Who gave up what ground in the feud about ski areas and water rights?
by Allen Best
In late December, the U.S. Forest Service announced a compromise with the ski industry in their feud over water rights. Both sides gave ground, but just as interesting was who didn’t get deeply involved.
The environmental community mostly stayed on the sidelines, unwilling to hurl spears on behalf of the Forest Service. U.S. Rep. Scott Tipton, a Republican who represents much of Western Colorado, was triumphant if still warning of federal overreach. He called the Forest Service policy an “onerous attempt to hijack private water rights.”
In this king-sized bed of political alliances, there was some unusual spooning going on. Tipton, elected with Tea Party support and a predictable critic of the Environmental Protection Agency, in this case shared covers with the Aspen Skiing Co., which had even dispatched a top official to testify in Congress against federal involvement in water administration.
This matter of who-is-calling-the-shots on water, states or feds, is also part of the discussion in the Colorado Legislature this winter. Boulder-based water attorney Glenn Porzak, who represents the Eagle River Water Authority and other interests, brokered meetings in recent months around a bill now introduced as HB 16-1109, called the Colorado Water Rights Protection Act.
The bill has sponsors from legislators who rarely agree on anything: from Sen. Jerry Sonnenberg, a Republican from the farm country of Northeastern Colorado, to Rep. KC Becker, a Democrat from reliably liberal Boulder. Other co-sponsors are Rep. Diane Mitsch Busch, a Democrat from Steamboat Springs, and Sen. Kerry Donovan, a Democrat from Edwards.
The bill very fundamentally seeks to discourage federal efforts to claim jurisdiction over water rights on federal lands in some cases. Major environmental groups—including Western Resource Advocates, Conservation Colorado, and Trout Unlimited—have agreed to remain neutral.
Water has always been seen as an essential part of the Forest Service mission. That concern is what drove withdrawal of the forest tracts from the general domain beginning with the White River Reserve of northwest Colorado in 1881. Those withdrawals were driven, in part, because of concerns about water quality from timbering and other land uses. States, just as zealously, have been protective of their authority over water allocation. But water quality and water quantity are inextricably linked, and hence tension.
This tension has played out frequently over the decades on a variety of fronts. In the case of ski areas, the Forest Service in the 1980s developed a policy that said any water developed and used on the national forest in an area permitted for a ski area should be in the name of the United States. The federal agency, however, applied this policy inconsistently to ski areas. There are 122 ski areas on Forest Service land across the nation, mostly in the West.
Ski areas never liked this requirement and questioned the validity. Still, 65 water rights were given to the U.S. government, and they remain in the name of the U.S. government.
In 2004, the Forest Service created something called joint tenancy, whereby the ski areas and the U.S. government would together hold water rights. The Forest Service saw itself as being the landlord and the ski area being a tenant and the plumbing (and tap fee) for the house belonging to the landlord. This was applied to a handful of adjudications of water originating on ski areas. Many states, however, do not recognize this concept.
In 2011, the Forest Service issued a new policy. The ski industry objected to the new clause, which required that ski area operators developing new water sources within their permit areas to give the title to the water to the U.S. government.
This new policy was applied to the Powderhorn Mountain Resort, located on Grand Mesa near Grand Junction, Colo. With partners, long-time ski industry executive Andy Daly had purchased the ski area in 2011. As a condition of transferring the permit for use of Forest Service land, says Daly, he and the other new owners were required to transfer the water rights to the Forest Service.
“They said they would not approve the permanent transfer of the permit (from the former owner) unless we agreed to the language,” he says.
That water portfolio for Powderhorn is 15 pages long and includes a wide variety of sources, from springs to access to a ditch drawing water from Mesa Creek, many rights filed in the 1980s but some predating the creation of the ski area.
At the time, Daly thought the Forest Service had over-stepped.
“In my mind, it was always considered a taking, from the perspective that the Forest Service was taking the water right of the ski area and not guaranteeing that those water rights could be used in perpetuity for what they were being used at the ski area.”
That same year, the National Ski Areas Association sued. The judge agreed, striking the Forest Service requirement—but on procedural grounds, not substantive grounds.
Adhering to the elaborate set of procedures and requirements yielded a new directive that the Forest Service announced in late December. The Ski Area Water Clause entered in the Federal Register clearly constitutes a compromise, if some dissatisfaction remains.
Ski areas give up their autonomy about water rights. They cannot just sell their water rights on the open market. They agree—even if they don’t necessarily believe—that the Forest Service should have some say-so over how much water is needed to run a ski area.
If an operator sells the ski area, the water rights must be included in the assets. If the buyer declines to buy the water, the Forest Service gets the first right of refusal. The Forest Service could decide the water isn’t needed, in which case the ski area would be allowed to sell the water rights to a buyer of its choosing.
Going forward, ski areas can continue to own all the water rights they develop on the ski areas, whether through wells, dams, or diversions. They do not need to transfer them to the U.S. government. However, the directive leaves intact prior water rights filings, including some that were ceded to the U.S. government.
The Forest Service requires ski areas to document sufficient water to support their operations in snowmaking and other uses for on-mountain operations.
The agency does not claim rights to water that originates off the ski permit area. In the context of Colorado, for example, both Vail and Beaver Creek use from the Eagle River, pumping it onto the ski mountains to make snow. Another example is augmentation water, such as that held in Green Mountain Reservoir and released as needed to meet senior water rights downstream by more senior users downstream on the Colorado River.
Jim Bedwell, the director of recreation in the Rocky Mountain region, calls it a good compromise but maintains that the Forest Service has a legitimate need.
