[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
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
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______
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
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 Jim Costa, CA
Scott R. Tipton, CO Jared Huffman, CA
Paul A. Gosar, AZ Tony Cardenas, CA
Raul R. Labrador, ID Raul Ruiz, CA
Markwayne Mullin, OK Alan S. Lowenthal, CA
Chris Stewart, UT Peter A. DeFazio, OR, ex officio
Doug LaMalfa, CA
Doc Hastings, WA, ex officio
------
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
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 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 State-recognized 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 long-held 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.
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 eighth-largest 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 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.
______
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
[email protected].
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
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 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 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.
______
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.
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 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.
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.
______
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.
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 (R-Nev.), 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.
______
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.
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 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 long-term 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.
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. 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.
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 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 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 4\1/2\ minutes on
his own.
Mr. Bishop. To which I will yield back for everything else.
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 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.
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. 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 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 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 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.
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
anybody 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 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 Federal-
State 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 non-
revocable 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.
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. 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.
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
National Forest System Lands are the largest single
source of water in the continental United States, over 14 percent of
available supply.
attachment b
United States Forest Service
Intermountain Region
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 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 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 non-Federal 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.
Sec. 475, 481, & 526), Sec. 505 of the Federal Land Policy and
Management Act of 1976 (``FLPMA'') (43 U.S.C. Sec. 1765), NFMA (16
U.S.C. Sec. 1604(i)), or the Ski Area Permit Act of 1986 (16 U.S.C.
Sec. 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
Sec. 701(g) and (h) of FLPMA (43 U.S.C. Sec. 1701, note re: Savings
Provisions, Pub. L. 94-579); Sec. 505 of FLPMA (43 U.S.C. Sec. 1765);
and NFMA, 16 U.S.C. Sec. 1604(i).
In 1996, Congress created a Federal Water Rights Task Force, P.L.
104-127 Sec. 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 non-Federal 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 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
weather-related 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 available 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\
---------------------------------------------------------------------------
\1\ Kelly 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.
---------------------------------------------------------------------------
Unfortunately, the most up-to-date information is unavailable due
to the shut-down 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.
---------------------------------------------------------------------------
\2\ Id.
---------------------------------------------------------------------------
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 extent.\4\ Last
year, was also the warmest year on record for the contiguous U.S.
dating back to 1895.\5\
---------------------------------------------------------------------------
\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).
\4\ Id.
\5\ Nat'l Climatic Data Center, Wildfires--Annual 2012 (Jan. 7,
2013), http://www.ncdc.noaa.gov/sotc/fire/2012/13.
---------------------------------------------------------------------------
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 exceeding $35
billion.\7\
---------------------------------------------------------------------------
\6\ W. 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-for-the-21st-
century-nidis.
\7\ Pulwarty, supra note 3 at 2 (citing Aon Benfield Reinsurance
Group's Annual Global Climate and Catastrophe Report).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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-food-impacts.aspx#.UXhHzbU4udh.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ Pulwarty, 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ Pulwarty, supra note 3 at 1.
---------------------------------------------------------------------------
Skier visits to the 21 resorts that comprise Colorado Ski
Country USA were down 11.5 percent in 2012, compared to
2011.\13\
---------------------------------------------------------------------------
\13\ Id.
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.
---------------------------------------------------------------------------
\14\ U.S. Bureau of Reclamation, Bureau of Reclamation: Facts and
Information, (Jan. 4, 2013), http://www.usbr.gov/main/about/fact.html.
---------------------------------------------------------------------------
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 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 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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 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 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\
---------------------------------------------------------------------------
\1\ U.S. Department of the Interior, Bureau of Reclamation Web
site: http://www.usbr.gov/drought/.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ See 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.
---------------------------------------------------------------------------
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\
\3\ http://www.aquafornia.com/index.php/where-does-southern-
californias-water-come-from/.
---------------------------------------------------------------------------
The Reclamation States Emergency Drought Relief Act, H.R. 3176,
covers 17 western states (and Hawaii), and all 50 with respect to
planning.
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 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\
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\4\ http://www.usbr.gov/drought/.
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The Act itself can be summarized as follows: \5\
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\5\ http://www.usbr.gov/drought/102-250.html.
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,
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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.
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\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_sacramento-
san_joaquin_valley_water_reliability_act.pdf.
\7\ http://blog.sfgate.com/zgrader/2011/07/25/congressman-nunes-
attempt-to-destroy-californias-salmon-and-fishing-jobs/.
