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.

“If the Forest Service is allowed to extract these concessions from the ski industry, then potentially the federal government will seek to demand the same or similar constraints from municipal and other water users as most of the headwaters and water sources in the western states arise on federal lands,” the amicus brief states.

At issue is are changes the Forest Service made to the standard permits under which scores of ski resorts in the West run their businesses on publicly owned National Forest lands.

Late last year, the Forest Service changed the language of the permit as it relates to water rights that originate on national forest lands, requiring certain types of rights to be held in in the name of the United States.

The ski industry characterized the changes as a “takings’ of water rights worth millions of dollars. In the lawsuit, filed by the National Ski Areas Association, the industry alleged that the Forest Service violated environmental law by making the changes without a public process, and that the permit language violates Colorado water law.

Fleming said the Colorado River District joined the lawsuit in part to represent other constituents who might not have “the same sway” as the ski industry. He said other users — hypothetically a fishing lodge along a river — could also be affected by the Forest Service changes, although at this point, the changes appear to be specific to ski area permits.

Forest Service officials won’t comment on issues that are under litigation, but before the lawsuit was filed, top agency officials said the changes to the ski area permits are intended to make sure the water rights associated with ski areas remain with those areas, even if resorts change ownership.

According to the Forest Service, the previous language (created in 2002) could have allowed ski areas to sell off water rights, potentially leaving future ski area operators without the resources needed to maintain ski area operations. A former Forest Service official went on record as charging the ski industry with having acquired some of its existing water rights by fraud and deception.

The 2002 version of the water-rights related permit language was developed under top-level agreement between ski industry lobbyists and political appointees in the Bush administration, also with no public involvement and with no input from field-level Forest Service officials who administer the permits day-to-day.

This case may hinge on whether the Forest Service met its own requirements for noticing actions that implement the ski area permitting act, including provisions that require public involvement.

The fact the the previous language was also adopted without a public process likely wouldn’t make a difference to the current lawsuit, Fleming said.

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