State legislator loses water fight with Forest Service bigwigs

By Joe Hanel
Journal Denver Bureau

DENVER - Lobbying from the very highest level of the U.S. Forest Service has scuttled a state representative's bid to keep the federal government from claiming water rights at ski areas.

Rep. Jerry Sonnenberg, R-Sterling, said he expects his House Bill 1013 to die without a vote in May, when the Legislature adjourns for the year. His bill would have forbid the Forest Service from demanding that ski areas sign over their water rights in return for approval of their permits to operate on federal land.

"I think it's important for the state to tell the feds to stay out of our business," Sonnenberg said.

Colorado law allows water right holders to sell the right to whomever they choose. But the Forest Service wants to make sure water used for snowmaking doesn't get sold to condo developers or others who would use it for purposes other than skiing.

"We're committed to the long-term health of recreational opportunities and economic opportunities that the ski resorts provide for Colorado," said Chris Strebig, spokesman for the Forest Service's regional office in Golden.

But Sonnenberg's bill would have amended Colorado water law to forbid the U.S. government from requiring anyone to surrender their water rights in order to get a land-use permit.

Legislators got calls urging them to kill the bill from Harris Sherman, who is the undersecretary of agriculture and the federal official who oversees the Forest Service. Many legislators know Sherman personally, because he directed the state Department of Natural Resources before he went to Washington.

There are two sides to the story.

Colorado law treats water rights as a property right. People who own the rights can use them or sell them as they please, as long as a water court approves of the use of the water. Sonnenberg says the U.S. government has no business adding extra conditions.

The Forest Service, on the other hand, says it is merely looking out for Colorado's winter recreation economy, which depends heavily on water for snowmaking.

The issue isn't limited to ski resorts. The Forest Service conditions on water rights can apply to grazing leases to ranchers, as well.

Rep. Claire Levy, D-Boulder, opposes Sonnenberg's bill, which she thinks oversteps the state's authority.

"It's a state law on what the federal government can do on a special use permit or lease on federal land. I don't think Colorado has the power to pass a law to that effect," Levy said.

Legislators worked out a deal, which both Levy and Sonnenberg confirmed: The House will vote on a symbolic resolution that disapproves of the Forest Service's practice on water rights, but Sonnenberg's bill will "die on the calendar" - legislative slang for being killed without a vote on the last day of the year.

"One is better than nothing," Sonnenberg said. "If we get the resolution, we can at least send a message, and I'm OK with that. I would rather have sent two messages."

Ski resorts sued the Forest Service over its policy and won last December when a Denver judge overturned the Forest Service's decision, citing "severe" problems in adopting the rule without public notice.

So the Forest Service is trying again to adopt a rule to tie water rights to the land. Next week, it is sponsoring a series of public meetings in Lakewood, Salt Lake City and Lake Tahoe, Calif., to solicit public input on the policy.

Sherman announced earlier this week that he would step down from his U.S. Department of Agriculture post in early May.

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