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H.R. 3176, TO REAUTHORIZE THE 

RECLAMATION STATES EMERGENCY DROUGHT RELIEF ACT 

OF 1991, AND FOR OTHER PURPOSES; H.R. 3189, WATER 

RIGHTS PROTECTION ACT 

LEGISLATIVE HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND POWER 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

October 10, 2013 

Serial No. 113–46 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON WATER AND POWER 

TOM MCCLINTOCK, CA, Chairman 

GRACE F. NAPOLITANO, CA, Ranking Democratic Member 

Cynthia M. Lummis, WY 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Markwayne Mullin, OK 

Chris Stewart, UT 

Doug LaMalfa, CA 

Doc Hastings, WA, ex officio 

Jim Costa, CA 

Jared Huffman, CA 

Tony Ca ́ rdenas, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Peter A. DeFazio, OR, ex officio 

(III) 

CONTENTS 

Page 

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

Statement of Members: 

Amodei, Hon. Mark E., a Representative in Congress from the State 

of Nevada ....................................................................................................... 21 

Bishop, Hon. Rob, a Representative in Congress from the State of Utah ... 22 

Costa, Hon. Jim, a Representative in Congress from the State of California .............................................................................................................. 19 

DeFazio, Hon. Peter A., a Representative in Congress from the State 

of Oregon ....................................................................................................... 16 

Prepared statement of ............................................................................... 17 

Gosar, Hon. Paul A., a Representative in Congress from the State of 

Arizona ........................................................................................................... 18 

McClintock, Hon. Tom, a Representative in Congress from the State 

of California ................................................................................................... 1 

Napolitano, Hon. Grace F., a Representative in Congress from the State 

of California ................................................................................................... 3 

Tipton, Hon. Scott R., a Representative in Congress from the State of 

Colorado ......................................................................................................... 6 

Statement of Witnesses: 

Corbin, David, (H.R. 3189), Vice President, Aspen Skiing Company, 

Aspen, Colorado ............................................................................................ 23 

Prepared statement of ............................................................................... 24 

Crews, Wayne, (H.R. 3176), Vice President, Competitive Enterprise Institute, Washington, DC ................................................................................... 44 

Prepared statement of ............................................................................... 46 

Parker, Randy, (H.R. 3189), CEO, Utah Farm Bureau Federation, Sandy, 

Utah ............................................................................................................... 26 

Prepared statement of ............................................................................... 28 

Porzak, Glenn, (H.R. 3189), Attorney, National Ski Areas Association, 

Boulder, Colorado .......................................................................................... 36 

Prepared statement of ............................................................................... 38 

Willardson, Tony, (H.R. 3176), Executive Director, Western States Water 

Council, Murray, Utah ................................................................................. 39 

Prepared statement of ............................................................................... 41 

Additional Materials Submitted for the Record: 

Heavenly Mountain Resort, Lake Tahoe, Letter submitted for the record 

on H.R. 3189 .................................................................................................. 79 

Letters of support submitted for the record by Representative Napolitano 4 

Letters of support submitted for the record by Representative Tipton ....... 8 

Letter from Chairman McClintock to U.S. Bureau of Reclamation on 

H.R. 3176 ....................................................................................................... 76 

Letter from Chairman McClintock to U.S. Forest Service on H.R. 3189 ..... 76 

Response letters to Chairman McClintock from U.S. Department of the 

Interior and U.S. Forest Service on H.R. 3189 ........................................... 77 

National Association of Conservation Districts, Washington, DC, Letter 

submitted for the record on H.R. 3189 ........................................................ 80 

Rio Grande Water Conservation District, Alamosa, Colorado, Letter submitted for the record on H.R. 3189 .............................................................. 80 

(1) 

LEGISLATIVE HEARING ON H.R. 3176, TO REAUTHORIZE THE RECLAMATION STATES 

EMERGENCY DROUGHT RELIEF ACT OF 

1991, AND FOR OTHER PURPOSES; H.R. 3189, 

WATER RIGHTS PROTECTION ACT 

Thursday, October 10, 2013 

U.S. House of Representatives 

Subcommittee on Water and Power 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to call, at 2:25 p.m., in room 

1334, Longworth House Office Building, Hon. Tom McClintock 

[Chairman of the Subcommittee] presiding. 

Present: Representatives McClintock, Tipton, Gosar, Stewart, 

Napolitano, Costa, Huffman, Lowenthal, and DeFazio. 

Also Present: Representatives Bishop of Utah and Amodei. 

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

Mr. MCCLINTOCK. The Subcommittee on Water and Power will 

come to order. I want to apologize to all concerned regarding the 

late start today. The consolation is there are no further votes 

scheduled, so there won’t be any interruptions except from the 

members. 

So welcome to all of you. A quorum is present. And today the 

Water and Power Subcommittee meets to hear two bills, one of 

which protects valuable private water rights from efforts by the 

Federal Government to expropriate those rights through what 

should be a routine permitting process. The other bill reauthorizes 

the Emergency Drought Relief Act, which provides Federal taxpayer dollars for local drought-related water projects. 

H.R. 3189, the Water Rights Protection Act, is a straightforward 

measure to prevent the U.S. Forest Service from demanding that 

privately owned ski resorts surrender long-held water rights under 

State law as a condition of receiving special use permits for longstanding uses of public land. 

Despite over 100 years of Federal deference to State law, Federal 

agencies have adopted the practice of demanding that water users 

transfer rights granted to them by States over to the Federal Government as a condition of getting a permit to operate on Federal 

lands. This amounts to an uncompensated taking and is a violation 

of both the Fifth Amendment to the Constitution and a violation 

of State law, under which the Federal Government must acquire 

water rights through the proper channels as would any other user. 

There are 121 ski areas on Federal public lands, 14 of which, by 

the way, are on Forest Service lands in my district. These ski areas 

rely on privately held water rights for snowmaking, using this 

2 

water as collateral for financing to build and maintain their facilities, and for supplying water to the local communities that they 

support. 

In 2011 the Forest Service issued a directive that would effectively take these private property rights without compensation, in 

violation of State law, while jeopardizing these enterprises altogether, and all of the direct employment and spinoff economic activity and tax revenues that they provide. This action illustrates an 

increasingly hostile attitude by this agency toward those who make 

productive use of our vast natural forests, in this case by enhancing and attracting the tourism upon which our mountain communities depend. 

Although the principal victims of this policy have been our ski 

resorts, this subcommittee has also received reports of similar tactics directed against farm and ranch operations that rely on Staterecognized water rights for irrigation and stock watering. 

Mr. Tipton’s bill simply prohibits the Federal Government from 

using what should be a routine permitting process to extract longheld water rights from private users. This bill seeks to restore Federal accountability and responsibility and gets the Forest Service 

out of what has been historically a State prerogative. 

Mr. MCCLINTOCK. We will also hear H.R. 3176, the Drought Relief Act, offered by Mr. DeFazio. This measure reauthorizes a program that provides Federal money for drought relief programs. 

Given the disappointing rainfall last year in many parts of the 

country, this is an important and timely subject. 

Of course the whole purpose of Federal water and power projects 

is to assure that there are ample supplies of water in times of 

drought. We will hear from the Competitive Enterprise Institute 

that natural processes produce some 45,000 gallons of fresh water 

each day for every man, woman, and child on the planet. The problem is that this abundant supply is unevenly distributed over both 

time and distance, which is the whole reason that we build dams 

and aqueducts in the first place. The more dams and aqueducts we 

have, the fewer water shortages we suffer. The problem is we 

haven’t been building a lot of these projects for quite some time for 

reasons that this subcommittee has often discussed. 

When we did build them, they were financed on the beneficiary 

pays principle in which Federal money fronted for these projects is 

repaid by the users of the water and power that these projects provide. I am interested in knowing why that principle is not applicable here and whether our approach to drought relief ought to be 

aimed at producing permanent abundance rather than managing 

temporary shortages. It is certainly an important and timely discussion to have. 

Although the Federal agencies are not here today, we look forward to getting their submitted testimony and answers to many 

questions for the record. For those that are here, I look forward to 

today’s testimony on how we can protect State-recognized water 

rights and all the many industries and uses that rely on them, and 

how we can better prepare for drought conditions to avoid needless 

expenditures of taxpayer dollars. 

And with that, I am happy to yield to the Ranking Member, the 

gentlelady from California, Mrs. Napolitano, for 5 minutes. 

3 

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

Mrs. NAPOLITANO. Thank you, Mr. Chairman, and good afternoon 

to everybody. 

Today’s hearing focuses on the two bills that address important 

water issues in the West, H.R. 3176, the reauthorization of the 

Drought Relief Act, and H.R. 3189, the Water Rights Protection 

Act. And thank you to our witnesses for being with us even in the 

presence of this government shutdown. 

I am proud to cosponsor H.R. 3176, legislation sponsored by my 

colleague, Ranking Member Peter DeFazio, which provides reclamation with the authority and flexibility to get water to entities, 

tribes who need it during times of drought. Drought costs the U.S. economy between $6 billion to $8 billion annually, with 2012 drought costs possibly exceeding $35 billion. In 

2013 almost 50 percent of our country is in moderate to severe 

drought. We will hear more of the effects of the drought in the 

West from the Western States Water Council witness. And may I 

add that many of the entities that are trying to figure out how to 

cope with the drought are not able do it alone. 

We will also hear testimony that the Federal Government should 

not help the States during times of drought. That the Federal Government should not help—God help California—home to the five 

most productive agricultural counties in the Nation and the eighthlargest economy, with their water issues. The argument is that 

California’s problems are not the Nation’s problems. I beg to differ 

with that. It is not that simple. What affects California affects the 

rest of the Nation. That is why we are the United States of America. 

H.R. 3189, offered by Representative Tipton, is legislation that 

seeks to address an issue between Forest Service and the ski areas 

in his region. The ski areas are concerned about the Forest Service 

interim directive that requires they transfer their water rights to 

the Federal Government. The Forest Service is concerned about 

their ability to manage the land if the ski resorts were to sell their 

rights. The legislation is so broadly written that it could apply to 

many actions on Federal lands, not just the ski resorts. So we must 

be careful about how unintended consequences may affect some 

other folks. 

It is the responsibility of this committee to ensure proposed legislation receives the proper vetting. We did not receive agency testimony because of the shutdown. We don’t have all the answers to 

the questions we have asked of the administration, again because 

of the shutdown. Yet this hearing is moving forward and it will be 

the only, and, I repeat, the only opportunity for stakeholders to 

weigh in before markup. We are missing key information, without 

the administration’s position on these bills and our ability to question them directly. 

This is not the best way to do business, nor is it the best way 

to ensure that the legislation we pass serves the best interest of 

our taxpayers and our American public. The best way we can help 

our communities with their water challenges is to reopen the Federal Government, and we must focus on bringing government back 

4 

to work so employees of not only the U.S. Geological Survey, but 

other critical agencies, can work and be participants and comment 

on our issues. 

Because of the government shutdown, only 43, and, I repeat, only 

43 people out of 8,623 USGS employees—that is less than half of 

1 percent—are at work. We must bring back 3,311 of the 5,077 reclamation employees that have been furloughed and are waiting to 

go back to work for our country. 

Next year is expected to be a very dry water year and we need 

them all back in their jobs to help plan for our future and to help 

our Nation’s not only Ag economy, but the rest of our Nation. It 

is ironic, though, that it takes the absence of these employees to 

value their presence. They are essential to this country and to the 

legislative process, and we need them back at work. 

As we consider these important pieces of legislation we must first 

prioritize reopening government. We must vote on a clean resolution, continuing resolution, with no add-ons, I mean none, clean; 

open the Federal Government and put people back to work. Let us 

work for our citizens because that is what they sent us here to do. 

And, Mr. Chairman, I would like to submit for the record three 

letters of support, from the Association of California Water Agencies, the Family Farm Alliance, and the Western States Water 

Council, associated with the Western Governors’ Association. 

Mr. MCCLINTOCK. Without objection. 

[The letters submitted for the record by Mrs. Napolitano follow:] 

LETTERS SUBMITTED FOR THE RECORD BY REPRESENTATIVE NAPOLITANO

ASSOCIATION OF CALIFORNIA WATER AGENCIES, 

SACRAMENTO, CA 95814, 

OCTOBER 4, 2013. 

Hon. TOM MCCLINTOCK, Chairman, 

Hon. GRACE NAPOLITANO, Ranking Member, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

DEAR CHAIRMAN MCCLINTOCK AND RANKING MEMBER NAPOLITANO: 

The Association of California Water Agencies is pleased to support H.R. 3176, Reauthorization of the Reclamation States Emergency Drought Relief Act of 1991. 

ACWA’s 450 public water agency members supply over 90 percent of the water delivered in California for residential, agricultural, and industrial uses. 

The Drought Relief Act provides the Bureau of Reclamation with the tools it 

needs to help states plan for and mitigate the impacts of droughts. As you are 

aware, California is currently facing drought conditions and the forecast for 2014 

is not looking good. ACWA believes programs like this will help water managers 

during this time of drought. 

ACWA appreciates your work on this legislation. If we can be of any assistance, 

please feel free to contact our Washington office at 202.434.4760. 

Sincerely, 

DAVID REYNOLDS, 

Director of Federal Relations. 

5 

FAMILY FARM ALLIANCE, 

KLAMATH FALLS, OR 97601, 

OCTOBER 4, 2013. 

Hon. TOM MCCLINTOCK, Chairman, 

Hon. GRACE NAPOLITANO, Ranking Member, 

House Subcommittee on Water and Power, 

1522 Longworth House Office Building, 

Washington, DC 20515. 

Re: Support for H.R. 3176 

DEAR CHAIRMAN MCCLINTOCK AND RANKING MEMBER NAPOLITANO: 

On behalf of the Family Farm Alliance, I write to show our strong support for 

H.R. 3176, ‘‘Reauthorization of the Reclamation States Emergency Drought Relief 

Act of 1991’’. 

The Family Farm Alliance is a grassroots organization of family farmers, ranchers, irrigation districts and allied industries in 17 Western states. Many of our 

members throughout this area have benefited from the Drought Relief Act in the 

past to help drill wells, install temporary pipelines and haul water during drought 

periods. 

The Drought Relief Act provides the Bureau of Reclamation with the tools it 

needs to help states plan for and mitigate the impacts of droughts. With historic 

drought conditions on the Colorado River, and grim water challenges facing our 

members in California, Idaho, Oregon and elsewhere, the Alliance believes programs 

like this will help water managers during this time of drought. 

Thank you for your work on this legislation. If we can be of any assistance, please 

do not hesitate to call me at 541–892–6244 or dankeppen@charter.net. 

Sincerely, 

DAN KEPPEN, 

Executive Director. 

WESTERN STATES WATER COUNCIL

SAN ANTONIO, TEXAS

OCTOBER 12, 2012 

POSITION NO. 347 

POSITION OF THE WESTERN STATES WATER COUNCIL REGARDING REAUTHORIZATION OF

THE RECLAMATION STATES EMERGENCY DROUGHT RELIEF ACT

WHEREAS, the Western States Water Council is a policy advisory body representing eighteen states affiliated with the Western Governors’ Association; and 

WHEREAS, since 1976, the Council has been actively involved in national 

drought preparedness, planning and response, as well as related policy development 

and implementation; and 

WHEREAS, in 2012 severe to extreme drought conditions exist throughout much 

of the western and central parts of the U.S., covering an area amounting to about 

two-thirds of the Nation; and 

WHEREAS, drought has been, is, and will be an ongoing fact of life in the relatively arid West; and 

WHEREAS, the Reclamation States Emergency Drought Relief Act of 1991 (43 

U.S.C. 2214(c)) and subsequent reauthorization through Fiscal Year 2012 has expired; and 

WHEREAS, Title I provided the Bureau of Reclamation with authority for construction, management, and conservation measures to alleviate the adverse impacts 

of drought, including mitigation of fish and wildlife impacts, and provided Reclamation with the flexibility to meet contractual water deliveries by allowing acquisition 

of water to meet requirements under the Endangered Species Act, benefiting contractors at a time when they are financially challenged; and 

WHEREAS, additionally, Title I authorized Reclamation to participate in water 

banks established under state law, facilitate water acquisitions between willing buyers and willing sellers, acquire conserved water for use under temporary contracts, 

make facilities available for storage and conveyance of project and non-project 

water, make project and non-project water available for nonproject uses, and acquire 

water for fish and wildlife purposes on a non-reimbursable basis; and 

6 

WHEREAS, Title I also allowed Reclamation, as a ‘‘last resort,’’ to help smaller, 

financially strapped towns, counties, and tribes without the financial capability to 

deal with the impacts of drought; and 

WHEREAS, Title II authorized Reclamation to prepare or participate in the preparation of cooperative drought contingency plans for the prevention or mitigation of 

adverse effects of drought conditions; and 

WHEREAS, Title II authorized Reclamation to conduct studies to identify opportunities to conserve, augment, and make more efficient use of water supplies available to Federal Reclamation projects and Indian water resource developments in 

order to be prepared for and better respond to drought conditions; and 

WHEREAS, Title II authorized the Secretary of the Interior to study establishment of a Reclamation Drought Response Fund to be available for defraying those 

expenses which the Secretary determined necessary to implement drought plans 

prepared under the Act, and to make loans for nonstructural and minor structural 

activities for the prevention or mitigation of the adverse effects of drought; and 

WHEREAS, there is a continuing need for authority allowing Reclamation the 

flexibility to continue delivering water to meet authorized project purposes, meet environmental requirements, respect state water rights, work with all stakeholders, 

and provide leadership, innovation, and assistance; and 

WHEREAS, proposed legislative action would reauthorize the Act through 2017, 

and raise the limit on authorized appropriations. 

NOW THEREFORE BE IT RESOLVED, that the Western States Water Council 

strongly supports legislation to reauthorize the Reclamation States Emergency 

Drought Relief Act. 

Mrs. NAPOLITANO. And my last plea is that I would respectfully 

request that we wait to move any of these bills until our government is open and we can hear from the agency that is supposed 

to be here. 

Thank you, Mr. Chair. And I yield back. 

Mr. MCCLINTOCK. Thank you. Before we proceed the Chair would 

ask unanimous consent that Mr. Bishop of Utah and Mr. Amodei 

of Nevada be allowed to sit with the subcommittee and participate 

in the hearing. Hearing no objection, so ordered. 

It is customary for us to recognize any other members who wish 

to make opening statements. And the Chair is now pleased to recognize Mr. Tipton of Colorado for 5 minutes. 

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

Mr. TIPTON. Thank you, Chairman McClintock, for convening today’s hearing, and thank you for your support and engagement 

working with me on this critical issue. I would also like to thank 

Mr. Bishop, Mr. Amodei, Mrs. Lummis, Mr. Gosar, Mr. Simpson, 

Mr. Coffman, and Mr. Polis, who have all joined in this bipartisan 

effort and continue to work with me to safeguard Western water 

rights. Finally, I want to thank David Corbin and Glenn Porzak 

from Colorado and Randy Parker from Utah for making the trip to 

DC to be able to testify on behalf of the Water Rights Protection 

Act. 

Recent Federal attempts to manipulate Federal permit lease and 

land management process to circumvent long-established State 

water law and hijack privately held water rights have sounded the 

alarm for all non-Federal water users that rely on these water 

rights for their livelihood. The most recent case of the Federal Government’s overreach and infringement on private property rights, 

which we will discuss today in the hearing, involves the U.S. Forest 

Service attempt to require the transfer of privately held water 

7 

rights to the Federal Government as a permit condition on our National Forest System lands. 

There is no compensation for the transfer of these privately held 

water rights, despite the fact that many stakeholders have invested 

millions of their own capital in developing them. This Forest Service permit condition has already hurt a number of stakeholders in 

my home State of Colorado, including the Powder Horn ski area in 

Grand Junction and the Breckenridge ski area resort. Despite having been excellent stewards of the environment and their water 

rights, the Forest Service has demanded the relinquishment of 

State grant of water rights from these ski areas in order to continue their operations. 

These same nefarious tactics have been used in Utah, Nevada, 

and other Western States where agencies have required surrender 

of possession of water rights in exchange for approving the conditional use of grazing allotments. This Federal water grab has broad 

implications that have begun to extend beyond recreation and 

farming and ranching communities and are now threatening municipalities and other businesses. 

To add insult to injury, the Forest Service claims, remarkably 

with a straight face, that it is implementing these Federal agency 

permit conditions to prevent water rights from being sold off and/ 

or used improperly. However, according to the Chief Forest Service 

Officer, Tom Tidwell, comments made in this very committee, there 

have never been any cases where privately held rights have been 

used improperly. Furthermore, the language of the Forest Service’s 

water clause offers no guarantee that the Forest Service could not 

divert water to other locations or direct water for other purposes 

altogether. 

As a result of the efforts that began in October of 2011 and encompass testimony from several hearings, conversations, and with 

numerous stakeholders across Colorado and the West, close collaboration with my friends on this committee, I introduce the bipartisan Water Rights Protection Act. This legislation provides critical 

protection for water rights and holders from Federal takings by ensuring that the Federal Government agencies cannot extort private 

property rights through unevenhanded negotiations. 

The Water Rights Protection Act offers a sensible approach that 

preserves water rights and the ability to be able to develop water 

requisite to living in the arid West. This is without interfering with 

water allocations for non-Federal parties or allocations that protect 

the environment cherished by all Westerners. 

As could be expected of the West-wide legislation that seeks to 

protect all water users from the relentless efforts of the Federal 

Government to extort non-Federal water rights, this bill is work in 

progress. I look forward to continuing to work with my colleagues 

from other Western States to ensure that no State-recognized 

water right goes unprotected from the class actions this bill prohibits. 

To this end, the brief two-page bill prohibits Federal agencies 

from pilfering water rights through the use of permits, leases, and 

other land management arrangements which would otherwise have 

to pay just compensation under the Fifth Amendment of the Constitution. The bill also prohibits Federal land management agencies 

8 

from forcing water users to apply or acquire rights for the United 

States rather than for the water users themselves. 

Finally, this commonsense legislation provides certainty by upholding the longstanding Federal deference to State water law on 

which countless water users rely. The Water Rights Protection Act 

has already received endorsements of the American Farm Bureau 

Federation, the Associated Governments of Northwest Colorado, 

the California Ski Area Association, CLUB 20, the Colorado River 

Water Conservation District, Colorado Ski Country USA, the Colorado Water Congress, the National Cattlemen’s Beef Association, 

National Ski Areas Association, the Pacific Northwest Ski Area Association, and the Southwestern Water Conservation District. Mr. 

Chairman, I would like to be able to submit for the record their letters of support. 

Mr. MCCLINTOCK. Without objection. 

Mr. TIPTON. Thank you, Mr. Chairman. 

And further, we just received a letter of support that came in 

from the Family Farm Alliance for the record as well. Their testimony supports my bill and indicates that more water storage is a 

long-term solution to the drought. 

Mr. MCCLINTOCK. Also without objection. 

[The letters submitted for the record by Mr. Tipton follow:] 

LETTERS SUBMITTED FOR THE RECORD BY REPRESENTATIVE TIPTON

AMERICAN FARM BUREAU FEDERATION, 

WASHINGTON, DC 20024, 

OCTOBER 4, 2013. 

Hon. SCOTT TIPTON, 

Hon. JARED POLIS, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

DEAR REPRESENTATIVES TIPTON AND POLIS: 

On behalf of more than 6 million Farm Bureau member families across the United 

States, I commend you for your introduction of H.R. 3189, the Water Rights Protection Act. The American Farm Bureau Federation endorses the Tipton-Polis bill, and 

will work closely with you to broaden bipartisan support for this measure and to 

gain its swift consideration and approval by the House of Representatives. 

H.R. 3189 grants no new rights to any party, nor does it in any way infringe on 

existing rights of individuals, states or the Federal Government. This legislation 

simply reaffirms what has been existing law for generations and which is expressed 

in numerous places in Federal law, including the Mining Act of 1866; the 1897 Organic Act establishing the U.S. Forest Service; the Taylor Grazing Act; and the Federal Land Policy and Management Act of 1976. 

There is no provision in Federal law authorizing or permitting the Forest Service 

or the Bureau of Land Management to compel owners of lawfully acquired water 

rights to surrender those rights or to acquire them in the name of the United 

States. Thus, H.R. 3189 does nothing more than assure holders of BLM or Forest 

Service permits that their lawfully acquired rights will not be abridged and that 

Federal agencies may not unlawfully use the permit process to acquire rights they 

do not currently possess. 

We look forward to working with you on this important legislation and again commend you for your leadership in this important area. 

Sincerely, 

BOB STALLMAN, 

President. 

9 

ASSOCIATED GOVERNMENTS OF NORTHWEST COLORADO 

RESOLUTION TO SUPPORT THE WATER RIGHTS PROTECTION ACT H.R. 3189

WHEREAS, The United States Forest Service (USFS) recently attempted to condition the issuance of a use permit on the permit applicant’s transfer of privately held 

water rights to the USFS; and 

WHEREAS, Federal land management agencies are using coercion to acquire private water rights by requiring that water users seeking to operate on Federal land 

apply for water rights under the name of the United States rather than the name 

of the purchaser; and 

WHEREAS, These and related actions constitute a Federal taking of private property without just compensation, in violation of the Takings Clause of the Fifth 

Amendment of the United States Constitution; and 

WHEREAS, These actions are also in violation of long established state water 

laws; and 

WHEREAS, These actions have already had a negative impact on local ski businesses, which are important contributors to our regional economy; and 

WHEREAS, Many municipalities and agricultural operations in our region have 

water storage facilities similar to those owned by the ski resorts, and could therefore 

be subject to a similar taking; and 

WHEREAS, These and similar actions could be used against other important industries in our region, including, but not limited to, agriculture and energy development; and 

WHEREAS, The majority of Colorado’s absolute and conditional water rights 

originate on federally controlled land, and could be subject to a similar taking at 

any point in the future; and 

WHEREAS, The Water Rights Protection Act, H.R. 3189, would protect communities, businesses, family farms, and other stakeholders in northwest Colorado that 

rely on privately held water rights from having these property rights taken by any 

agency of the Federal Government, 

BE IT THEREFORE RESOLVED, that the Associated Governments of Northwest 

Colorado (AGNC) fully support H.R. 3189, the Water Rights Protection Act; and 

BE IT FURTHER RESOLVED, that the AGNC will furnish a letter to any and 

all interested parties, attesting to our support of this Act. 

CALIFORNIA SKI INDUSTRY ASSOCIATION, 

MILL VALLEY, CA, 

OCTOBER 4, 2013. 

Hon. DOC HASTINGS, Chairman, 

House Natural Resources Committee, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

Re: Support for H.R. 3189 

DEAR CHAIRMAN HASTINGS: 

On behalf of the members and directors of the California Ski Industry Association 

I am writing to add our support to H.R. 3189, the Water Rights Protection Act. 

This narrowly focused bill is designed to resolve an unfair regulation requiring 

Forest Service permittees to cede, without compensation, their water rights to the 

agency. Nineteen of California’s twenty-six ski areas operate on Forest Service 

lands. We have a long history of working with the agency and will continue to do 

so in the future. However, our winter sports facilities on Federal lands are strongly 

opposed to the clauses that would require California permittees to cede their valuable water rights to the agency without compensation, Such clauses represent a taking and carry far-reaching legal and economic implications, not only for our industry 

but also for all other permittees operating on Forest Service lands. 

A recent study by San Francisco State University reported that California’s winter sports resorts generate $1.3 billion in economic activity and over 16,000 Jobs in 

our mountain communities. Our resorts have millions of dollars invested in their 

water rights. In many cases the source of these rights are located outside of the permit boundaries. 

10 

We appreciate your scheduling a hearing on H.R. 3189 and thank you and the 

sponsors of this important legislation. 

Sincerely, 

BOB ROBERTS, 

President & CEO. 

CLUB 20, 

GRAND JUNCTION, CO 81502, 

OCTOBER 8, 2013. 

Hon. SCOTT TIPTON, 

House Subcommittee on Water and Power, 

218 Cannon House Office Building, 

Washington, DC 20515. 

Re: CLUB 20 strongly urges Congressional support and passage of H.R. 3189, 

known as the ‘‘Water Rights Protection Act’’ 

DEAR CONGRESSMAN TIPTON: 

CLUB 20 is a 60-year-old coalition of businesses, individuals and local governments with members representing 22 counties west of the Continental Divide in 

Colorado. Our members have been coming together over the past six decades to discuss matters of common concern to Western Colorado communities and citizens. 

Water has often been a focal point for CLUB 20 members as there are far reaching 

implications to many of the industries, communities and residents on the West 

Slope regarding privately held water rights in the region. 

Water rights are considered private property under Colorado water law and are 

managed under a strict system that has served the state over time. For many years, 

CLUB 20 policy has opposed, ‘‘. . . any Federal requirement that permittees assign 

water rights to the United States in order to obtain, renew or modify Federal permits.’’ CLUB 20 understands that the McCarran Amendment requires the Federal 

Government, when requested, to adjudicate any water rights it requires under the 

substantive and procedural elements of state water law within the state of the desired rights. 

Our members have openly opposed and. continue to oppose the efforts of the U.S. 

Forest Service (USFS) to unilaterally require ski areas or agriculture producers to 

turn over their privately held water rights to the USFS as a condition of obtaining, 

modifying or renewing a permit to conduct ski area activities or maintain infrastructures to convey water on USFS lands. We further oppose any such provision or ruling that may apply to other private water rights with regard to, natural resource 

development interests or other domestic water interests. 

The explanation offered by the USFS for the ‘‘taking’’ of these privately held 

water rights, often developed at great expense to the owner, is that they wish to 

maintain the designated use of the water for the permit. We find that explanation 

disingenuous for the following reasons: 

1. Requiring that the USFS be named the owner of valid, existing water rights 

is taking a private property right without compensation and appears to be a 

violation of the Fifth Amendment to the U.S. Constitution. 

2. It would appear that Federal ownership of these water rights could be used 

to disallow future use of the area as a ski area or other designated enterprise 

because the agency that holds title to the water rights could deny permits 

based on their withholding of those same water rights. 

3. Once promulgated by the USFS regarding ski area and agriculture water 

rights, similar decisions could be made regarding grazing rights, mining 

rights, milling rights, energy rights even municipal water rights. 

4. This effort by the Federal Government seeks to undermine states’ rights with 

regard to water management, which our members find unacceptable. 

