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Op-ed: Ski industry bullies USFS on water rights

Proposed new water rule in the works for western ski areas

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Oh, oh, the water … bberwyn photo.

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. Continue reading

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How does agriculture fit into Colorado River water talks?

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Colorado River headwaters, Summit County, Colorado.

Ag transfers likely to be a big part of closing the water gap

By Bob Berwyn

FRISCO — When it comes to water, cities have always been easy targets for environmental groups looking to make a point about conservation and growth. But in reality, agricultural stakeholders bring far more chips to the table.

By some estimates, agriculture uses about 75 percent of the Colorado River’s allocated water, while municipal uses account for about 15 percent. Just California’s Imperial Valley, where most of the country’s winter produce is grown, uses about 3 million acre feet of water annually.

Any solution to the projected 3.2 million acre-foot water gap in the Colorado River Basin will require buy-in from  farmers and ranchers in the region. Continue reading

Ski industry offers some guarantees on water rights issue

Forest Service looking to ensure long-term viability of ski areas

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With water a premium in the West, the Forest Service and ski resorts are discussing how they will administer water that originates on national forest lands. Bob Berwyn photo.

By Bob Berwyn

SUMMIT COUNTY — In comments submitted to the U.S. Forest Service, the National Ski Areas Association is suggesting a fresh start in developing a policy to determine ownership and future use of water that originates on national forest lands.

“Our new approach assumes that all previous water clauses are no longer in effect, null and void, and unenforceable. It would result in a consistent water policy across the board going forward,” said NSAA policy director Geraldine Link.

The ski industry comments came as the Forest Service held a series of hearings around the West in the early stages of developing a new water rights clause that eventually will become part of agency permits for businesses operating on public lands.

The ski industry and the Forest Service have been at odds over water rights for years, and most recently faced each other in federal court over a 2011 version of the permit language. The court said that the Forest Service failed to follow required procedures in rewriting the clause, and also noted that the agency has adopted a series of clauses that aren’t being applied consistently. Continue reading

Forest Service holds public meetings on ski area water rights

After legal showdown, agency, resorts start down collaborative path to address critical water questions

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Who owns the water originating on national forest lands? Bob Berwyn photo.

By Bob Berwyn

SUMMIT COUNTY — After losing a court showdown, the U.S. Forest Service will restart a process to try and clarify the future of water rights associated with permitted uses on national forest lands, especially with regard to ski areas in the West. Click here to see related Summit Voice stories.

In December, a federal court ruled that the Forest Service failed to meet legal requirements when it updated the rule administratively. Now, the agency will hold a series of public meetings, starting April 16 in Denver, to take input from the public and key stakeholders. Additional meetings are set for Salt Lake City on April 17, and Lake Tahoe, Calif., on April 18. Continue reading

Forest Service to address the tangled status of ski area water rights with a public process

Federal court ruling sends agency back to the drawing board

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The U.S. Forest Service will hold a public process to develop a new agency guideline for adminstering water rights at ski areas operating on public lands. Bob Berwyn photo.

By Bob Berwyn

SUMMIT COUNTY — After being rebuffed in federal court, the U.S. Forest Service will start anew at developing new water-rights language for ski area permits. The agency plans to start taking public input this spring on the new directive, which would clarify ownership of water rights on national forest lands.

The Forest Service most recently issued a new water rights directive in Dec. 2012, aiming to establish that certain water rights have to remain linked with the ski areas where the water is used to ensure the long-term sustainability of the resorts.

The ski industry interpreted at least parts of the new directive as a direct grab of water rights that are properly administered under state water law. A year-long lawsuit ended in Dec. 2012 with a court telling the Forest Service it must use a public process to develop a new directive.

“The agency’s announcement and the agency’s recent policy that was struck down in federal court both assume that water should run with the land. This approach reflects a fundamental misunderstanding of water law in the West,” said Geraldine Link,  public policy director for the National Ski Areas Association.

Continue reading

Ski industry wins water rights lawsuit against Forest Service

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A judge rules this week that the Forest Service can’t force ski areas to transfer water rights to the federal government. Bob Berwyn photo.

Judge orders Forest Service to go back to the drawing board on developing permit language to govern water originating on national forest lands

By Bob Berwyn

FRISCO — A long-running dispute over water rights at ski areas operating on public land was resolved — at least temporarily — this week, as Federal District Court Judge William Martinez ruled that the U.S. Forest Service violated its own regulations and other federal laws when it adopted a new water rights clause to be added to ski area permits.

