NSAA v. USFS: ‘In the West, state water law and the rights it protects are sacred to westerners’ — Scott Tipton

Here’s the release from US Representative Scott Tipton’s office:

Rep. Scott Tipton (CO-3) spearheaded a hearing in the House Natural Resources Subcommittee on Water and Power, [April 25, 2013], to draw attention to recent federal attempts to circumvent long-established state water law in the Western United States in order to hijack privately held water rights. With Colorado jobs and the economic health of rural communities at stake, Tipton has led the charge in Congress to protect privately held water rights in Colorado and other Western states.

Read Tipton’s opening statement.

In her testimony, Geraldine Link of the National Ski Areas Association, laid out what is at stake for Colorado’s economy should the federal government succeed in taking away privately held water rights that ski areas, communities and other businesses rely on for their livelihoods.

“Collectively, ski areas have invested hundreds of millions of dollars on water rights to support and enhance their operations…Water is crucial to future growth of ski areas and that future growth directly impacts the rural economies associated with ski areas. Ski areas are major employers in rural economies, employing 160,000 people, and help drive job creation in rural and mountain economies,” Link said. “US Forest Service (USFS) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets…These types of water clauses provide a disincentive for ski areas to acquire more water rights in the future… If ski areas stop investing in water rights for the future, the outlook for the rural economies dependent on them would be bleak.”

Read Link’s full testimony.

The USFS is moving forward to implement a permit condition to require the transfer of privately held water rights to the federal government, without any compensation, as a permit condition on National Forest System lands. Last year, the National Ski Areas Association filed suit against the Forest Service to block implementation of the permit directive. In December 2012, the United States District Court for the District of Colorado vacated the 2012 USFS directive, and ordered the agency to pay $125,000 to cover the Ski Area Association’s legal fees.

In January 2013, the USFS announced that it intended to initiate a public comment process as it once again ramps up efforts to implement a directive that would require the transfer of privately held water rights to the federal government as a permit condition on National Forest System lands. The USFS justifies this policy as necessary in order to ensure that these water rights are not improperly sold off and used for other purposes, and to ensure that water is available for snow making and grazing.

Tipton asked Link if there has been a case of these water rights being sold or used improperly by the ski industry.

Link replied that this is a “made up issue,” and that there has been no such case. As such, she said that it’s believed that the USFS intends to use the water for other purposes, including endangered species protection, rather than for continued snowmaking and grazing as the agency has stated.

“The Agency’s most recent explanation for its policy which is, ‘saving the ski areas and the ski communities,’ is really just a cover for a longstanding objective of getting more water for the woods, for these other purposes,” Link said. “If the Agency were truly aiming to keep the water with the ski areas, why under its 2012 policy for example, which was struck down in federal court, was the Forest Service not willing to guarantee that the water would actually stay with the ski areas?”

VIDEO: Watch Tipton question the witnesses.

The implications of the USFS water grab extend past the ski area association and into the heart of rural America where farmers and ranchers rely on privately held and developed water rights to secure loans, as well as irrigate crops and livestock.

“This policy isn’t limited to ski areas. The Forest Service has also been implementing a similar requirement for grazing permits in several western states,” Tipton said. “Many of the ranchers I represent can’t afford drawn-out and costly legal battles with the Forest Service to protect what is rightfully theirs under state law.”

In addition to seeking the relinquishment of water rights through ski area permits, the USFS has begun implementing back door ways to control private water rights.

In his written testimony, Gary Derck, CEO of Durango Mountain Resort, told the committee that although the resort has been a good steward of the environment and its water rights, the Forest Service has repeatedly denied access to develop those water rights, jeopardizing those privately held rights under state law.

“A few years ago, the policies of the USFS took a distinct and concerning change of course. Local USFS officials began telling us that they were no longer in charge of making decisions relative to water rights and water access … and that direction/decisions on these matters was now coming from ‘higher up in the Forest Service,’” wrote Derck. “Apart from the obvious “taking” issue of our private water rights, we are concerned that it appears that our local USFS representatives have been directed to “stand down” and stop working collaboratively with us to help us with what we need to continue to make snow, operate/improve our business, maintain/grow our employment, and provide the recreational activities and services we currently provide for the Four Corners region and the town of Durango.”

Read Derck’s full testimony.

In response to Derck’s testimony, Tipton told the Committee, “This is nefarious and coercive, and it has to stop.”

To add to the list of federal threats to state water law, the Department of Interior recently issued Secretarial Order 3321 establishing the National Blueways System. This is a “source to mouth, watershed-wide” federal program about which little is known, and which has raised the fears of many local water conservation districts who are already doing an outstanding job of managing precious water supplies.

In February, Tipton joined 22 of his colleagues in urging Secretary Salazar to withdraw the Blueways Order, writing, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion…Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers would be a usurpation of state authority.”

The Administration tuned-out this request and included funding in its FY2014 budget to expand the Blueways Program.

Russell Boardman, Supervisor of the Shoshone Conservation District in Frannie, Wyoming testified on the Blueways Program during the hearing.

“I would ask how a designation that requires no public notice, no comment opportunity and was created without coordination or consultation with affected landowners, local governments or states, could result in increased coordination…our district and all others in Wyoming are already coordinating with private, state and local entities and we are already promoting best practices and we are already sharing information and resources,” Boardman said. “We fail to see how a Blueways designation will enhance this. In fact, we are concerned in Wyoming that this designation will hamper these efforts by creating fear, confusion and controversy. Real conservation occurs at the grassroots level. If there is a commitment to grassroots conservation then local efforts like the ones implemented by our conservation district should be supported, rather than trumped by a Secretarial edict.”