Ski area and agriculture operators invest significant amounts of capital to develop 

their operations; in order to attract the investment capital necessary, they must 

show that they have adequate ability to construct and operate the facility. Without 

demonstrating that they have adequate water rights, attracting capital will be difficult if not impossible. Further, it has been shown time after time that Federal regulations can be, and are, routinely modified for one reason or another creating uncertainty for developers of all sorts on public lands. Once held in the name of the 

USFS, there is no guarantee that these water rights won’t be redirected, withheld 

11 

or otherwise made unavailable to those who made significant investments in developing those rights. 

We support the protections inherent in H.R. 3186 and urge passage of this or 

similar legislation which accomplishes the same purpose. Thank you for addressing 

this critical issue through the legislative process; we look forward to working with 

you to see this bill through the process. 

Sincerely, 

BONNIE PETERSEN, 

Executive Director. 

COLORADO RIVER DISTRICT, 

GLENWOOD SPRINGS, CO 81602, 

OCTOBER 9, 2013. 

Hon. SCOTT TIPTON, 

House Subcommittee on Water and Power, 

218 Cannon House Office Building, 

Washington, DC 20515. 

Re: H.R. 3189 

DEAR CONGRESSMAN TIPTON: 

The Colorado River Water Conservation District sincerely appreciates your leadership in Colorado and Western water matters. H.R. 3189 is just one more example. 

The Colorado River District will recommend that its Board support H.R. 3189 with 

the consensus amendments developed by your staff, the national ski areas and the 

River District. 

With the clarifying amendments, H.R. 3189 provides responsible side boards to 

agency actions when permitting allowable activities and uses on Federal lands. It 

prohibits the transfer of ownership of privately held water rights in exchange for 

required permits. We are also pleased that your staff will prepare a sponsor’s statement to confirm that the bill will not change existing law that allows reasonable 

permit conditions that can protect both the natural environment and present and 

future downstream water users dependent on the forest for critical water supplies. 

I want to express my genuine appreciation for your and your staff’s willingness 

to work with us on language that accomplishes our mutual goals of protecting private property interests in western water while maintaining the authority to condition permits to ensure responsible exercise of those rights. 

Sincerely, 

R. ERIC KUHN, 

General Manager. 

COLORADO SKI COUNTRY USA, 

DENVER, CO, 

OCTOBER 4, 2013. 

Hon. DOC HASTINGS, Chairman, 

House Natural Resources Committee, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

DEAR CHAIRMAN HASTINGS: 

I am writing on behalf of Colorado Ski Country USA (CSCUSA), the industry association and global voice of skiing and snowboarding in Colorado, in support of 

H.R. 3189, the Water Rights Protection Act. CSCUSA represents 20 ski areas in 

Colorado that operate on National Forest System lands under a special use permit 

from the U.S. Forest Service. These public land resorts hosted over 6.3 million skier 

visits in Colorado in the 2012/13 ski season alone, and skiing and snowboarding constitute a $3.0 billion annual economic impact to our state. 

CSCUSA supports H.R. 3189 because it would prohibit the U.S. Forest Service 

from requiring our resorts to transfer valuable water rights to the Forest Service 

as a condition of receiving a permit, or to apply for water rights in the name of the 

United States, without compensation. 

12 

While the Forest Service insists that such actions would be intended only to maintain the long-run viability of the resorts as ski and snowboard areas, requiring resorts to transfer the water rights they need to operate so as to prevent their sale 

to a third party is a solution in search of a problem. Moreover, required transfers 

of water rights that are critical to ski area operations would politicize their use, 

with each change in administration changing priorities for water use. 

Furthermore, requiring transfer of valuable water rights to the NFS as a condition of receiving a permit raises serious Fifth Amendment concerns. Our member 

resorts’ water rights were acquired and developed at great expense pursuant to Colorado law, and in some cases predate the Forest Service itself. If the NFS wants 

to secure its own water rights, it should buy them on Colorado’s well-regulated 

water market like everyone else. 

Thank you for scheduling a hearing on H.R. 3189 and for your leadership on this 

issue. It means a great deal to CSCUSA and our member ski resorts operating 

across Colorado on NFS lands. 

Sincerely, 

MELANIE MILLS

President and CEO. 

COLORADO WATER CONGRESS, 

DENVER, CO 80203, 

OCTOBER 9, 2013. 

Hon. SCOTT TIPTON, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

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

DEAR CONGRESSMAN TIPTON: 

The Colorado Water Congress is pleased to see the introduction of and hearing 

for Water Rights Protection Act (WRPA), H.R. 3189. The bipartisan bill was introduced last week. This legislation, with the consensus amendments developed by 

your office, the national ski areas and Colorado water users would prohibit the conditioning of any permit, lease, or other use agreement on the transfer or surrender 

of any water right to the United States by the Secretaries of Interior or Agriculture. 

The issue is of particular importance to Colorado’s ski areas that are located in 

national forests. The U.S. Forest Service, through a 2012 Interim Directive recently 

attempted to require the transfer of privately owned water rights on Federal lands 

to the Federal Government as a condition of issuing standard land use permits. 

The National Ski Areas Association sued the Forest Service alleging that the directive amounts to a taking of private property rights without due compensation 

and asked for a declaration that the Forest Service cannot condition a ski area special use permit on the assignment or severance of water rights. In December 2012, 

the Federal district court entered an injunction prohibiting the Forest Service from 

enforcing the directive. The court found that the Forest Service violated Federal procedural laws in adopting the directive. 

This matter is of importance to the Colorado legislature that as recently as late 

August 2013 continues to investigate Forest Service activities in this regard. It is 

unfortunate that Colorado water users have to had to pursue both litigation and legislation to protect our water rights from takings by our Federal Government. 

We hope that passage of H.R. 3189 will put us on the right path toward a permanent resolution. We urge the House to pass this legislation without delay. 

The Colorado Water Congress supports H.R. 3189. Thank you for sponsoring the 

bill. 

Sincerely, 

DOUGLAS KEMPER, 

Executive Director. 

13 

FAMILY FARM ALLIANCE, 

KLAMATH FALLS, OR 97601, 

OCTOBER 8, 2013. 

Hon. SCOTT TIPTON, 

House Subcommittee on Water and Power, 

218 Cannon House Office Building, 

Washington, DC 20515. 

Re: Support for ‘‘Water Rights Protection Act’’ (H.R. 3189) 

DEAR CONGRESSMAN TIPTON: 

On behalf of the Family Farm Alliance, this letter expresses our formal support 

for your ‘‘Water Rights Protection Act’’ (H.R. 3189). This important legislation 

would prohibit the conditioning of any Federal permit, lease, or other use agreement 

on the transfer, relinquishment, or other impairment of any water right to the 

United States by the Secretaries of the Interior and Agriculture. 

The Alliance is a grassroots organization of family farmers, ranchers, irrigation 

districts and allied industries in 16 Western states. The Alliance is focused on one 

mission: To ensure the availability of reliable, affordable irrigation water supplies 

to Western farmers and ranchers. The Alliance has long advocated that solutions 

to conflicts over the allocation and use of water resources must begin with recognition of the traditional deference to state water allocation systems. Federal agencies 

must recognize and respect state-based water rights and develop their management 

decisions according to state law and abide by state decrees defining both Federal 

and non-Federal rights. Federal agencies need to work within the framework of existing prior appropriation systems instead of attempting to fashion solutions which 

circumvent current water rights allocation and administration schemes. 

Unfortunately, in recent years, some agencies within the Federal Government 

have repeatedly demonstrated they will not abide by this philosophy. These efforts 

constitute a Federal overreach and a violation of private property rights. 

For example, the U.S. Forest Service (USFS) has attempted to implement a permit condition that requires the transfer of privately held water rights to the Federal 

Government as a permit condition on National Forest System lands. There is no 

compensation for the transfer of these privately held rights despite the fact that 

many stakeholders have invested their own capital in developing the rights. Additionally, Federal land management agencies are leveraging Western water users in 

an effort to acquire additional water supplies for the Federal Government by requiring water users to apply for their rights under state law in the name of the United 

States rather than for themselves. USFS continues to take private water rights hostage through their permit conditions, despite objections from elected officials, business owners, private property advocates and a U.S. District Court ruling. 

Our farmers and ranchers rely on their vested water rights to secure operating 

loans, as well as irrigate crops and water livestock. Federal agencies should not be 

able to leverage those water rights against farming and ranching families who have 

long depended upon Federal permits and leases to support actions like grazing. 

The Water Rights Protection Act would protect communities, businesses, recreation opportunities, farmers and ranchers as well as other individuals that rely on 

privately held water rights for their livelihood from Federal takings. It would do so 

by prohibiting Federal agencies from extorting water rights through the use of permits, leases, and other land management arrangements, for which it would otherwise have to pay just compensation under the Fifth Amendment of the Constitution. 

The Water Rights Protection Act protects privately held water rights, prohibits Federal takings, and upholds state water law by: 

• Prohibiting agencies from implementing a permit condition that requires the 

transfer of privately held water rights to the Federal Government in order to 

receive or renew a permit for the use of land; 

• Prohibiting the Secretary of the Interior and the Secretary of Agriculture 

from requiring water users to acquire rights for the United States rather than 

for the water user themselves; 

• Upholds longstanding Federal deference to state water law; 

• Has no cost to the American taxpayer. 

Some Family Farm Alliance members in Arizona and Colorado have expressed 

some concerns with language contained in the original bill. We understand that they 

are working with you and Rep. Gosar to modify the language so that changes can 

be easily made by the Water and Power Subcommittee. We support H.R. 3189 with 

those changes. 

14 

Thank you for this opportunity to provide support for your bill, which is very important to the family farmers and ranchers of our membership. If you have any 

questions about this letter, I encourage you or your staff to contact me at (541)– 

892–6244. 

Sincerely, 

DAN KEPPEN, 

Executive Director. 

NATIONAL CATTLEMEN’S BEEF ASSOCIATION, 

WASHINGTON, DC 20004, 

OCTOBER 3, 2013. 

Hon. DOC HASTINGS, Chairman, 

Hon. PETER DEFAZIO, Ranking Member, 

House Natural Resources Committee, 

Washington, DC 20515. 

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

DEAR CHAIRMAN HASTINGS AND RANKING MEMBER DEFAZIO: 

The Public Lands Council (PLC) and the National Cattlemen’s Beef Association 

(NCBA) strongly support the Water Rights Protection Act (WRPA) (H.R. 3189). PLC 

is the only national organization dedicated solely to representing the roughly 22,000 

ranchers who operate on Federal lands, some of which are U.S. Forest Service 

(USFS) lands. NCBA is the beef industry’s largest and oldest national marketing 

and trade association, representing American cattlemen and women who provide 

much of the nation’s supply of food and own or manage a large portion of America’s 

private property. Many of our members also hold private water rights on Federal 

lands, which serve as an integral part of their operations; thus, these water rights 

keep our members in business and rural communities thriving. However, landowners face an unprecedented threat to the future of their water rights on lands 

managed by the USFS. 

The USFS has been notorious for violating private property rights, as they have 

recently attempted to require the transfer of privately owned water rights to the 

Federal Government. The USFS has not provided adequate compensation as required by Article V of the Constitution; instead, they have attempted to acquire 

these rights in exchange for special use permits, likely in violation of a recent Supreme Court ruling in Koontz. Furthermore, the USFS has repeatedly ignored established state water laws in order to perform these takes, which amounts to a vast 

overreach by the Federal Government. 

H.R. 3189, introduced by Congressmen: Scott Tipton (R-Colo.), Mark Amodei (RNev.), Rob Bishop (R-Utah), Tom McClintock (R-Calif.), and Jared Polis (D-Colo.) 

comes as a means to combat the recent directive that allows the USFS to execute 

the seizure of these water rights without just compensation. The language in the 

directive is applicable to ski areas specifically; however, this issue is a threat to all 

water users, including ranchers, as they depend on these rights to keep their business viable. 

This legislation would prohibit the Secretary of the Interior and the Secretary of 

Agriculture from, requiring the transfer of water rights without adequate compensation. Additionally, the bill supports long-established state water laws, clarifying that 

the Federal Government does not have jurisdiction. 

We strongly encourage the Natural Resource Committee to support this important 

legislation. We thank you for your attention to this crucial issue, and for supporting 

our members as they continue to be an essential part of rural communities and 

stewards of our public lands. 

Sincerely, 

SCOTT GEORGE, 

NCBA President. 

BRICE LEE, 

PLC President. 

15 

NATIONAL SKI AREAS ASSOCIATION, 

LAKEWOOD, CO, 

OCTOBER 4, 2013. 

Hon. DOC HASTINGS, Chairman, 

House Natural Resources Committee, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

Re: Support for H.R. 3189 

DEAR CHAIRMAN HASTINGS: 

I am writing on behalf of the National Ski Areas Association (NSAA) in support 

of H.R. 3189, the Water Rights Protection Act. NSAA represents 121 ski areas in 

the U.S. that operate on National Forest System lands under a special use permit 

from the U.S. Forest Service. These public land resorts accommodate the majority 

of skier visits in the U.S. and are located in the states of Arizona, California, Colorado, Idaho, Montana, Nevada, New Hampshire, New Mexico, Oregon, Utah, 

Vermont, Washington and Wyoming. The ski industry generates $12.2 billion in economic activity annually and is a major employer in rural economies. NSAA would 

like to thank the lead sponsors of this bill, Representatives Tipton, Polis, Amodei 

and McClintock, for their leadership on this critical issue for ski areas. 

NSAA supports H.R. 3189 because it would prohibit the Forest Service from 

issuing permit clauses that require ski areas to transfer ownership of valuable 

water rights to the United States, or apply for water rights in the name of the 

United States, without compensation. Water is crucial to ski area operations. Ski 

areas collectively hold water rights worth over a hundred million dollars. We developed these rights through our own effort and expense, and we have no intention of 

surrendering ownership of these water rights to the U.S. without compensation. 

This bill would prevent the Federal Government from making an end run around 

state law by merely taking water rights that it does not own through its permitting 

authority. It would not only protect ski area water rights—it would protect any 

water rights owners that operate on Federal land. 

In closing, we would like to thank you for scheduling a hearing on H.R. 3189 and 

for your leadership on this issue. It means a great deal to NSAA and all ski areas 

across the country operating on NFS lands. 

Sincerely, 

MICHAEL BERRY, 

President. 

PACIFIC NORTHWEST SKI AREAS ASSOCIATION, 

LA CONNER, WA 98257, 

SEPTEMBER 26, 2013. 

Hon. DOC HASTINGS, Chairman, 

House Natural Resources Committee, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

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

DEAR CHAIRMAN HASTINGS: 

I am writing on behalf of ski areas in the Pacific Northwest operating on National 

Forest System lands. PNSAA represents 34 ski resorts in Washington, Oregon, Alaska, Idaho, Montana and California. Of the 34 members 30 operate on public land. 

PNSAA supports H.R. 3189/Water Rights Protection Act that would prohibit the 

Forest Service from issuing permit clauses that require ski areas to transfer ownership of valuable water rights to the United States without compensation. Water is 

crucial to ski area operations. Ski areas collectively hold water rights worth over 

a hundred million dollars. We developed these rights through our own effort and 

expense, and we have no intention of surrendering ownership of these water rights 

to the U.S. without compensation. 

16 

We would like to thank you for your leadership on protecting ski area water 

rights. It means a great deal to PNSAA and all ski areas across the country operating on NFS lands. 

Sincerely, 

JOHN A. GIFFORD, 

President. 

THE SOUTHWESTERN WATER CONSERVATION DISTRICT, 

DURANGO, CO 81301, 

OCTOBER 10, 2013. 

Hon. SCOTT TIPTON, 

House Subcommittee on Water and Power, 

218 Cannon House Office Building, 

Washington, DC 20515. 

DEAR CONGRESSMAN TIPTON: 

On behalf of the Southwestern Water Conservation District (‘‘District’’), we thank 

you for sponsoring the Water Rights Protection Act, H.R. 3189. This vital bipartisan 

bill would prohibit the conditioning of any permit, lease, or other use agreement on 

the transfer, relinquishment, or other impairment of any water right to the United 

States by the Secretaries of the Interior or Agriculture. 

The Southwestern Water Conservation District (SWCD) was established by the 

Colorado legislature to conserve and protect the waters of the San Juan and Dolores 

Rivers and their tributaries. Therefore, we see it as our statutory obligation to safeguard privately held water rights in the region and uphold the primacy of state 

water law, as H.R. 3189 would do. 

The U.S. Forest Service has recently attempted to require the transfer of privately 

held water rights to the Federal Government as a condition of acquiring a National 

Forest System lands permit. The District considers such requirements tantamount 

to a Federal taking, and applauds H.R. 3189’s prohibition of such conditions, 

The District encourages the House of Representatives to pass this legislation 

without delay. 

We thank you for introducing the Water Rights Protection Act and for your leadership on this issue of great consequence. 

Sincerely, 

BRUCE WHITEHEAD, 

Executive Director. 

Mr. TIPTON. My hope is that today’s hearing further strengthens 

the bipartisan efforts to be able to protect local water rights from 

the Federal Government and their overreach and takings. I appreciate the opportunity to discuss this important legislation, and I, 

along with the Ranking Member, do look forward to the Federal 

Government trying to justify taking Western water rights. 

With that, Mr. Chairman, I yield back. 

Mr. MCCLINTOCK. Thank you. The Chair is now pleased to recognize Mr. DeFazio for 5 minutes. 

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

Mr. DEFAZIO. Thank you, Mr. Chairman. Mr. Chairman, thanks 

for the hearing today on 3176. I appreciated being put on the agenda. I want to thank the Western States Water Council for coming 

to DC to testify, especially at this odd time of government shutdown. 

It does two simple things. It reauthorizes the 1991 Reclamation 

States Emergency Act for an additional 5 years, until 2018. It gives 

17 

BuRec the flexibility to expedite water transfers between projects, 

move nonproject water on Federal facilities, construct temporary 

structures and wells during times of drought. These are not longterm solutions, but they are sometimes required to mitigate these 

episodic events of drought. 

It also authorizes Reclamation to assist in drought contingency 

planning with all 50 States, tribes, and territories. The Drought 

Relief Act is by no means a solution, a total solution, but I believe 

it is an authority that is vital to BuRec when they are turned to 

as a last resort in times of emergency. But the second authority 

here, drought contingency planning, could also go to some of the 

issues raised earlier about storage and other things. 

Second, we are hearing 3189. Obviously, whenever you begin to 

discuss water rights and water law in the West it is incredibly 

emotional, it is something that is unbelievably complicated within 

and across State borders and not easily understood. I don’t know 

what the Forest Service was attempting to do in its first directive, 

which I believe was overly broad and didn’t seem to distinguish between water rights which might be actual, existing within the 

leasehold or the ski area itself that pertained to the Federal land 

or those which were acquired from offsite by the operator. It was 

thrown out by the courts mostly on procedural grounds, but I think 

in the interim they did hear concerns, they were in the process of 

developing a new directive, which unfortunately we won’t be able 

to hear about today, and it was supposed to come out next month 

for a period of public comment, and that probably will be allowed. 

I look forward to an opportunity to have that discussion. I am 

concerned that the legislation as drafted would seem to go far beyond protecting the rights of the ski operators who are probably 

the object of this unknown new directive, but we don’t know that 

exactly either, but it applies to all actions requiring a permit on 

Federal lands. You know, what does that mean for grazing? I don’t 

quite understand the full implications of that. What would it mean 

for oil and gas development? Fracking takes a lot of water. There 

are some very serious issues there. There is fracking, a tremendous 

amount of fracking on private land, but there are also applications 

pending in areas of Federal land. 

So I think it could go very, very far beyond and have unintended 

consequences given the way it is broadly written. I appreciate that 

the author said it was a work in progress, and I think there are 

legitimate rights to be protected here and want to work to protect 

those, but I don’t want to overreach either. So hopefully we won’t 

move forward until we have an opportunity with a restored government to have the Forest Service come in and explain its new directive and see if that doesn’t do what we think it needs to do, then 

take more targeted action. 

Thank you, Mr. Chairman. 

Mr. MCCLINTOCK. Thank you. 

[The prepared statement of Mr. DeFazio follows:] 

PREPARED STATEMENT OF RANKING MEMBER PETER DEFAZIO, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OREGON

Good afternoon and thank you for including H.R. 3176 as part of today’s agenda. 

I especially would like to thank the Western States Water Council for coming to DC 

to testify on this legislation, especially in light of the government shutdown. 

18 

My legislation reauthorizes the 1991 Reclamation States Emergency Act for an 

additional 5 years until 2018. This provides the Bureau Reclamation with the needed flexibility to expedite water transfers, move non-project water on Federal facilities, and construct temporary structures and wells during times of drought. This Act 

also authorizes Reclamation to assist in drought contingency planning with all 50 

States, tribes, and territories. The Drought Relief Act is by no means a silver bullet 

to drought. This is the authority Reclamation turns to as a last resort during times 

of emergency. 

At the time the Act was originally authorized in 1992, California was experiencing 

its sixth consecutive year of drought. Unfortunately, we are facing the same dry conditions as before, except that our droughts are more prolonged and the demands on 

the resource have only increased. In Oregon, nearly $10 million dollars was used 

for activities in the Klamath Region in 2010. Predictions for next year’s water year 

in Klamath Basin and across the west are bleak, yet the authorization for this program has already expired. H.R. 3176 simply provides Reclamation with one more 

tool to help our communities during times of drought. 

I come from a region where water issues are complicated and complex. Water can 

also be expensive. H.R. 3189, legislation introduced by Rep. Tipton, touches at the 

heart of these issues. Ski Areas are concerned about the Forest Service’s Directive 

to transfer their water rights to the Federal Government. While at the same time, 

the Forest Service is concerned about their ability to manage the land if the ski resorts were to sell their rights. 

A recent court ruling found that the Forest Service did not follow the proper administrative procedures prior to issuing the directive, and threw out the 2012 Directive. The Forest Service is in the process of revising its directives and receiving comments, which prior to the shutdown, would have been released next month. The 

public would then have 60 days prior to the release to comment on the new directives. This is an issue that seems resolvable without the need for legislation. 

Yet the proposed legislative solution goes above and beyond the disagreement between the Forest Service and the Ski Resorts, and overreaches to apply to all actions that require a permit on Federal lands. The consequences of this legislation 

on grazing practices and oil and gas development are unknown. And due to 

Congress’s own inaction to reopen the Federal Government, the Administration is 

not here to testify on the impacts of this legislation. 

I know there are unanswered questions for both bills, including for the Drought 

Relief Act. We have requested this information from the Department and were not 

able to get prior to the shutdown. As a result, we do not have all the information 

available to properly consider these bills and will be submitting questions for the 

record. 

It is our responsibility to ensure that legislation receives the proper vetting to ensure that they are of the best interest of the public. Part of the process is feedback 

from our Federal partners. We cannot do this when nearly 60,000 Department of 

Interior employees remain furloughed because of the shutdown. 

We must stop fiddling while Rome burns. The answers we need for this hearing 

demand that the government be reopened. 

Mr. MCCLINTOCK. The Chair is now pleased to recognize Mr. 

Gosar for 5 minutes. 

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

Dr. GOSAR. Thank you, Chairman McClintock, for holding today’s 

hearing, and to my friend, Congressman Scott Tipton, for introducing this important legislation. 

In the West we have a saying: Whiskey is for drinking, water is 

for fighting over. And nowhere is that more true than the State of 

Arizona. In Arizona water means life. The majority of my State 

would be an underpopulated desert without the forward thinking 

of leaders when it comes to water policy. Those leaders recognize 

that Arizona faces constraints on its water supply more severe 

than almost any other State in the Nation and took careful, 

proactive precautions to protect and manage our water resources. 

19 

In fact, before Arizona even became a State, the territorial legislature adopted the 1864 Howell Code that established our prior appropriations doctrine over surface water rights. 

The pursuit of water enabled a small State of ranchers, miners, 

and farmers to take off economically and become the beautiful, diverse place to live in today. And the century-long battles over our 

natural resources, in particular water rights, had an integral role 

in formulating our State’s political landscape. Today Arizona is a 

very independent State politically shaped by people of all walks of 

life who have valued States rights and self-determination. That is 

why this bill we are considering today is so important. 

Arizona has one of the most, if not the most, intricate State 

water laws in our country. The right to water is a carefully guarded property right held at a higher value than a person’s home or 

material possessions. So the notion that the government can come 

in and hold permits, leases, and rights of way hostage in efforts to 

get a private entity to forfeit its private property rights, its water 

right, is downright offensive, and that is exactly what the United 

States Forest Service is currently doing. 

Under a 2011 directive pertaining to ski area special use permits, 

the Forest Service is trying to require an applicant for a permit to 

relinquish privately held water rights to the Federal Government 

as a permit condition. There is no compensation for this transfer 

of rights even though our constituents or their descendents have 

spent major portions of their lives and their money to develop these 

rights. This is an egregious policy that must be stopped and is a 

violation of our State sovereignty and individual property rights. 

In rural Arizona our economy is heavily reliant on activities on 

Federal lands, including the northern Arizona ski area, Arizona 

Snowbowl, our mines, our ranches, and our agricultural production. 

These industries are the bedrock of Arizona’s five C’s and our economic viability. And the Forest Service’s policies could bring all of 

these important economic drivers to a halt. 

My friend Congressman Tipton’s legislation, the Water Rights 

Protection Act, shields our constituents from this kind of Federal 

regulatory water grab and upholds our State’s sovereignty to protect its water interests. I strongly support these goals. In fact, I see 

fighting for these goals as my obligation as one of Arizona’s rural 

representatives to the Federal Government. 

I look forward to working with some of the experts on the ground 

in Arizona and with Scott to ensure that no State-recognized water 

rights go unprotected from the class of actions this bill prohibits. 

Ultimately I look forward to helping the bill’s sponsors quickly advance this bipartisan legislation. Its enactment is critical to reasserting State sovereignty over water rights and the economic viability of our Western communities. 

I look forward to hearing from the witnesses, and I yield back 

the balance of my time. Thank you. 

Mr. MCCLINTOCK. Thank you. The Chair is now pleased to recognize the gentleman from California, Mr. Costa, for 5 minutes. 

STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. COSTA. Thank you very much, Mr. Chairman. 

20 

For the purposes of my opening comments I will direct them to 

the DeFazio bill as it relates to drought relief. And I think it is important that the subcommittee at the time consider the benefits 

that have accrued over the years when we have had to deal with 

States, particularly Western States, that have dealt with the challenges of drought conditions that we know are cyclical as we look 

at over 100 years of recorded weather history. 

And the fact is that the drought relief assistance from the Federal level has made a difference. I am looking at a series of printouts that indicate from 2007 to 2012, from Arizona to Utah, to 

States that have benefited from drought relief assistance by the 

Federal Government. I think it is important that we continue to 

provide support. Obviously the States have their own sovereignty 

as it relates to many of the water issues that are in their jurisdiction. 

However, the fact is that we know that where water flows food 

grows, and it is an absolute essential key resource as it relates to 

our urban populations as well. So there is a hand-in-glove relationship between our water resources in America, and nowhere is that 

felt greater than in Western States because of the arid conditions, 

of course. 

The fact is that most of our infrastructure that has been developed for water in the West is aging. It varies in length, but some 

of it is over 100 years old. If it were not for the development of that 

water resource when the West was being developed, we would not 

have the ability to provide the multiple, various economies that 

exist in our Western States. 

I am very worried that we are treating water as we are treating 

many of the other issues around here; i.e., a political football. We 

can have differences, but the fact of the matter is we must invest 

in our water infrastructure. We know that the climate is changing. 

I don’t care whether folks want to just discern that man has a limited role in that, I think that is subject to debate. But the fact is 

the weather has been changing for millions and millions of years. 

You just look at the tree ring studies done in the sequoias of the 

Sierra Nevada Mountains, where over the last thousand years, because these trees are as old as 2,000 years old, and older in some 

cases, where they can determine cycles that have occurred between 

the narrowness of the rings of the trees between wet cycles and dry 

cycles. 

So the fact is weather is changing, it will always continue to 

change. And if in fact the weather patterns continue to change, our 

water systems may be inadequate to deal with our future needs. 

They are inadequate to deal with California’s current needs. We 

have a water system that was designed for 20 million people. 

Today we have 38 million people. By the year 2030 we will have 

50 million people. And the fact is we are not making the same kind 

of commonsense solutions that our parents and our grandparents 

did generations ago. 

So obviously I will be speaking in support when we get to the 

DeFazio measure on how we can continue to support efforts by 

States that have benefited from this drought relief assistance, and 

I look forward to continue working with all of my colleagues—all 

21 

of my colleagues—on a bipartisan basis, because that is the only 

way—only way—we ever get anything done in this place. 

Thank you very much, Mr. Chairman. 

Mr. MCCLINTOCK. The Chair is pleased to recognize Mr. Amodei 

for an opening statement. 

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

Mr. AMODEI. Thank you, Mr. Chairman. And I want to thank my 

colleague from Colorado for introducing this measure. 

In the short time that I have been here this has come up several 

times, and I think it is important to note, as it always is, what the 

bill actually says. It talks about requiring transfer. Nothing in the 

legislation says please ignore water issues when you are making 

permitting decisions. They are legitimate things to be considered as 

you make any land use permit. 

The part that necessitates this bill in my experience is this: On 

multiple occasions you have had Federal land management officials 

not consult the State water administrator, State water engineer, 

whatever they are called in your particular district. They have 

usurped that authority completely and said, I have groundwater 

concerns and therefore I am conditioning your permit or I am denying it without ever talking to the individual who under State law 

has exclusive authority to adjudicate those matters. 

That is an important first part because those matters, if you 

don’t like the way they adjudicate them, you have administrative 

processes, you have judicial processes, you have due process for addressing that. In a Federal permitting context if you usurp that 

State engineer’s authority without ever even really talking to him, 

then what you have left is almost nothing. And so it is not ignore 

groundwater issues, it is please go to the person who has jurisdiction. 

And then we move to the second part, which the bill does say on 

multiple occasions we are in violation of the law in my State. And 

by the way, it is not much different from the Ranking Member, all 

Western States, it is a large amount of surface area that the Federal Government owns. That is the fact. No sense lamenting it or 

whatever. We can talk about what to do about that. But the fact 

is you own a large amount. And really you need to own the water 

rights, too, to have control over it, when you control the surface 

area? 

So when you tell somebody in the agricultural industry when 

there is a State law in my State that says you cannot hold stock 

water groundwater rights unless you own stock, and the Forest 

Service says we don’t own stock but we want to condition a permit 

on you issuing your stock water permit to the Forest Service, it is 

a condition for a Federal permit which is in black letter law violation of State law. 

And when you say, what are you doing? Well, we kind of think 

we have authority under NEPA to do that. Could you please point 

that out? We just think we do for supposition for this connection, 

for that connection. And the idea is not to bash those folks, but it 

is to say you really don’t have the authority to do that. What an 

22 

ultimate act of hypocrisy to condition a Federal permit on violation 

of a State water law for which you really don’t have that. 

