Ski Area Water Clause, 81508-81527 [2015-32846]
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number and type of other use (if
applicable).
This information is used to manage
the application process and to issue
permits for recreation uses of Federal
recreational lands and waters. The
information will be collected by Federal
employees and agents who are
authorized to collect recreation fees
and/or issue recreation permits. Name
and contact information will be used to
inform applicants and permit holders of
their success in securing a permit for a
special area. Number in group, number
and type of vehicles, water craft, or
stock may be used to assure compliance
with management area direction for
recreational lands and waters and track
visitation trends. A National Forest may
use zip codes to help determine where
the National Forest’s visitor base
originates. Activity information may be
used to improve services. Personal
information such as names, addresses,
phone numbers, email addresses, and
vehicle registration information will be
secured and maintained in accordance
with the system of records, National
Recreation Reservation System (NRRS)
USDA/FS–55.
Estimate of Annual Burden: 3–15
minutes.
Type of Respondents: Individuals.
Estimated Annual Number of
Respondents: 2,363,600.
Estimated Annual Number of
Responses per Respondent: 1.
Estimated Total Annual Burden on
Respondents: 121,781 hours.
Comment is invited on: (1) Whether
this collection of information is
necessary for the stated purposes and
the 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 of the
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 the use of
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
request for Office of Management and
Budget approval.
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Dated: December 18, 2015.
Glenn P. Casamassa,
Associate Deputy Chief, National, Forest
System.
[FR Doc. 2015–32847 Filed 12–29–15; 8:45 am]
BILLING CODE 3411–15–P
DEPARTMENT OF AGRICULTURE
1. Background and Need for the Final
Directive
Forest Service
RIN 0596–AD14
Ski Area Water Clause
Forest Service, USDA.
Notice of final directive.
AGENCY:
ACTION:
The U.S. Forest Service
(Forest Service or Agency) is amending
its internal directives for ski area
concessions by adding two clauses to
the Special Uses Handbook, Forest
Service Handbook (FSH) 2709.11,
Chapter 50, addressing the sufficiency
of water for operation of ski areas on
National Forest System (NFS) lands.
The Forest Service recognizes the
importance of winter sports
opportunities on NFS lands and the
need to address the sufficiency of water
for ski areas operating on NFS lands. By
addressing this need, this final directive
will promote the long-term
sustainability of ski areas on NFS lands
and the economies of the communities
that depend on revenue from those ski
areas.
DATES: This directive is effective
January 29, 2016.
ADDRESSES: The final directive will be
available for inspection at the office of
the Director, Recreation and Heritage
Resources Staff, Forest Service, USDA,
4th Floor Central, Sidney R. Yates
Federal Building, 1400 Independence
Avenue SW., Washington, DC, during
regular business hours (8:30 a.m. to 4:00
p.m.), Monday through Friday, except
holidays. Those wishing to inspect these
documents are encouraged to call ahead
to facilitate access to the building.
Copies of documents in the record may
be requested under the Freedom of
Information Act. The final directive will
be posted on the Forest Service’s Web
site at https://www.fs.fed.us/specialuses
on the effective date. Only the sections
of the FSH 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.
FOR FURTHER INFORMATION CONTACT:
Sean Wetterberg, National Winter Sports
Program Manager, Recreation, Heritage,
and Volunteer Resources staff, 801–975–
3793, or Jean Thomas, National Water
SUMMARY:
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Rights Program Manager, Watershed,
Fish, Wildlife, Air, and Rare Plants staff,
202–205–1172. Individuals who use
telecommunication devices for the deaf
may call the Federal Information Relay
Service at 800–877–8339 between 8:00
a.m. and 8:00 p.m., eastern daylight
time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
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Constitutional and Statutory Authority
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.’’ U.S. Const. art. IV,
sec. 3, cl. 2. The Supreme Court has
emphasized that Congressional
authority over Federal lands is ‘‘without
limitations.’’ Kleppe v. New Mexico, 426
U.S. 529, 539 (1976). 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.’’
Organic Administration Act of 1897 (16
U.S.C. 551). 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.’’ Charles F. Wilkinson
& H. Michael Anderson, Land and
Resource Planning in the National
Forests 59 (1987). See also Wyoming
Timber Indus. Ass’n v. United States
Forest Serv., 80 F. Supp. 2d 1245, 1258–
59 (D. Wyo. 2000). In the Organic
Administration Act, Congress explicitly
recognized that Forest Service
regulations may affect 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’’).
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) (authorizing the Secretary of
Agriculture to permit use and
occupancy of National Forest land
‘‘upon such terms and conditions as he
may deem proper’’); Multiple Use—
Sustained Yield Act (MUSYA) (16
U.S.C. 529) (authorizing the Secretary of
Agriculture to develop and administer
the surface resources of the National
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Forests); and Federal Land Policy and
Management Act (FLPMA) (43 U.S.C.
1765) (authorizing 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.
497b(b)(7)).
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Regulatory Authority
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
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)); efficiently manage 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)).
Purpose of the Final Directive
One of the Forest Service’s statutory
duties is to provide the American public
with outdoor recreation opportunities
on NFS lands on a sustainable basis.
One of these recreation opportunities is
skiing, as many ski areas are operated
on NFS lands under a permit issued by
the Forest Service. Because water for
snowmaking and other uses is critical to
the continuation of ski areas on NFS
lands, the Forest Service has a strong
interest in addressing the long-term
availability of water to operate
permitted ski areas. This final directive
will promote the long-term
sustainability of ski areas on NFS lands
by addressing the long-term availability
of water to operate ski areas before
permit issuance, during the permit term,
and upon permit termination or
revocation. Providing for the
sustainability of ski areas on NFS lands
will support jobs and the local
economies that depend on revenue from
ski areas on Federal lands. There are
122 ski areas that encompass about
180,000 acres of lands managed by the
Forest Service. Ski areas receive roughly
23 million visitors annually, who
contribute $3 billion yearly to local
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economies and support approximately
64,000 full- and part-time jobs in rural
communities.
Additionally, the final directive will
reduce administrative costs to the
United States by providing for more
effective administration of ski area
permits. The final directive will provide
Agency employees and ski area permit
holders with a consistent and
comprehensive understanding of how
water rights and water facilities should
be managed under a ski area permit.
Specifically, the final directive will
provide direction related to the
treatment of ski area water rights and
authorization of water facilities under
ski area permits, including at permit
issuance, during the permit term, and
upon permit termination or revocation.
Approach of the Final Directive
The final directive contains two
clauses for ski area water rights, one for
eastern States that follow the riparian
doctrine for water rights and one for
western States that follow the prior
appropriation doctrine for water rights.
Under a riparian doctrine system, water
rights are appurtenant to the land,
whereas under a prior appropriation
doctrine system, water rights may be
severed from the land. Most ski areas on
NFS lands are in western states that
adhere to the prior appropriation
doctrine.
For the last 30 years, the Forest
Service has required 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 in prior appropriation doctrine
states. This policy was motivated by the
concern that if water rights used to
support ski area operations are severed
from a ski area—for example, are sold
for other purposes—the Forest Service
would lose the ability to offer the area
to the public for skiing.
The final directive does not provide
for ski area water rights to be acquired
in the name of the United States;
instead, the final directive focuses on
sufficiency of water to operate ski areas
on NFS lands. This modified approach
for ski areas is appropriate given the
characteristics of ski area water rights
and ski areas. Unlike water rights
diverted from and used on NFS lands by
holders of other types of special use
permits, ski area water rights may
involve long-term capital expenditures.
In western 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
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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 involve a mix of NFS and private
lands inside and outside the ski area
permit boundary, which makes it
difficult to implement a policy of sole
Federal ownership for ski area water
rights. Much of the development at ski
areas is on private land 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.
With respect to sufficiency of water
for ski area operations, the final
directive includes a definition for the
phrase, ‘‘sufficient quantity of water to
operate the ski area,’’ and clarifies when
and how the holder must demonstrate
sufficiency of water to operate the
permitted ski area and new ski area
water facilities; addresses availability of
Federally owned ski area water rights
during the permit term; and addresses
availability of holder-owned ski area
water rights during the permit term and
upon permit revocation or termination.
In particular, the final directive:
• Requires applicants for a ski area
permit to submit documentation
prepared by a qualified hydrologist, i.e.,
an individual with the requisite
education (e.g., in geology, forestry,
soils, or engineering), training, and
experience in hydrology to address
sufficiency of water, or licensed
engineer demonstrating sufficiency of
water to operate the permitted ski area
before permit issuance;
• Requires the permit holder to
submit documentation prepared by a
qualified hydrologist or licensed
engineer demonstrating a sufficient
quantity of water to operate a ski area
water facility, as defined by paragraph
F.1.a and b of the final directive, before
it is installed;
• Requires the permit holder to
demonstrate a sufficient quantity of
water to operate the ski area before
transferring or repurposing original
water rights (water rights with a point
of diversion and use inside the ski area
permit boundary that were originally
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established by a permit holder) during
the permit term;
• Addresses the availability of
Federally owned ski area water rights
during the permit term;
• Provides that Federally owned
original water rights remain in Federal
ownership;
• Requires the holder to maintain all
ski area water rights, and reserves the
right of the United States to maintain
Federally owned original water rights;
• Requires the holder to offer to sell
the holder’s interest in original water
rights to the succeeding permit holder
upon permit termination or revocation;
and
• If the succeeding permit holder
declines to purchase the holder’s
interest in original water rights jointly
owned by the United States, requires the
holder to offer to sell that interest at
market value to the United States.
Water clauses for special uses other
than ski areas are not affected by this
final directive.
various reasons as to why they
supported the proposed directive. It was
characterized as a carefully crafted
directive that balanced protecting rivers
and streams with commercial interests.
One commenter praised the Agency for
balancing the fundamental principles of
Agency land management with ski
industry expectations. These principles
include being able to carry out the
Forest Service’s statutory
responsibilities to manage NFS lands on
behalf of the American people, to assert
control over water that originates and is
used on NFS lands for multiple-use
purposes, and to apply conditions of use
to special use authorizations. Several
county or regional commenters believed
the proposed directive protected the
long-term viability of skiing and winter
sports in mountain communities that
have tourism-based economies while
preserving the economic viability of ski
areas operating on Federal lands.
Response: The Forest Service agrees
with these comments.
2. Response to General Comments on
the Proposed Directive
Comments Generally Opposed to the
Proposed Directive
Comment: Several commenters
representing the ski industry, other
business interests, or water districts and
municipalities were generally opposed
to the proposed directive. The ski
industry asserted that the proposed
directive was a heavy-handed approach
that would be counterproductive to the
desire to maintain ski area uses over the
long term. Additionally, some
commenters stated that the proposed
directive was overbroad and exceeded
federal authority, particularly in regards
to proposed Clause D–30. Some water
districts or municipalities simply
objected to the proposed directive as
drafted and requested that it not be
adopted or revised.
Response: Several important
substantive modifications have been
made in the final directive in response
to comments the Agency received on the
proposed directive. The final directive
does not insert the Forest Service into
day-to-day management of ski areas
water rights. Rather, the final directive
takes the Forest Service out of day-today management of ski area water rights
by providing for the holder to establish,
acquire, maintain, and perfect original
water rights. Specific comments and
responses related to proposed Clause D–
30 are contained herein.
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Public Input
Prior to publishing the proposed
directive for public comment, the Forest
Service conducted 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 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.
Additionally, open houses were held in
Denver, Colorado; Salt Lake City, Utah;
and the Lake Tahoe area in California.
The Agency used input from these
listening sessions and open houses in
developing the proposed directive.
On June 23, 2014, the Forest Service
published the proposed directive in the
Federal Register (79 FR 35513). The
proposed directive was posted online at
https://www.gpo.gov/fdsys/pkg/FR-201406-23/pdf/2014-14548.pdf. The Forest
Service received 12,721 letters in
response to the proposed directive, of
which 35 were unique. Additionally,
the Agency provided a 120-day
government-to-government Tribal
consultation period beginning on July
28, 2014. The Agency received written
responses from 5 Tribes.
Comments Generally in Favor of the
Proposed Directive
Comment: More than 12,000
commenters were generally in favor of
the proposed directive and offered
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General Comments
Comment: One commenter suggested
that the Federal Register notice for the
final directive clarify that the Forest
Service has not consistently required ski
areas to acquire water rights in the name
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of the United States. This commenter
believed that the Federal Register notice
for the proposed directive was
misleading in indicating that the
proposed directive was a substantial
change from prior policy.
Response: While there may be
examples of inconsistent application of
prior policy, the Federal Register notice
for the proposed directive correctly
characterizes that policy.
Comment: One commenter believed
that the issues raised by the Agency
could be addressed with existing
mechanisms. This commenter requested
that the Forest Service withdraw the
proposed directive and consult with the
States to address Forest Service
participation in water allocation and
management processes.
Response: The Agency believes that
the final directive is needed to address
management of water resources on NFS
lands and in particular to ensure that ski
areas providing public services on NFS
lands will have a sufficient quantity of
water to operate. The Agency has made
several significant changes to the
proposed directive in response to
comments received. The primary change
with respect to ski area water rights is
a shift in emphasis from nonseverability to ensuring a sufficient
quantity of water to operate the ski area.
The Agency believes that the public
comment period provided reasonable
opportunity for States and others to
provide input on the proposed directive.
The proposed and final directives do
not affect the States’ role in allocating
water rights in States that follow the
prior appropriation doctrine.
Comment: One commenter stated that
the Federal Register notice for the
proposed directive suggests that the
Forest Service has had a uniform
practice of administering special use
permit clauses requiring the permit
holder to acquire water rights in the
name of the United States, but in many
cases these clauses were not enforced.
This commenter recommended
clarifying in the final directive that the
clauses in the final directive will
displace all prior ski area water clauses,
assuming that the Forest Service
modifies the proposed directive to be
acceptable as identified in the
comments. Further, one commenter
urged the Forest Service not to enforce
prior ski area water clauses in prior or
existing ski area permits.
Another commenter submitted that
there are probably many ski area
permits that have no provision for
United States ownership or control of
water rights. This commenter believed
that holders of those permits have little
incentive to request inclusion of the
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proposed clause in their permits. The
commenter also noted that often when
ski area permits are modified, the
amendment addresses only the
proposed change that triggered the
amendment (e.g., expansion of the
permit area). This commenter suggested
that the Forest Service make a concerted
effort to add the new clause to ski area
permits when other modifications are
made to the permits.
Response: Per the instructions in the
final directive, once the final directive
goes into effect, clauses D–30 and D–31
supersede all previous ski area water
rights clauses in the Directive System.
When ski area permits are issued,
reissued, or modified under 36 CFR
251.61 to reflect new, changed, or
additional uses or area, the appropriate
new clause (D–30 or D–31) will be
included in ski area permits, and any
other water clauses in the permits will
be removed.
Holders of existing ski area permits
that are not being reissued or modified
under 36 CFR 251.61 may opt to amend
their permit to include the appropriate
new clause within one year of the
effective date of the final directive,
provided they:
(1) Agree to have all water facilities
on NFS lands that are used primarily for
operation of the ski area and that are not
authorized under a separate permit:
(a) Authorized by their ski area
permit;
(b) designated on a map attached to
the permit; and
(c) included in an inventory in an
appendix to the permit; and
(2) submit documentation prepared by
their qualified hydrologist or licensed
engineer:
(a) Demonstrating that they hold or
can obtain a sufficient quantity of water
to operate the permitted portion of the
ski area; and
(b) identifying all water sources, water
rights, and water facilities necessary to
demonstrate a sufficient quantity of
water to operate the ski area, including
all original water rights; all water
facilities authorized by the ski area
permit; and any existing restrictions on
withdrawal or diversion of water that
are required to comply with a statute or
an involuntary court order that is
binding on the Forest Service.
These requirements, which are
enumerated in paragraphs 1 and 2 of the
instructions for clauses D–30 and D–31,
must be met to implement the new
clauses.
Per National Ski Areas Association,
Inc. v. United States Forest Service, 910
F. Supp. 2d 1269 (D. Colo. 2012), the
2011 and 2012 ski area water clauses in
existing permits are not enforceable.
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However, previous water clauses in ski
area permits are valid and enforceable
as long as they remain in the permit.
Comment: One commenter suggested
that the Forest Service needs an
effective tool to ensure ski area
compliance with this directive. In this
commenter’s experience, ski area permit
holders fight enforcement of even minor
requirements that get in the way of the
industry’s development plans. This
commenter noted that when a ski area
signs a permit with the new water
clause, the ski area must abide by that
clause, as was the case with prior water
clauses in ski area permits. The
commenter further stated that the
American public cannot afford future
litigation on legal requirements that a
ski area agrees to one day and disavows
later.
Response: The Agency agrees that the
terms of a ski area permit executed by
the holder are binding on the holder.
When the appropriate water clause in
the final directive is included in a ski
area permit executed by the holder and
the Forest Service, it will be binding on
and enforceable against the holder.
Comment: One commenter noted that
the proposed directive would not
change the Forest Service’s policy on
water rights for special uses other than
ski areas. This commenter believed that
the Forest Service would continue to
take a possessory interest in water rights
for other special uses, which would
continue to affect municipal water
providers, the agricultural and energy
industries, and all other water users.
Response: The proposed and final
directives affect only ski area permits.
Changes to water clauses for other
special uses are outside the scope of the
proposed and final directives. The
possessory interest provision in Forest
Service directives applies only to water
rights for Forest Service programs
administered on NFS lands, i.e., to
permits where both the water facility
and the water use are on NFS lands.
Forest Service Manual (FSM) 2541.32,
para. 2. The possessory interest
provision does not apply to water rights
held by municipal water providers and
the agricultural and energy industries,
since these water rights are not
associated with both a water facility and
water use on NFS lands. Likewise, the
possessory interest provision does not
apply to water rights held by other
water users that are not associated with
a point of diversion and water use on
NFS lands.
Comment: Commenters questioned
the Agency’s legal authority to manage
water rights on NFS lands and included
citations in support of this position. One
commenter requested that the Forest
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81511
Service specifically identify the
statutory provisions granting the Agency
authority to control water rights.
Another commenter noted that Congress
granted the Forest Service authority to
permit the use of water rights on NFS
lands, but not otherwise regulate them.
Response: Prior appropriation
doctrine States adjudicate and allocate
water rights for all water users,
including the Federal government. The
Forest Service has the authority to
manage use and occupancy of NFS
lands, including use of NFS lands for
ski areas. The Forest Service has broad
authority to condition special use
authorizations that allow use and
occupancy of NFS lands, including the
authority to put water clauses in permits
to ensure sufficiency of water for
authorized uses and to protect public
property, public safety, and natural
resources on NFS lands. The Agency
cited numerous authorities in the
Federal Register notice for the proposed
directive and this Federal Register
notice supporting this position. 79 FR
35516 (June 23, 2014); 16 U.S.C. 481,
497, 497b, 529, 551; 43 U.S.C. 1765; 36
CFR 251,56(a)(ii)(A), (a)(ii)(B), (a)(ii)(E),
(a)(ii)(G).
Comment: One commenter cited
United States v. New Mexico for the
proposition that there is no implied
Forest Service reservation of water for
secondary purposes and that the United
States must acquire water rights in the
same manner as any other public or
private appropriator. Citing the Federal
Task Force Report issued pursuant to
section 389(d)(3) of Public Law 104–
127, this commenter asserted that the
Forest Service must attain the secondary
purposes of the National Forests
without interfering with the diversion,
storage, and use of water for nonFederal purposes.
Response: Ski area water rights do not
qualify as reserved water rights. The
Forest Service, like any other public or
private party, must acquire water rights
from prior appropriation doctrine
States. These States adjudicate and
allocate water rights, including water
rights for the Federal government.
3. Response to Comments Relating to
Specific Clauses
a. PRIOR APPROPRIATION DOCTRINE
STATES—CLAUSE D–30
Proposed Instructions
Only the first, second, fourth, and
sixth paragraphs in the proposed
instructions for clause D–30 received
comment.
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Proposed Paragraph 1
Paragraph 1 of the proposed
instructions provided that clause D–30
supersedes all previous ski area water
rights clauses in the Directive System.
Paragraph 1 also provided that clause
D–30 be included in ski area permits in
prior appropriation doctrine States
when these permits are issued, reissued,
or modified under 36 CFR 251.61 and
that clause D–30 not be included in
Michigan, Vermont, and New
Hampshire, which are riparian doctrine
States.
Comment: A concern was raised that
because the instructions cited a specific
version of the ski area permit and two
specific interim directives, the new
clause would be used only in permits
with these versions of the water rights
clause, rather than in all new or
modified ski area permits.
Response: It was not the Agency’s
intent to limit the new clauses to
permits containing these versions of
prior clauses. To clarify this intent, the
Agency has removed these references
from paragraph 1 of the instructions in
the final directive.
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Proposed Paragraph 2
The second paragraph of the proposed
instructions for clause D–30 provided
that before issuing a new or modified
ski area permit in a prior appropriation
doctrine State, the authorized officer
would have to (1) ensure that the holder
is in compliance with all water facility
and water use requirements in clause D–
30; (2) inventory ski area water rights;
(3) classify the ski area’s water rights
consistent with the tables in clause D–
30; and (4) ensure that the water rights
inventory in paragraph 8 of clause D–30
is approved in writing by the Regional
Forester.
Comment: There was a general
concern regarding the increased
magnitude of work involved in
implementing these instructions. One
commenter suggested that it is
unnecessary for Regional Foresters to
approve water rights inventories in
writing.
Response: The Agency agrees with the
concern regarding the potential
magnitude of work involved in
implementing these instructions.
Therefore, the Agency has revised
paragraph 2 of the instructions for
clause D–30 in the final directive to
address authorization of water facilities
that are used primarily for operation of
the ski area under the ski area permit
and designation of those water facilities
on a map. Additionally, the inventory in
this paragraph is limited to water
facilities on NFS lands that are used
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primarily for operation of the ski area
and that are authorized by this permit.
The final directive recognizes that there
may be existing water facilities used
primarily for operation of the ski area
that are authorized by a separate, valid
special use permit and that those water
facilities may remain under that
separate authorization, including upon
reissuance, if eligible. The Forest
Service will determine eligibility based
on the primary use of that water facility
and applicable statutory authority at the
time of reissuance.
The Agency has added a provision to
the instructions requiring the applicant
for a new or modified ski area permit to
submit documentation prepared by the
applicant’s qualified hydrologist or
licensed engineer demonstrating that
the applicant holds or can obtain a
sufficient quantity of water to operate
the permitted portion of the ski area.
The documentation submitted must
identify all water sources, water rights,
and water facilities necessary to
demonstrate a sufficient quantity of
water to operate the ski area, including
all original water rights; all water
facilities to be authorized by the ski area
permit; and any existing restrictions on
withdrawal or diversion of water that
are required to comply with a statute or
an involuntary court order that is
binding on the Forest Service. This
provision is consistent with the
conceptual shift in the final directive
from non-severability of ski area water
rights to sufficiency of water to operate
the ski area.
The Agency agrees that it is
unnecessary for Regional Foresters to
approve inventories in writing and
therefore has removed that requirement
from the instructions in the final
directive.
Proposed Paragraph 4
Paragraph 4 of the proposed
instructions for clause D–30 provided
that only water facilities and water
rights that are necessary for and that
primarily support operation of the ski
area being authorized may be included
in the ski area permit. Comments
received on the terms ‘‘necessary’’ and
‘‘primarily support’’ are addressed in
the response to comments on proposed
paragraph F. The standard for
determining which water facilities
should be included under a ski area
permit is addressed in the response to
comments on proposed paragraph F.1.d.
Proposed Paragraph 6
Paragraph 6 of the proposed
instructions for clause D–30 provided
that, prior to authorizing a permit
amendment for a new water facility at
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a ski area, the authorized officer would
have to ensure that sufficient water is
available to operate the water facility.
The comments received on the standard
for determining sufficiency of water in
this context are addressed in the
response to comments on proposed
paragraph F.
The remaining paragraphs in the
proposed instructions for clause D–30
(paragraphs 3, 5, and 7) did not receive
specific comment.
Proposed Paragraph F—Water Facilities
and Water Rights
Proposed paragraph F provided that
‘‘necessary,’’ in relation to a water
facility or water right, means that
without that water facility or water
right, the ski area would not be able to
operate. Proposed paragraph F provided
that ‘‘primarily supports’’ in relation to
a water facility or water right means that
the water facility or water right serves
the ski area improvements on NFS lands
significantly more than any other use.
Comment: Several commenters
believed that the definitions of
‘‘necessary’’ and ‘‘primarily supports’’
in the proposed clause were so broad
that they could include water rights
located off NFS lands used to support
the operation of ski area improvements
and could even include the water rights
of municipal water providers that are
used in connection with ski areas. These
commenters believed such expansive
coverage overreaches and should be
narrowed to apply only to water rights
that are necessary for operation of a ski
area and to exclude any other water
rights, such as water rights on non-NFS
lands or water acquired from
municipalities. Additionally, some
commenters stated that, as proposed,
the term ‘‘necessary’’ implied a
determination of whether an individual
water right or water facility is essential
to the viability of the entire ski area.
There was a concern that if considered
individually, a water right might not be
deemed necessary, whereas in total, a
ski area’s portfolio of water rights would
be necessary for operation of the ski
area. Several commenters recommended
either redefining ‘‘necessary’’ to
recognize the cumulative necessity of
water rights or deleting the term
‘‘necessary’’ because the term
‘‘primarily supports’’ is adequate.
