Western water under assault, US reps say
October 3, 2013
EAGLE COUNTY — The federal government is asking ski areas for their water rights, and Eagle County's two U.S. congressmen are fighting against it.
Scott Tipton and Jared Polis are battling a U.S. Forest Service policy that would force ski areas and other stakeholders to turn over the private water rights that ski areas need to operate. The Forest Service is requiring it before they'll renew the permits that ski areas need to do business.
Tipton, a Western Slope Republican, and Polis, a Boulder Democrat, introduced the Water Rights Protection Act. Their congressional districts split the valley: Polis in the east and Tipton in the west.
Polis said Colorado's 2nd Congressional District is one of the world's most desirable ski destinations. It's home to Vail, Breckenridge, Keystone, Winter Park, Loveland, Eldora, Arapahoe Basin and Copper Mountain. The rest of Colorado's ski areas are in Tipton's 3rd Congressional District.
The federal government has already done something similar to one Colorado ski area, Powderhorn on Western Colorado's Grand Mesa, and may have Breckenridge in the crosshairs.
Vail local Andy Daly is part of the group that bought Powderhorn.
"We were forced to turn over all the water rights for all the water that originates on the forest land," Daly said. "We're waiting for a new water policy that hopefully will be negotiated between water users and the U.S. Forest Service."
The feds have done the same thing to California's Alpine Meadows and Washington's Stevens Pass.
The Forest Service counters that water rights established on national forest land should be tied to the land, and that the federal government should own those water rights.
Not the way of the West
"That's not the system we use out here in the West," said Geraldine Link, the National Ski Areas Association's director of public policy. "We were pleased to see a bipartisan bill. To us, this is about one of the most crucial issues in the West — water."
The NSAA filed a lawsuit in federal court.
No federal statute gives the Forest Service the authority for the water, and the U.S. Supreme Court has ruled repeatedly that water is regulated by the states, Link said.
"If the Forest Service wants to own water rights, they need to get in line like everyone else and acquire them under the requirements of state law," Link said.
The Forest Service says the policy is designed to keep ski areas from selling water rights for other purposes. Tipton said that has never happened, pointing out that ski areas use most of their water for snowmaking.
Polis said concern about ski area water rights being sold or moved is misguided. Ski areas have already offered to provide successor owners with an option to purchase sufficient water if that area were to be sold.
Many ski areas such as Vail lease land from the Forest Service under special use permits. Ski area permits generally last 40 years.
To renew those permits, the feds want the permit holders to hand over their water rights without being paid.
The NSAA's lawsuit claims the Forest Service has no legal authority to take private property without paying the owners. The ski areas argue that the water rights are worth tens of millions of dollars.
"Long-held state water law protects the many uses vital to Colorado and Western states, from recreation to irrigation, domestic use and environmental protection," Tipton said. "Unfortunately, all of this is being undermined by federal intrusion that creates uncertainty and jeopardizes the livelihoods of communities, individuals and businesses responsible for thousands of jobs. To undermine this system is to create risk and uncertainty for all Western water users."
The outcome of the ski areas' lawsuit could set precedent for recreation, utilities, logging, mining, oil and gas, and grazing, Tipton said.
"Ski areas are important drivers of Colorado's recreation and tourism economy, and in order to thrive, ski areas need to be able to plan for the future," Polis said.
Ski areas are in the best position to decide what water rights they need for their future operations and make a significant investment in water rights, Polis said.
"If these businesses cannot own the water they purchase, they are forced to operate in an uncertain climate that impedes their ability to raise capital, hinders long-term planning and reduces investments in future projects," Polis said.
A federal judge ordered the Forest Service to take public comment on policy changes. The new Forest Service policy is expected in a month or so, Link said. After that, the public will have 60 days to comment.
Staff Writer Randy Wyrick can be reached at 970-748-2935 or firstname.lastname@example.org.
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