I want to make two more points, though, because if it is really 

about the resource, in my State the Federal Government can hold 

water rights, just comply with State law and you can be issued. So 

it is not that you can’t have them, but this thing where you skip 

the State engineer and do your own basically no due process process to rule on State water law or you require an absolute violation 

of State law for a Federal permit is not good business. And I join 

with my colleagues both from California, that is not good business 

regardless of what side of the fence you are on. 

So I want to give a shout-out to my colleague from Colorado, and 

the drafting of this is actually very, very elegant in terms of, my 

god, it is a page long and just says, hey, play by the State rules 

on water issues. If the BLM or the Forest Service have a concern 

about groundwater then go talk to the State engineer and whatever 

he or she says is what everybody lives with. But do not ignore the 

State engineer and bring those duties onto yourself. 

So with that, Mr. Chairman, I appreciate the opportunity to participate today and the courtesies the subcommittee has extended 

me, and I yield my remaining time to my colleague from Utah. 

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF UTAH 

Mr. BISHOP. Thank you, Mr. Amodei. I appreciate that. 

I want to say two things very quickly. Number one is, I appreciate the committee holding a hearing on these bills, very good 

bills, and I am cosponsor of one of them, and I appreciate the leadership of that. 

Number two, I want to specifically recognize and welcome Randy 

Parker from the State of Utah, Utah Farm Bureau Association, 

here as one of the witnesses. He understands the significance of 

water as it relates to agriculture and ranching in our areas and 

how important it is. Obviously it cannot be done without water 

rights. 

I mean, there is a cliche we have in Utah that it would be far 

better to be head of the ditch than it would be head of the church. 

That is one the issues that we have at hand here. And I appreciate 

his comments on this. He will explain why it is so significant to 

maintain water rights that have traditionally been there as these 

people have entered into these operations and guarantee that they 

are maintained. 

And so I appreciate his willingness to be here. I appreciate your 

willingness to indulge me as part of this committee. I came in late, 

so I will make up for that by leaving early because I have another 

committee right now. And this does not give Mr. Costa and others, 

and Mrs. Napolitano, a chance to abuse me if I leave. So I think 

that is probably the best thing I could possibly do. But I do want 

to thank you for inviting Mr. Parker and inviting me to be part of 

this committee. 

Mr. MCCLINTOCK. Well, here is your hat, what is your hurry? Mr. 

Bishop actually is entitled to another 41⁄2 minutes on his own. 

Mr. BISHOP. To which I will yield back for everything else. 

23 

Mr. MCCLINTOCK. Well, the committee always appreciates a dramatic exit. 

Just for the record, the Chair wants to allay the concerns that 

were expressed earlier regarding the shutdown and the absence of 

the U.S. Forest Service. The U.S. Forest Service actually informed 

the subcommittee before the shutdown that they could not appear 

on the Tipton bill, would not discuss it. Their new directive is being 

reviewed by the OMB and they said they can’t talk about it until 

the review is done and the directive is out for public comment. And 

so the shutdown does not affect the Forest Service’s willingness to 

be here today. They were not willing to be here anyway. 

With that, and if there are no other opening statements by committee members, the Chair is pleased to welcome our panel of witnesses and once again to thank them for their patience and indulgence. Each witness’ written testimony will appear in the full hearing record, so I would ask that you keep your comments down to 

5 minutes. The timing lights are pretty simple, green you have all 

the time in the world, yellow is 1 minute, red means that you are 

out of time and out of attention of the membership. I think there 

was a study done some time ago that indicates that 5 minutes is 

about the maximum attention span of a Member of Congress, so 

keep that in mind when that red light goes off. 

And with that, the Chair is pleased to welcome our first witness 

today, Mr. David Corbin, Vice President for Planning and Development at Aspen Skiing Company from Aspen, Colorado, to testify. 

STATEMENT OF DAVID CORBIN (H.R. 3189), VICE PRESIDENT, 

ASPEN SKIING COMPANY, ASPEN, COLORADO 

Mr. CORBIN. Thank you, Mr. Chairman. I understand the limitation on time and will try to briefly summarize the comments. 

My name is David Corbin. I am Vice President of Planning and 

Development for Aspen Skiing Company. We are a ski area operator and hospitality company located in Aspen, Colorado. Personally, I have 25 years experience in the ski industry, working first 

with Vail Resorts, and for the past 8 years I have been with Aspen 

Skiing Company. I had the privilege of working in the industry 

from Lake Tahoe, to the Central Rockies, to the White Mountains 

of New Hampshire, and worked on Federal lands in all of those locations at some point or another. 

Aspen Skiing Company owns four ski areas. We have four special 

use permits. We employ about 3,400 people locally in peak season 

and we host 1.4 million skier visits in Aspen, again on public lands. 

We are members of Colorado Ski Country, and we are likewise 

members of the National Ski Areas Association. The National Ski 

Areas Association is essentially our national body that represents 

our interests as an industry before Congress and other public agencies and performs a variety of activities on our behalf, but represents 121 different ski areas across the country who operate on 

the public lands. 

We very much support—and by we, I mean Aspen Skiing Company, Colorado Ski Country, and NSAA—very much support this 

bill and thank Congressmen Tipton and Polis in particular as Colorado Representatives and sponsors, as well as the other sponsors. 

We believe the Water Rights Protection Act is very much essential 

24 

to our business and protects our business interests in ways that we 

appreciate a great deal. 

We value and respect our partnership with the U.S. Forest Service. We indeed work quite closely with them. I regard my White 

River forest supervisor as a very close colleague personally and professionally. We likewise believe we are very capable and intelligent 

stewards of the land and work quite carefully to protect the environmental standards that this country aspires to. 

In the course of that, we likewise think that water is absolutely 

an essential element to our business. And in response to one of the 

comments I heard before, we do not get any water with our special 

use permits. When a special use permit comes to us, the Federal 

Government hasn’t given us additional water in the course of 

issuing that permit. We go out and acquire it, we buy it, we procure it, we go ahead and buy it from other providers as well. 

We look to Congress to provide some assistance. Indeed the agency is in the process of promulgating rules and has proposed rules 

before. We believe this bill is very helpful in guiding or steering the 

agency toward what we believe would be more prudent rules and 

regs. We very much like the bill in the sense that it does not require us to transfer those separate water rights that we have purchased and developed and built infrastructure for on our own. We 

like the fact that there would be a prohibition against such a compulsory transfer, which we very much think is a taking. And we 

would hope Congress would likewise see it that way and help and 

support us in that regard. 

Ourselves, we use a fair amount of water, 200 to 250 million gallons a year in snowmaking. That is essential to us. Snowmaking 

essentially provides the base for us to begin and completes our season. And for our purposes we cannot see those rights evaporate or 

be lost as it would severely jeopardize our ability to operate, and 

it would likewise financially subject us to very difficult circumstances because we need both Christmas season and end of 

season to essentially make our economics work. So to lose 

snowmaking and to lose the water associated with it would very 

much jeopardize our operations and our continued financial viability. 

We hope that you would take our testimony, written as it is, before you into account, and I very much appreciate the opportunity 

to speak to you today. 

Mr. MCCLINTOCK. Thank you very much for your testimony. 

[The prepared statement of Mr. Corbin follows:] 

PREPARED STATEMENT OF DAVID CORBIN, VICE PRESIDENT OF PLANNING & 

DEVELOPMENT, ASPEN SKIING CO., ASPEN, COLORADO

Thank you for the opportunity to testify today on behalf of Aspen Skiing Co. 

Aspen Skiing Co. owns and operates four resorts in Colorado, Aspen Mountain, 

Aspen Highlands, Snowmass and Buttermilk. During its winter peak, ASC employs 

approximately 3,400 people in Pitkin County, Colorado, hosts nearly 1.4 Million 

skier visits annually, and pursuant to four Special Use Permits issued by the United 

States Forest Service, operates on National Forest System land, as do 120 other ski 

areas nationally. Collectively, these 121 public land resorts accommodate the majority of skier visits in the U.S. and are located in the states of Arizona, California, 

Colorado, Idaho, Montana, Nevada, New Hampshire, New Mexico, Oregon, Utah, 

Vermont, Washington and Wyoming. The ski industry generates $12.2 Billion in 

economic activity annually. 

25 

At the outset, I would like to emphasize that Aspen Skiing Co., our state association Colorado Ski Country USA, and the national association, NSAA, are united in 

our support of H.R. 3189, the Water Rights Protection Act. We would like to thank 

the sponsors of this legislation, and I would like to especially thank Colorado Congressmen Tipton and Polis, for working together to protect the rights of ski areas. 

Aspen Skiing Co. greatly values and respects our partnership with the U.S. Forest 

Service. We likewise take seriously our responsibilities with respect to stewardship 

of the land and water resources arising from it. At the same time, we view protection of ski area water rights, typically privately acquired, developed and applied and 

unrelated to the original issuance of our Special Use Permits, as essential to our 

business sustainability and as a top priority for the ski industry as a whole. 

The ski industry is united in looking to Congress to take action to protect water 

rights and to protect the state laws that govern water rights allocation, administration and adjudication. We collectively believe that protecting water rights from encroachment by the Federal Government will help ensure the future success of ski 

areas on public land and the mountain communities that depend on them. 

The proposed Water Rights Protection Act would prohibit the Forest Service from 

requiring that ski areas apply for water rights in name of the U.S. or transfer water 

rights to the U.S. as a condition of our special use permit. As such, the Act would 

prohibit the Forest Service from issuing the very ski area water clause that it issued 

in 2012, that was the subject of a legal challenge and lawsuit brought by the 

National Ski Areas Association last year. The proposed law would protect ski area 

water rights and provide certainty to ski areas and other water rights holders that 

the Federal Government is not going to seize these valuable property rights without 

compensation. This will benefit ski areas and the rural economies dependent on 

them. Finally, it upholds state water law. For all of these reasons, the ski industry 

wholeheartedly supports H.R. 3189. 

By way of background, water is an essential element of our business and 

snowmaking insures that we are able to operate and offer winter recreation in any 

given year, even in years of low snowfall. Although Aspen Skiing Company’s domestic use per year is comparatively modest, less than 3 million gallons a year, we use 

on average from 200 to 250 million gallons a year to make snow, which returns to 

the watershed in the form of ground water and surface runoff each spring. Our cost 

in water, labor and energy to make and distribute this snow is roughly $2 M to 

$2.5 M per year. Our sources of supply include rivers and streams, wells and 

springs, and municipal providers. We have acquired and hold a wide array of rights 

and interests in water, some of which include conventional stream and ditch appropriations dating back to 1882. Others include a recent $3 MM investment in a storage reservoir fed by a stream from which we’ve historically drawn, which essentially 

enabled us to open Snowmass ski area last year despite a very dry fall and early 

winter. 

The magnitude of our operational costs, acquisition and investment in water 

rights and infrastructure is not unusual. Collectively, ski areas invest hundreds of 

millions of dollars on water rights to support and enhance their operations and 

water rights are considered highly valuable assets to ski area owners. These water 

rights have been and are presently obtained by ski areas under long standing State 

law. 

Water is crucial not just to our current operations, but to our very sustainability 

and on-going vitality as recreational businesses, particularly in an era of drought 

and warming temperatures. For reasons both altruistic and commercial it is in our 

own interests to protect, conserve and optimize the sensible use and application of 

our water resources. 

Beyond our own viability and commercial health, ski areas are major employers 

in rural economies helping maintain employment and driving job creation in rural 

and mountain economies. The physical and economic sustainability of ski areas directly impacts the future health, maturation and growth of rural economies associated with ski areas. 

USFS water clauses that demand transfer of ownership of ski area water rights 

to the United States substantially impair the value of these ski area assets. The 

taking of these assets by the government hinders a ski area’s access to capital, creates uncertainty with respect to a resort’s ability to make adequate snow and operate successfully in the future, and most importantly, provides a huge disincentive 

for ski areas to invest in water rights and infrastructure in the future. Ask yourself 

this question: why would a ski area invest in water rights and infrastructure if they 

are simply going to be taken by the government? It is obviously not sound business 

practice to acquire and improve assets that are going to be taken from you. Unfortunately, the impact of such a punitive disincentive does not stop with the ski area. 

26 

In so far as it adversely affects our business sustainability over time, it inevitably 

ripples through our companion rural economies. 

The Forest Service is now in the process of developing a new ski area water 

clause. It is our hope that this proposed legislation will positively shape the forthcoming policy. Like the proponents of this bill, the ski industry will not accept a 

Forest Service water policy that takes private water rights from ski areas. As an 

alternative, the ski industry offered a new approach to a ski area water clause in 

conjunction with the Forest Service’s ongoing public process on water policy. This 

new approach would address the Forest Service’s concerns about having sufficient 

water for future ski area operations, but does not involve government seizure of assets. 

Briefly, we offered a two part framework: 

1. For future projects which require water for implementation, ski areas will 

demonstrate that sufficient water is available to support those projects. This 

would be a part of the review and approval process going forward for proposals that include on mountain facilities or snowmaking; 

2. Upon sale of a ski area, resorts will provide an option to purchase at fair market value sufficient water to reasonably run the ski area to a successor ski 

area owner. If the successor ski area declines to exercise such option, the ski 

area would offer it to the local government; if the local government declined 

to exercise the option, the Forest Service would have the option to buy the 

water. 

As an express condition of supporting this approach, water clauses previously imposed upon ski area permittees by the agency must be declared unenforceable, superseded, and null and void, and would be removed from every ski area permit. 

We offered this compromise to demonstrate our willingness to work constructively 

toward resolution of this issue, and to demonstrate that the Federal Government 

need not take and own these private water rights to accomplish its objectives of ensuring ski area operational sustainability and local economic health, which we 

share. The bill under consideration today and the ski area’s alternative approach 

to water policy are complimentary. We urge passage of this bill as soon as possible 

to send a clear message to the Forest Service to shape its policy and write its rules 

and regulations in a manner that respects water rights and state water law. 

Thank you for the opportunity to address this committee. I would be happy to answer or respond to any questions you may have. 

Mr. MCCLINTOCK. The Chair is now pleased to recognize Mr. 

Randy Parker, the CEO of the Utah Farm Bureau Federation, from 

Sandy, Utah, to testify. 

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

BUREAU FEDERATION, SANDY, UTAH 

Mr. PARKER. Thank you, Mr. Chairman, Ranking Member, and 

committee members. Thank you for the opportunity to be here. 

My name is Randy Parker. I am CEO of the Utah Farm Bureau 

Federation. I am here today representing more than 28,000 member families in Utah and more than 6 million families who are 

members of the American Farm Bureau. Through our grassroots 

process, Farm Bureau provides policymakers with recommendations on water in Utah and in the Western public land States. 

Farm Bureau is concerned with the Federal Government expanding its reach and control over Utah and its natural resources. Utah 

farmers and ranchers want Federal agencies to honor State water 

law and to not claim ownership of water developed on public lands. 

Utah Farm Bureau supports H.R. 3189 because it recognizes the 

State sovereign water rights and protects livestock water rights 

from illegal Federal claims and takings. 

The American Farm Bureau policy calls on Congress to dispel 

uncertainty. The Intermountain Region of the U.S. Forest Service 

27 

has filed more than 16,000 diligence claims on Forest System lands 

in Utah challenging ownership and increasing uncertainty. The 

agency says its claims are based on Federal ownership of the land 

and water the ranchers used prior to Congress granting Utah 

statehood. Couldn’t that be argued to be the same in every State 

in the Union? 

American Farm Bureau opposes any preemption of State law, 

pointing out water rights as property rights cannot be taken without just compensation and due process of law. Farm Bureau supports H.R. 3189, the Water Rights Protection Act, because it is designed to dispel uncertainty and recognizes State sovereignty and 

historic water law. In addition, it underscores the constitutional 

protections of just compensation and due process of law. 

To illustrate the need to protect livestock water rights, the experience of a Tooele County, Utah, grazing association is instructive. 

In the spring of 2012 ranchers were presented with a packet from 

the Forest Service that requested that they sign a change of use 

application. Change applications allow the Forest Service to change 

use of the water from livestock to other uses as determined by the 

agency. The ranchers were told if they did not comply it could adversely affect their turnout onto their forest grazing allotment. The 

ranchers were not only concerned how the action impacted their 

water rights, but how it would impact cattle grazing on those allotments into the future. 

The Forest Service protested, suggesting the request was in error 

and that they were only asking ranchers to sign a joint ownership 

agreement. In either case, signing a change of use application or 

agreeing to a certificate of joint ownership, the Federal agency is 

seeking a relinquishment either in whole or in part as a condition 

of access to the grazing allotment. 

In Tooele County, Utah, or anywhere across the Utah landscape 

where livestock graze on the public lands and use the State’s 

water, it is the economic driver for our rural communities. Livestock production is the economic engine of Utah’s rural cities and 

towns. Passage of H.R. 3189 will build rural communities by providing certainty, not by seizing assets through relinquishment or 

diminishment of livestock water rights. 

Livestock water is available in stock water troughs, in guzzlers, 

in seeps, and in small streams scattered across Utah’s back country. It benefits not only sheep and cattle, but wildlife, like sage 

grass, deer and elk, and even threatened and endangered species 

like the Utah prairie dog. 

Utah has joined other Western States, like Idaho and Nevada, in 

protecting historic livestock water rights and limiting Federal ownership. Utah’s Livestock Water Rights Act defined the beneficial 

user as the owner of the grazing permit. The Forest Service seized 

on that opportunity, filing on livestock water rights on every active 

allotment in Utah, claiming they are the owner of the grazing permit. 

In closing, it is important to note that the Utah Livestock Water 

Rights Act makes livestock water rights pertinent to the grazing allotment on which the livestock is watered. It provides certainty to 

ranchers and underscores our commitment to rural Utah that grazing will continue on the public lands. This commitment in 

28 

H.R. 3189 provides greater certainty to ranchers and the future of 

public land grazing than the assurances of Federal bureaucrats and 

being at the whims of our fickle legal system. 

Thank you, Mr. Chairman. I look forward to questions. 

Mr. MCCLINTOCK. Thank you, Mr. Parker. 

[The prepared statement of Mr. Parker follows:] 

PREPARED STATEMENT OF RANDY N. PARKER, CHIEF EXECUTIVE OFFICER, UTAH

FARM BUREAU FEDERATION, SANDY, UTAH

The Utah Farm Bureau Federation, Utah’s largest farm and ranch organization, 

supports passage of H.R. 3189, the Water Rights Protection, an Act prohibiting Federal agencies from conditioning ongoing use of grazing permits or other use agreements based on the transfer, relinquishment or impairment of water rights sovereign to the States. 

The Utah Farm Bureau represents more than 28,000 member families including 

a significant number of livestock producers who use the Federal lands for sheep and 

cattle grazing. Livestock ranching is an important part of the history, culture and 

economic fabric of Utah and is a major contributor to the State’s economy. 

Utah food and agriculture contributes to the State’s economic health and provides jobs to thousands of our citizens. Utah farm gate sales in 2012 exceeded $1.6 billion. 

Utah State University analyzed the forward and backward linkages to industries 

like transportation, processing, packaging and determined food and agriculture are 

the catalyst for $17.5 billion in economic activity, or about 14 percent of the State 

GDP, and provides employment for nearly 80,000 Utahns with a payroll of more 

than $2.7 billion. 

FARM BUREAU POLICY

Delegates to the November 2012 annual convention of Utah Farm Bureau Federation adopted policy calling on the Federal Government to ‘‘not claim ownership of 

water developed on Federal land.’’ In addition, Utah Farm Bureau policy calls for 

State control of water rights and for livestock water rights to be held by the ranchers holding grazing rights as a protection against Federal encroachment on sovereign State waters. 

American Farm Bureau Federation representing more than 6 million members 

from across our Nation adopted policy at the January 2013 annual convention calling on Congress to ‘‘dispel uncertainty’’ and provide that the ‘‘water flowing from 

the reserved lands and other Federal lands shall be subject to State authority.’’ 

American Farm Bureau opposes reserved water rights on Federal lands except 

through filing with the State for rights in accordance with State law. 

American Farm Bureau policy continues expressing opposition to ‘‘any Federal 

domination or pre-emption of State water law’’ and that ‘‘water rights as property 

rights cannot be taken without compensation and due process of law.’’ 

HISTORY

Scarcity of water in the Western United States led to the development of a system 

of water allocation that is very different from how water is allocated in regions 

graced with abundant moisture. Rights to water are based on actual use of the 

water and continued use for beneficial purposes as determined by State laws. Water 

rights across the west are treated similar to property rights, even though the water 

is the property of the citizens of the States. Water rights can be and often are used 

as collateral on mortgages as well as improvements to land and infrastructure. 

The arid west was transformed by our pioneer forefathers through the judicious 

use of the precious water resources. Utah is the Nation’s second most arid State, 

second only to Nevada. For our predecessors, protecting and maximizing the use of 

the water resources was not only important, it was a matter of life and death. 

Land ownership patterns and where precipitation, rain and snow, accumulates in 

the Intermountain Region of the U.S. Forest Service especially in Utah has been a 

long running cause for debate and conflict. The U.S. Forest Service reports that the 

Forest System Lands are the single largest source of water in the continental 

United States providing more than 14 percent of the available supply. (Attachment 

A) 

A review of the Forest Service maps would suggest a large portion of agency’s captured water takes place in the western public States within the Snake and Colorado 

River Basins and in the mountains of the Sierra-Nevadas, the Cascades and the 

Rocky Mountains. These lands in the Intermountain Region are the source of a 

29 

large portion of the States surface water and underground recharge. (Attachment 

B) 

CONGRESSIONAL ACTIONS

The settlers in the arid west developed their own customs, laws and judicial determinations to deal with mining, agriculture, domestic and other competing uses recognizing first in time, first in right. Out of these grew a fairly uniform body of laws 

and rights across the western States. The Federal Government as original sovereign 

and owner of the land and water prior to Congress granting statehood ultimately 

chose to acquiesce to the territories and later the States on control, management 

and allocation of water. 

Act of July 26, 1866 

The U.S. Congress passed the Act of July 26, 1866 [subsequently the Ditch Act 

of 1866] that became the foundation for what today is referred to ‘‘Western Water 

Law.’’ The Act recognized the common-law practices that were already in place as 

settlers made their way to the western territories including Utah. Congress declared: 

Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the 

same are recognized and acknowledged by the local customs, laws and decisions 

of courts, the possessors and owners of such vested rights shall be maintained 

and protected in the same; and the right of way for the construction of ditches 

and canals for the purposes herein specified is acknowledged and confirmed; but 

whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing 

such injury or damage shall be liable to the party injured for such injury or 

damage. (43 U.S.C. Section 661) 

This Act of Congress obligated the Federal Government to recognize the rights of 

the individual possessors of water, but as important, recognized ‘‘local customs, laws 

and decisions of State courts.’’ 

Western water law or the ‘‘doctrine of prior appropriation’’ governs the use of 

water in many of the States in the west. The fundamental principle embodied in 

the doctrine of prior appropriation is that while no one may own the publicly owned 

resource, persons, corporations or municipalities have the right to put the water to 

beneficial use any defined by State law. For purposes of beneficial use, the allocation of right rests in the principle of ‘‘first in time, first in right.’’ The first person 

to use the water is the senior appropriator and later users are junior appropriators. 

In Utah, and across the west, this principle protects the senior water right priority 

for this scarce and valuable resource. 

Beneficial uses are determined by State legislatures generally including livestock 

watering, irrigation for crops, domestic and municipal use, mining and industrial 

uses. 

The Desert Land Act of 1877 

‘‘All surplus water over and above such actual appropriation and use . . . shall 

remain and be held free for appropriation and use of the public for irrigation, 

mining and manufacturing . . .’’ 

The Taylor Grazing Act of 1934 

‘‘nothing in this Act shall be construed or administered in a way to diminish or 

impair any right to the possession and use of water for mining, agriculture, 

manufacturing and other purposes . . .’’ 

The McCarran Amendment of 1952 

Congress established a unified method to allocate the use of water between Federal and non-Federal users in the McCarran Amendment. (43 U.S.C. Section 666) 

The McCarran Amendment waives the sovereign immunity of the United States for 

adjudications for all rights to use water. 

‘‘waives the sovereign immunity of the United States for adjudications for all 

rights to use water.’’ 

The 1976 Federal Land Policy Management Act 

‘‘All actions by the Secretary concerned under this act shall be subject to valid 

existing rights.’’ 

The rights of the States to govern water has been recognized by generations of 

Federal land management agencies as directed by the U.S. Congress. 

30 

Gifford Pinchot 

In 1907, Gifford Pinchot, ‘‘father’’ of the United States Forest Service (USFS) and 

the First Chief Forester explicitly reassured western interests in the agency’s ‘‘use 

book’’ noting that water is the sovereign right of the State. Pinchot declared: 

‘‘The creation of the National Forest has no effect whatever on the laws 

which govern the appropriation of water. This is a matter governed entirely 

by State and Territorial law.’’ 

COURT ACTIONS

Joyce Livestock vs. United States 

Idaho Supreme Court 2007—Opinion No. 23 

‘‘Beneficial Use Standard Defined’’ 

In the Joyce Livestock Company vs. United States, the Owyhee County based cattle operation had ownership dating back to 1898 including in-stream stock water 

rights. The United States over-filed on the Joyce water rights based on a priority 

date of June 24, 1934—the date of passage of the Taylor Grazing Act. A special master recommended the water right claimed by the United States be granted. District 

Court said the special master erred and that the agency lacked the necessary intent. 

District Court determined that Joyce needed to show evidence that they believed 

they had acquired such water rights in their grazing permit applications. The 

United States could not show that Joyce or any of its predecessors were acting as 

it agents when they acquired or claimed to have acquired the water rights. As had 

been required, Joyce made application for grazing rights under the Taylor Grazing 

Act on April 26, 1935. The District Court awarded Joyce water rights with a priority 

date of April 26, 1935. 

The United States appealed the District Court ruling to the Idaho Supreme Court 

regarding the in-stream water rights for stock watering claimed by the United 

States based on ownership and control of the Federal land under its management 

obligation in the Taylor Grazing Act. The Idaho Supreme Court denied the United 

States claim and defined the standard of beneficial use under the constitutional 

method. The Idaho Supreme Court said: 

‘‘The District Court held that such conduct did not constitute application of the 

water to beneficial use under the constitutional method of appropriation, and denied the claimed rights. The Idaho Supreme Court concurred holding that because the United States did not actually apply the water to a beneficial 

use the District Court did not err in denying its claimed water rights.’’ 

H.R. 3189 supports this important legal finding: Ownership or control of the 

land does not meet the constitutional method of putting the water to beneficial use, 

generally defined in State law as non-wasteful use of water such as agriculture, municipal, industrial, mining, and so forth for establishing ownership and control. 

United States vs. Wayne Hage 

Nevada Federal District Court (2013) 

‘‘Trespass and Access Rights Defined’’ 

The U.S. Forest Service and BLM in 2007 filed suit in Nevada Federal District 

Court against the estate of Wayne Hage alleging trespass on Federal lands arising 

from a long-standing conflict. Nevada District Court Chief Judge Robert C. Jones 

presided. 

At issue were water rights established by the Hage family in 1865 based on beneficial use recognized long before Nevada was a State or the Forest Service was an 

agency of the Federal Government. Following the enactment of FLPMA, a pattern 

of harassment ensued by the Federal Government challenging cattle grazing rights, 

over-filing on livestock water rights and frustrating the rights of the ranchers to 

maintain 28 miles of ditches across the Nevada desert to deliver long held water 

rights to pastures and livestock. The Congressional Act of July 1866 (The Ditch Act) 

clearly protected the rancher’s right to move water across the Federal lands. The 

Federal agency agreed, but held the maintenance to an impossible pick and shovel 

standard. The ongoing ditch dispute and the impoundment and sale by the U.S. 

Forest Service of $39,000 worth of cattle in 1991 moved the conflict into a series 

of lawsuits on takings and trespass. 

The U.S. Forest Service filed suit against the Hage Estate (Wayne died in 2006) 

for trespass related to cattle grazing and use of livestock water rights on the Federal grazing allotments. During questioning in a Reno courtroom on witness credibility Intermountain Regional Forester Harv Forsgren was found to be lying to the 

court. In a statement, Judge Jones stated: ‘‘The most pervasive testimony of anyVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
31 

body was Mr. Forsgren. I asked him, has there been a decline in the region or district in AUMs (permitted animal unit months grazing). He said he didn’t know. He 

was prevaricating. His answer speaks volumes about his intent and his directives 

to Mr. (Steve) Williams.’’ Anybody of school age or older knows ‘‘the history of the 

Forest Service in seeking reductions in AUMs and even the elimination of cattle 

grazing . . .’’ 

The agency’s arrogance and view of the sovereign water rights of the State was 

highlighted when Steve Williams, Humbolt-Toiabe Forest Ranger, testified in a 

court deposition: 

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

if there were no (agency granted) permit to access it.’’ 

Judge Jones found: 

• Congress prescribed grazing rights on Federal lands were to be granted based 

on a rancher’s ownership of water rights established under local law and custom. • Hage has a right of access to put his livestock water rights to beneficial use, 

therefore the livestock could not be found in trespass. • USFS employee Steve Williams was found in contempt of court and guilty of 

witness intimidation. • Tonopah BLM manager Tom Seley as found in contempt of court and guilty 

of witness intimidation. • Williams and Seley were held personally liable for damages with fines exceeding $33,000. • The Hage’s were found guilty of only two minor trespass violations and were 

fined $165.88 • Regional Forester Harv Forsgren was excluded from testifying at trial during 

witness credibility hearing for lying to the Court. 

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

‘‘I find specifically that beginning in the late ’70s and ’80s, first, the 

Forest Service entered into a conspiracy to intentionally deprive the defendants here of their grazing rights, permit rights, preference rights.’’ 

In the related ‘‘Constitutional Takings’’ case, Wayne Hage in 1991 sued the U.S. 

Forest Service in the U.S. Court of Federal Claims. The case went to trial in 1998 

to determine property interests. In 2004, a second trial was commenced to determine which property had been taken and its value. In 2008, Chief Judge Loren E. 

Smith ultimately awarded a $4.4 million plus interest judgment against the Federal 

Government. 

As expected the United States appealed in the Federal Circuit Court of Appeals 

in Washington DC. The Appeals Court, a three judge panel in 2012, overturned portions of the Smith decision including the financial judgment citing the claims were 

not ripe. But the Appeals Court expressly did agree that the Hage’s have ‘‘an access right’’ to their waters on the Federal lands. 

