF THE UNITED STATES.
The Secretary of Agriculture, acting through the Chief of
the Forest Service, shall not--
(1) condition the issuance, renewal, amendment, or
extension of any ski area permit on the transfer of title or
ownership, including joint ownership, of any water right
granted or otherwise recognized under State law, by Federal
or State adjudication, decree, or other judgment, or pursuant
to any interstate water compact, directly to the United
States; or
(2) require any ski area permittee to apply for or acquire
a water right in the name of the United States under State
law as a condition of the issuance, renewal, amendment, or
extension of any ski area permit.
The CHAIR. Pursuant to House Resolution 515, the gentleman from
Colorado (Mr. Polis) and a Member opposed each will control 10 minutes.
The Chair recognizes the gentleman from Colorado.
Mr. POLIS. Madam Chair, my colleague, the gentleman from Colorado
(Mr. Tipton), mentioned the National Ski Areas Association, and I
include their February 11 letter for the Record. It states here, in
part:
However, to make it abundantly clear that ski areas have a
narrow and pointed agenda with respect to this legislation
and that we are committed to maintaining stream and aquatic
species health, we are now advocating changes to the bill to
narrow its scope even further. These changes include
narrowing the scope of the bill to apply just to the U.S.
Forest Service, and clarifying that the bill prohibits forced
transfers of ownership of water rights to the United States
by inserting the term ``title'' into the bill.
I believe that my amendment is consistent with the position of the
National Ski Areas Association.
I am a strong believer in the original purpose of this bill. Yes, the
U.S. Forest Service overstepped its authority by issuing a policy that
requires ski area permittees to transfer ownership of their water
rights to the Federal Government.
Ski areas are the lifeblood of our mountain communities in Colorado
and many communities across the Nation. Their economic viability and
strength is extraordinarily important for working families. Ski areas
have invested hundreds of millions of dollars of capital, and they
can't be simply required to hand over their water rights to the Federal
Government. This harmful policy hinders ski resort growth and expansion
and harms the economy. My amendment fixes it.
There is a legitimate issue here, and Congress could be solving it in
a bipartisan manner. We agree that the 2011 U.S. Forest Service
directive is a problem. This could have been a suspension bill, but
H.R. 3189, despite our best efforts from my side of the aisle, does not
reflect a bipartisan agreement to the water rights issue.
There is not one comparable Federal water rights directive like the
U.S. Forest Service directive, but the Republicans couldn't help
themselves here, and they have, instead of fixing an issue, created a
job-killing, water-grabbing Republican bill that will destroy jobs in
Colorado and in mountain resorts across the country.
This process has become convoluted and the bill overly broad. This
legislation only serves to cast doubt on the complicated laws and
precedents and authorities that make up our Nation's and States' water
laws, and that it is critical to remain stable and predictable over
time. This expansive legislation undermines jobs and recreational
opportunities, from white-water rafting to fishing. Sportsmen's groups
oppose this legislation. Ski counties in my district oppose this
legislation.
It was brought up in committee yesterday, could the opposition be
``political.'' Well, I want to be clear, one of the ski counties in my
district, all three of the commissioners are Republican. Grand County,
they oppose this bill unanimously, as do Summit County and Eagle
County. Rafting and paddling groups oppose this legislation because it
impacts our world-class, white-water runs.
I hope we can fix this bill. We have tried hard throughout this
process to offer language in the committee that would make this a
bipartisan bill, to offer language to the chief sponsor, Representative
Tipton. Up to this point, we have been rebuffed. This is our last hope
to fix this bill and create something that actually responds to the
flawed Forest Service directive of 2011. Without this change, this bill
has nothing to do with the 2011 directive. It is just talk. It doesn't
even respond to the issue it is designed to solve, which is why some of
the very same ski communities that wanted a response to the 2011
directive don't even support this bill at this point.
Since ski area water rights are a valuable asset that need to be
protected, I am proud to have offered this amendment with
Representative Kuster, Representative DeGette, Representative
Perlmutter, Representative DelBene, Representative Cartwright, and
Representative Huffman that would fix H.R. 3189, return the bill to its
original purpose, lead to a strong House vote, and ensure that any U.S.
Forest Service directive will not condition ski area permits on the
transfer of title of any water right or require any ski area permittee
to acquire a water right in the name of the United States.
I reserve the balance of my time.
[[Page H2399]]
National Ski Areas Association,
February 11, 2014.
Re Support for Water Rights Protection Act.
Hon. Scott Tipton,
Cannon HOB,
Washington, DC.
