U.S. Forest Service faces watered-down directive from General Assembly on water rights of ski areas

The Colorado Statesman

In its waning days, the General Assembly is preparing to tell the U.S. Forest Service “hands off” on the water rights held by Colorado’s 22 ski areas. However, the measures introduced to do that have been substantially watered down in recent weeks.

More than 100 ski areas in 13 states lease national forest lands under special use permits granted by the Forest Service. Ski areas then must obtain water rights for those lands under applicable state laws. Throughout the last 30 years, the Forest Service has issued clauses in those leases, requiring the ski areas to obtain the water rights in the name of the United States. However, the Forest Service hasn’t strictly followed that policy, and many ski areas obtained the water rights without putting the federal government in as an owner. In 2004, the Forest Service issued a new clause that put the water rights jointly under the federal government and the ski area. Ski areas that obtained leases prior to 2004 were free to keep the water rights they obtained; that pertains to most of Colorado’s ski areas.

In November 2011, and in the following March, the Forest Service issued a directive regarding the leases. That directive required, as a condition of renewing the permit, that all ski areas must transfer ownership of water rights to the federal government. The ski areas claimed that such a directive violates Colorado water law and the Colorado constitution.

That led to a US District Court lawsuit against the Forest Service, filed by the Lakewood-based National Ski Areas Association. Last December, Judge William Martinez ruled in favor of the NSAA, but not on the substantive water law issue. Instead, Martinez said the Forest Service had failed to follow federal government policies on the formation of administrative procedures. The Court ordered the Forest Service to withdrawn the directive. In January, they pledged to start over.

Last week, the Forest Service began the public process of reviewing the directive, holding public meetings in several western locations, including Lakewood.

The ski areas also took their concerns to the legislature’s Interim Water Resources Review Committee last September. The committee followed up with a letter on September 27 to U.S. Secretary of Agriculture Tom Vilsack, asking that the directive be withdrawn and that the Forest Service work with the ski areas on a water policy that would meet the needs of all the interested parties and the affected states.

The committee noted that the directive violates Colorado’s laws on administration and allocation of water rights. But the committee also noted a similar directive, issued in 2011, that they said would affect more than just the ski areas. Because of how water originates on forest lands, the committee said, the 2011 directive could also impact agricultural interests, mining, timber and tourism.

The committee took their concerns to the General Assembly in January with two measures: House Joint Resolution 13-1004 and House Bill 10-1013. In January, the House Agriculture, Livestock and Natural Resources Committee heard both measures.

During that January 28 hearing, Dan Jiron, regional forester for the US Forest Service, testified that the Forest Service “fully supports” Colorado’s ski industry and that the point of the directive was to make sure that the water “stays with the land for snowmaking and other purposes necessary for ski area operations.” Jiron said the Forest Service’s concern is that if a ski area went out of business, the water rights would be viewed as a valuable asset of the ski resort and could be sold separately. But he also said that had never happened in Colorado.

HJR 1004 moved through the House, winning final approval on February 8, and then went to the Senate, where it has sat ever since. The resolution was amended to acknowledge the December 2012 court decision and to ask the Forest Service to not appeal the court decision.

The much more strongly-worded bill, HB 1013, has not had the same success, by design, according to sponsors. Under HB 1013, a landowner cannot demand, as a condition of granting a special permit, that water rights be assigned to the landowner, either jointly or solely.

That bill has languished in the House now for four months and according to its sponsors will never be heard by the full House. Sen. Randy Baumgardner, R-Hot Sulphur Springs, told The Colorado Statesman that the parties have reached a compromise that will allow the resolution to move forward and the bill to die on the House calendar.

Baumgardner said he believes the resolution will be acted on by the full Senate before the session ends on May 8. He said that although the bill would have sent a stronger message, the resolution puts the Forest Service on notice that the General Assembly is watching “to make sure you don’t try that again, to overreach.”

According to NSAA’s Geraldine Link, timing is crucial in passing the resolution as soon as possible, in part because the loss in court has not stopped the Forest Service from continuing to demand water rights from ski areas in Colorado and in other states.

Link told the Senate Agriculture, Natural Resources and Energy Committee that the Forest Service demanded in January that the Winter Park ski area turn over full, not joint water rights, to the Forest Service as a condition for renewing its special use permit. Those water rights are owned by the city and county of Denver, Link said. The Forest Service action resulted in political pressure from the city, and the Forest Service put off that demand for two years. They’ve continued to go after water rights in other states as well, she explained.

During the April 11 hearing, Link pleaded with legislators to send a strong message to Washington. “Someone needs to stand up to the Forest Service when it comes to water rights,” she said. “I suggest the state of Colorado take up that role… The time is now.”