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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.
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\8\ Fite-Reese, An Economic History of the United States, 2nd
Edition.
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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\
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\9\ Observation by CEI Fellow Robert J. Smith.
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Policymakers' objective should be to increasingly liberalize the
marketplace, including improving the regulatory environment such that
we better avoid man-made 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\
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\10\ Alice Albinia, ``A Famous River's Unhappy Descent,'' Wall
Street Journal, July 23, 2012. p. A11 (A review of Meander, by Jeremy
Seal).
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
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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.
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\11\ Kendra 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-days-catching-rain-water-own-
property-enters-jail.
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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\
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\12\ G. 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.
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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:
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\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.
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
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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.''
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\
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\14\ EPA on average family use http://www.epa.gov/WaterSense/pubs/
indoor.html.
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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.''
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\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.
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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\
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\16\ David 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.
\17\ G. Tracy Mehan III., ``The Future of Water: Technology,
Economics, Political Will,'' The Environmental Forum, May/June 2012, p.
6-7.
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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.
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\
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\18\ The 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.
\19\ Fred L. Smith, Jr., 1998. http://cei.org/outreach-regulatory-
comments-and-testimony/testimony-subcommittee-energy-and-environment-
house-commi.
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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.
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.
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\20\ Spain'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.
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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-in-distress 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.
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\21\ See Frederic Bastiat, ``That Which is Seen, and that Which is
Not Seen,'' 1850. http://bastiat.org/en/twisatwins.html.
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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 ``co-
opetition'' 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 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 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\
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\22\ See 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.
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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\
---------------------------------------------------------------------------
\24\ Mehan, May/June 2012.
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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.
---------------------------------------------------------------------------
\25\ http://www.nytimes.com/2009/05/12/business/economy/
12antitrust.html?_r=1&adxnnl=1&adxnnlx=1268514088-MohE/8/
mpcqIAEXJNqJ1JQ.
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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:
---------------------------------------------------------------------------
\26\ Cohen, 2012, p. 4.
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\
---------------------------------------------------------------------------
\27\ Cohen, 2012, p. 3.
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 infrastructure,\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.
---------------------------------------------------------------------------
\28\ Cohen 2012.
\29\ For 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.
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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.
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\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.
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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.
---------------------------------------------------------------------------
\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-be-good-at-
killing-things.html.
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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-product-laden 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\
---------------------------------------------------------------------------
\32\ Congressional Research Service, August 15, 2011. p. 3.
---------------------------------------------------------------------------
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 where the incentives line up differently probably inform
domestic policy better than anything H.R. 3176 could do.
---------------------------------------------------------------------------
\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-Crews-House-of-
Representatives-Testimony-Gov-t-Role-in-Investment-Water-Desalination-
Policy-May-23-2013.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\34\ http://www.acwa.com/news/delta/water-supplies-curtailed-once-
again-protect-delta-smelt.
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\
---------------------------------------------------------------------------
\35\ Ibid.
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
in a 1999 Washington Policy Center paper that makes economic and
environmental tradeoffs more clear.\36\
---------------------------------------------------------------------------
\36\ http://www.washingtonpolicy.org/publications/brief/saving-our-
salmon-using-free-market-protect-environment.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\37\ See 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.
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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\
---------------------------------------------------------------------------
\38\ Terry 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\39\ Cited in Mehan, May/June 2012.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\40\ Mehan, May/June 2012.
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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\
---------------------------------------------------------------------------
\41\ Terry L. Anderson and Pamela Snyder, Water Markets: Priming
the Invisible Pump, Cato Institute: Washington, D.C., 1997. p. 11.
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 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:
---------------------------------------------------------------------------
\42\ David Zetland, The End of Abundance: Economic Solutions to
Water Scarcity, 2011. p. 6.
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\
---------------------------------------------------------------------------
\43\ Zetland, The End of Abundance, p. 183.
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.
---------------------------------------------------------------------------
\44\ Wayne 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\45\ Zetland, The End of Abundance, p. 6.
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.
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\
---------------------------------------------------------------------------
\46\ More 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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\47\ http://cei.org/sites/default/files/Wayne%20Crews%20-
%2010,000%20Commandments%202011.pdf.
---------------------------------------------------------------------------
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.
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 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.
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.
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 Ranking 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 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 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 municipal 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----
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.
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 allotment. 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.
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 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.
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
follow-up 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 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.
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 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.
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.
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.
______
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.
______
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 appears 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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