Read Boardman’s full testimony.

“The bottom line is this: we continue to see a trend of federal intrusion into state water law which protects all of the uses we hold dear, from recreation to irrigation, domestic use and environmental protection. To undermine this system is to create risk and uncertainty for all Western water users,” Tipton said. “This isn’t a political battle, it’s a regional one. Water is the lifeblood of the West.”

From the Cortez Journal (Stephanie Dazio/Joe Hanel):

The hearing, entitled “Federal Impediments to Water Rights, Job Creation and Recreation: A Local Perspective,” did not include any witnesses from the U.S. Forest Service…

In Colorado, state law says water rights are a property right. Owners can use or sell the rights as they please, provided a water court approves of the water’s uses, the Herald previously reported.

Tipton, R-Cortez, grilled Agriculture Secretary Tom Vilsack in a March hearing about the topic, saying the struck-down directive was an attempt to circumvent state law. “The focus here is making sure that we use our forests … in the most appropriate way,” Vilsack said then. “We need to balance that with the interests of those who need the water for economic purposes,” he added, citing the ski industry.

State legislators rebelled against the practice this year and passed a resolution condemning the Forest Service for its policy.

But the Forest Service managed to scuttle a much more substantive bill, which would have changed Colorado water law to prohibit the federal government from demanding water rights in return for issuing land-use permits.

Undersecretary of Agriculture Harris Sherman, who oversees the Forest Service, personally called several state lawmakers and asked them to kill the bill. It has been sitting idle on the House calendar for two weeks, and its sponsor, Rep. Jerry Sonnenberg, R-Sterling, said he expects it to die when the yearly session ends in two weeks.

Sonnenberg has argued that the Forest Service policy takes direct aim at Colorado’s long-standing principle that water rights allow the owner to use or sell the water for any purpose anywhere in the state, as long as a court approves.

More NSAA coverage here.

The NSAA offers a fresh start in negotiations with the USFS over water rights ownership

From the Summit County Citizens Voice (Bob Berwyn):

“Our new approach assumes that all previous water clauses are no longer in effect, null and void, and unenforceable. It would result in a consistent water policy across the board going forward,” said NSAA policy director Geraldine Link. The ski industry comments came as the Forest Service held a series of hearings around the West in the early stages of developing a new water rights clause that eventually will become part of agency permits for businesses operating on public lands…

For the ski industry, its partially a financial issue. Resorts have spent millions of dollars developing and perfecting water rights under state law, and to the NSAA, any permit language requiring a transfer of those rights is unacceptable and illegal.
A required transfer would impair the value of the resorts’ investments and could hinder their ability to finance capital improvements, the NSAA wrote.

From The Grand Junction Daily Sentinel (Gary Harmon):

The U.S. Forest Service will pay $125,000 to the National Ski Area Association for its attorney fees in a case the association brought to stop the agency from demanding new water rights. U.S. District Judge William Martinez approved an agreement between the agency and association after the ski areas sought $163,000 in attorney fees for the case, according to court papers.

The agreement to pay attorney fees drew a scathing response from U.S. Rep. Scott Tipton, R-Colo., who said that $125,000 is “a lot of money, especially when it’s at taxpayer expense and at a time when the Forest Service should be dedicating as many resources as possible to addressing the hazardous conditions of our forests to prevent wildfire.”

The ski areas sought attorney’s fees under a federal law that requires the Forest Service to pay attorney’s fees if a judge “concludes the Forest Service’s position was not substantially justified,” Geraldine Link, the attorney for the National Ski Area Association, said in an email.

The association filed suit last year after the Forest Service required the new ownership at Powderhorn Mountain Resort to surrender new water rights to the agency in exchange for a permit to operate the ski area on national forest lands.

Although the agreement includes a provision in which the Forest Service admits no allegations, Link said the deal makes it clear “that taxpayer dollars are being used in defense of an unlawful federal water grab.”

Martinez rejected the ski-area water rights directive after finding that the Forest Service had failed to meet public-participation requirements in drafting it.

If the Forest Service moves forward on the directive, “the costs will be even greater to the businesses, farmers, ranchers and communities that rely on these water rights for their livelihoods,” Tipton said.

The Forest Service conducted the first of several focus-group open houses nationwide on Tuesday in Denver. Officials anticipate publishing a draft directive later this year in the Federal Register, then conducting a public-comment process before adopting a new directive.

Concern about the consequences of such a policy extends beyond the ski industry. “We’re very concerned about the implications of such a clause targeted to one industry because if it’s successful and because it’s outside Colorado water law, could the U.S. government demand similar rights of agriculture, municipal water users, anyone who develops a water right that originates on public land?” said Bonnie Petersen, executive director of Club 20, a Western Slope advocacy organization.

More water law coverage here.

NSAA vs. USFS: ‘There is a fundamental difference of opinion that will be hard to overcome’ — Jim Pena

From The Denver Post (Jason Blevins):

The Forest Service on this week launched the first of several public meetings and forums as it outlines a contentious push to secure water rights used by ski areas on public land. “There is a fundamental difference of opinion that will be hard to overcome,” said Jim Pena, the Forest Service’s acting deputy chief, acknowledging ski area opposition to the agency plan to revamp permits with new regulations addressing the ownership of water rights.

