Ski area decision good for Colorado
Some officials with the U.S. Forest Service have long wanted to control all the water that originates on national forest land. In Colorado, that amounts to virtually all of our water.
So, a federal judge’s decision last week that prohibited the Forest Service from taking water from Colorado ski areas as a condition of their lease renewals was good news for all Colorado water users.
But it is not necessarily the last word on the subject. U.S. District Court Judge William Martinez issued an injunction to prohibit the Forest Service from enforcing provisions requiring ski areas to give up some of their water rights as conditions for renewing their leases last year and this year. That includes the lease renewed for the new owners of Powderhorn Ski Area in 2011.
But Martinez said the injunction was appropriate to give the Forest Service time to address procedural flaws in its action. Additionally, the agency could appeal the judge’s ruling.
In the 1990s, the Forest Service demanded that irrigation companies which have reservoirs, ditches or other facilities on national forest land give a portion of their water rights to the Forest Service as a condition of the agency renewing permits for those facilities.
This, even though some of the irrigation companies held water rights in the high country that predated the creation of the national forest.
The Forest Service backed away from that attempt after members of Colorado’s congressional delegation began raising questions about the policy and proposing legislation to block it.
In the latest dust-up, the Forest Service said it wanted the water rights from ski areas to prevent ski areas from selling the water to other users.
But the National Ski Areas Association argued that the policy amounted to an illegal taking of ski area’s property — in this case, water rights. Beyond that, the organization said, it was a violation of Colorado water law.
That might be the most important effect of the Forest Service policy if it were allowed to stand: It would allow federal administrative policy to supersede state water law.
As Club 20 President Bonnie Petersen noted last week, that would set a precedent that could affect water rights for grazing, municipal water and more.
So, along with Club 20, the National Ski Areas Association and others, we were pleased to learn of Judge Martinez’s decision stopping the Forest Service from continuing to demand private water rights from ski areas. We hope last week’s ruling is a precursor for a permanent ban on the policy.