From The Aspen Times (Randy Wyrick):
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.
From The Denver Post (Jason Blevins):
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.”
More USFS coverage on Coyote Gulch here.