The public meeting on Tuesday was sparsely attended at the Forest Service headquarters in Lakewood. Ski area officials huddled together while leading agency officials — the landlords of 122 U.S. ski areas, including 22 in Colorado — stood ready to answer questions that didn’t come.

It’s a complex issue, as is any that deals with Colorado’s byzantine water right laws. And probably not something that stirs the public. But for ski areas, the Forest Service push to secure water rights owned by resorts operating on public land is a critical issue.

The National Ski Areas Association, which successfully sued to overturn early versions of the water clause, met with the agency before the public hearing and offered two options that would deflect the Forest Service need to take ownership of water rights used on public land. (That invite-only forum is one of several the agency is holding with resort communities, ranchers, conservation groups and other stakeholders as it scripts the new ski area permit water clause.)

The association’s options would require ski areas to prove sufficient water is available for every new project and any ski area sale would include options to sell ski-operation water rights to the buyer, the local community or the Forest Service. “We are excited about having ideas and offering something new,” said the association’s public policy director Geraldine Link, who led the industry’s lawsuit to overturn the water clause. “We are staying let’s start over. We think there is a way to address Forest Service concerns without the seizure of assets.”[...]

Pena said federal ownership may not be the only answer, hence the public meetings. The agency owns roughly 21 percent of the country’s ski area water rights, shares ownership of 4 percent and the remaining 75 percent is owned by ski area operators. Regulations that require water rights remain connected to public lands would prevent ski area operators from selling water rights as a commodity that eventually may be worth more than skiing.
“Without long-term assurances for water, we feel we could be the public’s interest at risk,” he said. “The whole idea of sustainability is about preserving resources for future generations. We are seeing more of the ski industry being managed by corporate interests. They are no longer mom-and-pop operations. We have to be prepared for people making different business decisions than what is best for the public.”[...]

Davey Pitcher, the owner of southern Colorado’s Wolf Creek ski area, allowed the Forest Service to share ownership of his water rights when he renewed his permit in 2000.
“We don’t see a problem with,” Pitcher said, noting how the agency allows intensive ski infrastructure on public land, like trails and chairlifts, so it makes sense for the Forest Service to want to protect the water needed for skiing. “We see it as a reasonable request.”

More water law coverage here.

USFS to hold a series of public meetings after NSAA lawsuit victory last December

From The Grand Junction Daily Sentinel (Dennis Webb):

The U.S. Forest Service is turning to focus groups to help it deal with a water-rights directive that landed the agency a slapdown in federal court. Forest Service officials are to conduct focus-group discussions Tuesday about the clause, which they hope to publish in August and then begin the process of collecting public comment in preparation for adoption by February.

The process being undertaken is “bizarre beyond belief,” said Glenn Porzak, a Colorado water lawyer who represents the National Ski Area Association, which took the Forest Service to court last year to stop enforcement of the directive. “I’ve never seen anything like this.”

It’s not a new approach, Forest Service spokeswoman Tiffany Holloway said. “Listening group sessions are just one of the ways that we engage the public in our decision-making,” she said.

The Forest Service was rebuffed by federal court in Denver when it demanded that the new ownership of Powderhorn Mountain Resort turn over new water rights in order to obtain a lease to operate the ski area in the Grand Mesa National Forest.

Powderhorn was the first resort in the nation to be subject to the directive. The court later found that the Forest Service had fallen short of public-involvement requirements in implementing the directive. Ski resorts, environmental organizations, community organizations and representatives of natural-resource industries are invited, each to their own listening session, the Forest Service said.

Ski areas are to be represented at a meeting Tuesday in Denver. Other meetings are scheduled in Salt Lake City; Lake Tahoe, Nev.; and Washington, D.C. “The sessions will focus primarily on the principal rationale underlying the ski area water rights clause: ensuring that sufficient water remains available to support ski areas and dependent communities,” Leslie A. Weldon, deputy chief of the National Forest system, wrote to participants. Officials have said the policy is needed to prevent ski areas from selling water rights to other users should they have more value than for snowmaking.

Since the policy was invoked with Powderhorn, municipal water providers, grazers and other industries and organizations that use federal lands have been told they could be subject to the same requirements. “We’re disappointed we haven’t been invited to participate” in the listening session, said Mark Hermundstad, the Grand Junction water attorney who represents the Ute Water Conservancy District. Ute Water filed an amicus brief in the Powderhorn case that “raised serious issues about how the Forest Service rules could be applied,” but won’t be allowed to direct them to the Forest Service listening process, Hermundstad said.

The Forest Service has “kind of awakened a sleeping dog” by extending the policy beyond ski areas, Porzak said. Municipalities and other users “are now focused on this issue,” he said. While the sessions are open to the public, “The intent is to have people of like interests/expertise to be able to have conversations with people of similar interests,” Holloway said. “We will not turn people away from any meeting but will ask that they allow the invitees to have a free conversation.”

U.S. Rep. Scott Tipton, R-Colo., whose 3rd Congressional District includes several ski areas, grazers, municipal water suppliers and others, said he was disappointed the Forest Service was conducting meetings far from where the effects of the policy will be most heavily felt. “When are they going to talk to the people who stand to be affected by this effort to trample all over state water law?” Tipton said via a spokesman.

More NSAA coverage here.

