November 13, 2013

Environmental groups warn bill supported by Aspen Skiing Co. could hurt rivers

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The spillway at the Ruedi Reservoir dam.

Brent Gardner-Smith/Aspen Journalism

The spillway at the Ruedi Reservoir dam.

The Green River below the Flaming Gorge dam. The Utah Rivers Council is one of many environmental and rivers organizations in opposition to HR 3189.

Brent Gardner-Smith / Aspen Journalism

The Green River below the Flaming Gorge dam. The Utah Rivers Council is one of many environmental and rivers organizations in opposition to HR 3189. Smith / Aspen Journalism

A congressional bill supported by Aspen Skiing Co. designed to protect water owned by ski areas could potentially end up hurting rivers across the country, according to American Rivers, a national river-protection organization, and a growing list of other environmental organizations.

“While House Resolution 3189’s stated intent (to help resolve a narrow conflict over water rights between the U.S. Forest Service and Colorado’s ski industry) may be legitimate, the bill is written very broadly and will have serious implications for water management across the country,” American Rivers wrote in a one-page document urging opposition to the bill.

David Corbin, Skico’s vice present of planning and development, testified on Oct. 10 in favor of HR 3189, called the Water Rights Protection Act, before a subcommittee of the House Natural Resources Committee.

“The proposed law would protect ski area water rights and provide certainty to ski areas and other water rights holders that the federal government is not going to seize these valuable property rights without compensation,” Corbin stated in his written testimony. “(U.S. Forest Service) water clauses that demand transfer of ownership of ski area water rights to the United States substantially impair the value of these ski area assets.”

Also supporting the bill, which was introduced in September by Rep. Scott Tipton (R-Cortez) in October, are the National Ski Areas Association, Colorado Ski Country USA and the California Ski Industry Association, as well special-interest groups representing agriculture, ranching and water. Other local entities in support of the bill include Garfield County and the Colorado River District.

But opposition to the bill has risen this week in advance of the bill being marked up, or potentially amended, at a committee meeting Thursday.

On Wednesday, both the the U.S. Forest Service and the Interior Department issued testimony against the bill. Additionally, American Whitewater, the Sierra Club, the Natural Resources Defense Council, Earthjustice and Defenders of Wildlife, and a list of other watershed and river protection organizations are now opposing the bill.

A letter signed by 39 such organizations and submitted to the House Natural Resources Committee on Wednesday stated the bill could “prevent federal agencies from requiring protections for fish and other in-stream resources” and that, if passed, “agencies could be unable to implement reasonable requirements intended to keep water in rivers.”

On Monday, Corbin said Skico’s interest in the bill is confined to protecting water rights held by ski areas, including the four mountains operated by Skico, which together use 200 to 250 million gallons of water each winter for snowmaking.

He said American Rivers’ opposition to the bill has not altered Skico’s support of it.

“We don’t share their apprehension,” said Corbin, after reviewing materials from American Rivers expressing its opposition to the bill. “I understand their concerns, but I think they are probably overreacting.”

Corbin could not be reached for comment before publication on whether the additional round of opposition revealed on Wednesday had shifted Skico’s position.

A snowmaking gun on Aspen Mountain in late 2012.

Brent Gardner-Smith / Aspen Journalism

A snowmaking gun on Aspen Mountain in late 2012.Smith / Aspen Journalism

The bill is in response to a rule issued by the Forest Service in 2011, which required ski areas to turn over their water rights to the Forest Service if they sold or transferred their federal operating permits.

The rule was successfully challenged in court by the ski industry and is now being revised by the Forest Service.

In a press release introducing his bill, Tipton referred to the “nefarious tactics” of the Forest Service. Rep. Jared Polis, a Democrat from Colorado’s 2nd District, co-sponsored HR 3189, giving it an initial bipartisan boost.

The Forest Service released testimony Wednesday in advance of Thursday’s markup session for the bill. The agency said it doesn’t think HR 3189 is necessary, as it is working on a new version of its rule concerning water rights that will “address the concerns associated with the previous ski area water rights clause.”

“We believe 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,” the Forest Service stated. “Further, we believe that these objectives can be met without requiring the transfer of privately owned water rights to the government.”

The written testimony from the Forest Service further states “it is not in our interest or policy to take private water rights. Our interest is in sustaining skiing as a recreation opportunity on National Forest System lands now and in the future.”

The Forest Service also raises concerns about its ability to effectively transfer grazing permits if the bill is passed as is.

The Interior Department, which includes the BLM, also released testimony on Wednesday, stating that “the legislation is overly broad and could have numerous unintended consequences.”

The National Ski Areas Association welcomed the Forest Service’s conciliatory language regarding the issue of ski area water rights, but still wants to see the Water Rights Protection Act passed.

“HR 3189 would not hinder the agency’s new approach to water policy,” said Geraldine Link, the director of public policy for the NSAA, in an email. “The new (Forest Service) policy is expected to require ski areas to offer an option to purchase water rights at fair market value to the successor owner of a ski area. (And) the bill prohibits a forced transfer of property to the US.”

Groups such as the National Cattlemen’s Beef Association and the Public Lands Council also support HR 3189, and view it as a way to protect their industry’s water rights.

“The USFS is attempting to acquire water rights for the federal government as a condition of issuing standard land use permits,” the Beef Association stated in its October review of HR 3189 and other federal legislation, entitled “Beltway Beef.” “The Forest Service, however, has failed to provide just compensation — a violation of the Fifth Amendment.”

American Rivers says the hydropower industry and “big western agriculture” are driving the bill, ostensibly written to protect the ski industry, in an effort to “handcuff” the Interior and Agricultural departments and “prevent them from protecting rivers and public lands,” according to a memo on the bill.

The Colorado River in Utah, on a section that lies below a number of dams in Colorado.

Brent Gardner-Smith / Aspen Journalism

The Colorado River in Utah, on a section that lies below a number of dams in Colorado. Smith / Aspen Journalism

Matt Rice, the director of conservation in Colorado for American Rivers, said the group’s opposition to HR 3189 is based on language in the bill that would prohibit “impairment of any water right” by federal agencies under the jurisdiction of either the Interior or Agriculture departments.

Rice said such agencies sometimes require mitigation for hydropower projects that are ultimately licensed by the Federal Energy Regulatory Commission, or FERC. The mitigation, for example, might require that hydropower developers leave some water in a river or in a fish passage structure.

Such a requirement, or mandate, from FERC or an associated federal or state agency, could be considered an “impairment” of a water right by the hydropower industry, according to Rice.

“The hydropower industry has long opposed mandatory conditions at hydropower facilities,” a memo from American River states. It adds that “HR 3189’s broad scope appears to comprise a ‘backdoor’ attack’ on these authorities.”

Skico’s Corbin pointed out that the “impairment” language is only in the preamble to the bill.

“We don’t feel nearly as anxious as American Rivers does about that word ‘impairment,’” Corbin said. “It’s an imprecise word.”

But the imprecision of the phrase “impairment of any water right” is exactly what worries American Rivers.

“The offending phrase is descriptive of the intent and impact of the bill,” said Matt Niemerski, the national water policy director for American Rivers.

Editor’s note: This story was produced in collaboration with The Aspen Times, which posted it on Wednesday, Nov. 13, 2013.

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