Ski Area Water Rights on National Forest System Lands, 35513-35521 [2014-14548]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Notices]
[Pages 35513-35521]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14548]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AD14


Ski Area Water Rights on National Forest System Lands

AGENCY: Forest Service, USDA.

ACTION: Notice of Proposed Directive; Request for Public Comment.

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SUMMARY: The U.S. Forest Service (Forest Service or Agency) is 
proposing to amend its internal directives for ski area concessions by 
adding two clauses to the Special Uses Handbook, FSH 2709.11, chapter 
50, to address water rights necessary for and that primarily support 
operation of ski areas on National Forest System (NFS) lands. A revised 
water rights clause for ski area permits is needed because the current 
water rights clause cannot be implemented as intended in many States 
and because the current clause does not ensure that sufficient water is 
available for operation of ski areas on NFS lands. Implementation of a 
revised water rights clause would ensure that water will be available 
for ski areas on NFS lands. Additionally, there would be greater 
consistency and accountability in authorization of water uses and 
ownership of water rights for ski areas.

DATES: Comments must be submitted in writing by August 22, 2014.

ADDRESSES: Send comments electronically by following the instructions 
at the Federal eRulemaking portal at https://www.regulations.gov. 
Comments also may be submitted by mail to USDA Forest Service, Attn: 
Carolyn Holbrook, Recreation, Heritage, and Volunteer Resources staff, 
Ski Area Water Rights Comments, 1400 Independence Avenue SW., Stop 
1125, Washington, DC 20250-1125. Comments may also be submitted 
electronically to skiareawaterrights@fs.fed.us. If comments are sent 
electronically, duplicate comments should not be sent by mail. Hand-
delivered comments will not be accepted. All comments, including names 
and addresses when provided, will be placed in the record and will be 
made available for public review and copying. Those wishing to review 
comments should call Carolyn Holbrook at (202) 205-1426 to schedule an 
appointment.

FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, Recreation, 
Heritage, and Volunteer Resources staff, 202-205-1426, or Jean Thomas, 
Watershed, Fish, Wildlife, Air, and Rare Plants staff, 202-205-1172.

SUPPLEMENTARY INFORMATION:

1. Background and Need for the Proposed Directive

    The Forest Service is proposing a revised clause to address water 
rights utilized in support of ski areas on NFS lands. One of the 
statutory duties of the Forest Service is to administer National Forest 
System (NFS) lands to provide outdoor recreation to the American public 
on a sustainable basis. Water for snowmaking and domestic uses is 
critical to the continuation of resort-based skiing on NFS lands. 
Because of this, the Forest Service requires ownership by the United 
States, either solely or in narrow circumstances jointly with the 
permit holder, of water rights developed on NFS lands to support 
operation of ski areas. This policy was adopted due to concern that if 
water rights used to support ski area operations are severed from a ski 
area the Forest Service will lose the ability to offer the area to the 
public for skiing. An example of this is when water rights are sold for 
other purposes.
    It has long been the policy of the Forest Service that permit 
holders must acquire water rights in the name of the United States for 
water diverted from and used on NFS lands pursuant to special use 
authorizations in furtherance of the Agency's congressionally mandated 
multiple-use objectives through the Multiple-Use Sustained-Yield Act 
(MUSYA) of 1960, which include range, watershed, timber, fish and 
wildlife, and outdoor recreation. The reason for this policy is 
straightforward: Congress has directed the Agency to manage National 
Forests

[[Page 35514]]