Denver: USFS to hold a series of public meetings after NSAA lawsuit victory last December

Forest Service holds public meetings on ski area water rights wp.me/pJ91e-dYO

— Bob Berwyn (@bberwyn) April 14, 2013

From the Summit County Citizens Voice (Bob Berwyn):

Now, the agency will hold a series of public meetings, starting April 16 in Denver, to take input from the public and key stakeholders. Additional meetings are set for Salt Lake City on April 17, and Lake Tahoe, Calif., on April 18.

Forest Service leaders and technical experts from Washington, D.C., as well as from local and regional offices will be on-hand to take public comments and provide additional information on the water rights issue.

At issue is very specific language in ski area and other special-use permits that establishes the ownership and future uses of water that flows off public lands. The key for the Forest Service is to ensure that the water rights from water that comes from national forest system lands continue to stay with the permitted special use.

The ski industry and the agency have been at odds over the water rights directive for several years but say they are committed to a collaborative approach based on a long history of partnership. “Some resorts have water rights in their name, some are held in the name of the U.S. Going forward, we need a more cogent way of addressing this,” Rocky Mountain Regional Forester Daniel Jiron said in a January interview with Summit Voice.

“Our long-term policy objective is to make sure that ski areas and communities can depend on that water … The Forest Service must provide the resources to do that,” Jiron said. “We support the ski industry … I believe it’s an important part of our mission. We know that the current group of ski resort owners and operators are committed to their resorts and Colorado, but we have to plan ahead decades to protect public resources,” Jiron said.

More NSAA coverage here.

HJR13-1004 supports the NSAA’s position regarding water rights associated with ski areas #COleg

From the Craig Daily Press:

A Sen. Randy Baumgardner-sponsored water rights measure unanimously passed out of the Colorado Senate Agriculture, Livestock & Natural Resources Committee on Thursday. House Joint Resolution 13-1004 calls on the U.S. Forest Service to rescind a 2012 directive that stipulates water rights revert to the federal government upon termination of a special-use permit.

More 2013 Colorado legislation coverage here.

NSAA wins their USFS permit requirements lawsuit — no ruling on water rights transfer requirements

From The Denver Post (Jason Blevins):

Judge William Martinez ruled that the Forest Service’s revision of 2011 and 2012 permit regulations governing water rights violated federal procedural rules, failed to evaluate economic impact and violated ski area rights.

Martinez sided with the National Ski Areas Association, which was suing the Forest Service over the new water rights permit rules, ordering the agency to not enforce the terms of the new rules. Martinez remanded the issue back to the Forest Service…

The agency said it changed the permit requirements to assure that ski areas never sold water rights connected to federal land.

“It’s a monetary calculation,” Department of Justice attorney Clay Samford argued in the Nov. 15 hearing. “As the value of these rights increases, it may make economic sense for ski areas to sell some rights off.”

The NSAA argued that the agency violated the Federal Administrative Procedural Act by not soliciting public input on the new rule…

Martinez’s decision only addresses the Forest Service’s procedural deficiencies when it crafted the new water directives. He did not rule on the NSAA’s substantive claims, specifically that the agency should not condition ski permits on the transfer of water rights obtained through a state process.

More Nation Ski Areas Association lawsuit coverage here.

The Colorado River District, et. al., file brief in support of the NSAA lawsuit over USFS permit regulations

From the Summit County Citizens Voice (Bob Berwyn):

The Colorado River Water Conservation District, the Eagle River Water and Sanitation District, the Ute Water Conservancy District, the Eagle Park Reservoir Company and the Clinton Ditch and Reservoir Company have joined in the lawsuit with an amicus brief that was accepted by the U.S. District Court of Colorado a few days ago, according the Colorado River District attorney Peter Fleming. The Amicus Brief doesn’t raise new issues, but reinforces the legal points already made by the National Ski Areas Association in its original and amended complaints and serves to make the court aware that the disposition of the case will stakeholders other than the ski industry, Fleming said. “If the Forest Service is allowed to extract these concessions from the ski industry, then potentially the federal government will seek to demand the same or similar constraints from municipal and other water users as most of the headwaters and water sources in the western states arise on federal lands,” the amicus brief states.

At issue is are changes the Forest Service made to the standard permits under which scores of ski resorts in the West run their businesses on publicly owned National Forest lands.

More National Ski Areas Associations coverage here. More water law coverage here.

NSAA litigates USFS water rights clause

From the Vail Daily (Laura Glendenning):

[Boulder-based attorney Glenn Porzak] said he’s been to Washington four times in the last three months to try to work out a solution with the Forest Service and the U.S. Department of Agriculture to no avail, which is why the association filed the lawsuit against the Forest Service in federal court Monday.

“The Forest Service does not have the authority to take the ski industry water rights they’re seeking,” Porzak said. “Vail Resorts is closely monitoring this entire lawsuit and the whole issue that is being raised.”

Vail Resorts, a member of the National Ski Areas Association, has private water rights at both Vail and Beaver Creek, as well as the company’s other mountain resorts. The Forest Service’s new regulations are to take back private water rights from the resorts and tie those water rights to the land, but Porzak said the association wants the 2004 water rights clause to remain in effect.

In that clause, any on-mountain water rights acquired after 2004 have to have a joint ownership between the ski resort and the Forest Service, however the ownership of water rights obtained before 2004 would remain solely with the entity that initially obtained those rights. The off-mountain water rights — which for Vail Resorts includes off-site reservoirs such as the Eagle Park Reservoir, among others — remain in the hands of the ski resorts that obtained them under the 2004 clause, however the new regulations would change that.

