39–006 

113TH CONGRESS REPT. 113–372 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

WATER RIGHTS PROTECTION ACT 

MARCH 4, 2014.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. HASTINGS of Washington, from the Committee on Natural 

Resources, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 3189] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 3189) to prohibit the conditioning of any permit, lease, or 

other use agreement on the transfer, relinquishment, or other impairment of any water right to the United States by the Secretaries 

of the Interior and Agriculture, having considered the same, report 

favorably thereon with amendments and recommend that the bill 

as amended do pass. 

The amendments are as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Water Rights Protection Act’’. 

SEC. 2. TREATMENT OF WATER RIGHTS. 

The Secretary of the Interior and the Secretary of Agriculture— 

(1) shall not condition the issuance, renewal, amendment, or extension of any 

permit, approval, license, lease, allotment, easement, right-of-way, or other land 

use or occupancy agreement on the transfer of any water right directly to the 

United States, or any impairment of title, in whole or in part, granted or otherwise recognized under State law, by Federal or State adjudication, decree, or 

other judgment, or pursuant to any interstate water compact; and 

(2) shall not require any water user to apply for or acquire a water right in 

the name of the United States under State law as a condition of the issuance, 

renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement. 

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SEC. 3. DEFINITION. 

For purposes of this Act, the term ‘‘water right’’ means any surface, groundwater, 

or storage use filed, permitted, certificated, confirmed, decreed, adjudicated, or otherwise recognized by a judicial proceeding or by the State in which the user acquires 

possession of the water or puts it to beneficial use. 

SEC. 4. IMPACT ON EXISTING AUTHORITY. 

Nothing in this Act limits or expands any existing authority of the Secretaries to 

condition any permit, approval, license, lease, allotment, easement, right-of-way, or 

other land use or occupancy agreement on Federal lands subject to their respective 

jurisdictions. 

Amend the title so as to read: 

A bill to prohibit the conditioning of any permit, lease, or other 

use agreement on the transfer of any water right to the United 

States by the Secretaries of the Interior and Agriculture. 

PURPOSE OF THE BILL

The purpose of H.R. 3189 as amended is to prohibit the conditioning of any permit, lease, or other use agreement on the transfer 

of any water right to the United States by the Secretaries of the 

Interior and Agriculture. 

BACKGROUND AND NEED FOR LEGISLATION

Each western state has its own system of water law that governs 

public and private water rights within its borders. All western 

states have adopted some form of the prior appropriation doctrine, 

or ‘‘first in time, first in right,’’ regarding surface water and many 

have, to some degree, integrated this approach into their system of 

ground water law. Under prior appropriation, water rights are obtained by diverting water for ‘‘beneficial use,’’ which can include domestic use, irrigation, stock-watering, manufacturing, mining, hydropower, municipal use, agriculture, recreation, fish and wildlife, 

depending on state law. The water right is the amount of water 

that is diverted and put to beneficial use. Eastern states normally 

use riparian systems of law, under which rights to use water are 

generally tied to lands adjacent to waterways. Western states 

adopted prior appropriation since incentive was needed for the development and judicious use of water rights from sources often far 

away from their point of use. This allowed for the ownership of 

water rights without the need to own the land in direct proximity 

to a waterway. The settlement of the West and the development of 

water rights have allowed water users to invest in farming and 

ranching operations, domestic uses, recreational opportunities, energy development, conservation, and industrial uses. Appropriated 

waters are also a major component of most metropolitan water supplies in the West. 

Western states have developed water laws that work best for 

them, largely free from federal interference for more than a century. As the West was settled, a fairly uniform set of laws, customs, and judicial decisions based on beneficial use was established. The federal government has acquiesced to the western territories, later states, to control, manage, and allocate water. That important principle of federalism has been confirmed by the U.S. Supreme Court as recently as June of 2013, in Tarrant Regional 

Water District v. Hermann, 133 S.Ct. 2120, 2132 (June 13, 2013), 

the ‘‘power to control . . . public uses of water is an essential attribute of [state] sovereignty.’’ 

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Pursuant to the McCarran Amendment enacted in 1952, the 

United States has waived its sovereign immunity when sued in a 

water rights dispute, and barred the United States from objecting 

to the application of state law to such a proceeding. This landmark 

law put in place a framework under which the federal government 

validates its state granted water rights in the same fashion as nonfederal water rights holders. 

Earlier federal attempts to erode the state water rights of federal 

land permittees resulted in agencies receiving clear and significant 

opposition. In the 1990s Congress commissioned a Federal Water 

Rights Task Force in response to the federal use of permitting processes to reduce state-allocated water rights held by the city of Boulder, Colorado and by certain agricultural interests in Arizona. The 

report produced by the Task Force found that federal acquisition 

of water for secondary purposes (beyond reserved water rights) 

must be obtained and exercised in accordance with state and federal law and that the federal government had exceeded its legal authority in failing to do so. Report of the Federal Water Rights Task 

Force (August 25, 1997). 

