A battle over water rights

Snowmaking at Angel Fire, N.M., earlier this year. AP Images

Ski resorts are feuding with their Forest Service landlord over a water rights clause in updated ski area permitting regulations that keeps water rights tied to the land, not the resort operator.

After intense lobbying -- which included stern letters from a host of congressman and senators -- last week the Forest Service rebuffed the calls for a moratorium and issued the new rule as an 18-month moratorium. The resort industry, led by the 121-resort National Ski Areas Association, answered with a promise to sue the agency, which hosts nearly 90 percent of all U.S. ski areas.

"This has to do with water rights in general and how water rights are treated," said Michael Berry, president of the NSAA. "We believe they have crossed the rubicon and this has the potential to be very, very impactful. We have no guarantee that they will continue to use the water for purposes of ski area business."

Since 2004, the Forest Service has co-owned water rights secured by ski areas operating on federal land. Before that, under the 1986 National Forest Ski Area Permit Act, ski area water rights on public land were owned by the federal government. So really, said Jim Pena, acting chief of the Forest Service, "this isn't new."

"This permit clause is intended to clarify some of the gray areas," Pena said. "This was a result of lots of discussion with the ski industry over the last year. This requires that water rights on National Forest System land remain with the federal government so we don't severe that resource from the land."

Water rights in Western states are regulated by the states and often acquired on the open market, with resort operators paying top dollar to secure water for snowmaking and base area development. Vail Resorts, the largest resort operator in North America, holds more than $18.2 million in water rights. Colorado water attorney Glenn Porzak, who often works for Vail Resorts, testified to a House subcommittee in November that the change to water ownership rules amounted to federal seizure of private property.

"It is unprecedented to require the ski industry to surrender ownership of valuable assets to the U.S. Government without any compensation," Porzak told the told the Subcommittee on National Parks, Forest and Public Lands. "Requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing the transfer of ownership of gondolas or chairlifts, snowcats, or snowmobiles or even exercising eminent domain without any compensation. All water right owners, not just ski areas, should be concerned about this precedent."

Porzak said last week that the ski industry would sue the Forest Service to block the new water rights provision.

Colorado Democratic Sens. Mark Udall and Michael Bennett joined Western Republican Sens. John Barrasso and James Risch in December urging the Forest Service to delay implementation of the new clause.

"Without going into the merits of the water clause itself, it is apparent to us that a careful review of the practical implication of the clause to ski area operations and the changes that would occur under this new clause would prove beneficial to all parties involved," reads the letter the four senators sent to the agency.

Pena said his agency has already issued three new operator permits -- in Colorado, Washington and California -- with the new clause and those were accepted without any problems. "If a permittee develops water for the activity on (state) public land, they are required to develop that water in the name of the state. It's the same with National Parks and the Fish and Wildlife Service as well," Pena said. "It all goes back to wanting to make sure those public resources are kept together and we want to provide that stability for the long term."

The agency issued the provision as an interim directive and promises to work with the ski industry before the provision is finalized in 18 months. While rebuffing calls for a moratorium, the agency will weigh individual permits that may be impacted by the new water rights rule.