to provide for specified multiple uses, including outdoor recreation, 
``in perpetuity'' (16 U.S.C. 531(b)), and water is of critical 
importance to the Agency's ability to meet that mandate. Without water 
for snowmaking and domestic uses, ski areas on NFS lands would not be 
able to operate. However, the Forest Service does not require United 
States ownership of water rights for reservoirs, pipelines, or other 
water storage or conveyance infrastructure that is for water use on 
private or non-Forest Service land, such as water used by 
municipalities, irrigation districts, and private industries. The use 
of NFS lands for these infrastructures merely involve access to NFS 
lands through a Special Use Authorization.
    To effectuate the policy, the Forest Service Manual (FSM) included 
directives since 1982 that require the United States to own water 
rights for water diverted from and used on NFS lands as a condition of 
issuance of special use authorizations for activities that further 
MUSYA objectives. For example, a 1982 permit clause for ski areas in 
the Forest Service's Rocky Mountain Region required that ``[a]ll water 
rights obtained by the permittee for use on the area must be acquired 
in the name of the United States''; a 1989 ski area permit clause in 
that Region provided that water rights ``shall be acquired in the name 
of or transferred to the United States''; and a 1997 national clause 
for recreation uses authorized under term permits required that ``all 
water rights obtained by the holder for use on the area authorized must 
be acquired in the name of the United States.''
    In 2004, after extensive discussion with the National Ski Areas 
Association (NSAA), the Forest Service adopted a new water rights 
clause for inclusion in ski area permits. In a significant departure 
from prior policy, the 2004 clause provided that after June 2004, 
rights to water diverted from and used on NFS lands inside the permit 
area would be jointly held by the United States and the permit holder. 
The 2004 clause did not address ownership of water rights that were 
acquired before June 2004, water rights for diversions from NFS lands, 
or private lands outside the permit boundary.
    As the Forest Service began utilizing the 2004 clause, it become 
apparent that it did not operate to effectuate co-ownership of a 100 
percent interest in NFS ski area water rights as intended and there 
were substantial misunderstandings as to its meaning with regard to 
application of the Forest Service's water rights policy to NFS ski area 
water rights. Based on these concerns, the Agency decided to revise the 
2004 Clause.
    On November 8, 2011, the Forest Service issued an interim directive 
replacing the 2004 Clause with a revised water rights clause (2011 
Clause). In contrast to the 2004 Clause, the 2011 Clause addressed the 
different types of water rights associated with ski areas, the need to 
ensure that ski area water rights remain available to support the ski 
area, and the ability of the United States to effectuate the provisions 
of the clause.
    The 2011 Clause identified three categories of water rights 
associated with ski areas: (1) Water rights for water diverted from and 
used on NFS lands in the permit area; (2) water rights for water 
diverted from NFS lands outside the permit area for use on NFS lands 
inside the permit area; and (3) water rights for water purchased or 
leased by the holder and water rights for water diverted from non-NFS 
lands.
    Consistent with the 2004 Clause, the 2011 Clause provided that 
water rights for water diverted from and used on NFS lands in the 
permit area that were acquired after the effective date of the 2004 
Clause must be jointly owned. For clarity, the 2011 Clause included 
provisions expressly effectuating a joint tenancy with a right of 
survivorship for jointly held water rights. Water rights in this 
category that were acquired prior to the effective date of the 2004 
Clause were governed by the terms of the permit under which they were 
acquired. The United States had to exercise its joint ownership of ski 
area water rights only in support of the authorized ski area. Likewise, 
the permit holder could not sever its joint ownership from the ski 
area.
    The 2011 Clause provided that water rights for water diverted from 
NFS lands outside the permit area for use on NFS lands inside the 
permit area had to be authorized by a separate permit, and addressed 
ownership of these water rights based on when they were acquired. Water 
rights in this category that were acquired after the effective date of 
the 2011 Clause had to be acquired in the name of the United States. 
Ownership of water rights in this category that were acquired prior to 
adoption of the 2011 Clause was governed by the permit terms under 
which the water rights were acquired. Under the 2011 Clause, the holder 
could not sever these water rights from the ski area.
    The 2011 Clause also made clear that water rights purchased or 
leased by the permit holder could be solely owned by the holder even if 
they were changed or exchanged to a point of diversion and use on NFS 
lands in the permit area (changed or exchanged water rights). The 2011 
Clause provided that changed or exchanged water rights and water rights 
for water diverted from non-NFS lands for use on NFS lands in the 
permit area that were acquired after issuance of the 2011 Clause could 
not be divided or transferred or severed from the ski area.
    The 2011 Clause provided that upon termination or revocation of the 
permit, the holder had to transfer to any succeeding permit holder its 
interest in water rights for water diverted from and used on NFS lands 
within the permit area; water rights for water diverted from non-NFS 
lands for use on NFS lands in the permit area that were acquired after 
the effective date of the 2011 Clause; and water rights that were 
changed or exchanged after the effective date of the 2011 Clause. If 
the ski area was not reauthorized, the permit holder's interest in 
jointly held water rights had to be transferred to the United States. 
For water rights owned solely by the holder, the holder had the option 
of removing the diversion structures and water use off NFS lands or 
transferring the water rights to the United States.
    The 2011 Clause included a provision granting limited power of 
attorney to the United States to execute documents on behalf of the 
holder as necessary to ensure that water rights were acquired and 
transferred as required by the 2011 Clause. The 2011 Clause also 
obligated the holder to waive any claims against the United States for 
compensation in connection with application of the 2011 Clause.
    On March 6 2012, the Forest Service issued an interim directive 
clarifying and modifying the 2011 Clause (2012 Clause). The 2012 Clause 
modified the 2011 Clause in several respects. First, the Agency 
clarified that the Forest Service would not take any action with 
respect to its water rights that would adversely affect the 
availability of water for operation of the authorized ski area unless 
necessary to fulfill legal requirements. Second, the Agency clarified 
that for water rights for water diverted from NFS lands, the ski area 
could divide or transfer its ownership interest or sever its ownership 
interest from the ski area with the consent of the Forest Service. 
Third, the Agency removed any restrictions on the holder's ability to 
sever water rights for water diverted from non-NFS lands for use on NFS 
lands in the permit area.
    The NSAA filed a lawsuit in the United States District Court for 
the District of Colorado on March 12, 2012, opposing use of the 2011 
and 2012 Clauses. On December 19, 2012, the

[[Page 35515]]

court ruled that the Forest Service failed to comply with the 
Administrative Procedure Act and the National Forest Management Act by 
not providing an opportunity for public notice and comment on the 2011 
and 2012 interim directives and that the Agency needed to conduct a 
Regulatory Flexibility Act analysis of the impact of the directives on 
small business entities that hold ski area permits. The court did not 
rule on the substance of the interim directives. The court vacated the 
interim directives and enjoined enforcement of the 2011 and 2012 
Clauses in permits that contained them.\1\
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    \1\ National Ski Areas Association, Inc. v. United States Forest 
Service, 910 F. Supp. 2d 1269 (D. Colo. 2012).
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    Publishing this proposed directive for public comment corrects 
procedural deficiencies associated with the 2011 and 2012 ski area 
water rights clauses that were identified by the court and allows those 
who would be affected by the proposed directive to participate in its 
development.
    The Forest Service reached out to stakeholders by conducting four 
listening sessions and three open houses in April 2013 to identify 
interests and views from a diverse group of stakeholders regarding a 
revised water rights clause for ski areas (78 FR 21343, Apr. 10, 2013). 
Two listening sessions were held in Washington, DC; one was held in 
Denver, Colorado; and one was held in the Lake Tahoe area in 
California. Approximately 21 people attended the listening sessions. 
Open houses were held in Denver, Colorado; Salt Lake City, Utah; and 
the Lake Tahoe area in California. To generate discussion, stakeholders 
were presented with four themes at the meetings: The role of ski areas 
in ensuring natural resource sustainability, availability of water to 
support ski are improvements, economic sustainability, and ensuring 
long-term commitment of water for use at ski areas.
    Approximately 40 people attended the open houses. Additionally, 
participants were invited to submit comments electronically by May 10, 
2013. Fourteen comments were received. The input from these listening 
sessions and open houses (hereinafter ``stakeholder recommendations'') 
was considered in the development of this proposed directive. A summary 
of the stakeholder recommendations follows.

