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DMR may sue over water rights

Ellen Roberts’ bill to limit U.S. Forest Service policy stalled in Legislature

DENVER – Durango Mountain Resort is getting ready to sue the U.S. Forest Service over access to its water rights – rights it needs for future development on the mountain.

The dispute comes at the same time the Forest Service is under fire nationally for its attempts to force ski resorts to turn over their water rights as a condition for getting their permits renewed.

Meanwhile at the state Legislature, a bill by Sen. Ellen Roberts, R-Durango, to curb the Forest Service’s water-rights policy appears to be dead as Democratic leaders defer to the federal agency for the second consecutive year.

Roberts’ bill would not help Durango Mountain Resort, which has a slightly different dispute with the Forest Service. But the resort’s CEO, Gary Derck, sees a pattern of the Forest Service trying to get control of ski resorts’ water rights.

“We’re not the only ones. There appears to be a broader policy. As best I can tell you, this is not coming from the local jurisdiction. This is coming from on high,” Derck said, adding that he has always enjoyed a good relationship with local Forest Service personnel.

The ski resort owns conditional water rights to six wells on the back side of the mountain, on land its previous owners traded to the Forest Service in the 1990s. The trade did not include water rights, but the agency now says it will not allow Durango Mountain Resort to access the wells.

Lawyers for the Forest Service have asked a local water judge to deny Durango Mountain Resort’s rights to the wells. The resort’s rights are conditional, and it needs to prove to a water judge every six years that it is working toward making the rights absolute and putting the water to use.

But starting in 2010, the Forest Service began opposing the ski area in water court.

“Any additional proposals to divert and convey water from the upper East Hermosa Creek will not be accepted by the San Juan National Forest and authorization will not be granted,” former Forest Supervisor Mark Stiles wrote in a June 2012 legal filing.

The ski area’s owners say they have legal rights to access their water rights, and after several years of wrangling with the Forest Service, they are getting ready to sue.

“We’re trying to find a way not to go to court because it would be expensive, and we’re just a little old ski area down here in Southwest Colorado,” Derck said.

Chris Strebig, spokesman for the Forest Service’s Rocky Mountain region, said the agency does not comment on ongoing litigation.

Bills thwarted

The Forest Service has had high-profile battles with other ski resorts in recent years over its attempts to force them to turn over their water rights to the government. The agency’s leaders say they are merely trying to make sure ski water rights will not be sold off to real estate developers or others who could take water away from snowmaking.

Republican lawmakers in Denver and Washington, D.C., have tried to pass bills to forbid the practice. U.S. Rep. Scott Tipton, R-Cortez, passed a bill through the House of Representatives this year, but President Barack Obama has said he would veto it, and it’s unlikely the Senate will ever vote on it.

In Denver, legislators have tried for two years to declare that water rights – which are granted under state law – cannot be forcibly obtained in return for a land-use permit. Last year, former U.S. Undersecretary of Agriculture Harris Sherman personally lobbied key Democrats to kill the bill, and they kept it bottled up in the House until the session ended.

This year’s bill passed the state House on a bipartisan vote in February, but now it’s in limbo in a Senate committee.

Roberts, the sponsor, said she’s been told it will not pass.

Sen. Jessie Ulibarri, D-Thornton, is chairman of the Senate State Affairs Committee, where Roberts’ bill is assigned. He said senators are waiting to see a new Forest Service policy on ski water rights before they act on the bill.

But the Forest Service has been promising to unveil that policy since last year, and it has not said when that will happen. The clock is ticking on Roberts’ bill because legislators end their yearly session May 7.

Governor weighs in

Gov. John Hickenlooper’s administration sent legislators a letter urging passage of the bill – a step it usually does not take.

“The State of Colorado should send a strong message to Washington that we intend to protect our control and authority over our water,” wrote James Eklund, executive director of the Colorado Water Conservation Board.

But the letter has not helped budge Roberts’ bill.

Strebig, the Forest Service spokesman, pointed to a November 2013 statement from Forest Service chief Tom Tidwell that promised the agency’s new policy will address people’s concerns while also protecting water for ski areas.

“We believe that these changes will provide assurances to the public and communities that depend on economic activities from ski areas that they will continue to provide recreation opportunities. Further, we believe that these objectives can be met without requiring the transfer of privately owned water rights to the government,” Tidwell said.

jhanel@durangoherald.com

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