The German philosopher with the impressively bushy mustache, Friedrich Nietzsche (below), said that all things are subject to interpretation. Had he lived in the Western U.S., he might have tacked on a clause: “Especially when it comes to water policy.”
A House bill to be voted on this week hammers his point home, with policy experts, conservation groups, the U.S. Forest Service and the ski industry each reaching different conclusions about the potential consequences of HR 3189, the “Water Rights Protection Act.” The bill seeks to prevent the federal government from imposing conditions on water rights owned by public land leaseholders. Opponents contend it would also weaken federal agencies’ ability to conserve stream flows for wildlife and recreation.
American Rivers, the Sierra Club, the Natural Resources Defense Council and some 60 other conservation groups say the bill's broad language opens the door for ranchers, ski resorts, municipalities and others who own water rights on public land to bypass federal environmental laws and deplete rivers. By shifting management from federal to state or local control, the bill could undermine stream flow requirements mandated by the Endangered Species Act, or Fish and Wildlife measures that help fish pass over dams, the groups say.
“This bill is written way too broadly,” says Matt Niemerski, Western water policy director for Washington, D.C.-based American Rivers. “It would undermine efforts to improve the health of rivers and public lands, and force federal agencies to put private water use ahead of public uses, like wildlife, fishing or boating.”
Introduced last year by Representatives Scott Tipton, R-Colo., and Jared Polis, D-Colo., the legislation sprung from a seemingly simple disagreement between the U.S. Forest Service and a handful of Colorado ski resorts. It’s since bloomed into a complex web of accusations and interpretations that’s entangled river advocates, the ski industry, the Interior Department and Big Ag.
Even figuring out when the mess began is controversial. Reed Benson, water law professor at the University of New Mexico School of Law points to the late ‘90s, when the Forest Service began claiming authority over "bypass flows" on public lands – meaning that to get their permits renewed, entities that operate on public lands had to keep a modicum of water in streams and rivers to ensure that enough water was retained for other uses, including fish and wildlife conservation. Water users in Colorado and beyond fought for local control, but ultimately two court cases ruled in favor of the feds, Benson says.
Geraldine Link, director of public policy for the National Ski Areas Association, says the issue has nothing to do with bypass flows and began even earlier, when the Forest Service changed its policies to take ownership over private water rights. Either way, the fight was renewed in 2011, when the Forest Service demanded that the 122 ski resorts that operate in national forests turn their water rights over to federal management. The ski industry sued and won. In response, the Forest Service began working on new regulations that would protect stream flows without taking rights away from ski resorts. But the process has been slow, and the ski industry doesn’t believe that the federal government will ultimately act in their best interest.
“The ski areas feel like we need Congressional protection because there have been four policy changes to (our) water rights in the last 10 years,” Link says. “Quite frankly, it’s not good for business.”
To Link, the bill simply protects ski resorts’ water rights – used for everything from snow-making to cleaning bathrooms – from federal “encroachment” and uncertainty. Ski resorts champion themselves as stewards of sustainability; surely, they could be trusted to not suck a river dry. But to get the bill moving through Congress, its scope has considerably broadened, and for many, that's where the issue lies.
Even if ski resorts were good stewards, Niemerski says, the bill gives them leave to later sell their water rights to another entity that could abuse it with impunity – the ol' "buy and dry."
The Ski Areas Association “strongly disagrees” with environmentalists’ interpretation and says the bill includes language to prevent the degradation of rivers. Nonetheless, the group wrote a letter last month asking Reps. Tipton and Polis to narrow the bill’s scope to help mitigate the conflict. It may be too late, though. HR 3189 is set to go to vote as early as Wednesday, and is now supported by the National Cattlemen’s Beef Association and the American Farm Bureau.
"It's an extreme measure," says Niemerski. "You could use a scalpel to try to solve this issue, but they've gone and tried to legislate with a sledgehammer."
Luckily for river advocates, HR 3189 passed the Republican-controlled House Natural Resources Committee along party lines and is likely to fizzle in the Democratic-controlled Senate. The Forest Service and the Interior Department claim the bill is unnecessary and could have “unintended consequences.” Those agencies are fast-tracking their own regulations (at Colorado Sen. Mark Udall’s behest) to give ski resorts the control they want, without broad-brush regulations that could curtail federal stream flow requirements.
For water scholars like Benson, though, this isn't just a fight between ski resorts and river advocates. It's merely the latest chapter in a political history that precedes the Sagebrush Rebellion. The effort to limit federal control over water resources dates back to the 1950s, yet continues to be "a winning political theme" in much of the rural West.
"This goes way beyond ski areas," Benson says. "It's a broad swipe at federal authority."
Update: Rep. Jared Polis, one of HR 3189's original sponsors, announced on Tuesday that he was withdrawing his support of the bill as currently written. However, Polis will continue to support the measure if a suggested amendment is adopted that will refocus on the narrow conflict between the Forest Service and the ski industry. Polis "strongly supports" the bill's original intent and believes that the Forest Service was "overstepping boundaries" when it tried to take over ski resorts' water rights, but the bill has snowballed into an effort that could hurt river health and recreation nationwide, his spokesman Scott Overland says.
Krista Langlois is an editorial fellow at High Country News. She tweets @KristaLanglois2.