Here’s a report from Cally Carswell writing for The High Country News. Click through and read the whole article. Here’s an excerpt:
An unusual coalition is fighting new fossil fuel infrastructure, and they’re starting to win.
On Earth Day 2014, a group of farmers, ranchers and Native Americans who live along the proposed Keystone XL pipeline route marched and rode horseback through Washington, D.C., wearing cowboy hats and feather headdresses. On the National Mall, they erected tipis and held ceremonies; a couple of days later, they gave a hand-painted tipi to the Smithsonian National Museum of the American Indian, in President Barack Obama’s honor. They gave the tipi the same names that the Lakota and Crow gave Obama in 2008 — “Man Who Helps the People” and “One Who Helps People Throughout the Land.” The message was implicit: The man who helps the people rejects the Keystone pipeline. This month, Obama did just that, handing the climate movement its clearest political victory yet.
The fight over Keystone XL gained national attention when prominent environmentalists like Bill McKibben positioned it as a litmus test of Obama’s commitment to fighting climate change. The pipeline would have connected the Canadian tar sands to Gulf Coast refineries, and most environmentalists argued that it shouldn’t be built because it would lock in the continued exploitation of one of the dirtiest fuels on earth.
But for those who marched on Washington last year, the battle was more personal. Farmers and ranchers in Nebraska feared the pipeline would leak, polluting their land and water and jeopardizing their livelihoods. Tribes worried about water contamination, disturbances to treaty lands, and the possibility of man camps popping up near their communities and increasing crime. Many landowners said TransCanada, the company behind Keystone, tried to bully them into signing easements. “They didn’t like that a private corporation could use eminent domain for their own gain,” says Jane Kleeb, who organized opposition in Nebraska. “And they really didn’t like that it was a foreign corporation.”
Together, the self-described cowboys and Indians and the climate crusaders proved a potent political force. Here was a project that could be framed as a high-stakes climate issue that got regular folks fired up, too — something the 2010 effort to pass federal carbon legislation achieved only insofar as it provoked rabid opposition from Tea Partiers. That cap-and-trade bill was designed by a handful of big green groups to be palatable to big business, but included little to inspire popular support, and environmentalists made scant effort to build a broad coalition to fight for it.
The latest potential federal water grab may have dried up died Wednesday morning when the Forest Service threw in the towel…
The Forest Service insisted that water rights established on national forest land should be tied to the land, and that the federal government should own those water rights. The Forest Service says the policy is designed to keep ski areas from selling water rights for other purposes.
“By the Forest Service Chief’s own admission, there has not been an instance of ski area water rights being sold off for other uses,” said Rep. Scott Tipton, R-Colo, who represents western Eagle County and the rest of Western Colorado in the U.S. House of Representatives.
Ski areas should use water for skiing, the Forest Service said in publishing its directive Wednesday.
“Because water for snowmaking and other uses is critical to the continuation of ski areas on NFS lands, the Forest Service has a strong interest in addressing the long-term availability of water to operate permitted ski areas, the Forest Service statement said…
DEFEATING THE FEDS
The National Ski Areas Association took the Forest Service to federal court, saying the Forest Service’s policy was an illegal taking, that no federal law gives the Forest Service the authority to take water rights, and the U.S. Supreme Court has ruled repeatedly that water is regulated by the states, said Geraldine Link, public policy director with the National Ski Areas Association.
Because it’s a federal issue, they landed in federal court where the NSAA got an injunction against the Forest Service. The federal judge told the Forest Service to go to back to the drawing board.
The Forest Service entered its Ski Area Water Clause into the federal record Wednesday morning. The directive was expected by the end of the year, and the Forest Service made it with a day and a half to go in 2015.
“We’re happy about this approach. It protects the ski areas in water rights. At the same time it protects the Forest Service’s commitment for winter recreation in the long term,” Link said.
Now, instead of giving water rights to the federal government, ski areas remain at the helm of their water rights for the future, Link said.
“We’re partners with the Forest Service, and together we deliver a recreation package that’s unparalleled in the world,” Link said. “It’s not only good for the Forest Service and ski areas, it’s good for the public.”
