Ski industry, ranchers back Tipton bill to protect rights

Tipton's H.R. 3189, co-sponsored by Rep. Jared Polis (D-Colo.) and five other Republicans, was endorsed by the National Ski Areas Association, Aspen Skiing Co. and the Utah Farm Bureau at a hearing of the House Natural Resources Subcommittee on Water and Power.

But the committee's top Democrat said he is concerned that the bill as written is overly broad and said it's important to see the Obama administration's policy before blocking it with legislation.

The administration was unable to send a witness due to the government shutdown but presumably would have raised concerns with the bill, as it seeks to undermine a Forest Service effort that the agency argues would preserve recreational opportunities on public lands.

Tipton's bill seeks to pre-empt a yet-to-be-released directive that could require ski areas to turn over their water rights to the United States in order to renew or amend special-use permits that allow them to operate on agency lands.

The policy -- which was thrown out by a federal judge last December but is expected to be reproposed in similar form -- is wildly unpopular in Colorado and other Western states, where ski areas claim that they have paid hundreds of millions of dollars to obtain water rights for snowmaking, lodging facilities, restrooms, culinary purposes and irrigation and want fair compensation when, and if, they decide to sell them.

"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," said a prepared statement by David Corbin, vice president of planning for Aspen Skiing, which owns and operates four resorts in Colorado. "Why would a ski area invest in water rights and infrastructure if they are simply going to be taken by the government?"

Randy Parker, CEO of the Utah Farm Bureau, said Tipton's bill would help prevent "misunderstandings" between ranchers and federal lands agencies over the use of livestock water rights.

While the Forest Service has said its directive will only apply to ski areas, Tipton claimed it has "broad implications that have begun to extend beyond recreation and the farming and ranching community, and are now threatening municipalities and other businesses."

Tipton has said he hopes to pick up additional Democratic support, but it's unclear how many would sponsor the measure without the Obama administration's support.

Rep. Peter DeFazio (D-Ore.), the committee's ranking member, said he was also concerned about the Forest Service's earlier water directives, which he called overly broad.

But he warned that the bill as written goes beyond ski resorts and could have unintended consequences in the areas of other federal permitting, including grazing and oil and gas drilling and hydraulic fracturing.

"Obviously, whenever you begin to start to discuss water rights and water law in the West, it's incredibly emotional, it's something that is unbelievably complicated within and across state borders and not easily understood," DeFazio said. "There are legitimate rights to be protected here. We don't want to overreach, either."

The Forest Service has argued that it has an obligation to sustain skiing opportunities on public lands and must ensure that water remains available for that purpose rather than being sold off to the next highest bidder.

Climate change and population growth have put unprecedented strain on water supplies in the Colorado River Basin, raising the threat that water could be repurposed, the agency has said.

Across the West, more than 120 ski resorts operate on Forest Service lands. The Forest Service has argued that issuing 40-year special-use permits to the resorts signifies a major agency investment in the recreational use of the land.

"The concern is what could occur in the future and especially as water becomes more and more valuable," Forest Service Chief Tom Tidwell told Tipton during a Natural Resources subcommittee hearing in November 2011. "You know, the concern is that in the future, that that water right has such a high value that it is more than the value of the operating ski area, that it would be severed so that the public would lose that opportunity, and then we would have to deal with a resort that no longer has the capability to provide the adequate snow-making or the base facilities to support the recreating public."

Democrats at the hearing also touted H.R. 3176, by DeFazio, to reauthorize the Reclamation States Emergency Drought Relief Act of 1991.

The act allows the Interior Department, which includes the Bureau of Reclamation, to take emergency measures in Reclamation states during drought, including constructing temporary facilities, facilitating water transfers, and moving and storing non-project water. The act also allows Reclamation to provide technical assistance to all states, tribes and territories with drought contingency plans.

"H.R. 3176 simply provides Reclamation with one more tool to help our communities during times of crisis," DeFazio said.

Rep. Tom McClintock (R-Calif.), the subcommittee's chairman, said the issue of emergency drought relief is "important and timely" but that the federal government's approach to drought should be "aimed at producing permanent abundance rather than managing temporary shortages."

He said more dams and aqueducts are needed to prevent water shortages.

The Senate Energy and Natural Resources Committee cleared companion legislation (S. 659) from committee Chairman Ron Wyden (D-Ore.) in May (E&E Daily, May 17).