U.S. Rep. Scott Tipton and two witnesses at a water-rights hearing Thursday bashed the U.S. Forest Service for what they characterized as the agency’s attempts to take away private water rights. Tipton questioned Geraldine Link, director of public policy for the National Ski Areas Association, and Randy Parker, Utah Farm Bureau Federation’s chief executive officer, about ski-area water rights in a House Natural Resources Subcommittee on Water and Power hearing. The hearing, “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service. The Forest Service is again trying to tie water rights to the land despite a previous loss in court. Last December, a judge ruled that the agency did not properly seek public input in issuing a directive in 2011. The directive would have forbidden ski areas from selling their water rights to anyone other than the next operator of the ski area. “The (U.S. Forest Service) justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snowmaking and grazing,” Tipton’s office said in a news release. “Have ski-area operators been selling water downstream for more profitable uses?” Tipton asked the witnesses. No, Link said, calling the situation a “made-up problem.” Gary Derck, Purgatory at Durango Mountain Resort’s CEO, submitted written testimony for the hearing. “We believe the (U.S. Forest Service) is using their federal position to try to usurp state water law and take private water rights/supplies,” Derck wrote. “In the case of (Durango Mountain Resort), the agency’s actions have placed our resort/community in extreme jeopardy and are sequentially eliminating the critical water resources necessary to operate our resort.” In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses...
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United States v. New Mexico, 438 U.S. 696 (1978), the Court denied the Forest Service’s instream flow claim for fish, wildlife and recreation uses. Specifically, the Court denied the claim on the grounds that reserved water rights for National Forest lands established under the Forest Service’s Organic Act of 1897 are limited to the minimum amount of water necessary to satisfy the primary purposes of the Organic Act – conservation of favorable water flows and the production of timber – and were not available to satisfy the claimed instream flow uses... or much of anything else.
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