Undermining this longstanding framework upsets the foundation 

of western municipal, agriculture, recreation, business, environmental, and local communities’ water supplies. Protection of Western water supplies and the state law that makes that end possible 

have been supported by generations of Western elected officials on 

a bipartisan basis. 

Contrary to this longstanding precedent, recent federal actions 

and directives are undermining the historic benefits of Western 

water law. Specifically, federal land management agencies, including the U.S. Forest Service have demanded the transfer of water 

rights recognized under state law directly to the United States as 

a condition of permit issuance or renewal. 

The Forest Service and other federal land management agencies 

authorize recreational, agricultural, and other non-federal water 

users to operate on federal lands through the use of special-use 

permits. Such permits do not confer water rights on permit holders, 

but merely govern the terms of use for the federal land. Water 

rights arising within or outside of the permit area must be acquired in accordance with state law and paid for, developed, and 

maintained at the expense of the water user. Many water rights 

holders use these private water rights for activities critical to their 

operations, such as snowmaking in the case of ski areas and stock 

watering and irrigation in the case of farm and ranch operations. 

Additionally, these rights are often used as collateral to secure financing for maintenance, expansion, and to supply nearby communities. 

Despite the legal limitations of these land use arrangements with 

respect to water rights, the Forest Service issued an interim directive in 2011 for ski area special use permits which included a 

clause requiring applicant ski areas to transfer privately held 

water rights to the United States as a permit condition. The directive also required that water rights arising on Forest Service lands 

off-site be transferred to the United States in the event that the 

permit expires or is terminated. In 2012, the Forest Service issued 

an amended national water clause with similar requirements. Certain municipal permits, grazing permits and other agricultural 

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land use arrangements have also included conditions requiring the 

transfer of state-recognized water rights to the United States on a 

piecemeal basis in recent years. 

Witnesses at an October 10, 2013, Water and Power Subcommittee hearing on H.R. 3189 testified that these actions would: 

(1) inhibit water users by limiting access to financing for maintenance and development of facilities; (2) potentially result in U.S. 

government diversion of water currently held by non-federal entities to off-permit locations, prohibiting the continuation of beneficial use; (3) violate state water law of prior appropriation; and (4) 

pose an immediate threat to Western economies which rely on the 

availability of water for snowmaking at ski areas, stock watering 

and irrigation, and municipal use. Furthermore, these actions likely constitute a taking under the Fifth Amendment to the United 

States Constitution for which just compensation would otherwise 

need to be paid. Many courts have recognized the compensable 

property nature of a water right if taken by the government. 

The purpose for the new clause in both the case of ski areas and 

farm and ranch operations, as expressed by the Administration, is 

to ensure that water remains at the location of use to perpetuate 

its current purpose. The Obama Administration’s concern was and 

continues to be that some water users will sell their water rights 

and those sales will result in the diversion of waters away from 

federal lands. To date, no such sales and diversions have been documented. Additionally, the permits and land use arrangements in 

question have not included provisions to ensure that the federal 

government will protect the right for its current use, nor have such 

permits guaranteed that those water rights will not be diverted 

away by the government for an entirely different use. As such, this 

federal policy has the potential to exacerbate the very problem it 

purports to solve. The dangers of this significant departure from 

precedent are clearly noted in the Western Governors’ Association 

(WGA) Resolution 11–7 and the WGA’s November 14, 2013, letter 

to Chairman Hastings, both appended to this report. In their letter 

to Chairman Hastings, the WGA and Western States Water Council state that ‘‘WGA and WSWC have long opposed federal agency 

directives that would adversely affect or interfere with states’ primary and exclusive authority over water rights administration and 

allocation. The purpose of H.R. 3189 appears to be consistent with 

our support for federal deference to state water law.’’ 

H.R. 3189 has been advanced to counter harmful federal policies, 

provide certainty for water users, and to maintain the longstanding 

federal deference to state water law. In doing so, the legislation 

grants no new rights to any party, nor does it in any way infringe 

on existing rights of individuals, states, or the federal government. 

SECTION BY SECTION ANALYSIS

Section 1. Short title 

This Act may be cited as the ‘‘The Water Rights Protection Act.’’ 

Section 2. Treatment of water rights 

Section 2, as amended, prohibits the Secretaries of the Interior 

and Agriculture from conditioning the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotmstockstill on DSK4VPTVN1PROD with HEARINGS

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ment, easement, right-of-way, or other land use or occupancy 

agreement on the transfer of any water right directly to the United 

States, or any impairment of title, in whole or in part, granted or 

otherwise recognized under State law, by Federal or State adjudication, decree, or other judgment, or pursuant to any interstate 

water compact. 