Stakeholder Recommendations

General Recommendations
     Do not issue a ski area water rights clause. The United 
States should apply for water rights in its own name and participate in 
State proceedings.
     Follow applicable State water law and pertinent Supreme 
Court decisions.
     Conduct a negotiated rulemaking to establish a new ski 
area water rights clause and obtain an outside facilitator.
     All previous ski area water rights clauses must be 
declared null and void.
     Rescind water rights clauses for other types of special 
uses.
     Intergovernmental and private contractual agreements 
regarding water rights are essential in Colorado and are difficult to 
replicate. It would be difficult for a new permit holder to duplicate 
the complex water rights agreements that currently support ski areas.
Analysis Recommendations
     Assess the sufficiency of water during project analysis, 
including consideration of current operations.
     Assess impacts of proposals on water quality and 
downstream water needs.
     Assure that sufficient water is available for both current 
and future ski area needs to protect business operations and local 
recreation economies.
     Determinations of water sufficiency and fair market value 
should be made by a third party with substantial experience in ski area 
operations and water right appraisals.
     The applicable Forest plan should establish whether winter 
use is appropriate and how much water is available for winter use. Ski 
area modifications, additions, or expansions that require water could 
be limited to the scope of winter use and water for winter use 
contemplated by the applicable Forest plan.
     Requirements to operate snowmaking and other facilities in 
accordance with the applicable master development plan may be adequate 
to ensure sufficient water for ski area operations.
     Do not be short-sighted about the use of resources to 
benefit for-profit business versus the future of natural resources.
Clause Recommendations
     Require that water rights associated with all water 
necessary to operate a ski area be committed to that use in perpetuity.
     Do not allow ski areas to own water rights on leased land.
     The water should remain tied to the land.
     Require a deed restriction to ensure that privately owned 
water rights are not severed from NFS lands.
     Create procedures that safeguard against severance of 
water rights from ski areas.
     Ski areas should commit to retaining water rights with the 
land over the term of the permit.
     Add a provision stating that a water rights clause that 
reduces the availability of water on or to NFS lands may injure 
resources and therefore is presumed to be contrary to the public 
interest.
     A concern regarding adequacy of water may arise if a 
prospective permit holder has not acquired sufficient water rights, and 
the current permit holder retains or sells water rights that have been 
historically used at the ski area.
     It may be helpful to require the Agency to make a 
determination of whether a prospective permit holder has acquired 
sufficient water rights for future ski area operations.
     The permit needs to describe the ground rules or 
responsibilities for the ski area when acting as the agent of the 
Forest Service with respect to water rights.
     Specify how compliance with the water rights clause will 
be measured.
     Factor the value of water rights into ski area permit 
fees.
     Forest Service ownership of water rights would create a 
disincentive for private investment.
     A clause that requires transfer of ownership to the United 
States or that restricts transfer of ski area water rights would 
substantially impair the value of ski area investments.
     The Forest Service does not need to assure long-term 
economic health of the ski industry.
     Ski areas have proven experience with water rights; the 
Forest Service has uneven knowledge of water rights.
     Water rights are an asset like a ski lift that needs to be 
managed by the ski area.
     Water rights are private property rights, not publicly 
owned resources.
     Distinguish between newly acquired water rights and 
existing water rights.
     Do not require change of ownership of existing, privately 
owned water rights.
     Do not require transfer of privately owned water rights to 
the United States without compensation; that would constitute a taking.
     Do not require joint ownership of water rights; that could 
constitute a taking.
     There are legal differences between ski area water rights 
located inside and ski area water rights located outside the permitted 
area.
     Water rights on private and other non-Federal land should 
not be treated

[[Page 35516]]

the same as water rights on NFS lands within a ski area permit 
boundary.
     Recognize different requirements for water rights and 
water use in different jurisdictions.
     Do not establish terms that conflict with municipal water 
rights and associated agreements between suppliers and ski areas.
     Require ski area permit holders to provide written notice 
in advance of any water right application, including notice of filings 
to change a point of diversion or beneficial use.
     Provide an initial option to a subsequent ski area owner 
to purchase the water rights necessary to operate the ski area; provide 
a second option to local government to purchase those water rights; and 
provide a third option to the Forest Service to purchase those water 
rights.
     Condition the quantity rather than the ownership of water 
rights, for example, require ski areas to maintain a specific quantity 
of water rights.
    These comments are addressed in the section-by-section analysis of 
the proposed directive to the extent they were utilized in the 
development of the proposed directive.
Public Notice and Comment
    Establishing terms that govern water rights associated with a ski 
area permit is necessary to communicate clear expectations and to 
achieve consistency in administration of special uses among Forest 
Service administrative units. Pursuant to the court order in National 
Ski Areas Association v. United States Forest Service, the Forest 
Service is providing an opportunity for public comment in revising the 
water rights clause for ski areas. Comments received during the public 
comment period will be assessed in developing the final directive. The 
scope of this proposed directive is water rights clauses for ski area 
permits. Water rights clauses for other types of special uses are not 
addressed.

2. Background on the Forest Service's Regulatory Authority for Special 
Uses

    The Forest Service's authority to manage lands under its 
jurisdiction derives from the Property Clause of the United States 
Constitution, which empowers Congress to ``make all needful Rules and 
Regulations respecting the . . . Property belonging to the United 
States.'' \2\ The Supreme Court has emphasized that Congressional 
authority over Federal lands is ``without limitations.'' \3\ In turn, 
Congress entrusted the Forest Service with authority to ``make such 
rules and regulations and establish such service as will insure the 
objects of the [national forests], namely to regulate their occupancy 
and use and to preserve the forests thereon from destruction.'' \4\ The 
Organic Administration Act constitutes an ``extraordinarily broad'' 
delegation to the Forest Service to regulate use of NFS lands and 
``will support Forest Service regulations and management . . . unless 
some specific statute limits Forest Service powers.'' 5 6 In 
the Organic Administration Act, Congress explicitly recognized that 
Forest Service regulations may impact the use of water on NFS lands (16 
U.S.C. 481) (water on NFS lands may be used ``under the laws of the 
United States and the rules and regulations established thereunder'').
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    \2\ U.S. Const. art. IV, sec. 3, cl. 2.
    \3\ Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
    \4\ Organic Administration Act of 1897 (16 U.S.C. 551).
    \5\ Charles F. Wilkinson & H. Michael Anderson, Land and 
Resource Planning in the National Forests 59 (1987).
    \6\ Wyoming Timber Indus. Ass'n v. United States Forest Serv., 
80 F. Supp. 2d 1245, 1258-59 (D. Wyo. 2000).
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    The Forest Service has broad authority to regulate and condition 
the use and occupancy of NFS lands under the Term Permit Act of 1915 
(16 U.S.C. 497), which authorizes the Secretary of Agriculture to 
permit use and occupancy of National Forest land ``upon such terms and 
conditions as he may deem proper''; the Multiple Use--Sustained Yield 
Act (MUSYA) (16 U.S.C. 529), which authorizes the Secretary of 
Agriculture to develop and administer the surface resources of the 
National Forests; and the Federal Land Policy and Management Act 
(FLPMA) (43 U.S.C. 1765), which authorizes the Secretary of Agriculture 
to impose terms and conditions of rights-of-way on Federal land. In 
1986, Congress directly addressed the Forest Service's authority to 
regulate development of ski areas on NFS lands. In the National Forest 
Ski Area Permit Act of 1986 (16 U.S.C. 497b), Congress explicitly 
provided that permits are to be issued ``subject to such reasonable 
terms and conditions as the Secretary deems appropriate'' (16 U.S.C. 
497(b)(7)).

