Liddick: U.S. Forest Service water rules could leave Colorado ski communities high and dry
October 8, 2013
I don't often agree with Congressman Jared Polis, but on this, I do.
To his credit, our congressman has signed on as a supporter of HR 3189, introduced by Congressman Scott Tipton twelve days ago. If you don't know what it is, find out. If you don't support it, you should. It has to do with the long-term viability of most of Colorado's ski areas.
HR 3189 is a short resolution whose purpose is plain in the title: "To prohibit the conditioning of any permit, lease, or other use agreement on the transfer, relinquishment, or other impairment of any water right to the United States by the Secretaries of the Interior and Agriculture." It was made necessary by the 2011 U.S. Forest Service rewrite of permitting processes which conditioned the granting of leases and permits to ski areas on the transfer of their privately-held water rights to the federal government.
In 2012, the National Ski Areas Association sued the USFS over the new requirements, claiming they were an illegal taking of private property and contravened both Colorado water law and repeated Congressional directives to the Forest Service that it comply with state laws when drawing up regulations. They won. But true to attitudes about the law currently prevalent in Washington, the Forest Service is pressing ahead with plans to implement the new regulation, covered with a fig leaf of "public hearings."
In Colorado and throughout the West, water rights are legally protected property rights, the seizure of which without due compensation is a violation of the Fifth Amendment to the U.S. Constitution, as well as a multiplicity of state constitutions and specific laws. They are also historically the stuff of conflict. None of which seems to matter to this Department of Agriculture and Forest Service.
Instead, the USFS claims it must seize privately-held water rights "to ensure they will never be severed from public land." But the permitting process language is vague — possibly because there is substantial legal precedent saying that any taking of water rights would have to be based on a "legitimate government interest" in controlling said rights, an argument the government has so far not made.
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It is difficult to know what end the Forest Service is seeking, but there's no reason to believe they have the interests of ski communities at heart. In a 2012 letter to Senator Mark Udall, Forest Service winter sports coordinator Ed Ryberg asserted that the permitting changes "will not negatively impact ethical ski areas who met their agreed-to obligations of their permits." How Mr. Ryberg or the USFS defines "ethical" was not spelled out.
Further indications about intent might have slipped out in a meeting two weeks ago between Jim Pena, associate deputy chief of the USFS and the Colorado legislature's water committee. "Demand for water has increased over the past 30 years," Pena noted. "More people require more water, and climate conditions impact the availability of that water." So don't blame the government for seizing private property. Blame "global warming."
It's the first part of the statement that gives the game away. Once privately-held water rights are taken by the government, they become subject to political calculation. As a thought experiment, let's say the West really is drying out. Where are all those reliably Democrat voters in the Front Range going to get the water to slake their thirst, flush their toilets and water their lawns? When congressional districts who haven't had a Republican representative in 40 years start moaning about drought, what will a Democrat Secretary of Agriculture be hard pressed to do with those ill-gotten water rights? Remember, it will be a case of "hard-working, middle class" urbanites against the interests of … well, who goes skiing? "One percenters," right? This contest has predicable winners and losers under any government that thinks rights in private property are a minor inconvenience, not the bedrock of society.
You might think this is an abstract conflict, involving obscure principles of law far from everyday concerns. It is not. A government that sees no bar to dispossessing a corporation of its private property will certainly have no problem doing the same to any citizen it chooses. Once established, this power threatens everyone.
So give representative Polis a pat on the back. He's right on this one. Send representative Tipton your thanks. And while you're at it, tell U.S. Forest Service chief Tom Tidwell you don't like what his agency is up to. His address is: Office of the Chief, US Forest Service, 1400 Independence Ave, Washington D.C. 20250-0003. Or call him at (202) 205-8439.
You may have to leave a message.
Morgan Liddick lives in Summit County.
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