National Ski Areas Association charges Forest Service with ‘takings’
By Bob Berwyn
SUMMIT COUNTY — A decades-old water-rights struggle between the U.S. Forest and the ski industry flared up again this week, as the National Ski Areas Association charged that the agency wants to make an end run around state law and “take away” water rights worth tens of millions of dollars.
The accusations came during a Nov. 15 hearing before the House Natural Resources Committee, as Boulder attorney Glenn Porzak testified on behalf of the ski industry, asking Congress to intervene in the matter. Porzak’s written statement is online here.
“All water rights owners should be concerned,” Porzak said, claiming that the change would require ski areas to transfer ownership of several types of water rights to the Forest Service.
“Ski areas would lose the ability to control future use of those water rights … they would have no guarantee on future use,” Porzak said, explaining that ski areas collectively have invested hundreds of millions of dollars in water rights used for snowmaking, lodging, restrooms, culinary purposes and irrigation.
At issue is a water-rights clause in the standard ski area permit that specifies who owns the water flowing down from public national forest system lands both within and outside ski area boundaries. The current language has been in place since 2004 and the ski industry says it’s been working well.
Under the 2004 clause, ski areas exercise almost absolute control over all water rights associated with ski area operations — to the point that a resort could potentially sell at least some of the water rights, potentially leaving a future ski area permittee high and dry.
The Forest Service is replacing that clause with new language that would prevent such a sale, but the ski industry claims the new clause goes far beyond that, and amounts to a takings of private property.
After the hearing, a top Forest Service official said the 2004 permit language wouldn’t stand up to a legal test in Colorado and possibly other states where ski areas operate under permit from the agency.
The agency is seeking to sustain resorts operating under permit for the long-term by ensuring that the water rights stay with the ski area even if there is a change in ownership or some other unforeseen circumstance, according to Jim Bedwell, director of the agency’s recreation and heritage resources programs.
Bedwell said the agency recognizes that the value of ski areas is tied at least in part to the associated water rights.
“If there’s a change of ownership, the buyers will know they have continued ownership of the water rights, They can’t be parted out,” he said.
The new clause would clarify and define ownership of various water rights associated with permitted ski areas, he said, adding that the language in the 2004 clause was not legally viable because ownership of the water rights was not clearly defined.
“In a nutshell, it takes away all the important water rights,” he said.
Via email, NSAA public policy director Geraldine Link explained it this way:
“The (new) clause requires certain on-site water rights (arising on permit) applied for before 2004 to be held solely by the US, and some water rights that arise off-site as well.
“The Forest Service wants ownership of these water rights in the future so it can control them. USFS should honor state law and state adjudication of water rights rather than making this end run via permit conditions,” Link said.
No Forest Service officials were invited to testify during the session, but former agency chief Mike Dombeck was there, and was asked if the Forest Service wants to take away ski area water rights as a way to exert more control.
“The land managers committed to the resource,” Dombeck said. “I see it as the desire of the agency to do the right thing for the land,” Dombeck responded when Republican Colorado Congressman Scott Tipton accused the agency of wanting to exert more control over the ski industry.
The Forest Service and the ski industry have tussled over the issue of federal reserved water rights on and off for decades, and the latest shift in the tide may reflect philosophical differences between the former Bush administration and the current Obama team, according to Mark Squillace, director of the Natural Resources Law Center at the University of Colorado.
Squillace said that the issue isn’t unique to the ski industry, referring to a well-publicized case involving a federal attempt to subordinate its own water rights in the Black Canyon of the Gunnison. In the end, a judge ruled that the federal government can’t do that, he explained.
“I think it’s smart policy,” he said, referring to the Forest Service’s position on water rights. “From the federal government’s standpoint, they need to make sure the water rights stay with the land,” he said. “It would be a disaster if the ski areas walked away and sold off the water rights separately, he added.
“This is not a takings,” Bedwell added, emphasizing that the Forest Service has been working with the ski industry on the issue for a year.
“We tried to honor the spirit of the 2004 clause,” he said, adding that, from his perspective, work on the new clause is done.
Porzak said Forest Service Chief Tom Tidwell indicated that there may be some additional room for negotiation. Failing that, the ski industry will continue to ask Congress for intervention, and as a last resort, the permit condition could be litigated, he concluded.