H.R. 3189: Water Rights Protection Act

H.R. 3189

Water Rights Protection Act

Date
March 13, 2014 (113th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Thursday, March 13, 2014, the House will begin consideration of H.R. 3189, the Water Rights Protection Act, under a rule.  H.R. 3189 was introduced on September 26, 2013 by Rep. Scott Tipton (R-CO) and was referred to the House Natural Resources and Agriculture Committees.  The bill was marked up by the Natural Resources Committee on November 14, 2013 and was ordered reported, as amended, by a vote of 19-14.[1]

Bill Summary

H.R. 3189 prohibits the Secretary of the Interior and the Secretary of Agriculture from requiring an entity to turn over its privately-held water rights[1] to the federal government in order to qualify for a federal permit, lease, or other land use agreement.  The bill also prohibits the aforementioned Secretaries from requiring a water user to seek a water right in the federal government’s name as a condition of qualifying for a federal permit, lease, or other land use agreement.



[1] A “water right” is any surface, groundwater, or storage use filed, permitted, certificated, confirmed, decreed, adjudicated, or otherwise recognized by a judicial proceeding or by the State in which the user acquires possession of the water or puts it to beneficial use. 

Background

States traditionally regulate their own water rights and tend to use one of three approaches depending on their respective resources and historic development.[1]  “Generally speaking, states east of the Mississippi River follow a riparian doctrine of water rights, while western states follow the [prior] appropriation doctrine.”[2]  Some states use a third hybrid approach that combines the two. 

The riparian approach allows an individual who owns land adjacent to a waterway to make reasonable use of the water.[3]  Because water generally has been available in eastern states, there has not been a need for stricter limitations on its use.  In contrast, under the prior appropriation doctrine—used in most western states—“users apply for a permit from a state administrative agency which manages the acquisition and transfers of such rights.  The prior appropriation system limits users to the quantified amount of water the user secured under the permit process with a priority based on the date the water right was conferred by the state.  Because of this priority system, appropriative rights are often referred to by the phrase ‘first in time, first in right.’”[4]  The prior appropriation doctrine “allow[s] for the ownership of water rights without the need to own the land in direct proximity to a waterway.  The settlement of the West and the development of water rights have allowed water users to invest in farming and ranching operations, domestic uses, recreational opportunities, energy development, conservation, and industrial uses.  Appropriated waters are also a major component of most metropolitan water supplies in the West.”[5]

For more than a century, states have developed water use laws tailored to their unique needs—without federal interference.[6]  “The federal government has acquiesced to the western territories, later states, to control, manage, and allocate water.  That important principle of federalism has been confirmed by the U.S. Supreme Court as recently as June of 2013 . . . .”[7]  Although entities must obtain a special use permit from a federal land management agency to use federal land for recreational, agricultural, and other purposes, such permits do not convey water rights to the permit holders.[8]  “Water rights arising within or outside of the permit area must be acquired in accordance with state law and paid for, developed, and maintained at the expense of the water user.”[9] 

Recent federal actions, however, have undermined this longstanding deference to states on water use policies.  “[F]ederal land management agencies, including the U.S. Forest Service have demanded the transfer of water rights recognized under state law directly to the United States as a condition of permit issuance or renewal.”[10]  “For example, many of the Nation’s ski areas are operated on federal lands.  In order to operate there, the ski area pays a fee and gets a permit from the federal government.  The water used to make snow is granted to the ski area by the state, for which the ski area pays market value.  In an effort to own and control water that does not belong to them, federal agencies are now seeking to insert requirements in these permits to hand over water rights to the federal government.  Ski areas then face a choice of either forfeiting its valuable property right that’s necessary to operate, or lose their permit and shut down.  Others face the same threat, including [ranching operations] who have operated for a century.”[11]

This trend presents both functional and constitutional concerns.  In testimony before the House Natural Resources Committee, witnesses explained that these actions by the federal government could violate state water laws, threaten Western economies, and result in the federal government diverting water currently held and used by private entities.[12]  Additionally, the Western Governors Association sent a letter to the Natural Resources Committee noting the dangers of this departure from longstanding federal deference to state water use policies.[13]  H.R. 3189 addresses this issue by prohibiting the federal government from requiring individuals and businesses to turn over their privately owned water rights in order to qualify for a permit or lease.



[1] Riparian vs. Appropriated Water Rights, Legal Sidebar, Congressional Research Service (July 6, 2012).

[2] Id.

[3] Id.

[4] Id.

[5] Committee Report 113-372 at 2.

[6] Id.

[7] Id.

[8] Id. at 3.

[9] Id.

[10] Id.

[11] The Water Rights Protection Act (H.R. 3189), House Natural Resources Committee.

[12] Committee Report 113-372 at 4.

[13] Id.

Cost

According to CBO estimates, implementing H.R. 3189 would not affect direct spending or revenues.

Amendments

1)         Rep. Tipton (R-CO) Manager’s Amendment #12 – Amendment makes several clarifying technical changes to the bill, and clarifies that the Act will have no effect on Bureau of Reclamation contracts, implementation of the Endangered Species Act, certain existing federal reserved water rights, and certain authorities under the Federal Power Act.

2)         Rep. Mullin (R-OK) Amendment #4 – Amendment ensures that the federal government cannot make Native American tribes apply for or acquire water rights under state law for the federal government rather than acquiring the rights for themselves; prohibits the federal government from using permits, approvals, and other land management agreements to take the water rights of Native American tribes without just compensation; and ensures that nothing in the Act limits or expands the reserved water rights or treaty rights of federally recognized Native American tribes.

3)         Rep. Polis (D-CO) Amendment #15 – Amendment mandates that the U.S. Forest Service may not condition ski area permits on the transfer of title of any water right or require any ski area permittee to acquire a water right in the name of the United States.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.