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.