Guests gather around the base area at Durango Mountain Resort, which operates on national forest lands under a permit from the Forest Service. Like Colorado Ski Country USA and the National Ski Areas Association, DMR officials are currently reviewing the latest version of the Forest Service’s water rights clause, which they say is better than the 2011 version but still needs clarification to prevent unintended consequences./Photo by Steve Eginoire

‘It’s complicated’

Ski area groups sift thru Forest Service’s proposed water rights clause

by Tracy Chamberlin

For them, it’s a step in the right direction. Trade organizations, which represent more than 800 ski resorts and suppliers across the country, said they’re encouraged by a recent proposal from the U.S. Forest Service concerning water rights, ownership and ski area permits. But, it’s the little things that could muddle up the momentum.

“It’s certainly something we can buy into,” said Melanie Mills, president and CEO of Colorado Ski Country USA. “But there’s a lot of devil in the details.”

Specifically, the Forest Service proposed two revised clauses to their “Special Uses Handbook.” Both address water rights used to support ski area operations on national forest lands.

In the official notice in the Federal Register, published June 23, the agency explained that water used for snowmaking and other ski area purposes is critical to resort-based skiing on national forest. Therefore, the Forest Service is requiring ownership of those water rights to be in the name of the United States, either solely or jointly with the permit owner. The idea is to keep the water tied to the land.

“This policy was adopted due to concern that if water rights used to support ski area operations are severed from a ski area, the Forest Service will lose the ability to offer the area to the public for skiing,” the proposal reads.

Mills said Colorado Ski Country USA, a trade organization representing 21 ski areas, shares the agency’s concern, but the proposed changes now on the table could have unintended consequences.

“It’s written in a way that makes it very, very complicated,” Mills explained.

Every time a ski area changes its water use, it would have to get Forest Service approval. Ultimately, that could interfere with day-to-day operations.

For example, if a ski area needs to divert water from one part of the resort to another for snowmaking, it would first need to get approval from the Forest Service under the new rules.

Geraldine Link, public policy director for the National Ski Area Association, a national trade association with 325 resort members, had similar concerns.

“(The proposal) is a step in the right direction with respect to not requiring (from) us ownership of our water rights,” Link wrote in an email, “but there is lots of room for improvement.”

Link said one way to improve the new clause would be for the Forest Service to pledge that water signed over to the government would continue to be dedicated to ski area operations. The NSAA would also strike language that waives any constitutional rights and, they’d request more flexibility and discretion in the day-to-day management.

The clause in question is a direct result of a long and, again, complicated debate over water rights in Forest Service permits.

In the 1980s, language specific to water rights was first added to ski area permits, but it was not a consistent policy change. Water rights clauses were also addressed in the late 1990s and early 2000s, but it wasn’t until 2011 that the Forest Service required ski areas to sign over some water rights in order to operate on national forest lands. That’s when the issue ended up in federal court.

In March 2012, the NSAA filed suit against the Forest Service in U.S. District Court claiming the Forest Service did not follow proper procedure when making the change, such as allowing public comment. The suit also challenges specific language in the clause that requires ski areas to turn over water rights.

The NSAA claimed it was a “takings” of private property without compensation. The Forest Service said it wanted the water rights to stay attached to the land for the next potential buyer or occupier, and the clause was meant to ensure that.4

Later in 2012, the court ruled on the case with Judge William Martinez agreed with the NSAA on the first claim. He said the Forest Service failed to follow procedure when adding the clause, essentially voiding it. On the second part of the NSAA’s argument, the judge chose not to rule.

Martinez said the argument that the agency was taking private property without compensation did not need to be addressed because the clause was vacated under the first claim. There’s no telling which way the court might have gone on the substance of the clause.

Following the judge’s ruling, the Forest Service went back to the drawing board, holding a series of public meetings across the country. After receiving a variety of comments and recommendations, it published the directive and revised clause, which is now open for public comment.

Those at the national, state and local level plan on doing just that. The NSAA, CSCUSA and Durango Mountain Resort have all said they are reviewing the clause and plan to send comments before the Aug. 22 deadline.

Like CSCUSA and the NSAA, Durango Mountain Resort CEO Gary Derck said this version is better than the prior clause, in which the Forest Service acted like it owned the water, but clarification is still needed.

DMR officials are reviewing the latest version and waiting to see what the national and state trade organizations say before deciding if they’ll comment separately. After all, it’s not just about them.

“This whole issue is bigger than just Purgatory,” Derck said. “… We’re just this little resort in Southwest Colorado.”

To view the full publication, visit www.regulations.gov, search for Ski Area Water Rights on National Forest System Lands, and choose the first option.