[House Report 113-372]
[From the U.S. Government Publishing Office]
113th Congress Rept. 113-372
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
WATER RIGHTS PROTECTION ACT
_______
March 4, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3189]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
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, having considered the same, report favorably
thereon with amendments and recommend that the bill as amended
do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
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--
(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.
Amend the title so as to read:
A bill to prohibit the conditioning of any permit, lease,
or other use agreement on the transfer of any water right to
the United States by the Secretaries of the Interior and
Agriculture.
PURPOSE OF THE BILL
The purpose of H.R. 3189 as amended is to prohibit the
conditioning of any permit, lease, or other use agreement on
the transfer of any water right to the United States by the
Secretaries of the Interior and Agriculture.
BACKGROUND AND NEED FOR LEGISLATION
Each western state has its own system of water law that
governs public and private water rights within its borders. All
western states have adopted some form of the prior
appropriation doctrine, or ``first in time, first in right,''
regarding surface water and many have, to some degree,
integrated this approach into their system of ground water law.
Under prior appropriation, water rights are obtained by
diverting water for ``beneficial use,'' which can include
domestic use, irrigation, stock-watering, manufacturing,
mining, hydropower, municipal use, agriculture, recreation,
fish and wildlife, depending on state law. The water right is
the amount of water that is diverted and put to beneficial use.
Eastern states normally use riparian systems of law, under
which rights to use water are generally tied to lands adjacent
to waterways. Western states adopted prior appropriation since
incentive was needed for the development and judicious use of
water rights from sources often far away from their point of
use. This allowed for the ownership of water rights without the
need to own the land in direct proximity to a waterway. The
settlement of the West and the development of water rights have
allowed water users to invest in farming and ranching
operations, domestic uses, recreational opportunities, energy
development, conservation, and industrial uses. Appropriated
waters are also a major component of most metropolitan water
supplies in the West.
Western states have developed water laws that work best for
them, largely free from federal interference for more than a
century. As the West was settled, a fairly uniform set of laws,
customs, and judicial decisions based on beneficial use was
established. The federal government has acquiesced to the
western territories, later states, to control, manage, and
allocate water. That important principle of federalism has been
confirmed by the U.S. Supreme Court as recently as June of
2013, in Tarrant Regional Water District v. Hermann, 133 S.Ct.
2120, 2132 (June 13, 2013), the ``power to control . . . public
uses of water is an essential attribute of [state]
sovereignty.''
Pursuant to the McCarran Amendment enacted in 1952, the
United States has waived its sovereign immunity when sued in a
water rights dispute, and barred the United States from
objecting to the application of state law to such a proceeding.
This landmark law put in place a framework under which the
federal government validates its state granted water rights in
the same fashion as non-federal water rights holders.
Earlier federal attempts to erode the state water rights of
federal land permittees resulted in agencies receiving clear
and significant opposition. In the 1990s Congress commissioned
a Federal Water Rights Task Force in response to the federal
use of permitting processes to reduce state-allocated water
rights held by the city of Boulder, Colorado and by certain
agricultural interests in Arizona. The report produced by the
Task Force found that federal acquisition of water for
secondary purposes (beyond reserved water rights) must be
obtained and exercised in accordance with state and federal law
and that the federal government had exceeded its legal
authority in failing to do so. Report of the Federal Water
Rights Task Force (August 25, 1997).
Undermining this longstanding framework upsets the
foundation of western municipal, agriculture, recreation,
business, environmental, and local communities' water supplies.
Protection of Western water supplies and the state law that
makes that end possible have been supported by generations of
Western elected officials on a bipartisan basis.
Contrary to this longstanding precedent, recent federal
actions and directives are undermining the historic benefits of
Western water law. Specifically, federal land management
agencies, including the U.S. Forest Service have demanded the
transfer of water rights recognized under state law directly to
the United States as a condition of permit issuance or renewal.
The Forest Service and other federal land management
agencies authorize recreational, agricultural, and other non-
federal water users to operate on federal lands through the use
of special-use permits. Such permits do not confer water rights
on permit holders, but merely govern the terms of use for the
federal land. Water rights arising within or outside of the
permit area must be acquired in accordance with state law and
paid for, developed, and maintained at the expense of the water
user. Many water rights holders use these private water rights
for activities critical to their operations, such as snowmaking
in the case of ski areas and stock watering and irrigation in
the case of farm and ranch operations. Additionally, these
rights are often used as collateral to secure financing for
maintenance, expansion, and to supply nearby communities.
