U.S. Forest Service Sets Final Water Rights Rule

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U.S. Forest Service Sets Final Water Rights Rule

SAM Magazine—Denver, Colo., Jan. 6, 2016—A 2011 proposal by the U.S. Forest Service to require ski resorts to transfer water rights to the federal government has been abandoned by the agency. Instead, it will require only that resorts prove there is enough water available to support skiing through each permit term.

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Resorts will have to enlist a hydrologist to review water plans and inventory all sources of water as a condition of receiving permits to operate on public land.

The Forest Service had argued that its earlier language would assure the water would never be separated from the land. The agency feared that as the value of water rights climbs in the arid West, ski areas might see more economic benefit in selling water rights than in using the water for snowmaking and ski operations.

The National Ski Areas Association sued the Forest Service in 2012 over what it called an illegal taking of private property.

The ski industry applauded the final decision, which was released last Wednesday. Colorado U.S. Senator Michael Bennet did as well, issuing the following statement:

"Water is a precious resource on which Colorado's ski areas rely for economic sustainability and growth. We are lucky to live in a state with world class skiing right in our back yard, and we want to keep it that way. The final directive, published today, seems more balanced than the Forest Service's original directive. We are hopeful that it will be workable for all sides by protecting private water rights and keeping Colorado's ski resorts sustainable long into the future."

The new directive reads, "The final directive focuses on sufficiency of water to operate ski area on NFS lands. This final directive will promote the long-term sustainability of ski areas on NFS lands by addressing the long-term availability of water to operate ski areas before permit issuance."

The agency acknowledged that ski resorts in Colorado and New Mexico often spend millions of dollars on water projects. Many Western companies, not just resorts, consider water rights to be business assets.

In an important point raised by the ski resort industry since the water clause was proposed in 2011, the Forest Service acknowledged that water rights, especially in the West, are a matter of state law.

The Forest Service oversees 122 ski areas that account for 23 million visits a year.