Ski resorts would sue USFS for water rights
By Anne Knowles
Only a handful of people showed up for a local open house conducted this week by the U.S. Forest Service to get feedback on its controversial stance on water rights for ski resorts.
The Thursday afternoon meeting in the Forest Service office in South Lake Tahoe followed earlier and similarly attended meetings this week in Denver and Salt Lake City. A fourth open house is scheduled next week in Washington, D.C.
The water rights issue came to a head last year in Colorado after the National Ski Areas Association filed suit against the federal agency, saying that a clause in its permits to operate ski resorts on Forest Service land resulted in an unconstitutional seizure of property.
Heavenly’s robust snowmaking requires several acre-feet of water each year. Photo/LTN file
The clause requires that water rights acquired by the business to operate the ski resort to be held in the name of the United States.
“The industry says water rights are a state issue and a significant asset,” Jim Pena, associate deputy chief with the Forest Service, told Lake Tahoe News at the open house. “We see it as an issue of permit compliance.”
In December, the U.S. District Court in Colorado decided the case and threw out clauses included in 2011 and 2012 permits, saying the Forest Service failed to follow administrative procedure while developing them, which requires a public comment process.
Those permit clauses follow a series of evolving provisions starting in 1982 that have resulted in a mishmash of water rights – 168 owned by the ski resort operators, 65 owned by the Forest Service and 10 owned jointly — throughout the 116 Western ski resorts located on Forest Service land.
The issue is most significant in Colorado where 22 ski resorts own 112 water rights. In California, 25 resorts own three water rights, the Forest Service owns 14 and one is jointly owned. In Nevada, there are three resorts with one right each owned by the ski resorts and Forest Service, according to the USFS.
So the Forest Service is now trying to follow procedure and craft a new clause that would still require water rights to be placed under Forest Service control because the agency says it’s important to keep the water connected to the land.
“Our objective is to find a way to make sure that the water is available through the life of the permit,” said Pena. “The local community is dependent on the ski area and we want to make sure they are viable.”
The agency’s concern is if ski resorts change hands or go bankrupt, the water rights, which can be sold separately and may not be available for future operators.
The NSAA says those concerns can be addressed without transferring water rights to the government.
“First, the ski area can be required for any future project to demonstrate it has sufficient water or will obtain sufficient water,” said Geraldine Link, director of public policy for the Lakewood, Colo., association. “Second, upon sale, the current owner would offer an option that water rights would go to the buyer.”
The option, the exact details of which is to be determined, would provide that the resort buyer have the first shot at buying the seller’s water rights at fair market value. In the case of a bankruptcy or liquidation of the business, the option would be offered first to the local community or government and if it declined then to the USFS.
“That’s the way to keep water with ski resort without taking property,” said Link.
The ski resorts, which are affected in varying ways, are standing with the NSAA.
“We’ve been following the lead of the NSAA,” said John Rice, general manager at Sierra-at-Tahoe, which is located on Forest Service land. “It isn’t a big issue for us. We have the right for recreational use and for fire protection and domestic use. We have three wells. … We don’t have much of a snowmaking operation so it’s just not much of an issue here.”
Representatives from Vail Resorts and Squaw-Alpine did not return phone calls.
The USFS is taking public comment now via email at skiareawaterrights@fs.fed.us. The agency plans to publish a proposed clause in the Federal Register in August, followed by a 60-day public comment period. A final clause will be published in February 2014 and included in permits thereafter.
“I’m optimistic we’ll craft a proposal that’s different and clear and easy to implement,” said Pena.
But if it still requires water rights to be acquired in the name of the United States, the industry won’t be happy.
“If the Forest Service issues a clause that requires giving up water rights, the association will challenge it in court,” said Link.
It seems to me that if the lease allows the ski resort to use water, they should be able to do so only on the property. They should not be allowed to sell or otherwise transfer water to another user or location. They should not “own” the rights to the water as it is not private land.
I agree with Tahoe Advocate… The water is with the land, and water rights should not become privatized.
There is a whole branch of law dealing with water rights. They are an asset, and have been since Europeans showed up. This is nothing new. What is new is that the USFS now feels the best way to protect a valuable asset is to make it worthless. These ski resorts are going out and buying these water rights in many cases. So Irish, your comment that water rights should not BECOME privatized is a little backwards. Pure and simple this is theft. The end goal of the USFS makes sense, but that just means put an option on the water rights, yes that reduces value, but it does make sense.
Sorry Dear “John” – we are talking public land here – the ski resorts are trying to “gain” rights by virtue of getting an operating permit – how would you like me to rent your house and then say by doing so, I now own the rights to any water or minerals on it? It’s legally ludicrous and just one more evidence of the transition of the ski industry from running ski resorts to become money managers and real estate developers. SLT, you wont be able to say no one warned you as you eventually sell your soul to Vail Inc.
Ljames, this statement is exactly accurate “The clause requires that water rights acquired by the business to operate the ski resort to be held in the name of the United States.”
“The industry says water rights are a state issue and a significant asset,”
The entire point is the ski resorts are going out into open market and acquiring these rights. Yeah they can use them on the ski resort, or on a ranch or homes. They are an asset.
Ljames, maybe I have sold my soul, but it seems to me that the entire world revolves around being able to buy assets and save them for the future. If not, what are you planning on retiring with? So its totally fine for the government to come in and take an asset of yours? Unbelievable.
My retirement will be paid for just like my whole life has been. When you inherit lots of money and property’s you just make sure nobody gets any of your assets.. like the govt and obama trying to take our guns and freedom and liberty.
Ljames, your analogy is a bit off base. It would be more accurate to say “how would you like to rent a house, and then after signing the lease, the landlord comes to you and says I’m going to change the terms of the lease. Now, because you are parking your car on the property that you are leasing from the landlord, you are required to transfer title and ownership of your car to the landlord”.
It needs to be addressed.
Yes A ski area needs water rights for the Facilities and (Snow Making) Seems reasonable.
But in the new world you have Ski Corporations who own and operate Ski Area’s But also get into Real estate development near the ski area. See where this is going?
I would also propose that water used for Snow Making, is much different that water for human consumption and then flushed through a sewer system. Much different.
Yes this need to be nailed down so that Ski Areas on Public land have a guarantee of Water for the Ski area. But cannot transfer those rights to other commercial uses that directly impact the downstream community
This was so much better when the profit made operating a Ski Area was (Good Enough)
Now large Corporations buy Ski areas as an enhancement to Real estate development.
They do not not care about the Ski area or resort area once they get the profit from the Real estate development