Ski-area water rights

State, federal positions reflect two cultures

Few topics are more complex and contentious than water rights in the West, and those versed in the language required to navigate the issue recognize the tensions inherent in determining how access to water is bought, sold and managed. It is a subject of increasing importance as water itself becomes more scarce and over-allocated. Those who own water rights are jealous guardians of that property, and with good reason.

The tension that has developed between ski-area operators in Colorado – who own water rights for snowmaking, and the U.S. Forest Service, which leases land to the ski areas, but wants to dictate how water rights must be conveyed – is not surprising. Each position is defensible from its owner’s perspective: Ski-area operators have a vested interest in protecting the water rights associated with their businesses and the Forest Service is compelled to ensure that its land and resources are managed in accordance with the agency’s overarching goals.

For the Forest Service, that means requiring that ski-area water rights be inextricably linked to the ski area, only to be conveyed to the next owner of the area and never sold for other purposes – such as real estate development.

While that position may make sound policy sense from a land-management perspective, it runs exactly counter to the notion that water rights are a property right that owners have paid handsomely to acquire and should be able to use as they see fit. The latter is the underpinning notion of Colorado water law.

As the Forest Service and ski areas attempt to settle the disagreement – through a federal court case and now a public rulemaking process – reconciliation of these divergent positions has thus far been elusive. Now, the state Legislature is considering a measure backing the ski areas’ position and then some.

Rep. Jerry Sonnenberg, R-Sterling, is sponsoring HB 1013 which would prohibit the federal government from requiring water-rights holders to give up those rights in exchange for special-use permits on federal lands. It gets at the ski area issue, but goes a bit beyond in its undertones that fundamentally challenge the federal government’s right to manage its land. A more limited version of Sonnenberg’s bill might be appropriate, and the discussion surrounding the legislation is certainly so. It should fuel the public process that has the potential to craft a well-reasoned and considered rule about how ski areas’ water rights are handled.

Colorado’s economy and identity is tied to the world-renowned skiing that the state offers. Providing some security around the activity’s viability into the future benefits the state, the ski areas and the federal government. Doing so in accordance with Colorado water law – and water culture – is critical. The Forest Service’s first attempts have fallen short of that goal, and the state is increasing the pressure to avoid similar failures in the future. The public rulemaking process, done well, could offer the best opportunity to settle the issue.