HOW ALL THIS STARTED
Oregon rancher Tim Lowry started it all when the BLM tried to curtail his family’s grazing rights. He spent 10 years and $800,000 in legal fees, finally winning a verdict from his state’s Supreme Court. Lowry testified that he had purchased those water rights, and the feds refused to compensate him for them.
Colorado Sen. Michael Bennet called the Forest Service’s directive “balanced.”
“Water is a precious resource on which Colorado’s ski areas rely for economic sustainability and growth. We are lucky to live in a state with world class skiing right in our back yard and we want to keep it that way,” Bennet said.
According to Colorado Ski Country USA, Colorado’s ski industry generates $4.8 billion each year for our economy and supports more than 46,000 year-round equivalent jobs.
The U.S. Forest Service will not require ski resorts to transfer water rights to the federal government as a condition of operating on public land. Instead, the agency will require ski areas to prove there is enough water to sustain skiing for the future.
The ski industry applauded the final decision Wednesday, as the agency released its final directive on the issue of water rights at ski areas on federal land.
In 2011, the Forest Service, which oversees 122 ski areas that count 23 million visits a year, proposed a clause in its permitting process that would require ski resorts to transfer water rights to the federal government.
The Forest Service had argued that the clause would assure the water would never be separated from the land. The agency feared that as the value of water rights climbs in the arid West, ski areas might see more economic benefit in selling water rights than in using the water for snowmaking and ski operations. The National Ski Areas Association sued the Forest Service in January 2012 over what it called an illegal taking of private property. In late 2012, a U.S. District Court judge overturned the new water rule and the Forest Service vetted it in a series of public meetings…
“The final directive focuses on sufficiency of water to operate ski area on NFS lands,” reads the directive. “This final directive will promote the long-term sustainability of ski areas on NFS lands by addressing the long-term availability of water to operate ski areas before permit issuance.”
The agency acknowledged how ski resorts in Colorado and New Mexico often spend millions of dollars on water projects. Many Western resorts consider water rights to be business assets.
In an important point raised by the ski resort industry since the water clause was proposed in 2011, the Forest Service acknowledges that water rights, especially in the West, are a matter of state law.
The decision protects ski areas’ investment in water and the Forest Service’s commitment of natural resources to winter recreation, said Geraldine Link, director of public policy at the National Ski Areas Association.
“In the bigger picture, this benefits the recreating public,” Link said. “The goal here is improving the long-term sustainability for ski areas on federal land. This will encourage further investment by ski areas in water resources and that provides stability and certainty for the local communities in which they operate.”
FromThe Grand Junction Daily Sentinel (Dennis Webb):
Mother Nature’s gift of a Christmas-season storm has resulted in an above-average early season Colorado snowpack, a head start that could prove important to ensuring there’s an adequate water supply waiting to melt in the high country come next spring.
Statewide snowpack was at 121 percent of median as of Wednesday, according to federal Natural Resources Conservation Service data.
That’s consistent with forecasters’ expectations for the start of a snow season dominated by a big El Niño weather system in the United States. Such weather systems derive from above-average water temperatures in the eastern Pacific Ocean near the equator.
“What it tends to do is produce a wet fall for us here in western Colorado, and that has definitely happened,” said Joe Ramey, a forecaster for the National Weather Service in Grand Junction.
And the importance of that early wet season comes from the fact that stronger El Niños also have historically resulted in generally drier mid-winters, at least in northern Colorado.
So while the storm in the days leading up to Christmas certainly helped the ski industry, “it also put important water into the mountains that we’ll be drinking during the warm season,” Ramey said.
He said such storms make or break a season, and this one “had a big impact on us, bringing snowpack up quite a bit, to well above normal across the state, especially in southwestern Colorado.”
The Upper Colorado River Basin was at 101 percent of median on Dec. 20, Ramey said. By Wednesday, it was at 114 percent.
Basins in southwest Colorado are at 134 percent, the highest statewide, in a welcome start to the year in a part of the state that has especially lagged behind in snowpack in recent years. Ramey noted that Arizona and New Mexico also have seen significant amounts of badly needed precipitation.
El Niños typically result in more moisture in the southwestern United States, with the benefit reaching up into southwestern Colorado but not necessarily extending farther north. The Yampa and White river basins in northwest Colorado currently are at 103 percent of median, the lowest of any basin in the state.
