Skiing and river recreation reign as popular activities in Montana, but a Congressional bill claiming to protect water rights is causing friction for some enthusiasts.
Scheduled for a House vote on Thursday, House Resolution 3189, dubbed the Water Rights Protection Act, claims to keep federal agencies from limiting or taking over private water rights as a condition of a federal land permit or lease. The bill applies to any agency in the U.S. departments of Agriculture and the Interior.
American Rivers policy director Matt Niemerski said the bill as written could squelch the abilities of federal agencies to protect water that sprouts on federal lands for fish, wildlife and recreation.
“The language they ended up with is a much more expansive bill than what the original issue called for,” Niemerski said. “It essentially forces federal agencies to put private uses of water ahead of other public beneficial uses like fish and recreation. That has big implications with the drought in the West.”
The bill arose from a 2012 lawsuit in which the Colorado-based National Ski Areas Association sued the Forest Service for issuing a 2011 directive that required ski areas operating on public lands under a permit to transfer the associated water rights to the federal government.
The ski areas claimed the directive was designed to seize privately owned water rights allowing the Forest Service to divert the water away from the ski resorts to other purposes.
More than 100 ski areas in 13 states lease national forest lands under 40-year special-use permits. Resorts use the water guaranteed by water rights to make snow.
The Colorado Petroleum Association and the Colorado Oil and Gas Association joined the lawsuit claiming that the directive could limit oil and gas operations on Forest Service lands.
Worried about a perceived threat to their water rights, conservation districts and other agriculture groups filed in support of the NSAA.
The Forest Service claimed the directive was intended to keep water rights connected to the land.
Prior to 2004, ski areas were supposed to buy water rights in the name of the United States but the Forest Service wasn’t consistent in enforcing that requirement.
In 2004, a rule change required that the ski area and the federal government share water rights ownership.
The 2011 change requiring transfer of ownership to the government was an attempt to stop the trend of “buy and dry” where groups sell their rights to water on federal land to private buyers that don’t possess the federal-land permit. For example, the city of Denver has bought up a number of Front Range water rights to provide for city use.
In December 2012, a U.S. District judge ruled against the Forest Service on procedural grounds because it hadn’t carried out a public comment process. He told the Forest Service to redo it.
The Forest Service carried out the public process starting in April 2013 and is still in the process of rewriting the rule.
But this bill would nullify that effort.
“We’re sympathetic to the ski industry and could support it if it was narrowed. But the bill is an end-run around the agency’s efforts to comply with the court order,” Niemerski said. “We’re just waiting for the final rule so why are we pushing this legislation?”
The NSAA doesn’t want to wait for another Forest Service directive, said NSAA spokeswoman Geraldine Link.
“We think legislation is necessary because we’ve had four policy changes in the water rights area in the last 10 years. That kind of uncertainty is not good for business,” Link said. “We don’t like the pendulum swinging back and forth with each administration. Legislation would settle it for the long term.”
That said, the NSAA agrees that the bill is too broadly written and could be scaled back.
On Feb. 11, the NSAA sent a letter to the bill sponsors asking that the bill be changed to apply only to the Forest Service and prohibit only the transfer of water rights to the government.
“The intention of the Water Rights Protection Act is not to impact stream health or aquatic species in any way,” NSAA president Michael Berry wrote. “Ski areas support and abide by these minimum stream flow requirements and would never take action to undermine them.”
However, the bill is also backed by a number of large agriculture organizations including the American Farm Bureau, the Family Farm Alliance and several Colorado county commissions and conservation districts. It’s unlikely they would agree to limit the bill to the Forest Service.
Oil and gas companies are also pushing for the bill as fracking operations increase and more leases open up in and around public land.
“This has been blown into something that could have far-reaching effects,” Niemerski said.
After being introduced in September, the bill passed the House Natural Resources Committee in November on a 19-14 vote.
A similar bill has been stalled since October in the U.S. Senate.