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Judge sides with ski areas, rejects Forest Service water rights rule

post #1 of 4
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Update to this thread:  http://www.epicski.com/t/108998/ski-industry-sues-the-forest-service-over-water-rights




A U.S. District judge on Wednesday overturned a controversial new water law requiring ski area permit holders on public land to turn over water rights to the Forest Service.

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.

If the agency chooses to revive the issue, NSAA public policy director Geraldine Link said would "definitely be a more public process."

"I think a lot of different entities will weigh in this time. This had much broader issues than just the ski industry. I don't expect the Forest Service will issue the same clause next time around," she said. "This really threatened the administration of state water law and I would be surprised if the state didn't weigh in."

The Forest Service argued that the new clause - which required ski area permit holders to transfer water rights secured by areas operating on public land to the federal government - kept the natural resource connected to the land. In mid-November oral arguments before Martinez, the Forest Service argued it merely returned permit water policy to long-held conditions imposed before a 2004 change in the rules.

Still, Martinez's ruling noted that during the last three decades, the Forest Service "did not follow a uniform policy and did not require federal ownership of water rights in all ski area permits."

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. The association's January 2012 lawsuit also argued the new water regulations violated the National Forest Management Act and the Regulatory Flexibility Act. The NSAA said the agency water rules impacted 121 ski areas in 13 western states.

The Forest Service admitted it did not follow the public review and comment guidelines of the Administrative Procedural Act because the new water rules were simply a regulatory tweak, not a consequential legislative rule change.

Martinez, who in October last year cited improper environmental review in ordering the U.S. Department of Energy to stop permitting uranium mining and milling at 31 leased sites in western Colorado, ruled the Forest Service violated all three regulatory acts when it issued the new water 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.

The Forest Service midday Wednesday was checking on a response to Martinez's ruling.

Colorado plays a large role in the water issue, said Melanie Mills, whose Colorado Ski Country trade group includes 21 of 25 of the state's ski areas. She said ski areas were ready to work with the agency to forge water rights rules that did not impact water purchased off federal lands but used on federal lands.

"There is plenty of room for agreement. Plenty of common ground," Mills said. "Our belief is that the focus should be on the water on the permit area itself. Talking about water that a permittee might divert from other areas off-permit or might purchase or lease through other arrangements, that gets into area that folks beyond ski areas will be worried about."

Wednesday's ruling is not that surprising. At the Nov. 15 hearing, Martinez grilled Forest Service attorneys on the idea that a ski area would sell essential water rights.

"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."

Jason Blevins: 303-954-1374, jblevins@denverpost.com or twitter.com/jasontblevins

Read more:Judge sides with ski areas, rejects Forest Service water rights rule - The Denver Posthttp://www.denverpost.com/breakingnews/ci_22225523/judge-sides-ski-areas-rejects-forest-service-water#ixzz2FZC44jio
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post #2 of 4
Thread Starter 








Forest Service begins public review of ski area water rights rules

POSTED:   04/17/2013 02:05:09 PM MDT
UPDATED:   04/18/2013 06:21:37 AM MDT
By Jason Blevins
The Denver Po


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 successfullysued 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."

Tuesday's meetings — billed as "listening sessions" by the Forest Service — are a first step in a court-ordered process. A U.S. District Judge in December sided with ski areas and overturned the Forest Service water clause,ruling the agency violated federal rule-making procedures. The judge required the agency to vet the new plan with more public input. (The same court on Tuesday ordered the Forest Service to pay the NSAA $125,000 in attorney fees incurred in the water-rights lawsuit.)

"Taxpayer dollars are being used in defense of an unlawful federal water grab," Link said.

The Forest Service first launched the new water clause in 2011 and again in 2012 with hopes of "making more clear" a 2004 water clause that allowed ski areas and the agency to share joint ownership of water rights, Pena said.

The agency issues 40-year ski area permits and it wants water to remain available for the permitted activity for the long-term, Pena said.

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."

Bill Killebrew, the co-owner and general manager of Boulder County's Eldora ski area, was at the Tuesday meeting. His ski area on public land covers all its groomed terrain with snow made from water rights held on private land off the ski area. Early iterations of the now-overturned water clause might have forced the transfer of those water rights to the Forest Service.

"Water is a vital issue to ski areas," Killebrew said.

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."

The Forest Service plans to prepare the new water clause in May and begin further public input. The clause is scheduled for publication in the Federal Register in August and would be revised in November following additional public comment. The new clause could be included in ski area permits - when permits are reissued or modified - in February 2014.


Read more:Forest Service begins public review of ski area water rights rules - The Denver Posthttp://www.denverpost.com/breakingnews/ci_23045851/forest-service-begins-public-review-ski-area-water#ixzz2QqGn1lNn
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post #3 of 4

There's no way the Forest Service is going to attach those private water rights to the public permits without paying for them.  There's a very long history of case law and numerous decisions by the Supreme Court.  The Forest Service is, in my opinion, wasting their and our time.



post #4 of 4

What exactly is: "a 2004 water clause that allowed ski areas and the agency to share joint ownership of water rights"? Is this the crux of the matter?

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