The purpose of this prohibition is to prevent federal land management agencies from using these processes to require a non-federal water user to transfer state-recognized water rights directly to 

the United States. This prohibition is limited by Section 4 which 

provides that any other existing authorities, that the Secretaries of 

the Interior and Agriculture may have to otherwise condition any 

permit, approval, license, lease, allotment, easement, right-of-way, 

or other land use or occupancy agreement remain unaffected by the 

legislation. Other federal land management authority to condition 

or otherwise agree on conditions of federal land use, including contractual voluntary changes in water use and carrying out authorized projects affecting water use, is outside the scope of this Act. 

Section 2, as amended, also prohibits the Secretaries of the Interior and Agriculture from requiring any water user to apply for or 

acquire water rights in the name of the United States under state 

law as a condition of the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, 

right-of-way, or other land use or occupancy agreement. Similar to 

the prohibition mentioned above, the purpose of this provision is to 

prevent the federal government from using the named processes to 

acquire a water right under state law for which it would otherwise 

have to acquire and pay for itself. 

Section 3 protects states’ definitions of the term ‘‘water right’’ 

and includes any water right recognized under state law. 

COMMITTEE ACTION

H.R. 3189 was introduced on September 26, 2013, by Congressman Scott R. Tipton (R–CO). The bill was referred to the Committee on Natural Resources and within the Committee to the Subcommittee on Water and Power. The bill was also referred to the 

Committee on Agriculture. On October 10, 2013, the Subcommittee 

held a hearing on the bill. On November 14, 2013, the Natural Resources Committee met to consider the bill. The Subcommittee on 

Water and Power was discharged by unanimous consent. Congressman Tipton offered an amendment designated .036 to the bill; the 

amendment was adopted by voice vote. No further amendments 

were offered to the bill, and the bill, as amended, was then adopted 

and ordered favorably reported to the House of Representatives by 

a record vote of 19 to 14, as follows: 

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Date: November 14, 2013 

Committee on Natural Resources 

U.S. House of Representatives 

113 th Congress 

Recorded Vote #: 2 

Meeting on I Amendment on: H.R. 3189 - To adopt and favorably report the bill to the House, as amended, by a 

vote of 19 yeas and 14 nays. 

MEMBERS Yes No Pres MEMBERS Yes No Pres 

Mr. Hastings, W A, Chairman X Mr. Dnncan of SC X 

Mr. Defazio, OR, Ranking X Mr. Cardenas, CA X 

Mr. Young, AK Mr. Tipton, CO X 

Mr. Faleomavaega, AS Mr. Horsford, NV X 

Mr. Gohmert, TX Mr. Gosar, AZ 

Mr. Pallone, NJ Mr. Huffman, CA 

Mr. Bishop, UT X Mr. Labrador, ID X 

Mrs. Napolitano, LA X Mr. Ruiz, CA X 

Mr. Lamborn, CO X Mr. Southerland, FL X 

Mr. Holt, NJ X Ms. Shea-Porter, NH X 

Mr. Wittman, VA Mr. Flores, TX X 

Mr. Grijalva, AZ X Mr. Lowenthal, CA X 

Mr. Broun, GA X Mr. Runyan, NJ 

Ms. Bordallo, GU X Mr. Garcia, FL 

=;= - Mr. Fleming, LA X Mr. Amodei, NV - Mr. Costa, CA Mr. Cartwright, P A 

Mr. McClintock, CA X Mr. Mullin, OK X 

Mr. Sablan. CNMI X Mr. Stewart, UT X 

Mr. Thompson, PA X Mr. Daines, MT X 

Ms. Tsongas, MA X Mr. Cramer, ND 

Ms. Lummis, WY X Mr. LaMalfa, CA X 

Mr. Pierluisi, PR X Mr. Smith, MO X 

Mr. Benishel<, MI 

=P= 

Vacancy 

Ms. Hanabusa, HI 

TOTALS 19 14 
7 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(2)(B) of that Rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office: 

H.R. 3189—Water Rights Protection Act 

H.R. 3189 would prevent federal agencies from requiring certain 

entities to relinquish their water rights to the United States in 

order to use public lands. Because CBO expects that enacting the 

bill would not affect the number of users of public lands or the 

amount of receipts received by federal agencies for the use of those 

lands, we estimate that enacting the bill would have no impact on 

the federal budget. Enacting H.R. 3189 would not affect direct 

spending or revenues; therefore, pay-as-you-go procedures do not 

apply. 

H.R. 3189 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

2. Section 308(a) of Congressional Budget Act. As required by 

clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, 

this bill does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or 

tax expenditures. Because CBO expects that enacting the bill 

would not affect the number of users of public lands or the amount 

of receipts received by federal agencies for the use of those lands, 

it estimates that enacting the bill would have no impact on the federal budget. 

3. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill as amended is to prohibit the conditioning of any permit, lease, or other use agreement on the transfer of any water 

right to the United States by the Secretaries of the Interior and 

Agriculture. 

