DENVER – A U.S. Forest Service bid to control water rights at ski areas remains a sore point with Colorado lawmakers in Denver and Washington.
A senior official from the Forest Service told state legislators Thursday that the agency is pressing ahead with a new rule to tie permitting for ski areas to Forest Service control of water rights used for snowmaking and other ski area functions.
In Washington on Thursday, U.S. Rep. Scott Tipton, R-Cortez, introduced a bill to block the policy. He has bipartisan backing from Rep. Jared Polis, D-Boulder, whose district includes some of Colorado’s biggest ski areas.
Back in Denver, Jim Peña, associate deputy chief of the Forest Service, tried to assure members of the Legislature’s water committee that his agency isn’t trying to take anyone’s water. The Forest Service wants to make sure that water rights used for skiing aren’t sold and converted to other uses, he said.
“Sustaining ski opportunities in the long term is exactly our interest in developing a new ski water right clause,” Peña said.
But reaction to his testimony ranged from skeptical to hostile.
Sen. Greg Brophy, R-Wray, called the plan an illegal taking of private property.
“If you want to make sure the water stays there for that particular use, you can buy it,” said Brophy, who is running for governor. “What you can’t do is take it from its rightful owner.”
Legislators pressed Peña on why he thinks the Forest Service needs such a policy, when ski areas would be foolish to sell their water rights.
“This is trying to deal with a future that’s unknown and trying to mitigate a risk on our part,” Peña said.
Although the controversy is limited to ski resorts, Rep. Don Coram, R-Montrose, raised a concern that some legislators voiced last spring.
“Is this a blueprint for the next move, which would involve ranching and mining and other water uses?” Coram said.
A federal judge threw out the Forest Service’s previous attempt at a ski water rights policy in December, saying it was written without public input.
Peña said drafting the new policy is nearly finished and soon will be made available for public comment.
As angry as state legislators may be, they probably will have to look to Tipton’s bill in the U.S. Congress for help. The Legislature’s own legal department says in this case, federal law trumps state law.
“If it’s authorized under federal law, the General Assembly is pretty powerless to do anything about that,” said Tom Morris, a lawyer with the Office of Legislative Legal Services.
The Legislature’s water committee on Thursday released a memo Morris wrote in February that said state lawmakers didn’t have the authority to pass a bill telling the federal government how to handle water rights.
That didn’t stop Republicans from trying, but their bill sat on the calendar for weeks and died without action when the session ended in May. Democratic legislators said Harris Sherman, the now-retired U.S. undersecretary of agriculture, called them personally and asked them to scuttle the bill.