Despite the legal limitations of these land use
arrangements with respect to water rights, the Forest Service
issued an interim directive in 2011 for ski area special use
permits which included a clause requiring applicant ski areas
to transfer privately held water rights to the United States as
a permit condition. The directive also required that water
rights arising on Forest Service lands off-site be transferred
to the United States in the event that the permit expires or is
terminated. In 2012, the Forest Service issued an amended
national water clause with similar requirements. Certain
municipal permits, grazing permits and other agricultural land
use arrangements have also included conditions requiring the
transfer of state-recognized water rights to the United States
on a piecemeal basis in recent years.
Witnesses at an October 10, 2013, Water and Power
Subcommittee hearing on H.R. 3189 testified that these actions
would: (1) inhibit water users by limiting access to financing
for maintenance and development of facilities; (2) potentially
result in U.S. government diversion of water currently held by
non-federal entities to off-permit locations, prohibiting the
continuation of beneficial use; (3) violate state water law of
prior appropriation; and (4) pose an immediate threat to
Western economies which rely on the availability of water for
snowmaking at ski areas, stock watering and irrigation, and
municipal use. Furthermore, these actions likely constitute a
taking under the Fifth Amendment to the United States
Constitution for which just compensation would otherwise need
to be paid. Many courts have recognized the compensable
property nature of a water right if taken by the government.
The purpose for the new clause in both the case of ski
areas and farm and ranch operations, as expressed by the
Administration, is to ensure that water remains at the location
of use to perpetuate its current purpose. The Obama
Administration's concern was and continues to be that some
water users will sell their water rights and those sales will
result in the diversion of waters away from federal lands. To
date, no such sales and diversions have been documented.
Additionally, the permits and land use arrangements in question
have not included provisions to ensure that the federal
government will protect the right for its current use, nor have
such permits guaranteed that those water rights will not be
diverted away by the government for an entirely different use.
As such, this federal policy has the potential to exacerbate
the very problem it purports to solve. The dangers of this
significant departure from precedent are clearly noted in the
Western Governors' Association (WGA) Resolution 11-7 and the
WGA's November 14, 2013, letter to Chairman Hastings, both
appended to this report. In their letter to Chairman Hastings,
the WGA and Western States Water Council state that ``WGA and
WSWC have long opposed federal agency directives that would
adversely affect or interfere with states' primary and
exclusive authority over water rights administration and
allocation. The purpose of H.R. 3189 appears to be consistent
with our support for federal deference to state water law.''
H.R. 3189 has been advanced to counter harmful federal
policies, provide certainty for water users, and to maintain
the longstanding federal deference to state water law. In doing
so, the legislation grants no new rights to any party, nor does
it in any way infringe on existing rights of individuals,
states, or the federal government.
SECTION BY SECTION ANALYSIS
Section 1. Short title
This Act may be cited as the ``The Water Rights Protection
Act.''
Section 2. Treatment of water rights
Section 2, as amended, prohibits the Secretaries of the
Interior and Agriculture from conditioning 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.
The purpose of this prohibition is to prevent federal land
management agencies from using these processes to require a
non-federal water user to transfer state-recognized water
rights directly to the United States. This prohibition is
limited by Section 4 which provides that any other existing
authorities, that the Secretaries of the Interior and
Agriculture may have to otherwise condition any permit,
approval, license, lease, allotment, easement, right-of-way, or
other land use or occupancy agreement remain unaffected by the
legislation. Other federal land management authority to
condition or otherwise agree on conditions of federal land use,
including contractual voluntary changes in water use and
carrying out authorized projects affecting water use, is
outside the scope of this Act.
Section 2, as amended, also prohibits the Secretaries of
the Interior and Agriculture from requiring any water user to
apply for or acquire water rights 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. Similar to the prohibition mentioned
above, the purpose of this provision is to prevent the federal
government from using the named processes to acquire a water
right under state law for which it would otherwise have to
acquire and pay for itself.
Section 3 protects states' definitions of the term ``water
right'' and includes any water right recognized under state
law.
