By ANN ZIMMERMAN
Fresh-fallen snow may get all the credit, but many ski resorts can't keep their runs open without water that is piped in, often from miles away. Control of that water is the source of a battle between resort operators and the U.S. Forest Service.
Federal officials have until Monday to respond to a lawsuit by a trade group for the owners and operators of ski destinations, challenging a new directive that requires resorts operating on Forest Service lands to transfer water rights to the federal government.
The Vail Daily/Associated Press
A skier hits the powder on Vail Mountain in Colorado in February. A new federal policy on water rights affects such resorts on Forest Service land.
The group's suit, filed in U.S. district court in Colorado in January, alleges the change is an "uncompensated taking of private property" by the federal government. Ski-area owners contend it will diminish the value of the water rights they obtained "at great expense," according to the suit, and prevents them from selling those rights to anyone but another ski operation. The Forest Service says the new directive will guarantee the water will always remain with the mountain.
Ski resorts require considerable quantities of water for snow-making, as well as sanitation and cooking for guests, and they frequently gain access to extra water by securing water rights from private landowners or from the federal government, in accordance with state laws. The ski companies use tunnels, pipelines and reservoirs they build at considerable expense to transport the water—the amount, source and cost of which vary widely.
The ski-resort operators argue the regulation covers water rights they have purchased from both federal and private lands. But the Forest Service insists it only pertains to water rights obtained from federal lands, and the agency said it plans to change the directive's language to make that clear. Even so, the ski operators say they still wouldn't be satisfied.
The suit marks the latest turn in a decades-long push and pull between ski operators and the federal government over water rights. Such water fights are becoming increasingly common in many parts of the U.S., especially the Rocky Mountain states, where population growth is putting new strains on resources, and land ownership laws don't always automatically include the rights to the water there.
Associated Press
Ski resorts require considerable quantities of water for snow-making, as well as sanitation and cooking for guests.
The new federal policy on water rights, part of the permit a resort must secure if it operates on a mountain owned by the Forest Service, has alarmed the National Ski Areas Association, which estimates it affects 121 resorts in 13 states.
The ski association and its members are concerned that they wouldn't get fair market value for the water rights if there was only one type of buyer, rather than allowing numerous bidders. "We had no choice but to defend ourselves and our property by filing suit," said Geraldine Link, the group's director of public policy.
Officials with the Forest Service, part of the Department of Agriculture, said the aim of the revamped clause is to make clear that resorts cannot sell the water rights and leave towns and mountains high and dry.
"The issue becomes, what if the water becomes so valuable that the resort owner sells it off for a different use, and the communities dependent on the ski areas are no longer viable," said Jim Peña, associate deputy chief for the Forest Service. Resort owners say that situation hasn't happened, a point Mr. Peña conceded. "It is a Draconian solution to a hypothetical problem," said Ezekiel Williams, an attorney for the ski-resort trade group.
Mark Squillace, a law professor and director of the Natural Resources Law Center at the University of Colorado, said the resorts' claim that the government was taking their property "seems overwrought," given that the law ultimately gives the government the right to do what is deemed in the public's best interest. But he said "they may have a legitimate argument" in another claim in the suit, which also argues that the government didn't give the resorts sufficient notice of the change and an opportunity to comment.
Tensions have been brewing over ski-area water rights since the late 1980s, when legislation governing the ski-resort permits on Forest Service land gave the federal government ownership of water rights on federal land. That changed in 2004, when ownership of most of the water rights moved to the resorts.
Last fall, after news of the impending permit clause became public, the ski association and several congressmen asked the Forest Service to study the issue further and get public comment. The agency declined and began enforcing the directive in November.
Ski groups noted that under the new clause, the federal government would be permitted to sell off the same water it is worried the resorts will auction to the highest bidder. The Forest Service's Mr. Peña said his department plans to strengthen the language to make clear it doesn't intend to sell the rights or repurpose them for any use but skiing.
Write to Ann Zimmerman at ann.zimmerman@wsj.com
A version of this article appeared Mar. 7, 2012, on page A3 in some U.S. editions of The Wall Street Journal, with the headline: Water Fight Hits the Slopes.
