[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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