Ski industry butts heads with feds over water rights

By Troy Hooper
Real AspenDecember 25, 2011
Colorado lawmakers are worried a new U.S. Forest Service rule could hurt the ski industry.

But forest officials maintain their new interim directive for ski area permits simply aims to ensure that water for snowmaking and other resort activities remains available regardless of ownership changes.

"Our interest is in maintaining the ability to provide ski areas with water into the future and to protect the public's interest by making sure that communities, often small rural communities, that are linked to ski areas can rely on that into the future,” Jim Pena, acting deputy chief for the national forest system, said Wednesday.

Nonetheless, Sens. Mark Udall and Michael Bennet, both Democrats, along with John Barrasso, R-Wyo., and James Risch, R-Idaho, penned a Dec. 1 letter to the Forest Service asking it to suspend a new clause in the permitting process that essentially transfers water rights — potentially worth tens of millions of dollars — after 2004 from joint ownership between ski resorts and the federal government to just the latter.

“Without going into the merits of the water clause itself, it is apparent to us that a careful review of the practical implications of the clause to ski area operations and the changes that would occur under this new clause would prove beneficial to all parties involved,” the letter states.

The water wrangling harkens back to the National Forest Ski Area Permit Act of 1986, which originally conceded the water rights to the federal government. Then in 2004, the National Ski Areas Association lobbied the Bush administration to amend the law so resorts obtained a stake in water rights within ski area boundaries.
Sen. Mark Udall

But when the Forest Service tried to convey water rights under the 2004 joint-ownership policy, its lawyers discovered that state laws wouldn't allow it.

Thus, after working with the ski industry for nearly a year to clarify the intent of the 2004 joint-ownership clause, the Forest Service recently implemented a new interim directive that federal officials believe clarified ambiguities in its water policy. The directive is only valid for 18 months and, foresters said, it can be modified if there is evidence that demonstrates financial harm to the resorts.

However, U.S. Rep. Scott Tipton, R-Colo., sent Agriculture Secretary Tom Vilsack a letter in October that accused the Forest Service of “unlawfully taking” property from private entities, namely Powderhorn ski area, outside of Grand Junction.

Tipton followed that letter up with another to Forest Service Chief Tom Tidwell on Nov. 29 that called the new water directive “not even handed” and he claimed it could cause economic harm to Powderhorn and job losses in the ski industry.

Glenn Porzak, a National Ski Areas Association lawyer, also testified at a recent House Committee on Natural Resources hearing that the Forest Service action was the equivalent to a “takings.”
Rep. Scott Tipton

“Requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing a transfer of ownership of gondolas or chairlifts, snowcats, or snowmobiles, or even exercising eminent domain without any compensation,” Porzak said at the hearing. “This issue is larger than just ski areas – it would impact all entities that have water rights associated with any National Forest System lands including cities and counties, owners of recreation residences, marinas and summer resorts, and other businesses such as ranching, mining, or utilities.”

But as water becomes increasingly valuable, foresters say, tying water rights to the land will prevent companies from selling them off, moving on and leaving future ski operators high and dry.

“This is not about us trying to control the water,” Pena said. “We are just trying to ensure the viability of the ski industry over time. That is what this is about; it's not about taking away rights or assets.”

The Colorado Independent's Scot Kersgaard contributed to this story.

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