Hon. Jared Polis,
Longworth House Office Building,
Washington, DC.
Hon. John Barrasso,
Dirksen Senate Office Building,
Washington, DC.
Hon. Mark Udall,
Hart Office Building,
Washington, DC.
Gentlemen: I am writing on behalf of the ski industry to
express the reasons ski areas strongly support passage of the
bipartisan Water Rights Protection Act, H.R. 3189/S. 1630,
and to advocate changes to the bill to narrow its scope. At
the outset, the ski industry would like to express our deep
appreciation of your efforts to protect ski area water rights
from federal encroachment over the past couple of years. Your
leadership on protecting water rights and your commitment to
working in a bipartisan fashion to solve this problem on
behalf of ski areas and other permittees on federal land have
had very positive and real effects to date. While ski areas
have enjoyed a long and successful partnership with the
Forest Service spanning almost eight decades, Forest Service
water policy is an issue on which we simply do not agree. We
have invested too much in water rights to simply hand them
over to the federal government.
As you are well aware, the Water Rights Protection Act
would stop the federal government from illegally seizing
water rights from private parties that develop them, such as
ski areas, in violation of State water law and 5th Amendment
property rights protections. The intent of the bill is
narrow--to protect valuable assets of ski areas and other
permittees that use federal land from seizure without
compensation by the federal government. Essentially everyone
agrees on the need for this protection, given recent (and
past) Forest Service policy that demands transfer of valuable
water rights to the U.S. without compensation. This policy
threatened to rock the foundation of over a hundred years'
worth of water law in the West, and again, thanks to your
intervention, beneficial changes are expected in the future.
The intention of the Water Rights Protection Act is not to
impact stream health or aquatic species in any way. Some
conservation groups contend that H.R. 3189 has a broader
effect than simply protecting water rights, and in fact would
hinder federal efforts to protect stream health and fish. Ski
areas and other stakeholders strongly disagree with this
interpretation of the bill and would never support a bill
that had this result. In fact, a ``savings clause'' was
included in the bill to explicitly state that the measure had
no other impacts than to protect permittees' water rights
from forced transfers. More importantly, the bill does not
alter in any way the minimum stream flow protections that are
set and enforced by the states on virtually every river and
stream. Ski areas support and abide by these minimum stream
flow requirements and would never take action to undermine
them.
However, to make it abundantly clear that ski areas have a
narrow and pointed agenda with respect to this legislation
and that we are committed to maintaining stream and aquatic
species health, we are now advocating changes to the bill to
narrow its scope even further. These changes include
narrowing the scope of the bill to apply just to the U.S.
Forest Service, and clarifying that the bill prohibits forced
transfers of ownership of water rights to the United States
by inserting the term ``title'' into the bill. We offer these
changes to demonstrate emphatically our unwavering commitment
to maintain stream health and aquatic species, and our narrow
focus of simply protecting our valuable water rights assets.
These changes are directed at solving the concrete problem at
hand, which is overreaching policy by the Forest Service that
requires a forced transfer of ownership of water rights from
permittees to the United States. The bill will continue to
benefit all permittees on Forest Service lands, not just ski
areas.
The release of a new water policy is expected from the
Forest Service sometime in 2014. Ski areas welcome this new
policy change, which we understand will not require a forced
transfer of ownership of water rights. The release of this
policy will not change the need for federal legislation
however. First, the new policy is expected to apply
prospectively, such that existing water rights subject to
past Forest Service water clauses could continue to be in
jeopardy of a taking by the Forest Service. Ski areas are
proposing an amendment to the bill to protect against the
implementation of such clauses beginning with the effective
date of this bill. Ski areas have experienced four changes in
Forest Service water policy in the last ten years. Only
Congress can help stop the pendulum from swinging and provide
ski areas the kind of stability they need to grow and succeed
in the future.
After prevailing on our challenge of the Forest Service's
water rights takings policy in federal court in 2012, ski
areas offered an alternative approach for the Forest Service
to consider that would not involve forced transfers of water
rights. We offered this alternative in the spirit of
partnership, and as a way for the Forest Service to work
cooperatively with ski areas to support their viability, and
the viability of mountain communities, over the long term.
The alternative offered by ski areas was to require resorts
to provide successors in interest an option to purchase water
rights at fair market value upon sale of a ski area. We
continue to support this approach as a viable alternative
that meets the needs of the agency, provides ski areas needed
flexibility, and respects state water law.