There was a lot of negotiation done before the 2004 clause went into effect, Porzak said, to protect those off-site water rights. The new Forest Service rules would give those off-site water rights — rights that ski resorts have paid millions for — to the Forest Service without any compensation to the ski resorts, Porzak said.

More water law coverage here.

NSAA Litigates Forest Service Water Rights Clause

Here’s the release from the National Ski Areas Association (Troy Hawks):

The National Ski Areas Association (NSAA) filed a lawsuit in Federal court in the district of Colorado today against the U.S.D.A. Forest Service (USFS) to challenge a new water rights clause that results in an unconstitutional taking of property.

“We greatly value our longstanding and successful partnership with the United States Forest Service in delivering outdoor recreation experiences for millions of Americans that are unmatched in the world,” said NSAA President Michael Berry. “As always, we will continue to work positively and cooperatively with the agency to provide these opportunities on public land, but water rights are simply too critical and valuable to our operations not to defend ourselves against this outright taking of private property by the U.S. Government.”

The controversial water rights clause requires ski areas operating on Forest Service land to transfer ownership of many types of water rights to the United States government, including water rights that have been purchased with private dollars by ski areas for business operations. From NSAA’s view, requiring ski areas to transfer ownership or limit the sale of water rights without compensation is no different than the government forcing a transfer of ownership of gondolas or chairlifts, grooming machines, or snowmobiles without compensation—except for the fact that water rights are significantly more valuable than these other ski resort assets.

NSAA’s lawsuit should be a wake up call for cities and counties and other entities that have invested in the development of water rights that are in any way associated with National Forest System lands. Because of the significant percentage of water that originates on National Forest System lands, this change in policy could impact other water owners including cities and counties, owners of recreation residences, marinas and summer resorts, ranchers, mining interests and utilities.

The new water clause also poses a threat to the current system of state allocation and administration of water rights. The Forest Service acted unilaterally in changing its policy, and did not consult with states on its impacts on the state system of allocation and adjudication of water rights.

Prior to litigating the matter, NSAA urged the agency to set aside the controversial water clause and start over on a clause that was within the bounds of the law and protected all parties’ interests. NSAA was not alone in making this request, as Sen. John Barrasso (R-WY), Sen. James Risch (R-ID), Sen. Mark Udall (D-CO), Sen. Michael Bennet (D-CO), Colorado Governor John Hickenlooper (D), Colorado representatives Scott Tipton (R) and Jared Polis (D), Doc Hastings (R-WA), Chairman of the House Committee on Natural Resources, Frank Lucas (R-OK) Chairman of the House Committee on Agriculture, Mike Simpson (R-WY), Chairman of the Appropriations Subcommittee on Interior and the Environment, and Jack Kingston (R-GA), Chairman of the House Subcommittee on Agriculture, Rural Development, also requested in writing that the agency issue a moratorium on implementation of the controversial clause.

When the agency refused to withdraw the clause, NSAA was forced to go to federal court to seek judicial review and injunctive relief and protect the rights and interests of its member ski areas. Three ski areas have already been required to accept the clause, effective November 8, 2011, as a term in their special use permit in order to operate. Those ski areas include Powderhorn in Colorado, Alpine Meadows in California, and Stevens Pass in Washington.

More coverage from the Summit County Citizens Voice (Bob Berwyn). From the article:

The water rights issue surfaced publicly in November, when the National Ski Areas Association, represented by attorney Glenn Porzak, complained in Congress that the Forest Service was trying to “take” privately held water rights by revising a ski area permit condition that was adopted in 2004. Since then, the ski industry has threatened to sue the Forest Service over the new water rights clause. But Ed Ryberg, who headed the agency’s ski area program from 1992 to 2005, says it’s the other way around. According to Ryberg, the ski industry used its political connections in the Bush administration to lobby for regulatory changes that were subsequently implemented without public input or review under federal environmental laws…

According to Ryberg, the latest move by the Forest Service to revise the language merely restores the balance that existed before 2004 and ensures that water that originates on national forest lands and has been developed for ski resort use remains with the ski areas.

Click through to read the text of a letter from Ryberg to U.S. Senator Udall.

More coverage from Troy Hooper writing for the Colorado Independent. From the article:

“Frankly, litigation may be the best way forward on this issue,” Ed Ryberg wrote in a letter last week to Sen. Mark Udall, D-Colorado, commending foresters for redressing “the abuses of crony capitalism.” In his letter, Ryberg, who coordinated the Forest Service’s ski area program from 1992 until his retirement in 2005, excoriates “the ‘bad actors’ in the ski industry who welshed on their agreements with the United States, and obtained water rights, justly belonging to the American people, through fraud and deception. These are the ski areas on who’s behalf NSAA has been lobbying.”

Asked for a response, Geraldine Link, the policy director for NSAA, emailed the Colorado Independent to say “the 2011 clause … is retroactive in nature. It resurrects old, invalid and replaced clauses that are no longer in effect. It resurrects them from the past even though at this time the ski area and the water rights could very well be owned by a different entity who was not a party to the permit from 3 decades ago. The 2011 clause also applies to water that originates on private land and other non-USFS lands. Talk about shifting political winds. The ski industry is frustrated with the pendulum swinging back and forth between administrations. It is not good for business.”

