In 2011, the U.S. Forest Service issued a controversial water rights directive that would have required ski areas operating under a special-use permit on public land to transfer their water rights to the federal government.
In response, the National Ski Areas Association, an industry trade group that represents more than 300 ski areas, sued the agency in January of the following year — and won. A U.S. district judge ruled in 2012 that the Forest Service not only violated its own procedural rules and failed to evaluate the economic impact, but also violated the ski areas' rights.
After that ruling, the Forest Service abandoned a water transfer clause and issued a new directive that will go into effect Jan. 29. It requires ski areas applying for new permits or modifying existing ones to demonstrate that they have sufficient water to sustain operations for the permit's duration and allows them to remain at the helm of their water management. In 2011, the agency's culture leaned toward federal transfer, or co-ownership, of water, said Joe Meade, director of recreation for the U.S. Forest Service based in Washington, D.C. "That way we knew the water would always be available in the National Forest Service System."
But ski areas consider water rights as assets, and collectively, the industry has invested hundreds of millions of dollars in them, said Geraldine Link, director of public policy for the NSAA. "That's something ski areas don't want interference on," she said. "We're really good at water management and we know best what we need and how best to achieve that."
Those high-dollar investments have long drawn the attention of the U.S. Forest Service, which worried that as water rights become more valuable, ski areas might decide to sell them to developers. The 2011 rule addressed the resulting concern that future ski operations wouldn't have the water they needed for snowmaking and for running base-area amenities like lodges and restaurants. There is no history of any ski area selling their water to third parties, but under the new directive, a ski area will need approval from the agency to sell them. "The new clause is a huge improvement," Link said.
Ultimately, after the court ruled against the agency, Forest Service officials realized that it didn't matter so much who owned the water as how sustainably water was being used on public lands. "We're asking now that water needs be documented," Meade said. "If we issue a permit, we want to know that the operations under that permit can be sustained."
The change between the 2011 clause and the new Ski Area Water Rights Directive seems drastic on paper, but in practice, it won't change the way ski areas do business, because states have authority over allocation even when water originates on federal land. The Forest Service can't provide more water for operations that show they don't have enough, and it also can't tighten the belt on resorts that demonstrate a plentiful supply.
What it does do, though, is confirm that a ski area controls its water rights and their day-to-day management. What resulted is a missed opportunity that could have eased uncertainty surrounding public land management as the climate warms and winter precipitation and water storage become more unpredictable. In June last year, the Forest Service withdrew a similar proposal that would have changed groundwater management for oil and gas leases. Much like their ski industry counterparts, opponents of the oil and gas water directive said it would have "infringed on state authorities' allocation of water."
Under the new ski-area directive, the agency doesn't have control over how much water resorts use, how much they buy on the open market or lease from local municipalities. It also means the agency doesn't have the power to take water from a ski area and use it for the broader Forest Service system during a climate crisis or prolonged drought periods.
As winter recreation faces a more uncertain climate future, the 2015 directive will ensure that while the industry owns water, they will be entitled to their allocation. When it comes to winter recreation on public lands, climate change becomes more of a technological problem, than a regulatory one, said David Corbin, vice president of planning and development for Aspen Skiing Company. As winter conditions become more erratic, Corbin said snowmaking will need to be more efficient and operations will need access to larger onsite reservoirs. "Warming impacts our ability to make snow," he said. "We need to adapt water storage so we can act quickly when temperatures are ideal for making snow."
In the previous (and controversial) water directive, the Forest Service took the long view on water management — will public lands have the water it needs 100 years into the future? The new directive gives the ski resorts a bigger role in defining that future, which is not without the risk of industry interests infringing on the agency's responsibility to long-term management of the resource. "I believe we've found a place in policy that's good for industry, good for the skier and upholds our responsibility to public lands," Meade said. "As the climate changes, we know we're all in this together."
Paige Blankenbuehler is an editorial fellow at High Country News. She tweets @paigeblank.
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