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EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

COMPLIANCE WITH H. RES. 5

Directed Rule Making. The Chairman does not believe that this 

bill directs any executive branch official to conduct any specific 

rule-making proceedings. 

Duplication of Existing Programs. This bill does not establish or 

reauthorize a program of the federal government known to be duplicative of another program. Such program was not included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139 or identified in the 

most recent Catalog of Federal Domestic Assistance published pursuant to the Federal Program Information Act (Public Law 95–220, 

as amended by Public Law 98–169) as relating to other programs. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 

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(9) 

DISSENTING VIEWS 

H.R. 3189 seeks to address a narrow water rights dispute between the Forest Service and the National Ski Areas Association, 

but is written so broadly that it could negatively impact renewal 

of Bureau of Reclamation water contracts, National Park System 

management, mandatory conditioning requirements for Federal Energy Regulatory Commission hydropower relicenses, and grazing on 

public lands. Because of these harmful impacts on other federal activities beyond the intended scope of this legislation, and a reversal 

by the Forest Service on their water rights position, we oppose the 

legislation. 

The current debate on water rights centers on the United States 

Forest Service’s (Forest Service) issuance of a new directive in 

2011. Interim Directive Number 2709.11–2011–3 requires ski area 

permit holders to transfer water rights secured by areas operating 

on public land to the federal government. 

The ski areas argue that the 2011 directive violated Colorado 

water law and the Colorado constitution. Water rights are a huge 

financial asset for ski resorts. Vail Resorts reports water rights as 

intangible assets valued at $18.3 million. The Forest Service is concerned that the value of these water rights would lead permit holders to sell the water, leaving the Forest Service with no water to 

manage the land. 

This conflict led to a U.S. District Court lawsuit against the Forest Service, filed by the National Ski Areas Association (NSAA). In 

December 2012, Judge William Martinez ruled in favor of the 

NSAA, but not on the substantive water law issue. Instead, Martinez said the Forest Service had failed to follow federal government policies on the formation of administrative procedures. The 

Court ordered the Forest Service to withdraw the directive. The 

Forest Service is currently going through a public comment process 

and reevaluating the 2011 directive. On November 13, 2013, the 

Forest Service announced a revision to their water rights position, 

specifically stating that the Forest Service can meet their land 

management objectives ‘‘without requiring the transfer of privately 

owned water rights to the Government.’’ Therefore the conflict this 

legislation seeks to resolve no longer exists and this legislation is 

unnecessary. 

Yet H.R. 3189 goes above and beyond the disagreement between 

the Forest Service and the Ski Resorts, and overreaches to apply 

to all actions that require a permit on federal lands. This includes 

the ability to facilitate the exchange of water rights, assessed at 

fair market value, from being included as part of a voluntary land 

exchange. There is also concern about the ability to impose bypass 

flow requirements for environmental protection, as outlined in testimony submitted by the U.S. Forest Service. This has clear implications on projects like the Conowingo Dam on the Susquehanna 

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River, a key component to the restoration efforts in the Chesapeake 

Bay, and is currently in the Federal Energy Regulatory Commission relicensing process. 

H.R. 3189 also runs counter to National Park Service Management Practice 4.6.2, which specifies that all rights to the use of 

water diverted from or used on federal lands within the national 

park system by the United States or its concessioners, lessors, or 

permittees will be perfected in the name of the United States. H.R. 

3189 would also prohibit the renewal of water contracts for the Bureau of Reclamation’s Central Valley Project. 

The Committee has received numerous letters in opposition to 

the legislation, including letters from Grand County, Summit 

County, and Eagle County in Colorado, who oppose the legislation 

due to its potential impacts on bypass flows. The Committee has 

also received testimony in opposition from the National Forest 

Service and the Department of the Interior. The Committee also received a letter signed by nearly 70 conservation Groups including: 

American Rivers, National Audubon Society, National Parks Conservation Association, American Whitewater, Sierra Club, and the 

Chesapeake Bay Foundation in opposition to this bill. 

This legislation creates more conflict than it solves and should be 

rejected by the House. 

PETER A. DEFAZIO, Ranking Member, 

Committee on Natural Resources. 

GRACE F. NAPOLITANO, 

Ranking Member, 

Subcommittee on Water and Power. 

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FRAN~~A~~;~~ OHAHOMA, 

SOSGOODlATTE.VIRGINIA 

VICf3L'HAIFIMAN 

EXCHANGE OF LETTERS 

'll.~. tilousc of'Rcpfcscntatiocs 

Q:ommimc on 2lgrirulturc 

The Honorable Doc Hastings 

Chairman 

"Zoom no), lUlngroonh lclousr 4'lma JSuilding 

'Washington, BQ: 20m-bOO I 

Committee on Natural Resources 

1324 Longworth House Office Building 

Washington, D. C. 20515 

Dear Chairman Hastings: 

STAFeDlRfCTOR 

HV'NiH~~~~NSE-L 

AOBtlHllAREW 

MIMJRIlYSfAf-FOIRocrOR 

Thank you for the opportunity to review the relevant provisions of the text bfH.R. 3189, the 

Watcr Rights Protection Act. As you are aware, the bill was primarily referred to the Committee 

on Natural Resources, while the Agriculture Committee received an additional referral. 

