NSAA vs. USFS: Reps Polis and Tipton are pushing legislation in opposition to the USFS’s ‘taking’ of water rights

Copper Mountain snowmaking via ColoradoSki.com
Copper Mountain snowmaking via ColoradoSki.com

From The Watch (Gus Jarvis):

Tipton’s bill, which was introduced in Congress on Sept. 26 and has the support of representatives Jared Polis (D-Colo.), Rob Bishop (R-Utah) and Tom McClintock (R-Calif.) as co-sponsors, comes as the U.S. Forest Service works to update a clause on its ski area special permits that would tie water rights to the land ski areas are on.

According to Tipton’s office, the Water Rights Protection Act would protect communities, businesses, recreation opportunities, farmers and ranchers as well as other individuals that rely on privately held water rights for their livelihood from federal takings. It would do so by prohibiting federal agencies from confiscating water rights through the use of permits, leases, and other land management arrangements.

“Long-held state water law protects the many uses vital to Colorado and Western States – from recreation to irrigation, domestic use and environmental protection,” Tipton stated in a press release. “Unfortunately, all of this is being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals, and businesses responsible for thousands of jobs. To undermine this system is to create risk and uncertainty for all Western water users.

“Our bill will restore needed certainty by ensuring that privately held water rights will be upheld and protect users from federal takings,” he added.

The U.S. Forest Service currently has a policy to keep water rights with the land when it issues permits for ski areas and codified that clause on ski area special permits in 2011 and 2012. However, the U.S. District Court, in National Ski Areas Association, Inc. v. United States Forest Service, ruled that the federal agency must vacate its 2012 Forest Service Directive on ski area water rights. The judge overseeing the case declined to rule on the substance of the Forest Service directive, but determined the clauses were a legislative rather than an interpretive rule, which means that the agency is required to provide public notice and comment before issuing a final clause.

A proposed clause tying water rights to special use permits has not yet been issued by the U.S. Forest Service for comment.

For Polis, who represents Colorado’s Second Congressional District, the inability for ski areas to own water rights for their snowmaking capabilities adds uncertainty to the future of their business and that’s why he co-sponsored the bill.

“Ski areas are in the best position to decide what water rights they need for their future operations and make a significant investment in water rights,” Polis said on Monday. Vail Breckenridge, Keystone, Winter park, Loveland, Eldora, Arapahoe Basin, and Copper Mountain are all located in Polis’ Second Congressional District. “If these businesses cannot own the water they purchase, they are forced to operate in an uncertain climate that impedes their ability to raise capital, hinders long-term planning, and reduces investments in future projects. Concern about ski area water rights being sold or moved is misguided. Ski areas have already offered to provide successor owners with an option to purchase sufficient water if that area were to be sold.”

More water law coverage here.

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