The National Ski Areas Association has sued the Forest Service over a revised water clause in ski-area permitting that requires ski areas to transfer some water rights to the government. The lawsuit, filed in Colorado’s U.S. District Court, asserts that the November 2011 clause is a “stunning and unprecedented directive” inserted into ski-area permits “to control and seize privately owned water rights acquired and used under state law.”
The new water rights regulation is already employed in three new ski-area permits in California, Washington and Powderhorn in Colorado. The clause revises a 2004 agreement that had the Forest Service and ski area operator sharing ownership of some water rights.
The Forest Service believes the revamped water-rights clause more closely mirrors the original 1986 ski-area permitting legislation and keeps the resource associated with the land.
The ski industry argues that the new clause is a federal taking of private property that prohibits ski areas from selling and trading a valuable commodity and reduces the value of the commodity, thus injuring “balance sheets”. The continent’s largest resort operator, Vail Resorts, reports water rights on its balance sheet as an intangible asset valued at $18.3 million. The industry also argues that the new clause requires operators to use the water only for resort operations yet does not make same requirement for the Forest Service.
The complicated water-rights imbroglio roiled recently as a consortium of congressional delegates joined the ski industry in requesting the Forest Service conduct further study and gather public input on the controversial change.
Sadly, Senators from Wyoming and Idaho, and both Colorado Sens. Mark Udall and Michael Bennett joined, Colorado Reps. Scott Tipton and Jared Polis and congressmen from Washington, Wyoming, Oklahoma and Georgia in urging the agency to issue a moratorium. The agency declined.
Experts argue that the only reason ski areas could obtain these water rights was because the Forest Service allowed them to do so. Some even argue that the resorts were deceiving the federal government because they never intended to transform the water rights back to the federal government, as first required in the 1986 National Forest Ski Area Permit Act, thus making the resort operators liable for criminal charges or permit revocation.
A major contention between the Forest Service and the ski industry is the agency’s assertion that the new water rights clause does not impact water rights secured on private or non-federal lands. Another sticking point is the possibility that the federal government may decide the water rights secured by the ski area for skiing may be used more appropriately elsewhere. Since water rights owned by the federal government are a resource owned by all of us, it might not be such a bad thing to have the agency perform a routine benefit analysis as to how best allocate the resource.