I recognize and appreciate your desire to bring this legislation before the House in an expeditious 

manner and, accordingly, I agree to discharge H.R. 3189 from further consideration by the 

Committee on Agriculture. I do so with the understanding that by discharging the bill, the 

Committee on Agriculture does not waive any future jurisdictional claim on this or similar 

matters. Further, the Committee on Agriculture reserves the right to seek the appointment of 

conferees, if it should become necessary. 

I ask that you insert a copy of our exchange of letters into both the Congressional Record and the 

Committee Report during consideration of this measure on the House floor. 

Thank you for your courtesy in this matter and I look forward to continued cooperation betwecn 

our respective committees. 

Sincerely, 

'f..J.. ~. ?£..--.-.--

Frank D. Lucas 

Chairman 

cc: The Honorable John A. Boehner, Speaker 

The Honorable Peter DeFazio 

The Honorable Collin C. Peterson 

The Honorable Thomas J. Wickham, Parliamentarian 

8\lriculture.housegoll 
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lDOOYO')NO 

CfiiE~OF51AFF 

N.~. Enunr nf l1{rprrnrntatiurn 

QIummittu un Natural iRtllUUrttll 

lIIJIallqingtun. liM 2U 515 

The Honorable Frank D. Lucas 

Chainnan 

Committee on Agriculture 

February 26,2014 

I30 I Longworth House Office Building 

Washington, D.C. 20515 

Dear Mr. Chainnan: 

1'EN'lYOOOGE 

DfMOCRAfiCSTAFFDIRECTOA 

Thank you for your letter regarding H.R. 3189, the Water Rights Protection Act. As you 

know, the Committee on Natural Resources ordered reported the bill on November 14, 2013. I 

appreciate your support in bringing this legislation before the House of Representatives, and 

accordingly, understand that the Committee on Agriculture will forego action on the bill. 

The Committee on Natural Resources concurs with the mutual understanding that by 

foregoing consideration of H.R. 3189 at this time, the Committee on Agriculture does not waive 

any jurisdiction over the subject matter contained in this or similar legislation. In addition, 

should a conference on the bill be necessary, I would support your request to have the 

Committee on Agriculture represented on the conference committee. Finally, I would be pleased 

to include your letter and this response in the bill report filed by the Committee on Natural 

Resources, as well as in the Congressional Record during floor consideration, to memorialize 

our understanding. 

Thank you for your cooperation. 

cc: The Honorable John A. Boehner, Speaker 

The Honorable Peter DeFazio 

The Honorable Collin C. Peterson 

The Honorable Thomas J. Wickham, Parliamentarian 

hUp:/fnatura!resources.house.gov 
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APPENDIX 

Western Governors' Association 

Policy Resolution 11-7 

Water Resource Management in the West 

A. BACKGROUND 

1. In the arid West, water is a precious resource that must be managed with sensitivity to 

social, environmental and economic values and needs. Clean, reliable water supplies are 

essential for communities throughout the West and the Nation to maintain or improve 

their citizens' quality oflife. Strong state and national economies require sufficient 

supplies of good quality water, which in turn depend on protection of water supply 

sources and the environment and adequate infrastructure for water and wastewater. 

Investments in water infrastructure also provide jobs and a foundation for long-term 

economic growth in communities throughout the West. 

2. Challenges are mounting. Supplies are nearly fully allocated in many basins across the 

West. The cost to maintain and repair aging infrastructure is increasing. Demands for 

population, industry, energy, the environment and recreation are increasing. And we face 

greater variability in terms of future water supply. 

3. States have the pivotal role in allocating, administering, protecting, and developing water 

resources, and they are primarily responsible for water supply planning within their 

boundaries. Western Governors, through their Association and its affiliate, the Western 

States Water Council, have worked for decades to improve resource managcment and to 

secure reliable, clean water for their citizens. The WGA and WSWC reports titled Water 

Needs and Strategies for a Sustainable Future (2006, 2008, and 2010) provide a road 

map for water resource management in the West. 

4. Partnerships are critical to sound water resource management. Federal agencies have a 

role in Western resource management, and collaboration between the states and federal 

agencies is essential. The Western Governors appreciate the efforts of the federal 

government to collaborate with Western states through the Western Federal Agency 

Support Team (WestFAST). Tribal governments and Western states also share common 

water resource management challcnges, and the WGA and WSWC have a long and 

productive partnership working with tribes to resolve water rights claims and promote 

economic development on and off the reservation. Local water utilities and water users, 

recreation and conservation interests, and private citizens must also be engaged in the 

effort to manage water resources in the West. 