Special Use Authorizations

    Consistent with its constitutional and statutory authority, the 
Forest Service regulates the occupancy and use of NFS lands, including 
ski area operations, through issuance of special use permits and other 
authorizations (36 CFR part 251, subpart B). The Forest Service must 
include in special use authorizations terms and conditions that the 
Forest Service deems necessary to protect Federal property and economic 
interests (36 CFR 251.56(a)(ii)(A)); manage efficiently the lands 
subject to and adjacent to the use (36 CFR 251.56(a)(ii)(B)); protect 
the interests of individuals living in the general area of the use who 
rely on resources of the area (36 CFR 251.56(a)(ii)(E)); and otherwise 
protect the public interest (36 CFR 251.56(a)(ii)(G)).

The Forest Service's Directive System

    By regulation, the Forest Service has also established the 
Directive System, through which the Chief and specified Line Officers 
can issue directives setting forth the Agency's administrative policy, 
procedure, and guidance (36 CFR 200.4(b)(1)). The Directive System 
consists of the Forest Service Manual (FSM) and a series of Forest 
Service Handbooks (FSHs), which serve as the primary source of 
administrative direction to Forest Service employees. The Special Uses 
Handbook, FSH 2709.11, governs special uses, including ski areas on NFS 
lands.

Proposed Water Rights Clause for Prior Appropriation States

    The proposed water rights clause for prior appropriation States 
would modify the Forest Service's approach to accomplishing the 
objective of long-term availability of water to sustain ski area uses. 
Unlike water rights diverted from and used on NFS lands by holders of 
other types of special use authorizations, water rights for water 
diverted from and used on NFS lands for ski area purposes involve long-
term capital expenditures. In States like Colorado and New Mexico, 
holders of ski area permits may have to purchase senior water rights at 
considerable expense to meet current requirements for snowmaking to 
maintain viability. Holders of ski area permits need to show the value 
of these water rights as business assets, particularly during 
refinancing or sale of a ski area. The value of these water rights is 
commensurate with the significant investment in privately owned 
improvements at ski areas. These investments were recognized by 
Congress in enactment of the National Forest Ski Area Permit Act, which 
authorizes permit terms of up to 40 years. 16 U.S.C. 497b(b)(1). In 
addition to these financial issues, the land ownership patterns at ski 
areas--particularly the larger ones--often involves a mix of NFS and 
private lands both inside and outside the ski area permit boundary, 
making it difficult to implement a policy of sole Federal ownership for 
NFS ski area water rights. Much of the development at ski areas is

[[Page 35517]]

located on private lands at the base of the mountains. As a result, 
water diverted and used on NFS lands in the ski area permit boundary is 
sometimes used on private land, either inside or outside the permit 
boundary.
    Therefore, the Forest Service is proposing to require non-
severability, rather than United States ownership, of NFS ski area 
water rights. In the context of the proposed clause, non-severability 
means that a privately owned water right could not be sold separately 
from other ski area assets (e.g., improvements such as lifts and 
lodges). Non-severability would prevent ski area permit holders from 
taking any action during the term of the permit that would adversely 
affect the availability of applicable water rights to support operation 
of the ski area. By providing for non-severability of NFS ski area 
water rights, the Agency will be able to ensure continued availability 
of water to support ski area operations, so that the Agency can fulfill 
its mandate to provide for recreational use of NFS lands.
    The proposed directive would have no effect on water rights clauses 
in existing ski area permits that predate the 2011 and 2012 clauses. In 
addition, other aspects of the Forest Service's water rights policy, 
such as approval of water facilities, would remain the same for ski 
areas as it is for other types of special uses. Furthermore, the 
proposed directive would have no effect on the Forest Service's water 
rights policy for other multiple uses since water rights for those uses 
would continue to be owned and administered in accordance with 
applicable directives and permit clauses.

3. Section-by-Section Analysis of Proposed Changes

    The Forest Service is proposing to add two clauses for ski area 
water rights to FSH 2709.11, section 52.4: Clause D-30 would be used in 
States that follow prior appropriation law for managing water rights, 
and Clause D-31 would be used in States that follow riparian law for 
managing water rights. Under a prior appropriation system, water rights 
may be severed from the land in some States. Under a riparian system, 
water rights are appurtenant to the land. This approach responds to the 
recommendation that a water rights clause should recognize different 
requirements for different jurisdictions. The chart below identifies 
which clause would be used for ski area permits in various states.

------------------------------------------------------------------------
    D-30 Clause--prior appropriation          D-31 Clause-- riparian
------------------------------------------------------------------------
Arizona                                  Michigan.
California                               New Hampshire.
Colorado                                 Vermont.
Idaho                                    ...............................
Montana                                  ...............................
Nevada                                   ...............................
New Mexico                               ...............................
Oregon                                   ...............................
Utah                                     ...............................
Washington                               ...............................
Wyoming                                  ...............................
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Clause D-30. Water Facilities and Water Rights--Ski Areas in Prior 
Appropriation States

