Ski industry suing Forest Service over water
Vail, CO Colorado
EAGLE COUNTY, Colorado – A National Ski Areas Association lawsuit against the U.S. Forest Service over ski-area water rights could have a huge local long-term impact, according to the association’s water attorney, who also represents Vail Resorts.
The attorney, Boulder-based Glenn Porzak, testified before Congress late last year about the Forest Service’s new regulations that require the transfer of privately held water rights from ski resorts to the Forest Service. Porzak said the new regulations circumvent the Forest Service’s legal authority.
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.
“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, snowcats, or snowmobiles, or even exercising eminent domain without any compensation,” Porzak said at a Congressional hearing before the House Natural Resources Committee’s Subcommittee on National Parks, Forest and Public Lands in November. “It is unprecedented to require the ski industry to surrender ownership of valuable assets to the U.S. government without any compensation.”
Water is critical for ski areas
The Eagle Park Reservoir, which is located at the headwaters of the Eagle River near Leadville, is an example of the kind of money that has been spent for water rights. Vail Resorts, then known as Vail Associates, paid $6 million to help restore that reservoir after it had been a mine tailings, or contamination, pond, Porzak said. The local water authorities paid another $6 million for the effort for a total of $12 million in restoration costs.
The Forest Service doesn’t comment on pending litigation and the local Eagle/Holy Cross Ranger District would not comment on the matter. The Forest Service has told the Denver Post previously that the new water rights would protect ski resorts’ long-term viability because the rights would be tied to the land, not the resort operators.
But that argument doesn’t hold water for Porzak, who said the new clause doesn’t guarantee that the Forest Service will use the water for ski industry purposes.
“(The Forest Service) is not agreeing they’ll limit the future use to the ski areas,” Porzak said.
Porzak described to members of Congress at the November hearing why a requirement that would essentially give hard-earned water rights over to the federal government would be such a detriment to ski resorts.
“Ski areas use water for snowmaking, lodging facilities, restrooms, culinary purposes and irrigation,” Porzak said in his testimony. “Water is crucial to ski area operations and ski area water rights are considered valuable assets to ski area owners.”
The new clause has already gone into effect at three ski areas, including Powderhorn near Grand Junction, which Vail Mayor Andy Daly bought last August. It’s something that has caught the attention and concern of Colorado Rep. Scott Tipton, a Republican who represents the Western Slope.
Tipton wrote a letter to Forest Service Chief Tom Tidwell in November stating that Powderhorn was forced into the new regulations and urged the Forest Service to return to the 2004 water clause.
“It is my hope that a more collaborative water clause which comports with state water law can be adopted, and allow for the continued use of these lands with full protection of private property rights,” Tipton wrote.
‘Larger than just ski areas’
Porzak agrees that the new clause threatens the current water rights allocation system, which happens at the state level.
“This issue is larger than just ski areas,” Porzak said. “It would impact all entities that have water rights associated with any National Forest System lands including cities and counties, owners of recreation residences, marinas and summer resorts, and other businesses such as ranching, mining, or utilities.”
Porzak is hoping the court will file an immediate injunction that reinstates the 2004 regulations which would at least put the new clause on hold, he said.
Otherwise, ski area permits up for renewal or those requiring amendments could face the new terms. Resorts typically need to amend their leases when they make improvements – such as Vail Mountain’s new gondola set to be built this summer or the new women’s World Cup course scheduled to begin construction at Beaver Creek this summer – and Porzak said other resorts seeking amendments have faced the water rights clause head-on.
Winter Park, for example, needed new financing which required Forest Service approval on the new terms. The Forest Service wouldn’t sign off on it until it got the new water rights clause into the lease amendment, Porzak said.
“As time goes on, more and more ski areas will need amendments,” Porzak said. “Even though the (Vail and Beaver Creek) permits are in place for another 20-plus years, any time they would need a modification or renewal, that’s when the Forest Service would have the control.”
Community Editor Lauren Glendenning can be reached at 970-748-2983 or email@example.com.
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