Latest USFS permit does not compel ski areas to convey water rights to the US government

Trail map for Powderhorn Ski Area via liftopia
Trail map for Powderhorn Ski Area via liftopia

From The Grand Junction Daily Sentinel (Gary Harmon):

A U.S. Forest Service rule aimed at assuring that ski areas don’t sell off their water rights was welcomed by Colorado’s two senators and panned by the office for the representative whose district includes several resorts.

The Forest Service on Friday is to unveil a rule to replace one that was rejected by a federal judge who ordered the agency to start the proposal anew.

Under the proposed new rule, ski areas operating on Forest Service land would have to assure the Forest Service that the ski area would have sufficient water rights to provide for snowmaking and other essential operations even if the ski resort is sold.

The rule would not require ski areas to transfer water rights to the Forest Service. That provision in the previous rule caused the National Ski Areas Association to take the Forest Service to court, where it won a ruling that sent the agency back to the drawing board.

“This proposal balances the interests of the public, the ski areas and our natural resources by ensuring the necessary water is provided for winter recreation through our special-use permit process,” U.S. Forest Service Chief Tom Tidwell said in a statement about the rule, which is to be published in the Federal Register on Friday. “This proposed change will provide assurances to the public that they will continue to enjoy winter recreation at ski areas on national forests.”

The Friday notice will start a 60-day public-comment period on the proposed rule.

U.S. Sens. Michael Bennet and Mark Udall, both Colorado Democrats, said in separate state
ments that they welcomed the proposed new rule and looked forward to reviewing it.

Udall called it “another step toward protecting our national forests and recreational opportunities on public lands.” while Bennet called for a consensus bill “based on today’s proposal that provides certainty and clarity on this issue for Colorado’s water community.”

The House already has passed a bill by U.S. Rep. Scott Tipton, R-Colo., aimed at preventing the Forest Service and other federal agencies from demanding water rights in exchange for permits on federal lands.

Tipton’s office had yet to see the proposed new rule, a spokesman said, noting that if it affects only the Forest Service, it falls short of protecting all users, including ranchers and municipalities that use federal lands and watersheds.

The previous rule was first used in 2012 when the new owners of Powderhorn Ski Resort, now Powderhorn Mountain Resort, were required to turn over water rights in order to obtain a permit to operate on the Grand Mesa National Forest, prompting the suit by the National Ski Areas Association.

From the Examiner (Charles Pekow):

The 1982 Forest Manuel requires that USFS obtain water rights for making snow and operating facilities. Concessionaires can request rights on behalf of USFS. In 2004, the policy was amended to allow concessionaires and USFS to obtain the rights jointly. But the 2004 policy has let to considerable confusion, as water was obtained from different sources from in and out of federal property and transported in different ways, USFS found. So it amended the clause in 2011 to address different types of water rights.

The 2011 directive distinguished between rights for water diverted from and used on local forest service land in the ski permit area, rights for water coming from USFS property outside the permit area, and water from outside sources. USFS amended the clause further in 2012. But the National Ski Areas Association (NSAA) sued in federal court. NSAA charged that USFS did not allow for public comment before changing the procedures, in violation of several federal statutes. U.S. District Court in Colorado agreed and vacated the 2011 and 2012 changes.

So USFS is proposing new procedures and taking public comments. It conducted four open houses and sought comments last year too. It is reproposing the ideas based on what it learned.

More water law coverage here.

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