Instructions for the Prior Appropriations Water Rights Clause

    The first paragraph of the instructions would provide direction to 
permit administrators on when to use the prior appropriation clause. 
The first paragraph would limit clause D-30 to ski areas in prior 
appropriation States; provide that clause D-30 supersedes existing 
national and regional ski area water rights clauses in the Directive 
System in prior appropriation States; and provide for inclusion of the 
clause when a ski area permit is reissued or modified per 36 CFR 251.61 
in a prior appropriation State.
    The second paragraph would instruct that before issuing a new or 
modified permit in a prior appropriation State, Authorized Officers 
shall: Ensure that the holder is in compliance with all water facility 
and water use requirements in clause D-30; inventory ski area water 
rights; classify the ski area's water rights consistent with the tables 
in clause D-30; and ensure that the water rights inventory in paragraph 
8 of clause D-30 is approved in writing by the Regional Forester prior 
to issuance or amendment of a ski area permit.
    The third paragraph would provide for amending the permit to update 
the water rights inventory, as appropriate.
    The fourth paragraph would limit water rights and water 
developments under a ski area permit to those that are necessary for 
and that primarily support the operation of the ski area; would provide 
that all water facilities and water rights that meet these criteria, 
regardless of whether they are for diversions on NFS lands inside or 
outside the permit boundary, should be included in the ski area permit; 
and would define what it means to be necessary for and primarily 
support the operation of a ski area.
    The fifth paragraph would provide instructions for use of an 
optional provision when restrictions on water withdrawal are required 
by a regulation or policy, an adjudication, or a settlement agreement 
or are based on a decision document supported by environmental 
analysis; provide instructions for use of an additional provision in 
California, which has a riparian system in addition to a prior 
appropriation system; and require an analysis of water sufficiency 
prior to authorizing a permit amendment for a new water development.
    The sixth paragraph would provide that prior to authorizing a 
permit amendment for a new water facility at a ski area, the Authorized 
Officer shall ensure that sufficient water is available to operate the 
water facility.
    The last paragraph would provide that when bonding is required, 
direction in FSM 6560 applies and standard forms for bonding should be 
utilized.
    These instructions on when and how to use clause D-30 are being 
added to FSH 2709.11, sec. 52.4, to provide direction to permit 
administrators to enhance consistency and accountability in 
authorization of water uses and ownership of water rights for ski 
areas. The instructions incorporate several focus group 
recommendations, including providing a water rights clause for prior 
appropriation States and a water rights clause for riparian States to 
recognize differences among jurisdictions; providing for the proposed 
clause to supersede existing water rights clauses in the Directive 
System; and requiring that a determination of whether sufficient water 
is available be made prior to authorizing new water developments.
    Paragraph F--Water Facilities and Water Rights. Paragraph F would 
define ``necessary'' and ``primarily supports'' in relation to a water 
facility or water right.
    Paragraph 1--Water Facilities. This paragraph contains 
subparagraphs a through h. Paragraph 1a would explain what constitutes 
a water facility; paragraph 1b would require that water facilities on 
NFS lands must be expressly authorized in a permit; paragraph 1c would 
provide that the United States can place conditions on water facilities 
deemed necessary to protect public property, public safety, and natural 
resources on NFS lands; paragraph 1d would provide that only water 
facilities that are necessary for and that primarily support the 
operation of a ski area on NFS lands be included in a ski area permit; 
paragraph 1e would provide that any change in water facilities must be 
expressly authorized by amendment to a permit; paragraph 1f would 
provide that a separate special use authorization is required for water

[[Page 35518]]

facilities on NFS lands if they do not primarily support operation of 
the ski area; paragraph 1g would be incorporated as needed and would 
document restrictions on withdrawal and use of water when applicable; 
and paragraph 1h would be added for ski areas in California, which has 
both prior appropriation and riparian systems, and would provide that a 
ski area permit does not extinguish or otherwise effect a transfer of 
rights, title, or interests of the United States as a riparian or 
littoral landowner.
    These requirements for water facilities would be added to clarify 
the meaning of terms; provide for the imposition of terms and 
conditions that the Forest Service deems necessary to protect public 
property, public safety, and natural resources; clarify what may and 
what may not be authorized by a ski area permit; and expressly require 
approval of changes to water facilities by the Authorized Officer and 
documentation of that approval through amendment to the permit.
    Paragraphs 1b, d, and f would limit the scope of water facilities 
that could be authorized under a ski area permit. These requirements 
are consistent with several focus group recommendations, including 
recognizing differences between water facilities on and off NFS lands 
and water facilities inside and outside the permit boundary, requiring 
advance notice of changes in authorized water facilities, and imposing 
terms that will protect public resources.
    Paragraph 1g would document any water withdrawal restrictions 
required by a regulation or policy, an adjudication, or a settlement 
agreement or based on a decision document and is consistent with the 
recommendation to recognize impacts on other water use or users.
    Paragraph 1h, which addresses the dual water systems in California, 
is consistent with the recommendation to recognize different 
requirements in different jurisdictions.
    Paragraph 2--Water Rights. Paragraph 2 clarifies that the term 
``water right'' means a right to use water that is recognized under 
State law under the prior appropriation doctrine.
    Paragraph 3--Acquisition and Maintenance of Water Rights. Paragraph 
3a would define the term ``NFS ski area water right'' to mean a water 
right that is for water facilities that would divert or pump water from 
sources located on NFS lands, either inside or outside the permit 
boundary, for use that primarily supports operation of the ski area.
    Paragraph 3b would provide that NFS ski area water rights shall be 
acquired in accordance with applicable State law; that the holder shall 
maintain NFS ski area water rights, including federally owned NFS ski 
area water rights, for the term of the permit and any subsequent 
permit; that the holder shall have the responsibility to submit water 
rights applications and filings that are necessary to protect NFS ski 
area water rights in accordance with State law; and that the holder 
shall bear the cost of acquiring, maintaining, and perfecting NFS ski 
area water rights, including federally owned NFS ski area water rights.
    Paragraph 3c would provide that NFS ski area water rights that are 
jointly or solely owned by the United States shall remain in Federal 
ownership. Additionally, paragraph 3c would provide that if the 
holder's ski area permit utilizes NFS ski area water rights acquired in 
the name of or transferred to the United States or held jointly with 
the United States, the holder shall have the responsibility to submit 
any applications or other filings that are necessary to protect those 
water rights as the agent of the United States in accordance with State 
law. Furthermore, paragraph 3c would provide that notwithstanding the 
holder's obligation to maintain federally owned NFS ski area water 
rights, the United States reserves the right to take any action 
necessary to maintain and protect those water rights, including 
submitting any applications or other filings that may be necessary to 
protect those water rights.
    Paragraph 3d would provide that if a water facility corresponding 
to an NFS ski area water right was or is initiated, developed, 
certified, permitted, or adjudicated by the holder without a special 
use authorization, then the water facility is in trespass; that the 
owner of the NFS ski area water right shall apply for authorization of 
the water facility; and that if the application is denied, the owner 
shall promptly remove the water facility and petition in accordance 
with State law to remove the point of diversion and water use from NFS 
lands or abandon the NFS ski area water right.
    Under paragraph 3, NFS ski area water rights that are not owned by 
the United States could be owned by the holder, provided that ownership 
by the holder is consistent with applicable State law as it applies to 
other parties within the State. In contrast to the 2012 clause, 
paragraph 3 would not require transfer of water rights to the United 
States under the terms of prior permits. Paragraph 3 responds to 
several focus group recommendations regarding transfer of water rights 
to the United States.
    Paragraph 4--Non-Severability of Certain Water Rights. Paragraph 4a 
would provide that when the United States owns any NFS ski area water 
rights, the Forest Service shall not take action during the term of the 
permit that would adversely affect availability of those water rights 
to support the operation of the ski area unless deemed necessary by the 
Forest Service to satisfy legal requirements. Paragraph 4a would commit 
the Forest Service for the term of the permit to utilizing any NFS ski 
area water rights obtained in the name of the United States for ski 
area operations. Paragraph 4a would address concerns raised by NSAA 
regarding the 2011 ski area water rights clause that the Agency must 
assure continued availability of ski area water rights owned solely by 
the United States.
    Paragraph 4b would provide that when the holder has an interest in 
any NFS ski area water rights, or water rights that the holder has 
purchased or leased from a party other than a prior holder that are 
changed or exchanged to provide for diversion from sources on NFS lands 
within the permit boundary for use that primarily supports operation of 
the ski area authorized by this permit (``changed or exchanged water 
rights''), the holder shall not take any action during the term of the 
permit that would adversely affect availability of those water rights 
to support the operation of the ski area unless approved in writing in 
advance by the Authorized Officer. Paragraph 4b would commit the holder 
to utilizing any changed or exchanged water rights and NFS ski area 
water rights owned by the holder for ski area operations. Paragraph 4b 
addresses focus group recommendations that water rights needed for ski 
area operations be committed to that use for the long term. 
Furthermore, non-severability is necessary to meet the objective of 
sustained use under MUSYA and is necessary to ensure the long-term 
viability of ski areas. Without the requisite water rights and 
associated water facilities, ski areas cannot operate.
    Paragraph 5--Transfer of Certain Water Rights. Paragraph 5a would 
provide that upon termination or revocation of the permit, the holder 
shall transfer the holder's interest in any NFS ski area and changed or 
exchanged water rights to a subsequent holder and that the current 
holder shall retain the full amount of any consideration paid for those 
water rights. Paragraph 5b would provide that if the ski area is not 
reauthorized, the holder shall promptly petition in accordance with 
State law to remove the point of diversion and water use from NFS lands 
for any changed or exchanged water rights or NFS ski area water rights 
owned solely by the holder

