Reining in feds
Posted: Wednesday, March 7, 2012 12:00 am
REP. SCOTT Tipton is sponsoring an amendment to pending legislation that would preclude federal reserved water rights in Colorado.
The main bill would give federal review of a water project in California’s San Joaquin Valley. Rep. Tipton’s amendment would limit the federal action to that single project.
“In order to protect jobs in Colorado, we attached language to the bill that would prevent it from pre-empting state law in any other state,” the 3rd District Colorado Republican said. “At a variety of levels, across the country, we are seeing the federal government assert itself in state water issues.”
It is a trend that has been noticeable. In November, Rep. Tipton, along with Sens. Mark Udall and Michael Bennet, challenged water clauses in U.S. Forest Service contracts for ski areas, saying they encroach on Colorado water law and policies.
In issuing permits for ski areas on national forest lands, a new clause assigns water rights at the area to the federal government. The National Ski Areas Association is planning to sue.
This move is an attempt to get around the law. In the 1980s and ’90s, then-Sens. Bill Armstrong and Hank Brown fought the feds over what the bureaucrats were claiming as reserved water rights.
Congress finally passed legislation denying federal reserved water rights and ordering the government to apply for rights through Colorado’s appropriation system. That entails lining up like every other applicant and filing for rights in a water court.
Michael Perry, president of the ski association, has made the point that “Water rights in the West are part of the asset base of the ski areas that they have acquired in the marketplace and they are an important part of the balance sheet of a ski area.” The government’s assuming ownership of some of those rights would constitute an unconstitutional taking.
In November, water lawyer Glenn Porzak testified on behalf of the ski industry, telling a subcommittee of the U.S. House Natural Resource Committee that water rights in Colorado are a matter of state law. But that argument has fallen on deaf ears at the Forest Service, which claims the feds know what’s best for Colorado. Federal agencies are always looking for precedents to set so they can expand their power and reach.
Scott Tipton is to be thanked, because if the bill with his amendment fails, it might increase pressure on the Colorado River if San Joaquin Valley farmers were forced to look elsewhere for supplies. Should they put a call on Colorado River water, that could imperil deliveries of West Slope water to the Arkansas Valley through the Fryingpan-Arkansas Project.
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