Colorado Supreme Court ruling bolsters stream protection

The San Miguel River near its headwaters in Telluride, Colorado. @bberwyn photo.

The San Miguel River near its headwaters in Telluride, Colorado. @bberwyn photo.

Challenge to instream flow rejected by state’s top judges

By Bob Berwyn

FRISCO — The Colorado Supreme Court this week rejected a legal challenge to a state program designed to protect rivers and streams.

The ruling makes it clear that the Colorado Water Conservation Board’s instream flow program furthers state policy of preserving the natural environment for the people of Colorado.

At issue is in the case is an instream flow right in the wild and remote San Miguel River, flowing out of the high San Juans near Telluride to its confluence with the Dolores River in Montrose County. The San Miguel is one of the last relatively free-flowing rivers in Colorado. As such, water experts say it still has some water that could be developed in the future. The instream flow right will help ensure that any future diversions won’t harm the river’s animals and plants. Continue reading

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

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

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