H.R. 3189 supports historic ownership of livestock water rights and access: 

The bill recognizes water rights are the sovereign rights of the States and provides 

that livestock water rights established through the beneficial use method shall not 

be surrendered as a condition of use or access to livestock grazing rights on Federal 

allotments. 

Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army 

Corps of Engineers 

United States Supreme Court 159, 172–173 (2001) 

‘‘Defining Federal Agency’s Administrative Authority’’ 

Without clear Congressional authorization, Federal agencies may not use their administrative authority to ‘‘alter the Federal-State framework by permitting Federal 

encroachment upon traditional State power.’’ 

In SWANCC vs. U.S. Army Corps of Engineers the U.S. Supreme Court held that 

the Corps’ use of the long controversial ‘‘migratory bird rule’’ adopted by the Corps 

and the U.S. Environmental Protection Agency to expand regulatory authority over 

isolated wetlands exceeded the authority granted by Congress. 

The Court chided the agency for over-reaching in its regulatory obligations and 

authority: 

‘‘Where an administrative interpretation of a statute invokes the outer limits 

of Congress’s power, we expect a clear indication that Congress intended that 

32 

result. This requirement stems from our prudential desire not to needlessly 

reach constitutional issues and our assumption that Congress does not casually 

authorize administrative agencies to interpret a statute to push the limit of congressional authority. This concern is heightened where the administrative 

interpretation alters the Federal-State framework by permitting Federal 

encroachment upon traditional State power. Unless Congress conveys its 

purpose clearly, it is not deemed to have significantly changed the Federal-State balance. 

H.R. 3189 supports limiting Federal agency interpretation of Congressional action: The bill clearly establishes Congressional intent supporting the historic Federal-State relationship and rights under western water law. Congress, beginning with the ‘‘Ditch Act’’ and more recently the McCarran Amendment and FLPMA, 

established a Federal-State framework for water ‘‘waiving the sovereign immunity of 

the United States’’ in water adjudications. H.R. 3189 backs this historic FederalState relationship. It precludes the Forest Service and BLM from acquiring livestock 

water rights as a condition of the rancher’s use of the grazing allotment and protects 

the holder of the livestock water right—a taking under the Constitution. 

UTAH CONFLICT

Water conflicts between Federal land management agencies and Utah have challenged sovereignty, ownership and access. The conflict seems to be about exercising 

Federal control, even over the State’s water. Increased demands, growth and higher 

value of water has complicated the relationship leading to increasing conflict between Federal agents and Utah’s livestock ranchers. This conflict is easily detailed 

in the Intermountain Region’s filing claims on all livestock water associated with 

Utah’s Forest grazing allotments to its demands of individual ranchers to relinquish 

their water rights or agreeing to ‘‘joint ownership’’ with the Forest Service. The demands for Utah water by the United States Forest Service control are unrelenting. 

Via FLPMA Congress declared that the United States would retain remaining 

public domain lands unless disposal of a parcel served the national interest. This 

Federal action changed resource management authority and undid land grant laws 

that had been in place for more than a century. The 1960 Multiple Use—Sustained 

Yield Act granted rights, privileges, use and occupancy with a legal status and nonrevocable easement. FLPMA transitioned to greater use of ‘‘permits’’ and special use 

authorization. ‘‘Permit holders’’ now were required to conduct activities based on 

conditions specified by the granting Federal agency. The reasonableness of the regulations and conditions of use are constantly in question. Whether its regulations 

issued by headquarters or the local determination, ‘‘reasonable’’ has become a contentious concept. 

The current test for reasonable regulations does not address the constitutional 

takings implications specifically as relates to livestock water rights on Federal 

lands. 

The issue of ‘‘right’’ vs ‘‘permit’’ has been hotly debated for generations among 

ranchers, rancher advocates and the Federal agencies since FLPMA altered the relationship. 

The Taylor Grazing Act of 1934 granted a ‘‘grazing right’’ that was tied to a Federal grazing allotment. The courts have held that the rights granted by Congress 

to harvest forage on Federal grazing allotment are ‘‘Chiefly valuable for livestock 

grazing.’’ This legally recognized right in turn provided a level of assurance for 

ranchers to use their livestock water rights and ultimately to put them to beneficial 

use as required by Utah law. 

When conflicts arose, the courts generally upheld the United States right to control and regulate often adversely impacting access to Federal grazing allotments and 

use which were often adverse to grazing rights and use of livestock water rights. 

Confrontation between Federal land managers and livestock grazing interests became a part of doing business. Mostly, those with sheep and cattle grazing permits 

capitulated to the force of the Federal agents and the courts. Cuts in grazing permits and the Federal agencies accumulating suspended use grazing permits became 

common place in Utah and across the west. Reducing livestock numbers or limiting 

access to grazing allotments, can provide a defacto water right to the Federal agency 

based on the rancher’s inability to use their livestock water rights. 

Under Utah law if water is not put to beneficial use for a prescribed period of 

7 years, the water right is forfeited. Forest Service agents have the ability to control 

allotment access, determine use at the location of the livestock water right, set the 

numbers of sheep and cattle on the allotment using the water and ultimately the 

Federal Government determines the ability of the rancher to put his livestock water 

right to beneficial use. 

33 

Challenging Federal authority has been almost futile. Few have the financial resources to engage in what the Federal agencies assured livestock ranchers would 

be costly and protracted litigation. The ranchers were and continue to be at a decided disadvantage to the tax-payer funded deep Federal pockets and army of agency lawyers they would meet at trial. 

Diligence Claims 

The aggressive posture of the Forest Service in collecting western water rights 

shows that the Intermountain Region (Utah, Nevada, Idaho and Colorado) has filed 

on or holds in ‘‘excess of 38,000 stock water rights.’’ These claims has been ongoing 

in Utah for generations. To date, these demands exceed 16,000 diligence claims 

made on livestock water rights scattered across Utah’s forest allotments. Regional 

Forester Harv Forsgren argued these diligence claims are made on behalf of the 

United States, which was the owner of the land where livestock grazed prior to 

statehood and livestock watering took place which action established the Federal 

Government’s claim to water rights. 

A ‘‘Diligence Right’’ or ‘‘Diligence Claim’’ under Utah law is a claim to use the 

surface water where the use was initiated prior to 1903. In 1903, statutory administrative procedures were first enacted in Utah to appropriate water. Prior to 1903, 

the method for obtaining the right to use water was simply to put the water to beneficial use. To memorialize a diligence claim, the claimant has the burden of proof 

of the validity of beneficial use prior to 1903. Interestingly, the Intermountain Region’s diligence claims pre-date the 1905 establishment of the Forest Service. These 

claims will ultimately be determined by the State Engineer under the guidance of 

the Utah Legislature. 

Intermountain Region Policy 

In a letter dated June 29, 1984, Robert H. Tracy, Director of Watershed and Air 

Management for the U.S. Forest Service stated nine reasons why his agency needed 

to control the water and why livestock water rights should remain on the land rather than with the ranchers holding the grazing permits. This action identifies the 

transition point of the U.S. Forest Service to a more aggressive Federal agency in 

dealing with water issues in the western public lands States. 

The Intermountain Region has made and continues to make the argument that 

it is important for the Federal Government to hold the water rights to assure continued livestock grazing on public lands. In an August 15, 2008 Intermountain 

Region Briefing Paper addressing the 2003 Nevada law that precludes the Nevada 

State Engineer from approving any new applications, permits or certificates filed by 

the United States for stock water the Regional Forester said: ‘‘It is the policy of the 

Intermountain Region that livestock water rights used on national forest grazing allotments should be held in the name of the United States to provide continued support for public land livestock grazing programs.’’ 

The decision by Nevada to preclude the Forest Service from ownership of water 

rights led to stonewalling and ultimately little or no water development or investment (both agency and private) in livestock water rights. 

An Intermountain Region guidance document dated August 29, 2008 provides important insights into the agency’s legal strategy on Forest Service water claims: 

‘‘The United States may claim water rights for livestock use based on historic use 

of the water. Until a court issues a decree accepting these claims, it is not known 

whether or not these claims will be recognized as water rights.’’ 

This aggressive policy continues as Mr. Forsgren presented in testimony before 

the House Subcommittee on National Parks, Forests and Public Lands on March 12, 

2012. He noted the Nevada legislation that precludes the United States from holding livestock water rights telling the Subcommittee: ‘‘The Forest Service believes 

water sources used to water permitted livestock on Federal land are integral to the 

land where the livestock grazing occurs; therefore the United States should hold the 

water rights for current and future grazing.’’ 

The U.S. Forest Service manual currently under consideration for reauthorization 

defines a possessory claim to water rights in the name of the United States and directs personnel to: 

‘‘Claim water rights for water used by permittees, contractors and other authorized users of the National Forest System, to carry out activities related to multiple use objectives. Make these claims if both water use and water development 

are on the National Forest System . . .’’ 

The United States Constitution and Utah Constitution protect private property 

from being taken by government without just compensation. The Utah Constitution 

further protects private property from taking or damage without just compensation. 

34 

Claiming historic water rights without just compensation and due process violates 

Constitutional protections. 

Utah Livestock Water Rights Act 

Recognizing rancher frustrations with protecting livestock water rights and armed 

with the Idaho Supreme Court Joyce Livestock decision, in early 2008 Utah Representative Mike Noel introduced legislation to define and protect the rights of 

ranchers holding State livestock water rights on Federal grazing allotments. 

As relates to H.R. 3189, The Utah Livestock Water Rights Act (Utah Code Title 

73 Chapter 3 Section 31) provided two important and fundamental principles: 

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

This is important because it identified livestock using the water as a beneficial 

user and associated it with the allotment managed by the Federal Government 

agencies. The Utah State Engineer was directed to issue a ‘‘Livestock Water Right’’ 

Certificate. The State Engineer noted for the record, the Certificate does not quantify or establish an adjudicated Utah water right. 

The Act however defined the ‘‘beneficial user’’ as the ‘‘person who owns the grazing permit.’’ The Regional Forester immediately argued the United States is the 

owner and filed for the livestock water rights on every active livestock grazing allotment in Utah. Recognizing the Nevada conundrum and faced with the claim by the 

Regional Forester to water ownership on every grazing allotment, the Utah Legislature amended the Utah Livestock Water Rights Act providing ‘‘joint ownership’’— 

the rancher and the Federal agency. Forest employees immediately and actively encouraged ranchers to sign the joint ownership agreement. 

In addition, Utah’s Livestock Water Right Statute also provides that the livestock 

water right is tied to the grazing right and appurtenant to the Federal grazing allotment. It reads: 

2. ‘‘A livestock water right is appurtenant to the allotment on which the livestock 

is watered.’’ 

This is an important provision in Utah law that addresses the Federal agency’s 

argument they need to hold the water right to assure the multiple use and grazing 

mandate. Utah provides a greater level of assurance to this end than the Federal 

agency’s assurances and the whims of the legal system. 

Utah joining Idaho and Nevada in precluding the Forest Service from holding or 

acquiring livestock water rights increased the pressure from the agency. The Journal of Land, Resources and Environmental Law in 2009 noted the 2008 Utah Livestock Water Rights Act impacted Federal agencies and that dispute could affect 

their relationship with livestock producers ‘‘who depend on cooperation for management of these grazing allotments on Federal land.’’ 

Before the 2009 Utah Legislature, the Regional Forester pointed out the Nevada 

conundrum to policymakers. With no interest in the water for the United States on 

Federal land in Nevada, the approvals for maintenance and development of water 

came to a standstill. This very real threat by the Federal Government was the catalyst for amending the Utah Act to provide for a certificate of ‘‘joint ownership’’ in 

livestock water. 

H.R. 3189

THE WATER RIGHTS PROTECTION ACT

Tooele County Grazing Association 

H.R. 3189 specifically addresses conflicts and potential misunderstanding between 

agencies and ranchers as happened in Tooele County Utah. 

Ranchers with livestock grazing rights on Forest Service administered lands in 

Utah’s Tooele County west of Salt Lake City in the spring of 2012 were confronted 

with a packet from the local Forest agents seeking a ‘‘sub-basin claim’’ from the 

Utah Division of Water Rights. The packet specifically called for the ranchers to 

sign a ‘‘change of use’’ application allowing the Forest Service to then determine 

what and where the use of the livestock water would be. In effect, the request would 

allow the Federal agents to then determine use, including changing it from livestock 

to wildlife, recreation or elsewhere. 

The ranchers objected to the Forest service request. The request then became a 

demand and the ranchers were told that not complying could adversely affect their 

‘‘turn-out’’ or the release of their sheep or cattle onto their Forest grazing allotments. 

35 

The ranchers were concerned that the actions of the Federal agents compromised 

their livestock water rights and ultimately take from them not only the value of 

their water rights, but could take the value of the livestock feed associated with the 

grazing allotment. 

The ranchers brought Utah Farm Bureau into discussions with the Forest personnel, Utah water rights authorities, State and local officials and Farm Bureau 

leaders. It should be noted the Forest personnel objected to the acquisition of strong 

arming to get the ‘‘change’’ documents signed. The ranchers stood their ground 

pointing out they were in fact told not complying could hurt access onto their grazing allotment. This Forest Service action called for the relinquishment of the water 

right in exchange for approving the conditional use of the grazing allotment. 

In a follow up meeting with ranchers and Farm Bureau, local Forest employees 

were now accompanied by the Regional Forester. Mr. Forsgren told the group there 

must have been a misunderstanding. The local Forest agents in asking for the 

‘‘change’’ application should have been asking for a joint ownership certificate. He 

further stated, any inference that not complying with the request would adversely 

impact access to the grazing allotment was a misunderstanding as well. 

H.R. 3189 will assure that these ‘‘misunderstandings’’ and Federal agents seeking 

ownership of livestock water rights as a condition of access to the Federal grazing 

allotment does not happen in the future. Congress provided for grazing on Federal 

lands to harvest renewable forage to invest in the rural economy and provide meat 

protein to all Americans. As Federal agencies manage under multiple use principles, 

the State of Utah has provided assurances that livestock water will remain on the 

land with the grazing allotment. 

This concludes my prepared testimony. 

ATTACHMENT A

U.S. Forest Service 

Importance of National Forest System Lands 

in the U.S. Continental Water Supply 

• National Forest System Lands are the largest single source of water in the continental United States, over 14 percent of available supply. 


85145.001.eps
36 

ATTACHMENT B

United States Forest Service 

Intermountain Region 

Mr. MCCLINTOCK. The Chair is now pleased to recognize Mr. 

Glenn Porzak, attorney for the National Ski Area Association, from 

Boulder, Colorado to testify. Welcome. 

STATEMENT OF GLENN PORZAK (H.R. 3189), ATTORNEY, 

NATIONAL SKI AREAS ASSOCIATION, BOULDER, COLORADO 

Mr. PORZAK. Thank you very much. I appreciate the opportunity 

to testify today in support of H.R. 3189. I am here principally on 


85145.002.eps
37 

behalf of the National Ski Areas Association, but also here on behalf of the Eagle River Water and Sanitation District and the 

Upper Eagle Regional Water Authority. With regard to the National Ski Areas Association, as has been mentioned, it has 121 

members that operate under Forest Service lands, and that constitutes the majority of the ski area visits in the United States, and 

they are located in 13 separate States. Those ski areas generate 

over $12.2 billion in annual revenue. 

With regard to the Eagle River Water and Sanitation District 

and the Upper Eagle Regional Water Authority, they serve the over 

60,000 people from the areas of Vail to Wolcott. That spans the 

congressional districts of both Congressman Tipton and Congressman Polis. And they are the second-largest municipal water supplier on the Western slope of Colorado. 

The ski industry, as has been mentioned, literally spends collectively hundreds of millions of dollars on the water rights that they 

use for their various operations. They are valuable assets to the ski 

area owners, and that water is absolutely crucial to their operations and their future growth. 

In turn, those operations and that future growth directly impacts 

the rural and mountain economies in which those ski resorts operate. They employ over 160,000 people in those rural and mountain 

environments, and their economies as well depend on that investment in the water. If there is not enough water for the 

snowmaking, for the domestic uses, then you are going to see a 

major impact to the resort communities that are in the vicinity of 

those ski areas. 

One of the important points that I want to make is that we talk 

in terms of the fact that this is a ski area issue. It is far more than 

a ski area issue. In the course of the original litigation over the 

first water right directive that was issued, it was discovered that 

not only is there a directive issued specifically at the ski areas, but 

there are other directives that are issued at municipal water providers, the grazing industry, and others. And indeed the legislation 

proposed would prevent the taking of water rights, not just of the 

ski areas, but also the municipalities and the grazers and other resort communities. And that is an important thing to keep in mind, 

that there is a systemwide impact, if you will, that we believe violates not only the Fifth Amendment of the U.S. Constitution, but 

also the congressional authorization that the Forest Service has. 

The next point that I want to make is that Congress has not delegated the authority to the Forest Service to use its Federal land 

use power to seize water rights owned by non-Federal entities. 

Whether you look to the Federal Land Policy Management Act, to 

the National Forest Management Act, or any other of the organic 

Acts, they defer to State law and make it clear that the Forest 

Service does not have the authority to take water rights under 

their land use authorities. 

And the last point is that this is not a new issue. Over 20 years 

ago this effort was attempted by the Forest Service, and as a result 

of that Congress formed the Federal Water Rights Task Force, and 

it issued a report in August of 1997, and I will just quote from 

that. ‘‘Congress has not delegated to the Forest Service the authority necessary to allow it to require that water users relinquish a 

38 

part of their existing water supply or transfer their water rights to 

the United States as a condition of the grant or renewal of the Federal permits.’’ 

Thank you very much. I look forward to answering any questions 

you may have. 

Mr. MCCLINTOCK. Thank you, Mr. Porzak. 

[The prepared statement of Mr. Porzak follows:] 

PREPARED STATEMENT OF GLENN PORZAK, ATTORNEY, NATIONAL SKI AREAS

ASSOCIATION, BOULDER, COLORADO

Thank you for the opportunity to testify today in support of H.R. 3189 on behalf 

of the National Ski Areas Association (NSAA), the Eagle River Water and Sanitation District (District) and the Upper Eagle Regional Water Authority (Authority). 

The NSAA has 121 member ski areas that operate on National Forest System lands 

under a special use permit from the U.S. Forest Service. These public land resorts 

accommodate the majority of skier visits in the U.S. and are located in 13 States. 

The ski industry generates $12.2 billion in economic activity annually. The District 

and Authority collectively provide municipal water service to over 60,000 people 

from Vail to Wolcott. This area spans the districts of Congressmen Polis and Tipton 

in Colorado. The District and Authority are the second largest municipal water provider on Colorado’s western slope. 

Collectively, ski areas have invested hundreds of millions of dollars on water 

rights to support and enhance their operations. Water is crucial to ski area operations and ski area water rights are considered valuable assets to ski area owners. 

Water is crucial to future growth of ski areas, and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers 

in rural economies, employing 160,000 people, and help drive job creation in rural 

and mountain economies. The same is true for municipal water providers; in particular, those that provide water service to the resort communities. They have invested hundreds of millions of dollars on their water rights, and those water rights 

are essential to meeting their water service obligations to many thousands of people. 

This bill responds to recent Forest Service attempts to implement permit conditions that require the transfer of privately and publically held water rights on National Forest system lands to the Federal Government as a permit condition. There 

is no compensation for these mandated water right transfers despite the fact that 

the ski areas and municipal providers have invested millions of dollars in developing these water rights. The Forest Service has issued directives to this effect that 

apply to not only the ski industry, but all other special use permit holders on Forest 

System lands, including municipal water providers, recreation residences, resorts, 

marinas and other users. By issuing these directives, the Forest Service has not 

only violated the Fifth Amendment to the U.S. Constitution by taking property 

without paying compensation, it has attempted to use its permitting authority to 

circumvent long established Federal and State water laws. The Water Rights Protection Act protects these privately and publically held water rights, prohibits Federal takings, and upholds State water law by: 

—Prohibiting agencies from implementing a permit condition that requires the 

transfer of water rights to the Federal Government in order to receive or 

renew a permit for the use of land; 

—Prohibiting the secretary of the Interior and the Secretary of Agriculture from 

requiring water users to acquire water rights for the United States, rather 

than for the water user themselves; 

—Upholding longstanding Federal deference to State water law. 

This bill does not create new law as Congress has not delegated authority to the 

Forest Service to use its Federal land use power to seize water rights owned by nonFederal entities. Specifically, none of the governing Federal statutes delegate such 

authority to the Forest Service, including the Organic Administration Act of 1897 

(16 U.S.C. § 475, 481, & 526), § 505 of the Federal Land Policy and Management 

Act of 1976 (‘‘FLPMA’’) (43 U.S.C. § 1765), NFMA (16 U.S.C. § 1604(i)), or the Ski 

Area Permit Act of 1986 (16 U.S.C. § 497b). In fact, FLPMA and NFMA provide for 

the protection of valid existing rights and FLPMA requires that water is to be allocated in accordance with water rights established under State law. See § 701(g) and 

(h) of FLPMA (43 U.S.C. § 1701, note re: Savings Provisions, Pub. L. 94–579); § 505 

of FLPMA (43 U.S.C. § 1765); and NFMA, 16 U.S.C. § 1604(i). 

39 

In 1996, Congress created a Federal Water Rights Task Force, P.L. 104–127 

§ 389(d)(3), in response to a controversy in Colorado over the attempt by the Forest 

Service to require permit holders to relinquish part of their water supply for secondary National Forest purposes as a permit condition. In its August 25, 1997 

Report, the Federal Water Rights Task Force concluded that ‘‘Congress has not delegated to the Forest Service the authority necessary to allow it to require that water 

users relinquish a part of their existing water supply or transfer their water rights 

to the United States as a condition of the grant or renewal of Federal permits. . . .’’ 

The Task Force further concluded that ‘‘[u]nless Congress explicitly granted to the 

Forest Service the authority to use permitting authority to require bypass flows or 

the transfer of title to the United States, the Forest Service must respect and protect non-Federal water rights in its planning and decisions, and it must attain 

National Forest purposes through the acquisition and exercise of Federal water 

rights in priority.’’ (Part VI, Paragraph 1). 

The Task Force also stated that the Forest Service must recognize that: 

water rights established under State law are property rights for purposes of the 

Fifth Amendment to the United States Constitution [and that] because Congress severed water from the public lands and allowed third parties to obtain 

vested rights in and to the continued use of water derived from public lands 

absent an explicit grant of authority by Congress, the authority of the Forest 

Service derived from the Property Clause of the United States Constitution and 

land management statutes does not include the ability to use land management 

authority to reallocate or otherwise obtain for Federal use, without the payment 

of just compensation, water that has been appropriated by or on behalf of nonFederal parties. (Part VII B, Paragraph 2). 

For the same reasons detailed by the Task Force Report, the Forest Service’s efforts to gain control over water rights are invalid because they exceed the Forest 

Service’s legal authority and the implementation would result in an unlawful taking 

of property without just compensation in violation of the Fifth Amendment of the 

U.S. Constitution. Thus, H.R. 3189 complies with and is supported by both Federal 

constitutional and statutory law. 

Mr. MCCLINTOCK. The Chair is now pleased to recognize Mr. 

Tony Willardson of the Western States Water Council, based in 

Murray, Utah, to testify. 

STATEMENT OF TONY WILLARDSON (H.R. 3176), EXECUTIVE 

DIRECTOR, WESTERN STATES WATER COUNCIL, MURRAY, 

UTAH 

Mr. WILLARDSON. Thank you, Mr. Chairman and Representative 

Napolitano and the other members of the subcommittee. The Council is an advisory body to the Western Governors and our members 

are appointed by the Governors and represent senior water managers and administrators. It is actually a little ironic that I am 

here after being snowed-in in South Dakota for 3 days, that I am 

here to talk about drought. And I spent 3 days in a hotel with a 

good friend of Mr. Amodei’s, Mr. Roland Westergard, who is a 

member of the Council. 

My testimony is based on a position, which is included for your 

review. And as part of that I would also like to recognize that part 

of this Act authorizes the Secretary to work with other Federal and 

State agencies in providing hydrologic data collection and water 

supplier forecasting. And before you, I believe you have a brochure 

which talks about another program that we support, the National 

Integrated Drought Information System, which includes the support of the Department of the Interior. 

Drought has been and continues to be serious in the West. This 

is an October 1 diagram of the extent of the drought. While there 

40 

has been some alleviation, there is still most of the West that is 

afflicted by moderate to extreme drought, with a few exceptions, 

and with a few areas where there is still exceptional drought. 

NOAA has determined that three of the five most costly weatherrelated disasters, including Katrina and Superstorm Sandy, the 

other three are drought. We are still calculating the cost of the 

drought last year. Actually, it was record-breaking and compares 

only to the drought of 1934 in terms of its persistence and magnitude. It is also unusual in its quick onset and has become known 

as a flash drought. And it will be some time before we can fully 

calculate all of the costs. But that highlights the need to focus resources on planning for and mitigating drought impacts. 

These antecedent conditions we anticipate will mean the drought 

will be with us for some time, with continuing impacts on the economy, the environment, and other interests. As was mentioned by 

Representative Napolitano, it is estimated that drought costs $6 to 

$8 billion a year in the United States. To the ski industry last year, 

it is estimated that skier visits were down nearly 12 percent in 

2012 compared to 2011. Seventy percent of the Nation’s crop and 

livestock production was affected last year. There was over a billion 

dollars in damages due to wildfire. And the Colorado River experienced its worse or its driest year since records began in 1985, with 

only 44 percent of the average annual runoff. 

But notwithstanding the severity, in the past we have taken a 

reactive approach to responding to drought on an ad hoc basis, and 

we need to be much more proactive. In 1996 the Western Governors set a goal, an aggressive goal, changing the way we deal 

with drought and responding to drought and being more prepared. 

And we have worked with a number of Federal agencies, including 

the Bureau of Reclamation, to improve our management. One out 

of every five farmers in the West is served by the Bureau of Reclamation, along with 31 million people. And they have a very important role to continue to play in water supply management and 

reliability in the West. 

I mentioned, too, that with respect to the assistance that they 

provide under the Act, the authorities that are unique, they have 

the ability to participate in drought banks, as well as to acquire 

water from willing buyers and facilitate trades between buyers and 

sellers, to provide water under temporary contracts, and also make 

reclamation facilities available for the storage and conveyance of 

both project and nonproject water, as well as to acquire water for 

fish and wildlife. 

With respect to planning, Benjamin Franklin said, ‘‘By failing to 

plan, you are preparing to fail.’’ And the planning aspects of this 

bill are also important. States have primary authority over the allocation of use of water, and I want to emphasize that. But we have 

long supported integrated water resources management and planning and the need for comprehensive respond to drought. 

And I just conclude by saying that if the exceptional drought conditions that we have, and absent reauthorization of this bill, it will 

be even more difficult to address many of the challenges that we 

face and there will be serious consequences for small communities, 

for tribes, and others who do not have the resources that are availVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
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1Kelly Helm Smith, Drought Shifts West on April 23 U.S. Drought Monitor as Heavy Rains 

Drench the Midwest, Nat’l Drought Mitigation Ctr. News (Apr. 18, 2013), http://drought.unl.edu/ 

NewsOutreach/NDMCNews.aspx?id=90. 2 Id. 3 Hearing on Drought, Fire and Freeze: The Economics of Disasters for America’s Agricultural 

Producers before the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, 113th Cong. 

1, 3 (Feb. 14, 2013) (statement of Roger Pulwarty, Director, National Integrated Drought Information System). 

able to them and assistance through this Act. Thank you very 

much, Mr. Chairman. 

Mr. MCCLINTOCK. Great. Thank for your testimony. 

[The prepared statement of Mr. Willardson follows:] 

PREPARED STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE DIRECTOR, WESTERN

STATES WATER COUNCIL, MURRAY, UTAH

H.R. 3176—to reauthorize the Reclamation States Emergency Drought 

Relief Act of 1991 

I. INTRODUCTION

Chairman McClintock, Ranking Member Napolitano and Members of the Subcommittee, the Western States Water Council (WSWC) is a non-partisan policy advisory body closely affiliated with of the Western Governors’ Association (WGA). The 

WSWC represents 18 western States and WSWC’s members are appointed by their 

respective Governors to represent their States. Our membership includes senior 

state water managers and administrators. Moreover, 12 Federal agencies, including 

the U.S. Bureau of Reclamation, have appointed representatives that comprise a 

Western Federal Agency Support Team (WestFAST) working with western Governors to address pressing western water issues, including drought. 

Our testimony is primarily based on WSWC Position #347, which strongly supports legislation to reauthorize the Reclamation States Emergency Drought Relief 

Act (43 U.S.C. 40), providing the Bureau of Reclamation with much-needed tools to 

respond to record-breaking drought. Of note, ‘‘The Secretary is authorized to work 

with other Federal and State agencies to improve hydrologic data collection systems 

and water supply forecasting techniques to provide more accurate and timely warning of potential drought conditions and drought levels that would trigger the implementation of contingency plans.’’ 

The WSWC strongly supports such authorized activities and similarly reauthorization of the National Integrated Drought Information System (NIDIS). 

II. DROUGHT IN THE WEST

Drought has been, is, and will be an ongoing fact of life in the arid West. While 

conditions in many areas have improved recently, much of the West and Midwest 

continue to be affected by moderate to extreme drought, with a few areas of exceptional drought, as illustrated by the U.S. Drought Monitor of October 1, 2013. In 

the Summer of 2012, some two-thirds of the country was experiencing some level 

of drought, and this past spring nearly half the Nation was affected by moderate 

to exceptional drought conditions.1

Unfortunately, the most up-to-date information is unavailable due to the shutdown of National Oceanic and Atmospheric Administration’s (NOAA) Web site, 

www.drought.gov. 

Of note, NOAA estimates that three of the five most costly U.S. weather related 

disasters were droughts—with Hurricane Katrina ranked #1, and Super Storm 

Sandy #4. The cost of the Drought of 2012 has yet to be fully calculated. Still, the 

figures available underscore the economic, environmental and social costs related to 

drought, and the need to focus more resources on planning for and mitigating 

drought impacts, as well as facilitating a prompt response during drought emergencies. 

Although recent precipitation has somewhat improved drought conditions, particularly in the Midwest,2 the U.S. Seasonal Drought Outlook suggests drought will 

likely persist in much of the West for some time. 