[[Page 35519]]

or shall relinquish those water rights. Paragraph 5b would further 
provide that in the case of any water rights owned jointly by the 
holder and the United States, the holder shall relinquish its ownership 
interest to the United States.
    The restrictions in paragraph 5 help ensure that water remains 
available to fulfill the MUSYA purpose of providing the recreational 
opportunity of skiing to the American public. It is a reasonable 
exercise of the Agency's power over use and occupancy of NFS lands and 
of its mandate to provide sustainable recreation opportunities to 
require that water rights developed on NFS lands for ski area purposes 
be transferred to subsequent ski area owners through the sale of the 
ski area. While water rights are granted by the State agencies or 
courts, the beneficial use and the diversion necessary to their 
establishment rests on the Forest Service's discretionary decision to 
grant a ski area permit, and the Agency's discretionary decision to 
allow use of NFS lands for water facilities. The Agency's authority to 
deny a special use permit for a ski area or a water facility is 
sufficiently broad to allow the Agency to condition those 
authorizations by requiring the holder to sell its water rights to the 
subsequent holder.
    If the ski area is not reauthorized, it is reasonable to require 
the holder to remove the point of diversion and water use for water 
rights owned solely by the holder or, if the holder prefers, to 
relinquish those water rights. The basis of the Agency's authorization 
of ski area water facilities is facilitation of ski area operations. 
Once that use ends, there is no basis for leaving the point of 
diversion and water use on NFS lands: Water facilities cannot be 
maintained on NFS lands without a special use permit (36 CFR 
251.50(a)).
    The transfer provisions in paragraph 5 treat privately owned water 
rights in the same manner as other privately owned assets covered by a 
ski area permit are treated under existing regulations and ski area 
permit provisions. Both privately owned water rights and privately 
owned improvements are tied to the ski area permit when the use is 
still authorized and must be removed or relinquished when the use is no 
longer authorized. A ski area permit terminates when the authorized 
improvements are sold, and the purchaser shall obtain a ski area permit 
to operate them (36 CFR 251.59). A ski area permit provides that when 
the use is not reauthorized, the holder shall either remove the 
privately owned improvements or they become the property of the United 
States. In addition, requiring transfer of privately owned water rights 
to the subsequent permit holder responds to a focus group concern 
regarding adequacy of water rights if a prospective holder has not 
acquired sufficient water rights and the current holder retains or 
sells water rights that have been historically used at the ski area.
    There were several focus group recommendations to give an initial 
option to the succeeding permit holder to purchase privately owned 
water rights, a second option to the local government to purchase these 
water rights, and a third option to the United States to purchase these 
water rights. There are several problems with this approach. It would 
not ensure continuation of the ski area by keeping water rights tied to 
the authorized use. Rather, this approach would only require the ski 
area to make an offer to sell, when the desired result is the transfer 
of water rights needed to operate the ski area. Assuming the initial 
option is not exercised, there is no guarantee that the local 
government would ensure that the water rights remain with the land, and 
if the second option is not exercised, that the Federal Government 
would have resources to purchase the water rights.
    Paragraph 6--Documentation of Transfer. Paragraph 6 would provide 
that when the holder is obligated to transfer the holder's interest in 
any NFS ski area or changed or exchanged water rights to the holder of 
a subsequent permit, the holder or the holder's heirs or assigns shall 
execute a quit claim deed to that effect. Furthermore, this paragraph 
would provide that the holder grants the Authorized Officer a limited 
power of attorney to execute documents necessary to accomplish this 
purpose. The Agency has broad authority to impose terms and conditions 
in special use permits to protect the public interest. A limited power 
of attorney to effectuate transfers of water rights is appropriate, 
given the history of holders acquiring and retaining water rights in 
their name despite permit terms to the contrary and the inability to 
effectuate transfers of water rights absent the limited power of 
attorney if the holder refuses to do so.
    Paragraph 7--Waiver. Paragraph 7 would provide that the holder 
waives any claims for compensation against the United States for any 
water rights that the holder transfers, removes, or relinquishes as a 
result of the provisions in the proposed clause; any claims for 
compensation in connection with imposition of restrictions on severing 
any water rights; and any claims for compensation in connection with 
imposition of any conditions on installation, operation, maintenance, 
and removal of water facilities. While the Forest Service does not 
believe that this clause will result in a taking of private property, 
the waiver provision will shield the United States from claims 
involving implementation of the proposed clause. The waiver provision 
is also constitutional. Although the Fifth Amendment to the United 
States Constitution prohibits the taking of private property for public 
use without just compensation, constitutional rights, including those 
protected by the Fifth Amendment, can be waived. See, e.g., Boykin v. 
Alabama, 395 U.S. 238, 243 (1969); Bistline v. United States, 640 F.2d 
1270, 1273-75 (Ct. Cl. 1981).
    Paragraph 8--Inventory of Necessary Water Rights. Paragraph 8 would 
require the inventory of necessary ski area water rights, including NFS 
ski area water rights owned solely by the United States (paragraph 8a); 
those owned solely by the holder (paragraph 8b); those owned jointly by 
the United States and the holder (paragraph 8c); changed or exchanged 
water rights; and water rights for diversions from non-NFS lands for 
use on NFS lands within the permit boundary, which are owned solely by 
the holder (paragraph 8d). The inventory with the above classification 
would support the focus group recommendation to treat water rights on 
NFS lands differently from water rights off NFS lands. The inventory 
also supports the focus group recommendation to assess the sufficiency 
of water during project analysis, including consideration of current 
ski area operations.
    Paragraph 9--Performance Bond. Paragraph 9 would require the holder 
to maintain a performance bond for the removal of privately owned ski 
area improvements when the holder solely owns NFS ski area water 
rights. A performance bond would comply with FSM 6560. This paragraph 
would provide surety for the protection of NFS lands if a ski area is 
not reauthorized, and the holder chooses to remove the point of 
diversion and water use from NFS lands for any NFS ski area water 
rights owned solely by the holder.
    Acknowledgment of Agreement. This paragraph would be inserted at 
the end of the permit and would provide that the holder has read and 
agrees to all the terms and conditions of the permit, including the 
limited power of attorney to transfer water rights in paragraph 6.