B. GOVERNORS' POLICY STATEMENT 

Water Resource Information 

Western Governors encourage continued investment in the nation's water measurement and 

monitoring data nenvorks and the development of information services that promote 

Western Governors' Association Resolution 11-7 Page I 
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collaboration between the research and management communities to ensure relevant information 

is developed and shared with decision-makers. Basic information on the status, trends and 

projections of our water resources is essential to sound water management. 

I. Basic Water Data: Western Governors support several federal programs that are 

particularly critical in this regard, including but not limited to the USGS Cooperative 

Water Program and National Streamflow Information System, the NRCS Snow Survey 

and Water Supply Forecasting Program, and the NASA Landsat Program with its thermal 

infrared sensor (TIRS). Western Governors are concerned about declines in federal 

spending for these and other programs that provide important water supply information 

and believe that such programs should be fully funded by Congress and implemented by 

the federal agencies. Moreover, a general lack of comprehensive and coordinated 

programs for measuring and monitoring water use at all levels of government contributes 

to unacceptable uncertainty on the demand side of the equation, and Western Governors 

support recent federal efforts to address this need. They also support federal efforts to 

coordinate water data gathering and information programs across multiple agencies. 

2. Forecasts and Models: Western Governors call on the federal government to work with 

Western states to develop tools and models that better enable the synthesis, visualization 

and evaluation of water-related data. This includes the development of climate models 

that provide useful information for state water resource managers, utilities and decisionmakers in the Western states. Western Governors recommend the National Oceanic and 

Atmospheric Administration take the lead in improving forecasts on multiple geographic 

and temporal scales. 

3. Information Services: Western Governors encourage federal agencies to partner with 

states in the gathering, coordination and effective dissemination of water-related data 

between the federal government and states. The National Integrated Drought Information 

System (NIDIS) is a successful model of slate-federal collaboration in the development 

of information services. Western Governors support the development of other important 

information services, designed in conjunction with the states, including a national climate 

service that would incorporate and coordinate existing climate and waler data collection 

and analysis programs and services. They further support collaborative management and 

adaptation programs, such as the Regional Integrated Sciences and Assessments. 

Water Resource Planning 

Western Governors believe solutions to water resources challenges require an integrated 

approach and greater partnership among state, tribal, local and federal agencies. Water resource 

planning should consider collectively the full range of water resource needs; develop from the 

bottom up effective solutions that are complementary rathcr than conflicting; and provide 

direction for specific solutions and the most appropriate entities to implement them based 

primarily on a watershed approach. 

4. State Integrated Water Resource Planning: Western Governors support integrated 

water resource management and encourage the development of comprehensive water 

Western Governors t Association Resolution 11-7 Page 2 
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plans with state leadership and federal assistance. Plans should be developed in 

cooperation with tribes, federal agencies, water utilities, conservation and recreation 

groups, and private citizens. Specifically, plans should: 

a. Identify and prioritize anticipated future infrastructure needs for water resources; 

b. IdentifY necessary studies, data and projects; 

c. Projections of future water needs; and 

d. Be used to develop national water policies and priorities that align federal agency 

support to states and that inform decision making regarding regional water issues. 

Specific federal programs, such as the Bureau of Reclarnation Basin Studies and 

USGS Water Census, should carefully consider state water planning efforts and 

complement and support state water plans and processes, rather than supplant 

state water plans. 

5. Water and Growth: In order to better integrate water and land use plruming, states 

should promote policies that facilitate cooperation between water managers and local 

planning agencies in making decisions about new growth. 

6. Local Watershed Planning: Western Governors encourage federal agencies and 

Congress to provide funding, shared personnel and other resources. States should offer 

technical and financial support for watershed groups dealing with local water issues 

associated with water quality, growth and land management and ensure these groups are 

sufficiently empowered to deal effectively with these issues. 

7. Drought Planning: Western Governors believe a comprehensive, integrated response to 

drought emergencies, including mitigation planning, is critical to the social, 

environmental and economic well-being of the West. 

a. Governors support a comprehensive national policy that promotes a coordinated 

and integratcd approach to future drought, including improved forecasting and 

monitoring, drought preparedness and planning, and efficient delivery of drought 

programs. 

b. Governors encourage states to work with federal agencies and local communities 

to develop proactive drought preparedness and contingency plans. 

c. Governors recommend the continued development of the NIDIS program, 

particularly \Yith respect to implementation of regional drought early warning 

systems. 

8. Climate Planning: Western Governors recognize the significant potential impacts of 

climate variability and change on water supplies. Potential changes may include declines 

in precipitation and rnnoff, increases in severe weather events and storms, changes in the 

timing of water availability, and increases in water demands. Western Governors urge 

Congress and the Administration to work closely with states and other resource managers 

to improve predictive and adaptive capabilities for climate change and related impacts at 

regional scales. Federal programs should be responsive to the research priorities and 

resource needs of state water managers as they pertain to climate change, including the 

NOAA Climate Service, 001 Landscape Conservation Cooperatives, U.S. Geological 

Survey's Climate Science Centers, and the National Climate Assessment. 

