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Congressman Scott Tipton

Representing the 3rd District of Colorado

Tipton Stands Up For Private Property Rights

October 31, 2011
Press Release

October 31, 2011

Tipton Stands Up For Private Property Rights

Washington, DC — Rep. Scott Tipton is taking a stand for private property rights by urging the U.S. Department of Agriculture to reconsider implementing a permit condition to require the transfer of privately held water rights to the federal government in order to utilize National Forest System lands. Tipton expressed concern over the impact the requirement would have on water rights held by ski areas and ranchers.

In the letter to Agriculture Secretary Tom Vilsack, Tipton writes, “Water rights established under state law are property rights for purposes of the Fifth Amendment to the United States Constitution. Congress has not delegated to the Forest Service the authority to require permittees to transfer ownership of water rights to the United States as a permit condition…

“Likewise, the Property Clause does not give the agency the authority to use permitting conditions to obtain federal ownership of water rights that have been developed or acquired by private parties. In the absence of such authority, the agency cannot demand such a transfer of ownership without just compensation. Rather than unlawfully taking property from private entities, the agency must acquire and exercise water rights in priority in accordance with state laws.

“It has been a long-standing policy of the Department and the Forest Service to ensure that private property rights, including water rights, will be recognized and protected in the course of special use permitting decisions for water supply facilities. Secretary Madigan and Secretary Glickman provided assurances to Congress in the 1990s to recognize and respect the role of the States in water allocation and administration, as did Under-Secretary Rey in 2005. I have serious concerns that the agency intends to depart from this longstanding policy by virtue of its recent permitting decisions and related policies. Because of the significant percentage of water that originates on National Forest System lands in the West, such a change in policy would pose a threat to the current system of state allocation and administration of water rights…

“…Permittees have voiced valid concerns that if their water rights are required to be owned by the United States, the ski areas and the ranchers will have no guarantee that the U.S. will continue to use the water for the purposes for which it was developed. For example, as owners, the agency could decide to change the use of the water and apply it for the protection of species or aesthetic purposes or any other number of purposes other than for snowmaking or stock watering purposes. ..

“I request that the agency refrain from interfering in such private property rights in the future, and that the agency review its current permit clauses and policies in light of the concerns and interests identified here.”

Read the full letter here.