Ski areas are great stewards of water resources. It is
important for everyone to remember that only a small portion
of water that is used for snowmaking is consumed. Most of the
water diverted from streams for snowmaking returns to the
watershed. Although it varies from region to region, studies
show that approximately 80 percent of the water used for
snowmaking returns to the watershed. Since the majority of
water used for snowmaking is water purchased by a ski area,
brought onsite through diversions, stored on-slope, and
typically released more slowly back into the watershed with
the seasonal melting of the winter snowpack, snowmaking
typically benefits the watershed in which it is taking place,
as well as downstream users, and can help counteract the
harmful effects of drought. In addition to using a whole
array of conservation measures, many resorts impound or store
water in reservoirs for use during low flow times of the year
without affecting fish or aquatic habitat. The ability to
control our water assets and investments--which will be the
outcome of passage of the Water Rights Protection Act--will
enable us to continue this stewardship in the future. It will
also allow us to continue to provide a high quality
recreation opportunity for millions of people on the National
Forests.
In closing, we thank you for your work to date on this
issue, and we look forward to continuing to work together in
cooperation to ensure the bill's passage.
Sincerely,
Michael Berry,
President.
Mr. HASTINGS of Washington. Madam Chair, I rise in opposition to the
amendment.
The CHAIR. The gentleman is recognized for 10 minutes.
Mr. HASTINGS of Washington. I yield myself such time as I may
consume.
Madam Chair, I want to thank the gentleman from Colorado for
recognizing that the Federal Government's taking of water rights and
economic collateral of ski areas is wrong. His amendment also
acknowledges that Congress must act to provide long-term certainty
rather than rely on vague assurances from bureaucrats that are subject
to change at any time.
I also appreciate the gentleman's initial support for the bill as
introduced. His attention to this matter and willingness to fight for
the ski areas in his district is commendable and has certainly been
noted by colleagues on both sides of the aisle.
However, the amendment he offers today completely undermines the bill
he originally added his name to in support. The bill, as introduced and
in its current improved form, protects private property rights for
all--Madam Chairman, all--water users across the country, not just ski
areas. By limiting the bill's scope to ski area permits by the Forest
Service, the Polis amendment transforms the bill so that it favors one
special group at the expense of all others. Ski areas under his
amendment would be protected, but any other water owner or user
anywhere in the country would be subject to Federal extortion. It frees
the Federal Government to continue targeting the water rights of family
farms and ranches and municipalities.
Madam Chair, it is not just wrong for the Federal Government to take
water away from ski areas, it is wrong to do it to anyone. There should
be no discrimination in this manner. The Polis amendment would
eliminate protections for farms and ranches, our Nation's food
suppliers. That is why the American Farm Bureau opposes this amendment
and supports the underlying bill. The Farm Bureau's members have
already been victimized by this Federal overreach, and this amendment
would allow that to continue.
Because the Polis amendment is a complete substitute text for the
underlying bill, it would strike out all of the protections currently
in the bill. The Polis amendment would even eliminate the protections
for the Indian treaty rights and Indian water rights that the House
just adopted a moment ago with the Mullin amendment.
It is true that the ski areas have suffered greatly at the hands of
this Federal overreach. For this reason, the underlying bill does fully
protect ski areas, along with every other water
[[Page H2400]]
user. How many times do we have to say that? It protects ski areas and
all water users, and that is why, as has been mentioned several times,
the National Ski Areas Association wrote in February after the
committee markup that it strongly supports the bill.
When it comes to protecting the water and private property of
American citizens, the Congress shouldn't be picking winners and
losers; and Congress should be making the law for that protection, not
the bureaucrats. The legislative branch should act to protect all
citizens of the executive branch.
It is for these reasons I urge my colleagues to vote ``no'' on the
Polis amendment.
I reserve the balance of my time.
{time} 1600
Mr. POLIS. Madam Chair, it is my honor to yield 2 minutes to the
gentlewoman from California (Mrs. Napolitano), the ranking member of
the committee.
Mrs. NAPOLITANO. Madam Chair, I thank Mr. Polis for yielding.
I must say that, again, I must direct attention to the fact that the
February 11 letter from the ski resorts focuses on narrowing the bill,
not the bill in total, but narrow focus.
Mr. Polis joined Mr. Tipton on this bill in an attempt to seek a
reasonable solution to the problem facing ski resorts in the West, but
when Mr. Polis tried to work with the majority and when we on the
committee tried to work with the majority to make reasonable,
responsible changes to the bill, we were told no.
We were told the majority wanted a big, broad bill that goes way
beyond the resorts and way beyond the Forest Service. We pointed out
that when you start drafting big, broad bills that go beyond the
original issue, you will have unintended consequences, but they would
not listen.
