Federal court ruling sends agency back to the drawing board
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.
The court also said the Forest Service should consider economic impacts as part of the process. It didn’t rule on the substance of the Forest Service directive, but noted that the water-rights ownership issue seems to be unclear and based on several different versions of Forest Service directives and clauses.
“Establishing an inclusive process on this important issue will help meet long-term goals,” said Rocky Mountain Regional Forester Daniel Jirón. “Maintaining the water with the land will ensure a vibrant ski industry, and resilient and healthy national forests and mountain communities into the future.”
Jirón testified today before the Colorado General Assembly House Agriculture, Livestock and Natural Resources Committee at the Colorado State Capitol in Denver.
“Together, we can find solutions that support a strong ski industry, keep the water with the land to sustain local communities, and ensure the long-term viability of this unsurpassed winter recreational experience,” said Jirón. “We think it is a good idea to engage the public and communities to map out next steps on this issue.”
“Now that the public will have a say in this policy, the agency is likely to receive strong comments from water rights owners across the West who are not about to turn over their water rights to the government for free,” Link said.