Dry conditions this past summer follow the record breaking drought of 2012, 

which was unique in terms of its sudden onset, persistence, and magnitude—both 

in terms of extremes and the large geographic area affected.3 For example, over 60 

percent of the contiguous U.S. experienced moderate to extreme and exceptional 

drought during 2012, with only 1934 comparable in duration and geographic exVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
42 

4 Id. 5 Nat’l Climatic Data Center, Wildfires—Annual 2012 (Jan. 7, 2013), http:// 

www.ncdc.noaa.gov/sotc/fire/2012/13. 6W. Governors Ass’n, Creating a Drought Early Warning System for the 21st Century, preface 

(2006), http://westgov.org/reports/doc_download/394-creating-a-drought-early-warning-system-forthe-21st-century-nidis. 7Pulwarty, supra note 3 at 2 (citing Aon Benfield Reinsurance Group’s Annual Global Climate 

and Catastrophe Report). 8 Id. 9 U.S. Dep’t of Ag., Economic Research Service, U.S. Drought 2012: Farm and Food Impacts, 

http://www.ers.usda.gov/topics/in-the-news/us-drought-2012-farm-and-foodimpacts.aspx#.UXhHzbU4udh. 10Pulwarty, supra note 2 at 1; Nat’l Climatic Data Center, Wildfires—Annual 2012 (Jan. 7, 

2013), http://www.ncdc.noaa.gov/sotc/fire/2012/13. 11 U.S. Forest Serv., Whitewater-Baldy Complex Final Community Update (June 28, 2012), 

http://www.fs.usda.gov/detail/gila/news-events/?cid=STELPRDB5377297. 12Pulwarty, supra note 3 at 1. 13 Id. 14 U.S. Bureau of Reclamation, Bureau of Reclamation: Facts and Information, (Jan. 4, 2013), 

http://www.usbr.gov/main/about/fact.html. 

tent.4 Last year, was also the warmest year on record for the contiguous U.S. dating 

back to 1895.5

Not surprising, these antecedent conditions coupled with the ongoing drought 

have adversely impacted a broad spectrum of economic, environmental, and other 

interests across the West and the Nation as a whole, the effects of which will reverberate for years to come. Examples include: 

• According to some estimates, drought costs the U.S. economy between $6 billion to $8 billion per year,6 with the cost of the 2012 drought possibly exceed- ing $35 billion.7

• Agriculture accounted for much of the economic costs of the 2012 drought,8

due in part to moderate or exceptional drought conditions affecting around 70 

percent of the Nation’s crop and livestock production at certain times during 

the year.9

• For only the third time in over 40 years, wildfires across the country burned 

more than 9 million acres in 2012, causing over $1 billion in damage.10 The 

most damaging fires occurred in the West, including the Whitewater-Baldy 

Fire which burned 297,845 acres in New Mexico’s Gila National Forest.11

• The Colorado River Basin experienced one of its driest years in the 1895– 

2012 period of record, with only 44 percent of its annual average runoff.12

• Skier visits to the 21 resorts that comprise Colorado Ski Country USA were 

down 11.5 percent in 2012, compared to 2011.13

Notwithstanding the severity of these impacts and the relative frequency of 

drought in many parts of the West and the Nation, in general, we have to often 

taken a reactive approach to drought, responding on an ad hoc basis to each drought 

crisis as it develops. However, over the years, many western States and Federal 

agencies have undertaken more proactive approaches to coordinated planning and 

preparedness intended to avoid or mitigate adverse impacts before they happen. 

Of note, in the 1996 Drought Response Action Plan, the WGA set an aggressive 

goal of changing the way our Nation prepares for and responds to drought, with 

subsequent efforts by the WGA and the WSWC designed to promote a comprehensive, coordinated, and integrated response to drought at all levels of government. 

We have worked with Federal agencies, including the Bureau of Reclamation, to 

promote, proactive, cooperative drought contingency planning and response. 

III. THE RECLAMATION STATES EMERGENCY DROUGHT RELIEF ACT

The Bureau of Reclamation is the Nation’s largest wholesale water supplier, providing water to over 31 million people and supplying irrigation water to one out of 

five western farmers.14 Notwithstanding Reclamation’s vital role as a water supplier 

in the West, the Act constitutes the whole of its specific drought response and planning authority. Consequently, failure to reauthorize the Act will limit Reclamation’s 

ability to deliver assistance in response to present drought impacts and also limit 

its ability to help States, tribes, and other stakeholders plan for mitigating and 

minimizing future drought impacts. 

A. Title I—Assistance During Drought 

Title I of the Act authorizes Reclamation to undertake construction, management, 

and conservation measures during drought to minimize or mitigate damage or loss, 

including authority to act as a ‘‘last resort’’ to aid smaller towns, counties, and 

43 

tribes that lack the financial capacity to address drought impacts on their own. It 

also authorizes Reclamation to acquire water to meet diverse requirements under 

the Endangered Species Act, while at the same time benefiting water users and 

water delivery contractors at a time when they often face significant financial challenges. Other beneficial drought response actions that Reclamation can undertake 

under Title I include: 

• Participation in water banks established under Federal law; • Facilitation of water acquisitions between willing buyers and willing sellers; • Acquisition of conserved water for use under temporary contracts; • Making Reclamation facilities available for storage and conveyance of project 

and non-project water; • Making project and non-project water available for non-project uses; and • Acquisition of water for fish and wildlife purposes. 

B. Title II—Drought Contingency Planning 

Title II of the Act responds to Benjamin Franklin’s oft-quoted adage: ‘‘By failing 

to plan, you are preparing to fail.’’ Specifically, it authorizes Reclamation to assist 

and participate in the preparation of drought contingency plans in all 50 States and 

U.S. territories to help prevent or mitigate future drought-related losses. Title II 

also authorizes Reclamation to conduct studies to identify opportunities to conserve, 

augment, and make more efficient use of water supplies that are available to Federal Reclamation projects and Indian water resource developments to better prepare 

for and respond to drought conditions. 

States have primary authority over the allocation and protection of water resources within their borders. However, the WSWC has long supported integrated 

water resource management and encourages the development of comprehensive 

water plans with State leadership and Federal assistance. This includes a comprehensive and integrated response to drought in which States work with Federal 

agencies, local communities, and other stakeholders to develop proactive drought 

preparedness and contingency plans. 

Title II authorizes Reclamation to engage in exactly this type of planning, which 

is critical to the social, environmental, and economic well-being of the West. Reauthorization of the Act is needed to maintain Reclamation’s ability to carry out this 

important work. Otherwise, States, tribes, and local communities will likely be deprived of much needed technical assistance and expertise at a time when some projections indicate that large portions of the West, particularly the Southwest, will become hotter and drier in coming years. Many of these areas are also experiencing 

increasing demands on already scarce water supplies due to rapidly growing populations, environmental requirements, energy resource development and other factors. As a result, the need for effective drought preparedness and contingency plans 

has never been greater. Of note, many of the enumerated elements of such plans, 

including water banks and water rights transfers (both temporary and permanent), 

may require State authorization. 

IV. CONCLUSION

The exceptional drought conditions of 2012 and the ongoing drought that covers 

much of the West underscores the need to reauthorize the Act. Reauthorization will 

provide Reclamation with clearer direction and greater flexibility to continue delivering water and much needed financial and technical assistance to States, tribes 

and local communities suffering from record-breaking drought impacts. Reauthorization will also facilitate more effective State-based and other grassroots drought preparedness and mitigation efforts. Absent reauthorization, Reclamation will lack critical authority to provide emergency assistance. 

Moreover, given our member States’ experience with implementation of the Act, 

it may be well to further evaluate the current needs of the States, tribes and local 

communities and Reclamation’s existing authorities and capability to assist in meeting those needs as appropriate. With minor exceptions, such as the drilling of wells, 

the Act authorizes only temporary, non-structural actions. To maximize the effectiveness and efficiency of such actions, they should be considered and undertaken 

within the context of both State emergency drought response plans, but broader 

State water planning activities. 

Notably, the Act provides that the programs and authorities become operative 

‘‘only after the Governor or Governors of the affected State or States . . . has made 

a request for temporary drought assistance. . . .’’ Further, the Act states, ‘‘All actions taken pursuant to this chapter pertaining to the diversion, storage, use, or 

transfer of water shall be in conformity with applicable State and applicable Federal 

law.’’ Last, ‘‘Nothing in this chapter shall be construed as expanding or diminishing 

44 

State, Federal, or tribal jurisdiction or authority over water resources development, 

control, or water rights.’’ 

The WSWC appreciates the opportunity to submit this testimony and urges the 

Committee to favorably report H.R. 3176 to reauthorize the Act. 

Mr. MCCLINTOCK. And the Chair is now pleased to recognize Mr. 

Wayne Crews, Vice President for Policy and Director of Technology 

Studies for the Competitive Enterprise Institute based in Washington, DC, to testify. Welcome to the committee. 

STATEMENT OF WAYNE CREWS (H.R. 3176), VICE PRESIDENT, 

COMPETITIVE ENTERPRISE INSTITUTE, WASHINGTON, DC 

Mr. CREWS. I am Wayne Crews, Vice President for Policy at CEI, 

and I thank the committee for the invitation to address Federal 

drought relief funding and planning. I come at this issue from the 

perspective of one who spends most of my time on tech and frontier 

policy issues, industry policy issues, including compiling an annual 

Federal regulation report called ‘‘Ten Thousand Commandments.’’ 

Given environmental barriers to urgently needed water in the 

West, I completely understand the desire for the funding in 

H.R. 3176, and granted the dollars sought are trivial in context of 

the current budget battles, but I caution against any fostering of 

any further declaration of dependence on Federal dollars in any 

sector. 

The regulatory reforms and infrastructure liberalization actually 

needed for plentiful, adaptable, environmentally conscious Western 

water should dominate our attention. The good news is water is not 


85145.003.eps
45 

getting more scarce overall, it is an earthly constant. The bad news 

is we artificially interrupt access to water, so management and allocation of that constant supply does matter. 

The Western and California natural environment is a world wonder, but so, too, is the remarkable manmade infrastructure. Western environments are some of the most altered on Earth, and yet 

environmental protection is not alien to providing plentiful water, 

the opposite is true. Restraints like waste stream recapture, conservation and stewardship, property rights regimes, liability and 

insurance all must evolve alongside infrastructure. Governments 

often magnify environmental damage and risks. Water resources 

and environmental amenities should be better integrated into the 

property rights wealth-creating sector, an evolution long since derailed not just here but elsewhere, like in electromagnetic spectrum, electricity and transportation grids. 

Instead of the Drought Reclamation Act, I advocate increasing 

separation of water and State. We should lessen having government steer while the market merely rows. 

Federal policies can be contradictory, too. We hear a lot about a 

Federal infrastructure bank and we are endlessly regaled about the 

urgency of bolstering critical infrastructure, but these sentiments 

are certainly undercut by onerous permitting and environmental 

regulations that aggravate drought out West. 

The fact is, as a free society becomes wealthier, cross-industry 

creation of infrastructure like water should become easier, not 

harder. The vastly poorer America of 100 years ago built overlapping, redundant infrastructure. So if we can’t do it today, it is 

largely because of manmade policies, not genuine drought. 

Infrastructure can take many forms, but all around better reservoir storage, pipelines and canals, trucking and transport, and 

crude oil carriers can aid supply and lessen artificial drought and 

lessen impetus for Federal funding. So, too, can improved trade between cities, farmers, and private conservation campaigns. Improving water infrastructure can also reduce the waste that now depletes some 17 percent of annual supply, as noted in a Competitive 

Enterprise Institute by Bonner Cohen last year. 

All this can supplement direct sourcing alternatives, including 

drilling, gray and wastewater treatment and reclamation, storm 

water harvesting and surface storage, and, OK, even desalination 

where it is economically rational. When linking investment to 

human needs, private investors can test low-probability projects, 

counting on rare successes to offset the failures. Markets need to 

be good at killing bad projects. As CEI’s founder Fred Smith puts 

it, instead of trying to improve speeds by picking particular horses 

to run on the economic racetrack, we must improve the track itself 

so all the horses can go faster, and letting jockeys keep more of 

their earnings means more jobs in these suffering areas, too. Thus 

we also need sweeping regulatory liberalization. In my written testimony I cover reform options to enable a private sector flush with 

research and development cash and investment cash to dwarf 

H.R. 3176. 

Finally, this is the Water and Power Subcommittee, and I think 

it is vital to step back and explore dismantling these regulatory 

silos that artificially separate our great network industries like 

46 

1 U.S. Department of the Interior, Bureau of Reclamation Web site: http://www.usbr.gov/ 

drought/. 2See Fred L. Smith Jr., Eco-Socialism: Threat to Liberty Around the World, paper presented 

at the Mont Pelerin Society Regional Meeting, Chattanooga, Tennessee, September 20, 2003. 

http://cei.org/pdf/3818.pdf. 

3http://www.aquafornia.com/index.php/where-does-southern-californias-water-come-from/. 

water, electricity, transportation, telecommunications. Leaving antique 19th and 20th century infrastructure regulation intact hampers 21st century investment. 

[3:25 p.m.] 

Mr. CREWS. Our primary challenge is to integrate modern water 

resources further into the market process and the sophisticated 

property rights and capital market systems of the modern world. 

Despite everything, gallons cost less than a penny and, yes, even 

fill swimming pools and quench lawns in deserts. 

The last time I spoke in the subcommittee I was asked if I 

thought access to water was a right. Now committee members who 

believe it is must consider the full implications of that question. 

What makes abundant water the most critical of critical infrastructures possible? Thank you. 

[The prepared statement of Mr. Crews follows:] 

PREPARED STATEMENT OF CLYDE WAYNE CREWS JR., VICE PRESIDENT, COMPETITIVE

ENTERPRISE INSTITUTE, WASHINGTON, DC 

For every action, there is an equal and opposite government program. 

—unknown 

The Competitive Enterprise Institute (CEI) is a non-profit public policy research 

organization dedicated to advancing individual liberty and free enterprise with an 

emphasis on regulatory policy. We appreciate the opportunity to discuss issues surrounding H.R. 3176, a bill reauthorizing parts of the Reclamation States Emergency 

Drought Relief Act, which ‘‘authorizes emergency response and planning assistance 

that would minimize and mitigate losses and damages resulting from drought conditions.’’ 1

We see issues surrounding water access and supply in the West and notably Central Valley California as elements of broader infrastructure, property rights and economic growth policy. 

Competitive and localized rather than Federal approaches to expanding infrastructure industries and the technologies and innovations underlying them, along 

with broader Federal regulatory liberalization more generally, will be more effective 

than Federal funding of particular projects at boosting innovation and resource 

wealth, enhancing consumer well-being, facilitating commerce and trade and advancing national prosperity. 

Water, like other ‘‘public goods’’ resources largely non-privatized prior to the Progressive era, largely has never been brought into the competitive realm since the 

progressive era interruption of extensions of private property rights, which has had 

long-term consequences.2 Like spectrum, airsheds and environmental amenities generally, water is one of the fundamental resources that never fully entered the wealth 

creating sector. 

A MANMADE WESTERN WATERSCAPE NEEDS LESS WASHINGTON

California is a beautiful fraud; a magnificent put-on, an exquisitely lush illusion. From the farmlands of the Central Valley to the swimming pools, green 

lawns and flowering landscapes of Southern California, it is all a brilliantly engineered masterpiece, an extensive rearrangement of the existing natural order, 

created by the ingenuity and will of man, and costing billions of taxpayer dollars 

in the process. 

—Aquafornia 3

The Reclamation States Emergency Drought Relief Act, H.R. 3176, covers 17 

western states (and Hawaii), and all 50 with respect to planning. 

47 

My summary with regard to H.R. 3176, the reauthorization of the Reclamation 

States Emergency Drought Relief Act, is that one needn’t give the world’s 8th largest economy $15 million from Federal taxes for relief actions and planning. California is not the only recipient of course, but the bill is counterproductive with respect to water access goals. If that money is allocated, there’s no reason it should 

not be paid back. Meanwhile, regulatory liberalization is a better option for 

strengthening this vital industry. 

California is the land of milk and honey but also the realm of hundreds of dams, 

canals, aqueducts and reservoirs. Granola and hippie legacy notwithstanding, 

California’s is perhaps the most manipulated environment on the planet, but the nature lovers seem happy remaining there marinating in the ‘‘artificiality.’’ 

That’s not an insult. Water resource development supports entire cities and 

towns. Remake of the landscape is total. When one turns on the tap, that water 

often comes from hundreds of miles away. Nothing water-wise is natural in the 

State, which—one can dream—should make it easier rather than harder to address 

grave political battles. 

While today’s California would have shut down yesterday’s before it ever started, 

a dose of reality is required in western water policy. If ruthless, brutal drought and 

flood cycles—which would render most lifestyles impossible—are unacceptable, and 

they most assuredly are, then active water management is necessary, and is a good 

thing. 

Western states should fund resolution of their environmental problems and water 

access issues without involving the far less blessed rest of the Nation, who have 

their own crises. If funds from are received, they should be reimbursed. 

Longer term we must emphasize regulatory liberalization, environmental rationality, and, longer term, better bring California’s vast delta and glacial and reservoir 

water resources under market systems/regimes to ‘‘balance’’ the warring agricultural/irrigation in lower central valley, drinking water, industrial, environmental 

set-asides and recreational uses. 

Californian’s actions show that they’ve accepted irretrievable change, even 

though, as John McPhee pointed out, there are only a handful of river deltas where 

two rivers combine. There is no denying the grandeur of the Central Valley, ‘‘Far 

more planer than the planest of plains’’ as McPhee put it, noting that the got there 

before the ‘‘mountains set up like portable screens.’’ The Central Valley Project 

(CVP) irrigates three million acres, water that could come from the Delta or nearby 

or hundreds of miles further. 

Like the natural environment, the manmade water infrastructure itself is a world 

wonder. The valley is the most productive agricultural economy; almonds, artichokes, everything. With pipelines and pumps traversing hills, the CVP is said to 

be a net producer of energy/ recapture in the Valley at CVP; that’s good, what are 

lessons from that in terms of liberalizing infrastructure to better meet consumers’ 

needs. 

But it gets hot, and fruit trees are painted white to avoid sunburn. Geologically 

the Delta levees are tissue paper. The State will have to upgrade them since they 

aren’t going to last. The State is home to the highly energy intensive tech industry; 

it is friendly toward high levels of immigration; its population is growing. So 

droughts must be managed, water better stored and allocated. Anticipation and 

planning matter. Policymakers’ job is to prevent further derailment of bringing environmental resources and amenities into the pricing institutions of markets and 

property rights, regardless of the failure (universal, not just in California) of building those institutions in the past. Such regimes are too young as human institutions 

to have done it right. 

It’s one thing to argue against taxpayer dollars for unreimbursed well drilling and 

Reclamation plans as in the H.R. 3176 instance, and this report does that; It also 

advocates regulatory reforms, and environmental rationality so as to ease production. Long term, it is worthwhile and meaningful to fit this debate into the context 

of the context of ‘‘big assets,’’ critical infrastructure, water pricing and access and 

environmental health. Rather than send money, policymakers’ job is the opposite: 

to prevent the machinations that interrupt market clearing prices and result in 

shortages and misallocations. 

WHAT’S IN THE RECLAMATION STATES EMERGENCY DROUGHT RELIEF ACT

Water availability is a core national infrastructure concern. The specific legislative issue in H.R. 3176, a bill reauthorizing parts of the Reclamation States Emergency Drought Relief Act, is what role the Federal Government should play in 

drought planning and mitigation. At the core is reauthorization to spend $15 million 

48 

4http://www.usbr.gov/drought/. 

5http://www.usbr.gov/drought/102-250.html. 

6 Nunes bill http://www.gpo.gov/fdsys/pkg/BILLS-112hr1837ih/pdf/BILLS-112hr1837ih.pdf and 

summary; http://nunes.house.gov/uploadedfiles/legislative_summary_of_the_sacramentosan_joaquin_valley_water_reliability_act.pdf. 7http://blog.sfgate.com/zgrader/2011/07/25/congressman-nunes-attempt-to-destroy-californiassalmon-and-fishing-jobs/. 8Fite-Reese, An Economic History of the United States, 2nd Edition. 

9Observation by CEI Fellow Robert J. Smith. 

in remaining funds. The original act passed in 1991, created largely because of a 

6-year California drought, but the planning applies to all 50 States. 

The Bureau of Reclamation says (BOR) ‘‘The Act authorizes emergency response 

and planning assistance that would minimize and mitigate losses and damages resulting from drought conditions.’’ 4

The Act itself can be summarized as follows: 5

Title I: Assistance During Droughts: Allows Reclamation to undertake activities 

that would minimize or mitigate drought damages or losses within the 17 

Reclamation States including tribes within those States, and Hawaii. Any construction activities undertaken shall be limited to temporary facilities, with the 

exception of well construction. 

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

The bill is rather open-ended, providing for conducting studies and technical assistance that even includes controversial desalination projects. The ‘‘Plan Provisions’’ including but not limited to the below are precisely what market actors 

should manage, not the Federal Government as a mini-FEMA. 

1. Water banks. 

2. Appropriate water conservation actions. 

3. Water transfers to serve users inside or outside authorized Federal Reclamation project service areas in order to mitigate the effects of drought. 

4. Use of Federal Reclamation project facilities to store and convey nonproject 

water for agricultural, municipal and industrial, fish and wildlife, or other 

uses both inside and outside an authorized Federal Reclamation project service area. 

5. Use of water from dead or inactive reservoir storage or increased use of 

ground water resources for temporary water supplies. 

6. Water supplies for fish and wildlife resources. 

7. Minor structural actions. 

Water utilities and irrigation districts are not required to repay Federal funds 

used for well drilling (the bulk of support under the law) in times of drought; they 

benefit in perpetuity. In California, most went to the San Joaquin Valley district. 

We require alternatives to this flawed program, at the very least, repayment of 

funds. The San Joaquin Water Reliability Act of Rep. Devin Nunes is another alternative; he stresses jobs and seeks to turn on the Delta water export pumps to 

former levels.6 Fishery groups criticize Nunes for an ‘‘assault on California’s fisheries and rivers’’ and for wanting to ‘‘seize much of the water devoted to California’s 

fisheries and the environment, delivering it instead to the agribusiness barons of 

the western San Joaquin Valley.’’ 7 In the face of such opprobrium, it is understandable that irrigation districts and utilities that receive less water owing to Delta related environmental restrictions would like the ‘‘compensation’’ the $15 million represents, but that is less than a band-aid particularly if the funding discourages 

needed conservation or is seen as a replacement for regulatory liberalization needed. 

So at the least, the bill should require that the funds be returned to taxpayers. 

Irrigation once was a more individualized matter; the 1877 Desert Land Act that 

amended the Homestead Act provided for a 25 cents per acre down payment on 640 

acres; the new owner would bring a portion under irrigation within three years, and 

could receive full title upon proof of irrigation and payment of an additional dollar 

per acre.8 In that former world, one was to prove one had irrigated land oneself to 

receive a land grant, however fraud-riddled that was. 

Make no mistake, property rights claims are a mish-mash in the West; Native 

Americans have rights dating back to time immemorial; the BOR to 1905; the 

National Wildlife Refuges to 1928 and 1964; the homesteaders have rights claims 

dating to whenever they first settled in the basin extending into perpetuity.9

Policymakers’ objective should be to increasingly liberalize the marketplace, including improving the regulatory environment such that we better avoid man-made 

49 

10 Alice Albinia, ‘‘A Famous River’s Unhappy Descent,’’ Wall Street Journal, July 23, 2012. p. 

A11 (A review of Meander, by Jeremy Seal). 11Kendra Alleyne, ‘‘Man Sentenced to 30 Days for Catching Rain Water on Own Property Enters Jail’’, CNS News, August 8, 2012. http://cnsnews.com/news/article/man-sentenced-30-dayscatching-rain-water-own-property-enters-jail. 12G. Tracy Meehan III, ‘‘Flood Zones: A Market Solution to the Challenge of Water Supply,’’ 

(A book review of The End of Abundance by David Zetland), Weekly Standard, July 16, 2012. 

pp. 36–37. 13 Charles Fishman, ‘‘Five Myths About Water,’’ Washington Post, April 6, 2012. http:// 

www.washingtonpost.com/opinions/five-myths-about-water/2012/04/06/gIQAS6EB0S_story.html. 

droughts; and payments under the guise of this bill at the very least should achieve 

that end. Longer term, subjecting water strategy decisions and investment to marketplace pressures that address competing interests will become increasingly important, and if those pressures have been subverted by past political choices, to return 

them to the private realm, or to make the private realm more relevant to future 

choices. 

A FOUNTAIN OF SOLUTIONS FOR WESTERN STATES

Periodic western droughts and environmental fallout from water access policy is 

not unique. Rather, such issues are globally contentious. A Wall Street Journal book 

review on the ‘‘unhappy descent’’ of Turkey’s Meander River couldn’t help but invoke common laments that: 10

In North America, so much water is taken out of the Colorado that it no longer 

reaches the sea. Nor does the Rio Grande. Or the River Jordan. Or China’s 

Yellow River. 

Access to water in times of plenty and in times of drought is a fundamental infrastructure concern everywhere; further, the issues surrounding innovation and research in water policy are elements of broader science and manufacturing policy. 

Aggravations abound locally and so do penalties. One Oregon man catching rainwater on his own property received 30 days in jail for apparently breaking a 1925 

law against personal reservoirs,11 but when scarcity and emotions run high, strange 

things happen. 

In addition to developments like rainwater theft prosecution, water policy can be 

fundamentally perverse and distortionary: water supply systems may not cover their 

debts, operations and capital replacement needs, and as governmental monopolies, 

they sometimes ‘‘are used as cash cows to support more labor-intensive functions of 

local government, such as fire and police.’’ 12

Efforts like H.R. 3176, the Reclamation States Drought Relief Act, and the desalination programs this Committee has addressed add to such problems. 

The first Delta levees appeared around the time of the Gold Rush so the altered 

landscape has long been a fixture. The Federal Government role enlarged during the 

Great Depression. 

But impulses that foster national governmental programs that exacerbate 

misallocation of water and money should be resisted. That is the problem with H.R. 

3176; Policymakers should subject water policy decisions, pricing, investment and 

conservation to marketplace pressures, alien as that may be. In the current battle 

that means requiring reimbursement for well drilling at the very least. 

But further, streamlining permitting and competitive approaches to infrastructure 

and the technologies underlying it and regulatory liberalization represent ‘‘fountain’’ 

of solutions be more effective than politics at boosting innovation, enhancing consumer well-being, facilitating commerce and trade, and contributing to California’s 

and United States prosperity. 

How can we be sure? Charles Fishman, author of The Big Thirst: The Secret Life 

and Turbulent Future of Water, penned a rundown of myths about water, noting 

even our ignorance of where it goes upon disappearing down the drain.13 In terms 

of quantity, water is actually not getting more scarce; it’s constant on earth. And 

the salty oceans? They’re actually: 

Olympian springs of fresh water—every day, the sun, the sea and evaporation 

combine to make 45,000 gallons of rainwater for each man, woman and child 

on Earth. . . . Even in the United States, where we use water with profligacy, 

the oceans are making more fresh water for each of us in a month than we’ll 

use in a decade. 

Fishman continues, ‘‘We never really use it up. Water reemerges from everything 

we do with it, whether it’s making coffee or making steel, ready to use again.’’ 

50 

14 EPA on average family use http://www.epa.gov/WaterSense/pubs/indoor.html. 15 Bonner R. Cohen, ‘‘Fixing America’s Crumbling Underground Water Infrastructure,’’ Competitive Enterprise Institute, Issue Analysis 2012 No. 3, April 11, 2012. http://cei.org/sites/ 

default/files/Bonner%20Cohen%20-%20Fixing%20America%27s%20Water%20Infrastructure.pdf. 16David Zetland has noted an interesting co-existence of cheap water and bad finances more 

generally http://www.aguanomics.com/2012/02/link-between-cheap-water-and-bad.html. 17G. Tracy Mehan III., ‘‘The Future of Water: Technology, Economics, Political Will,’’ The Environmental Forum, May/June 2012, p. 6–7. 

That’s a useful insight for California’s feast/famine water predicament. Water is 

constant; its allocation and pricing that matter, and it is regulations and environmental over-reach that often discourage properly priced supply. Shortages are not 

really at hand when demand has grown without price adjustments. 

Water is both a necessity and a luxury good. We use more as we get wealthier, 

which requires more energy, which itself requires still more water. Nonetheless, 

overall the Nation uses less water than in the 1980s (agriculture and power remain 

the largest users); families use a little more than back then.14

But it doesn’t always rain in the same places, and over time populations shift 

(sometimes even in response to artificially prolific water supplies). California represents the peak expression of this reality. 

Challenges loom. ‘‘America’s population is expected to grow by 100 million—a 30- 

percent increase—by the middle of the 21st century,’’ notes Bonner Cohen in ‘‘Fixing 

America’s Crumbling Underground Water Infrastructure.’’ 15 And infrastructure 

won’t be cheap. Cohen continues, ‘‘Over the next 20 years, upgrading municipal 

water and wastewater systems is expected to cost between $3 [trillion] and $5 trillion. Building and replacing water and sewage lines alone will cost some $660 billion to $1.1 trillion over the same time period.’’ 

There’s no need for Malthusian despair, because in the face of it all, gallons of 

water cost Californians and Americans less than a penny. Decisions may be reacting 

to broader mismanagement.16 Fifteen million seems trivial. But on the other hand, 

as G. Tracy Mehan, writing in The Environmental Forum, put it, ‘‘Scottish lawns 

and recreational swimming are luxury items in arid areas and should bear the cost 

of scarcity in the price of water. Moreover, low water rates are basically middle-and 

upper-class subsidies.’’ 17

POLICY CONTEXT: AVOID HAVING GOVERNMENT STEER WHILE THE MARKET MERELY

ROWS

The Reclamation States Drought Relief Act program is counterproductive and unnecessary. When one knows the Federal Government will step in, it changes behavior. Like other interventions in free society, it changes the trajectory and risk calculus of those acting within the framework. 

Economic calculation requires market signals; Federal planning approaches are 

extra-market and distortionary. Even without drought, economic miscalculation 

plagues planned systems. 

We need more fresh water in estuaries, but rarely is there mention of property 

rights. Notwithstanding environmental battles, which often take on religious overtones, allowing price of water to fluctuate is a part of the answer. Reacting to market price of water is a means of conservation, just as in every other walk of life. 

As policy discussions unfold surrounding drought preparedness and water policy 

generally, several challenges confront policymakers. These involve such matters as: 

• Federal Spending’s Distortionary Impact and the Limitations of Federal 

Research and Planning 

• Federal Policy vs. Markets in Drought Preparedness 

Federal Spending’s Distortionary Impact and the Limitations of Federal Research 

and Planning 

Subsidies like that in the Reclamation States Drought Relief Act are not merely 

unneeded, they can be unfair, since only certain States are involved yet all required 

to pay. 