Some commenters stated that to
determine whether a water right
‘‘primarily supports’’ a ski area, a
comparison would be made between
water associated with a ski area use and
any other use. Since water at ski areas
is used for a wide assortment of
purposes, these commenters believed it
would be difficult to determine whether
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the water primarily supports a ski area.
For example, water may be used inside
or outside the ski area permit boundary
on either NFS or private land for
condominiums, golf courses, retail
shops, and restaurants. These
commenters also believed it would be
difficult to determine whether a
particular water right ‘‘primarily
supports’’ ski area use because there are
seasonal changes in the use of a
particular water right. For example,
snowmaking in the winter may change
to golf course irrigation in the summer.
Commenters noted that the amount of
necessary water for a ski area is
dynamic and that permit holders need
flexibility to manage their water rights
in the best interest of ski areas. Another
commenter noted that there is
variability from year to year as well as
over the 40-year term of a ski area
permit in the amount of water that is
necessary to operate a ski area. These
variations may be due to the amount of
natural snowfall, levels of visitation,
increases in snowmaking efficiency or
other operational and technical
advances in the use of water,
availability of water based on seniority
in appropriation, and changes in
climate. This commenter stated that all
these variables can result in decreases or
increases in the amount of water
necessary to support ski area operations.
One commenter stated that the
proposed definition of ‘‘necessary’’ in
paragraph F is too narrow because many
water rights are important to the
planned and approved operation of the
ski area. According to this commenter,
the ski area could still operate with a
reduced level of service or quality of
skiing experience in their absence. For
example, the partial loss of snowmaking
water supply during one year might not
result in closing the ski area, but those
snowmaking water rights should
nonetheless be protected under the new
clause. This commenter believed that,
under the proposed directive, a
‘‘necessary’’ water facility or water right
would be subject to the new clause only
if it also ‘‘primarily supports’’ the ski
area operation.
Another commenter believed that the
combination of ‘‘necessary’’ and
‘‘primarily supports’’ was problematic
and that a particular water right serving
multiple purposes, such as domestic
uses for condominiums and commercial
operations at the base of a ski area and
snowmaking inside the permit
boundary, should not result in the
exclusion of the entire water right from
the protections of the new clause.
One commenter expressed concern
that the term ‘‘sufficient water’’ was not
defined, which would create ambiguity
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for States and permit holders. This
commenter sought clarity as to whether
water associated with water rights and
water facilities that are ‘‘necessary for’’
and that ‘‘primarily support’’ a ski area
would be deemed sufficient.
Commenters requested that the Forest
Service provide reasonable criteria and
guidance for determining sufficiency of
water for ski area operations because the
concept is complex and could involve
detailed hydrological analysis and
projections of future climatic
conditions. Commenters believed that
establishing criteria would avoid
disputes, unreasonable expense, and
delay.
One commenter asserted that with
respect to existing water rights, a water
court has already determined
sufficiency of water for ski area
operations and approved water use for
ski area purposes. This commenter
encouraged Forest Service recognition
of the water court’s or State engineer’s
determinations of sufficiency of water
and appropriateness of water use and
acceptance of these findings. This
commenter noted that the permit
holder’s water rights may be used at a
ski area or they may be used at the
holder’s discretion to supply water for
other purposes, provided that sufficient
water remains to operate the ski area.
One commenter observed that the
requirement for sufficient water to be
available is an important tool for the
Forest Service to determine whether
new water facilities, such as
snowmaking systems, will be able to
operate in dry years. However, this
requirement may not ensure that
sufficient water is available to operate in
dry years in every case, for example,
where the facility is served by water
diverted from a location off NFS lands.
This commenter also stated that, as
proposed, this requirement did not
explicitly apply to the issuance of a
permit, which would present an
important opportunity to conduct a
sufficiency analysis.
Another commenter was concerned
that ensuring sufficient water to operate
the ski area could conceivably dry up a
stream and negatively affect flowdependent resources and aquatic
organisms, especially when water is
withdrawn during low-flow periods in
winter. This commenter recommended
amending the second-to-last paragraph
of the instructions to address the
requirements of streamflow-dependent
resources.
Response: The Agency agrees that the
amount of water necessary to operate a
ski area may fluctuate from year to year
and that the proposed definition of the
term ‘‘necessary’’ is problematic. The
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Agency has removed the term
‘‘necessary’’ from the final directive.
The Agency has changed the phrase
‘‘primarily supports’’ to the phrase
‘‘used primarily for operation of the ski
area.’’ In relation to a water facility or
water right, ‘‘used primarily for
operation of the ski area’’ means that the
water facility or water right provides
significantly more water for operation of
the permitted portion of the ski area
than for any other use. Water facilities
and water rights that are used primarily
for operation of a ski area are relevant
to the provisions of the new clauses,
including those that address sufficiency
of water for ski area operations.
In addition, the Agency has added a
definition for the term ‘‘sufficient
quantity of water to operate the ski
area.’’ This term means that under
typical conditions, taking into account
fluctuations in utilization of the
authorized improvements, fluctuations
in weather and climate, changes in
technology, and other factors deemed
appropriate by the applicant’s qualified
hydrologist or licensed engineer, the
applicant has sufficient water rights or
access to a sufficient quantity of water
to operate the permitted facilities, and
to provide for the associated activities
authorized under the ski area permit in
accordance with the approved operating
plan. This new term and definition are
consistent with the shift from nonseverability of water rights to
sufficiency of water to operate the ski
area. The definition recognizes that the
quanity of water is not static and allows
for appropriate factors to be considered
in the sufficiency determination. Before
issuance of a new or modified ski area
permit, applicants will be required to
submit documentation demonstrating
that they hold or can obtain a sufficient
quantity of water to operate the
permitted portion of the ski area. The
submitted documentation will identify
any existing restrictions on withdrawal
or diversion of water that are required
to comply with a statute or an
involuntary court order that is binding
on the Forest Service. Addressing
streamflow-dependent resources
generally is beyond the scope of this
directive.
Proposed Paragraph F.1—Water
Facilities
Proposed Paragraph F.1.a
This provision defined the term
‘‘water facility’’ to mean a ditch,
pipeline, reservoir, well, tank, spring,
seepage, or any other facility or feature
that withdraws, stores, or distributes
water.
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Comment: Several commenters
opined that the definition of ‘‘water
facility’’ in the proposed directive was
not limited to facilities located on NFS
lands and should be narrowed to apply
only to those facilities.
Response: The Agency has revised the
definition of ‘‘water facility’’ in the final
directive to clarify its scope. The
definition in the final directive
references only human-made features
and removes references to natural
features such as springs and seeps. In
addition, the Agency has added the
following definition for ‘‘ski area water
facility’’ in the final directive: ‘‘Any
water facility on NFS lands that is
authorized by this permit and used
primarily for operation of the ski area
authorized by this permit.’’ This
definition clarifies that only water
facilities that are used primarily for
operation of a ski area may be
authorized by the ski area permit. The
Forest Service does not authorize water
facilities located on non-NFS lands.
Proposed Paragraph F.1.b
This proposed provision stated that
no water facility for which the point of
withdrawal, storage, or distribution is
on NFS lands may be initiated,
developed, certified, permitted, or
adjudicated by the holder unless
expressly authorized by a special use
authorization.
Comment: One commenter believed
that proposed paragraph F.1.b would
provide for total Forest Service control
over the adjudication, operation, and
transfer of surface water and
groundwater rights on NFS lands and
that the requirement for Forest Service
permission for slight changes to those
water rights would constitute a taking of
private property in contravention of
State water law, direction from
Congress, and U.S. Supreme Court
rulings. Another commenter alleged that
a water right appropriator does not need
a landowner’s permission to adjudicate
water rights on the landowner’s lands.
Yet another commenter questioned the
need for and the Agency’s authority to
require authorization prior to initiation
or adjudication of water rights
associated with a water facility on NFS
lands. This commenter observed that it
is common practice for water users to
appropriate and adjudicate water rights
on Federal land prior to obtaining a
special use permit. One commenter
observed that the Forest Service can
impose reasonable conditions on the
development of water rights located on
NFS lands through its special use
permit process when facilities to access
those water rights are developed, but
not when the water rights are acquired.
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Additionally, a commenter was
concerned that the proposed restrictions
on taking action regarding water
facilities on NFS lands without a special
use authorization would apply to water
facilities that do not primarily support
a ski area. One commenter observed that
the proposed restrictions would affect
diversions of water off NFS lands and
would limit exercise of the associated
water rights. A commenter also
expressed concern that the permitting
process can take a considerable amount
of time, during which the priority date,
and therefore the value of the water
right, would be in jeopardy.
One commenter recommended
limiting paragraph F.1.b to construction
of water facilities on NFS lands and
deleting the reference to ‘‘initiation,
permitting, or adjudication of water
rights on NFS lands.’’ Others suggested
that the provision be revised to clarify
that the appropriation and adjudication
of a water right for ski area operations
on NFS lands are subject to State law
and are not pre-conditioned on the
existence of Forest Service permission
because the Forest Service has agreed to
be bound by State water law.
Response: The Forest Service agrees
that proposed paragraph F.1.b to a
certain degree conflates acquisition of
water rights from the State with Forest
Service authorization of water facilities
on NFS lands. In addition, paragraph
F.1.b is unnecessary to the extent it
provides that water facilities on NFS
lands must be authorized by a special
use authorization, as this requirement is
already stated in applicable Forest
Service regulations. Therefore, the
Agency has removed proposed
paragraph F.1.b from the final directive.
Proposed Paragraph F.1.c
Proposed paragraph F.1.c provided
that the United States may place any
conditions on installation, operation,
maintenance, and removal of any water
facility that are deemed necessary by the
United States to protect public property,
public safety, and natural resources on
NFS lands. Numerous comments were
received on this provision.
Comment: Some commenters
interpreted proposed paragraph F.1.c as
a mechanism for the Forest Service to
manage water use and water rights on
NFS lands. These commenters noted
that the Agency’s authority to condition
special use authorizations is not
limitless, and that while the National
Forest Ski Area Permit Act allows the
Secretary to make permit changes from
time to time, those changes must be in
accordance with applicable law. These
commenters recommended that
proposed paragraph F.1.c be revised to
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add ‘‘in accordance with applicable
laws.’’
Another commenter observed that
when the Forest Service has raised the
possibility of imposing a bypass flow on
an existing water facility, a solution has
been negotiated that protects both the
water user who is seeking approval to
use Federal land and the national
objectives and interests of taxpayers.
This commenter observed that the
proposed directive provides flexibility
and represents a rededication and
commitment to common-sense water
policies on Federal lands without
jeopardizing the legitimate interests of
taxpayers, ordinary citizens who use
and enjoy those lands, or corporate
permit applicants like ski areas.
Additionally, this commenter observed
that regardless of disagreement over the
Forest Service authority to impose
bypass flow requirements, many water
rights holders with water facilities on
NFS lands have found innovative ways
to accommodate their water rights while
meeting the water needs of other forest
resources. The commenter credited the
Forest Service with showing a growing
willingness to accept workable
alternatives to the imposition of bypass
flow conditions.
Several commenters favored the
ability granted by proposed paragraph
F.1.c to condition use of water facilities
on NFS lands to protect aquatic and
other environmental resources (e.g., by
imposing bypass flow requirements).
These commenters believed that the
Agency has the legal authority and the
legal obligation to do so and that failure
to do so could expose the United States
to substantial litigation risk. Other
commenters noted that in some cases,
the imposition of certain conditions
such as bypass flow requirements may
be the only practical way to protect
environmental resources. Commenters
cited State and Federal cases and
Federal statutes in support of their
position.
Some commenters were concerned
generally about environmental and
social impacts associated with ski area
water rights. One commenter requested
that the Forest Service first determine
how much water is needed to meet
public purposes, such as instream flows
for aquatic life, the movement of wood
and sediment through the stream
system, and seasonal inundation of
floodplains, before allowing ski areas to
divert and appropriate water. Another
commenter requested that the Forest
Service ensure that the proposed
directive protect all public rights and
interests in water on NFS lands,
including Federal reserved water rights
that date back to the establishment of
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the national forest reserves. This
commenter wanted the Forest Service to
compensate for impacts on flows due to
climate change, such as impacts from
rain on snow, by protecting flows
during critical periods and avoiding
activities that would increase peak
flows. This commenter also
recommended evaluating snowmaking
practices to ensure that hydrology, peak
flows, and water quality are not
adversely affected.
Response: The Agency has modified
proposed paragraph F.1.c in the final
directive. The first sentence of
paragraph F.1.c in the final directive
provides that the authorized officer may
place conditions, as necessary to protect
public property, public safety, and
natural resources on NFS lands, on the
installation, operation, maintenance,
and removal of any water facility, but
only in accordance with applicable law.
The Forest Service recognizes that its
actions must be in accordance with
applicable law and that the Agency has
authority under applicable law to
condition special use authorizations
that allow use and occupancy of NFS
lands to protect public property, public
safety, and natural resources on NFS
lands.
The second sentence of paragraph
F.1.c in the final directive states that
clause D–30 does not expand or contract
the Agency’s authority to place
conditions on the installation,
operation, maintenance, and removal of
water facilities at issuance or reissuance
of the permit, throughout the permit
term, or otherwise. Thus, clause D–30
does not affect the Agency’s authority to
place conditions on water facilities
under existing legal authority.
The third sentence of paragraph F.1.c
in the final directive states that the
holder must comply with present and
future laws, regulations and other legal
requirements in accordance with section
I of the ski area permit. This provision
reinforces existing provisions in the ski
area permit that provide protection for
natural resources in connection with
water facilities.
In response to concerns regarding
environmental impacts associated with
water facilities, the sufficiency
documentation an applicant must
submit before receiving a new or
modified ski area permit must include
any existing restrictions on withdrawal
or diversion of water that are required
to comply with a statute or an
involuntary court order that is binding
on the Forest Service. The Forest
Service conducts environmental
analysis, as appropriate, on a sitespecific basis of the effects of water
facilities on NFS lands. This type of
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site-specific analysis is beyond the
scope of this notice of final directive.
Proposed Paragraph F.1.d
Proposed paragraph F.1.d provided
that only water facilities that are
necessary for and that primarily support
operation of a ski area may be
authorized by a ski area permit.
Comment: One commenter
recommended that proposed paragraph
F.1.d provide examples of what is and
what is not considered necessary for ski
area operations. This commenter
suggested that snowmaking and onmountain restaurant uses may be
necessary for ski area operations, but
that base area water needs for
condominiums, golf courses, and other
uses not authorized by the ski area
permit should not be considered
necessary for ski area operations.
One commenter believed this
provision would impose unreasonable
limitations on water facilities within the
permit boundary. This commenter
stated that ‘‘necessary’’ as proposed in
paragraph F.1.d would impose an
unreasonably high threshold and would
include only facilities that are ‘‘missioncritical,’’ would create confusion at the
field level, and would invite
controversy and possibly third-party
challenges regarding whether a
proposed water facility met the
applicable standard.
Response: The Agency agrees that the
term ‘‘necessary’’ is not needed. The
Agency has removed the term
‘‘necessary’’ from paragraph F.1.d in the
final directive and has revised this
provision to clarify that only water
facilities which are on NFS lands and
are used primarily for operation of the
ski area may be authorized by the ski
area permit.
Proposed Paragraph F.1.e
Proposed paragraph F.1.e provided
that any change in the water facilities
authorized by the permit would result
in termination of the authorization for
those water facilities, unless the change
was expressly authorized by a permit
amendment. Examples of changes to
water facilities included (1) use of the
water in a manner that does not
primarily support operation of the ski
area authorized by this permit; (2) a
change in the ownership of associated
water rights; or (3) a change in the
beneficial use, location, or season of use
of the water.
Comment: One commenter raised a
concern that if unauthorized changes to
water facilities resulted in termination
of the authorization, it would create an
incentive for the holder not to make
changes to water facilities that should
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be made. This commenter also observed
that if the penalty for a violation is
merely the loss of the right to use the
water facility, the holder may abandon
a water facility even if it is essential to
providing the current level of public
service. Other commenters asserted that
restrictions on the ability to make
changes to water facilities per paragraph
F.1.e would impede the holder’s ability
to maximize the value and utility of the
associated water right and would
undercut the Agency’s interest in
sustaining ski area operations.
One commenter observed that
proposed paragraph F.1.e does not
clearly identify the types of actions that
are prohibited without authorization
and recommended specifically listing
all changes to a water facility that, if not
authorized by a permit amendment,
would trigger termination of
authorization for the water facility.
Similarly, another commenter observed
that it would be difficult to determine
consistently which modifications
require approval because States define
water rights broadly and do not assign
a percentage of the total water right
dedicated to each use. This commenter
noted that the purposes of a ski area
water right might simply be listed as
‘‘commercial or domestic’’ or
‘‘irrigation, domestic water for
condominiums and homes, restaurants,
and snowmaking,’’ and the amount of
water a ski area uses for each purpose
could change.
Another commenter raised a concern
that this clause would impose an undue
burden on permit holders by placing
restrictions on holders’ ability to obtain,
develop, maintain, or enhance water
rights and thus would create additional
impediments to the development of
water resources to support permitted ski
areas. Additionally, this commenter
noted that the requirement for Forest
Service approval of changes would
delay compliance with State deadlines
and could result in the forfeiture of
water rights or impairment of their
value.
Response: The Agency agrees that
clarification is needed regarding the
types of changes to water facilities that,
if not authorized by a permit
amendment, will result in termination
of authorization of the water facilities
under the ski area permit. In contrast to
proposed paragraph F.1.e, which
provided that any unauthorized change
to water facilities would result in
termination of their authorization under
the ski area permit, paragraph F.1.e in
the final directive provides that if, due
to a change, a ski area water facility will
primarily be used for purposes other
than operation of the ski area,
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authorization for that water facility
under the ski area permit will terminate.
Paragraph F.1.e in the final directive
gives examples of the types of changes
to water facilities that would result in
their being used primarily for purposes
other than operation of the ski area.
These examples include a change in the
ownership of the water facility or the
associated water rights or a change in
the beneficial use, location, or season of
use of the water. Other changes to ski
area water facilities could also result in
their ceasing to be used primarily for
operation of the ski area.
Proposed Paragraph F.1.f
Proposed paragraph F.1.f provided
that the holder must obtain a separate
special use authorization to initiate,
develop, certify, or adjudicate any water
facility on NFS lands that does not
primarily support operation of the ski
area authorized by the ski area permit.
Comment: One commenter observed
that water right adjudications do not
require prior permission from the owner
of the land on which the point of
diversion will be located. This
commenter stated that the Forest
Service has agreed to be bound by State
law and has no authority to use the
requirement for a new special use
authorization to adjudicate water rights
on NFS lands.
One commenter was concerned that if
a separate permit is required for water
facilities on NFS lands that do not
primarily support operation of the ski
area, that permit would include water
clauses for other special uses, which the
commenter believed require transfer of
water rights to the United States, or
would provide for claiming a possessory
interest in water rights in the name of
the United States, consistent with FSM
2541.32. This commenter believed that
Agency testimony before Congress is
inconsistent with claiming a possessory
interest in ski area water rights as
provided in FSM 2541.32 and that the
Agency should clarify in the final
directive that it will not require ski
areas to transfer ownership of water
rights to the United States in any
separate permit for water facilities on
NFS lands that do not primarily support
operation of a ski area.
Response: The Agency has revised
proposed paragraph F.1.f and
consolidated it with paragraph F.1.e in
the final directive. Paragraph F.1.e in
the final directive provides that when
authorization for a water facility under
the ski area permit terminates because a
change in the water facility results in its
ceasing to be used primarily for
operation of the ski area, a separate
special use authorization is required to
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operate that water facility or to develop
a new water facility, unless the holder
has a valid existing right for the water
facility to be situated on NFS lands. A
valid existing right in this context is a
legal right, typically a statutory right, to
use and occupy NFS lands. In the
absence of a valid existing right, a
separate special use authorization is
required under these circumstances
because it is not appropriate to utilize
the National Forest Ski Area Permit Act
to authorize water facilities that do not
primarily support operation of a ski
area. 16 U.S.C. 497b(a), (b). Paragraph
F.1.e in the final directive also provides
that unless the holder has a valid
existing right for the water facility to be
situated on NFS lands, if the holder
does not obtain a separate special use
authorization for these water facilities,
the holder must remove them from NFS
lands.
The Forest Service agrees that it is
inappropriate to use the words
‘‘initiate,’’ ‘‘develop,’’ ‘‘certify,’’ or
‘‘adjudicate’’ in connection with proper
authorization of a new water facility and
has removed these words from
paragraph F.1.e in the final directive.
However, it would be prudent for the
permit holder to communicate with the
Forest Service regarding the likelihood
of approval of a proposed water facility,
regardless of whether it is used
primarily for operation of the ski area,
before incurring expenses in acquiring
associated water rights.
Neither the proposed nor the final
directive provides for the United States
to claim a possessory interest in ski area
water rights. The instructions for
clauses D–30 and D–31 provide that the
possessory interest policy in FSM
2541.32, paragraph 2, will not apply to
ski area permits. Moreover, under
paragraph F.1.e in the final directive,
when the water facilities continue to
support approved ski area operations at
any time of year, the separate permit
will not contain the possessory interest
provision, any waiver provision, or any
power of attorney provision. The
Agency will develop new or modified
water clauses for these permits.
Proposed Paragraph F.1.g
Proposed paragraph F.1.g provided for
documentation of restrictions on
withdrawal and use of water that are
required by regulation or policy, an
adjudication, or a settlement agreement
or that are based on a decision
document supported by environmental
analysis.
Comment: Commenters opined that
proposed paragraph F.1.g is very broad
and would allow the Forest Service to
limit the exercise of privately held water
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rights established under State law by
unilaterally imposing restrictions
without statutory or regulatory
authority. Specifically, these
commenters were concerned that a
single ski area permit administrator
could determine that a regulation or
policy requires restrictions on
withdrawals and impose those limits
under the permit; that Forest Service
staff is not qualified to interpret the
regulations of other Federal and State
agencies; that restrictions could be
based on any settlement agreement with
any party on any subject matter,
regardless of whether the holder of the
water right was a party or had notice
and regardless of whether the Forest
Service was a party to that settlement
agreement; that restrictions based on a
decision document supported by
environmental analysis would not be
limited to decision documents prepared
by the Forest Service and might include
past or future critical habitat
designations for aquatic species made
by the U.S. Fish and Wildlife Service;
and that allowing restriction of water
rights ‘‘based on’’ environmental
documents would leave too much
discretion to the permit administrator.
One commenter believed that proposed
paragraph F.1.g did not accomplish the
stated objective in the Federal Register
notice for the proposed directive of
ensuring the availability of water
resources for ski areas and
recommended deleting proposed
paragraph F.1.g.
Response: The Agency believes that it
is important to document existing
restrictions on withdrawal and use of
water from the permitted NFS lands so
that permit administrators can ensure
that these legal requirements are met
during the typically 40-year term of the
permit. However, the Agency agrees that
the scope of the restrictions should be
limited to those that are legally required
and that it would be more appropriate
to include the requirement in the
instructions for the new water clauses.
Consequently, the instructions for the
new water clauses in the final directive
require the documentation of a
sufficient quantity of water submitted
by an applicant prior to issuance of a
new or modified ski area permit to
identify any existing restrictions on
withdrawal or diversion of water that
are required to comply with a statute or
an involuntary court order that is
binding on the Forest Service.
Additionally, the Agency has removed
the table in the water clause appendix
on restrictions on withdrawal and use of
water, since that information will be
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contained in the sufficiency
documentation.
Proposed Paragraph F.2—Water Rights
Proposed paragraph F.2 defined the
term ‘‘water right’’ to mean a right to use
water that is recognized under State law
under the prior appropriation doctrine.
Additionally, proposed paragraph F.2
provided that the permit does not confer
any water rights.
Comment: One commenter
recommended that the term ‘‘water
right’’ be defined in a way that could be
consistently applied, regardless of State
definitions and processes. This
commenter noted that in Colorado a
conditional water decree or right
establishes a priority date for the
possible future grant of an absolute
water right. In Colorado, an individual
or entity can ‘‘use’’ a water right only
when that individual or entity has put
the water to beneficial use and has been
granted an absolute water right. Treating
a conditional water right as a water right
in the proposed directive would in
many respects be like treating an
application as a water right in other
prior appropriation doctrine States.
Response: The Forest Service believes
that the definition of ‘‘water right’’ in
the proposed directive is appropriate.
The definition should encompass any
water right that is recognized under
State law, including conditional water
rights in the State of Colorado. The
Agency has not changed the proposed
definition of ‘‘water right’’ in the final
directive.
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Proposed Paragraph F.3—Acquisition
and Maintenance of Water Rights
Proposed Paragraph F.3.a
This proposed paragraph defined
‘‘NFS ski area water right’’ to mean ‘‘any
water right acquired by the holder or a
prior holder 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 authorized by
this permit.’’
Comment: Commenters objected to
the term ‘‘NFS ski area water right’’ on
the grounds that it implies that these
water rights belong to the United States;
that the water rights are appurtenant to
NFS lands; and that the Forest Service,
rather than the State, grants the water
rights. These commenters also objected
to the term on the grounds that it could
include water rights that may be
unnecessary for ski area operations and
recommended that the definition be
revised to apply only to water rights that
are necessary for ski area operations. It
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was also recommended that ‘‘NFS’’ be
removed from the term.
