U.S. Senator Michael Bennet, left, works with state soil scientist B.J. Shoup from the USDA’s Natural Resources Conservation Service office in Denver to measure snow depth and water density at a survey site atop Berthoud Pass on March 14.
U.S. Senator Michael Bennet, left, works with state soil scientist B.J. Shoup from the USDA's Natural Resources Conservation Service office in Denver to measure snow depth and water density at a survey site atop Berthoud Pass on March 14. (Scott Willoughby, The Denver Post)
Over the past decade, the federal government has attempted to take privately held water rights in Colorado and in other Western states, disregarding state water law that has been in effect for over a century.
Because of this, I introduced legislation to uphold long-held state water law and protect these rights from the federal government's water grab. The Water Rights Protection Act, which passed the House with bipartisan support, prohibits the U.S. Departments of Agriculture and Interior from violating the 5th Amendment to the U.S. Constitution by taking private water rights without providing just compensation.
This legislation is supported by Colorado and national stakeholders, including the U.S. Chamber of Commerce, the National Ski Areas Association, American Farm Bureau, Colorado River Water Conservation District, and over 20 Colorado counties and water districts.
We've seen such diverse support because protecting our water rights isn't a political issue. It's a Colorado issue. Like these stakeholders, I believe Coloradans are better stewards of their water rights than Washington bureaucrats would ever be.
One of the recent federal efforts to take Colorado water involved the U.S. Forest Service. In 2011, the agency began to require ski areas to relinquish legally purchased and developed water rights — used to make snow — to the federal government as a condition for permits to operate on public lands. The administration claims the condition was necessary to ensure that water stayed with the land and rights weren't improperly sold off.
While the administration insists this Forest Service permit condition was in the best interest of Coloradans, the devil was in the details, and it reeked of a massive federal water grab.
There was no language in the proposed Forest Service permit condition to guarantee that the agency could not divert water to other locations or direct water for another purpose altogether. Furthermore, Forest Service Chief Tom Tidwell testified in a congressional hearing that there hadn't been any instances of private water rights on these lands being improperly sold off. There is, in effect, no basis for the administration's concerns that these private water rights are being abused.
This raises significant questions about the administration's true motives. Regardless of motives, by using the federal permit, lease, and land-management process to extort water rights from those who hold rights under long-held state law, the federal government is overreaching — violating private property rights and the U.S. Constitution.
Federal attempts to seize water rights aren't limited to ski areas. The same tactics have been used by both the Bureau of Land Management and Forest Service to take water rights from family farms and ranches that rely on state-granted water for their cattle and crops. There are also circumstances in which water rights held by irrigation and sanitation districts and municipalities have been threatened by these uncompensated takings.
Colorado should be concerned about heavy-handed attempts by the government to gain control of private water rights. Because of the significant percentage of water that originates on National Forest System lands in Colorado, this issue could impact all users that have water rights passing through lands administered by the Departments of Interior and Agriculture. If adopted by other federal agencies, the scope of that impact could be even broader.
Those potentially impacted by this type of federal authority over water rights originating on public lands include cities, counties, water districts, conservation districts, owners of private residences, marinas and summer resorts, and other businesses such as ranching, mining or utilities.
The implications for Colorado are significant and severe, which is why I will continue to fight to keep control of Colorado's water in the hands of Coloradans, regardless of President Obama's veto threat.