Ski industry to sue feds over water rights
December 25, 2011
DENVER – The ski industry plans to sue the U.S. Forest Service over a new water-rights clause in their permits.
The Denver Post reported Saturday that the 121-resort National Ski Areas Association plans the lawsuit because it objects to a new permit clause that assigns water rights at a resort on federal land to the federal government.
The industry argues that the change takes away tens of millions of dollars in private water rights.
“Water rights in the West are part of the asset base of the ski areas that they have acquired in the marketplace and they are an important part of the balance sheet of a ski area,” said Association president Michael Berry.
The Forest Service, which has already issued three new ski-area permits with the new water clause, contends the clause protects the long-term viability of ski areas by keeping water resources tied to the land, not the operator. The new clause changes a 2004 agreement reached between the agency and the industry that allowed for co-ownership of water rights inside a ski area’s permit area.
“If they establish water rights on the national forest, those rights need to remain with the federal government to protect the public’s right to the land,” said Jim Pena, acting chief deputy for the Forest Service.
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Colorado Sens. Mark Udall and Michael Bennet and Republican Rep. Scott Tipton of western Colorado have urged the Forest Service to suspend the controversial new clause. The agency this week declined to issue a moratorium, prompting the industry to plan a lawsuit.
Colorado water attorney Glenn Porzak testified on behalf of the ski industry in November, telling a subcommittee of the U.S. House’s Natural Resources Committee that water rights are a matter of state law. Porzak said the new water-rights clause in ski- area permits constituted “unlawfully taking property from private entities as a permit condition to use or occupy National Forest system lands.”
“These are valuable private-property rights which the Forest Service now wants for free,” Porzak told the subcommittee. “Not only would ski areas not be compensated for these valuable rights, they would also lose the ability to control the uses for which this water is applied in the future.”
Pena said the clause, issued as an interim directive, can be adjusted before it’s finalized and the forest service would work with permit holders to ensure it “works for everybody.”
Berry wasn’t persuaded.
“We have no guarantee that they will continue to use the water for purposes of ski area business,” he said. “The government could decide to use the water and apply it to other uses or even sell it to urban water systems.
“The uncertainty this has generated is unacceptable to us.”