Response: The Agency agrees that
‘‘NFS’’ is unnecessary in the term ‘‘ski
area water right’’ and may lead to
confusion. Consequently, the Agency
has removed ‘‘NFS’’ from that term in
the final directive and has simplified
the definition to include any water right
for use of water from a point of
diversion on NFS lands, either inside or
outside the permit boundary, that is
primarily for operation of the ski area.
In addition, the Agency has added
terms and definitions for two categories
of ski area water rights: ‘‘original’’ water
rights and ‘‘acquired’’ water rights.
Using these terms of art simplifies the
wording in subsequent clauses that
differentiate between these two types of
ski area water rights. An ‘‘original water
right’’ is defined as ‘‘any existing or new
ski area water right with a point of
diversion that was or is, at all times
during its use, located within the permit
boundary for this ski area and originally
established under State law through an
application for a decree to State water
court, permitting, beneficial use, or
otherwise recognized method of
establishing a new water right, in each
case by the holder or a prior holder of
the ski area permit.’’ The definition
further clarifies that an original water
right cannot become an acquired water
right by virtue of sale of the water right
to a subsequent ski area permit holder.
An ‘‘acquired water right’’ is defined
as ‘‘any ski area water right that is
purchased, bartered, exchanged, leased,
or contracted by the holder or by any
prior holder.’’ The distinguishing
characteristics between these two types
of ski area water rights is whether they
were originally acquired from the State
by a ski area permit holder to be used
primarily for the operation of the ski
area within the ski area permit
boundary.
Comment: One commenter suggested
that the definition for ‘‘NFS ski area
water right’’ be revised to limit its
applicability to the holder’s interest in
water facilities and water rights because
it may be only a partial interest. Another
commenter believed that water rights
that would not constitute NFS ski area
water rights, such as water rights that
are used for ski area purposes but arise
from a point of diversion on private
land, could still be affected by the
proposed directive. As an example, this
commenter cited an unauthorized
change in ownership of a snowmaking
pipeline diverting water from a stream
on private land to the permitted ski area
on NFS lands, which could result in
termination of authorization for that
water facility. Not having authorization
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for use of the water facility would in
turn limit exercise of the associated
water right.
One commenter wanted to know the
reason for treating water rights that arise
from a point of diversion on NFS lands
differently from water rights that arise
from a point of diversion off NFS lands.
This commenter also requested
consideration of alternatives that would
provide protection of all ski area water
rights, regardless of land ownership at
the point of diversion. Another
commenter requested that further
consideration be given to the
effectiveness of the proposed directive
in accomplishing its underlying policy
objectives with respect to water rights
for water that is stored, diverted, or
pumped on non-NFS lands to support
authorized ski area facilities within the
permit area.
Response: Water rights that are used
for ski area purposes but arise from a
point of diversion located on non-NFS
lands are not affected by this final
directive. Consistent with the definition
for ‘‘ski area water right’’ in the final
directive, which applies to water rights
that are used primarily for operation of
the ski area and that arise from a point
of diversion located on NFS lands, only
water facilities on NFS lands that are
used primarily for operation of the ski
area may be authorized under the ski
area permit. The Forest Service does not
authorize water facilities located on
non-NFS lands. Therefore, in the
example cited by the commenter, there
would be no Forest Service permit, the
water facility would not be subject to
permit terms addressing change in
ownership of the water facility, and
there would be no effect on exercise of
associated water rights.
Proposed Paragraph F.3.b
Proposed paragraph F.3.b provided
that NFS ski area water rights must be
acquired in accordance with applicable
State law; that the holder must maintain
NFS ski area water rights, including
Federally owned NFS ski area water
rights, for the term of the permit, as well
as for the term of any subsequent
permits that may be issued to the holder
for the uses authorized by the permit;
that the holder is responsible for
submitting any applications or other
filings that are necessary to protect
those water rights in accordance with
State law; and that the holder and not
the United States must bear the cost of
acquiring, maintaining, and perfecting
NFS ski area water rights, including
Federally owned NFS ski area water
rights.
Comment: Some commenters sought
clarity on what it means to ‘‘maintain’’
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NFS ski area water rights. One
commenter suggested that the term
‘‘maintain’’ lends itself to water
facilities but is unclear as applied to
water rights. Some commenters asked
whether voluntary or court-ordered
surrender of part of a conditional water
right would constitute a failure to
maintain the water right under proposed
paragraph F.3.b. Some commenters
asked whether loss of a water right due
to failure to maintain it would trigger
termination of the permit per proposed
paragraph F.1.e.
Response: Voluntary or court-ordered
surrender of part of a conditional water
right would not constitute a failure to
maintain the water right. Maintaining a
water right means exercising due
diligence to preserve it in accordance
with applicable State law, including
submitting required filings. The holder,
rather than the Forest Service, is
responsible for submitting applications
or other filings that are necessary to
maintain ski area water rights and for
the cost of those filings. The Agency has
redesignated proposed paragraph F.3.b
as paragraph F.3.c in the final directive
and simplified it to provide that the
holder shall bear the cost of
establishing, acquiring, maintaining,
and perfecting original water rights,
including any original water rights
owned solely or jointly by the United
States. Loss of a water right due to
failure to maintain it will trigger
termination of authorization of the
associated water facility under the ski
area permit (not termination of the ski
area permit) under paragraph F.1.e in
the final directive only if the associated
water facility ceases to be used
primarily for operation of the ski area.
Comment: Several commenters
requested clarification that proposed
paragraph F.3.b would not apply to
third-party water rights, such as water
rights leased from municipalities, that
are used in connection with a ski area
or that are located on NFS lands.
Response: Paragraph F.3.b in the
proposed directive has been moved to
paragraph F.3.c in the final directive
and has been clarified so that it will not
apply to water rights leased from third
parties and other acquired water rights
as defined in the final directive.
Paragraph F.3.c in the final directive
applies only to original water rights as
defined in the final directive, including
those owned solely or jointly by the
United States.
Comment: One respondent believed
that the requirement to maintain NFS
ski area water rights would unlawfully
insert the Forest Service into the day-today management of ski area water
rights.
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Response: Paragraph F.3.c in the final
directive does not insert the Forest
Service into day-to-day management of
ski areas water rights. Rather, this
paragraph takes the Forest Service out of
day-to-day management of ski area
water rights by providing for the holder
to establish, acquire, maintain, and
perfect original water rights.
New Paragraph F.3.b
The Agency has added a new
paragraph F.3.b in the final directive.
This new provision requires that an
inventory of all ski area water facilities
and original water rights be included in
an appendix to the ski area permit and
that the inventory be updated by the
holder upon reissuance of the permit,
installation or removal of a ski area
water facility, when a listed ski area
water facility is no longer authorized by
the ski area permit, or when an original
water right is no longer used for
operation of the ski area. This new
paragraph is needed to administer the
requirements in the new water clauses
regarding ski area water facilities and
original water rights.
Proposed Paragraph F.3.c
Proposed paragraph F.3.c provided
that NFS ski area water rights that are
jointly or solely owned by the United
States must remain in Federal
ownership; 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 must
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; and 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.
Comment: Some commenters
suggested that the Agency lacked the
authority to force a permit holder to act
as an agent of the United States by
requiring the holder to maintain and
bear the cost of acquiring, maintaining,
and perfecting Federally owned NFS ski
area water rights. These commenters
also stated that the Forest Service
cannot delegate its legislated duty to
manage NFS lands to non-Federal
entities.
Response: The Forest Service has
broad authority to condition special use
authorizations, including the authority
to require that the holder of a ski area
permit establish, acquire, maintain, and
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perfect Federally owned original water
rights and bear the cost of those actions.
Comment: One commenter believed
that the requirement in proposed
paragraph F.3.c that any ski area water
rights owned by the United States
remain in Federal ownership was
inconsistent with the purpose of the
proposed directive and was unfair. This
commenter asserted that permit holders
who complied with prior requirements
in ski area water clauses to transfer
ownership to the United States should
be able to recover those water rights
under the final directive.
Response: The final directive is not
retroactive. Any water right owned
solely or jointly by the United States
was acquired in accordance with permit
terms that were in effect at that time.
Additionally, the Forest Service lacks
authority to forfeit ownership of water
rights to ski area permit holders. In an
investigation of a land exchange in Utah
conducted by the U.S. Department of
Agriculture, Office of Inspector General
(OIG), OIG stated that if water rights
were excess to public needs, the water
rights could be exchanged for properties
or services of equal value. Excess water
rights may also be disposed of pursuant
to U.S. General Services Administration
real property procedures. The Forest
Service is not aware of any authority
that would allow the Agency to
relinquish title to water rights other
than by exchange or disposal as noted
above.
In the final directive, the Agency has
moved proposed paragraph F.3.c to
paragraph F.3.d and revised it to state
that original water rights owned solely
by the United States and the United
States’ interest in jointly owned original
water rights shall remain in Federal
ownership. In addition, paragraph F.3.d
in the final directive provides that
notwithstanding the holder’s obligation
to maintain original water rights owned
by the United States, 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 the water rights.
Proposed Paragraph F.3.d
Proposed paragraph F.3.d provided
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
on NFS lands without a special use
authorization, then the water facility is
in trespass; that the owner of the NFS
ski area water right must apply for
authorization of the water facility; and
that if authorization is denied, the
owner of the NFS ski area water right
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must promptly remove the point of
diversion and water use from NFS lands
or must abandon the NFS ski area water
right.
Comment: One commenter observed
that it may not be possible to determine
whether existing water facilities are
properly authorized or in trespass
because they may not be listed in the ski
area permit or identified on a map
attached to the permit. This commenter
stated that, in practice, ski area
improvements may have been
considered authorized if they were
located within the permit boundary and
approved in a decision document
pursuant to an environmental analysis.
Several commenters asserted that the
proposed directive would have
retroactive effect because many water
facilities for previously adjudicated ski
area water rights would be found in
trespass. These commenters also noted
that proposed paragraph F.3.d is
contrary to State laws that do not
require landowner approval before
adjudication of a water right. These
commenters also believed that proposed
paragraph F.3.d is contrary to numerous
authorizations that allow development
of privately owned water facilities on
NFS lands and could jeopardize the
availability of water for ski area
operations. These commenters
recommended that proposed paragraph
F.3.d be revised or deleted. One
commenter opined that the Agency
lacks the legal authority to apply rules
retroactively and suggested striking the
words ‘‘was or’’ from proposed
paragraph F.3.d.
Response: The Agency is removing
proposed paragraph F.3.d from the final
directive because this provision is
unnecessary. Existing regulations at 36
CFR 251.50(a) require a special use
authorization for water facilities on NFS
lands. Moreover, per paragraph 1 in the
final instructions for the new ski area
water clauses, all water facilities on NFS
lands that are used primarily for
operation of the ski area will be
authorized under the ski area permit.
Existing water facilities on NFS lands
which are authorized by a separate,
valid special use permit may remain
under that separate permit, including
upon reissuance, if eligible. These water
facilities will not be eligible for
reissuance under a separate permit if
they are used primarily for operation of
the ski area and the separate permit is
issued under a statute other than the
National Forest Ski Area Permit Act.
This Act provides for ski areas and
associated facilities on NFS lands to be
authorized under its provisions. 16
U.S.C. 497b(a), (b). In that case, upon
termination of the separate permit, the
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water facilities will be authorized under
the ski area permit.
In addition, under paragraph F.1.e in
the final directive, when authorization
for a water facility under the ski area
permit terminates because a change in
the water facility results in its ceasing
to be used primarily for operation of the
ski area, a separate special use
authorization is required to operate that
water facility or to develop a new water
facility, unless the holder has a valid
existing right for the water facility to be
situated on NFS lands. A valid existing
right in this context is a legal right,
typically a statutory right, to use and
occupy NFS lands. In the absence of a
valid existing right, a separate special
use authorization is required under
these circumstances because it is not
appropriate to utilize the National
Forest Ski Area Permit Act to authorize
water facilities that do not primarily
support operation of a ski area. 16
U.S.C. 497b(a), (b). Paragraph F.1.e in
the final directive also provides that
unless the holder has a valid existing
right for the water facility to be situated
on NFS lands, if the holder does not
obtain a separate special use
authorization for these water facilities,
the holder must remove them from NFS
lands.
Proposed Paragraph F.4—NonSeverability of Certain Water Rights
Proposed Paragraph F.4.a
Proposed paragraph F.4.a provided
that when the United States owns any
NFS ski area water rights, the Forest
Service may not take any action that
would adversely affect availability of
those water rights to support operation
of the ski area during the term of the
permit, unless deemed necessary by the
Forest Service to satisfy legal
requirements.
Comment: Several commenters did
not believe that proposed paragraph
F.4.a provided enough assurance that
the Forest Service would not take any
action that would adversely affect the
availability of Federally owned NFS ski
area water rights for ski area operations
during the permit term. Some
commenters asserted that it was unclear
what was meant by ‘‘legal
requirements’’ that might release the
Agency from this commitment and
questioned whether land management
plan standards and guidelines would be
deemed legal requirements.
Additionally, commenters
recommended narrowing the term ‘‘legal
requirement’’ to ‘‘the Endangered
Species Act’’ or striking the words
‘‘unless deemed necessary by the Forest
Service to satisfy legal requirements’’
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from the final directive. One commenter
suggested striking proposed paragraph
F.4.a entirely and addressing the Forest
Service’s commitment not to take any
action adversely affecting the
availability of Federally owned NFS ski
area water rights on a case-by-case basis.
One commenter suggested that this
provision be revised to give ski area
permit holders the right to approve
changes the Forest Service makes to
Federally owned NFS ski area water
rights, so that they are dedicated to ski
area operations for the benefit of the
subsequent holder.
Response: In the final directive, the
Agency has revised paragraph F.4.a to
state that the Agency shall not divide or
transfer ownership of or seek any
change in Federally owned water rights
used by the holder that would adversely
affect their availability for operation of
the ski area during the term of this
permit, unless required to comply with
a statute or an involuntary court order
that is binding on the Forest Service.
Paragraph F.1.c in the final directive
states that clause D–30 does not expand
or contract the Agency’s authority to
place conditions on the installation,
operation, maintenance, and removal of
water facilities at issuance or reissuance
of the permit, throughout the permit
term, or otherwise. Thus, paragraph
F.4.a does not expand or contract the
Agency’s ability to place conditions on
water facilities under existing legal
authority.
Proposed Paragraph F.4.b
Proposed paragraph F.4.b provided
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 for use that primarily
supports operation of the ski area
authorized by the permit (‘‘changed or
exchanged water rights’’), the holder
may not take any action during the
permit term that would adversely affect
the availability of those water rights to
support operation of the ski area
authorized by the permit, unless
approved in writing in advance by the
authorized officer. Actions that require
advance written approval by the
authorized officer included any division
or transfer of ownership of the water
rights and any modification of the type,
place, or season of use of the water
rights.
Comment: Some commenters believed
that the restriction in proposed
paragraph F.4.b would inhibit ski area
permit holders’ ability to manage their
water rights and would substitute the
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permit holders’ discretion with that of
the Forest Service in this context. Other
commenters asserted, for example, that
a permit holder may desire to sell water
rights that once were necessary for ski
area operations, but which the permit
holder has determined are no longer
necessary because of changed
circumstances, such as increased
efficiency. Alternatively, these
commenters suggested that the permit
holder may determine that it is in the
best interests of the ski area to replace
certain sources of necessary water with
other sources, but would be unable to
do so under proposed paragraph F.4.b.
Some commenters believed that this
provision would undermine the Forest
Service’s stated objective of ensuring
sustainability of ski areas by impairing
the holder’s ability to develop and
maintain water rights and ultimately
would make less water available for
successive permit holders. These
commenters noted that ski area permit
holders have acquired and maintained
sufficient water rights at ski areas to
provide outstanding recreation to the
public on NFS lands at no cost to the
Forest Service without a restriction on
severability.
One commenter noted that the type of
actions that would require approval by
the authorized officer, including ‘‘any
modification of the type, place, or
season of use of the water rights,’’
would be difficult to determine
consistently because frequently in
decrees and certificates States define
water rights very broadly or list every
conceivable water use. For example, this
commenter stated that a decree for one
ski area might simply list the uses for a
ski area water right as ‘‘commercial and
domestic,’’ while another decree for a
ski area water right might list the uses
as ‘‘irrigation and domestic water for
condominiums and homes, restaurants,
and snowmaking.’’ This commenter
further noted that the difficulty would
be compounded by the fact that States
frequently do not assign a percentage of
the total water right that is dedicated to
each use, which would essentially leave
it to the holder to tell the Agency how
much water is typically consumed for
each use.
Commenters were concerned that the
restriction in proposed paragraph F.4.b
would apply to water rights that the
holder does not own, in addition to
water rights the holder has purchased or
leased from a party other than a prior
holder, and that the Forest Service lacks
the authority to impose this restriction.
One commenter noted that the Forest
Service does not have sole discretion to
determine whether it is legally entitled
or required to interfere with a ski area
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water right. These commenters believed
that State water administration
authorities may also play a significant
role in determining the appropriateness
of the Forest Service’s actions related to
water rights. These commenters
recommended that the directive
recognize the need for the Forest Service
to comply with State law and coordinate
with State agencies before making any
legal determination regarding ski area
water rights. These commenters also
suggested that the directive recognize
the permit holder’s right to seek judicial
review of the accuracy of the Agency’s
determination that interference with a
water right was required by law. Some
commenters were concerned that the
restriction in proposed paragraph F.4.b
would have a retroactive effect because
it would apply to water rights acquired
many years ago.
One commenter suggested that the
proposed definition for ‘‘changed or
exchanged water rights’’ was too
narrow, in that it would apply only to
water rights ‘‘that the holder has
purchased or leased from a party other
than a prior holder.’’ This commenter
noted that this proposed definition
would not include water rights that (1)
are located off NFS lands; (2) are used
under a change or exchange decree to
allow diversion of water on NFS lands;
and (3) were originally appropriated by
the current or prior holder of the ski
area permit, rather than being
‘‘purchased or leased’’ from another
party. The commenter believed there is
no reason to exclude these water rights
from the scope of clause D–30. Another
commenter recommended reinforcing
that the restriction in proposed
paragraph F.4.b would apply not only to
purchased or leased ski area water
rights, but also to ski area water rights
acquired by the holder or a prior holder
through appropriation. This commenter
also recommended clarifying that the
directive would not apply to water
purchased by a ski area permit holder
from a municipality or other entity that
retains ownership of the associated
water right.
Response: A primary objective of the
proposed and final directives is to
address the long-term availability of
water for ski areas on NFS lands so as
to support the public recreation
opportunity they provide and the
economies of the local communities that
depend on their revenue. The Agency
believes that ensuring the long-term
availability of water to operate ski areas
on NFS lands can be accomplished by
focusing on original water rights, i.e.,
water rights with a point of diversion
and use inside the ski area permit
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boundary that were originally
established by a permit holder.
In the final directive paragraph F.4.b
applies only to original water rights
owned solely or jointly by the holder,
which are critical to addressing
sufficiency of water to operate a ski area
on NFS lands. In addition, in deciding
whether to approve division or transfer
of or a change to an original water right,
the authorized officer must consider any
documentation prepared by the holder’s
qualified hydrologist or licensed
engineer demonstrating that the
proposed action will not result in a lack
of a sufficient quantity of water to
operate the permitted portion of the ski
area.
Moreover, the Agency has added
paragraph F.4.c in the final directive,
which states that the holder may seek to
change, abandon, lease, divide, or
transfer ownership of or take other
actions with respect to acquired water
rights at any time and solely within its
discretion. Paragraph F.4.c in the final
directive also provides that, following
these actions, paragraph F.1.e will apply
to the associated ski area water
facilities. Paragraph F.1.e in the final
directive addresses proper
authorization, and in certain
circumstances removal, of water
facilities after certain changes have been
made in connection with those water
facilities.
Paragraph F.4.b in the final directive
applies only to original water rights that
are owned solely or jointly by the
holder, not to water that is purchased or
leased from municipalities or other
entities. The concerns regarding the
definition for ‘‘changed or exchanged
water rights’’ are moot because the
Agency has removed that definition
from the final directive. The Forest
Service’s authority to include a water
clause in ski area permits to address
availability of water for operation of ski
areas on NFS lands is separate from
prior appropriation doctrine States’
authority to adjudicate and allocate
water rights. Paragraph F.4.b in the final
directive will not have retroactive effect
because it will apply to the current
holder of the ski area permit.
Proposed Paragraph F.5—Transfer of
Certain Water Rights
Proposed Paragraph F.5.a
Proposed paragraph F.5.a provided
that upon termination or revocation of
the permit, the holder must sell the
holder’s interest in any NFS ski area
water rights or changed or exchanged
water rights to the purchaser of the ski
area improvements. Proposed paragraph
F.5.a also provided that the holder will
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retain the full amount of any
consideration paid for those water rights
by the purchaser of the ski area
improvements, and that those water
rights must continue to be used
primarily in support of the ski area.
Comment: Several commenters
objected to proposed paragraph F.5.a on
the grounds that limiting the market for
ski area water rights to one buyer would
undermine that market and devalue the
water rights. Commenters believed the
Forest Service should recognize that the
existing holder is not the sole source of
water rights for a succeeding holder.
These commenters noted that the
succeeding holder may have purchased
water rights from another source prior to
applying for the ski area permit or may
be able to obtain sufficient water by
acquiring water rights from the State or
by purchasing or leasing water from
municipalities, water districts, reservoir
companies, or other entities. These
commenters noted that the Forest
Service should not restrict the
succeeding holder to acquiring water
rights from the current holder.
Additionally, commenters questioned
whether the Agency’s concern regarding
insufficiency of water rights for ski area
operations was valid. These commenters
believed it was unlikely that the holder
would sell a viable ski area with
insufficient water rights to operate
because it would not be in the best
interests of the holder to do so. The
commenters also asserted that the Forest
Service’s authority under special use
permit regulations at 36 CFR 251.54 and
251.59 to require that succeeding permit
holders have a sufficient quantity of
water to operate a ski area before issuing
a new ski area permit was adequate to
address the Agency’s concern in this
context.
Three commenters believed that the
existing permit holder should be
required only to offer to sell certain
types of ski area water rights at market
value to the succeeding permit holder.
These commenters believed that
requiring the holder to offer to sell,
rather than to sell, certain types of ski
area water rights to the succeeding
permit holder would maintain the value
of the water rights while satisfying the
Agency’s interest in ensuring that
sufficient water is available for ski area
operations. The commenters believed
this approach would be less likely to
result in legal controversy because the
approach would be more consistent
with the ski area’s property rights.
These commenters recommended that
the market value of these water rights be
determined by appraisal and that the
cost of the appraisal be split between
the holder and the succeeding holder.
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Additionally, the commenters
recommended that existing holders not
be required to sell to the succeeding
holder any water rights associated with
undeveloped phases of a ski area’s
master development plan. Further, these
commenters recommended that
payment of the full price of ski area
water rights purchased by the
succeeding holder be due within 30
days of purchase or an otherwise
agreed-upon timeframe.
Conversely, other commenters
supported the transfer requirement in
proposed paragraph F.5.a because the
requirement is premised on the
commercial reality that water rights
associated with a ski area permit are
customarily included in the assets that
are transferred to a buyer as part of the
overall asking price, and because the
transfer requirement is consistent with
the requirement under the special use
regulations at 36 CFR 251.60(i) to
remove privately owned improvements
from NFS lands when they are no longer
authorized. One commenter agreed that
it is appropriate for the holder to retain
the full amount of the consideration
paid by the succeeding holder for the
holder’s interest in ski area water rights.
One commenter criticized the transfer
requirement in proposed paragraph
F.5.a as a perpetual allocation by the
Federal government of Colorado’s scarce
water supply to an activity that could
become economically marginal, but
would be perpetuated as long as an
individual or entity is willing to apply
for a permit. This commenter believed
that tying privately held water rights to
a particular use in this manner could
thwart the allocation of senior water
rights to new and higher-value uses that
are important for Colorado’s future
development.
Response: The Agency believes that
its concern regarding sufficiency of
water for ski area operations can be
addressed by requiring the holder to
offer to sell, rather than to sell, the
holder’s interest in original water rights
to the succeeding permit holder. This
requirement, combined with the new
requirement in the instructions for the
purchaser of a ski area to submit
documentation demonstrating that the
purchaser holds or can obtain a
sufficient quantity of water to operate
the permitted portion of the ski area
prior to obtaining a permit, will meet
the Agency’s objective of addressing
sufficiency of water to operate the ski
area while giving the succeeding permit
holder the option to purchase the
holder’s interest in original water rights
or obtain water from other sources.
Neither the proposed nor the final
directive provides for water rights to be
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tied perpetually to a use that may cease
to be viable. Like the proposed
directive, the final directive addresses
disposition of ski area water rights when
the ski area is not reauthorized upon
termination or revocation of the permit.
Paragraph F.5.a in the final directive
also provides that if the succeeding
permit holder declines to purchase
original water rights owned solely by
the holder, the holder may transfer them
to a third party. If the succeeding permit
holder declines to purchase the holder’s
interest in original water rights jointly
held with the United States, the holder
must offer to sell that interest at market
value to the United States. If the United
States declines to purchase that interest,
the holder may abandon, divide, lease,
or transfer its interest at its sole
discretion.
