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Congressional Bill Pits Ski Industry, Forest Service Over Federal Water Rights Ownership

Copper Mt. Snowmaking

It appears unlikely that a bill prohibiting the transfer of private water rights to the U.S. Forest Service as a condition of a federal land lease will pass the U.S. Senate – but the fight has prompted the feds to promise to issue a revised regulation this spring.


The issue over if privately held water rights can be in a free market has gotten ski resort owners up in arms all over the West – most of whom rely upon surface water rights to fuel snowmaking. 


The question, which went through federal court in Denver in 2012, essentially asks, “Can the federal government take control of state-issued water rights held by independently by a resort owner?” 


It puts the U.S. Forest Service, which issues special-use permits to some 120 ski areas on federal land, and the commercial ski industry squarely at odds.


The Forest Service says the regulation of water rights is a return to an original policy of the 1986 National Forest Service Ski Area Permit Act and keeps water connected to public land. The feds say they fear changes in ownership or cessation of a winter sports business on federal land would tempt transfer of water rights off that land – and restrict its use on the watershed from which it originates.


The permit act policy was revised in 2004 to allow resorts to jointly hold water rights. The National Ski Areas Association (NSAA) characterizes the issue as a private property “taking.”


“While ski areas have enjoyed a long and successful partnership with the Forest Service spanning almost eight decades, Forest Service water policy is an issue on which we simply do not agree,” NSAA President Michael Berry said in a letter to supporters in Congress. “We have invested too much in water rights to simply hand them over to the federal government.”


Information on private water rights held by ski area owners is not readily available, but clearly the amount is significant enough to promulgate a bill in Congress – and important enough to draw a veto threat from the Obama White House. 


In an editorial, the Denver Post opposed the bill, saying, “The U.S. Forest Service is attempting to re-establish stewardship of rights for water that originates on federal land. The goal is to ensure water stays with the public land used by resorts, even if ownership of the resort changes.”


The business-oriented Committee of Natural Resources likens the federal plan to the Department of Motor Vehicles requiring transfer of ownership of your vehicle’s transmission before issued a license.


“The water used to make snow is granted to the ski area by the state, for which the ski area pays market value,” the organization said. “In an effort to own and control water that does not belong to them, federal agencies are now seeking to insert requirements in these permits to hand over water rights to the federal government. Ski areas then face a choice of either forfeiting its valuable property right that’s necessary to operate, or lose their permit and shut down. Others face the same threat, including ranchers who have operated for a century.”


The bill-tracking website GovtTrack.org gives the bill only a 3 percent chance of passing the Senate, despite last-minute amendments offered by NSAA to add firmer streamflow protection in the bill.


Photo: Water rights for snowmaking at issue (iagoar/Copper Mt.)

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