Ryberg has a much different perspective but he agrees with NSAA officials on at least one point when they say they are going to sue the Forest Service: Let the dispute play out in court. “It will be advantageous to the public’s interest to get the Justice Department involved in this matter,” Ryberg wrote in his letter to Udall, on which Bennet was copied. “It will provide them an opportunity to become familiar with the facts of the matter to help them determine if criminal prosecutions should be pursued, and to expedite acquiring title to water rights that justly belong to the American people.”

More coverage from Kevin Hoffman writing for The Mountain Mail. From the article:

The industry statement says the water rights clause enacted in November last year requires ski areas operating on forest service land to transfer ownership of many types of water rights to the United States government. The clause prohibits ski areas from selling or transferring ownership of some water rights acquired on private or non-federal land. Effectively the lawsuit is based on the association claim that the clause results in an unconstitutional taking of property without compensation and is a restriction that will have a significant and adverse effect on the value of water rights…

Monarch Mountain marketing director Greg Ralph said the lawsuit will not affect the local ski area much because it doesn’t use water rights to manufacture snow.

More coverage from Jason Blevins writing for The Denver Post. From the article:

The new water-rights regulation — already employed in three new ski-area permits in California, Washington and Colorado’s Powderhorn — revises a 2004 agreement that had the Forest Service and ski- area operators sharing ownership of some water rights. In an interview in late December, the Forest Service’s acting deputy chief, Jim Pena, said the revamped clause more closely mirrors the original 1986 permitting legislation and makes sure “we don’t sever the resource from the land.” The industry, however, argues the new clause prohibits ski areas from selling and trading a valuable commodity, reduces the value of the commodity and injures balance sheets. Vail Resorts reports water rights as intangible assets valued at $18.3 million…

Former Forest Service winter sports coordinator Ed Ryberg last week sent a letter to Sen. Mark Udall, D-Colo. Ryberg said the 2004 water rights clause was a “radical change to Forest Service direction” that “was a direct result of the ski industry exploiting lax regulatory environment that characterized the Bush Administration.”[...]

Colorado attorney Glenn Porzak, who has represented several ski areas and helped negotiate the 2004 water-rights clause, sent a letter to Udall rebutting “numerous inaccuracies” in Ryberg’s letter. 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. “The new clause impacts water rights on no ski area permit lands regardless of whether they are federal or private lands,” Porzak wrote in his Jan. 10 letter to Udall.

More water law coverage here.

Harris Sherman will say adiós to the USDA on May 8

Here’s the announcement from the USDA:

Statement from Under Secretary Harris Sherman

“After four years of having the privilege to work alongside the enormously talented, hard working people at USDA, and especially my colleagues in the United States Forest Service and Natural Resources Conservation Service, I am today announcing my upcoming departure from USDA.

We have worked together to accomplish tremendous things in the past four years. With the Forest Service, we developed a new Planning Rule for management of our national forests and grasslands, accelerated restoration of millions of acres of forests and watersheds, and supported traditional forest products and other uses of the national forests. We expanded recreation opportunities and supported thousands of recreation-related jobs, protected Native American sacred sites, and invested in our young people and veterans by giving them jobs and training opportunities. We worked with partners around the country to create new public-private partnerships, fostering an ethic of collaboration. In addition, we protected communities from catastrophic wildfires, supported State and private forest landowners, and conducted critical forest research.

With NRCS, we invested in landscape scale conservation from the Chesapeake Bay to the Everglades to the Bay Delta. We enrolled a record number of acres of private working lands in conservation practices, expanded the application of voluntary certainty and safe harbor agreements with individual landowners, introduced new programs and technology that will support the ability of private landowners to implement conservation practices and protect wildlife, and assisted Gulf Coast states and landowners in addressing water quality impacts to the Gulf of Mexico. We also played a leadership role in responding to natural disasters from Hurricane Sandy to the Deepwater Horizon oil spill.

I am so proud of what we have been able to accomplish. I thank the President and Secretary Vilsack for their leadership and for having given me the opportunity to serve my country in this role. While this has been a very difficult decision for me, I believe it is a good time to transition to new leadership and I have every confidence that my successor will continue to achieve the results that I’ve witnessed from NRCS and the Forest Service over these past years.”

Statement from Secretary Tom Vilsack

Over the past four years, Under Secretary Harris Sherman has led a comprehensive push to enhance and modernize the ways in which we conserve our forests and protect our natural resources. Under his leadership, USDA carried out a record level of conservation work alongside farmers, ranchers and forest landowners. He led the way to a modernized forest planning policy that recognizes the multiple uses of our forests, and will lead to more resilient forests and greater rural economic opportunity. Harris helped target our conservation efforts in priority areas, and forged new partnerships that have strengthened a collaborative approach to landscape conservation and forest restoration. As a result, even in a time of tighter budgets, USDA is in a position to continue achieving positive results in conservation for decades to come. I appreciate his service to our nation, and I wish Harris Sherman all the best in the future.

From The Grand Junction Daily Sentinel (Gary Harmon):

The Coloradan who has headed the U.S. Forest Service is leaving after a tumultuous four years when the agency did battle with ski areas and fought some of the state’s most destructive blazes. Harris Sherman, a former head of the Colorado Department of Natural Resources, will leave his post May 8 as undersecretary of natural resources and the environment in the Department of Agriculture. Sherman said now is “a good time to transition to new leadership” in the spot, which includes direct supervision of the Forest Service and Natural Resources Conservation Service.

He joins fellow Coloradan Ken Salazar, who served four years as secretary of the interior, in leaving the administration in President Barack Obama’s second term.