Paragraph F.5.a in the final directive
imposes no restrictions on the transfer
or abandonment of acquired water
rights.
Paragraph F.5.a in the final directive
provides that the holder will retain the
full amount of any consideration paid
for the holder’s interest in original or
acquired water rights. Paragraph F.5.a in
the final directive does not prescribe a
valuation mechanism or payment
timeframe, as the Agency believes these
issues are more appropriately addressed
by the parties to the sale.
In addition, paragraph F.5.a in the
final directive provides that following
transfer or abandonment of water rights
under that paragraph, paragraph F.1.e
will apply to the associated ski area
water facilities. Paragraph F.1.e in the
final directive addresses proper
authorization, and in certain
circumstances removal, of water
facilities after certain changes have been
made in connection with those water
facilities.
Proposed Paragraph F.5.b
Proposed paragraph F.5.b provided
that if the Forest Service does not
reauthorize the ski area, the holder must
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 and NFS ski area water rights
owned solely by the holder, or the
holder may relinquish those water
rights. Proposed paragraph F.5.b further
provided that the holder must
relinquish its ownership interest in any
water rights owned jointly by the holder
and the United States.
Comment: Some commenters objected
to the requirement in proposed
paragraph F.5.b to remove from NFS
lands the point of diversion for any
changed or exchanged water rights or
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NFS ski area water rights owned solely
by the holder if the ski area is not
reauthorized. These commenters
believed that the reason for this
requirement is unclear and that it would
be inconsistent with the purpose of the
Supreme Court finding that the Forest
Service’s Organic Act reserved the
National Forests primarily to provide
water to western settlers. Commenters
believed that changing the points of
diversion for these water rights would
require State proceedings, which would
be administratively onerous and
expensive. These commenters suggested
that the Forest Service authorize those
points of diversion under a separate
permit and thus maintain the value of
the water rights. Another commenter
observed that allowing the holder to
transfer water rights to different points
of diversion and use if the ski area is not
reauthorized is consistent with Colorado
State law and would mitigate any
potential for forfeiture of the holder’s
solely owned water rights to the United
States.
One commenter was concerned that
the requirement to relinquish to the
United States the holder’s interest in
jointly owned water rights if the ski area
is not reauthorized would eliminate any
market for those water rights. Another
commenter noted that water rights
appropriated under State law in western
states are not appurtenant to the land,
and that the owner of these water rights
can sever them from the land and
transfer them to a different point of
diversion and use, provided that the
transfer does not impair other water
rights. One commenter stated that there
would be no impact on ski area
recreation opportunities on NFS lands if
the holder transferred its interest in
jointly owned ski area water rights to a
different point of diversion and use if
the ski area is not reauthorized by the
Forest Service.
Response: In the final directive, the
Agency has revised paragraph F.5.b to
allow the holder to submit a proposal to
the Forest Service for a permit
authorizing a different use for the ski
area water facilities. If a different use is
not authorized for those water facilities,
the holder must remove them from NFS
lands. The Agency has replaced the
requirement to relinquish the holder’s
interest in jointly owned ski area water
rights to the United States if the ski area
is not reauthorized with the requirement
to offer to sell that interest to the United
States at market value. Paragraph F.5.b
in the final directive provides that if the
United States declines to purchase that
interest, the holder may abandon,
divide, lease, or transfer its interest at its
sole discretion. The Forest Service
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agrees that when a ski area is not
reauthorized, there most likely would be
no impact on ski area recreation
opportunities on NFS lands if the holder
severed its interest in jointly owned ski
area water rights from the United States’
interest in those water rights. Paragraph
F.5.b in the final directive also clarifies
that the holder may, in its sole
discretion, abandon, divide, lease, or
transfer any water rights solely owned
by the holder.
Proposed Paragraph F.6—
Documentation of Transfer
Proposed paragraph F.6 provided that
when the foregoing provisions in
proposed clause D–30 require the holder
to transfer the holder’s interest in any
NFS ski area water rights or changed or
exchanged water rights to the holder of
a subsequent permit, the holder or the
holder’s heirs and assigns must execute
and properly file any documents
necessary to transfer the holder’s
interest, including but not limited to
executing a quit claim deed. Proposed
paragraph F.6 also provided that by
executing the permit, the holder grants
a limited power of attorney to the
authorized officer to execute, on behalf
of the holder, any documents necessary
to transfer ownership under the
foregoing provisions.
Comment: Commenters objected to
the limited power of attorney in
proposed paragraph F.6 with regard to
execution of documents necessary to
transfer ownership of water rights on
the grounds that it is offensive, heavyhanded, adversarial, unnecessary, and
unsupported by law. Several
commenters recommended that the
Agency remove the limited power of
attorney provision from the final
directive or provide further justification
for its need.
Response: The Agency has removed
proposed paragraph F.6 from the final
directive, as it is not necessary to
support the revised concept for
addressing sufficiency of water for
operation of ski areas on NFS lands. In
particular, since the final directive no
longer requires transfer of water rights,
there is no need for a limited power of
attorney on behalf of the Forest Service
to ensure water rights are transferred if
the holder declines to do so.
Proposed Paragraph F.7—Waiver
Proposed paragraph F.7 provided that
the holder waives any claims against the
United States for compensation for any
water rights the holder transfers,
removes, or relinquishes as a result of
the foregoing provisions in proposed
clause D–30; any claims for
compensation in connection with
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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 in
support of the ski area authorized by the
permit.
Comment: Commenters objected to
proposed paragraph F.7 on the grounds
that it would require waiver of their
constitutional protections and that the
Forest Service lacks statutory authority
to require waiver of those protections.
Other commenters believed that the
waiver requirement was unnecessary.
One commenter recommended that the
Agency rely on the constitutionality of
the final directive, rather than require
permit holders to waive constitutional
claims. Several commenters requested
that proposed paragraph F.7 be removed
from the final directive.
Response: The Agency does not
believe that a waiver provision is
necessary, since the Agency does not
believe that proposed and final clause
D–30 effect a taking of private property.
Therefore, the Agency has removed
proposed paragraph F.7 from the final
directive.
Proposed Paragraph F.8—Inventory of
Necessary Water Rights
Proposed paragraph F.8 included 5
tables for recording certain information
about water rights, including the state
identification number; owner; purpose
of use; decree, license, or certificate
number; point of diversion; and point of
use. Each table addressed a different
category of water rights, including NFS
ski area water rights that are owned
solely by the United States; NFS ski area
water rights that are owned solely by the
holder; NFS ski area water rights that
are owned jointly by the United States
and the holder; changed or exchanged
water rights; and water rights for points
of diversion on non-NFS lands for use
on NFS lands within the permit
boundary.
Comment: One commenter opposed
the requirement to create and maintain
an inventory of ski area water rights on
the grounds that it would impose an
unnecessary burden on the Forest
Service and could introduce a conflict
between the States’ or permit holder’s
water rights records and the Agency’s
inventory. Additionally, this commenter
asserted that the inventory was not
necessary to ensure that a succeeding
permit holder had sufficient water for
operation of the ski area and would
impose unnecessary bureaucratic delay
on permit holders and needless
workload on Agency staff. Another
commenter noted that the inventory was
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unnecessary given the Agency’s lack of
water rights oversight to date and the ski
industry’s history of using those water
rights to provide outstanding recreation
opportunities at no cost to the Agency.
Some commenters were concerned
that inventorying water rights for points
of diversion on non-NFS lands for use
on NFS lands within the permit
boundary per proposed paragraph F.8.e
could be interpreted as imposing
limitations on third-party water rights
owned by entities that have no interest
in the permitted ski area and that such
restrictions would unreasonably
interfere with the use of water that is
located outside the permit area and is
unrelated to the ski area. One
commenter asserted that there is no
connection between inventorying water
rights for points of diversion on nonNFS lands and the Forest Service’s
interest in ensuring continuity of
recreation opportunities for skiing on
NFS lands and protecting water
resources within the ski area permit
boundary.
Some commenters generally
supported inventorying NFS ski area
water rights because the inventory
would disclose water uses by ski areas
on Federal land. One commenter
requested that the final directive be
revised to specify a procedure for
updating the inventory of ski area water
rights that primarily support operation
of the ski area when a ski area permit
is amended or reissued to a new holder.
This commenter believed that an
updated inventory would reflect any
additions or deletions from the list of
ski area water rights and that these
changes should be subject to public
notice and comment.
One commenter was concerned that
focusing on ski area water rights in their
entirety, rather than on the specific
interest in water rights held by the
permit holder for ski area purposes,
would invite arguments about the scope
of the inventory; risk excluding water
supplies that are important to the
continued operation of the ski area; and
possibly create problems for third
parties, such as a reservoir company and
its shareholders, who also have
ownership or other interests in the
water rights. The commenter observed
that ski area water rights in Colorado
may be divided into fractional interests
that are separately owned. In that case,
different uses of the same water right
may be subject to separate terms and
conditions for purposes of
administration by the State engineer.
Alternatively, ski area water rights
could be owned by nonprofit corporate
entities such as ditch and reservoir
companies, and the interests in those
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water rights could be represented by
shares of stock in those companies.
Response: An inventory of ski area
water facilities is necessary to
implement clauses D–30 and D–31 in
the final directive to track water
facilities that are authorized under the
ski area permit, both at permit issuance
and during the permit term, i.e., after
changes are made in connection with
water facilities that affect whether they
are being used primarily for operation of
the ski area. An inventory of original
water rights is necessary to implement
clause D–30 in the final directive to
track original water rights for purposes
of implementing paragraphs in clause
D–30 that apply to those water rights.
Per paragraph F.4.b in the final
directive, the inventory will be updated
by the holder upon reissuance of the ski
area permit, installation or removal of a
ski area water facility, when a listed ski
area water facility is no longer
authorized by the permit, or when an
original water right is no longer used for
operation of the ski area.
The Agency does not believe that
maintaining an inventory of original
water rights will impose an unnecessary
burden on the Forest Service or pose the
risk of a conflict with the States’ or
permit holder’s water rights records.
Holders have a record of their ski area
water rights and can provide the
requisite information to the authorized
officer to ensure that the inventory is
accurate and updated as needed.
Maintaining the inventory in the final
directive will be simpler than
maintaining the inventory in the
proposed directive. In the final
directive, the Agency has moved the
inventory tables to an appendix and has
reduced the 5 tables to 2, to track only
original water rights and ski area water
facilities authorized under the ski area
permit. Finally, the Agency has
removed the requirement for Regional
Forester approval of the inventory
before issuance of a new or modified ski
area permit.
The Agency agrees that water rights
for points of diversion off NFS lands for
use on NFS lands inside the ski area
permit boundary should not be tracked
in the inventory. These water rights do
not arise from a point of diversion on
NFS lands and therefore do not meet the
definition of ‘‘ski area water rights’’ in
the final directive.
The Agency does not believe that
changes to the inventory should be
subject to public notice and comment.
The inventory is a tracking mechanism.
Prior appropriation doctrine States, not
the Federal government, adjudicate and
allocate water rights. Forest Service
decisions regarding installation or
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removal of ski area water facilities will
be subject to appropriate environmental
analysis, including public involvement,
as appropriate.
Proposed Paragraph F.9—Performance
Bond
Proposed paragraph F.9 provided that
when the holder owns any changed or
exchanged water rights or solely owns
any NFS ski area water rights, the
holder must maintain a performance
bond that fully covers the cost of
removing all privately owned ski area
improvements and restoring the site if
the use is not reauthorized. Proposed
paragraph F.9 also provided for the
minimum amount of the bond to be
specified and for the amount of the
bond to be determined by the
authorized officer.
Comment: One commenter asserted
that Forest Service form SF–25 is not
appropriate for implementing the
proposed performance bond
requirement because of the form’s
references to ‘‘contracts’’ and
‘‘contractors.’’ This commenter
recommended that a new form be
developed that is tailored specifically to
the obligations under FSM 6560.5.
Other commenters questioned the need
for a new performance bond
requirement that would cover the cost of
removing facilities and site restoration if
a ski area is not reauthorized. Some
commenters sought clarification as to
how this performance bond compares to
the existing performance bond
requirements in the ski area permit. One
commenter asserted that this
requirement is unnecessary because of
the existing performance bond clause in
the ski area permit, which allows the
Forest Service to require a performance
bond at its discretion. One commenter
asked for clarification as to whether the
performance bond requirement would
apply only to water facilities or to any
ski area facilities. Additionally, some
commenters objected to the cost of the
performance bond.
Some commenters supported the
performance bond requirement to
ensure that the permit holder removes
authorized water facilities when the
permit terminates and suggested that the
performance bond requirement be
extended to all special use permits.
Response: The shift in focus with
respect to ski area water rights from
non-severability in the proposed
directive to ensuring sufficiency of
water for ski area operations in the final
directive makes the performance bond
requirement unnecessary in the final
directive. Therefore, the Agency has
removed proposed paragraph F.9 from
the final directive. The objection to the
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use of form SF–25 is moot because the
bonding requirement has been removed.
The recommendation to expand the
performance bond requirement to other
types of special use permits is beyond
the scope of this directive.
Acknowledgment of Terms
This provision stated that the holder
has read and agrees to all terms and
conditions of the permit, including the
authorization provided in proposed
paragraph F.6 that allows the authorized
officer to act on the holder’s behalf in
executing all necessary documents to
transfer ownership of NFS ski area
water rights and changed or exchanged
water rights as provided in the permit.
No comments were received on this
provision. Since proposed paragraph F.6
has been removed from the final
directive, the acknowledgment of terms
provision is moot and has also been
removed from the final directive.
b. RIPARIAN DOCTRINE STATES—
CLAUSE D–31
In several respects, the comments and
responses on proposed clause D–30
apply to proposed clause D–31.
Consequently, where applicable, the
Agency has revised clause D–31 in the
final directive, including the
instructions, to track the changes to
clause D–30 in the final directive,
including the instructions.
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Proposed Paragraph F.1—Water
Facilities
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Proposed paragraph F.1.e provided
that only water facilities that are
necessary for and that primarily support
operation of the ski area authorized by
the permit may be included in the
permit. No specific comments were
received on proposed paragraph F.1.e in
clause D–31. The Forest Service has
redesignated proposed paragraph F.1.e
as F.1.d and revised the paragraph to
track the revisions made to the
corresponding proposed paragraph in
clause D–30.
New Paragraph F.1.e
The Agency has added a new
paragraph F.1.e requiring an inventory
of all ski area water facilities on NFS
lands to be included in the appendix of
the permit. The inventory must be
updated by the holder upon reissuance
of the ski area permit, installation or
removal of a ski area water facility, or
when a listed ski area water facility is
no longer authorized by the ski area
permit. This new paragraph corresponds
to the new inventory provision in clause
D–30 and is needed to track water
facilities that are authorized under the
ski area permit, both at permit issuance
and during the permit term, i.e., after
changes are made in connection with
water facilities that affect whether they
are being used primarily for operation of
the ski area.
Proposed Paragraph F.1.f
Proposed Paragraph F.1.d
Proposed paragraph F.1.d provided
that the United States may place
conditions on installation, operation,
maintenance, and removal of any water
facility that are deemed necessary by the
United States to protect public property,
public safety, and natural resources on
NFS lands.
Comment: Commenters asserted that
the Forest Service does not have
unfettered rights to impose any
condition it sees fit on ski area water
facilities as implied by proposed
paragraph F.1.d. These commenters
recommended that proposed paragraph
F.1.d be amended in the final directive
to add ‘‘in accordance with applicable
laws’’ as required by the National Forest
Ski Area Permit Act.
Response: The Forest Service has
redesignated proposed paragraph F.1.d
as F.1.c in the final directive and
revised paragraph F.1.c to track the
revisions to the corresponding
paragraph in proposed clause D–30. The
response to comments on the
corresponding proposed paragraph in
clause D–30 is incorporated here by
reference.
VerDate Sep<11>2014
Proposed Paragraph F.1.e
Proposed paragraph F.1.f provided
that any change in water facilities
authorized by this permit will result in
termination of the authorization for
those water facilities, unless the change
is expressly authorized by a permit
amendment. As examples of this type of
change, proposed paragraph F.1.f listed
use of the water in a manner that does
not primarily support operation of the
ski area authorized by the permit and a
change in the beneficial use, location, or
season of use of water.
Comment: A commenter was
concerned that proposed paragraph F.1.f
would unreasonably restrict the
maintenance and management of water
resources and that greater flexibility was
needed by holders in this context. For
example, this commenter cited the need
for flexibility to respond to changes in
technology, weather conditions, or
operational priorities and the need to
make decisions quickly or in the case of
a Federal government shutdown.
Response: In the final directive, the
Agency has revised proposed paragraph
F.1.f to track the revisions made to the
corresponding paragraph in proposed
clause D–30. The response to comments
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on the corresponding proposed
paragraph in clause D–30 is
incorporated here by reference.
Proposed Paragraph F.1.g
Proposed paragraph F.1.g provided
that the holder must obtain a separate
special use authorization to initiate,
develop, certify, or permit any water
facility on NFS lands that does not
primarily support operation of the ski
area authorized by the permit.
Comment: Commenters were
concerned that separate permits issued
under proposed paragraph F.1.g would
not include the ski area water clauses,
but rather would include standard water
clauses for other special uses that
require ownership of the water rights to
be transferred to the United States.
Response: In the final directive, the
Agency has combined proposed
paragraph F.1.g with paragraph F.1.f. In
addition, the Agency has revised
proposed paragraph F.1.g to track the
revisions made to the corresponding
provision in proposed clause D–30. The
response to comments on the
corresponding proposed paragraph in
clause D–30 is incorporated here by
reference.
Proposed Paragraph F.2—Water Rights
Comment: Some commenters
recommended revising proposed
paragraph F.2 to dedicate ski area water
rights to ski area purposes to the extent
the United States has any right, title, or
interest in them as a riparian or littoral
landowner.
Response: In riparian doctrine States,
water rights are appurtenant to the land
and cannot be severed from the land.
Therefore, in contrast to clause D–30,
there is no need for clause D–31 to
address severability of water rights from
the permitted NFS lands.
No Takings Implications
Comment: Several commenters were
concerned that proposed clause D–30
would effect a taking of private property
by the Federal government. Commenters
asserted several bases for this concern,
including the fact that the proposed
directive would not rescind water
clauses for other special uses that
require transfer of ownership of water
rights to the United States; would
require transfer of NFS ski area water
rights to a succeeding permit holder;
and would require transfer of the
holder’s solely owned NFS ski area
water rights to the United States if the
holder fails to move the point of
diversion and use for those water rights
when a ski area is not reauthorized. In
addition, these commenters cited their
belief that proposed clause D–30 would
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establish absolute control over the
adjudication and operation of ski area
water rights, for example, by requiring
Forest Service permission for even
minor changes; would allow the Forest
Service to impose unlimited restrictions
on water rights; and would not rescind
prior ski area water rights clauses that
required transfer of ownership of water
rights to the United States. Several
commenters asserted that the Forest
Service lacks the legal authority to
require holders to relinquish water
rights under the ski area permit.
Response: The Forest Service does not
believe the proposed and final
directives effect a taking of private
property. Including requirements
regarding ski area water rights in ski
area permits that are issued, reissued, or
modified under 36 CFR 251.61, rather
than in existing ski area permits, does
not effect a taking of private property.
The Forest Service has broad authority
to include appropriate terms and
conditions in special use permits,
including ski area permits. 79 FR 35516
(June 23, 2014); 16 U.S.C. 481, 497,
497b, 529, 551; 43 U.S.C. 1765; 36 CFR
251,56(a)(ii)(A), (a)(ii)(B), (a)(ii)(E),
(a)(ii)(G). A ski area permit is a
voluntary transaction, and a holder can
decline the permit or accept the permit
subject to its new conditions.
Neither the proposed nor the final
directive provides for Forest Service
adjudication of water rights. The
provisions governing use of water
facilities have been clarified and
narrowed consistent with the objectives
of the final directive. When it becomes
effective, the final directive will
supersede prior ski area water clauses in
the Forest Service’s Directive System
and standard ski area permit form.
Water clauses in existing ski area
permits, other than the 2011 and 2012
water clauses that were invalidated by
the court’s order in National Ski Areas
Association, Inc. v. United States Forest
Service, remain in effect. Holders of
existing permits that are not being
reissued or modified under 36 CFR
251.61 may elect to have these water
clauses replaced with the appropriate
water clause in the final directive
within one year of the effective date of
the final directive, provided they:
(1) agree to have all water facilities on
NFS lands that are used primarily for
operation of the ski area and that are not
authorized under a separate permit:
(a) authorized by their ski area permit;
(b) designated on a map attached to
the permit; and
(c) included in an inventory in an
appendix to the permit; and
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(2) submit documentation prepared by
their qualified hydrologist or licensed
engineer demonstrating that:
(a) they hold or can obtain a sufficient
quantity of water to operate the
permitted portion of the ski area; and
(b) identifying all water sources, water
rights, and water facilities necessary to
demonstrate a sufficient quantity of
water to operate the ski area, including
all original water rights; all water
facilities authorized by the ski area
permit; and any existing restrictions on
withdrawal or diversion of water that
are required to comply with a statute or
an involuntary court order that is
binding on the Forest Service.
Per paragraph F.3.d of the final
directive, original water rights owned
solely by the United States and the
United States’ interest in jointly owned
original water rights will remain in
Federal ownership.
Water clauses for special uses other
than ski areas are beyond the scope of
this directive.
Controlling Paperwork Burdens on the
Public
Comment: One commenter
recommended developing a new
standard form to document the bonding
requirement for removal of ski area
improvements and site restoration,
rather than relying on Forest Service
form SF–25, which is intended to secure
performance under the terms of the
permit.
Response: This comment is moot,
since the Agency has removed the
bonding requirement from the final
directive.
Federalism and Consultation and
Coordination With Indian Tribal
Governments
The Agency has considered the final
directive under the requirements of E.O.
13132 on federalism and has concluded
that the final directive conforms to the
federalism principles in the E.O. The
final directive will not impose any
compliance costs on the States and will
not have substantial direct effects on the
States, 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.
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires Federal agencies to consult and
coordinate with tribes on a government-
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81525
to-government basis on policies that
have tribal implications, including
regulations, legislative comments or
proposed legislation, and other policy
statements or actions that have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
The Forest Service has assessed the
impact of this policy on Indian tribes
and determined that this directive does
not, to our knowledge, have tribal
implications that require tribal
consultation under E.O. 13175.
However, the Forest Service provided a
120-day government-to-government
consultation period for recognized
Tribes starting July 28, 2014. Tribes
were provided the Federal Register
notice for the proposed directive and
proposed clauses D–30 and D–31. Tribes
were encouraged to contact their local
Forest Service administrative unit to
engage in government-to-government
consultation. Five Tribes submitted
written comments in response to the
request for consultation. The Hopi and
Navajo Tribes acknowledged receipt of
the comment opportunity, but did not
provide comments.
The summaries of those Tribes that
did comment and the Agency’s
responses follow.
Comment: The Tulalip Tribes stated
that their water rights pursuant to the
Treaty of Point Elliot of January 22,
1855 (12 Stat. 927), include a water right
for instream flows to protect and
enhance fish species and their habitat
and to provide the habitat for flora and
fauna harvested under the Treaty. The
Tulalip Tribes want the Forest Service
to ensure that water rights for ski areas
in the State of Washington are held by
the Federal government and are
specifically limited to the term, place,
and uses in the ski area permit. The
Tulalip Tribes believed that this
restriction would ensure that waters
important for preservation of NFS lands
and resources could not be transferred
to other uses. The Tulalip Tribes further
noted that the proposed directive
addresses providing recreation
opportunities, economic benefit to
holders of special use permits, and
protecting the public interest in water
and other resources under the Agency’s
jurisdiction, but fails to acknowledge
the Agency’s legal duty to protect the
Tulalip Tribes’ water rights, which
predate any other water rights pursuant
to the Treaty of Point Elliot and an E.O.
dated December 23, 1873.
Response: For the reasons stated
above, the final directive modifies the
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Forest Service’s approach to
accomplishing the objective of longterm availability of water to sustain ski
area uses. In particular, the final
directive does not provide for ski area
water rights to be acquired in the name
of the United States. With respect to ski
area water rights, the final directive
emphasizes sufficiency of water for ski
area operations. In particular, the final
directive includes a definition for the
term, ‘‘sufficient quantity of water to
operate the ski area,’’ and clarifies when
and how the holder must demonstrate a
sufficient quantity of water to operate
the ski area; provides that the holder
may not make changes that would
adversely affect the availability of the
holder’s solely or jointly owned original
water rights for ski area operations
during the permit term, unless approved
in writing in advance by the authorized
officer; requires the holder to offer to
sell the holder’s interest in original
water rights to the succeeding permit
holder; and provides that if a purchaser
of the ski area declines to buy the
holder’s interest in jointly owned
original water rights, the holder must
offer to sell that interest to the United
States.
The Forest Service is committed to
honoring Tribal treaty and other
reserved rights, including Tribal water
rights. Nothing in the final directive will
infringe upon these rights. Water rights
acquired under State law in connection
with ski area permits are subject to the
valid existing water rights of other water
rights holders, including valid existing
Tribal treaty and other reserved water
rights, if any. Reference to the water
rights of specific Tribes would be
outside the scope of this directive,
which sets forth water clauses for ski
area permits.