“Ski areas do change hands,” he says, “and there is significant consolidation going on in the industry right now. Our real desire is that the public doesn’t see any difference, regardless of changes, and there will be some of the same opportunities for the public to ski, with the same quality of experience—but the water rights will be tied to the forest. That was our interest all along.”
Geraldine Link, director of public policy for the National Ski Areas Association, sees little reason ski areas would get rid of water rights. “Why would you sell the water rights if it wasn’t absolutely crucial?” she says. “That diminishes the value of your ski area.”
NSAA chose not to battle the Forest Service further for a number of reasons, she said: The restrictions apply to a limited class of water rights; litigation is expensive, and the outcome of a lawsuit uncertain.
But the new language gives ski area operators assurances that the value of their investments will be protected. “That’s a big deal for the ski areas.”
She also struck a diplomatic tone, describing ski areas and the U.S. Forest Service as partners for more than 75 years in providing the public with a concentrated outdoor experience, first in snow and now as four-season resorts.
“We have a lot going on. Our partnership is much greater than just water. That is the context for how we look at this new clause and say, ‘This will work for us.’”
But Tipton proclaimed it a rebuff of Forest Service overreach. “Western water users are right to be wary of any action on water rights by this Administration, which has been dead set on slowly expanding federal control over water in the Western U.S,” he said in a Dec. 30 statement.
Tipton cited support from a number of familiar allies, but some unusual teammates, too, including the Gunnison County commissioners, which trend toward Democratic policies.
Chris Treese, director of internal affairs for the Colorado River Water Conservation District, also questions Forest Service authority. Water use, he argues, should be strictly within the domain of state water courts. Too, he harbors doubts whether the Forest Service should have any say-so in determining how much water is needed to operate a ski area.
“I appreciate the fact that they are no longer requiring ski areas to assign ownership to deed title over to the federal government. That is significant. But I question whether they have the true expertise to determine sufficiency of quantity for water. Exactly how are they going to measure that?” he asks. “There are implications for the private property nature of Western water rights.”
Treese does commend the Forest Service for recognizing in its final rule the fundamental difference between the prior appropriation laws of Western state and the riparian laws of the East.
Bypass flows different
Bypass flows are a related, but different issue—as environmental groups were careful to point out.
In the case of bypass flows, the Forest Service requires that water from dams and other such uses of the national forests lands let a certain amount of water continue to flow downstream, to achieve biological purposes of streams and rivers. After a 2004 federal decision upheld the Forest Service in a case involving a reservoir on the Arapahoe-Roosevelt National Forest, Colorado Trout Unlimited issued a statement that the ruling should “silence those who have asserted that the Forest Service does not have the authority to protect rivers on National Forest lands.”
But while environmental groups strongly support bypass flow requirements, at least some of them suggested—if they were willing to talk at all—that the Forest Service had sharp elbows in the ski area case.
“The best analogy I can make is that if you are a tenant in a building, your landlord can tell you not to play the radio loud after 10 p.m., that’s essentially what a bypass flow is,” explains Rob Harris of Western Resource Advocates.
“It just puts a limit on the exercise of your property right, which you agreed to by agreeing to the privilege of leasing or renting the apartment—or by leasing the federal land. By contrast, this ski area clause said give me your radio. I will not renew your lease unless you give me your radio. That’s fundamentally the difference.”
The bill in the Colorado Legislature very specifically remains neutral about bypass flows while otherwise arguing strongly that water rights are a matter under Colorado’s jurisdiction.
Porzak, who drafted the language, says the bill is “totally disconnected” from bills introduced by Tipton and by U.S. Sen. Cory Gardner.
Environmental groups, however, remain wary of Tipton’s legislation. They think it would swing the pendulum too far. In the words of Harris, versions of Tipton’s bill “have in fact threatened a lot of the natural values in public lands.”
View from enviro sidelines
An informed sidelines opinion comes from Ken Neubecker, who has been affiliated with several water-related environmental water organizations in Colorado, currently American Rivers. He also knows Colorado water law intimately. “Tempest in a teapot, and it just got blown completely out of whack,” he says. It shouldn’t have taken nearly so long to work out, he says. “It’s damned turf battles. Sometimes you do need to defend turf, but other times you do it simply because you can.”
Neubecker says the Forest Service should not be made into “some sort of retrograde exile in their own land,” as he thinks some would prefer. On the other hand, “you don’t get along by throwing bombs at your neighbors,” which is how he saw the Forest Service demand.
“They have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water. That being said, it has to be done within the context of state water law. They can’t just sort of imperially say that federal agencies law supersedes states law, because when it comes to water, it doesn’t. They have to respect the legitimate rights of water rights owners.”
This latest conflict can be seen as part of a long-standing tension between state governments, private interests, and the federal government.
The lion’s share of these forests—including the Holy Cross, Montezuma, Cochetopa, and Uncompahgre in Colorado, the Shasta in California, the Sawtooth and Weiser reserves in Idaho, and the Dixie in Utah—were withdrawn from the general domain, made unavailable for homesteading, in 1905 by the order of President Theodore Roosevelt. In Colorado, many people were plenty unhappy.
In 1909, Gifford Pinchot, the first leader of the U.S. Forest Service, arrived in Denver to meet with angry stockmen, lumbermen, and miners, who accused the federal government of over-reach. Elias Ammons, a future governor, told Pinchot that there were men living on the reservations “who were living in a state of fear.” Pinchot, according to the Scientific and Mining Press, replied that if it were not for the Forest Service, there would be no small stockmen at all.
Pinchot won the argument that day, but the argument has never been completely settled, as witnessed by these periodic Sagebrush rebellions, of which the Bundy family of Nevada and Oregon are only the most militant, extreme actors. Of course, we’re still arguing about the Civil War, too. Until last year, a Confederate flag flew over the grounds of the state capitol in Charleston, S.C.