Funding of western water is unfair to taxpayers across the rest of the country who 

are far less resource-blessed. America’s economy is faced not with just scarcity of 

water, but a scarcity of funds. Granted, the scale of projects under H.R. 3176 of a 

few million is not a lot of money compared to America’s several trillion in Federal 

outlays. 

While the sums involved are virtually irrelevant in the modern spending context, 

they matter in other ways for how California and other western States conduct 

water policy, and provide lessons for the rest of the Nation. 

51 

18The horse and track analogy appears in Fred L. Smith, Jr., Testimony before the Subcommittee on Energy and Environment, House Committee on Science, Hearings on the Fiscal 

Year 1999 Budget. March 24, 1998. http://cei.org/outreach-regulatory-comments-and-testimony/ 

testimony-subcommittee-energy-and-environment-house-commi. 19Fred L. Smith, Jr., 1998. http://cei.org/outreach-regulatory-comments-and-testimony/ 

testimony-subcommittee-energy-and-environment-house-commi. 

The expectation of funds, and the impression created in the original legislation 

and the H.R. 3176 reauthorization can set up unhelpful prioritization of paltry Federal dollars when far graver concerns exist for which Federal funding is not and 

cannot be the answer in California and the rest of the West. 

More importantly, Federal spending’s effects on the nature of water research, production and conservation itself reverberate beyond the dollars at issue. The dollars 

foster a ‘‘leveraging’’ of a negative rather than the positive kind in that parties 

should not look to the Federal Government and Reclamation for guidance. In the 

United States, private investors, localities, states and regions are the proper locus 

of investment to avoid the perpetuation of water policy’s detachment from marketplace pressures. 

Government research has been underway for decades on energy reduction, desalination, treatment of waste capture and more. In markets, research is itself competitive, driven by reaction to consumer needs and to what rivals do. But in typical 

funding legislation of which H.R. 3176 is one example, competition and rivalry 

aren’t central, making both the goals and the methods to achieve them questionable 

with respect to sustainability in the proper sense of the term. 

The supporters of Federal research and projects tend to be from States that would 

directly benefit, but of course that’s the case with many government programs. Except when a local earmark or project is at stake, politicians commonly accept that 

government has no innate ability to pick among competing technologies using taxpayer money. Moreover, government plans operate on an election timeline that 

doesn’t conform to market schedules, undermining efficient execution by governmental bodies on research, development and construction efforts on desalination. 

Politicians cannot assign rational priorities to the stream of ‘‘significant’’ projects, 

thus they will select popular ones benefiting local constituencies; simply note the 

continuing funding of new libraries in the digital age (as opposed to, say, handing 

out wireless-enabled laptops), new post offices, and clamoring over tech programs 

for rural small businesses. 

The hazards of a government appropriations process and the accompanying lobbying for sub-optimal projects are numerous. In the space program, entrenched contractors and legislators from flight-center districts enjoy cost overruns, and lobby 

against cheaper unmanned flights. An ethic of revolutionizing space flight becomes 

unthinkable. There’s no need to recreate or perpetuate such a situation in water policy or any realm. 

In the Federal R&D sweepstakes, bolstering promising technologies has been compared to efforts to improve the speed records at a racetrack by picking the R&D 

horses to run.18 Beyond the technologies for generating clean water and a clean environment, however, the condition of that racetrack and the rewards available also 

matter. Greater ‘‘speeds’’ might be had by improving the track—the business and 

regulatory environment—and by letting ‘‘jockeys’’ (private investors) keep more of 

their earnings.19

The government-picking-technologies model undermines economic liberty, innovation, wealth creation, ‘‘national competitiveness’’ (a frequent rationale for government R&D) and consumer benefits, and is itself a source of risk. Many have argued 

that viable technologies don’t need subsidy, and non-viable technologies probably 

can’t be helped by one. Otherwise, we distort markets, create bubbles and tee up 

future rippling recessions. Rather than picking the winning horses (or worse, the 

Federal Government actually being one of the horses, which worsens the situation 

with water policy), government’s legitimate role is to improve the track on which 

all the horses run; that means liberalizing the regulatory environment within which 

entrepreneurs operate, for starters (the Appendix offers regulatory reform alternatives). 

One aspect of liberalization must be privatization of Federal research efforts rather than creating new ones as research legislation does (which itself would remove 

constituencies for government funding). The typical emphasis is on government 

spending rather than privatization. During the 1990s, it was proposed that essential 

military aspects of Federal labs be transferred to the Department of Defense, while 

commercial aspects should be privatized by offering them to the industries they supposedly benefit or by allowing research staffs to take them over via an employee 

buyout approach. 

52 

20Spain’s King Juan Carlos University released findings that each ‘‘green job’’ created by the 

Spanish wind industry cost four other jobs elsewhere. ‘‘The Big Wind Power Cover-Up,’’ Investor’s Business Daily, March 12, 2010. http://www.investors.com/NewsAndAnalysis/ 

Article.aspx?id=527214. 21See Frederic Bastiat, ‘‘That Which is Seen, and that Which is Not Seen,’’ 1850. http:// 

bastiat.org/en/twisatwins.html. 

Privatization of Federal research is a particularly hard sell when the topic at 

hand is public funding expansion. Perhaps one approach is to limit Federal funding 

for technologies that do not yet exist, and grow out of the problem. 

Overly abundant taxpayer funding is incompatible with a future optimally and 

lightly regulated water sector specifically, or with limited government generally. 

With interventionist water policy, we already observe the seeds for new regulation 

created by the direct impacts, indirect impacts and externalities of the intervention 

itself. 

Normally, America urges developing nations to embrace markets and reject government-steering philosophies for enterprises like growing wheat or making shoes. 

Yet we enable government oversight of advanced networks and infrastructure at 

home, such as water, the Federal Communications Commission’s National 

Broadband Plan and net neutrality rules, and the heavy regulation of electricity. 

Government steering and subsidies can offload technologies onto inefficient paths, 

and can generate artificial booms. One lesson of the telecom meltdown is that government can contribute to the inflation of unsustainable technology and research 

bubbles; we may be at risk of a similar ‘‘green technology’’ bubble now.20 Note again 

that Federal legislation currently artificially favors use of renewable energies, precisely the kind of distortions being noted here. Regardless, we have a regional or 

state issue on our hands, not a Federal one. 

Moreover, there are opportunity costs to governmental funding of technological research. Politics cannot determine optimal research portfolios: Why the mix of activities and contingency planning (like unreimbursed gifts of wells) instead of investments in permanent pipelines from northern California or from other states or corridors; or repair of leaky infrastructure; or water portage via cargo shipping? Or 

other options. 

We can lessen burdens of the inevitable drought and flood periods while avoiding 

the distortions and bubbles created by governmental steering undisciplined by markets. The dilemma is by no means special with regard to water. In other sectors, 

why might we witness a National Nanotechnology Initiative and a National 

Broadband Plan, instead of a biotech agenda? Why not space travel, robotic asteroid 

mining, or more dollars for fuel cells and the hydrogen economy? The proper emphasis for research is impervious to political resolution. Political dominance of production can and will create entire industries, even an economy, disconnected from actual consumer demands and preferences. 

Of course, no political party is immune from channeling Federal dollars to districts in defiance of scientific or economic merit. Problems arise when the Federal 

Government heavily involves itself in the very production of knowledge itself rather 

than in laying the legal, property rights, and contractual foundations of new commercial endeavors. 

Policy ought not to disconnect research and planning from the voluntary market 

process. Policy can advance human welfare and remain most relevant when pulled 

into being by the actual needs of mankind, including practical ones; that best occurs 

in private-sector investment as opposed to taxpayer funded. 

Congress continually revisits the question of what the Federal Government should 

be doing; but rather than embrace the invitation to expand spending on damsel-indistress endeavors (obviously Washington can’t fund every crisis resolution in every 

state), Congress should foster private research (primarily via economic liberalization) rather than appropriate funds or steer research and investment. 

A bit of the ‘‘broken window fallacy’’ 21 comes into play here: we may see 

H.R. 3176’s ‘‘ceremony’’ and ribbon-cutting, but not seen is the alternatives neglected thanks to the redirection of resources and changed behavior. 

Furthermore, it is inappropriate for network industries to all remain walled off 

from one another in a legislative appropriations environment whether for commercial purposes or with respect to ‘‘critical infrastructure’’ security goals. When governments set the agenda it undermines the swirling competition, cooperation, and ‘‘coopetition’’ needed for U.S. economic health, such as hypothetical alliances with other 

network industries for, say, water transport and storage options. 

Outcome-oriented Federal interventions as opposed to broader liberalizations that 

leave outcomes up to the choices and dispersed knowledge of others will produce 

prominent successes that advocates can point to, but fall short taken as a whole and 

53 

compared to the potential. Policymakers could easily use the $15 million provided 

in H.R. 3176 to ‘‘prove’’ how great it was that Washington spent it, but what a 

interventions, subsidies, and regulations create an economy made up of suboptimal 

entities and approaches (in this case water infrastructures and all the attendant social and environmental ills that may resemble what they would under enterprise). 

Those inefficiencies will propagate throughout the economy and over the years. Unpreparedness for drought is one of those results. 

Federal Policy vs. Markets in Drought Preparedness 

Scarcity of water itself in a free, highly mobile society like the United States— 

if that is what drives political fights and intervention—is a creature of poor policy. 

We ought to recognize the true causes of scarcity and drought unpreparedness, and 

avoid perpetuating the ‘‘Declaration of Dependence’’ on Federal dollars and decisions 

that affects some of America’s most crucial infrastructure industries and technologies. 

Conversely, however, even if the private sector did not invest ‘‘enough’’ in research 

like that authorized in H.R. 3176, that too is reason for Federal restraint. States 

reliant on the process may have a role, but that’s their business and their prerogative to fund (although State funding can be similarly vulnerable inefficient.) 

Indeed, water markets are hardly free ones. Because of heavy governmental involvement and the distortions and shifting of relative pricing it creates, it’s not even 

clear in every case of private sector investment that it should be doing so particularly if subsidies or grants are the impetus. 

The costs and benefits of water policy decisions should always be as explicit as 

possible, never obscured. Policy must never mask the otherwise necessary confrontation of underlying water scarcity and the reality of recurring drought, which exacerbates problems and induce calls for Federal intervention. 

Federal and local policymakers’ primary task, as distinct from programs like the 

H.R. 3176, should be unwinding of interference with water price signals so that private investors can react and build the robust critical infrastructure actually needed, 

the scale of which could be far beyond today’s infrastructure, perhaps founded upon 

business models not contemplated today. 

Those price signals should incorporate mitigation of state actors’ own potential 

negative environmental impacts, as property-rights based production demands. 

Among much else, such market pressures can do a better job compelling a polluter 

to internalize or treat waste streams, and to conserve for the inevitable drought 

stretch better than H.R. 3176’s studies and planning. 

Diverting energy and effort into policies that may further disguise real prices by 

spreading costs to non-involved taxpayers, such as H.R. 3176 does with well drilling 

will further delay any needed general or specific reckoning with the way water is 

marketed and priced in California and the Reclamation states (and by extension the 

United States) and will aggravate environmental disputes. Bearing burdens and 

dealing with ‘‘externalities’’ is a critical yet normal part of well-functioning markets. 

Prince signals matter: Better sometimes for the water to cost more and reduce demand and usage. 

Bolstering industry requires vigorous competition among ideas for private funding. The national government’s role in actually fostering such knowledge wealth is 

limited, but its role in liberalizing the American economy so that others can foster 

that wealth is a profound responsibility, perhaps the primary duty of government. 

SEPARATION OF STATE AND WATER: OPTIONS FOR EXPANDING RELIABLE WATER

SUPPLIES

A few non-exhaustive options for improving water supply follow. These are alternatives to the Reclamation States Drought Relief Act approach. 

Infrastructure Advances and Other Innovations 

Markets in infrastructures matter. Innovation and basic research itself do not proceed in isolation in genuine markets. Economic sectors can inform and enrich one 

another, making it advisable to tear down regulatory silos artificially separating infrastructure industries and better exploitations of rights-of-way (water, power, communications, transportation) wherever possible so that knowledge, ideas, products, 

and collaboration—and water—flow more freely. 

As a free society becomes wealthier, creation of infrastructure for needs like water 

should become easier, not harder. The America of 100 years ago that built overlapping, tangled infrastructure with a developing-world-level GDP can build today’s, if 

allowed. Well-functioning capital markets already are our ‘‘infrastructure bank.’’ 

Energy infrastructure, communications infrastructure, electricity infrastructure, the 

infrastructure capabilities of the water sector—all would benefit far more from a 

54 

22See introduction in Adam Thierer and Wayne Crews, What’s Yours Is Mine, Cato Institute: 

Washington, D.C. 2003. 23 Noted in Wikipedia’s entry on desalination, http://en.wikipedia.org/wiki/Desalination. 24Mehan, May/June 2012. 25http://www.nytimes.com/2009/05/12/business/economy/ 

12antitrust.html?_r=1&adxnnl=1&adxnnlx=1268514088-MohE/8/mpcqIAEXJNqJ1JQ. 26 Cohen, 2012, p. 4. 27 Cohen, 2012, p. 3. 

concerted deregulation and liberalization campaign than government spending and 

research. Pushing politically favored infrastructure projects while leaving 19th and 

20th century infrastructure and antitrust regulation intact, undermines the goals of 

legislation like the Reclamation States Drought Relief Act. (The Appendix, ‘‘Economic Liberalization: An Alternative to Government Spending In Service to Water 

Abundance’’ presents such an outline.) 

The pricing of regulated-utility water will frequently diverge from the optimum, 

compounding allocation and availability problems over time. In any event, without 

advocating for any particular alternative, and while stressing the underlying issue 

of water’s character as a non-competitive, non-market enterprise out of sync with 

the modern world, other infrastructure expansion approaches could be appropriate, 

and would benefit from regulatory liberalization. These include: 

• Better transport, including pipelines/aqueducts/trucking/shipping: Advances 

among these matter and change economics drastically, particularly if other 

network industries with rights of way collaborated far more than they do 

today.22 Crude oil carriers can be converted to water carriers.23

• Greater stored supplies in the event of levee breach and drought; more efficient collaborative use of reservoirs and capturing of runoff. 

• Trade: Relatedly, trade allows for coping with competing priorities and grappling with scarcity. G. Tracy Mehan for example notes that ‘‘[E]merging water 

markets allow . . . for trades between cities, farmers, and even NGOs such 

as Trout Unlimited.’’ 24

• Gray/wastewater treatment and reclamation is an alternative for sourcing, for 

agriculture and industry if not for drinking, taking pressure off the latter. 

• Improvements in stormwater harvesting techniques. 

• Conservation: Anderson and Snyder in Water Markets note that ‘‘Markets are 

providing agricultural and urban users with more reliable supplies and with 

an incentive to conserve, and are enabling environmentalists to purchase 

instream flows to protect fish and recreational opportunities.’’ 

• Unleash affordable energy: There is no workaround for the fact that Federal 

and State policies disdainful of conventional energy are inconsistent with the 

presumed goal in proposed Federal legislation of advancing access to water. 

Reducing onerous energy regulations would reduce economic uncertainty and 

enhance water markets. 

President Obama and others have suggested a desire to boost antitrust enforcement.25 That’s unfortunate. Instead, policymakers should relax antitrust so that 

firms within and across industry sectors can collaborate on business plans to bring 

infrastructure wealth to a higher level, including water infrastructure. Markets require competition, sometimes merger, and sometimes merely the kind of cooperation 

or ‘‘partial merger’’ often miscast as damaging collusion. 

Reduction of Water Waste and Improved Contracting 

Another ‘‘alternative’’ alongside regulatory liberalization is to avoid wasting existing supplies. Regulatory and tax relief in the industry can aid this endeavor. And 

ending such waste might be a condition of receiving H.R. 3176 funding. Bonner 

Cohen notes that leaking pipes alone cost 17 percent 26 of the annual water supply: 

Water main breaks and leaking water supply pipes cost American taxpayers billions of dollars every year in lost water and repair costs. Necessary upgrades 

promise to place additional stresses on taxpayers long into the future. Building 

and replacing water and sewage lines alone will cost some $660 billion to $1.1 

trillion.27

Repairs can sometimes be cheaper than other funding schemes. Cohen further 

notes that changing inefficient policies such as restrictions on PVC pipe use, and 

emphasizing competitive procurement bidding for crumbling underground infraVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
55 

28 Cohen 2012. 29For example see Leonard Gilroy and Harris Kenny, Annual Privatization Report 2010: 

Water and Wastewater, Reason Foundation, May 2011. http://reason.org/files/ 

water_annual_privatization_report_2010.pdf. 30 ‘‘Substantial uncertainties remain about the environmental impacts of desalination, which 

have led to costly permitting delays.’’ The National Academies’ Water Information Center, Desalination: A National Perspective, 2008. http://dels-old.nas.edu/water/ 

dyn.php?link_id=5291&session_id=0kqg3jkjuqrkq740sim7g15b77. 31 Auren Hoffman, ‘‘To Grow a Company, You Need to Be Good at Killing Things,’’ Summation, February 21, 2010. http://blog.summation.net/2010/02/to-grow-a-company-you-need-to-begood-at-killing-things.html. 32 Congressional Research Service, August 15, 2011. p. 3. 33 Clyde Wayne Crews Jr., House of Representatives Testimony, Gov’t Role in Investment, 

Water Desalination Policy, May 23, 2013. http://www.scribd.com/doc/143263731/Wayne-CrewsHouse-of-Representatives-Testimony-Gov-t-Role-in-Investment-Water-Desalination-Policy-May23-2013. 

structure,28 and particularly privatization, can save great sums.29 Such forms of 

non-market inertia make ordinary infrastructure more costly than it needs to be 

and may improperly inflate the appeal of costly projects. 

Streamline General Regulatory Burdens 

Permitting nightmares and other regulations that can make it an overly difficult 

process to construct and operate water infrastructure should be reviewed and relaxed,30 particularly since legislation often would paradoxically promote regulation 

of the technology and its byproducts. 

Government funding like that in H.R. 3176 too often invites regulation. Regulatory concerns propel government regulatory oversight of the technology when Federal dollars become involved; the thrust becomes one of government funding projects 

yet endlessly studying and regulating their risks. Since recipient businesses and 

contractors can become so dependent on political funding, they go along with the 

oversight, cutoff from envisioning alternative approaches to either securing funding 

or managing hazards. The Valley just wants its water and could be seduced into 

acquiescing to unnecessary rules. 

Options for general reform of regulatory policy in the Appendix. 

Taxpayer Funding Misdirects Resources by Prolonging Inefficient Projects 

Markets have to be good at killing bad projects as well as at creating new ones.31

Governmental programs like the Reclamation States Drought Relief Act are less capable of systematic pruning. 

Once entrenched virtually all interested parties seek to grow government rather 

than pull the plug on exhausted or ill-considered funding projects, from relatively 

tiny ones like H.R. 3176’s few millions to the gargantuan like the Superconducting 

Supercollider. The result is higher taxation and dollars directed to multiplying, uncoordinated ends. Science resembles any other rent-seeking interest in this respect. 

In testimony before congressional panels, most seek more money, not less; more government rather than less. 

In proposing an end to the Advanced Technology Program years ago, Michael 

Gough offered a real test of taxpayer support: ‘‘Let the government give taxpayers 

who want to invest . . . a deduction from their income . . . [and] share in any profits that flow from it. That’s what taxpayers get from private investments. It’s not 

what they get [when government] takes tax money . . . and invests it in private 

enterprise.’’ 

Salt Water Distillation to Freshwater 

One approach specifically referred to expanding supply to in H.R. 3176, the Reclamation States Emergency Drought Relief Act, is desalination, or the removal of 

salt (sodium chloride) from seawater or brackish water to render it fit for human 

consumption or other uses. 

The problem is that Desalination at bottom is an energy-intensive, by-productladen means of making expensive potable water. And given its energy intensity, 

more expensive electric power is a factor undermining its prospects. Higher electricity prices would cause ‘‘less electricity-intensive’’ substitutes like conservation, 

water purchases, and pricing changes to rise in relative importance.32

Still, desalination may have a role to play but probably not the one envisioned 

in the Reclamation States Emergency Drought Relief Act.33 If we are to judge by 

private sector involvement, desalination is on a trajectory to become increasingly 

cost-effective for certain applications, particularly as water prices respond to market 

signals as demand for fresh water increases. Public and private investment overseas 

56 

34http://www.acwa.com/news/delta/water-supplies-curtailed-once-again-protect-delta-smelt. 35 Ibid. 

where the incentives line up differently probably inform domestic policy better than 

anything H.R. 3176 could do. 

Desalination at bottom is one category of purification; some industries require 

even higher purities of water than desalination would create, conduct substantial 

research, and pay the price to achieve purity. Water augmentation, driven by industrial needs, is where the advances are most likely to be most efficient and broadly 

informative. Lessons from this sweep of experimentation are transferable and more 

on point than H.R. 3176. 

Address Environmental Concerns With All Interests Involved 

Environmental concerns plague virtually every project of any kind. Ironically, governments often alter environments and generate environmental problems. Environmental impacts of subsidized desalination in H.R. 3176, for example, such as the 

impact on aquatic creatures and the uncertainty over numerous options for disposal 

of waste streams, are the very types of impacts that in other contexts like pipelines 

and fracking are deal breakers. 

It is more than understandable that irrigation districts and utilities would appreciate the funds in H.R. 3176 to in a sense ‘‘compensate’’ for failure to deal with excesses of the Endangered Species Act that have restricted their access to water. 

Their frustration is understandable; it is a constant debate of how much water to 

leave in streams for environmental purposes vs. how much to allocate to urban, agricultural and recreational uses when the right answer depends upon how much 

precipitation happens, which varies. 

Free enterprise can excel at managing environmental risks and waste streams 

when given a chance. In normal markets, before firms can attract investors and 

launch, disciplinary institutions like liability and insurance must be secured. One 

must satisfy many stakeholders, including capital markets, insurers, upstream business suppliers, horizontal business partners, downstream business customers, consumers, public and global markets. And environmental interests; property rights 

mean one must not pollute a neighbor’s property. 

The Endangered Species Act is at the root of California water disputes; farmers 

and southern Central Valley would have the water they need if the pumps at the 

Sacramento/Joaquin delta were turned on, as dramatically pointed out by Rep. 

Nunes. and others. State Water Contractors General Manager Terry Erlewine 

said: 34

This year is proving to be another example of why the current system is unreliable and unsustainable. The water supply for 25 million people and millions of 

acres of farmland depends on where a few dozen fish are located in the Delta’s 

sprawling waterways. Until we build a better infrastructure system that protects 

both fish and water supplies, we’re forced to operate under regulations that have 

high costs for California’s public water agencies, farms and economy, while producing little if any benefit for the fish. 

Fifty mayors from the San Joaquin Valley also wrote a letter to President Barack 

Obama to observe the impact of the water rules in California. And Association of 

California Water Agencies Executive Director Timothy Quinn: 35

We have the wrong infrastructure in the Delta, and it’s been apparent for decades. . . . Conveyance improvements, coupled with habitat restoration and other 

measures to address Delta stressors, can get us out of this cycle of conflict and 

on the road to a water system that works for the economy and the environment. 

One big problem with allowing the Endangered Species Act to interfere with California’s water needs is that it isn’t clear that water use as opposed to other factors 

is the cause of the problem. Ballast discharge has been blamed; ammonia from 

waste treatment has been blamed. 

The second big problem is that the ESA doesn’t work. Over 2000 endangered species are listed; As of September 2012, only 56 had been delisted: 28 due to recover, 

10 due to extinction. 

The ESA’s punitive nature makes it particularly bad at enlisting landowners in 

the effort to save species with incentives. 

Apart from the Federal Government’s worsening the problem, conservationists, biologists policymakers have the actual decisions about banking species, farming 

them, relocating them, ‘‘sponsorship’’ programs, habitat restoration and other creative options, likely themselves prevented by the act. There are alternative approaches that deserve consideration, such as a ‘‘salmon certificate’’ system proposed 

57 

36http://www.washingtonpolicy.org/publications/brief/saving-our-salmon-using-free-marketprotect-environment. 37See also G. Tracy Mehan III. and Ian Kline’s reference to the same in ‘‘Pricing as a Demand-Side Management Tool: Implications for Water Policy and Governance,’’ Journal of the 

American Water Works Association, February 2012. pp 61–66. 38Terry L. Anderson and Pamela S. Snyder, ‘‘Priming the Invisible Pump: Water Markets 

Emerge,’’ PERC Policy Series No. 9, February 1997. Property and Environment Research Center, http://www.perc.org/articles/article198.php. 39 Cited in Mehan, May/June 2012. 40Mehan, May/June 2012. 41Terry L. Anderson and Pamela Snyder, Water Markets: Priming the Invisible Pump, Cato 

Institute: Washington, D.C., 1997. p. 11. 

in a 1999 Washington Policy Center paper that makes economic and environmental 

tradeoffs more clear.36

Unless California wants to go back to unmanaged droughts and floods, they are 

going to have to accept infrastructure and perhaps projects like the Bay Delta Conservation Plan, especially if they value is the environment. The population is going 

to grow; levees will fail. 

Better Pricing of Water Supplies 

As Adam Smith and the classical economists teach, water and diamonds have 

vastly different marginal and total utilities.37 Each can be worthless or priceless 

under different circumstances. Both the supply side of life and the demand side of 

life matter across the board. 

Long term, we should embrace the opportunity to solve more than one problem 

at a time when it comes to integrating flood management with water supply planning. The need to pay for one’s own wells has been mentioned, since more Federal 

dollars delays having to deal with bigger problems, like the need to change permitting regulations, use more groundwater in drought years, create new insurance 

products, and create alternatives to the Endangered Species Act that actually— 

brace for it—save species. This requires enlisting the property owner and downstream consumer in positive ways. 

Water utilities are usually sourcing-to-delivery monopolies, rarely subject to market forces. Problems with efficient investment exist in such models, as do disincentives of local elected officials to tolerate the rate increases that a market would dictate and perhaps implement. 

The state of play is reviewed in books like Water Markets: Priming the Invisible 

Pump by Terry L. Anderson and Pamela Snyder, which surveys water law and how 

water markets have emerged in the United States, ‘‘including discussion of the restrictions by state and Federal governments, which increased over the past century.’’ 38

Steve Maxwell in The Future of Water makes an important note about a sometimes overly casual attitude toward the miracle of easily available fresh water: ‘‘The 

most important job utilities around the world may have in the coming decades is 

convincing people that water is valuable—and that it is reasonable to pay more for 

this luxury than the bargain prices we have traditionally taken for granted.’’ 39

In reviewing top water expert and researcher David Zetland’s book The End of 

Abundance, G. Tracy Meehan summarized: ‘‘[T]he water sector can encourage better 

stewardship and a greater degree of social harmony by substituting pricing and 

market allocation of limited water supplies for political management.’’ 40

Water isn’t unique in widespread inefficient pricing and allocation, of course: anything politically or bureaucratically managed can be vulnerable to quantity and pricing shocks and constraints. Where water prices are artificially low, shortages will 

result. The chapter ‘‘Why Water Crises?’’ in Water Markets: Priming the Invisible 

Pump, by Anderson and Snyder, describes the price mechanism’s essential role in 

preventing crises: 41

Higher water prices would also reduce the need to build costly supply projects 

and delivery systems that dam and divert free-flowing streams. Higher prices 

would encourage private, profit-making firms to enter the water supply industry, 

taking the burden off the public treasury. If the price mechanism were allowed 

to operate, demand could be reduced, supply could be increased, water would be 

reallocated, and water crises would become obsolete. 

Proper pricing is an ‘‘alternative’’ to ‘‘costly supply projects.’’ 

Similarly, David Zetland notes that ‘‘Shortages can be ended much more quickly 

by a change of incentives than supply side actions to build a desalination plant or 

58 

42David Zetland, The End of Abundance: Economic Solutions to Water Scarcity, 2011. p. 6. 43Zetland, The End of Abundance, p. 183. 44Wayne Crews, Still Stimulating Like It’s 1999: Time to Rethink Bipartisan Collusion on 

Economic Stimulus Packages, Competitive Enterprise Institute, February 2008. http://cei.org/ 

cei_files/fm/active/0/6425.pdf. 45Zetland, The End of Abundance, p. 6. 

transfer water from neighbors who probably can’t spare a drop.’’ 42 As it stands, the 

realities of non-scarcity pricing of water and of permitting and approval barriers 

seem to defy the vision of legislative instruments. As Zetland puts it in a hypothetical context regarding supplying California’s municipal needs via desalination: 

But if it’s possible to get approval for this kind of project and raise prices so far, 

why not just raise prices and skip the project? Higher prices would leave more 

water for nature, save a lot of money, and still leave humans with adequate supplies. . . . [T]the policies affecting supply and demand are more important for 

ending shortages than technology.43

As a longer term vision in a very complex world, we need to attune competitive 

markets more thoroughly to the task of discovering the value of water itself. 

Politically expanding a fundamentally scarce and poorly priced supply of a resource like water in less-blessed places seems to have entrenched artificial new 

problems and can encourage difficult-to-sustain migratory and settlement patterns. 

Such perverse incentives echo the policy of Federal flood insurance for continuously 

building on hurricane-prone areas after consecutive knock-downs. Policymakers 

shouldn’t make it artificially attractive for more people to move into areas like arid 

regions. That would be create perverse justification for legislation, and worse, would 

sow the seeds ‘‘necessitating’’ more legislation years hence. 

CONCLUSION

Like many industries, water policy often suffers from too much government. 

Occasionally the problem isn’t market failure, but the failure to have markets. 

‘‘Doing something’’ about legitimate water needs is not the same as spending money 

and initiating governmental research and coordination. When linking innovation to 

human needs and promoting infrastructure, markets trump the legislative process— 

and where they don’t, policy should shift to ensure that they can. 

America’s great infrastructure firms are segregated into regulatory silos (telecommunications, electricity, water, sewer, cable, railroad, airline, satellite, air traffic 

control, roads). In a freer market, they could collaborate to expand infrastructure 

wealth development and boost environmental amenities, but it would require a 

mindset different from the constricted legislative one that sets terms today. 

Interestingly, the dollars allocated to water in the various Federal acts over the 

decades seems to total perhaps a few billion. Removing barriers to private research 

and manufacturing and infrastructure could yield far greater gains than relying 

upon appropriations that invite rent-seeking and that may threaten safety and environmental improvements. Government’s proper stance is one of benevolent indifference or neutrality, since many technologies, most not in existence yet, will always 

compete for scarce investment dollars whether the projects are small scale or grand 

infrastructure. 