Comment: The Winnebago Tribe of
Nebraska stated that the proposed
directive may proceed, but asked to be
notified if any burial sites or cultural
properties are found during
construction, as the Tribe has cultural
properties on NFS lands. Similarly, the
Ysleta Del Sur Pueblo Tribe asked to be
consulted if any human remains or
artifacts that fall under Native American
Graves Protection and Repatriation Act
(NAGPRA) guidelines are unearthed in
connection with the proposal. The
Ysleta Del Sur Pueblo Tribe stated that
it does not have any other comments,
does not object to the proposed
directive, and does not believe that it
would otherwise adversely affect any
traditional, religious, or culturally
significant sites of the Tribe.
Response: The final directive does not
implement any site-specific decisions
regarding the conditioning or
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17:59 Dec 29, 2015
Jkt 238001
construction of water facilities at ski
areas on NFS lands. If a Tribe requests
consultation on the final directive, the
Forest Service will work with the Office
of Tribal Relations to ensure meaningful
consultation is provided where changes,
additions and modifications identified
herein are not expressly mandated by
Congress. The Forest Service will
evaluate the need for and conduct
appropriate tribal consultation on such
site-specific projects if and when they
are proposed. Prior to any permit being
issued or conditions being placed, the
authorized officer must, pursuant to
Executive Orders 12898 and 13175 and
NFS Directives, consult with relevant
populations, including tribes having a
current or historical interest in the NFS
lands authorized by the permit or
condition. Additionally, in accordance
with NAGPRA, an existing clause in the
standard ski area permit form states that
if the holder inadvertently discovers
human remains, funerary objects, sacred
objects, or objects of cultural patrimony
on NFS lands, the holder must
immediately cease work in the area of
the discovery; make a reasonable effort
to protect and secure the items; and
immediately notify the authorized
officer by telephone of the discovery
and follow up with written confirmation
of the discovery.
4. Regulatory Certifications
Environmental Impact
This final directive revises 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 final
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 final directive has been reviewed
under USDA procedures and E.O. 12866
on regulatory planning and review. The
Office of Management and Budget
(OMB) has determined that this final
directive is significant and therefore
subject to OMB review under E.O.
12866. The final directive is not
economically significant because it will
not have an annual effect of $100
million or more on the economy; it will
not adversely affect productivity,
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Fmt 4703
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competition, jobs, the environment,
public health and safety, or State or
local governments; and it will 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 cost-benefit analysis prepared by
the Agency for the final directive
concludes that the benefits of the final
directive to the Forest Service
substantially outweigh the costs because
the Agency has corrected the procedural
deficiencies associated with 2011 and
2012 ski area water clauses and because
the final directive will enhance
treatment of ski area water rights and
administration of ski area water
facilities under ski area permits. The
cost-benefit analysis also concludes that
the costs to permit holders associated
with the final directive are minimal and
are substantially outweighed by the
benefits of enhanced sustainability of
ski areas on NFS lands and improved
administration of ski area permits.
The Agency has considered the final
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 the final directive will
not have a significant economic impact
on a substantial number of small entities
as defined by the Act because the final
directive will impose only modest
record-keeping requirements on them;
will not affect their competitive position
in relation to large entities; and will not
affect their cash flow, liquidity, or
ability to remain in the market. The
final directive will likely have a positive
economic effect on current and future
ski area permit holders and local
communities close to ski areas because
the final directive addresses long-term
sustainability of ski areas. The basis for
this determination is enumerated in the
threshold Regulatory Flexibility Act
analysis for the final directive.
No Takings Implications
The Agency has analyzed the final
directive in accordance with the
principles and criteria contained in
E.O.12630 and has determined that the
final directive will not pose the risk of
a taking of private property.
Civil Justice Reform
The Agency has reviewed the final
directive under E.O. 12988 on civil
justice reform. Upon adoption of the
final directive, (1) all State and local
laws and regulations that conflict with
the final directive or that impede its full
implementation will be preempted; (2)
no retroactive effect will be given to the
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final directive; and (3) it will not require
administrative proceedings before
parties file suit in court challenging its
provisions.
Energy Effects
The Agency has reviewed the final
directive under E.O. 13211, entitled
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use.’’ The Agency has
determined that the final 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 final directive on State,
local, and Tribal governments and the
private sector. The final directive will
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.
mstockstill on DSK4VPTVN1PROD with NOTICES
Controlling Paperwork Burdens on the
Public
The information collection associated
with the final directive is different from
the information collection associated
with the proposed directive. In
particular, rather than requiring an
inventory of 5 different types of water
rights, the final directive requires an
inventory of only original water rights
and ski area water facilities authorized
by the permit. In addition, the final
directive requires an applicant for a new
or modified ski area permit to document
a sufficient quantity of water to operate
the ski area and an applicant for a new
water facility to document a sufficient
quantity of water to operate the
proposed water facility.
Therefore, through this Federal
Register notice, the Agency is providing
an opportunity to comment on the
information collection associated with
the final directive during the 30-day
period between the publication date and
the effective date of the final directive.
When this information collection has
been approved for use, it will be
incorporated into OMB control number
0596–0082, Special Uses
Administration. All other information
collections associated with the ski area
permit are already covered by OMB
control number 0596–0082.
The following summarizes the
information collection associated with
the final directive:
OMB Control Number: 0596–0235.
Estimated Burden per Response: 1.5 hours.
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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: 90 hours.
Comment is invited on (1) whether
this information collection 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
associated with the information
collection, 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 information collection on
respondents, including automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
All comments received in response to
the notice of this information collection,
including names and addresses when
provided, will be included in the record
for the final directive. The comments
will be summarized and included in the
package submitted to OMB for approval.
5. Access to the Final 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 final directive,
visit the Forest Service’s Web site at
https://www.fs.fed.us/specialuses. Only
the sections of the FSH 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.
Dated: December 23, 2015.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2015–32846 Filed 12–29–15; 8:45 am]
BILLING CODE 3411–15–P
COMMISSION ON CIVIL RIGHTS
Notice of Public Meeting of the Illinois
Advisory Committee to Discuss
Approval of a Project Proposal to
Study Civil Rights and Environmental
Justice in the State
AGENCY:
U.S. Commission on Civil
Rights.
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ACTION:
81527
Announcement of meeting.
Notice is hereby given,
pursuant to the provisions of the rules
and regulations of the U.S. Commission
on Civil Rights (Commission) and the
Federal Advisory Committee Act that
the Illinois Advisory Committee
(Committee) will hold a meeting on
Friday, January 22, 2016, at 1:00 p.m.
CST. The purpose of this meeting is to
review and discuss approval of a project
proposal to study civil rights and
environmental justice in the State. The
Committee met on November 20, 2015
and approved a study of this topic,
particularly as it relates to coal ash
disposal in communities of color in
Illinois. This study is in support of the
Commission’s nationally focused 2016
statutory enforcement study on the same
topic.
This meeting is available to the public
through the following toll-free call-in
number: 888–481–2844, conference ID:
2949512. Any interested member of the
public may call this number and listen
to the meeting. An open comment
period will be provided to allow
members of the public to make a
statement at the end of the meeting. The
conference call operator will ask callers
to identify themselves, the organization
they are affiliated with (if any), and an
email address prior to placing callers
into the conference room. Callers can
expect to incur regular charges for calls
they initiate over wireless lines,
according to their wireless plan, and the
Commission will not refund any
incurred charges. Callers will incur no
charge for calls they initiate over landline connections to the toll-free
telephone number. Persons with hearing
impairments may also follow the
proceedings by first calling the Federal
Relay Service at 1–800–977–8339 and
providing the Service with the
conference call number and conference
ID number.
Member of the public are also entitled
to submit written comments; the
comments must be received in the
regional office within 30 days following
the meeting. Written comments may be
mailed to the Regional Programs Unit,
U.S. Commission on Civil Rights, 55 W.
Monroe St., Suite 410, Chicago, IL
60615. They may also be faxed to the
Commission at (312) 353–8324, or
emailed to Carolyn Allen at
callen@usccr.gov. Persons who desire
additional information may contact the
Regional Programs Unit at (312) 353–
8311.
Records and documents discussed
during the meeting will be available for
public viewing prior to and after the
meeting at https://database.faca.gov/
SUMMARY:
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Agencies
[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Notices]
[Pages 81508-81527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32846]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AD14
Ski Area Water Clause
AGENCY: Forest Service, USDA.
ACTION: Notice of final directive.
-----------------------------------------------------------------------
SUMMARY: The U.S. Forest Service (Forest Service or Agency) is amending
its internal directives for ski area concessions by adding two clauses
to the Special Uses Handbook, Forest Service Handbook (FSH) 2709.11,
Chapter 50, addressing the sufficiency of water for operation of ski
areas on National Forest System (NFS) lands. The Forest Service
recognizes the importance of winter sports opportunities on NFS lands
and the need to address the sufficiency of water for ski areas
operating on NFS lands. By addressing this need, this final directive
will promote the long-term sustainability of ski areas on NFS lands and
the economies of the communities that depend on revenue from those ski
areas.
DATES: This directive is effective January 29, 2016.
ADDRESSES: The final directive will be available for inspection at the
office of the Director, Recreation and Heritage Resources Staff, Forest
Service, USDA, 4th Floor Central, Sidney R. Yates Federal Building,
1400 Independence Avenue SW., Washington, DC, during regular business
hours (8:30 a.m. to 4:00 p.m.), Monday through Friday, except holidays.
Those wishing to inspect these documents are encouraged to call ahead
to facilitate access to the building. Copies of documents in the record
may be requested under the Freedom of Information Act. The final
directive will be posted on the Forest Service's Web site at https://www.fs.fed.us/specialuses on the effective date. Only the sections of
the FSH 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.
FOR FURTHER INFORMATION CONTACT: Sean Wetterberg, National Winter
Sports Program Manager, Recreation, Heritage, and Volunteer Resources
staff, 801-975-3793, or Jean Thomas, National Water Rights Program
Manager, Watershed, Fish, Wildlife, Air, and Rare Plants staff, 202-
205-1172. Individuals who use telecommunication devices for the deaf
may call the Federal Information Relay Service at 800-877-8339 between
8:00 a.m. and 8:00 p.m., eastern daylight time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Final Directive
Constitutional and Statutory Authority
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.'' U.S. Const. art. IV, sec. 3, cl. 2. The Supreme Court has
emphasized that Congressional authority over Federal lands is ``without
limitations.'' Kleppe v. New Mexico, 426 U.S. 529, 539 (1976). 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.'' Organic
Administration Act of 1897 (16 U.S.C. 551). 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.'' Charles F. Wilkinson & H. Michael Anderson,
Land and Resource Planning in the National Forests 59 (1987). See also
Wyoming Timber Indus. Ass'n v. United States Forest Serv., 80 F. Supp.
2d 1245, 1258-59 (D. Wyo. 2000). In the Organic Administration Act,
Congress explicitly recognized that Forest Service regulations may
affect 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'').
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) (authorizing the Secretary of Agriculture to permit use
and occupancy of National Forest land ``upon such terms and conditions
as he may deem proper''); Multiple Use--Sustained Yield Act (MUSYA) (16
U.S.C. 529) (authorizing the Secretary of Agriculture to develop and
administer the surface resources of the National
[[Page 81509]]
Forests); and Federal Land Policy and Management Act (FLPMA) (43 U.S.C.
1765) (authorizing 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. 497b(b)(7)).
Regulatory Authority
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 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)); efficiently manage 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)).
Purpose of the Final Directive
One of the Forest Service's statutory duties is to provide the
American public with outdoor recreation opportunities on NFS lands on a
sustainable basis. One of these recreation opportunities is skiing, as
many ski areas are operated on NFS lands under a permit issued by the
Forest Service. Because water for snowmaking and other uses is critical
to the continuation of ski areas on NFS lands, the Forest Service has a
strong interest in addressing the long-term availability of water to
operate permitted ski areas. This final directive will promote the
long-term sustainability of ski areas on NFS lands by addressing the
long-term availability of water to operate ski areas before permit
issuance, during the permit term, and upon permit termination or
revocation. Providing for the sustainability of ski areas on NFS lands
will support jobs and the local economies that depend on revenue from
ski areas on Federal lands. There are 122 ski areas that encompass
about 180,000 acres of lands managed by the Forest Service. Ski areas
receive roughly 23 million visitors annually, who contribute $3 billion
yearly to local economies and support approximately 64,000 full- and
part-time jobs in rural communities.
Additionally, the final directive will reduce administrative costs
to the United States by providing for more effective administration of
ski area permits. The final directive will provide Agency employees and
ski area permit holders with a consistent and comprehensive
understanding of how water rights and water facilities should be
managed under a ski area permit. Specifically, the final directive will
provide direction related to the treatment of ski area water rights and
authorization of water facilities under ski area permits, including at
permit issuance, during the permit term, and upon permit termination or
revocation.
Approach of the Final Directive
The final directive contains two clauses for ski area water rights,
one for eastern States that follow the riparian doctrine for water
rights and one for western States that follow the prior appropriation
doctrine for water rights. Under a riparian doctrine system, water
rights are appurtenant to the land, whereas under a prior appropriation
doctrine system, water rights may be severed from the land. Most ski
areas on NFS lands are in western states that adhere to the prior
appropriation doctrine.
For the last 30 years, the Forest Service has required 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 in prior appropriation doctrine states.
This policy was motivated by the concern that if water rights used to
support ski area operations are severed from a ski area--for example,
are sold for other purposes--the Forest Service would lose the ability
to offer the area to the public for skiing.
The final directive does not provide for ski area water rights to
be acquired in the name of the United States; instead, the final
directive focuses on sufficiency of water to operate ski areas on NFS
lands. This modified approach for ski areas is appropriate given the
characteristics of ski area water rights and ski areas. Unlike water
rights diverted from and used on NFS lands by holders of other types of
special use permits, ski area water rights may involve long-term
capital expenditures. In western 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 involve a mix of NFS
and private lands inside and outside the ski area permit boundary,
which makes it difficult to implement a policy of sole Federal
ownership for ski area water rights. Much of the development at ski
areas is on private land 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.
With respect to sufficiency of water for ski area operations, the
final directive includes a definition for the phrase, ``sufficient
quantity of water to operate the ski area,'' and clarifies when and how
the holder must demonstrate sufficiency of water to operate the
permitted ski area and new ski area water facilities; addresses
availability of Federally owned ski area water rights during the permit
term; and addresses availability of holder-owned ski area water rights
during the permit term and upon permit revocation or termination. In
particular, the final directive:
Requires applicants for a ski area permit to submit
documentation prepared by a qualified hydrologist, i.e., an individual
with the requisite education (e.g., in geology, forestry, soils, or
engineering), training, and experience in hydrology to address
sufficiency of water, or licensed engineer demonstrating sufficiency of
water to operate the permitted ski area before permit issuance;
Requires the permit holder to submit documentation
prepared by a qualified hydrologist or licensed engineer demonstrating
a sufficient quantity of water to operate a ski area water facility, as
defined by paragraph F.1.a and b of the final directive, before it is
installed;
Requires the permit holder to demonstrate a sufficient
quantity of water to operate the ski area before transferring or
repurposing original water rights (water rights with a point of
diversion and use inside the ski area permit boundary that were
originally
[[Page 81510]]
established by a permit holder) during the permit term;
Addresses the availability of Federally owned ski area
water rights during the permit term;
Provides that Federally owned original water rights remain
in Federal ownership;
Requires the holder to maintain all ski area water rights,
and reserves the right of the United States to maintain Federally owned
original water rights;
Requires the holder to offer to sell the holder's interest
in original water rights to the succeeding permit holder upon permit
termination or revocation; and
If the succeeding permit holder declines to purchase the
holder's interest in original water rights jointly owned by the United
States, requires the holder to offer to sell that interest at market
value to the United States.
Water clauses for special uses other than ski areas are not
affected by this final directive.
2. Response to General Comments on the Proposed Directive
Public Input
Prior to publishing the proposed directive for public comment, the
Forest Service conducted 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 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. Additionally, open houses were held in
Denver, Colorado; Salt Lake City, Utah; and the Lake Tahoe area in
California. The Agency used input from these listening sessions and
open houses in developing the proposed directive.
On June 23, 2014, the Forest Service published the proposed
directive in the Federal Register (79 FR 35513). The proposed directive
was posted online at https://www.gpo.gov/fdsys/pkg/FR-2014-06-23/pdf/2014-14548.pdf. The Forest Service received 12,721 letters in response
to the proposed directive, of which 35 were unique. Additionally, the
Agency provided a 120-day government-to-government Tribal consultation
period beginning on July 28, 2014. The Agency received written
responses from 5 Tribes.
Comments Generally in Favor of the Proposed Directive
Comment: More than 12,000 commenters were generally in favor of the
proposed directive and offered various reasons as to why they supported
the proposed directive. It was characterized as a carefully crafted
directive that balanced protecting rivers and streams with commercial
interests. One commenter praised the Agency for balancing the
fundamental principles of Agency land management with ski industry
expectations. These principles include being able to carry out the
Forest Service's statutory responsibilities to manage NFS lands on
behalf of the American people, to assert control over water that
originates and is used on NFS lands for multiple-use purposes, and to
apply conditions of use to special use authorizations. Several county
or regional commenters believed the proposed directive protected the
long-term viability of skiing and winter sports in mountain communities
that have tourism-based economies while preserving the economic
viability of ski areas operating on Federal lands.
Response: The Forest Service agrees with these comments.
Comments Generally Opposed to the Proposed Directive
Comment: Several commenters representing the ski industry, other
business interests, or water districts and municipalities were
generally opposed to the proposed directive. The ski industry asserted
that the proposed directive was a heavy-handed approach that would be
counterproductive to the desire to maintain ski area uses over the long
term. Additionally, some commenters stated that the proposed directive
was overbroad and exceeded federal authority, particularly in regards
to proposed Clause D-30. Some water districts or municipalities simply
objected to the proposed directive as drafted and requested that it not
be adopted or revised.
Response: Several important substantive modifications have been
made in the final directive in response to comments the Agency received
on the proposed directive. The final directive does not insert the
Forest Service into day-to-day management of ski areas water rights.
Rather, the final directive takes the Forest Service out of day-to-day
management of ski area water rights by providing for the holder to
establish, acquire, maintain, and perfect original water rights.
Specific comments and responses related to proposed Clause D-30 are
contained herein.
General Comments
Comment: One commenter suggested that the Federal Register notice
for the final directive clarify that the Forest Service has not
consistently required ski areas to acquire water rights in the name of
the United States. This commenter believed that the Federal Register
notice for the proposed directive was misleading in indicating that the
proposed directive was a substantial change from prior policy.
Response: While there may be examples of inconsistent application
of prior policy, the Federal Register notice for the proposed directive
correctly characterizes that policy.
Comment: One commenter believed that the issues raised by the
Agency could be addressed with existing mechanisms. This commenter
requested that the Forest Service withdraw the proposed directive and
consult with the States to address Forest Service participation in
water allocation and management processes.
Response: The Agency believes that the final directive is needed to
address management of water resources on NFS lands and in particular to
ensure that ski areas providing public services on NFS lands will have
a sufficient quantity of water to operate. The Agency has made several
significant changes to the proposed directive in response to comments
received. The primary change with respect to ski area water rights is a
shift in emphasis from non-severability to ensuring a sufficient
quantity of water to operate the ski area. The Agency believes that the
public comment period provided reasonable opportunity for States and
others to provide input on the proposed directive. The proposed and
final directives do not affect the States' role in allocating water
rights in States that follow the prior appropriation doctrine.
Comment: One commenter stated that the Federal Register notice for
the proposed directive suggests that the Forest Service has had a
uniform practice of administering special use permit clauses requiring
the permit holder to acquire water rights in the name of the United
States, but in many cases these clauses were not enforced. This
commenter recommended clarifying in the final directive that the
clauses in the final directive will displace all prior ski area water
clauses, assuming that the Forest Service modifies the proposed
directive to be acceptable as identified in the comments. Further, one
commenter urged the Forest Service not to enforce prior ski area water
clauses in prior or existing ski area permits.
Another commenter submitted that there are probably many ski area
permits that have no provision for United States ownership or control
of water rights. This commenter believed that holders of those permits
have little incentive to request inclusion of the
[[Page 81511]]
proposed clause in their permits. The commenter also noted that often
when ski area permits are modified, the amendment addresses only the
proposed change that triggered the amendment (e.g., expansion of the
permit area). This commenter suggested that the Forest Service make a
concerted effort to add the new clause to ski area permits when other
modifications are made to the permits.
Response: Per the instructions in the final directive, once the
final directive goes into effect, clauses D-30 and D-31 supersede all
previous ski area water rights clauses in the Directive System. When
ski area permits are issued, reissued, or modified under 36 CFR 251.61
to reflect new, changed, or additional uses or area, the appropriate
new clause (D-30 or D-31) will be included in ski area permits, and any
other water clauses in the permits will be removed.
Holders of existing ski area permits that are not being reissued or
modified under 36 CFR 251.61 may opt to amend their permit to include
the appropriate new clause within one year of the effective date of the
final directive, provided they:
(1) Agree to have all water facilities on NFS lands that are used
primarily for operation of the ski area and that are not authorized
under a separate permit:
(a) Authorized by their ski area permit;
(b) designated on a map attached to the permit; and
(c) included in an inventory in an appendix to the permit; and
(2) submit documentation prepared by their qualified hydrologist or
licensed engineer:
(a) Demonstrating that they hold or can obtain a sufficient
quantity of water to operate the permitted portion of the ski area; and
(b) identifying all water sources, water rights, and water
facilities necessary to demonstrate a sufficient quantity of water to
operate the ski area, including all original water rights; all water
facilities authorized by the ski area permit; and any existing
restrictions on withdrawal or diversion of water that are required to
comply with a statute or an involuntary court order that is binding on
the Forest Service.
These requirements, which are enumerated in paragraphs 1 and 2 of
the instructions for clauses D-30 and D-31, must be met to implement
the new clauses.
Per National Ski Areas Association, Inc. v. United States Forest
Service, 910 F. Supp. 2d 1269 (D. Colo. 2012), the 2011 and 2012 ski
area water clauses in existing permits are not enforceable. However,
previous water clauses in ski area permits are valid and enforceable as
long as they remain in the permit.
Comment: One commenter suggested that the Forest Service needs an
effective tool to ensure ski area compliance with this directive. In
this commenter's experience, ski area permit holders fight enforcement
of even minor requirements that get in the way of the industry's
development plans. This commenter noted that when a ski area signs a
permit with the new water clause, the ski area must abide by that
clause, as was the case with prior water clauses in ski area permits.
The commenter further stated that the American public cannot afford
future litigation on legal requirements that a ski area agrees to one
day and disavows later.
Response: The Agency agrees that the terms of a ski area permit
executed by the holder are binding on the holder. When the appropriate
water clause in the final directive is included in a ski area permit
executed by the holder and the Forest Service, it will be binding on
and enforceable against the holder.
Comment: One commenter noted that the proposed directive would not
change the Forest Service's policy on water rights for special uses
other than ski areas. This commenter believed that the Forest Service
would continue to take a possessory interest in water rights for other
special uses, which would continue to affect municipal water providers,
the agricultural and energy industries, and all other water users.
Response: The proposed and final directives affect only ski area
permits. Changes to water clauses for other special uses are outside
the scope of the proposed and final directives. The possessory interest
provision in Forest Service directives applies only to water rights for
Forest Service programs administered on NFS lands, i.e., to permits
where both the water facility and the water use are on NFS lands.
Forest Service Manual (FSM) 2541.32, para. 2. The possessory interest
provision does not apply to water rights held by municipal water
providers and the agricultural and energy industries, since these water
rights are not associated with both a water facility and water use on
NFS lands. Likewise, the possessory interest provision does not apply
to water rights held by other water users that are not associated with
a point of diversion and water use on NFS lands.
Comment: Commenters questioned the Agency's legal authority to
manage water rights on NFS lands and included citations in support of
this position. One commenter requested that the Forest Service
specifically identify the statutory provisions granting the Agency
authority to control water rights. Another commenter noted that
Congress granted the Forest Service authority to permit the use of
water rights on NFS lands, but not otherwise regulate them.
Response: Prior appropriation doctrine States adjudicate and
allocate water rights for all water users, including the Federal
government. The Forest Service has the authority to manage use and
occupancy of NFS lands, including use of NFS lands for ski areas. The
Forest Service has broad authority to condition special use
authorizations that allow use and occupancy of NFS lands, including the
authority to put water clauses in permits to ensure sufficiency of
water for authorized uses and to protect public property, public
safety, and natural resources on NFS lands. The Agency cited numerous
authorities in the Federal Register notice for the proposed directive
and this Federal Register notice supporting this position. 79 FR 35516
(June 23, 2014); 16 U.S.C. 481, 497, 497b, 529, 551; 43 U.S.C. 1765; 36
CFR 251,56(a)(ii)(A), (a)(ii)(B), (a)(ii)(E), (a)(ii)(G).
Comment: One commenter cited United States v. New Mexico for the
proposition that there is no implied Forest Service reservation of
water for secondary purposes and that the United States must acquire
water rights in the same manner as any other public or private
appropriator. Citing the Federal Task Force Report issued pursuant to
section 389(d)(3) of Public Law 104-127, this commenter asserted that
the Forest Service must attain the secondary purposes of the National
Forests without interfering with the diversion, storage, and use of
water for non-Federal purposes.