Mr. Polis' amendment is the last chance to make this a narrow,
bipartisan bill that can actually pass, and we should adopt it.
Again, we don't want a job killing. We don't want a water grab. We
don't want specific people to favor. I think the people need to
understand it is the farmers and ranchers who benefit.
The six savings clauses the bill needs is not needed. It is in the
Polis amendment because the amendment narrows the scope only to ski
resorts and National Forest Service.
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentleman from California (Mr. McClintock).
Mr. McCLINTOCK. Madam Chairman, this amendment creates two different
classes of citizens: ski resorts and everybody else.
It leaves the portion of the bill that protects ski resorts from
being forced to relinquish their water rights as a condition of
continuing to operate in the Federal forests, and that is good, but
then it creates a tier of second class citizens.
Unless you own a ski resort, you are fair game for the same demands
by these Federal agencies to either give up your water rights or be
forced out of business.
For example, our subcommittee heard testimony from Randy Parker. He
is the CEO of the Utah Farm Bureau. He told us that the Forest Service
and the Bureau of Land Management have threatened to force farmers that
have grazing allotments to give up their water rights as a condition of
continuing to use the public lands.
In some cases, these are permits that family businesses have held for
generations. The water rights are accorded to them under State law. The
Federal Government has no right to usurp that law or to force anybody
into the Hobson's choice of closing their business or surrendering
their water rights.
This amendment is an affront to the Equal Protection Clause of the
14th Amendment, as well as to the Takings Clause of the Fifth
Amendment. These rights are fundamental constitutional rights that are
unalienable for every American, not just those who happen to operate
ski resorts.
Let's not take the Orwellian position that all Americans are equal,
but some are more equal than others.
Mr. POLIS. Madam Chair, I yield 2\1/2\ minutes to the gentlelady from
New Hampshire (Ms. Kuster), a cosponsor of the amendment.
Ms. KUSTER. Madam Chairman, I first want to thank my friend, the
gentleman from Colorado (Mr. Polis) for his work on this issue and for
leading this amendment.
I rise today in support of this substitute amendment that I am
offering with Mr. Polis and several colleagues in an effort to fix the
issues with this legislation, but I wish I wasn't even here today to
talk about this amendment. That is because this bill was originally
introduced as a bipartisan bill to address a specific problem.
As we have seen all too often around here, the bill that is on the
floor today doesn't look anything like it did when it was introduced.
The bill that we are considering today wouldn't just address a water
rights issue between ski areas and the Forest Service. It would go much
further than that, impacting our national park system, wildlife
refuges, hydropower relicenses, and so much more.
Where I come from, that doesn't make much sense. I came here to work
with both parties to find common ground and to get things done. Instead
of pushing partisan legislation that has no chance of becoming law, we
should be working together on real solutions. That is why I joined Mr.
Polis to offer this substitute amendment.
What it will do is simple. It will narrow this bill so that it only
addresses the issue between ski areas and the Forest Service. There is
no need for this legislation to do anything more than that.
Let's pass the Polis amendment and start working together on
commonsense policies to create jobs and opportunity for the middle
class.
Again, I thank Mr. Polis for his work on this issue.
Mr. HASTINGS of Washington. Madam Chairman, may I inquire as to how
much time I have remaining?
The CHAIR. The gentleman from Washington has 4\1/2\ minutes
remaining. The gentleman from Colorado has 2\1/2\ minutes remaining
Mr. HASTINGS of Washington. Madam Chairman, I am very pleased to
yield 2 minutes to the gentleman from Colorado (Mr. Tipton), the
sponsor of the underlying legislation.
Mr. TIPTON. Madam Chair, I thank the gentleman for yielding.
We continue to hear letters of support, ironically, out of my
colleague from Colorado's home district. Eagle River Water and
Sanitation District supports this legislation as we put it forward.
Colorado River Water Conservation District, Colorado Water Congress,
National Cattlemen's Beef Association, and Family Farm Alliance support
this bill.
When we look at the original incorporating legislation that my
colleague and I introduced, it doesn't fit the narrow scope that they
now want to talk about; so we do have to ask that question: Why are
they so willing to be going to disregard farmers, ranchers,
municipalities? Aren't they worthy of concern? I believe that they
actually are.
We actually just received an email that came from the National Ski
Association, which is dated March 12, supporting the bill with the
Tipton manager's amendment. We are addressing their specific concern,
but we aren't stopping there.
We think that that right to private property is inviolable, something
that must be protected. If our friends want to say that farmers and
ranchers and communities aren't worth protecting, we say they are.