Clause D-31. Water Facilities and Water Rights--Ski Areas in Riparian 
States

    The Forest Service is proposing a new ski area water rights clause 
for use in States that have a riparian system.

[[Page 35520]]

Under the riparian water rights clause, the United States retains all 
rights, title, and interests as a riparian or littoral landowner.
    Instructions for the Riparian Water Rights Clause. The instructions 
would provide direction to permit administrators on when to use the 
riparian water rights clause. The instructions would limit clause D-31 
to ski areas in the riparian States of Michigan, New Hampshire, and 
Vermont; supersede all ski area water rights clauses in the Directive 
System in riparian States; provide for inclusion of clause D-31 when a 
ski area permit is reissued or modified per 36 CFR 251.61 in a riparian 
State; and provide that before issuing a new or modified ski area 
permit in a riparian State, Authorized Officers shall ensure that the 
holder is in compliance with all water facility and water use 
requirements in clause D-31.
    The instructions would provide direction on use of an optional 
provision when restrictions on water withdrawal are required by the 
following: A regulation or policy; an adjudication; a settlement 
agreement; or based on a decision document supported by an 
environmental analysis.
    The instructions would provide for the following: That water 
facilities that are necessary for and that primarily support the 
operation of the ski area on NFS land may be included in a ski area 
permit; all water facilities that meet these criteria, regardless of 
whether they are for diversions on NFS lands inside or outside the 
permit boundary, should be included in the ski area permit; define what 
it means to be necessary for and primarily support the operation of a 
ski area; and that any other water facilities must be authorized under 
a separate permit. Additionally, the instructions would provide that 
before authorizing a permit amendment for a new water facility at a ski 
area, the Authorized Officer shall assure that sufficient water is 
available to operate the water facility.
    Paragraph 1--Water Facilities. Paragraph 1a would define 
``necessary'' and ``primarily supports'' in relation to a water 
facility. Paragraph 1b would explain what constitutes a water facility; 
paragraph 1c would require that water facilities on NFS land must be 
expressly authorized in a permit; paragraph 1d would provide that the 
United States can place conditions on water facilities deemed necessary 
to protect public property, public safety, and natural resources on NFS 
lands; paragraph 1e would provide that only water facilities that are 
necessary for and that primarily support the operation of a ski area 
may be included in a ski area permit; paragraph 1f would provide that 
any change in water facilities must be expressly authorized by a permit 
amendment; and paragraph 1g would require a separate special use permit 
to initiate, develop, certify, or permit any water facility on NFS 
lands that does not primarily support operation of the ski area. These 
requirements mirror the water facilities requirements in clause D-30 to 
the extent applicable.
    Paragraph 2--Water Rights. Paragraph 2 would provide that the ski 
area permit does not convey, dispose of, extinguish, or otherwise 
effect a transfer of any right, title, or interest of the United States 
as a riparian or littoral landowner, and that the United States retains 
all rights, title, and interests it has as a riparian or littoral 
landowner. Paragraph 2 is appropriate for use in ski area permits in 
eastern States that follow riparian law, where water rights are 
appurtenant to the land. Paragraph 2 is also consistent with the focus 
group recommendation that the proposed clause recognize legal 
differences among jurisdictions.
    Paragraph 3--Water Use. Paragraph 3 would document any restrictions 
on withdrawal and use of water required by a regulation or policy, an 
adjudication, or a settlement agreement, or based on a decision 
document supported by environmental analysis. Paragraph 3 is consistent 
with the focus group recommendation to recognize impacts on other water 
use or users.

FSM 6560--Bonding Administration

    A definition for a performance bond for a ski area permit would be 
added to FSM 6560.5. A performance bond for a ski area permit would be 
defined as ``a bond to guarantee repair of surface resource 
disturbance, removal of equipment, removal of any privately owned 
improvements, and forest restoration.''

4. Regulatory Certifications

Environmental Impact

    This proposed directive would revise national Forest Service policy 
governing water rights in ski area permits. Forest Service regulations 
at 36 CFR 220.6(d)(2) exclude from documentation in an environmental 
assessment or environmental impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.'' The Agency has concluded that this 
proposed directive falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or environmental impact statement.