Response: Ski area water rights do not qualify as reserved water
rights. The Forest Service, like any other public or private party,
must acquire water rights from prior appropriation doctrine States.
These States adjudicate and allocate water rights, including water
rights for the Federal government.
3. Response to Comments Relating to Specific Clauses
a. PRIOR APPROPRIATION DOCTRINE STATES--CLAUSE D-30
Proposed Instructions
Only the first, second, fourth, and sixth paragraphs in the
proposed instructions for clause D-30 received comment.
[[Page 81512]]
Proposed Paragraph 1
Paragraph 1 of the proposed instructions provided that clause D-30
supersedes all previous ski area water rights clauses in the Directive
System. Paragraph 1 also provided that clause D-30 be included in ski
area permits in prior appropriation doctrine States when these permits
are issued, reissued, or modified under 36 CFR 251.61 and that clause
D-30 not be included in Michigan, Vermont, and New Hampshire, which are
riparian doctrine States.
Comment: A concern was raised that because the instructions cited a
specific version of the ski area permit and two specific interim
directives, the new clause would be used only in permits with these
versions of the water rights clause, rather than in all new or modified
ski area permits.
Response: It was not the Agency's intent to limit the new clauses
to permits containing these versions of prior clauses. To clarify this
intent, the Agency has removed these references from paragraph 1 of the
instructions in the final directive.
Proposed Paragraph 2
The second paragraph of the proposed instructions for clause D-30
provided that before issuing a new or modified ski area permit in a
prior appropriation doctrine State, the authorized officer would have
to (1) ensure that the holder is in compliance with all water facility
and water use requirements in clause D-30; (2) inventory ski area water
rights; (3) classify the ski area's water rights consistent with the
tables in clause D-30; and (4) ensure that the water rights inventory
in paragraph 8 of clause D-30 is approved in writing by the Regional
Forester.
Comment: There was a general concern regarding the increased
magnitude of work involved in implementing these instructions. One
commenter suggested that it is unnecessary for Regional Foresters to
approve water rights inventories in writing.
Response: The Agency agrees with the concern regarding the
potential magnitude of work involved in implementing these
instructions. Therefore, the Agency has revised paragraph 2 of the
instructions for clause D-30 in the final directive to address
authorization of water facilities that are used primarily for operation
of the ski area under the ski area permit and designation of those
water facilities on a map. Additionally, the inventory in this
paragraph is limited to water facilities on NFS lands that are used
primarily for operation of the ski area and that are authorized by this
permit. The final directive recognizes that there may be existing water
facilities used primarily for operation of the ski area that are
authorized by a separate, valid special use permit and that those water
facilities may remain under that separate authorization, including upon
reissuance, if eligible. The Forest Service will determine eligibility
based on the primary use of that water facility and applicable
statutory authority at the time of reissuance.
The Agency has added a provision to the instructions requiring the
applicant for a new or modified ski area permit to submit documentation
prepared by the applicant's qualified hydrologist or licensed engineer
demonstrating that the applicant holds or can obtain a sufficient
quantity of water to operate the permitted portion of the ski area. The
documentation submitted must identify all water sources, water rights,
and water facilities necessary to demonstrate a sufficient quantity of
water to operate the ski area, including all original water rights; all
water facilities to be authorized by the ski area permit; and any
existing restrictions on withdrawal or diversion of water that are
required to comply with a statute or an involuntary court order that is
binding on the Forest Service. This provision is consistent with the
conceptual shift in the final directive from non-severability of ski
area water rights to sufficiency of water to operate the ski area.
The Agency agrees that it is unnecessary for Regional Foresters to
approve inventories in writing and therefore has removed that
requirement from the instructions in the final directive.
Proposed Paragraph 4
Paragraph 4 of the proposed instructions for clause D-30 provided
that only water facilities and water rights that are necessary for and
that primarily support operation of the ski area being authorized may
be included in the ski area permit. Comments received on the terms
``necessary'' and ``primarily support'' are addressed in the response
to comments on proposed paragraph F. The standard for determining which
water facilities should be included under a ski area permit is
addressed in the response to comments on proposed paragraph F.1.d.
Proposed Paragraph 6
Paragraph 6 of the proposed instructions for clause D-30 provided
that, prior to authorizing a permit amendment for a new water facility
at a ski area, the authorized officer would have to ensure that
sufficient water is available to operate the water facility. The
comments received on the standard for determining sufficiency of water
in this context are addressed in the response to comments on proposed
paragraph F.
The remaining paragraphs in the proposed instructions for clause D-
30 (paragraphs 3, 5, and 7) did not receive specific comment.
Proposed Paragraph F--Water Facilities and Water Rights
Proposed paragraph F provided that ``necessary,'' in relation to a
water facility or water right, means that without that water facility
or water right, the ski area would not be able to operate. Proposed
paragraph F provided that ``primarily supports'' in relation to a water
facility or water right means that the water facility or water right
serves the ski area improvements on NFS lands significantly more than
any other use.
Comment: Several commenters believed that the definitions of
``necessary'' and ``primarily supports'' in the proposed clause were so
broad that they could include water rights located off NFS lands used
to support the operation of ski area improvements and could even
include the water rights of municipal water providers that are used in
connection with ski areas. These commenters believed such expansive
coverage overreaches and should be narrowed to apply only to water
rights that are necessary for operation of a ski area and to exclude
any other water rights, such as water rights on non-NFS lands or water
acquired from municipalities. Additionally, some commenters stated
that, as proposed, the term ``necessary'' implied a determination of
whether an individual water right or water facility is essential to the
viability of the entire ski area. There was a concern that if
considered individually, a water right might not be deemed necessary,
whereas in total, a ski area's portfolio of water rights would be
necessary for operation of the ski area. Several commenters recommended
either redefining ``necessary'' to recognize the cumulative necessity
of water rights or deleting the term ``necessary'' because the term
``primarily supports'' is adequate.
Some commenters stated that to determine whether a water right
``primarily supports'' a ski area, a comparison would be made between
water associated with a ski area use and any other use. Since water at
ski areas is used for a wide assortment of purposes, these commenters
believed it would be difficult to determine whether
[[Page 81513]]
the water primarily supports a ski area. For example, water may be used
inside or outside the ski area permit boundary on either NFS or private
land for condominiums, golf courses, retail shops, and restaurants.
These commenters also believed it would be difficult to determine
whether a particular water right ``primarily supports'' ski area use
because there are seasonal changes in the use of a particular water
right. For example, snowmaking in the winter may change to golf course
irrigation in the summer.
Commenters noted that the amount of necessary water for a ski area
is dynamic and that permit holders need flexibility to manage their
water rights in the best interest of ski areas. Another commenter noted
that there is variability from year to year as well as over the 40-year
term of a ski area permit in the amount of water that is necessary to
operate a ski area. These variations may be due to the amount of
natural snowfall, levels of visitation, increases in snowmaking
efficiency or other operational and technical advances in the use of
water, availability of water based on seniority in appropriation, and
changes in climate. This commenter stated that all these variables can
result in decreases or increases in the amount of water necessary to
support ski area operations.
One commenter stated that the proposed definition of ``necessary''
in paragraph F is too narrow because many water rights are important to
the planned and approved operation of the ski area. According to this
commenter, the ski area could still operate with a reduced level of
service or quality of skiing experience in their absence. For example,
the partial loss of snowmaking water supply during one year might not
result in closing the ski area, but those snowmaking water rights
should nonetheless be protected under the new clause. This commenter
believed that, under the proposed directive, a ``necessary'' water
facility or water right would be subject to the new clause only if it
also ``primarily supports'' the ski area operation.
Another commenter believed that the combination of ``necessary''
and ``primarily supports'' was problematic and that a particular water
right serving multiple purposes, such as domestic uses for condominiums
and commercial operations at the base of a ski area and snowmaking
inside the permit boundary, should not result in the exclusion of the
entire water right from the protections of the new clause.
One commenter expressed concern that the term ``sufficient water''
was not defined, which would create ambiguity for States and permit
holders. This commenter sought clarity as to whether water associated
with water rights and water facilities that are ``necessary for'' and
that ``primarily support'' a ski area would be deemed sufficient.
Commenters requested that the Forest Service provide reasonable
criteria and guidance for determining sufficiency of water for ski area
operations because the concept is complex and could involve detailed
hydrological analysis and projections of future climatic conditions.
Commenters believed that establishing criteria would avoid disputes,
unreasonable expense, and delay.
One commenter asserted that with respect to existing water rights,
a water court has already determined sufficiency of water for ski area
operations and approved water use for ski area purposes. This commenter
encouraged Forest Service recognition of the water court's or State
engineer's determinations of sufficiency of water and appropriateness
of water use and acceptance of these findings. This commenter noted
that the permit holder's water rights may be used at a ski area or they
may be used at the holder's discretion to supply water for other
purposes, provided that sufficient water remains to operate the ski
area.
One commenter observed that the requirement for sufficient water to
be available is an important tool for the Forest Service to determine
whether new water facilities, such as snowmaking systems, will be able
to operate in dry years. However, this requirement may not ensure that
sufficient water is available to operate in dry years in every case,
for example, where the facility is served by water diverted from a
location off NFS lands. This commenter also stated that, as proposed,
this requirement did not explicitly apply to the issuance of a permit,
which would present an important opportunity to conduct a sufficiency
analysis.
Another commenter was concerned that ensuring sufficient water to
operate the ski area could conceivably dry up a stream and negatively
affect flow-dependent resources and aquatic organisms, especially when
water is withdrawn during low-flow periods in winter. This commenter
recommended amending the second-to-last paragraph of the instructions
to address the requirements of streamflow-dependent resources.
Response: The Agency agrees that the amount of water necessary to
operate a ski area may fluctuate from year to year and that the
proposed definition of the term ``necessary'' is problematic. The
Agency has removed the term ``necessary'' from the final directive. The
Agency has changed the phrase ``primarily supports'' to the phrase
``used primarily for operation of the ski area.'' In relation to a
water facility or water right, ``used primarily for operation of the
ski area'' means that the water facility or water right provides
significantly more water for operation of the permitted portion of the
ski area than for any other use. Water facilities and water rights that
are used primarily for operation of a ski area are relevant to the
provisions of the new clauses, including those that address sufficiency
of water for ski area operations.
In addition, the Agency has added a definition for the term
``sufficient quantity of water to operate the ski area.'' This term
means that under typical conditions, taking into account fluctuations
in utilization of the authorized improvements, fluctuations in weather
and climate, changes in technology, and other factors deemed
appropriate by the applicant's qualified hydrologist or licensed
engineer, the applicant has sufficient water rights or access to a
sufficient quantity of water to operate the permitted facilities, and
to provide for the associated activities authorized under the ski area
permit in accordance with the approved operating plan. This new term
and definition are consistent with the shift from non-severability of
water rights to sufficiency of water to operate the ski area. The
definition recognizes that the quanity of water is not static and
allows for appropriate factors to be considered in the sufficiency
determination. Before issuance of a new or modified ski area permit,
applicants will be required to submit documentation demonstrating that
they hold or can obtain a sufficient quantity of water to operate the
permitted portion of the ski area. The submitted documentation will
identify any existing restrictions on withdrawal or diversion of water
that are required to comply with a statute or an involuntary court
order that is binding on the Forest Service. Addressing streamflow-
dependent resources generally is beyond the scope of this directive.
Proposed Paragraph F.1--Water Facilities
Proposed Paragraph F.1.a
This provision defined the term ``water facility'' to mean a ditch,
pipeline, reservoir, well, tank, spring, seepage, or any other facility
or feature that withdraws, stores, or distributes water.
[[Page 81514]]
Comment: Several commenters opined that the definition of ``water
facility'' in the proposed directive was not limited to facilities
located on NFS lands and should be narrowed to apply only to those
facilities.
Response: The Agency has revised the definition of ``water
facility'' in the final directive to clarify its scope. The definition
in the final directive references only human-made features and removes
references to natural features such as springs and seeps. In addition,
the Agency has added the following definition for ``ski area water
facility'' in the final directive: ``Any water facility on NFS lands
that is authorized by this permit and used primarily for operation of
the ski area authorized by this permit.'' This definition clarifies
that only water facilities that are used primarily for operation of a
ski area may be authorized by the ski area permit. The Forest Service
does not authorize water facilities located on non-NFS lands.
Proposed Paragraph F.1.b
This proposed provision stated that no water facility for which the
point of withdrawal, storage, or distribution is on NFS lands may be
initiated, developed, certified, permitted, or adjudicated by the
holder unless expressly authorized by a special use authorization.
Comment: One commenter believed that proposed paragraph F.1.b would
provide for total Forest Service control over the adjudication,
operation, and transfer of surface water and groundwater rights on NFS
lands and that the requirement for Forest Service permission for slight
changes to those water rights would constitute a taking of private
property in contravention of State water law, direction from Congress,
and U.S. Supreme Court rulings. Another commenter alleged that a water
right appropriator does not need a landowner's permission to adjudicate
water rights on the landowner's lands. Yet another commenter questioned
the need for and the Agency's authority to require authorization prior
to initiation or adjudication of water rights associated with a water
facility on NFS lands. This commenter observed that it is common
practice for water users to appropriate and adjudicate water rights on
Federal land prior to obtaining a special use permit. One commenter
observed that the Forest Service can impose reasonable conditions on
the development of water rights located on NFS lands through its
special use permit process when facilities to access those water rights
are developed, but not when the water rights are acquired.
Additionally, a commenter was concerned that the proposed
restrictions on taking action regarding water facilities on NFS lands
without a special use authorization would apply to water facilities
that do not primarily support a ski area. One commenter observed that
the proposed restrictions would affect diversions of water off NFS
lands and would limit exercise of the associated water rights. A
commenter also expressed concern that the permitting process can take a
considerable amount of time, during which the priority date, and
therefore the value of the water right, would be in jeopardy.
One commenter recommended limiting paragraph F.1.b to construction
of water facilities on NFS lands and deleting the reference to
``initiation, permitting, or adjudication of water rights on NFS
lands.'' Others suggested that the provision be revised to clarify that
the appropriation and adjudication of a water right for ski area
operations on NFS lands are subject to State law and are not pre-
conditioned on the existence of Forest Service permission because the
Forest Service has agreed to be bound by State water law.
Response: The Forest Service agrees that proposed paragraph F.1.b
to a certain degree conflates acquisition of water rights from the
State with Forest Service authorization of water facilities on NFS
lands. In addition, paragraph F.1.b is unnecessary to the extent it
provides that water facilities on NFS lands must be authorized by a
special use authorization, as this requirement is already stated in
applicable Forest Service regulations. Therefore, the Agency has
removed proposed paragraph F.1.b from the final directive.
Proposed Paragraph F.1.c
Proposed paragraph F.1.c provided that the United States may place
any conditions on installation, operation, maintenance, and removal of
any water facility that are deemed necessary by the United States to
protect public property, public safety, and natural resources on NFS
lands. Numerous comments were received on this provision.
Comment: Some commenters interpreted proposed paragraph F.1.c as a
mechanism for the Forest Service to manage water use and water rights
on NFS lands. These commenters noted that the Agency's authority to
condition special use authorizations is not limitless, and that while
the National Forest Ski Area Permit Act allows the Secretary to make
permit changes from time to time, those changes must be in accordance
with applicable law. These commenters recommended that proposed
paragraph F.1.c be revised to add ``in accordance with applicable
laws.''
Another commenter observed that when the Forest Service has raised
the possibility of imposing a bypass flow on an existing water
facility, a solution has been negotiated that protects both the water
user who is seeking approval to use Federal land and the national
objectives and interests of taxpayers. This commenter observed that the
proposed directive provides flexibility and represents a rededication
and commitment to common-sense water policies on Federal lands without
jeopardizing the legitimate interests of taxpayers, ordinary citizens
who use and enjoy those lands, or corporate permit applicants like ski
areas. Additionally, this commenter observed that regardless of
disagreement over the Forest Service authority to impose bypass flow
requirements, many water rights holders with water facilities on NFS
lands have found innovative ways to accommodate their water rights
while meeting the water needs of other forest resources. The commenter
credited the Forest Service with showing a growing willingness to
accept workable alternatives to the imposition of bypass flow
conditions.
Several commenters favored the ability granted by proposed
paragraph F.1.c to condition use of water facilities on NFS lands to
protect aquatic and other environmental resources (e.g., by imposing
bypass flow requirements). These commenters believed that the Agency
has the legal authority and the legal obligation to do so and that
failure to do so could expose the United States to substantial
litigation risk. Other commenters noted that in some cases, the
imposition of certain conditions such as bypass flow requirements may
be the only practical way to protect environmental resources.
Commenters cited State and Federal cases and Federal statutes in
support of their position.
Some commenters were concerned generally about environmental and
social impacts associated with ski area water rights. One commenter
requested that the Forest Service first determine how much water is
needed to meet public purposes, such as instream flows for aquatic
life, the movement of wood and sediment through the stream system, and
seasonal inundation of floodplains, before allowing ski areas to divert
and appropriate water. Another commenter requested that the Forest
Service ensure that the proposed directive protect all public rights
and interests in water on NFS lands, including Federal reserved water
rights that date back to the establishment of
[[Page 81515]]
the national forest reserves. This commenter wanted the Forest Service
to compensate for impacts on flows due to climate change, such as
impacts from rain on snow, by protecting flows during critical periods
and avoiding activities that would increase peak flows. This commenter
also recommended evaluating snowmaking practices to ensure that
hydrology, peak flows, and water quality are not adversely affected.
Response: The Agency has modified proposed paragraph F.1.c in the
final directive. The first sentence of paragraph F.1.c in the final
directive provides that the authorized officer may place conditions, as
necessary to protect public property, public safety, and natural
resources on NFS lands, on the installation, operation, maintenance,
and removal of any water facility, but only in accordance with
applicable law. The Forest Service recognizes that its actions must be
in accordance with applicable law and that the Agency has authority
under applicable law to condition special use authorizations that allow
use and occupancy of NFS lands to protect public property, public
safety, and natural resources on NFS lands.
The second sentence of paragraph F.1.c in the final directive
states that clause D-30 does not expand or contract the Agency's
authority to place conditions on the installation, operation,
maintenance, and removal of water facilities at issuance or reissuance
of the permit, throughout the permit term, or otherwise. Thus, clause
D-30 does not affect the Agency's authority to place conditions on
water facilities under existing legal authority.
The third sentence of paragraph F.1.c in the final directive states
that the holder must comply with present and future laws, regulations
and other legal requirements in accordance with section I of the ski
area permit. This provision reinforces existing provisions in the ski
area permit that provide protection for natural resources in connection
with water facilities.
In response to concerns regarding environmental impacts associated
with water facilities, the sufficiency documentation an applicant must
submit before receiving a new or modified ski area permit must include
any existing restrictions on withdrawal or diversion of water that are
required to comply with a statute or an involuntary court order that is
binding on the Forest Service. The Forest Service conducts
environmental analysis, as appropriate, on a site-specific basis of the
effects of water facilities on NFS lands. This type of site-specific
analysis is beyond the scope of this notice of final directive.
Proposed Paragraph F.1.d
Proposed paragraph F.1.d provided that only water facilities that
are necessary for and that primarily support operation of a ski area
may be authorized by a ski area permit.
Comment: One commenter recommended that proposed paragraph F.1.d
provide examples of what is and what is not considered necessary for
ski area operations. This commenter suggested that snowmaking and on-
mountain restaurant uses may be necessary for ski area operations, but
that base area water needs for condominiums, golf courses, and other
uses not authorized by the ski area permit should not be considered
necessary for ski area operations.
One commenter believed this provision would impose unreasonable
limitations on water facilities within the permit boundary. This
commenter stated that ``necessary'' as proposed in paragraph F.1.d
would impose an unreasonably high threshold and would include only
facilities that are ``mission-critical,'' would create confusion at the
field level, and would invite controversy and possibly third-party
challenges regarding whether a proposed water facility met the
applicable standard.
Response: The Agency agrees that the term ``necessary'' is not
needed. The Agency has removed the term ``necessary'' from paragraph
F.1.d in the final directive and has revised this provision to clarify
that only water facilities which are on NFS lands and are used
primarily for operation of the ski area may be authorized by the ski
area permit.
Proposed Paragraph F.1.e
Proposed paragraph F.1.e provided that any change in the water
facilities authorized by the permit would result in termination of the
authorization for those water facilities, unless the change was
expressly authorized by a permit amendment. Examples of changes to
water facilities included (1) use of the water in a manner that does
not primarily support operation of the ski area authorized by this
permit; (2) a change in the ownership of associated water rights; or
(3) a change in the beneficial use, location, or season of use of the
water.
Comment: One commenter raised a concern that if unauthorized
changes to water facilities resulted in termination of the
authorization, it would create an incentive for the holder not to make
changes to water facilities that should be made. This commenter also
observed that if the penalty for a violation is merely the loss of the
right to use the water facility, the holder may abandon a water
facility even if it is essential to providing the current level of
public service. Other commenters asserted that restrictions on the
ability to make changes to water facilities per paragraph F.1.e would
impede the holder's ability to maximize the value and utility of the
associated water right and would undercut the Agency's interest in
sustaining ski area operations.
One commenter observed that proposed paragraph F.1.e does not
clearly identify the types of actions that are prohibited without
authorization and recommended specifically listing all changes to a
water facility that, if not authorized by a permit amendment, would
trigger termination of authorization for the water facility. Similarly,
another commenter observed that it would be difficult to determine
consistently which modifications require approval because States define
water rights broadly and do not assign a percentage of the total water
right dedicated to each use. This commenter noted that the purposes of
a ski area water right might simply be listed as ``commercial or
domestic'' or ``irrigation, domestic water for condominiums and homes,
restaurants, and snowmaking,'' and the amount of water a ski area uses
for each purpose could change.
Another commenter raised a concern that this clause would impose an
undue burden on permit holders by placing restrictions on holders'
ability to obtain, develop, maintain, or enhance water rights and thus
would create additional impediments to the development of water
resources to support permitted ski areas. Additionally, this commenter
noted that the requirement for Forest Service approval of changes would
delay compliance with State deadlines and could result in the
forfeiture of water rights or impairment of their value.
Response: The Agency agrees that clarification is needed regarding
the types of changes to water facilities that, if not authorized by a
permit amendment, will result in termination of authorization of the
water facilities under the ski area permit. In contrast to proposed
paragraph F.1.e, which provided that any unauthorized change to water
facilities would result in termination of their authorization under the
ski area permit, paragraph F.1.e in the final directive provides that
if, due to a change, a ski area water facility will primarily be used
for purposes other than operation of the ski area,
[[Page 81516]]
authorization for that water facility under the ski area permit will
terminate. Paragraph F.1.e in the final directive gives examples of the
types of changes to water facilities that would result in their being
used primarily for purposes other than operation of the ski area. These
examples include a change in the ownership of the water facility or the
associated water rights or a change in the beneficial use, location, or
season of use of the water. Other changes to ski area water facilities
could also result in their ceasing to be used primarily for operation
of the ski area.
Proposed Paragraph F.1.f
Proposed paragraph F.1.f provided that the holder must obtain a
separate special use authorization to initiate, develop, certify, or
adjudicate any water facility on NFS lands that does not primarily
support operation of the ski area authorized by the ski area permit.
Comment: One commenter observed that water right adjudications do
not require prior permission from the owner of the land on which the
point of diversion will be located. This commenter stated that the
Forest Service has agreed to be bound by State law and has no authority
to use the requirement for a new special use authorization to
adjudicate water rights on NFS lands.
One commenter was concerned that if a separate permit is required
for water facilities on NFS lands that do not primarily support
operation of the ski area, that permit would include water clauses for
other special uses, which the commenter believed require transfer of
water rights to the United States, or would provide for claiming a
possessory interest in water rights in the name of the United States,
consistent with FSM 2541.32. This commenter believed that Agency
testimony before Congress is inconsistent with claiming a possessory
interest in ski area water rights as provided in FSM 2541.32 and that
the Agency should clarify in the final directive that it will not
require ski areas to transfer ownership of water rights to the United
States in any separate permit for water facilities on NFS lands that do
not primarily support operation of a ski area.
Response: The Agency has revised proposed paragraph F.1.f and
consolidated it with paragraph F.1.e in the final directive. Paragraph
F.1.e in the final directive provides that when authorization for a
water facility under the ski area permit terminates because a change in
the water facility results in its ceasing to be used primarily for
operation of the ski area, a separate special use authorization is
required to operate that water facility or to develop a new water
facility, unless the holder has a valid existing right for the water
facility to be situated on NFS lands. A valid existing right in this
context is a legal right, typically a statutory right, to use and
occupy NFS lands. In the absence of a valid existing right, a separate
special use authorization is required under these circumstances because
it is not appropriate to utilize the National Forest Ski Area Permit
Act to authorize water facilities that do not primarily support
operation of a ski area. 16 U.S.C. 497b(a), (b). Paragraph F.1.e in the
final directive also provides that unless the holder has a valid
existing right for the water facility to be situated on NFS lands, if
the holder does not obtain a separate special use authorization for
these water facilities, the holder must remove them from NFS lands.
The Forest Service agrees that it is inappropriate to use the words
``initiate,'' ``develop,'' ``certify,'' or ``adjudicate'' in connection
with proper authorization of a new water facility and has removed these
words from paragraph F.1.e in the final directive. However, it would be
prudent for the permit holder to communicate with the Forest Service
regarding the likelihood of approval of a proposed water facility,
regardless of whether it is used primarily for operation of the ski
area, before incurring expenses in acquiring associated water rights.
