The House of Representatives last week approved Farm Bureau-supported legislation (H.R. 3189) that recognizes states' long-standing authority to confer water rights and retains the position that the federal government will respect those lawfully acquired rights. 

“The Water Rights Protection Act does not expand rights for individuals at the expense of any federal agency, nor does it in any way limit or constrain existing rights held by the U.S. Forest Service or the Bureau of Land Management,” noted Ryan Yates, American Farm Bureau Federation water rights specialist.

In protecting privately held water rights, prohibiting federal takings and upholding state water law, the bill would prohibit agencies within USDA and the Department of the Interior from imposing conditions through the permit process that would require the transfer of privately held water rights to the federal government in order to receive or renew the federal permit for the use of land.  It also would prohibit the Secretary of the Interior and the Secretary of Agriculture from requiring water users to acquire rights for the United States rather than for the water users themselves. 

The bill protects water users by prohibiting federal agencies from extorting water rights through the use of permits, leases and other land management arrangements, for which the federal government would otherwise have to pay just compensation under the Fifth Amendment of the Constitution.  

During debate on the bill, lawmakers rejected a Farm Bureau-opposed amendment to the legislation.  Introduced by Rep. Jared Polis (D-Colo.), the amendment was in direct contrast to the original intent of the legislation, which is to assure that existing state and federal laws are respected.  Instead, according to Farm Bureau, the Polis proposal would have treated owners of state water rights in an unequal, unprecedented fashion.

“It would carve out certain protections for one class of user while explicitly excluding others-even though the second group has an equally legitimate right to protection under the law,” American Farm Bureau Federation President Bob Stallman wrote in a letter to House lawmakers.  “There is no sound basis for supporting such an approach, and we urge all members to vote against this harmful amendment.” 

The Water Rights Protection Act was drafted in response to the USFS' attempt to implement a water clause for ski area permit holders that required ski areas to turn over privately-held water rights without compensation in order to receive a renewed USFS land permit.  USFS first tried to put the water clause in place in 2011, but in December 2012 a federal district court in Colorado struck it down.

Now, according to Sen. Mike Crapo (R-Idaho), a sponsor of the Senate companion bill, USFS is again trying to push this policy through a revised water clause.  Farmers and ranchers are worried that if the USFS is allowed to move forward, it will open the door for other federal agencies like the BLM to implement a similar policy for grazing permits and other multiple-use activities that require a federal land use permit and involves the use of water.

At an October 2013 hearing before the House Natural Resources Subcommittee on Water and Power, Utah Farm Bureau CEO Randy Parker testified on AFBF's behalf in favor of the bill, saying continued state control of water rights is critically important to farmers and ranchers.

“Farm Bureau supports H.R. 3189, the Water Rights Protection Act, because it is designed to dispel uncertainty and recognizes state sovereignty and historic water law,” said Parker. Further, he explained, H.R. 3189 recognizes states' sovereign water rights and protects livestock water rights from illegal federal claims and takings.

Farm Bureau Cheers U-S House Passage