Lawmakers intervene in ski resort water war

Ability to sell snowmaking water rights at issue

Crew member Rory James watches snowmaking operations near the base of Purgatory at Durango Mountain Resort last November. Ski areas are taking exception to a policy instituted by the Forest Service in 2011 that bars them from selling their water rights to anyone except future operators of the ski area. Enlargephoto

SHAUN STANLEY/Durango Herald

Crew member Rory James watches snowmaking operations near the base of Purgatory at Durango Mountain Resort last November. Ski areas are taking exception to a policy instituted by the Forest Service in 2011 that bars them from selling their water rights to anyone except future operators of the ski area.

DENVER – An old-time water war is playing out on Colorado’s ski slopes, courtrooms and the state Capitol, pitting ski areas against the U.S. Forest Service.

The Forest Service wants to make sure water that ski areas use for snowmaking never gets sold to developers or anyone other than ski-area operators.

But the idea isn’t popular at the state Capitol, where legislators have told the feds, in effect, “That’s not how we do things ’round these parts.”

State legislators want to send a message to the Forest Service to keep its hands off private water rights, but Democrats are wary of fanning the flames of old resentments against the federal government.

“It’s just unfathomable that the federal government would come in and say, ‘in order for you to leave your ski resort on this mountain, you have to give us all your water rights,’” said Rep. Jerry Sonnenberg, R-Sterling.

The Colorado Constitution treats water rights as property rights that can be sold and used anywhere inside the state as long as a judge approves of the change of use from, say, snowmaking to a condo development.

In 2011, the Forest Service issued a policy that forbids ski areas from selling their water rights to anyone other than the next operator of the ski area.

Ski-area owners say they have gone to great expense to secure their water rights, and they should be able to sell them if they please.

Foresters say they’re just trying to preserve the ski-town economy and lifestyle.

“Corporate interests may fluctuate, but our obligation to publicly owned National Forest System lands and the uses they support are for the long term. Our water-rights policy for activities that we permit on National Forest System lands exists to serve that goal,” said Regional Forester Dan Jirón in testimony to a House committee last month.

Bigger than ski areas

Sonnenberg is sponsoring House Bill 1013, which forbids the federal government from forcing people to cede their water rights in order to get a special use permit. The bill matters because the Forest Service usually defers to state law on water rights.

Sonnenberg’s hometown is about as far from a ski resort as a Coloradan can get without crossing the border to Nebraska, but he has bigger concerns than fresh powder.

“This isn’t just about ski resorts. This affects agriculture. Agriculture has a number of grazing permits on public lands,” Sonnenberg said.

But the unanimous votes Sonnenberg has received so far mask some serious concerns from Democrats.

Sonnenberg is well-known as a critic of federal land agencies. He is sponsoring a separate bill to require the feds to turn over to the state all public land that could be used for farming and ranching.

His critics call it an extreme idea.

The undercurrent of that controversy flows into his water-rights bill.

“There was some perception that it was a Trojan horse for other issues that do not protect the ski areas,” said Mike McLachlan, D-Durango.

McLachlan added that he did not share the perception.

McLachlan, who has three ski areas in his district, wanted to narrow Sonnenberg’s bill to apply it only to ski resorts, instead of all federal lands.

“My fear is that by making it so broad, so sweeping, that it may not end up protecting the ski areas,” McLachlan said.

But Sonnenberg opposed the change, saying that what’s good for ski areas should be good for ranchers, too.

McLachlan voted for HB 1013 anyway in the House Agriculture Committee. Its next hearing, in the House Appropriations Committee, is scheduled for Friday, said the committee’s chairwoman, Rep. Claire Levy, D-Boulder.

An old fight

The Forest Service’s 2011 policy was just the latest in three decades of efforts to make sure ski water rights stay tied to ski mountains.

Ski areas won a victory in a Denver courtroom last December when U.S. District Judge William Martinez threw out the policy nationwide. He cited “severe” and “serious” problems with the way the Forest Service wrote the rule without soliciting public input.

After that case, the Forest Service announced a public process to create a new water-rights rule for ski areas. The process should start this spring.

Legislators want to get a bill passed before the Forest Service approves a new rule.

The Forest Service, too, wants to get something done, especially in light of global warming and the recent dry winters.

“We know that the need for snowmaking is likely to grow, as evidenced by our current prolonged drought and warmer winters, which increases the importance of these issues for the industry and the public,” Jirón said in testimony last month.

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