Neither the proposed nor the final directive provides for the
United States to claim a possessory interest in ski area water rights.
The instructions for clauses D-30 and D-31 provide that the possessory
interest policy in FSM 2541.32, paragraph 2, will not apply to ski area
permits. Moreover, under paragraph F.1.e in the final directive, when
the water facilities continue to support approved ski area operations
at any time of year, the separate permit will not contain the
possessory interest provision, any waiver provision, or any power of
attorney provision. The Agency will develop new or modified water
clauses for these permits.
Proposed Paragraph F.1.g
Proposed paragraph F.1.g provided for documentation of restrictions
on withdrawal and use of water that are required by regulation or
policy, an adjudication, or a settlement agreement or that are based on
a decision document supported by environmental analysis.
Comment: Commenters opined that proposed paragraph F.1.g is very
broad and would allow the Forest Service to limit the exercise of
privately held water rights established under State law by unilaterally
imposing restrictions without statutory or regulatory authority.
Specifically, these commenters were concerned that a single ski area
permit administrator could determine that a regulation or policy
requires restrictions on withdrawals and impose those limits under the
permit; that Forest Service staff is not qualified to interpret the
regulations of other Federal and State agencies; that restrictions
could be based on any settlement agreement with any party on any
subject matter, regardless of whether the holder of the water right was
a party or had notice and regardless of whether the Forest Service was
a party to that settlement agreement; that restrictions based on a
decision document supported by environmental analysis would not be
limited to decision documents prepared by the Forest Service and might
include past or future critical habitat designations for aquatic
species made by the U.S. Fish and Wildlife Service; and that allowing
restriction of water rights ``based on'' environmental documents would
leave too much discretion to the permit administrator. One commenter
believed that proposed paragraph F.1.g did not accomplish the stated
objective in the Federal Register notice for the proposed directive of
ensuring the availability of water resources for ski areas and
recommended deleting proposed paragraph F.1.g.
Response: The Agency believes that it is important to document
existing restrictions on withdrawal and use of water from the permitted
NFS lands so that permit administrators can ensure that these legal
requirements are met during the typically 40-year term of the permit.
However, the Agency agrees that the scope of the restrictions should be
limited to those that are legally required and that it would be more
appropriate to include the requirement in the instructions for the new
water clauses. Consequently, the instructions for the new water clauses
in the final directive require the documentation of a sufficient
quantity of water submitted by an applicant prior to issuance of a new
or modified ski area permit to identify any existing restrictions on
withdrawal or diversion of water that are required to comply with a
statute or an involuntary court order that is binding on the Forest
Service. Additionally, the Agency has removed the table in the water
clause appendix on restrictions on withdrawal and use of water, since
that information will be
[[Page 81517]]
contained in the sufficiency documentation.
Proposed Paragraph F.2--Water Rights
Proposed paragraph F.2 defined the term ``water right'' to mean a
right to use water that is recognized under State law under the prior
appropriation doctrine. Additionally, proposed paragraph F.2 provided
that the permit does not confer any water rights.
Comment: One commenter recommended that the term ``water right'' be
defined in a way that could be consistently applied, regardless of
State definitions and processes. This commenter noted that in Colorado
a conditional water decree or right establishes a priority date for the
possible future grant of an absolute water right. In Colorado, an
individual or entity can ``use'' a water right only when that
individual or entity has put the water to beneficial use and has been
granted an absolute water right. Treating a conditional water right as
a water right in the proposed directive would in many respects be like
treating an application as a water right in other prior appropriation
doctrine States.
Response: The Forest Service believes that the definition of
``water right'' in the proposed directive is appropriate. The
definition should encompass any water right that is recognized under
State law, including conditional water rights in the State of Colorado.
The Agency has not changed the proposed definition of ``water right''
in the final directive.
Proposed Paragraph F.3--Acquisition and Maintenance of Water Rights
Proposed Paragraph F.3.a
This proposed paragraph defined ``NFS ski area water right'' to
mean ``any water right acquired by the holder or a prior holder 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 authorized by
this permit.''
Comment: Commenters objected to the term ``NFS ski area water
right'' on the grounds that it implies that these water rights belong
to the United States; that the water rights are appurtenant to NFS
lands; and that the Forest Service, rather than the State, grants the
water rights. These commenters also objected to the term on the grounds
that it could include water rights that may be unnecessary for ski area
operations and recommended that the definition be revised to apply only
to water rights that are necessary for ski area operations. It was also
recommended that ``NFS'' be removed from the term.
Response: The Agency agrees that ``NFS'' is unnecessary in the term
``ski area water right'' and may lead to confusion. Consequently, the
Agency has removed ``NFS'' from that term in the final directive and
has simplified the definition to include any water right for use of
water from a point of diversion on NFS lands, either inside or outside
the permit boundary, that is primarily for operation of the ski area.
In addition, the Agency has added terms and definitions for two
categories of ski area water rights: ``original'' water rights and
``acquired'' water rights. Using these terms of art simplifies the
wording in subsequent clauses that differentiate between these two
types of ski area water rights. An ``original water right'' is defined
as ``any existing or new ski area water right with a point of diversion
that was or is, at all times during its use, located within the permit
boundary for this ski area and originally established under State law
through an application for a decree to State water court, permitting,
beneficial use, or otherwise recognized method of establishing a new
water right, in each case by the holder or a prior holder of the ski
area permit.'' The definition further clarifies that an original water
right cannot become an acquired water right by virtue of sale of the
water right to a subsequent ski area permit holder.
An ``acquired water right'' is defined as ``any ski area water
right that is purchased, bartered, exchanged, leased, or contracted by
the holder or by any prior holder.'' The distinguishing characteristics
between these two types of ski area water rights is whether they were
originally acquired from the State by a ski area permit holder to be
used primarily for the operation of the ski area within the ski area
permit boundary.
Comment: One commenter suggested that the definition for ``NFS ski
area water right'' be revised to limit its applicability to the
holder's interest in water facilities and water rights because it may
be only a partial interest. Another commenter believed that water
rights that would not constitute NFS ski area water rights, such as
water rights that are used for ski area purposes but arise from a point
of diversion on private land, could still be affected by the proposed
directive. As an example, this commenter cited an unauthorized change
in ownership of a snowmaking pipeline diverting water from a stream on
private land to the permitted ski area on NFS lands, which could result
in termination of authorization for that water facility. Not having
authorization for use of the water facility would in turn limit
exercise of the associated water right.
One commenter wanted to know the reason for treating water rights
that arise from a point of diversion on NFS lands differently from
water rights that arise from a point of diversion off NFS lands. This
commenter also requested consideration of alternatives that would
provide protection of all ski area water rights, regardless of land
ownership at the point of diversion. Another commenter requested that
further consideration be given to the effectiveness of the proposed
directive in accomplishing its underlying policy objectives with
respect to water rights for water that is stored, diverted, or pumped
on non-NFS lands to support authorized ski area facilities within the
permit area.
Response: Water rights that are used for ski area purposes but
arise from a point of diversion located on non-NFS lands are not
affected by this final directive. Consistent with the definition for
``ski area water right'' in the final directive, which applies to water
rights that are used primarily for operation of the ski area and that
arise from a point of diversion located on NFS lands, only water
facilities on NFS lands that are used primarily for operation of the
ski area may be authorized under the ski area permit. The Forest
Service does not authorize water facilities located on non-NFS lands.
Therefore, in the example cited by the commenter, there would be no
Forest Service permit, the water facility would not be subject to
permit terms addressing change in ownership of the water facility, and
there would be no effect on exercise of associated water rights.
Proposed Paragraph F.3.b
Proposed paragraph F.3.b provided that NFS ski area water rights
must be acquired in accordance with applicable State law; that the
holder must maintain NFS ski area water rights, including Federally
owned NFS ski area water rights, for the term of the permit, as well as
for the term of any subsequent permits that may be issued to the holder
for the uses authorized by the permit; that the holder is responsible
for submitting any applications or other filings that are necessary to
protect those water rights in accordance with State law; and that the
holder and not the United States must bear the cost of acquiring,
maintaining, and perfecting NFS ski area water rights, including
Federally owned NFS ski area water rights.
Comment: Some commenters sought clarity on what it means to
``maintain''
[[Page 81518]]
NFS ski area water rights. One commenter suggested that the term
``maintain'' lends itself to water facilities but is unclear as applied
to water rights. Some commenters asked whether voluntary or court-
ordered surrender of part of a conditional water right would constitute
a failure to maintain the water right under proposed paragraph F.3.b.
Some commenters asked whether loss of a water right due to failure to
maintain it would trigger termination of the permit per proposed
paragraph F.1.e.
Response: Voluntary or court-ordered surrender of part of a
conditional water right would not constitute a failure to maintain the
water right. Maintaining a water right means exercising due diligence
to preserve it in accordance with applicable State law, including
submitting required filings. The holder, rather than the Forest
Service, is responsible for submitting applications or other filings
that are necessary to maintain ski area water rights and for the cost
of those filings. The Agency has redesignated proposed paragraph F.3.b
as paragraph F.3.c in the final directive and simplified it to provide
that the holder shall bear the cost of establishing, acquiring,
maintaining, and perfecting original water rights, including any
original water rights owned solely or jointly by the United States.
Loss of a water right due to failure to maintain it will trigger
termination of authorization of the associated water facility under the
ski area permit (not termination of the ski area permit) under
paragraph F.1.e in the final directive only if the associated water
facility ceases to be used primarily for operation of the ski area.
Comment: Several commenters requested clarification that proposed
paragraph F.3.b would not apply to third-party water rights, such as
water rights leased from municipalities, that are used in connection
with a ski area or that are located on NFS lands.
Response: Paragraph F.3.b in the proposed directive has been moved
to paragraph F.3.c in the final directive and has been clarified so
that it will not apply to water rights leased from third parties and
other acquired water rights as defined in the final directive.
Paragraph F.3.c in the final directive applies only to original water
rights as defined in the final directive, including those owned solely
or jointly by the United States.
Comment: One respondent believed that the requirement to maintain
NFS ski area water rights would unlawfully insert the Forest Service
into the day-to-day management of ski area water rights.
Response: Paragraph F.3.c in the final directive does not insert
the Forest Service into day-to-day management of ski areas water
rights. Rather, this paragraph takes the Forest Service out of day-to-
day management of ski area water rights by providing for the holder to
establish, acquire, maintain, and perfect original water rights.
New Paragraph F.3.b
The Agency has added a new paragraph F.3.b in the final directive.
This new provision requires that an inventory of all ski area water
facilities and original water rights be included in an appendix to the
ski area permit and that the inventory be updated by the holder upon
reissuance of the permit, installation or removal of a ski area water
facility, when a listed ski area water facility is no longer authorized
by the ski area permit, or when an original water right is no longer
used for operation of the ski area. This new paragraph is needed to
administer the requirements in the new water clauses regarding ski area
water facilities and original water rights.
Proposed Paragraph F.3.c
Proposed paragraph F.3.c provided that NFS ski area water rights
that are jointly or solely owned by the United States must remain in
Federal ownership; 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 must
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; and 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.
Comment: Some commenters suggested that the Agency lacked the
authority to force a permit holder to act as an agent of the United
States by requiring the holder to maintain and bear the cost of
acquiring, maintaining, and perfecting Federally owned NFS ski area
water rights. These commenters also stated that the Forest Service
cannot delegate its legislated duty to manage NFS lands to non-Federal
entities.
Response: The Forest Service has broad authority to condition
special use authorizations, including the authority to require that the
holder of a ski area permit establish, acquire, maintain, and perfect
Federally owned original water rights and bear the cost of those
actions.
Comment: One commenter believed that the requirement in proposed
paragraph F.3.c that any ski area water rights owned by the United
States remain in Federal ownership was inconsistent with the purpose of
the proposed directive and was unfair. This commenter asserted that
permit holders who complied with prior requirements in ski area water
clauses to transfer ownership to the United States should be able to
recover those water rights under the final directive.
Response: The final directive is not retroactive. Any water right
owned solely or jointly by the United States was acquired in accordance
with permit terms that were in effect at that time. Additionally, the
Forest Service lacks authority to forfeit ownership of water rights to
ski area permit holders. In an investigation of a land exchange in Utah
conducted by the U.S. Department of Agriculture, Office of Inspector
General (OIG), OIG stated that if water rights were excess to public
needs, the water rights could be exchanged for properties or services
of equal value. Excess water rights may also be disposed of pursuant to
U.S. General Services Administration real property procedures. The
Forest Service is not aware of any authority that would allow the
Agency to relinquish title to water rights other than by exchange or
disposal as noted above.
In the final directive, the Agency has moved proposed paragraph
F.3.c to paragraph F.3.d and revised it to state that original water
rights owned solely by the United States and the United States'
interest in jointly owned original water rights shall remain in Federal
ownership. In addition, paragraph F.3.d in the final directive provides
that notwithstanding the holder's obligation to maintain original water
rights owned by the United States, 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 the water rights.
Proposed Paragraph F.3.d
Proposed paragraph F.3.d provided 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 on NFS
lands without a special use authorization, then the water facility is
in trespass; that the owner of the NFS ski area water right must apply
for authorization of the water facility; and that if authorization is
denied, the owner of the NFS ski area water right
[[Page 81519]]
must promptly remove the point of diversion and water use from NFS
lands or must abandon the NFS ski area water right.
Comment: One commenter observed that it may not be possible to
determine whether existing water facilities are properly authorized or
in trespass because they may not be listed in the ski area permit or
identified on a map attached to the permit. This commenter stated that,
in practice, ski area improvements may have been considered authorized
if they were located within the permit boundary and approved in a
decision document pursuant to an environmental analysis. Several
commenters asserted that the proposed directive would have retroactive
effect because many water facilities for previously adjudicated ski
area water rights would be found in trespass. These commenters also
noted that proposed paragraph F.3.d is contrary to State laws that do
not require landowner approval before adjudication of a water right.
These commenters also believed that proposed paragraph F.3.d is
contrary to numerous authorizations that allow development of privately
owned water facilities on NFS lands and could jeopardize the
availability of water for ski area operations. These commenters
recommended that proposed paragraph F.3.d be revised or deleted. One
commenter opined that the Agency lacks the legal authority to apply
rules retroactively and suggested striking the words ``was or'' from
proposed paragraph F.3.d.
Response: The Agency is removing proposed paragraph F.3.d from the
final directive because this provision is unnecessary. Existing
regulations at 36 CFR 251.50(a) require a special use authorization for
water facilities on NFS lands. Moreover, per paragraph 1 in the final
instructions for the new ski area water clauses, all water facilities
on NFS lands that are used primarily for operation of the ski area will
be authorized under the ski area permit. Existing water facilities on
NFS lands which are authorized by a separate, valid special use permit
may remain under that separate permit, including upon reissuance, if
eligible. These water facilities will not be eligible for reissuance
under a separate permit if they are used primarily for operation of the
ski area and the separate permit is issued under a statute other than
the National Forest Ski Area Permit Act. This Act provides for ski
areas and associated facilities on NFS lands to be authorized under its
provisions. 16 U.S.C. 497b(a), (b). In that case, upon termination of
the separate permit, the water facilities will be authorized under the
ski area permit.
In addition, under paragraph F.1.e in the final directive, when
authorization for a water facility under the ski area permit terminates
because a change in the water facility results in its ceasing to be
used primarily for operation of the ski area, a separate special use
authorization is required to operate that water facility or to develop
a new water facility, unless the holder has a valid existing right for
the water facility to be situated on NFS lands. A valid existing right
in this context is a legal right, typically a statutory right, to use
and occupy NFS lands. In the absence of a valid existing right, a
separate special use authorization is required under these
circumstances because it is not appropriate to utilize the National
Forest Ski Area Permit Act to authorize water facilities that do not
primarily support operation of a ski area. 16 U.S.C. 497b(a), (b).
Paragraph F.1.e in the final directive also provides that unless the
holder has a valid existing right for the water facility to be situated
on NFS lands, if the holder does not obtain a separate special use
authorization for these water facilities, the holder must remove them
from NFS lands.
Proposed Paragraph F.4--Non-Severability of Certain Water Rights
Proposed Paragraph F.4.a
Proposed paragraph F.4.a provided that when the United States owns
any NFS ski area water rights, the Forest Service may not take any
action that would adversely affect availability of those water rights
to support operation of the ski area during the term of the permit,
unless deemed necessary by the Forest Service to satisfy legal
requirements.
Comment: Several commenters did not believe that proposed paragraph
F.4.a provided enough assurance that the Forest Service would not take
any action that would adversely affect the availability of Federally
owned NFS ski area water rights for ski area operations during the
permit term. Some commenters asserted that it was unclear what was
meant by ``legal requirements'' that might release the Agency from this
commitment and questioned whether land management plan standards and
guidelines would be deemed legal requirements. Additionally, commenters
recommended narrowing the term ``legal requirement'' to ``the
Endangered Species Act'' or striking the words ``unless deemed
necessary by the Forest Service to satisfy legal requirements'' from
the final directive. One commenter suggested striking proposed
paragraph F.4.a entirely and addressing the Forest Service's commitment
not to take any action adversely affecting the availability of
Federally owned NFS ski area water rights on a case-by-case basis. One
commenter suggested that this provision be revised to give ski area
permit holders the right to approve changes the Forest Service makes to
Federally owned NFS ski area water rights, so that they are dedicated
to ski area operations for the benefit of the subsequent holder.
Response: In the final directive, the Agency has revised paragraph
F.4.a to state that the Agency shall not divide or transfer ownership
of or seek any change in Federally owned water rights used by the
holder that would adversely affect their availability for operation of
the ski area during the term of this permit, unless required to comply
with a statute or an involuntary court order that is binding on the
Forest Service.
Paragraph F.1.c in the final directive states that clause D-30 does
not expand or contract the Agency's authority to place conditions on
the installation, operation, maintenance, and removal of water
facilities at issuance or reissuance of the permit, throughout the
permit term, or otherwise. Thus, paragraph F.4.a does not expand or
contract the Agency's ability to place conditions on water facilities
under existing legal authority.
Proposed Paragraph F.4.b
Proposed paragraph F.4.b provided 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 for use that primarily supports operation of the ski area
authorized by the permit (``changed or exchanged water rights''), the
holder may not take any action during the permit term that would
adversely affect the availability of those water rights to support
operation of the ski area authorized by the permit, unless approved in
writing in advance by the authorized officer. Actions that require
advance written approval by the authorized officer included any
division or transfer of ownership of the water rights and any
modification of the type, place, or season of use of the water rights.
Comment: Some commenters believed that the restriction in proposed
paragraph F.4.b would inhibit ski area permit holders' ability to
manage their water rights and would substitute the
[[Page 81520]]
permit holders' discretion with that of the Forest Service in this
context. Other commenters asserted, for example, that a permit holder
may desire to sell water rights that once were necessary for ski area
operations, but which the permit holder has determined are no longer
necessary because of changed circumstances, such as increased
efficiency. Alternatively, these commenters suggested that the permit
holder may determine that it is in the best interests of the ski area
to replace certain sources of necessary water with other sources, but
would be unable to do so under proposed paragraph F.4.b. Some
commenters believed that this provision would undermine the Forest
Service's stated objective of ensuring sustainability of ski areas by
impairing the holder's ability to develop and maintain water rights and
ultimately would make less water available for successive permit
holders. These commenters noted that ski area permit holders have
acquired and maintained sufficient water rights at ski areas to provide
outstanding recreation to the public on NFS lands at no cost to the
Forest Service without a restriction on severability.
One commenter noted that the type of actions that would require
approval by the authorized officer, including ``any modification of the
type, place, or season of use of the water rights,'' would be difficult
to determine consistently because frequently in decrees and
certificates States define water rights very broadly or list every
conceivable water use. For example, this commenter stated that a decree
for one ski area might simply list the uses for a ski area water right
as ``commercial and domestic,'' while another decree for a ski area
water right might list the uses as ``irrigation and domestic water for
condominiums and homes, restaurants, and snowmaking.'' This commenter
further noted that the difficulty would be compounded by the fact that
States frequently do not assign a percentage of the total water right
that is dedicated to each use, which would essentially leave it to the
holder to tell the Agency how much water is typically consumed for each
use.
Commenters were concerned that the restriction in proposed
paragraph F.4.b would apply to water rights that the holder does not
own, in addition to water rights the holder has purchased or leased
from a party other than a prior holder, and that the Forest Service
lacks the authority to impose this restriction. One commenter noted
that the Forest Service does not have sole discretion to determine
whether it is legally entitled or required to interfere with a ski area
water right. These commenters believed that State water administration
authorities may also play a significant role in determining the
appropriateness of the Forest Service's actions related to water
rights. These commenters recommended that the directive recognize the
need for the Forest Service to comply with State law and coordinate
with State agencies before making any legal determination regarding ski
area water rights. These commenters also suggested that the directive
recognize the permit holder's right to seek judicial review of the
accuracy of the Agency's determination that interference with a water
right was required by law. Some commenters were concerned that the
restriction in proposed paragraph F.4.b would have a retroactive effect
because it would apply to water rights acquired many years ago.
One commenter suggested that the proposed definition for ``changed
or exchanged water rights'' was too narrow, in that it would apply only
to water rights ``that the holder has purchased or leased from a party
other than a prior holder.'' This commenter noted that this proposed
definition would not include water rights that (1) are located off NFS
lands; (2) are used under a change or exchange decree to allow
diversion of water on NFS lands; and (3) were originally appropriated
by the current or prior holder of the ski area permit, rather than
being ``purchased or leased'' from another party. The commenter
believed there is no reason to exclude these water rights from the
scope of clause D-30. Another commenter recommended reinforcing that
the restriction in proposed paragraph F.4.b would apply not only to
purchased or leased ski area water rights, but also to ski area water
rights acquired by the holder or a prior holder through appropriation.
This commenter also recommended clarifying that the directive would not
apply to water purchased by a ski area permit holder from a
municipality or other entity that retains ownership of the associated
water right.
Response: A primary objective of the proposed and final directives
is to address the long-term availability of water for ski areas on NFS
lands so as to support the public recreation opportunity they provide
and the economies of the local communities that depend on their
revenue. The Agency believes that ensuring the long-term availability
of water to operate ski areas on NFS lands can be accomplished by
focusing on original water rights, i.e., water rights with a point of
diversion and use inside the ski area permit boundary that were
originally established by a permit holder.
In the final directive paragraph F.4.b applies only to original
water rights owned solely or jointly by the holder, which are critical
to addressing sufficiency of water to operate a ski area on NFS lands.
In addition, in deciding whether to approve division or transfer of or
a change to an original water right, the authorized officer must
consider any documentation prepared by the holder's qualified
hydrologist or licensed engineer demonstrating that the proposed action
will not result in a lack of a sufficient quantity of water to operate
the permitted portion of the ski area.
Moreover, the Agency has added paragraph F.4.c in the final
directive, which states that the holder may seek to change, abandon,
lease, divide, or transfer ownership of or take other actions with
respect to acquired water rights at any time and solely within its
discretion. Paragraph F.4.c in the final directive also provides that,
following these actions, paragraph F.1.e will apply to the associated
ski area water facilities. Paragraph F.1.e in the final directive
addresses proper authorization, and in certain circumstances removal,
of water facilities after certain changes have been made in connection
with those water facilities.
Paragraph F.4.b in the final directive applies only to original
water rights that are owned solely or jointly by the holder, not to
water that is purchased or leased from municipalities or other
entities. The concerns regarding the definition for ``changed or
exchanged water rights'' are moot because the Agency has removed that
definition from the final directive. The Forest Service's authority to
include a water clause in ski area permits to address availability of
water for operation of ski areas on NFS lands is separate from prior
appropriation doctrine States' authority to adjudicate and allocate
water rights. Paragraph F.4.b in the final directive will not have
retroactive effect because it will apply to the current holder of the
ski area permit.
Proposed Paragraph F.5--Transfer of Certain Water Rights
Proposed Paragraph F.5.a
Proposed paragraph F.5.a provided that upon termination or
revocation of the permit, the holder must sell the holder's interest in
any NFS ski area water rights or changed or exchanged water rights to
the purchaser of the ski area improvements. Proposed paragraph F.5.a
also provided that the holder will
[[Page 81521]]
retain the full amount of any consideration paid for those water rights
by the purchaser of the ski area improvements, and that those water
rights must continue to be used primarily in support of the ski area.
Comment: Several commenters objected to proposed paragraph F.5.a on
the grounds that limiting the market for ski area water rights to one
buyer would undermine that market and devalue the water rights.
Commenters believed the Forest Service should recognize that the
existing holder is not the sole source of water rights for a succeeding
holder. These commenters noted that the succeeding holder may have
purchased water rights from another source prior to applying for the
ski area permit or may be able to obtain sufficient water by acquiring
water rights from the State or by purchasing or leasing water from
municipalities, water districts, reservoir companies, or other
entities. These commenters noted that the Forest Service should not
restrict the succeeding holder to acquiring water rights from the
current holder.
Additionally, commenters questioned whether the Agency's concern
regarding insufficiency of water rights for ski area operations was
valid. These commenters believed it was unlikely that the holder would
sell a viable ski area with insufficient water rights to operate
because it would not be in the best interests of the holder to do so.