In his letter of resignation, Sherman listed a new forest planning rule as a major accomplishment, as well as protecting communities from the ravages of wildfires. Sherman brought “Colorado common sense to the Obama administration and its management of our national forests and public lands, which create jobs and are a big part of our high quality of life,” said U.S. Sen. Mark Udall, D-Colo. Udall lauded in particular Sherman’s work on the Ski Area Recreational Opportunity Enhancement Act, which allows ski areas to increase tourism and job creation throughout the year.

During Sherman’s tenure, the Forest Service also became embroiled in a court fight with the National Ski Area Association over the agency’s demand that ski areas turn over new water rights in order to obtain permits to operate in national forests. A federal judge ruled that the Forest Service had failed to involve the public in drafting the directive and ordered the agency to reconsider the directive and seek public comment. The Forest Service has yet to announce plans for public meetings to discuss the directive.

From The Denver Post (Jason Blevins):

“As you know, I am a Westerner at heart and, after four years, I am feeling a strong ‘tug’ from that direction, particularly from my family in Colorado and California,” he wrote. “Although this has been a difficult decision for me, I think it is a good time to make a transition.”[...]

In his letter to Forest Service employees, Sherman outlined his agency’s achievements over the last four years, including forest planning rules, land conservation, public-private partnerships that assisted in forest and watershed restoration projects, expanded recreation opportunities at ski areas and streamlining review and approval processes. “We worked with partners around the country to create new public-private partnerships, fostering an ethic of collaboration,” he wrote. “I marvel that in the face of declining budgets, record fires and temperatures, and challenging forest health conditions, we have achieved so much.”

Sherman’s departure comes as the Forest Service installs sequestration budget cuts and begins harvesting public input on a controversial plan to control water used by ski areas on public land. Sherman said he will remain at the USDA through May 8 to assist in the transition toward a new undersecretary.

House Joint Resolution 13-1044 clears House Agriculture, Livestock and Natural Resources Committee

From the Sterling Journal-Advocate (Marianne Goodland):

The committee unanimously approved House Joint Resolution 13-1004, which encourages the U.S. Department of Agriculture Forest Service to withdraw a 2012 directive that requires ski areas to turn over their water rights, without compensation, for federal lands leased from the Forest Service.

HJR 1004 points out that federal law requires federal agencies to abide by the water laws of the states in which federal lands are located. However, according to resolution sponsor Rep. Jerry Sonnenberg (R-Sterling), the Forest Service drafted the 2012 directive in violation of that law, known as the McCarran Act.

The National Ski Areas Association filed a lawsuit against the Forest Service over the directive, and a Denver District Court judge recently ruled in favor of the NSAA, but only on procedural grounds and not on the substance of the directive. According to testimony in Monday’s hearing, the judge told the Forest Service that “they didn’t do it right” when they issued the directive without public input, a violation of federal administrative procedures.

Meanwhile, here’s the USFS release about the public meetings this spring (Chris Strebig):

The U.S. Department of Agriculture Forest Service announced today a public process to develop a directive regarding water rights on National Forest System lands that have ski areas and other permitted uses. The Forest Service plans to begin the public process this spring.

“Establishing an inclusive process on this important issue will help meet long-term goals,” said Rocky Mountain Regional Forester Daniel Jirón. “Maintaining the water with the land will ensure a vibrant ski industry, and resilient and healthy national forests and mountain communities into the future.”

Regional Forester Jirón testified today before the Colorado General Assembly House Agriculture, Livestock and Natural Resources Committee at the Colorado State Capitol in Denver. The Committee scheduled the hearing to address water rights and ski areas brought up through Colorado House Bill 13-1013 and Colorado House Joint Resolution 13-1004.

On December 19, 2012, the United States District Court for the District of Colorado in National Ski Areas Association, Inc. v. United States Forest Service ruled to vacate the 2012 Forest Service directive on ski area water rights. The Court declined to rule on the substance of the Forest Service directive, but indicated the Agency should proceed with public notice and comment for this type of directive.

The Forest Service Directive System consists of manuals and handbooks that codify policy and provide administrative direction for Forest Service employees to manage National Forest System lands.

“Together, we can find solutions that support a strong ski industry, keep the water with the land to sustain local communities, and ensure the long-term viability of this unsurpassed winter recreational experience,” said Jirón. “We think it is a good idea to engage the public and communities to map out next steps on this issue.”

The National Forest System lands comprise 192 million acres of forest and grasslands in 43 states. The Forest Service estimates that downhill skiers and snowboarders at 22 ski areas on national forests in Colorado contribute approximately $1.5 billion annually to Colorado’s economy.

More 2013 Colorado legislation coverage here.

‘Why would a ski area sell off water rights?’ — U.S. District Judge William Martinez

Oral arguments in the lawsuit brought by the National Ski Areas Association against new permit requirements from the U.S. Forest Service were heard on Thursday. Here’s a report from Jason Blevins writing for The Denver Post. From the article:

On Thursday, U.S. District Judge William Martinez entertained oral arguments from both sides in a case that could decide the fate of hundreds of millions of dollars worth of ski-area water rights. Citing 140 years of federal laws and court decisions, NSAA lawyer Zeke Williams argued the agency overstepped its authority with the new directive, which he called a “sea change in agency law.”

“The agency can point to no statute that authorizes it to condition use and occupancy permits on the permit holder assigning to the Forest Service property that is not federal property,” Williams said.