Western Governors' Association Resolution 11-7 Page 3 
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9. Energy Development: Western Governors recognize that energy development and 

electricity generation may be a significant driver of future water demands. Western 

Governors recommend increased coordination across the energy and water management 

communities and support on-going work to assess the interconnection of energy and 

water through the Regional Transmission Expansion Planning Project for the Western 

interconnection and similar efforts. 

lO. Intergovernmental Cooperation: Western Governors recognize the important role of 

federal agencies in supporting sound water resource management in the Western states. 

Governors appreciate the efforts of federal agencies to coordinate water-related activities 

with the Western states through the 'Western States Federal Agency Support Team' 

(WestFAST) and rccommend the continuation of this key state-federal partnership. 

Water Resource Solutions 

Western Governors recognize that there is no "silver bullet" solution to water resource 

challenges and support a mix of efficient and cost-effective strategies that account for the full 

range of water supply and envirorunental needs. 

11. Infrastructure: Western Governors support investment in water supply and water 

quality infrastructure. Infrastructure investments are essential to our nation's continued 

economic prosperity and envirorunental improvements, and they assist state and local 

entities in meeting federally mandated standards. Infrastructure investment is particularly 

critical now, as much of the water infrastructure that has served the West for decades is 

aging and in dire need of repair. Specifically: 

a. As the economy recovers, all levels of goverrunent should be encouraged to 

increase their investment in water infrastructure and adopt adequate life-cycle 

asset management practices that include pricing policies, project prioritization and 

sufficient revenues to cover the costs of service. 

b. To help states address water infrastructure needs, Congress should provide stable 

and continuing federal appropriations, increased by a construction inflation index, 

to the Clean Water Act and Safe Drinking Water Act State Revolving Funds. 

Further, Congress should increase appropriations from the Reclamation Fund for 

authorized purposes to match average annual fund receipts. Congress should pass 

the Corps of Engineer's Water Resource Development Act (WRDA) legislation 

on a regular schedule and increase funding levels so all projeets and studies 

authorized in WRDA can be completed in a timely manner. Congress also 

should consider facilitating greater investment in water infrastructure, such as 

through an infrastructure bank or water trust fund. 

c. Congress should remove the state volume caps for private activity bonds used for 

water and wastewater projects, provide guaranteed tax-exempt status for bonds 

issued by state or local agencies to finance water infrastructure, provide loan 

guarantees, and otherwise support and encourage alternatives to direct federal 

investment oflimited general funds. 

Western Governors' Association Resolution 11-7 Page 4 
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d. States should encourage public-private partnerships that promote investment in 

water infrastructure and consider mechanisms that would reduce financing costs, 

such as bond insurance, risk pooling, credit enhancements, and revolving water 

funds. 

e. Infrastructure planning and permitting guidelines, rules and regulations should be 

coordinated, streamlined and sufficiently flexible to I) allow for timely decisionmaking in the design, financing and construction of needed infrastructure, 2) 

account for regional differences, 3) balance economic and environmental 

considerations, and 4) minimize the cost of compliance. 

f. Capital budgeting and asset management principles should be used to determine 

funding priorities, based on long-term sustainability and not annual incremental 

spending choices. It should be accompanied by dedicated sources of funding with 

appropriate financing, cost-sharing, pricing and cost recovery policies. 

12. ConservationlEfficiency: Westem Governors encourage adoption of strategies to make 

existing water supplies go further, including the use of water conservation, water reuse 

and recycling, desalination and reclamation of brackish waters, and reductions in per 

capita water use. The Governors encourage investment in research into promising watersaving strategies. 

13. Innovative Water Sharing: Western Governors recognize the potential benefits of 

market-based water transfers, and that the predominant water use in the West is 

agriculture, but they are concerned about maintaining the important cultural, economic, 

and environmental benefits of agricultural lands and food production. Western 

Governors believe states should identify and promote innovative ways to allow water 

transfers from agricultural to other uses (including urban, energy and environmental) 

while avoiding or mitigating damages to agricultural economies and communities. 

14. Indian Water Settlements: Western Governors support negotiated settlements ofIndian 

land and water rights disputes in order to meet the nation's obligations to tribes while 

providing increased certainty for all Western water users. Negotiated settlements are 

flexible, promote sound management practices, provide a basis for partnerships between 

Indian and non-Indian communities, and save millions of dollars by avoiding prolonged 

and costly litigation. Western Governors urge the Administration to support its 

longstanding policy in favor ofIndian land and water settlements that have a strong 

federal commitment to meaningful federal contributions that recognize the trust 

obligations of the United States government. Congress should also ensure that any land 

or water settlement, onee authorized and approved by the President, will be funded and 

implemented in a timely manner without a corresponding offset to some other tribe or 

essential Interior program. 

