USFS Final Notice: Ski Areas Water Clause

Copper Mountain snowmaking via
Copper Mountain snowmaking via

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.”

See the full manual HERE.

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.

More coverage of the USFS on Coyote Gulch here.

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