COMMITTEE ACTION
H.R. 3189 was introduced on September 26, 2013, by
Congressman Scott R. Tipton (R-CO). The bill was referred to
the Committee on Natural Resources and within the Committee to
the Subcommittee on Water and Power. The bill was also referred
to the Committee on Agriculture. On October 10, 2013, the
Subcommittee held a hearing on the bill. On November 14, 2013,
the Natural Resources Committee met to consider the bill. The
Subcommittee on Water and Power was discharged by unanimous
consent. Congressman Tipton offered an amendment designated
.036 to the bill; the amendment was adopted by voice vote. No
further amendments were offered to the bill, and the bill, as
amended, was then adopted and ordered favorably reported to the
House of Representatives by a record vote of 19 to 14, as
follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 3189--Water Rights Protection Act
H.R. 3189 would prevent federal agencies from requiring
certain entities to relinquish their water rights to the United
States in order to use public lands. Because CBO expects that
enacting the bill would not affect the number of users of
public lands or the amount of receipts received by federal
agencies for the use of those lands, we estimate that enacting
the bill would have no impact on the federal budget. Enacting
H.R. 3189 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
H.R. 3189 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. Because CBO
expects that enacting the bill would not affect the number of
users of public lands or the amount of receipts received by
federal agencies for the use of those lands, it estimates that
enacting the bill would have no impact on the federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill as amended is to prohibit the
conditioning of any permit, lease, or other use agreement on
the transfer of any water right to the United States by the
Secretaries of the Interior and Agriculture.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
DISSENTING VIEWS
H.R. 3189 seeks to address a narrow water rights dispute
between the Forest Service and the National Ski Areas
Association, but is written so broadly that it could negatively
impact renewal of Bureau of Reclamation water contracts,
National Park System management, mandatory conditioning
requirements for Federal Energy Regulatory Commission
hydropower relicenses, and grazing on public lands. Because of
these harmful impacts on other federal activities beyond the
intended scope of this legislation, and a reversal by the
Forest Service on their water rights position, we oppose the
legislation.
The current debate on water rights centers on the United
States Forest Service's (Forest Service) issuance of a new
directive in 2011. Interim Directive Number 2709.11-2011-3
requires ski area permit holders to transfer water rights
secured by areas operating on public land to the federal
government.
The ski areas argue that the 2011 directive violated
Colorado water law and the Colorado constitution. Water rights
are a huge financial asset for ski resorts. Vail Resorts
reports water rights as intangible assets valued at $18.3
million. The Forest Service is concerned that the value of
these water rights would lead permit holders to sell the water,
leaving the Forest Service with no water to manage the land.
This conflict led to a U.S. District Court lawsuit against
the Forest Service, filed by the National Ski Areas Association
(NSAA). In December 2012, Judge William Martinez ruled in favor
of the NSAA, but not on the substantive water law issue.
Instead, Martinez said the Forest Service had failed to follow
federal government policies on the formation of administrative
procedures. The Court ordered the Forest Service to withdraw
the directive. The Forest Service is currently going through a
public comment process and reevaluating the 2011 directive. On
November 13, 2013, the Forest Service announced a revision to
their water rights position, specifically stating that the
Forest Service can meet their land management objectives
``without requiring the transfer of privately owned water
rights to the Government.'' Therefore the conflict this
legislation seeks to resolve no longer exists and this
legislation is unnecessary.
Yet H.R. 3189 goes above and beyond the disagreement
between the Forest Service and the Ski Resorts, and overreaches
to apply to all actions that require a permit on federal lands.
This includes the ability to facilitate the exchange of water
rights, assessed at fair market value, from being included as
part of a voluntary land exchange. There is also concern about
the ability to impose bypass flow requirements for
environmental protection, as outlined in testimony submitted by
the U.S. Forest Service. This has clear implications on
projects like the Conowingo Dam on the Susquehanna River, a key
component to the restoration efforts in the Chesapeake Bay, and
is currently in the Federal Energy Regulatory Commission
relicensing process.
H.R. 3189 also runs counter to National Park Service
Management Practice 4.6.2, which specifies that all rights to
the use of water diverted from or used on federal lands within
the national park system by the United States or its
concessioners, lessors, or permittees will be perfected in the
name of the United States. H.R. 3189 would also prohibit the
renewal of water contracts for the Bureau of Reclamation's
Central Valley Project.
The Committee has received numerous letters in opposition
to the legislation, including letters from Grand County, Summit
County, and Eagle County in Colorado, who oppose the
legislation due to its potential impacts on bypass flows. The
Committee has also received testimony in opposition from the
National Forest Service and the Department of the Interior. The
Committee also received a letter signed by nearly 70
conservation Groups including: American Rivers, National
Audubon Society, National Parks Conservation Association,
American Whitewater, Sierra Club, and the Chesapeake Bay
Foundation in opposition to this bill.
This legislation creates more conflict than it solves and
should be rejected by the House.
Peter A. DeFazio,
Ranking Member,
Committee on Natural Resources.
Grace F. Napolitano,
Ranking Member,
Subcommittee on Water and Power.