15. Watershed Protection and Ecological Resilience: Western Governors urge increased 

collaboration between water users and federal agencies in protecting clean water supplies 

recognizing the importance of high-value watersheds and natural features (such as 

wetlands and forests) that provide ecological services, including stormwater and flood 

mitigation, water quality protection and groundwater recharge. 

Western Governors' Association Resolution 11-7 PageS 
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16. Recreational and Ecological Values: Western Governors believe states should strive to 

maintain ecological services, recreational amenities and species needs when managing 

and developing water resources. States and federal agencies should coordinate efforts to 

avoid the listing of water-dependent species under the Endangered Species Act. When 

ESA listings carmot be avoided, parties should promote the use of existing state tools, 

such as state in-stream flow protections to conserve and recover species. 

C. GOVERNORS' MANAGEMENT DIRECTIVE 

1. This resolution is to be posted on the Western Governors' Association Web site. 

2. The Western Governors' Association and the Western States Water Council should 

continue to develop coordinated positions on specific water resource issues on behalf of 

Western states and work to communicate these positions to Congress and federal 

agencies. 

3. Western Governors direct the Western Governors' Association and the Western States 

Water Council to: 

a. Update information and compile a report on Western state water resources 

infrastructure financing authorities, funding sources, policies and programs. 

b. Work with the USGS, EPA, NRCS, and other federal agencies responsible for 

water-related data collection, to explore thc development of a consistent, 

systematic, state-led approach to collecting and sharing information about water 

supply, demand and management options that infOlm state water supply plarming. 

c. Develop an agreement with the National Oceanic and Atmospheric Association 

on the delivery of climate-related information to inform water management (and 

other resource and management) decisions, ensuring that new services meet the 

needs of states and other on-the-ground resource managers. 

d. Conduct a study of water transfers in the Western United States with a focus on 

developing a tool box of institutional and management strategies that states can 

employ as appropriate. 

e. Examine the relationship between future energy development and water supply; 

identify the implieations of water supply for the electric grid; and recommend 

policies or programs to facilitate sustainable energy development in the context of 

economy-wide water availability, working through the Regional Transmission 

Expansion Planning project. 

f. Continue to work with the Ad Hoc Group on Indian Water Rights for purposes of 

advancing negotiated settlements ofIndian land and water rights disputes. 

g. Collaborate on an update to the Water Needs and Strategies Report for 2012 that 

would include a shared vision for water that recognizes the important role of state 

leadership and highlights the need for continued investment in water resource 

planning and management throughout the West and the Nation. 

F:\l 1 resos\Water-Rcsourccs I 1-7.doc 

Western Governors J Association Resolution 11-7 Page 6 
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~ovember14,2013 

Honorable Doc Hastings 

Chairman 

WESTERN 

GOVERNORS' 

ASSOCIATION 

House ~atural Resources Committee 

1324 Longworth House Office Building 

Washington, D.C. 20515 

Re: Water Rights Protection Act - H.R 3189 

Dear Chairman Hastings: 

On behalf of the Western Governors' Association (WGA) and the Western States Water 

Council (WSWC), we are writing to express our appreciation of your Committee's consideration 

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

As the Western Governors have stated in their Policy Resolution 11-7, Water Resource 

Management in the West, "States have the pivotal role in allocating, administering, protecting and 

developing water resources." WGA and the WSWC have long opposed federal agency 

directives that would adversely affect or interfere with the states' primary and exclusive 

authority over water rights administration and allocation. 

The purpose of H.R 3189 appears to be consistent with our support for federal deference 

to state water law. We would note, however, that as this issue has most recently arisen in the 

context of ski area permits and their renewal, we are evaluating the broader implications 

beyond u.s. Forest Service ski area permits. That said, states employ varying approaches to 

determine when the federal government mayor may not hold a water right. Some states allow 

federal agencies to hold a water right individually or jointly with a water right permittee or 

allotment holder. In many cases, these water rights are constitutionally protected private 

property rights that cannot be taken without just compensation. 

WGA and the Water Council are carrying out a multi-stakeholder initiative with state 

and federal partners, including the U.S. Forest Service, to evaluate ways to improve the effective 

resolution of federal non-tribal water right claims and meet federal needs for water within state 

law. 
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Honorable Doc Hastings 

~ovember14,2013 

Page 2 

Thank you for your consideration of the priorities of Western Governors and their states. 

~gtf 

Sincerely, 

~/t1!a~ Executive Director 

Western Governors' Association Western States Water Council 

cc: The Honorable Torn McClintock, Chairman, Subcommittee on Water and Power 

The Honorable Grace ~apolitano, Ranking Member, Subcommittee on Water and Power 

Enclosure 

Identical letter sent to Honorable Peter DeFazio, Ranking Member, House Natural Resources Committee 

o