The Gunnison River Basin stands at 121 percent of median.
This week, the website opensnow.com has been showing a deeper snow base at Powderhorn Mountain Resort than in major resort areas such as Vail and Aspen. The Mesa Lakes snowpack measurement site on the Grand Mesa currently is at 123 percent of median.
“It’s snowing right now,” Jeff Kieper, owner of Thunder Mountain Lodge on the Grand Mesa, said Wednesday. “We just got another seven inches in the last two days.”
He said the lodge has gotten a whopping 71 inches of snow over eight days — more than he’d ever seen over such a span after living in the Vail area and spending four winters on snowmobile tours across the West.
Ramey said it’s important to remember that it’s early in the season, with much of the season’s snowpack typically developing in January through March. Also remaining to be seen is whether the El Niño pattern can deliver a wet spring to the state, as has occurred in some past El Niño seasons.
From email from the Western Rivers Action Network:
You’re Invited: January Lunchtime Webinar Series
Noon January 6
The final Colorado Water Plan, released November 2015, is an important step forward for Colorado on future water management. The plan reflects many Coloradan’s values and water priorities. The plan shows important progress by setting water conservation goals, proposing funding for healthy rivers, and making a large new trans-mountain diversion less likely. But, what does the plan say about funding, storage, permitting, or criteria for state water project support?
In “Prior Appropriation” states like Colorado the USFS is requiring a hydrological analysis of water rights that will be used to operate the ski area under its permit. The analysis must demonstrate adequacy for the needs under the permit. Also, before severing any part of a right dedicated to the permit another hydrological analysis must show that no harm to the needs under the permit. The rule also covers what can be done with a right if the permittee sells the ski area.
They’ve backed off on the transfer of title for rights to the United States.
Click here to read the the permit language in prior appropriation states.
Click here to read US Representative Tipton’s statement:
Today, Congressman Scott Tipton (R-CO) issued this statement in response to the U.S. Forest Service’s publication of the final directive for the Ski Area Water Clause in the federal record.
“The Forest Service’s conditional use of permit for ski areas has been one of the Administration’s most onerous attempts to hijack private water rights. While the latest version of the directive is improved from the original that sought to outright force the transfer of private water rights to the federal government, there still is room for improvement. The latest rendition of this ill-fated directive places unnecessary restrictions on private water rights holders, in an attempt to solve a problem that doesn’t exist. By the Forest Service Chief’s own admission, there has not been an instance of ski area water rights being sold off for other uses. Furthermore, there is still ongoing concern that while the Forest Service may not require the outright transfer of private water rights in this directive, it is still enforcing manuals that do.
“Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S. We continue to work on getting legislative protections in place to codify state water law and defend private water rights users from federal taking and interference as our Water Rights Protection Act seeks to do.”
Despite the Forest Service’s insistence that under the new ski area permit condition it will no longer require the transfer of water rights, Forest Service manual 2441.32 (Possessory Interests), which is currently being enforced, instructs the agency to continue to claim water rights of permittees. It is unclear if or how the Forest Service plans to reconcile the conflicting instructions.
Section 2541.32 of the 2007 Forest Service Water Uses and Development Manual directs:
“Claim possessory interest in water rights in the name of the United States for water uses on National Forest System lands as follows:
“Claim water rights for water used directly by the Forest Service and by the general public on the National Forest System.
“Claim water rights for water used by permittees, contractors, and other authorized users of the National Forest System, to carry out activities related to multiple use objectives. Make these claims if both water use and water development are on the
“National Forest System and one or more of the following situations exists:
a. National Forest management alternatives or efficiency will be limited if another party holds the water right.
b. Forest Service programs or activities will continue after the current permittee, contractors or other authorized user discontinues operations.”
Tipton has led the charge in Congress to protect private water rights users from federal takings and interference. He is the sponsor of the Water Rights Protection Act, H.R. 1830, which would provide water users with a line of defense from federal attempts, such as the Forest Service Groundwater Management Directive and ski area permit clause, to take private water rights without compensation or restrict user access to them. H.R. 1830 has passed the House in the 113th and 114th Congresses, and has wide support from local, state and national stakeholders including the National Ski Areas Association.