Ski permits, public land and the fight over water rights

Going to court could be the clearest way to resolve a disagreement over water rights between the U.S. Forest Service and the National Ski Areas Association, a former coordinator of the agency’s ski-area permit program told lawmakers.

The retired official defended the Forest Service’s authority to regulate water connected to ski operations on national forest land. In a letter to a Colorado senator, he argued that judicial review could establish whether certain water rights should remain attached to federal permits and protected for the public.

Lawmakers from Colorado, Wyoming and Idaho had asked the Forest Service to suspend a new permit provision. Ski-area representatives contended that the provision could amount to an unlawful government taking of valuable water rights. The agency, however, relied on federal statutes governing national forests and ski-area permits to support its position.

The disagreement traced partly to a 2004 policy developed after meetings between ski-industry executives and federal officials. That policy contemplated joint ownership of certain water rights associated with permitted operations. The former official said technical permit specialists and agency water-rights lawyers had not been fully included in the final discussions.

Agency lawyers later concluded that Colorado law created obstacles to conveying water rights through the joint-ownership approach. In 2011, the Forest Service issued an interim directive addressing water rights through new permit requests. The temporary measure prompted objections from industry representatives, who argued that it revived prior conditions and could reach water originating beyond Forest Service land.

The former official alleged that some operators may have agreed to permit conditions without intending to transfer the relevant rights. His letter urged federal authorities to examine the record. Those allegations were disputed and had not been established by a court in the account reviewed here.

Industry representatives said shifting policy between presidential administrations created uncertainty for ski businesses. They argued that the 2011 provision could affect rights owned by entities that had not been parties to permits issued decades earlier.

Despite their opposing views, both sides anticipated litigation. The former official believed a court case would allow the Justice Department to review the facts and clarify title. Industry advocates likewise saw judicial review as a route to resolve the scope of the Forest Service’s authority.