Former Fed Official Says Resorts Nabbed Water Rights by ‘Fraud and Deception’

Snowmaking at Colorado's Arapahoe Basin

A recent flareup in the water war between the federal government and the ski industry has taken several twists. The industry filed suit against the feds on Monday, as it had threatened, and a former Forest Service official charged the snow business with taking advantage of a lax regulatory environment under the Bush administration to try and acquire water rights that belong to the people of the United States with “fraud and deception.”

The water rights issue surfaced publicly in November, when the National Ski Areas Association, represented by attorney Glenn Porzak, complained in Congress that the Forest Service was trying to “take” privately held water rights by revising a ski area permit condition that was adopted in 2004. Since then, the ski industry has threatened to sue the Forest Service over the new water rights clause.

But Ed Ryberg, who headed the agency’s ski area program from 1992 to 2005, says it’s the other way around. According to Ryberg, the ski industry used its political connections in the Bush administration to lobby for regulatory changes that were subsequently implemented without public input or review under federal environmental laws.

Those efforts extended beyond the water rights issue to other aspects of ski area operation, including the establishment of quasi-private, special access lift lines, advertising on chairlift safety bars and even real estate development schemes, as in the case of the proposed village at Wolf Creek.

Ryberg said he felt compelled to write his strongly worded letter because the ski industry is spinning the issue to try and manipulate the federal government once again.

“They have a visceral antagonism toward regulation,” Ryberg said, referring to the ski industry. “I can speak freely now. I would be irresponsible if I didn’t do it,” he added.

At issue is specific language in ski area permits that requires resorts to sign over certain types of water rights to the Forest Service. Under rules developed in the 1980s, all resorts that operated under federal permits agreed to those terms when they signed their permits — whether they agreed with the language or not.

Ryberg raised the specter that some ski resorts may have been involved in defrauding the American public by signing their permits without any intention of complying with the terms and conditions relating to water rights.

But in 2004, the ski industry lobbied high-level Bush administration officials to change the language. Ryberg was part of those discussions, at least until the ski industry decided to take its requests outside the normal administrative channels and into the political arena.

Here’s how Ryberg described it in his letter to Udall, Bennet and Hickenlooper:

“The 2004 water rights clause was a radical change to Forest Service direction with regards to water rights at permitted ski areas. It eliminated the long standing requirement that ski areas transfer water rights for water diverted and put to beneficial use on NFS lands to the United States. As I discussed earlier, the 2004 clause was the direct result of the ski industry exploiting the lax regulatory environment that characterized the Bush Administration. At this time, serving as the agency’s ski area program coordinator, I was informed that the Under Secretary of Agriculture for Natural Resources and the Environment (Under Secretary) was being lobbied by the National Ski Areas Association (NSAA) to change the existing ski area permit water rights clause. I was directed to meet with representatives from the NSAA to gain an understanding of their problems with the existing clause and attempt to address them. At this meeting I was accompanied by an attorney from the Department of Agriculture’s Office of General Council (OGC) with extensive experience in the field of Federal water rights. As the meeting progressed, the industry representatives made it clear that their intent was to eliminate the permit requirement to transfer water rights to the Government for water diverted from NFS lands and put to beneficial use at ski areas. They reacted to every concern we voiced with hostility and let us know that they had the support of the Under Secretary’s Office to make the changes they wanted. Following this unproductive meeting, all discussions on modifying the clause were conducted between NSAA representatives, the Director of Recreation in the Chief’s office, and the Under Secretary’s staff. Agency permit specialist and water rights experts with OGC were excluded from the meetings that resulted in the development of the 2004 water rights clause.”

According to Ryberg, the latest move by the Forest Service to revise the language merely restores the balance that existed before 2004 and ensures that water that originates on national forest lands and has been developed for ski resort use remains with the ski areas.

Again, from Ryberg’s letter:

“The ski area water rights clause of November 8, 2011, restores the ability of the Forest Service to compel ski areas to comply with the requirements of the pre-2004 clause. It requires that ownership of rights to divert and use water on site that were initiated, developed, certified, or adjudicated prior to 2004, continue to be governed by the terms and conditions of the ski area permit in effect at the time that water right was first filed. This allows the Forest Service to require ski areas to transfer water rights justly belonging to the United States as a condition to any permit activity such as authorizing new uses or areas, issuing permits to new owners, or reissuing permits that have expired. The 2011 clause still provides for joint ownership of water rights to divert and use water on the permitted area while correcting the problems with the 2004 clause with respect to Colorado law. Importantly, the new clause commits the Forest Service to exercise ownership rights to this water specifically to support ski area operations, and ensures that this water will be available to subsequent ski area operators. In this way, it helps to ensure that ski areas and the communities dependent on them are sustainable by preventing ski area operators from selling or diverting water that is needed for the operation of ski areas to other uses. This clause will not negatively impact ethical ski areas who met their agreed-to obligations of their permits. It will only impact the  bad actors in the ski industry who welshed on their agreements with the United States, and obtained water rights, justly belonging to the American people, through fraud and deception. These are the ski areas on who’s behalf NSAA has been lobbying.”

The ski industry’s position is that the Forest Service has never had the legal authority to require resorts to transfer water rights, and that state water law supersedes any federal regulations.

Environmental coverage made possible in part by support from Patagonia. For information on Patagonia and its environmental efforts, visit www.patagonia.com. In affiliation with Summit County Voice. Photo: Wikimedia Commons.

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