Congress has a far more important job to do that it can’t escape by sprinkling 

cash around as in H.R. 3176. As discussed in Still Stimulating Like It’s 1999: Time 

to Rethink Bipartisan Collusion on Economic Stimulus Packages,44 there exists a 

natural tendency toward stagnation when government fails to perform its ‘‘classical’’ 

function of ensuring that prices of materials, labor and other inputs aren’t distorted 

by interference in the economy. 

With water supplies, we have, not a funding problem, but a larger resource management problem. As David Zetland summarizes in The End of Abundance: 

The end of abundance means the supply side/cost recovery model of water management no longer delivers the results we want, but that model still dominates 

the business—from California to China, Florida to Fiji—and it will cause trouble until we change the way we manage water. Economics offers an alternative 

focus on balancing supply and demand.45

Unlike Zetland, I don’t think there needs to be an end to abundance. Markets expand output in tangible products and intangible services. They also help maximize 

the production of useful information—including research and scientific information 

about technologies whose applicability is uncertain yet holds promise for people and 

the environment. 

59 

46More detail on the suggestions here appear in Wayne Crews, ‘‘The Other National Debt Crisis: How and Why Congress Must Quantify Federal Regulation,’’ Competitive Enterprise Institute, Issue Analysis 2011 No. 4. http://cei.org/sites/default/files/Wayne%20Crews%20- 

%20The%20Other%20National%20Debt%20Crisis.pdf. 47http://cei.org/sites/default/files/Wayne%20Crews%20- 

%2010,000%20Commandments%202011.pdf. 

The task is to bring modern water resources further into the market process, and 

to lay the groundwork for tomorrow’s discoveries and advances to be informed and 

funded by market rather than political processes. Reauthorizing Federal water 

projects would do the opposite in many respects. It will take legislation of a different 

form than H.R. 3176 to address the underlying boom/flood and bust/drought problems in water supply. 

Appendix: Economic Liberalization—An Alternative to Government 

Spending in Service to Water Abundance 

We’ve noted some specific hazards of government steering the market. We need 

alternative approaches—other than Federal spending—to advance science and manufacturing, of which water infrastructure an example. Such approaches involve fostering a general business environment wherein a private sector flush with health 

can fund its own research and ventures. There is a need for cataloging and limiting 

Federal over-regulation to foster a wealthier economy, one capable of carrying out 

an array of research regimes with less temptation to seek an ear in Washington.46

Sunset Regulations and Implement a Regulatory Reduction Commission 

More than 60 departments, agencies, and commissions issue some 3,500 regulations a year in thousands of Federal Register pages (documented in Ten Thousand 

Commandments: An Annual Snapshot of the Federal Regulatory State.47) Costs of 

regulations are estimated to top $1 trillion annually. Congress should implement a 

bi-partisan ‘‘Regulatory Reduction Commission’’ to survey existing rules and assemble a package to eliminate with a straight up-or-down vote, no amendments allowed. 

Require Congressional Approval for Major Business Regulations 

Of 3,500 annual regulations, 100 plus are ‘‘economically significant.’’ These rules 

should require an expedited congressional approval before they are effective. Apart 

from the competitiveness and innovation issues at issue in legislation, the delegation of legislative power to unelected agencies has long needed attention. 

Perform Basic Deregulatory Housekeeping 

• Re-discover federalism, that is, circumscribe the Federal role regarding investment and regulatory matters best left to States and private enterprise. 

Congress should look at what the Federal Government does that it could 

eliminate, or that States could do instead to provide a research and manufacturing boost. • Improve the ethic of quantifying regulatory costs and selecting the least-cost 

compliance methods. • Codify the executive order on ‘‘Regulatory Planning and Review’’ (E.O. 12866), 

or, Reagan’s E.O. 12291, which provided for more external review. • Require OMB’s Regulatory Information Service Center to publish details on 

major and minor rules produced by each agency and strengthen its oversight. • Reinstate the Regulatory Program of the U.S. Government, which formerly appeared routinely as a companion document to the Budget. • Declare Federal Register notices as insufficient notice to small business. • Hold hearings to boost the scope of the Small Business Administrations’ ‘‘r3’’ 

regulatory review program. • Lower the threshold at which a point-of-order against unfunded mandates applies. • Implement a supermajority requirement for extraordinarily costly mandates. • Lower the threshold for what counts as an ‘‘economically significant’’ rule, 

and improve explicit cost analysis. • Explore, hold hearings on, and devise a limited ‘‘regulatory budget.’’ • Establish an annual Presidential address or statement on the state of regulation and its impact on productivity and GDP. • Sunset regulations after a fixed period unless explicit reauthorization is 

made. • Publish data on economic and health/safety regulations separately. • Disclose transfer, administrative, and procedural regulatory costs. 

• Explicitly note indirect regulatory costs. 

60 

• Require agencies and the OMB to recommend rules to eliminate rules and to 

rank their effectiveness. • Create benefit yardsticks to compare agency effectiveness. 

Implement Annual Regulatory Transparency to Accompany the Federal 

Budget 

In attempting to implement economic liberalization for the wealth-creating sector, 

a ‘‘Regulatory Report Card’’ should be part of the basic housekeeping just noted. 

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

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

Mr. MCCLINTOCK. I want to thank all of the witnesses for their 

testimony. We will now go to questions by the members. Each 

member will have 5 minutes and may be submitting additional 

questions if they can’t get all of them in during the constraints on 

the time. 

The Chair will begin, and I would like to begin with the Tipton 

bill. Mr. Corbin, Mr. Parker, and Mr. Porzak, each of you have 

highlighted attempts by the administration to expropriate water 

rights that are recognized under State law by various types of 

water users. Heavenly Mountain Resort near Lake Tahoe in my 

district employs about 1,215 people. The jobs are contingent on the 

availability of millions of gallons of water annually that are held 

by the ski area to make snow. I know the loss of that privately held 

water would be catastrophic for the local economy. 

Mr. Corbin, representing a ski area in the second-nicest part of 

the country, I wonder if you could tell us what impact this would 

have on the resorts in your ski area. 

Mr. CORBIN. Thank you, Mr. Chairman. I appreciate it. And I 

have worked in Tahoe, as well the Rockies, so I view them both 

quite fondly. 

Mr. MCCLINTOCK. Why in the world would you go to the Rockies? 

Have you no ambition? 

Mr. CORBIN. I have been in the Rockies and then worked at 

Northstar, sir. 

If we were to lose our water rights and literally lose the use of 

that water we would be very severely impacted, both operationally 

and financially, as I alluded to earlier. It is very key for us to make 

sure that we have adequate snow in the opening of the season, for 

example, Christmas holidays, and likewise in the spring season. 

Our business of offering winter recreation is really one done in 

120 days, and if we lose any significant portions of that because we 

don’t have adequate snow, then we would be very severely compromised. Guests would not have a good experience, we might not 

have an adequate base for people to ski on, we might not then last 

61 

an adequate number of days to basically cover our sort of fixed 

cost, if you will—— 

Mr. MCCLINTOCK. So basically what is at stake with the Federal 

Government taking these water rights as a condition of special use 

permits for you to use Federal land is the resorts and the economy 

that they support would be severely impacted, perhaps to the point 

of closing down? 

Mr. CORBIN. We would be very severely impacted, yes, sir. 

Mr. MCCLINTOCK. And, Mr. Parker, what about your operations? 

Mr. PARKER. Yes, and I am going to be specific to Utah here, and 

you can extrapolate this across the public land West. But if you 

take Utah as an example, livestock agriculture makes up about 75 

percent of our farm gate sales. Agriculture and food in Utah is a 

$17.5 billion industry, making up 14 percent of the State’s GDP. 

It provides 80,000 jobs—this is just Utah, this is 1 of the 12 public 

land States—provides 80,000 jobs and about $2.7 billion in wages. 

And the foundation of that is sheep and cattle grazing on the public land. So it would be very problematic to our State’s economy. 

Mr. MCCLINTOCK. So, Mr. Porzak, if I wanted to shut down these 

operations, destroy the economies in the local communities, is there 

a more effective way of doing that than demanding that the local 

ski resorts turn over their water rights as a condition of continuing 

to operate? 

Mr. PORZAK. A more effective way is just to deny the special use 

permit. You are effectively doing the same thing. Two practical 

issues—— 

Mr. MCCLINTOCK. Well, essentially we are giving you the right 

to continue to operate but taking away the means of doing so, is 

that essentially it? 

Mr. PORZAK. That is correct. And just one practical matter is that 

the water rights are valuable assets, and they are collateral for the 

operation loans for the ski resorts. So if you take away that asset, 

you have destroyed the collateral for that loan and undercut the 

ability to obtain that loan. 

The other factor is that, as I mentioned, the ski industry collectively has spent hundreds of millions of dollars to develop these 

water rights. If they know that the Federal Government is just 

going to take those water rights away from them, you have destroyed the incentive for that investment, and that investment is 

the driving force for that ski area and then in turn the local economy. 

Mr. MCCLINTOCK. OK. Very briefly, turning to Mr. Crews, all of 

our water projects have been based or at least are supposed to be 

based on a beneficiary pays principle, meaning the Federal Government will front money, but ultimately the local water users will 

repay it through the water that is purchased. The DeFazio bill obviously is simply grants by Federal taxpayers to local water users. 

Is there a better way of providing the programs financially? 

Mr. CREWS. Yeah, if you are going to do it, surely the beneficiary 

should pay. And in programs like that the wells are drilled and in 

perpetuity those wells get to be maintained in that area. Ideally 

you would have those—— 

Mr. MCCLINTOCK. Hold that thought. I will get back to you. My 

time is out. 

62 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Well, Mr. Willardson, why is the Federal drought planning important? 

Mr. WILLARDSON. Well, as I mentioned, the Bureau of Reclamation controls a lot of water in the West. This bill also provides it 

with authority to provide help to the communities that cannot otherwise help themselves, as well as to provide for assistance to 

Indian tribes. Under the drought planning authority that has 

helped Arizona develop its drought plan, as well as the State of 

New Mexico and the State of Hawaii. They have also assisted the 

Hopis, the Navajo, the Zunis, and also the Hualapai in Arizona, in 

the Southwest, in development of drought plans. 

Because of the situation with the Bureau of Reclamation and as 

you are intimately familiar in the State of California with the coordinated operation of the State Water Project and the Central Valley Project, there are limitations on the ability of the Bureau to 

move nonproject water, and that authority is also provided through 

this bill. 

And one other important fact is—— 

Mrs. Napolitano. Quickly. 

Mr. WILLARDSON [continuing]. This legislation exempts those 

kinds of contracts from restrictions of the Reclamation Reform Act 

with respect to acreage, and it does require that water provided by 

the Bureau be repaid with interest, including a portion of the capital costs. 

Mrs. NAPOLITANO. Would you explain briefly please, because my 

time is running out, what would happen, what would be the impact 

on States—California is a donor State, we give more taxes than we 

get back, that said—if the Drought Relief Act was not reauthorized. 

Mr. WILLARDSON. I think you would see a very limited ability for 

the Bureau of Reclamation to participate in State drought planning 

and response activities, and that would have a significant impact, 

primarily on those small and local communities and disadvantaged 

communities. 

Mrs. NAPOLITANO. Do you have any comment as to what some of 

the States are currently planning, the Western States, to effectively 

look at how drought is going to be affecting them, since we are running into drought cycles? 

Mr. WILLARDSON. There are a number of things that the States 

are trying to do. Obviously conservation and more efficient use is 

key to any of our water issues. Also, the development of other storage alternatives, groundwater management. They are trying to diversify their portfolios, water reuse and recycling. Desalinization is 

something that California and Texas have goals to provide water. 

So there are many different areas on both the supply and the demand side that impact us not only in drought, but obviously in trying to increase the reliability of future supplies. 

Mrs. NAPOLITANO. Thank you. And there are some concerns as 

to infrastructure itself. It is guesstimated that there are 22 water 

main breaks a day, which lose as much water as we normally 

would use. 

Mr. WILLARDSON. Infrastructure and aging infrastructure is a 

huge challenge in the West and elsewhere. 

63 

Mrs. NAPOLITANO. Right. 

Mr. Corbin, we understand the Forest Service is in the process 

of developing or was in the process of developing a new directive 

to be released this fall, but what is the urgency of moving this legislation now and why not work with the Forest Service to solve the 

issue administratively? And I say that because I have had issues 

with some of my transportation folks, with some of my water agencies. And I work with the administration, the agencies bring them 

to the table and say, OK, sit down and try to figure it out and let 

us know where we can help, but certainly as much as we can stay 

out of their way. 

Mr. CORBIN. I think it is urgent because indeed this process of 

rulemaking has been going on for some time. And in the course of 

that we have previously seen proposed rules that indeed have been, 

I think, very harsh with respect to our industry. We have previously offered compromise to the Forest Service suggesting that 

indeed if the stated goal is to protect water for use in the permit 

areas—— 

Mrs. NAPOLITANO. Is this before or after the directive was put 

out? 

Mr. CORBIN. This compromise was proposed this past summer, 

following the 2012 directive, yes. And it was a compromise suggesting that the water could be, in effect, protected for use within 

the permit areas simply by going ahead and having the permittees 

recognize that we would provide water if it were necessary for some 

action we requested approval of, and subsequently, if we were to 

sell and transfer our permit, that we would offer it indeed to the 

subsequent transferees so it would stay with the ski area. If that 

transferee did not want the water, we would offer it to the local 

government; if not them, the Forest Service. So we have already 

suggested a compromise. 

Mrs. NAPOLITANO. Thank you. My time has run out. I will look 

for a second round. 

Mr. MCCLINTOCK. Great. Thank you. 

Mr. Tipton. 

Mr. TIPTON. Thank you Mr. Chairman. 

And I think what I would like to start out with is, Mr. 

Willardson, I know you were here to be able to testify on 

H.R. 3176, but since you are with the Western States Water Council, maybe briefly could you say are you supportive of the Water 

Rights Act bill that we have. 

Mr. WILLARDSON. The Council has not addressed the bill or 

taken a position, but I can tell you on my reading that it is very 

consistent with our long-term support for protecting State-granted 

private property rights, and I would expect that we will be sending 

a letter in support of the legislation for the record. 

I would also note that we are working with the Federal agencies 

in what we call our Federal Agency Support Team, including the 

Forest Service, to identify potential needs of the Federal agencies 

and how those needs can be met within State law. 

Mr. TIPTON. Great. Well, I truly appreciate your support for 

State rights and private property rights. And I would like to follow 

up a little bit in terms of the question of my good friend, the RankVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
64 

ing Member’s question in regards to the urgency of being able to 

pass this legislation and to be able to have it move forward. 

And, Mr. Corbin, Mr. Porzak, perhaps you would like to be able 

to address this. 

Does it disturb you—well, first of all, let’s go, Mr. Porzak, to your 

point. 

Mr. Corbin, I think you addressed it as well. 

You have invested millions of dollars developing, paying for 

water rights. That is a balance sheet item for you, I think that you 

noted. Is that correct? 

Mr. PORZAK. That is correct. 

Mr. TIPTON. Does it disturb you that as you noted, Mr. Porzak, 

that there has been no authority granted by the Congress of the 

United States—by the Congress of the United States—but we have 

an agency, through a rulemaking process, that is trying to take 

your private property. Does that speak to you of the urgency? 

Mr. PORZAK. It absolutely does it, and it creates great uncertainty, and great uncertainty inhibits investment. 

Mr. TIPTON. You know and I know when we are looking at some 

of the bureaucracy here in Washington it mystifies them when we 

are talking about a balance sheet item. You seem to indicate that 

there is some actual value with water. Is that correct? 

Mr. PORZAK. The Forest Service has admitted that, that they see 

enormous value, and that is the principal reason they want control 

over that value. 

Mr. TIPTON. And with the proposed rule that they put forward 

that was only slapped down because they did not follow their own 

administrative procedures initially to be able to come forward with, 

what is the Forest Service going to offer you for this valuable resource that you have invested money in and paid for? 

Mr. PORZAK. They have offered nothing. 

Mr. TIPTON. Nothing. That speaks to the urgency, really, of legislation of Congress acting on behalf of private property rights and 

Western water rights, don’t you think? 

Mr. PORZAK. Absolutely. 

Mr. TIPTON. Great. Do you have any insights, Mr. Porzak, why 

you noted 20 years this goes back, which I think speaks to the urgency. It is Groundhog Day every day for the Forest Service, they 

just keep doing the same thing over and over again in terms of 

overreach. What do you suppose, why do they continue to try and 

pursue your water rights? 

Mr. PORZAK. They have actually, one of the principal attorneys 

for the Forest Service has written a Law Review article, which is 

a road map to exactly what they are doing. And they tried in the 

U.S. Supreme Court, U.S. v. New Mexico, and lost there to get the 

right to this water under Federal Reserve rights, they have tried 

in the State supreme courts, and they lost in that venue as well. 

And so now the strategy is to use their permitting authority as an 

end run around State water law to basically obtain those water 

rights for free. That has always been their game plan. 

Mr. TIPTON. Ignore State water law, ignore Congress, just write 

a rule. 

Mr. PORZAK. Yes. And there has always been a Federal deference 

to State water laws. And that is particularly important throughout 

65 

the West because so much water rises on the Forest Service or Federal lands, and that is the issue that we face where it is basically 

an end run around, as I mentioned, to that State water law. 

Mr. TIPTON. We are talking about the U.S. Forest Service. Do 

you see any other Federal agencies that are going to try and pursue these policies as well? 

Mr. PORZAK. In your area the CLUB 20, which you are familiar 

with. That question was put to the regional head of the BLM, and 

they asked, it was in May of 2012, what they thought about the 

Forest Service efforts. And they announced at that public meeting 

that they thought what the Forest Service was doing was great and 

if they succeeded they were going to do the same. And as a result 

of that, CLUB 20 passed its policy in May of 2012 opposing those 

efforts by all Federal agencies. 

Mr. TIPTON. So the people don’t want it, the State doesn’t want 

it, the private property owners don’t want this, but the Federal 

Government, the BLM, the Forest Service, perhaps others are 

going to continue a policy of taking. 

Mr. PORZAK. That is correct. 

Mr. TIPTON. With that, I yield back. 

Mr. MCCLINTOCK. Mr. Huffman. 

Mr. HUFFMAN. Thank you, Mr. Chair. 

And thanks to the witnesses for being here and testifying. I am 

struck by some interesting contradictions in the testimony that we 

have heard today. And we have heard some very passionate testimony about deferring to State water law, a proposition I generally 

agree with. But we also heard some testimony on the issue of Western drought planning and drought relief, that we should simply 

clear away environmental obstacles to accessing water and leave 

more to the private sector and to market forces rather than becoming more dependent on public dollars. 

Well, if we are to listen to this side of the table and defer to 

State water law, the State of California says all water belongs to 

the people, that it is not a public commodity that can just be 

bought and traded and moved around without regard for the multiple beneficial uses that have to be balanced. And so there is an 

interesting contradiction that emerges on these complex issues. 

And I guess I would say nothing is quite as simple as it sometimes 

seems in these types of hearings. 

I had practiced enough water law in my career to know that 

these are very complicated issues, and I respect the testimony that 

we have heard from the ski industry and others. I want to understand this issue better. But I also know that we are hearing all 

kinds of legal terms of art and legal theories and legal issues about 

takings being discussed, and we have only one side of the story represented. 

You may be right, all right? But I am having a hard time sorting 

it out and understanding the merits of what I am hearing because 

we don’t have anyone from the Forest Service here to explain. I 

hear a lot of concerns and anxieties about what might happen if 

the policy goes in a certain direction, but I haven’t heard anybody 

say that their snowmaking water has been actually taken away 

from them, that they are not able to make snow with it, or maybe 

66 

that they wouldn’t even be able to make it under this policy 

change. 

So there are a lot of questions I would love to ask of the folks 

who actually are being accused of these things, but they are not 

here. And there are a lot of questions I would like to ask, technical, 

legal, policy questions to folks like CRS, which would be a wonderful resource to have in the room. They are not here either because 

we are in the middle of this absurd government shutdown. 

So I appreciate that we have scratched the surface of some interesting things today, but I just want to also express my frustration 

that we haven’t been able to go beyond a pretty selective piece of 

that surface by virtue of the limitations that I have just discussed. 

And I hope perhaps the next time we discuss it—I am happy to 

continue the discussion—that we can have a more complete set of 

facts before us. 

Thanks, Mr. Chairman. 

Mr. MCCLINTOCK. If the gentleman will yield, I just want to assure him that the U.S. Forest Service informed the subcommittee 

prior to the shutdown that it would not be able to testify on this 

bill, it was not willing to testify on this bill because the new directive was being reviewed by the OMB, and that they were embargoed to comment on it. And so that has nothing to do—— 

Mr. HUFFMAN. And reclaiming my time, Mr. Chair, if I might, I 

guess I would suggest that maybe instead of just leaving it at that 

and vilifying them for the problem they had in being unable to testify, work with them. Why does everything have to be so adversarial with the Forest Service and these other agencies? Find a 

time that works for them when they are not subject to that constraint, get them in here so that we can have a complete discussion. 

Mr. MCCLINTOCK. If the gentleman will yield again, I would also 

point out that the minority had the opportunity to name a witness 

to this panel for this bill and did not. 

Mr. HUFFMAN. Well, we have the same government shutdown 

problems that you do right now in getting witnesses. And I yield 

back. 

Mr. MCCLINTOCK. Mr. Gosar. 

Mrs. NAPOLITANO. The gentleman wants to respond. 

Mr. PORZAK. If I might respond to two issues that you raised. 

One is, as one who has specialized in Western water law for 40 

years now, one thing I recognize is that each of the Western States 

are different. And while they have common water principles, they 

are very different. And that is why it is so important to defer to 

that State water law because what may work in California might 

not work in Colorado or Utah or other States. 

The second issue is that when you do question the Forest Service, one question that I would ask them is that they say they want 

to preserve this water for that ski area or for the municipality or 

whatnot, but yet when the ski industry and the municipal interests 

ask them to agree to limit, if they took the water right, to limit it 

to the use to which it was previously put, and they absolutely refused to do that. They wanted the ability to change the water and 

to determine how much was truly needed for a ski use or a municVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
67 

ipal use, and then be free to use the rest of that water for another 

purpose. I would challenge them on that. 

Mr. MCCLINTOCK. Mr. Huffman, we are still on your time. 

Mr. HUFFMAN. Thank you, Mr. Chairman. I would just say I 

hope we can get a chance to hear from them, and it is a discussion 

I would be happy to continue if we can get all the parties around 

the table to actually have it in the right way. Thank you, Mr. 

Chair. I will yield back. 

Mr. PARKER. In Utah, it is interesting, there are a couple of 

points that I think are important. One is by statute the State of 

Utah has said those water rights that are related to livestock are 

appurtenant to the land, so they can’t be transferred outside of 

that grazing allotment. The second part that I think is important 

is—it just left me, but—— 

Mr. MCCLINTOCK. Mr. Huffman’s time is about to expire. We will 

go to Mr. Gosar and perhaps you can continue it there. 

Dr. GOSAR. You want to start me at a new 5? 

Mr. MCCLINTOCK. Yes, you will start at a new 5, that is correct. 

Dr. GOSAR. Thank you. I think the last two people asking questions recalibrated mine. 

So, Mr. Corbin, what kind of financial aspect can you quantify 

for me in legal fees you spend to validate your water rights? What 

kind of money do you spend to validate those rights from the industry? 

Mr. CORBIN. For the industry? 

Dr. GOSAR. For the industry. 

Mr. CORBIN. I honestly couldn’t tell you. I know that we as a ski 

company made a contribution to NSAA to participate in the lawsuit 

that occurred last year. I could not tell you off the top of my head 

how much we individually contributed or what the legal fees incurred by NSAA were in that lawsuit last year. I can tell you in 

any litigation we are involved in they are substantial. 

Dr. GOSAR. I would like to quantify that. I would like that question answered. I would like you to go back into your records and 

quantify that for me. 

For you, Mr. Parker, how about you? Can you quantify legally 

what it costs you—let’s just say over the last 20 years and break 

it down in those areas—how much it costs you to legitimize your 

water claims? 

Mr. PARKER. This is a broad area because there is continual challenges legally in Utah that are related to access to the land. And 

that access to the land is basically the access to the water. And so 

you have got to almost lump those together because as the Federal 

agencies reduce livestock numbers, let’s say an allotment has 300 

head of cattle that use the water on there and it is cut to 150, the 

Forest Service gains de facto water for 150 cattle because there are 

only half of the number there drinking now. Even without going 

through a court action, they gain water rights because of an action 

that reduces cattle numbers on it. 

Stock producers and the agencies are at legal loggerheads. It is 

almost a continual battle. But the problem is, as we know, that the 

deep pockets of the Federal Government are pretty tough to beat 

when you are a rancher with a—— 

68 

Dr. GOSAR. And that is what I am after. You know, the whole 

portal in the Western States is, if it doesn’t have the water, you 

don’t have a right. There is no access for that. So there is a purpose 

to where I am coming back to. 

So Mr. Porzak, from your legal opinion and from law over the 

last 40 years, are there some remedies, are there some opportunities for the industries that are dictated by this water usage to be 

compensated for their plight versus the Federal Government? 

Mr. PORZAK. You cannot compensate. Water is a threshold and 

indispensable commodity. It is why it is often difficult to settle 

water cases, because it is not a traditional business transaction 

where you can just compensate people with dollars and cents. You 

can’t do without the water. If you don’t have the water for the municipal providers you can’t serve the residents. If you don’t have 

the water for the ski industry you can’t make snow, you can’t provide the domestic requirements and all the other uses. So it is so 

indispensable that there is no other alternative. 

Dr. GOSAR. So in regards to the private industry and the segments that are dependent upon this versus, as you quantified it, 

the deep pockets of the Federal Government, wouldn’t something 

like equal access to justice, shouldn’t that have some application 

for those that are egregiously harmed by the Federal Government? 

Shouldn’t there be some type of compensation for an egregious action by the Federal Government over States and individuals? 

Mr. PORZAK. There should be, but that is not what the ski industry or the municipal providers are asking for. They are just asking—— 

Dr. GOSAR. Well, I am well aware that is not what they are asking. The problem is, I have been sitting here for 2 years and I am 

a dentist impersonating a politician and there is a core problem 

here, we see radical environmental groups, we see the Federal Government chastising over and over and over again borrowing from 

the Federal Government’s power of the purse to manipulate and 

negate your ability to defend yourself. So to me I think that there 

has got to be some mechanism here, whether it be the Equal Access to Justice funding that is equivocal in funding to your needs. 

I see you want to talk. 

Mr. PARKER. Yes. Generally, ranchers don’t have access to the 

Equal Access to Justice Act because we are not claiming something 

is in violation of the law in these circumstances. You have to find 

the agency at fault in some way violating the Federal law, and this 

may rise to that level. 

Dr. GOSAR. But that is what they are doing. My whole point is 

they are violating the Federal law because there is no Federal law 

that allows this jurisdiction. That is my whole point. 

I am trying to live outside the box. My time has expired. 

Mr. MCCLINTOCK. Thank you. 

Mr. Stewart. 

Mr. STEWART. Thank you, Mr. Chairman, for holding this hearing. 

To the witnesses, thank you for coming. I know that it is inconvenient for you, for some of you it is expensive, you have other 

things to do. Thanks for being here with us today. Thanks for the 

service you give to your country. 

69 

If you don’t mind I am going to spend a little time with you, Mr. 

Parker, both of us coming from Utah. And we have known each 

other for a little time. I look at you and I think, OK, here is a guy 

who maybe has spent a little time on a horse—— 

Mr. PARKER. Yes. 

Mr. STEWART [continuing]. Knows a little bit about ranching, 

knows a little bit about farming. I want you to know that I do as 

well. I grew up farming and ranching. We still have both my family 

farm and my in-laws have a ranch and it is deep in our blood and 

we appreciate that lifestyle. I mean, there is nothing more American than the family farm or the family ranch, and it is something 

that we want to protect. 

Mr. Parker, would you consider yourself an expert on ranching 

and farming concerns? 

Mr. PARKER. I have been involved in ranching since I was born, 

yes, cattle and sheep ranching, yes, sir. 

Mr. STEWART. And you represent a fairly large organization, as 

I understand, right? 

Mr. PARKER. We do, 6 million member families in the United 

States that I am speaking for today. 

Mr. STEWART. Six million. That is a substantial number. 

Mr. PARKER. Yes. 

Mr. STEWART. And I appreciate that. It seems to me, as I said, 

that you can speak with some authority then about farming and 

ranching concerns. And I would like to go back to your opening 

statement, if I could, something that you mentioned briefly, but I 

think it is worth coming back to, and that is your telling of what 

happened in Tooele County, which is a fairly rural county in Utah, 

it is west of Salt Lake. It is a county that I represent by the way. 

And you go back a few years, 2012, where we had agents from the 

Forest Service who were denying ranchers and farmers grazing 

permits unless they agreed to relinquish their private livestock 

water rights. 

Look, that to me is just unheard of, and it is egregious to think 

of the impacts that that could have on these, what are almost in 

every case, family farms and family ranches. And I just wondered 

if you would elaborate on that and maybe just ask, have you ever 

heard or seen an example of such what I consider an abuse of 

power? 

Mr. PARKER. This is, as far as I have seen it, as aggressive as 

I have seen it based on the livestock industry. 

I think I want to start by noting that, like the ski industry, 

water is part of the balance sheet for livestock producers as well. 

It is part of the asset base that they borrow against. 

For that group in Tooele County, they initially were asked to 

sign a change of use application, which would have transferred the 

right to use that as livestock water to the Federal agency, and then 

they would determine what they wanted to use it for. That is what 

a change of use application would allow. So they would turn over 

their ability to maintain that as livestock water on that allotment. 

The Forest Service objected and said, well, we made a mistake, 

we only wanted them to sign a joint ownership agreement, and we 

really didn’t mean it, they wouldn’t be able to use their grazing alVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
70 

lotment. Well, you know, that is after the cow is out of the gate, 

so to speak. 

And either way you cut it, that is a diminishment—— 

Mr. STEWART. Right. 

Mr. PARKER [continuing]. Or a relinquishment of value and of a 

right that is granted under the sovereign rights of the State of 

Utah through the State engineer. It is a taking. There is no question about it. 

Mr. STEWART. There is no question. I mean, I may own my home, 

but if someone demands joint ownership agreement of my home 

that is a substantial reduction of my rights and private property. 