That is what this legislation will do. We have worked with the
minority. We have got a bipartisan piece of legislation that is
standing up for those private property rights and to be able to assure
that that constitutional right to receive just compensation that it is
taking is actually preserved.
Madam Chair, I urge rejection of this amendment.
Mr. HASTINGS of Washington. Madam Chairman, I am prepared to close. I
have the right to close, so I will reserve the balance of my time.
Mr. POLIS. Madam Chairman, I yield myself the balance of the time.
Ski area water rights are valuable assets that must be protected.
Rather than disguise that in a catchall Republican job-killing water-
grabbing bill, we have the opportunity through the Polis-DeGette-
Perlmutter-DelBene-Kuster-Cartwright-Huffman amendment for this House
to come together
[[Page H2401]]
around something that helps the economy grow in our ski resort areas
across the country.
As so many times on issues of even greater importance, there is a
fork in the road for this House, a decision to make, between the
partisan-charged route of job-destroying Republican water-grabbing
legislation or the opportunity to fix this bill and come together to
make sure that our ski resort communities are secure in their water
rights and can continue to justify their capital investments and grow.
That is the choice we have with the Polis amendment.
This amendment improves the bill. It helps turn the bill from a
controversial bill into something that I think the vast majority of
this body can and will agree on.
The amendment ensures that any U.S. Forest Service directive will not
condition ski area permits on the transfer of title of any water right
or require any ski area permittee to acquire a water right in the name
of the United States.
That is the issue from the directive on 2011 that gives us a reason
to even have the bill; but instead of addressing that issue in a
focused way, this bill has tried to essentially rewrite centuries of
water law in a superficial 2-page bill that has the impact of
destroying jobs in Colorado and other mountain resort communities
across the country.
We can and we must do better--better for my district in Colorado.
Many of the ski resort counties--like Pitkin County represented by Mr.
Tipton, and Eagle, Summit, and Grand Counties that I represent--that
benefit directly from the ski resort economy have come out opposed to
this bill because it actually hurts their economy rather than helps it.
If the very folks that this bill was supposedly written to help
oppose this bill, what on Earth are we doing here?
Thankfully, we have an amendment right now that can fix this bill. We
tried in committee, we tried through the manager's amendment, and now,
we are trying on the floor. Let's do it. Let's fix the bill.
I urge my colleagues to support my amendment and, unless it is
incorporated, oppose the underlying bill.
I yield back the balance of my time.
Mr. HASTINGS of Washington. Madam Chairman, I yield myself the
balance of the time.
I have to say, the debate on the underlying bill in this amendment I
find rather interesting--no, maybe bizarre is better than that.
The issue here is whether we should protect the State's
responsibility to write water law or allow the Federal Government to
extort from private individuals that water. That is what the issue is
all about here.
He had bipartisan support when the bill was heard in committee, but
then it changed for some reason. Now, we have in front of us the Polis
amendment, which would very narrowly put this protection only to ski
areas and not to everybody else that has private property rights.
The consequences if this were to become law--which it is not going
to, I am convinced, with this amendment--but the effect of this would
be this: okay. Ski areas are protected this year. Next year, it will be
a rancher that is abused, so we will come back, and we will write a law
to protect the rancher.
Next, it will be a water conservation district someplace that will be
affected because of the directive, so we will come back and fix that.
Then it will be some municipality someplace that will be affected
because they don't have water rights because it was extorted by the
Federal Government, so we will have a fix for that.
Madam Chairman, there is a better way to do that. Let's just simply
respect states' rights to regulate water law and to codify that with
this language.
Finally, just let me make this observation. The effect of adopting
this, as I mentioned in my opening statement, as it relates to tribal
rights, what this amendment really does more than anything else is it
puts ski resorts' water rights above tribal rights. That is really what
the adoption of this amendment does.
So I would say that the underlying bill is a bill that is the
responsibility of us as the legislative branch in this Congress. It
deserves our support. This amendment does nothing to advance that at
all and should be defeated.
I urge my colleagues to vote ``no,'' and I yield back the balance of
my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Colorado (Mr. Polis).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mr. POLIS. Madam Chair, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from Colorado will be postponed.
Mr. HASTINGS of Washington. Madam Chairman, I move that the Committee
do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Yoder) having assumed the chair, Ms. Foxx, Chair of the Committee of
the Whole House on the state of the Union, reported that that
Committee, having had under consideration the bill (H.R. 3189) to
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 and
Agriculture, had come to no resolution thereon.
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