Regulatory Impact

    This proposed directive has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on regulatory planning and review. The 
Office of Management and Budget (OMB) has determined that this proposed 
directive is significant and therefore subject to OMB review under E.O. 
12866. Consequently, as required, a Cost Benefit Analysis was prepared. 
However, the proposed directive is not economically significant because 
it would not have an annual effect of $100 million or more on the 
economy, nor would it adversely affect productivity, competition, jobs, 
the environment, public health and safety, or State or local 
governments. Moreover, the proposed directive would not alter the 
budgetary impact of entitlement, grant, or loan programs or the rights 
and obligations of beneficiaries of those programs or interfere with an 
action taken or planned by another agency.
    The Agency has considered the proposed directive in light of the 
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). Pursuant to a 
threshold Regulatory Flexibility Act analysis, the Agency has 
determined that as defined by the Act because the proposed directive 
would: Impose modest record-keeping requirements on them; not affect 
their competitive position in relation to large entities; and not 
affect their cash flow, liquidity, or ability to remain in the market. 
The proposed directive would likely have a positive economic effect on 
current and future holders and local communities close to ski areas 
because the proposed directive would provide for long-term 
sustainability of ski areas. The basis for this determination is 
enumerated in the threshold Regulatory Flexibility Act analysis.

No Takings Implications

    The Agency has analyzed the proposed directive in accordance with 
the principles and criteria contained in E.O. 12630 and determined that 
the proposed directive would not pose the risk of a taking of private 
property. The waiver provision is constitutional, because 
constitutional rights, including those protected by the Fifth 
Amendment, can be waived. Including requirements regarding non-
severability and transfer of water rights in reissued or modified 
permits, rather than in existing permits, does not effect a taking of 
private property. While the Forest Service does not believe that this 
clause

[[Page 35521]]

will result in a taking of private property, the waiver provision will 
shield the United States from claims involving implementation of the 
proposed clause. The Forest Service has broad authority to include 
appropriate terms and conditions in ski area permits. A ski area permit 
is a voluntary transaction, and a holder can decline the permit and 
retain ownership interest in water rights or accept the permit subject 
to its new conditions.

Civil Justice Reform

    The Agency has reviewed the proposed directive under E.O. 12988 on 
civil justice reform. If the proposed directive were adopted, (1) all 
State and local laws and regulations that conflict with the proposed 
directive or that would impede its full implementation would be 
preempted; (2) no retroactive effect would be given to the proposed 
directive; and (3) it would not require administrative proceedings 
before parties file suit in court challenging its provisions.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Agency has considered the proposed directive under the 
requirements of E.O. 13132 on federalism and has concluded that the 
proposed directive conforms to the federalism principles. The proposed 
directive would not impose any compliance costs on the States; and have 
substantial direct effects on the States or the relationship between 
the Federal Government and the States; or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
Agency has determined that no further assessment of federalism 
implications is necessary at this time.
    The proposed directive does not have tribal implications as defined 
by E.O. 13175, entitled ``Consultation and Coordination with Indian 
Tribal Governments,'' and therefore advance consultation with Tribes is 
not required. Consultation will be concurrent with this Federal 
Register notice.

Energy Effects

    The Agency has reviewed the proposed directive under E.O. 13211, 
entitled ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' The Agency has determined that 
the proposed directive does not constitute a significant energy action 
as defined in the E.O.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of the proposed 
directive on State, local, and Tribal governments and the private 
sector. The proposed directive would not compel the expenditure of $100 
million or more by any State, local, or Tribal government or anyone in 
the private sector. Therefore, a statement under section 202 of the act 
is not required.

Controlling Paperwork Burdens on the Public

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995, (44 U.S.C. 3501 et seq.), the information collection 
requirements included in this proposed rule have been submitted to the 
Office of Management and Budget.
    The bonding requirement in the proposed directive would be 
implemented using Standard Form 25, Performance Bond, which has been 
approved by OMB and assigned control number 9000-0045. Use of form SF-
25 Performance Bond is new for the Forest Service special uses program. 
Additionally, the proposed directive involves a revision to the 
inventory of water rights associated with operation of the ski area by 
adding separate charts for changed or exchanged water rights (para. d) 
and water rights for diversions from non-NFS lands for use on NFS lands 
within the permit boundary (para. e). Furthermore, there is a new 
requirement to document restrictions on withdrawal and use of water, if 
applicable. Upon approval of the final rule, the burden associated with 
this information collection will be incorporated into OMB control 
number 0596-0082, Special Uses for utilization of form FS-2700-5b, Ski 
Area Term Special Use Permit. However, other than the collection of 
information required for the bonding requirement, the inventory of 
water rights, and the documentation of restrictions on withdrawal and 
use of water, all other information collection requirements associated 
with special use authorizations, including the ski area term special 
use permit, are already covered by control number 0596-0082.
    The following summarizes the information collection requirement 
associated with the proposed bonding requirement, the inventory of 
water rights, and the documentation of restrictions on the withdrawal 
and use of water:
    OMB Control Number: 0596--NEW.
    Estimated Burden per Response: 2 Hours.
    Type of Respondents: ski area permit holders.
    Estimated Annual Number of Respondents: 40.
    Estimated Annual Average Number of Responses per Respondent: 1.5.
    Estimated Total Annual Burden on Respondents: 120 hours.
    Comment is invited on (1) whether this collection of information is 
necessary for the stated purposes and proper performance of the 
functions of the Agency, including whether the information will have 
practical or scientific utility; (2) the accuracy of the Agency's 
estimate of the burden for collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collection of information on 
respondents, including automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.
    All comments received in response to this notice, including names 
and addresses when provided, will be a matter of public record. 
Comments will be summarized and included in the package submitted to 
OMB for approval.

5. Access to the Proposed Directive

    The Forest Service organizes its Directive System by alphanumeric 
codes and subject headings. The intended audience for this direction is 
Forest Service employees charged with issuing and administering ski 
area permits. To view the proposed directive, visit the Forest 
Service's Web site at https://www.fs.fed.us/specialuses. Only the 
sections of the FSH and FSM that are the subject of this notice have 
been posted, i.e., FSH 2709.11, Special Uses Handbook, Chapter 50, 
Standard Forms and Supplemental Clauses, Section 52.4, and FSM 6560.5, 
Bonding Administration.

    Dated: June 17, 2014.
Thomas L. Tidwell,
Chief, U.S. Forest Service.
[FR Doc. 2014-14548 Filed 6-20-14; 8:45 am]
BILLING CODE 3411-15-P