Can you tell us very quickly, how was that resolved? What was 

the outcome of that? 

Mr. PARKER. The regional forester intervened and said, we really 

didn’t mean to go there, and so they have kind of backed away 

from it at this point. But my view is what happens with the ski 

industry will be a telltale sign of how much further this creep could 

get into the livestock industry. 

Livestock water across the State of Utah, the second most arid 

State in the Nation, if we don’t have that broadly dispersed water 

for those livestock to graze out there on those rangelands the grazing value is gone, as is the water value. 

Mr. STEWART. Well, and so in this case maybe they backed off 

a little, although they haven’t backed off entirely on this, it hasn’t 

been closed. But we know there are instances in Nevada, for example, where BLM and Forest Service agents ended up, some of them, 

in criminal charges and actually going to jail for—— 

Mr. PARKER. In the Hage case, yes, absolutely. 

Mr. STEWART. Yes. 

Mr. PARKER. They overfiled on their water, it went to court. The 

Supreme Court wouldn’t hear it because they said it isn’t ripe. But, 

yes, that is where we have been. 

Mr. STEWART. That is exactly right. 

So I see my time is up, but just very quickly, Mr. Chairman, 

look, when you have Federal agents that are acting in direct conflict of the law and they are doing what I consider extorting something as precious as water rights out of private citizens, well, how 

would we expect those citizens to react? How would we expect them 

not to have some, you know—— 

Mr. MCCLINTOCK. We will take that as a rhetorical question. 

Mr. STEWART. Yes. 

Mr. MCCLINTOCK. But there has been a request for a second 

round, so we will get back to that in a few minutes. 

Mr. STEWART. OK. Thank you, Mr. Chairman. I appreciate it. 

Mr. MCCLINTOCK. And I would like to pick up on that very point 

with Mr. Parker and Mr. Porzak. 

Are we seeing an adversarial relationship begin to develop between this Government and the people, and particularly between 

the U.S. Forest Service and the users of our public lands? I raise 

that point because I am getting increasingly frantic complaints 

throughout my district of abusive behavior, most recently with the 

shutdown. Concessionaires who own their own shops, who own 

their own businesses literally being forced to close their doors solely because they are leasing land from the Federal Government. 

71 

Now, in the 17 shutdowns that have occurred over the past 37 

years this has never happened before. It seems that the U.S. Forest 

Service is going out of its way to make life difficult for people, to 

inconvenience people, and almost seem to be reversing the entire 

original purpose of the Forest Service, which Gifford Pinchot described as managing the public lands for the greatest good for the 

greatest number in the long run. Are we seeing a fundamental 

change in this relationship? 

Mr. PORZAK. The Forest Service and the ski industry, as Mr. 

Corbin pointed out, have always had a great working relationship. 

They have truly worked as partners on many issues. Where the 

line got drawn, though, was with respect to the takings of their 

water rights. That was the one time that the ski industry turned 

around and actually initiated a lawsuit against the Forest Service. 

It is clear on this issue a wedge has really been driven by the administration. 

Mr. MCCLINTOCK. So this is unprecedented, and it is a fundamental shift in the relationships that have previously existed between the Government and the people. 

Mr. PORZAK. Yes, Mr. Chairman. 

Mr. PARKER. Mr. Chairman, from a livestock and agriculture 

standpoint, this is timber as well, if you go back to the 1960 Multiple Use Sustained Yield Act, there was a right granted to do certain things on the public land under that multiple use banner. 

FLIPMA changed that, and everything now is based on permitting, 

and those permits can be changed based on the whims of either 

Washington, DC, or the agents out there on the ground. 

So, yes, we have seen a much more adversarial relationship because we have changed from a right to a permit and those permits 

can basically go all over the place based on whatever the politics 

of the day are. 

Mr. MCCLINTOCK. Mr. Corbin, I am not going to put you in that 

hot seat, but I have talked to a number of operators over the years 

who tell me they are simply scared to death of giving candid answers because of their fear of retaliatory actions by the Forest 

Service. So I will excuse you from being placed in that position. 

Mr. Crews, under the drought relief program, in your view, are 

the authorities provided under the program narrowly tailored toward the purpose of drought relief? 

Mr. CREWS. No, I don’t think they are. There are too many provisions there that are unreimbursed. The bulk of the money does go 

to well drilling, but contingency planning and transport and all 

these other provisions that are there don’t get reimbursed by the 

beneficiary of the program. And I think in essence the approach is 

wrong. 

Mr. MCCLINTOCK. Are there also expenditures in this other than 

drought relief in the narrow sense? 

Mr. CREWS. Well, there is drought relief, there is solar panel, 

there is desalination, there are program choices that don’t necessarily make a lot of sense. 

Mr. MCCLINTOCK. Mr. Willardson, I have got two basic propositions. The first is that cheaper water is better than more expensive water, and that more water is better than less water. If we can 

agree on these propositions then I think we can also agree that the 

72 

entire purpose of our water policy is to protect against droughts; 

in other words, to store water during wet years in order to have 

it in dry years, to move it from wet areas to dry areas, and to assure that in times of drought there is plenty to go around. Doesn’t 

that mean we should be building more storage? 

Mr. WILLARDSON. I agree with your premise. And also I would 

point out that in 1995, I believe, with the Western Water Policy 

Review Commission, that the comments from the States all included storage as a solution to the problems that they face. 

I would also point out, being a quasi-economist, that in Utah we 

have been criticized for having low water rates. Well, in the Salt 

Lake Valley we are at the base of the mountain which is fed by 

snowpack. There is very little distribution, there is very little treatment required, and subsequently the water is cheap. Now, does 

that mean we should artificially increase the price above what it 

is for production to encourage conservation? The State has set a 

goal of 25 percent reduction in use, but it is through other areas 

besides increasing price artificially. 

Mr. MCCLINTOCK. Thank you. My time has expired. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Mr. Corbin, in April this year, nearly 108 ski resorts in 24 of 

those States sent a letter of support of climate change plan. Are the 

resorts concerned about the impact of climate change and drought 

on the water resources available to the ski resorts, and how does 

this affect your business? And as a follow-up to that, what do you 

think the Federal role is in helping to deal with those two issues? 

Mr. CORBIN. Indeed, we are very concerned about climate change 

or certainly the ongoing droughts that we have been experiencing 

recently in the West. As I said, water is kind of existential to our 

business. Without the water we are not in business. So to the degree that climate change, increasing temperatures, those sorts of 

things affect us, the desire on our own part to very carefully manage, conserve, optimize the use of our own water that we have obtained is very critical to us. So we believe we are incented perhaps 

more than anyone, for reasons that are both altruistic and economic, to preserve that water and use it wisely. 

Mrs. NAPOLITANO. Thank you. 

There are so many questions that I would have. And I agree with 

Mr. Jared Huffman that there are many things that we cannot ask 

because the people are not here to ask. 

And, Mr. Chair, my staff was only given 6 business days to find 

a witness, so it is a little hard, especially with a shutdown, to be 

able to ensure that we have adequate representation. 

But I don’t disagree on 3176. I just think we need to have more 

input and more information to be able to make a more informed 

decision. Because we are here—well, it is 3189, sorry—that our role 

is to ensure that whatever law is passed, that whatever we look at, 

whatever input we have, that it is good for the people that we represent. That should be our number one priority. Second, that it is 

fair for the people, that they have a voice. We are supposed to be 

their voice. And also the last one, and I consider that just as important, is that it is good for business and it is good for the economy, 

because without that the people will suffer. 

73 

So with all that, we need to continue to ensure that we have all 

of the parties represented, that we have the voices of those that 

sometimes don’t speak, can’t speak for themselves, they can’t afford 

attorneys, they don’t have the ability to come in and say to Congress, you need to help us, whether it is financially or economically 

or viably, whatever. So I would suggest that we continue to have 

conversations and be able to figure out whether this can be resolved administratively, with our help or without our help, and 

that we understand that our responsibility is to all of you, as well 

as to the people that we all represent, and that we continue to find 

solutions that don’t include spending an inordinate amount of 

money in attorney fees. 

So with that, Mr. Chair, I yield back. 

Mr. MCCLINTOCK. And I would remind the gentlelady that the 

notice was the same as the minority party used to give the majority 

party when the minority was the majority and the majority was 

the minority. 

Chair recognize Mr. Tipton. 

Mr. TIPTON. Thank you, Mr. Chairman. Just a couple of followup questions. 

Mr. Parker, when you were commenting about permits that can 

be changed on a whim, if I wrote down your comment correctly, effectively what you are saying is, correct me if I am in error, but 

you are worried that once a rule is put into place they can also 

change it. Does that speak to the importance of the Water Rights 

Protection Act? 

Mr. PARKER. That is absolutely right. In fact, one of the big challenges in the Hage case that Mr. Stewart brought up was whether 

or not the Federal Government could, in fact, stop access to the 

water. The Federal Court in Nevada and the District Court of Appeals in Washington, DC, both agreed that there is a right of access to those water rights, those livestock water rights. 

Mr. TIPTON. I appreciate that. 

And, Mr. Porzak, maybe you would like to get in on this as well, 

because we have talked about ski areas. We know the economic importance that Mr. Corbin has pointed out, certainly in my district 

and Mr. Polis’ district, who is cosponsor of this legislation as well. 

But you had spoken to the point that this is far more than just 

a ski area issue. You had mentioned the municipal water, grazing 

rights that Mr. Parker can certainly speak to, Mr. Amodei had to 

step out, but we have heard of water rights being taken by the 

Forest Service down in the State of Nevada as a condition of permit. 

When we are talking about the municipal water that we are 

dealing with in Colorado, is this a real threat? And, again, why do 

you suppose the Federal Government, the Forest Service, is trying 

to pursue this taking? 

Mr. PORZAK. It is control over a resource that is indispensable 

and enormously valuable. And they have made it clear that they 

want to have the control so that they can decide how that water 

is allocated and used. And time is of the essence on this issue to 

avoid future litigation. 

Mr. TIPTON. So we can settle it once and for all to be able to protect your private property rights. We don’t have to worry about 

74 

rules being rewritten. To use your quote, going back 20 years, this 

is not a new issue, it is time that we settle it, and this is a good 

piece of legislation to be able to accomplish that? 

Mr. PORZAK. That is correct. And that is why we are so supportive of this legislation. 

Mr. TIPTON. Thank you. 

Mr. Parker. 

Mr. PARKER. And the point I wanted to add to this is the States 

do allow, Utah does allow the Federal Government ownership of 

water. They just have to go through the same process as anybody 

else. They have to step up and show that they are going to put it 

to beneficial use. They have to apply, like anybody else. And if they 

are taking a water right that belongs to somebody else, they have 

to pay for it. What in the world is wrong with that? 

Mr. TIPTON. You know, and I believe that is accurate in Colorado 

as well. We are just not going to allow the Federal Government to 

be able to put themselves in the first position at the expense of our 

ski areas, at the expense of our farm and ranch communities, at 

the expense of our municipalities. They have to play by the same 

rules as the rest of us. 

Thank you, gentlemen. I appreciate your testimony here today. 

We do look forward to the Forest Service coming up and trying to 

express why in the world they believe they have the right to be 

able to take private property. Thank you. 

And with that I yield back, Mr. Chairman. 

Mr. MCCLINTOCK. Thank you. 

Mr. Stewart is next. Mr. Stewart, if I could request, if you have 

any questions of Mr. Porzak could you make them first? He has to 

get out of here to the airport. 

Mr. STEWART. Actually, I don’t, Mr. Chairman. 

Mr. MCCLINTOCK. Mr. Porzak, I want to thank you so much for 

being here and welcome you to leave at your discretion. 

Mr. PORZAK. Thank you, Mr. Chairman. I appreciate it. 

Mr. STEWART. I want to know how come he can go home and we 

don’t get to. 

Mr. PORZAK. I got the last seat on this airplane today. 

Mr. MCCLINTOCK. Mr. Stewart. 

Mr. STEWART. Yes. I am going to be very brief. You all have been 

patient with us as we delayed for the vote, and it is getting late, 

so I won’t take but a few minutes. But I want to pursue what Mr. 

Tipton was saying and maybe draw some conclusions from it. Let’s 

for the moment give the Forest Service or BLM agents the benefit 

of the doubt. Let’s suppose that they have reasons for some of the 

things that they have done or at least that they had some objective 

that they were trying to achieve. And I would ask maybe Mr. 

Corbin or again my friend Mr. Parker, have they explained to you 

what it is that they are hoping? Why is it that they would exert 

these rights when it would be contrary to tradition and law? 

Mr. PARKER. The argument that they have made from a livestock 

standpoint is they suggest that that is the way they can assure 

that it will be there in the future to maintain their multiple use 

obligation and allow grazing. But we have already made that happen in Utah under State statute, we have made it livestock water 

rights appurtenant to the land. 

75 

Mr. STEWART. I think that is exactly right, their desire to tie that 

water to the land. And I am going to come back to that. 

Mr. Corbin, did you want to add to that? 

Mr. CORBIN. I would agree. And the same rationale has been 

given to us, that the stated purpose is to have the water available 

for the special use permit in the ski area per se. But as has been 

testified here already, in the rule that was proposed in 2012 there 

really wasn’t such a restriction. It was indeed contemplated that 

uses might be other than skiing and outside of our permit areas 

for other purposes, whether that is aquatic systems elsewhere or 

not. 

Mr. STEWART. Whatever it might be. 

Mr. CORBIN. It could be anything, yes. 

Mr. STEWART. That is right. Which brings me to the point I 

would like to make on that, and that is, while they wanted to ensure that the land and the water were tied so that it would continue to be used for the purpose that it was being used, they were 

afraid essentially that the water rights would be sold downstream 

for other uses or for some other cause. But, you know, we asked— 

not myself, I wasn’t in Congress at the time—but the Congress 

asked the Chief if he had any examples, even one, of that occurring, and this was several years ago and his answer was no, we 

don’t have a single occurrence where that has actually been what 

took place. 

And I am wondering, in the ensuing 2 or 3 years since then, are 

either of you aware of any example of that occurring? 

Mr. CORBIN. In my experience, no sir, I am not aware of any ski 

area that has essentially stripped itself of its water and sold it 

as—— 

Mr. STEWART. Of course not. Of course they wouldn’t do that. 

Mr. CORBIN. It would severely hamper your ongoing enterprise. 

So there is no real reason to strip your water off your ski area. 

Mr. STEWART. There is no-self interest of you doing that. 

Mr. Parker, do you—— 

Mr. PARKER. And if you take where livestock water is, across 

Utah in particular, it has been developed out there across the landscape and it is an arid landscape. And a lot of them are just 

troughs where seeps have been run into it for water for livestock 

and wildlife. It would be impossible to be able to transfer that dispersed water out there across the Utah landscape, put it into a 

pipe, and send it to some municipality. It can’t happen. The best 

use of it is livestock water for the economic opportunities that it 

affords rural Utah. 

Mr. STEWART. Well, and so I started out my questions to you by 

saying let’s give the agency agents the benefit of the doubt trying 

to understand why they are doing this. But their own reason, their 

justification, it is chasing a ghost. I mean, they are trying to solve 

a problem that doesn’t exist. What they are trying to do is to preclude a problem that by their own admission does not exist. 

Mr. PARKER. If you look at the findings in the Hage case, particularly when the Federal Government, the agents filed a trespass 

suit against the family, the agencies are strong arming these individuals out of being able to clean their ditches, out of using their 

water right. These are Federal agents that by court were fined for 

76 

illegal activities against those ranching families. Very few of them 

have the financial wherewithal to do this. The Hage’s did and they 

found it pretty tough treading to go through the court system. 

Mr. STEWART. Well, thank you. Again, to all of the witnesses, you 

have helped me make I think some important points with your experience. 

And, Mr. Chairman, I yield back. 

Mr. MCCLINTOCK. Thank you. 

I would like to thank our witnesses for their valuable testimony 

today and again for their patience on our late start. Members of 

the subcommittee may have additional questions, and we would 

ask that you respond to those in writing. The hearing record will 

be open for 10 business days to receive those responses. 

And if there is no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 4:17 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

LETTER FROM CHAIRMAN MCCLINTOCK TO BUREAU OF RECLAMATION ON H.R. 3176 

U.S. HOUSE OF REPRESENTATIVES,

COMMITTEE ON NATURAL RESOURCES, 

WASHINGTON, DC, 

OCTOBER 18, 2013. 

Hon. MICHAEL L. CONNOR, Commissioner, 

U.S. Bureau of Reclamation, 

1849 C Street, NW, 

Washington, DC 20240. 

DEAR COMMISSIONER CONNOR: 

As you know, I invited you to testify on H.R. 3176 at the Water and Power Subcommittee’s October 10, 2013 hearing. However, you or any other agency personnel 

did not testify or submit comments on the legislation. 

While you unfortunately chose not to attend, it is your agency’s responsibility to 

provide the Administration’s views on H.R. 3176. As such, I request that you provide written comments on the bill no later than November 1, 2013. 

Thank you for your attention to this matter. 

Sincerely, 

TOM MCCLINTOCK, CHAIRMAN, 

Subcommittee on Water and Power. 

LETTER FROM CHAIRMAN MCCLINTOCK TO U.S. FOREST SERVICE ON H.R. 3189 

U.S. HOUSE OF REPRESENTATIVES,

COMMITTEE ON NATURAL RESOURCES, 

WASHINGTON, DC, 

OCTOBER 18, 2013. 

Hon. TOM TIDWELL, Chief, 

United States Forest Service, 

1400 Independence Ave., SW, 

Washington, DC 20250. 

DEAR CHIEF TIDWELL: 

As you know, I invited you to testify on H.R. 3189 at the Water and Power Subcommittee’s October 10, 2013 hearing. However, you or any other agency personnel 

did not testify or submit comments on the legislation. 

77 

While you unfortunately chose not to attend, it is your agency’s responsibility to 

provide the Administration’s views on H.R. 3189. As such, I request that you provide written comments on the bill no later than November 1, 2013. 

Thank you for your attention to this matter. 

Sincerely, 

TOM MCCLINTOCK, CHAIRMAN, 

Subcommittee on Water and Power. 

RESPONSE TO CHAIRMAN MCCLINTOCK FROM U.S. DEPARTMENT OF THE INTERIOR ON

H.R. 3189 

U.S. DEPARTMENT OF THE INTERIOR, 

WASHINGTON, DC, 

NOVEMBER 13, 2013. 

Hon. TOM MCCLINTOCK, Chairman, 

House Subcommittee on Water and Power, 

Washington, DC 20515. 

DEAR MR. CHAIRMAN: 

This letter provides the views of the Department of Interior (Department) on 

H.R. 3189, the Water Rights Protection Act, which was the subject of a legislative 

hearing by the Subcommittee on Water and Power. The Department has serious 

concerns that H.R. 3189 could significantly impact the Department’s ability to manage water-related resources within public lands managed by the Department. The 

legislation is overly broad and could have numerous unintended consequences that 

would affect existing law and voluntary agreements. The Federal Government retains the right to regulate government lands under Article IV, Section 3 of the Constitution. Pursuant to that provision, the United States has authority to reserve 

water rights for its reservations and its property. Although the Federal Government 

generally defers to the States in the allocation and regulation of their water rights, 

a bill prohibiting two Federal departments from exerting some control over the exercise of water rights located on Federal lands threatens to undermine their longstanding authority to manage property and claim proprietary rights for the benefit 

of Indian tribes and reserved Federal lands. The bill would create uncertainty for 

many existing voluntary arrangements that are designed to produce a more efficient 

operation of U.S. facilities in the wake of climate change and reduction of water supplies. 

H.R. 3189 may prohibit parties from voluntarily entering into agreements with 

the Department or its bureaus with respect to water rights in order to protect State, 

Federal or third party interests. For example, this bill could prevent the Bureau of 

Reclamation from partnering with parties who use groundwater for recreational activities on Reclamation lands, since the recreational users often apply jointly with 

Reclamation for a State permit since Reclamation is the land owner. Further, there 

are numerous examples where the Bureau of Reclamation has contracts with water 

users that include the transfer or relinquishment of pre-existing private water 

rights in exchange for a license or contract that provides project benefits at Reclamation facilities, e.g. storage or delivery of water. The bill, as written, may prohibit renewal of such contracts, thus interfering with voluntary, mutually beneficial 

agreements that improve water resource management. We do not believe it was the 

intent of this legislation to prohibit such agreements and we believe the Department 

should be explicitly excluded. 

The legislation would also prohibit the National Park Service from exercising its 

authority to perfect water rights in the interest of the United States for waters diverted from or used on National Park Service lands, including operations associated 

with National Park Service concessioners, lessors or permittees. The requirement 

that all water rights on National Park Service lands be held in the name of the 

United States is grounded, in part, on the potential damage and disruption that privately held water rights could cause to park resources and operations. 

As drafted, the legislation would also impose unnecessary restrictions on the Bureau of Land Management’s ability to cooperatively mitigate impacts to sensitive 

water resources. The BLM frequently partners with public land users through collaborative agreements to plan, finance, and develop water resources. The legislation 

would not provide additional protections for the holders of water rights beyond current BLM policy, and if enacted, would jeopardize the BLM’s ability to manage 

water-related resources vital to many multiple uses on public lands. 

78 

We appreciate the opportunity to present the Department’s views on H.R. 3189. 

The Office of Management and Budget has advised that there is no objection to the 

transmittal of these views from the standpoint of the Administration’s program. If 

you have any questions, please call me, or Libby Washburn, Deputy Commissioner 

for External & Governmental Affairs, Bureau of Reclamation, at 202.513.0616. 

Sincerely, 

ANNE CASTLE, 

Assistant Secretary for Water and Science. 

PREPARED STATEMENT OF USDA FOREST SERVICE

H.R. 3189, WATER RIGHTS PROTECTION ACT

Chairman McClintock, Ranking Member Napolitano, and Members of the Subcommittee, thank you for the opportunity to provide the U.S. Department of Agriculture’s views on H.R. 3189, the Water Rights Protection Act. We defer to the U.S. 

Department of the Interior for its views on this bill as it pertains to its bureaus. 

It is not in our interest or policy to take private water rights. Our interest is in 

sustaining skiing as a recreation opportunity on National Forest System (NFS) 

lands now and in the future. Water rights are increasingly critical to many ski areas 

for the purpose of snowmaking. Our interest is not in taking the water right, but 

in assuring that a necessary amount of water is available so that skiing can continue to be an important recreation opportunity in the National Forests. 

Based on comments and a series of town hall meetings held this year, we will be 

proposing changes to the ski area water rights clause that address the concerns associated with the previous ski area water rights clause. We believe that these 

changes will provide assurances to the public and communities that depend on economic activities from ski areas that they will continue to provide recreation opportunities. Further, we believe that these objectives can be met without requiring the 

transfer of privately owned water rights to the Government. Once the proposed permit clause is published in the Federal Register, the public will have an opportunity 

to comment, and the Forest Service will determine how to proceed based on those 

comments. 

Because we are moving forward expeditiously with an opportunity for public comment on the ski area water rights clause in response to a 2012 court decision, the 

Department believes H.R. 3189 is unnecessary. Further, the Department is concerned that H.R. 3189 as drafted would impede the statutory mission of the Forest 

Service to provide for multiple uses, including recreation, under the Organic Administration Act and Multiple Use Sustained Yield Act (MUSYA). Specifically, the bill 

would preclude the Forest Service from requiring as a condition of a permit issued 

for MUSYA purposes, such as a ski area or grazing permit, the transfer of associated water rights to a succeeding permittee. Thus, the bill could complicate the 

United States’ ability to prevent severance of water rights from associated permitted 

uses of Federal lands, as necessary to ensure the continuing availability of water 

for snowmaking and other forest uses. 

In addition, the legislation could also generate litigation over imposition of conditions on a special use authorization or a Federal Energy Regulatory Commission license to require a bypass flow. Inability to impose bypass flow requirements would 

significantly affect the Forest Service’s management of water resources to protect 

the environment, e.g., to ensure adequate water is available for fisheries or threatened and endangered species. 

Thank you again for this opportunity to comment on H.R. 3189. 

79 

LETTERS SUBMITTED FOR THE RECORD ON H.R. 3189 

HEAVENLY MOUNTAIN RESORT, 

LAKE TAHOE, NV, 

OCTOBER 7, 2013. 

Hon. TOM MCCLINTOCK, Chairman, 

Hon. MARK AMODEI, 

House Subcommittee on Water and Power, 

1522 Longworth House Office Building, 

Washington, DC 20515. 

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

DEAR CHAIRMAN MCCLINTOCK AND CONGRESSMAN AMODEI: 

Heavenly Mountain Resort operates a public land ski area in the States of California and Nevada under a Special Use Term Permit from the USDA Forest Service. 

Heavenly supports H.R. 3189 the Water Rights Protection Act as proposed for the 

following reasons: 

1. Water rights developed, paid for and perfected by the ski area permittee are 

a right of use that is protected by the State Constitution: any taking of those 

rights by the Federal Government requires fair and equitable compensation; 

2. In Nevada for example, all surface and groundwater water is owned by the 

State which grants the rights to use it through the State Engineer to private 

and public entities through a detailed permitting system. It is not possible for 

a private ski area permittee to transfer to the Federal Government something 

that it does not own; 

3. Tourism and outdoor recreation is the economic base of our community and 

provides several thousand direct and indirect jobs annually; 

4. In the Sierra Nevada mountains in particular where natural snowfall has 

been inconsistent in recent years, the ability to acquire and utilize water 

rights for snowmaking is a critical business issue that allows resorts like 

Heavenly to have successful ski seasons; 

5. Using the water rights to make snow and manage it throughout the season 

supports a significant number of jobs in our community: in particular early 

season snowmaking is critical to our local economy both directly and indirectly because it provides consistency as to when we can open to the public; 

6. Based on our presence in the community and our long-term commitment to 

its sustainability and economic well-being, Heavenly is clearly better suited 

than the Federal Government to responsibly use and reliably protect this valuable resource; and 

7. While we enjoy a close working relationship with the Forest Service in providing high-quality outdoor recreation to the American public, their previous 

attempts at requiring transfer of water rights as a permit condition is unnecessary and appears to be a solution in search of a problem that does not actually exist in our industry. 

Thank you for the opportunity to provide our input to this important bill. I am 

sorry that I cannot be with you in person to present our testimony. 

Please share it with members of the subcommittee and add it to the hearing 

record. 

Sincerely, 

ANDREW STRAIN, 

Vice President of Planning & Governmental Affairs. 

80 

NATIONAL ASSOCIATION OF CONSERVATION DISTRICTS, 

WASHINGTON, DC, 

OCTOBER 21, 2013. 

Chairman HASTINGS, and Ranking Member DEFAZIO, 

Committee on Natural Resources, 

Chairman MCCLINTOCK, and Ranking Member NAPOLITANO, 

Subcommittee on Water and Power, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

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

DEAR CHAIRMAN HASTINGS, RANKING MEMBER DEFAZIO, CHAIRMAN MCCLINTOCK

AND RANKING MEMBER NAPOLITANO: 

The National Association of Conservation Districts (NACD) supports the bipartisan H.R. 3189, the Water Rights Protection Act. NACD represents America’s 

3,000 locally led conservation districts working with millions of cooperating landowners and operators to help them manage and protect land and water resources 

on private and public lands in the United States. Established under State law, conservation districts share a single mission: to work cooperatively with Federal, State 

and other local resource management agencies and private sector interests to provide technical, financial, and other assistance to help landowners and operators 

apply conservation to the landscape. 

NACD understands that water is a vital natural resource that needs to be protected. This bill would prevent Federal agencies from requiring public-lands users 

to turn over water rights as a condition of issuing or renewing permits. Not only 

is compelling individuals to relinquish water rights for permits unfair to those who 

have paid to use their water permits, the required waiver of water rights to the Federal Government overlooks State laws concerning water rights transfer and ownership as well as Constitutional takings issues. 

Stakeholders ranging from individual ranchers and farmers to municipalities rely 

on private water rights to provide drinking water, provide agricultural water, run 

their operations, and secure loans. The loss of these water rights would take away 

their ability to address local water concerns and plan ahead to meet their specific 

long-term water needs. H.R. 3189 would secure water rights for those that have 

paid for them and provide stakeholders the stability they need to appropriately plan 

for and manage natural resources at the local level. 

Thank you for your consideration of these important water resource issues as they 

pertain to H.R. 3189. 

Sincerely, 

EARL J. GARBER, 

President. 

RIO GRANDE WATER CONSERVATION DISTRICT, 

ALAMOSA, COLORADO, 

OCTOBER 15, 2013. 

Hon. SCOTT TIPTON, 

218 Cannon House Office Building, 

Washington, DC 20515. 

DEAR REPRESENTATIVE TIPTON: 

One of the Rio Grande Water Conservation District’s purposes is ‘‘for the conservation, use and development of the water of the Rio Grande’’. We understand that there 

has been an attempt by certain Federal agencies to require Federal permittees to 

assign their private water rights to the Federal Government as a condition of the 

permit. If this policy continues it will create a great risk to the water users both 

in the San Luis Valley and statewide. The Rio Grande Water Conservation District 

supports H.R. 3189, The Water Rights Protection Act, aid will work with you to garner support for this bill to ensure protection of privately owned water rights from 

claims by Federal agencies. 

As we understand, H.R. 3189 was introduced as a means to protect water users 

from the seizure of privately owned water rights without just compensation. We believe that H.R. 3189 grants no new rights to any party, nor does it in any way infringe on existing rights of individuals, States or the Federal Government. It apVerDate Mar 15 2010 07:31 Oct 31, 2014 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6621 J:\05 WATER & POWER\05OC10 1ST SESS\10-10-13 P\85145.TXT DARLEN
81 

pears to us that this legislation simply reaffirms what has been existing law for generations and which is expressed in numerous places in Federal law, including the 

Mining Act of 1866; the 1897 Organic Act establishing the U.S. Forest Service; the 

Taylor Grazing Act; and the Federal Land Policy and Management Act of 1976. The 

bill supports long-established recognition of the primacy of State water law and the 

title to water rights that are established thereunder. 

We are aware of no provision in Federal statutory law authorizing or permitting 

the Forest Service or the Bureau of Land Management to compel owners of lawfully 

acquired water rights to surrender those rights or to require that they be in the 

name of the United States. H.R. 3189 does nothing more than assure holders of 

BLM or Forest Service permits that their lawfully acquired water rights will not be 

abridged and that Federal agencies may not use the permit process to acquire water 

rights that are owned by non-Federal entities. 

We thank you for taking a leadership role in addressing this crucial issue and 

look forward to working with you on this important legislation. 

Sincerely, 

STEVEN VANDIVER, 

General Manager. 

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