The Forest Service says it changed the law to prevent ski areas from selling water rights connected to federal land…

“Why would a ski area sell off water rights and leave itself with insufficient water to operate a ski area?” he said. “Then you are not a ski area anymore.”

Williams argued that the Forest Service rule was a “draconian and punitive solution to a hypothetical problem.”[...]

Williams on Thursday argued that the agency violated the Federal Administrative Procedural Act by not offering legal support for the rule and not soliciting public input on the new rule…

“In the history of this policy, it is very clear that we are not deviating from the overall history of the policy,” Samford said. “If you have a federal permit on federal land and you want water rights in service of that permit you need to claim them in the name of the United States.”

More coverage of the lawsuit here.

Snowpack news: Statewide snowpack is approximately 73% of average, South Platte — 81%, Rio Grande — 83%

Click on the thumbnail graphic for yesterday’s statewide snowpack map from the Natural Resources Conservation Service.

Click here to zero in on your basin of interest.

Meanwhile here’s a summary of snowmaking efforts around the west from The Durango Telegraph:

With warm temperatures and scarce snow, winter has been long for snowmaking crews at most Western ski resorts. For many, the work typically ends by Christmas or at least early January.

Not this year. Snowmaking continues even as storms have now arrived.

With the rockiest start to winter in decades, many resorts will probably re-evaluate investments in water, snowguns and other infrastructure, say ski industry officials.

“Snowmaking is something you can never take for granted,” says Michael Berry, president of the National Ski Areas Association and a former supervisor of snowmaking crews. “It takes constant upgrading, constant improvements, constant effort to improve your water rights. And just when you think you don’t need it, you will need it the most,” he added.

Spanked by two hard-luck winters in 1976-77 and 1980-81, most Colorado destination ski areas invested heavily in snowmaking.

This investment paid off this year for Steamboat. Despite warm nights that idled snowmaking crews in November and December, the ski area had 1,900 acres, or 65 percent, of the terrain open at Christmas. That was among the best in Colorado. Only two ski areas, Durango Mountain Resort and Wolf Creek, both in the southwestern tier, were 100 percent open.

Last summer, Steamboat bought seven new energy-efficient snowmaking guns, which use 30 percent less energy.

Water is another vital component of snowmaking. At Breckenridge, where snowmaking continued as of Jan. 21, the ski area had consumed 900 acre-feet, compared to the normal 700 to 750 acre-feet, according to Glenn Porzak, the resort’s water lawyer.

Not all resorts have substantial snowmaking, however. Particularly the ski areas along the crest of California’s Sierra Nevada. which suffered almost no natural snow and just thin ribbons of man-made.

“I don’t think I have ever been in a mountain area in the latter of part of January where there was so little snow,” said Porzak after a ski industry meeting at Squaw Valley. “It was brutal.”

Porzak has helped ski areas in Western states secure water rights for snowmaking since the 1970s. After every significant drought, ski areas have invested heavily in additional snowmaking capabilities. The more well-heeled have invested even when no drought is imminent.

This year, Porzak expects ski areas to engage in an intense re-evaluation of water needs and snowmaking infrastructure. The need is most obvious in Lake Tahoe, where fresh snow is often measured by the foot, not the inch.

This year, however, Squaw had just two runs covered with snow as of Jan. 19, the day before natural snow started arriving. Heavenly and Northstar both have sophisticated snowmaking systems, which put them in better stead for the tough early season this winter, says NSAA’s Berry.

National Ski Areas Association promises lawsuit over USFS rule intended to keep water rights with the land on ski hills

From ESPN (Jason Blevins):

After intense lobbying — which included stern letters from a host of congressman and senators — last week the Forest Service rebuffed the calls for a moratorium and issued the new rule as an 18-month moratorium. The resort industry, led by the 121-resort National Ski Areas Association, answered with a promise to sue the agency, which hosts nearly 90 percent of all U.S. ski areas.

“This has to do with water rights in general and how water rights are treated,” said Michael Berry, president of the NSAA. “We believe they have crossed the rubicon and this has the potential to be very, very impactful. We have no guarantee that they will continue to use the water for purposes of ski area business.”

Since 2004, the Forest Service has co-owned water rights secured by ski areas operating on federal land. Before that, under the 1986 National Forest Ski Area Permit Act, ski area water rights on public land were owned by the federal government. So really, said Jim Pena, acting chief of the Forest Service, “this isn’t new.”

“This permit clause is intended to clarify some of the gray areas,” Pena said. “This was a result of lots of discussion with the ski industry over the last year. This requires that water rights on National Forest System land remain with the federal government so we don’t sever that resource from the land.”[...]

Pena said his agency has already issued three new operator permits — in Colorado, Washington and California — with the new clause and those were accepted without any problems. “If a permittee develops water for the activity on (state) public land, they are required to develop that water in the name of the state. It’s the same with National Parks and the Fish and Wildlife Service as well,” Pena said. “It all goes back to wanting to make sure those public resources are kept together and we want to provide that stability for the long term.”

More coverage from Katie Klingsporn writing for The Telluride Daily Planet. From the article:

The NSAA represents hundreds of ski areas across North America, Telluride Ski Resort among them…

“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,” Association president Michael Berry told the AP.

The Telluride Ski Resort operates under a permit from the USFS, but it currently has a 40-year permit and so is not in imminent danger of the effects of the USFS clause, said Dave Riley, CEO of Telluride Ski & Golf (Telski).

However, Riley said Telski supports NSAA’s efforts to reverse the measure…

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.

More water law coverage here.