Martinez stayed away from the takings issue raised by the ski industry, but slammed the Forest Service for issuing a new rule without providing a chance for formal input and public comment. Read the ruling here.

He vacated the water rights clause, enjoined the Forest Service from enforcing it and remanded the matter back to the agency for further action to be guided by the court ruling. Specifically, Martinez said the Forest Service failed to develop the new water rights clause under formal public processes required under federal regulations.

He also ruled that the Forest Service violated federal regulations because the agency did not evaluate the economic costs of forcing some smaller ski areas to to assign their water rights to the Forest Service without compensation.

“Given how critical and valuable water is to ski area operations, we are pleased that the court has stopped this unreasonable and unlawful policy in its tracks,” said Michael Berry, president of the National Ski Areas Association. “We look forward to working in cooperation with the Forest Service to develop a water policy in the future that respects property rights and state water law.” Continue reading

Colorado Legislature may take sides in Forest Service-ski industry water rights showdown

Interim committee of Colorado lawmakers to grapple with several water-related bills this week.

Interim review committee to discuss several water measures this week

By Bob Berwyn

SUMMIT COUNTY — Colorado lawmakers may weigh in on a dispute between the ski industry and the U.S. Forest Service with a resolution opposing the federal agency’s efforts to protect publicly owned water rights originating on national forest lands.

The proposed resolution, under review by an interim legislative committee, would oppose a new Forest Service water rights clause in ski area special use permits that would bar resorts from transferring certain water rights to third  parties.

The Forest Service clause also requires ski areas to transfer certain water rights to the United States or to subsequent special permit use holders if a permit is terminated.

The measure is one of several water bills on the agenda during a session of the interim Water Resources Review Committee. The bills will be discussed by lawmakers Thursday (Sept. 27) morning, with public testimony in the afternoon. The session will be streamed on the web. Go to this Colorado Legislature website and click on the House Committee 0112 link. Continue reading

Colorado: West Slope water users take sides with National Ski Areas Associaton in legal battle over water rights

Amicus brief reinforces NSAA  complaint against federal agency

A lawsuit over water rights could affect many ski areas in Colorado.

By Bob Berwyn

SUMMIT COUNTY —The ski industry has some new allies in its legal challenge to a new Forest Service ski area permit requirement affecting water rights.

The Colorado River Water Conservation District, the Eagle River Water and Sanitation District, the Ute Water Conservancy District, the Eagle Park Reservoir Company and the Clinton Ditch and Reservoir Company have joined in the lawsuit with an amicus brief that was accepted by the U.S. District Court of Colorado a few days ago, according the Colorado River District attorney Peter Fleming.

The Amicus Brief doesn’t raise new issues, but reinforces the legal points already made by the National Ski Areas Association in its original and amended complaints and serves to make the court aware that the disposition of the case will stakeholders other than the ski industry, Fleming said. Continue reading

Ski industry sharpens legal claims over water rights

The ski industry and U.S. Forest Service are locked in a battle over water rights.

New claim in lawsuit alleges the Forest Service didn’t consider impacts to small businesses from new permit conditions

By Bob Berwyn

VAIL — The ski industry last week honed its attack on a new Forest Service permit condition that affects water rights, claiming the agency failed to consider the economic impact on small businesses, as required under the Small Business Regulatory Enforcement Act.

At issue is language in the permits under which most Colorado ski areas operate on public land. The two sides have been engaged in a long-running tussle over who owns the water originating on national forest lands.

By amending its original lawsuit against the Forest Service in Federal District Court, the ski industry also gives the Forest Service an extra month to respond to the legal challenge. The industry also claims the new permit condition is an unlawful “takings ,”and that it conflicts with state water law. Continue reading

Former Forest Service official says some ski resorts may have acquired their water rights by ‘fraud and deception’

A former U.S. Forest Service official weighs in on the water rights tussle between the agency and the ski industry.

Former head of Forest Service ski area program says current water tussle between the agency and the ski industry is an outgrowth of regulatory abuses during the Bush administration

By Bob Berwyn

SUMMIT COUNTY — A recent flareup in the water war between the federal government and the ski industry took yet another turn last week, as a former Forest Service official weighed in and charged the industry with taking advantage of a lax regulatory environment under the Bush administration to try and acquire water rights that belong to the people of the United States with “fraud and deception.”

The water rights issue surfaced publicly in November, when the National Ski Areas Association, represented by attorney Glenn Porzak, complained in Congress that the Forest Service was trying to “take” privately held water rights by revising a ski area permit condition that was adopted in 2004. Since then, the ski industry has threatened to sue the Forest Service over the new water rights clause. Continue reading

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