Proposed new water rule in the works for western ski areas
By Bob Berwyn
FRISCO — After being bullied by the ski industry in court and legislative arenas, the U.S. Forest Service has decided to shift its approach to administering valuable water rights associated with ski area operations in western states.
Instead of requiring resorts to transfer water rights, the Forest Service now proposes adding language to ski area permits that would ensure that enough water remains linked to ensure future operations. The water rights could not be sold separately from other resort assets like chairlifts and lodges.
That would address the main concern the Forest Service voiced when it first proposed changes to the administration of water rights a few years ago, but doesn’t address the bigger issue of resorts trying to establish total control over public resources.
Many media sources, including the Denver Post (which should know better) have completely misreported the water rights story, buying into ski industry propaganda that the Forest Service is trying to take away private property. In reality, the truth is that the ski resort industry is ruthlessly trying to assert control over natural resources that are critical to the sustainability of public lands.
The reason they want to exercise absolute power over rights is simple. Resort companies claim the water rights as assets on their balance sheets to secure financing and bolster the paper value of their holdings. Meanwhile, the public once again gets shafted by the ski industry, which continuously exploits forests, land water for shareholder profits.
Many streams exploited for snowmaking by the ski industry are nearly dried up by diversions in the fall and early winter, one of the most critical times for fish when flows are already at their lowest natural levels.
Once the resorts have out-muscled the Forest Service on this issue, it’s likely they will try to challenge instream flow and bypass requirements, the only things preventing total devastation in aquatic ecosystems below the ski area diversion points.
In the face of nearly overwhelming pressure from the ski industry and its political allies, the Forest Service actually did the best it could designing a new water rights clause that at least puts some kind of a damper on the resorts’ immoderate and insatiable exploitation of natural resources.
Forest Service Chief Tom Tidwell described it like this in a press release:
“This proposal balances the interests of the public, the ski areas and our natural resources by ensuring the necessary water is provided for winter recreation through our special-use permit process,” said U.S. Forest Service Chief Tom Tidwell. “This proposed change will provide assurances to the public that they will continue to enjoy winter recreation at ski areas on national forests.”
The proposed new clause, posted for public comment, does include some sidebars, including limiting water rights and water developments under ski area permits to those needed mainly to support ski area operations.
The new clause would also spell out conditions under which restrictions on water use are justified, especially when supported by a formal environmental study. In the Federal Register notice, the Forest Service explains how it proposes balancing state-administration of water rights with its mandate to steward natural resources:
“While water rights are granted by the State agencies or courts, the beneficial use and the diversion necessary to their establishment rests on the Forest Service’s discretionary decision to grant a ski area permit, and the Agency’s discretionary decision to allow use of NFS lands for water facilities. The Agency’s authority to deny a special use permit for a ski area or a water facility is sufficiently broad to allow the Agency to condition those authorizations by requiring the holder to sell its water rights to the subsequent holder.”
The Forest Service also said it will calculate the value of resort water rights into formula for determining permit fees.
Read the federal resgister notice and find out how to comment here.