The commenters also asserted that the Forest Service's authority under
special use permit regulations at 36 CFR 251.54 and 251.59 to require
that succeeding permit holders have a sufficient quantity of water to
operate a ski area before issuing a new ski area permit was adequate to
address the Agency's concern in this context.
Three commenters believed that the existing permit holder should be
required only to offer to sell certain types of ski area water rights
at market value to the succeeding permit holder. These commenters
believed that requiring the holder to offer to sell, rather than to
sell, certain types of ski area water rights to the succeeding permit
holder would maintain the value of the water rights while satisfying
the Agency's interest in ensuring that sufficient water is available
for ski area operations. The commenters believed this approach would be
less likely to result in legal controversy because the approach would
be more consistent with the ski area's property rights. These
commenters recommended that the market value of these water rights be
determined by appraisal and that the cost of the appraisal be split
between the holder and the succeeding holder. Additionally, the
commenters recommended that existing holders not be required to sell to
the succeeding holder any water rights associated with undeveloped
phases of a ski area's master development plan. Further, these
commenters recommended that payment of the full price of ski area water
rights purchased by the succeeding holder be due within 30 days of
purchase or an otherwise agreed-upon timeframe.
Conversely, other commenters supported the transfer requirement in
proposed paragraph F.5.a because the requirement is premised on the
commercial reality that water rights associated with a ski area permit
are customarily included in the assets that are transferred to a buyer
as part of the overall asking price, and because the transfer
requirement is consistent with the requirement under the special use
regulations at 36 CFR 251.60(i) to remove privately owned improvements
from NFS lands when they are no longer authorized. One commenter agreed
that it is appropriate for the holder to retain the full amount of the
consideration paid by the succeeding holder for the holder's interest
in ski area water rights.
One commenter criticized the transfer requirement in proposed
paragraph F.5.a as a perpetual allocation by the Federal government of
Colorado's scarce water supply to an activity that could become
economically marginal, but would be perpetuated as long as an
individual or entity is willing to apply for a permit. This commenter
believed that tying privately held water rights to a particular use in
this manner could thwart the allocation of senior water rights to new
and higher-value uses that are important for Colorado's future
development.
Response: The Agency believes that its concern regarding
sufficiency of water for ski area operations can be addressed by
requiring the holder to offer to sell, rather than to sell, the
holder's interest in original water rights to the succeeding permit
holder. This requirement, combined with the new requirement in the
instructions for the purchaser of a ski area to submit documentation
demonstrating that the purchaser holds or can obtain a sufficient
quantity of water to operate the permitted portion of the ski area
prior to obtaining a permit, will meet the Agency's objective of
addressing sufficiency of water to operate the ski area while giving
the succeeding permit holder the option to purchase the holder's
interest in original water rights or obtain water from other sources.
Neither the proposed nor the final directive provides for water rights
to be tied perpetually to a use that may cease to be viable. Like the
proposed directive, the final directive addresses disposition of ski
area water rights when the ski area is not reauthorized upon
termination or revocation of the permit.
Paragraph F.5.a in the final directive also provides that if the
succeeding permit holder declines to purchase original water rights
owned solely by the holder, the holder may transfer them to a third
party. If the succeeding permit holder declines to purchase the
holder's interest in original water rights jointly held with the United
States, the holder must offer to sell that interest at market value to
the United States. If the United States declines to purchase that
interest, the holder may abandon, divide, lease, or transfer its
interest at its sole discretion.
Paragraph F.5.a in the final directive imposes no restrictions on
the transfer or abandonment of acquired water rights.
Paragraph F.5.a in the final directive provides that the holder
will retain the full amount of any consideration paid for the holder's
interest in original or acquired water rights. Paragraph F.5.a in the
final directive does not prescribe a valuation mechanism or payment
timeframe, as the Agency believes these issues are more appropriately
addressed by the parties to the sale.
In addition, paragraph F.5.a in the final directive provides that
following transfer or abandonment of water rights under that paragraph,
paragraph F.1.e will apply to the associated ski area water facilities.
Paragraph F.1.e in the final directive addresses proper authorization,
and in certain circumstances removal, of water facilities after certain
changes have been made in connection with those water facilities.
Proposed Paragraph F.5.b
Proposed paragraph F.5.b provided that if the Forest Service does
not reauthorize the ski area, the holder must 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 and NFS
ski area water rights owned solely by the holder, or the holder may
relinquish those water rights. Proposed paragraph F.5.b further
provided that the holder must relinquish its ownership interest in any
water rights owned jointly by the holder and the United States.
Comment: Some commenters objected to the requirement in proposed
paragraph F.5.b to remove from NFS lands the point of diversion for any
changed or exchanged water rights or
[[Page 81522]]
NFS ski area water rights owned solely by the holder if the ski area is
not reauthorized. These commenters believed that the reason for this
requirement is unclear and that it would be inconsistent with the
purpose of the Supreme Court finding that the Forest Service's Organic
Act reserved the National Forests primarily to provide water to western
settlers. Commenters believed that changing the points of diversion for
these water rights would require State proceedings, which would be
administratively onerous and expensive. These commenters suggested that
the Forest Service authorize those points of diversion under a separate
permit and thus maintain the value of the water rights. Another
commenter observed that allowing the holder to transfer water rights to
different points of diversion and use if the ski area is not
reauthorized is consistent with Colorado State law and would mitigate
any potential for forfeiture of the holder's solely owned water rights
to the United States.
One commenter was concerned that the requirement to relinquish to
the United States the holder's interest in jointly owned water rights
if the ski area is not reauthorized would eliminate any market for
those water rights. Another commenter noted that water rights
appropriated under State law in western states are not appurtenant to
the land, and that the owner of these water rights can sever them from
the land and transfer them to a different point of diversion and use,
provided that the transfer does not impair other water rights. One
commenter stated that there would be no impact on ski area recreation
opportunities on NFS lands if the holder transferred its interest in
jointly owned ski area water rights to a different point of diversion
and use if the ski area is not reauthorized by the Forest Service.
Response: In the final directive, the Agency has revised paragraph
F.5.b to allow the holder to submit a proposal to the Forest Service
for a permit authorizing a different use for the ski area water
facilities. If a different use is not authorized for those water
facilities, the holder must remove them from NFS lands. The Agency has
replaced the requirement to relinquish the holder's interest in jointly
owned ski area water rights to the United States if the ski area is not
reauthorized with the requirement to offer to sell that interest to the
United States at market value. Paragraph F.5.b in the final directive
provides that if the United States declines to purchase that interest,
the holder may abandon, divide, lease, or transfer its interest at its
sole discretion. The Forest Service agrees that when a ski area is not
reauthorized, there most likely would be no impact on ski area
recreation opportunities on NFS lands if the holder severed its
interest in jointly owned ski area water rights from the United States'
interest in those water rights. Paragraph F.5.b in the final directive
also clarifies that the holder may, in its sole discretion, abandon,
divide, lease, or transfer any water rights solely owned by the holder.
Proposed Paragraph F.6--Documentation of Transfer
Proposed paragraph F.6 provided that when the foregoing provisions
in proposed clause D-30 require the holder to transfer the holder's
interest in any NFS ski area water rights or changed or exchanged water
rights to the holder of a subsequent permit, the holder or the holder's
heirs and assigns must execute and properly file any documents
necessary to transfer the holder's interest, including but not limited
to executing a quit claim deed. Proposed paragraph F.6 also provided
that by executing the permit, the holder grants a limited power of
attorney to the authorized officer to execute, on behalf of the holder,
any documents necessary to transfer ownership under the foregoing
provisions.
Comment: Commenters objected to the limited power of attorney in
proposed paragraph F.6 with regard to execution of documents necessary
to transfer ownership of water rights on the grounds that it is
offensive, heavy-handed, adversarial, unnecessary, and unsupported by
law. Several commenters recommended that the Agency remove the limited
power of attorney provision from the final directive or provide further
justification for its need.
Response: The Agency has removed proposed paragraph F.6 from the
final directive, as it is not necessary to support the revised concept
for addressing sufficiency of water for operation of ski areas on NFS
lands. In particular, since the final directive no longer requires
transfer of water rights, there is no need for a limited power of
attorney on behalf of the Forest Service to ensure water rights are
transferred if the holder declines to do so.
Proposed Paragraph F.7--Waiver
Proposed paragraph F.7 provided that the holder waives any claims
against the United States for compensation for any water rights the
holder transfers, removes, or relinquishes as a result of the foregoing
provisions in proposed clause D-30; 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 in support of the ski area authorized by the
permit.
Comment: Commenters objected to proposed paragraph F.7 on the
grounds that it would require waiver of their constitutional
protections and that the Forest Service lacks statutory authority to
require waiver of those protections. Other commenters believed that the
waiver requirement was unnecessary. One commenter recommended that the
Agency rely on the constitutionality of the final directive, rather
than require permit holders to waive constitutional claims. Several
commenters requested that proposed paragraph F.7 be removed from the
final directive.
Response: The Agency does not believe that a waiver provision is
necessary, since the Agency does not believe that proposed and final
clause D-30 effect a taking of private property. Therefore, the Agency
has removed proposed paragraph F.7 from the final directive.
Proposed Paragraph F.8--Inventory of Necessary Water Rights
Proposed paragraph F.8 included 5 tables for recording certain
information about water rights, including the state identification
number; owner; purpose of use; decree, license, or certificate number;
point of diversion; and point of use. Each table addressed a different
category of water rights, including NFS ski area water rights that are
owned solely by the United States; NFS ski area water rights that are
owned solely by the holder; NFS ski area water rights that are owned
jointly by the United States and the holder; changed or exchanged water
rights; and water rights for points of diversion on non-NFS lands for
use on NFS lands within the permit boundary.
Comment: One commenter opposed the requirement to create and
maintain an inventory of ski area water rights on the grounds that it
would impose an unnecessary burden on the Forest Service and could
introduce a conflict between the States' or permit holder's water
rights records and the Agency's inventory. Additionally, this commenter
asserted that the inventory was not necessary to ensure that a
succeeding permit holder had sufficient water for operation of the ski
area and would impose unnecessary bureaucratic delay on permit holders
and needless workload on Agency staff. Another commenter noted that the
inventory was
[[Page 81523]]
unnecessary given the Agency's lack of water rights oversight to date
and the ski industry's history of using those water rights to provide
outstanding recreation opportunities at no cost to the Agency.
Some commenters were concerned that inventorying water rights for
points of diversion on non-NFS lands for use on NFS lands within the
permit boundary per proposed paragraph F.8.e could be interpreted as
imposing limitations on third-party water rights owned by entities that
have no interest in the permitted ski area and that such restrictions
would unreasonably interfere with the use of water that is located
outside the permit area and is unrelated to the ski area. One commenter
asserted that there is no connection between inventorying water rights
for points of diversion on non-NFS lands and the Forest Service's
interest in ensuring continuity of recreation opportunities for skiing
on NFS lands and protecting water resources within the ski area permit
boundary.
Some commenters generally supported inventorying NFS ski area water
rights because the inventory would disclose water uses by ski areas on
Federal land. One commenter requested that the final directive be
revised to specify a procedure for updating the inventory of ski area
water rights that primarily support operation of the ski area when a
ski area permit is amended or reissued to a new holder. This commenter
believed that an updated inventory would reflect any additions or
deletions from the list of ski area water rights and that these changes
should be subject to public notice and comment.
One commenter was concerned that focusing on ski area water rights
in their entirety, rather than on the specific interest in water rights
held by the permit holder for ski area purposes, would invite arguments
about the scope of the inventory; risk excluding water supplies that
are important to the continued operation of the ski area; and possibly
create problems for third parties, such as a reservoir company and its
shareholders, who also have ownership or other interests in the water
rights. The commenter observed that ski area water rights in Colorado
may be divided into fractional interests that are separately owned. In
that case, different uses of the same water right may be subject to
separate terms and conditions for purposes of administration by the
State engineer. Alternatively, ski area water rights could be owned by
nonprofit corporate entities such as ditch and reservoir companies, and
the interests in those water rights could be represented by shares of
stock in those companies.
Response: An inventory of ski area water facilities is necessary to
implement clauses D-30 and D-31 in the final directive to track water
facilities that are authorized under the ski area permit, both at
permit issuance and during the permit term, i.e., after changes are
made in connection with water facilities that affect whether they are
being used primarily for operation of the ski area. An inventory of
original water rights is necessary to implement clause D-30 in the
final directive to track original water rights for purposes of
implementing paragraphs in clause D-30 that apply to those water
rights. Per paragraph F.4.b in the final directive, the inventory will
be updated by the holder upon reissuance of the ski area permit,
installation or removal of a ski area water facility, when a listed ski
area water facility is no longer authorized by the permit, or when an
original water right is no longer used for operation of the ski area.
The Agency does not believe that maintaining an inventory of
original water rights will impose an unnecessary burden on the Forest
Service or pose the risk of a conflict with the States' or permit
holder's water rights records. Holders have a record of their ski area
water rights and can provide the requisite information to the
authorized officer to ensure that the inventory is accurate and updated
as needed. Maintaining the inventory in the final directive will be
simpler than maintaining the inventory in the proposed directive. In
the final directive, the Agency has moved the inventory tables to an
appendix and has reduced the 5 tables to 2, to track only original
water rights and ski area water facilities authorized under the ski
area permit. Finally, the Agency has removed the requirement for
Regional Forester approval of the inventory before issuance of a new or
modified ski area permit.
The Agency agrees that water rights for points of diversion off NFS
lands for use on NFS lands inside the ski area permit boundary should
not be tracked in the inventory. These water rights do not arise from a
point of diversion on NFS lands and therefore do not meet the
definition of ``ski area water rights'' in the final directive.
The Agency does not believe that changes to the inventory should be
subject to public notice and comment. The inventory is a tracking
mechanism. Prior appropriation doctrine States, not the Federal
government, adjudicate and allocate water rights. Forest Service
decisions regarding installation or removal of ski area water
facilities will be subject to appropriate environmental analysis,
including public involvement, as appropriate.
Proposed Paragraph F.9--Performance Bond
Proposed paragraph F.9 provided that when the holder owns any
changed or exchanged water rights or solely owns any NFS ski area water
rights, the holder must maintain a performance bond that fully covers
the cost of removing all privately owned ski area improvements and
restoring the site if the use is not reauthorized. Proposed paragraph
F.9 also provided for the minimum amount of the bond to be specified
and for the amount of the bond to be determined by the authorized
officer.
Comment: One commenter asserted that Forest Service form SF-25 is
not appropriate for implementing the proposed performance bond
requirement because of the form's references to ``contracts'' and
``contractors.'' This commenter recommended that a new form be
developed that is tailored specifically to the obligations under FSM
6560.5. Other commenters questioned the need for a new performance bond
requirement that would cover the cost of removing facilities and site
restoration if a ski area is not reauthorized. Some commenters sought
clarification as to how this performance bond compares to the existing
performance bond requirements in the ski area permit. One commenter
asserted that this requirement is unnecessary because of the existing
performance bond clause in the ski area permit, which allows the Forest
Service to require a performance bond at its discretion. One commenter
asked for clarification as to whether the performance bond requirement
would apply only to water facilities or to any ski area facilities.
Additionally, some commenters objected to the cost of the performance
bond.
Some commenters supported the performance bond requirement to
ensure that the permit holder removes authorized water facilities when
the permit terminates and suggested that the performance bond
requirement be extended to all special use permits.
Response: The shift in focus with respect to ski area water rights
from non-severability in the proposed directive to ensuring sufficiency
of water for ski area operations in the final directive makes the
performance bond requirement unnecessary in the final directive.
Therefore, the Agency has removed proposed paragraph F.9 from the final
directive. The objection to the
[[Page 81524]]
use of form SF-25 is moot because the bonding requirement has been
removed. The recommendation to expand the performance bond requirement
to other types of special use permits is beyond the scope of this
directive.
Acknowledgment of Terms
This provision stated that the holder has read and agrees to all
terms and conditions of the permit, including the authorization
provided in proposed paragraph F.6 that allows the authorized officer
to act on the holder's behalf in executing all necessary documents to
transfer ownership of NFS ski area water rights and changed or
exchanged water rights as provided in the permit. No comments were
received on this provision. Since proposed paragraph F.6 has been
removed from the final directive, the acknowledgment of terms provision
is moot and has also been removed from the final directive.
b. RIPARIAN DOCTRINE STATES--CLAUSE D-31
In several respects, the comments and responses on proposed clause
D-30 apply to proposed clause D-31. Consequently, where applicable, the
Agency has revised clause D-31 in the final directive, including the
instructions, to track the changes to clause D-30 in the final
directive, including the instructions.
Proposed Paragraph F.1--Water Facilities
Proposed Paragraph F.1.d
Proposed paragraph F.1.d provided that the United States may place
conditions on installation, operation, maintenance, and removal of any
water facility that are deemed necessary by the United States to
protect public property, public safety, and natural resources on NFS
lands.
Comment: Commenters asserted that the Forest Service does not have
unfettered rights to impose any condition it sees fit on ski area water
facilities as implied by proposed paragraph F.1.d. These commenters
recommended that proposed paragraph F.1.d be amended in the final
directive to add ``in accordance with applicable laws'' as required by
the National Forest Ski Area Permit Act.
Response: The Forest Service has redesignated proposed paragraph
F.1.d as F.1.c in the final directive and revised paragraph F.1.c to
track the revisions to the corresponding paragraph in proposed clause
D-30. The response to comments on the corresponding proposed paragraph
in clause D-30 is incorporated here by reference.
Proposed Paragraph F.1.e
Proposed paragraph F.1.e provided that only water facilities that
are necessary for and that primarily support operation of the ski area
authorized by the permit may be included in the permit. No specific
comments were received on proposed paragraph F.1.e in clause D-31. The
Forest Service has redesignated proposed paragraph F.1.e as F.1.d and
revised the paragraph to track the revisions made to the corresponding
proposed paragraph in clause D-30.
New Paragraph F.1.e
The Agency has added a new paragraph F.1.e requiring an inventory
of all ski area water facilities on NFS lands to be included in the
appendix of the permit. The inventory must be updated by the holder
upon reissuance of the ski area permit, installation or removal of a
ski area water facility, or when a listed ski area water facility is no
longer authorized by the ski area permit. This new paragraph
corresponds to the new inventory provision in clause D-30 and is needed
to track water facilities that are authorized under the ski area
permit, both at permit issuance and during the permit term, i.e., after
changes are made in connection with water facilities that affect
whether they are being used primarily for operation of the ski area.
Proposed Paragraph F.1.f
Proposed paragraph F.1.f provided that any change in water
facilities authorized by this permit will result in termination of the
authorization for those water facilities, unless the change is
expressly authorized by a permit amendment. As examples of this type of
change, proposed paragraph F.1.f listed use of the water in a manner
that does not primarily support operation of the ski area authorized by
the permit and a change in the beneficial use, location, or season of
use of water.
Comment: A commenter was concerned that proposed paragraph F.1.f
would unreasonably restrict the maintenance and management of water
resources and that greater flexibility was needed by holders in this
context. For example, this commenter cited the need for flexibility to
respond to changes in technology, weather conditions, or operational
priorities and the need to make decisions quickly or in the case of a
Federal government shutdown.
Response: In the final directive, the Agency has revised proposed
paragraph F.1.f to track the revisions made to the corresponding
paragraph in proposed clause D-30. The response to comments on the
corresponding proposed paragraph in clause D-30 is incorporated here by
reference.
Proposed Paragraph F.1.g
Proposed paragraph F.1.g provided that the holder must obtain a
separate special use authorization to initiate, develop, certify, or
permit any water facility on NFS lands that does not primarily support
operation of the ski area authorized by the permit.
Comment: Commenters were concerned that separate permits issued
under proposed paragraph F.1.g would not include the ski area water
clauses, but rather would include standard water clauses for other
special uses that require ownership of the water rights to be
transferred to the United States.
Response: In the final directive, the Agency has combined proposed
paragraph F.1.g with paragraph F.1.f. In addition, the Agency has
revised proposed paragraph F.1.g to track the revisions made to the
corresponding provision in proposed clause D-30. The response to
comments on the corresponding proposed paragraph in clause D-30 is
incorporated here by reference.
Proposed Paragraph F.2--Water Rights
Comment: Some commenters recommended revising proposed paragraph
F.2 to dedicate ski area water rights to ski area purposes to the
extent the United States has any right, title, or interest in them as a
riparian or littoral landowner.
Response: In riparian doctrine States, water rights are appurtenant
to the land and cannot be severed from the land. Therefore, in contrast
to clause D-30, there is no need for clause D-31 to address
severability of water rights from the permitted NFS lands.
No Takings Implications
Comment: Several commenters were concerned that proposed clause D-
30 would effect a taking of private property by the Federal government.
Commenters asserted several bases for this concern, including the fact
that the proposed directive would not rescind water clauses for other
special uses that require transfer of ownership of water rights to the
United States; would require transfer of NFS ski area water rights to a
succeeding permit holder; and would require transfer of the holder's
solely owned NFS ski area water rights to the United States if the
holder fails to move the point of diversion and use for those water
rights when a ski area is not reauthorized. In addition, these
commenters cited their belief that proposed clause D-30 would
[[Page 81525]]
establish absolute control over the adjudication and operation of ski
area water rights, for example, by requiring Forest Service permission
for even minor changes; would allow the Forest Service to impose
unlimited restrictions on water rights; and would not rescind prior ski
area water rights clauses that required transfer of ownership of water
rights to the United States. Several commenters asserted that the
Forest Service lacks the legal authority to require holders to
relinquish water rights under the ski area permit.
Response: The Forest Service does not believe the proposed and
final directives effect a taking of private property. Including
requirements regarding ski area water rights in ski area permits that
are issued, reissued, or modified under 36 CFR 251.61, rather than in
existing ski area permits, does not effect a taking of private
property. The Forest Service has broad authority to include appropriate
terms and conditions in special use permits, including ski area
permits. 79 FR 35516 (June 23, 2014); 16 U.S.C. 481, 497, 497b, 529,
551; 43 U.S.C. 1765; 36 CFR 251,56(a)(ii)(A), (a)(ii)(B), (a)(ii)(E),
(a)(ii)(G). A ski area permit is a voluntary transaction, and a holder
can decline the permit or accept the permit subject to its new
conditions.
Neither the proposed nor the final directive provides for Forest
Service adjudication of water rights. The provisions governing use of
water facilities have been clarified and narrowed consistent with the
objectives of the final directive. When it becomes effective, the final
directive will supersede prior ski area water clauses in the Forest
Service's Directive System and standard ski area permit form.
Water clauses in existing ski area permits, other than the 2011 and
2012 water clauses that were invalidated by the court's order in
National Ski Areas Association, Inc. v. United States Forest Service,
remain in effect. Holders of existing permits that are not being
reissued or modified under 36 CFR 251.61 may elect to have these water
clauses replaced with the appropriate water clause in the final
directive within one year of the effective date of the final directive,
provided they:
(1) agree to have all water facilities on NFS lands that are used
primarily for operation of the ski area and that are not authorized
under a separate permit:
(a) authorized by their ski area permit;
(b) designated on a map attached to the permit; and
(c) included in an inventory in an appendix to the permit; and
(2) submit documentation prepared by their qualified hydrologist or
licensed engineer demonstrating that:
(a) they hold or can obtain a sufficient quantity of water to
operate the permitted portion of the ski area; and
(b) identifying all water sources, water rights, and water
facilities necessary to demonstrate a sufficient quantity of water to
operate the ski area, including all original water rights; all water
facilities authorized by the ski area permit; and any existing
restrictions on withdrawal or diversion of water that are required to
comply with a statute or an involuntary court order that is binding on
the Forest Service.
Per paragraph F.3.d of the final directive, original water rights
owned solely by the United States and the United States' interest in
jointly owned original water rights will remain in Federal ownership.
Water clauses for special uses other than ski areas are beyond the
scope of this directive.
Controlling Paperwork Burdens on the Public
Comment: One commenter recommended developing a new standard form
to document the bonding requirement for removal of ski area
improvements and site restoration, rather than relying on Forest
Service form SF-25, which is intended to secure performance under the
terms of the permit.
Response: This comment is moot, since the Agency has removed the
bonding requirement from the final directive.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The Agency has considered the final directive under the
requirements of E.O. 13132 on federalism and has concluded that the
final directive conforms to the federalism principles in the E.O. The
final directive will not impose any compliance costs on the States and
will not have substantial direct effects on the States, 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.
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with tribes on a government-to-government
basis on policies that have tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
The Forest Service has assessed the impact of this policy on Indian
tribes and determined that this directive does not, to our knowledge,
have tribal implications that require tribal consultation under E.O.
13175. However, the Forest Service provided a 120-day government-to-
government consultation period for recognized Tribes starting July 28,
2014. Tribes were provided the Federal Register notice for the proposed
directive and proposed clauses D-30 and D-31. Tribes were encouraged to
contact their local Forest Service administrative unit to engage in
government-to-government consultation. Five Tribes submitted written
comments in response to the request for consultation. The Hopi and
Navajo Tribes acknowledged receipt of the comment opportunity, but did
not provide comments.
The summaries of those Tribes that did comment and the Agency's
responses follow.
Comment: The Tulalip Tribes stated that their water rights pursuant
to the Treaty of Point Elliot of January 22, 1855 (12 Stat. 927),
include a water right for instream flows to protect and enhance fish
species and their habitat and to provide the habitat for flora and
fauna harvested under the Treaty. The Tulalip Tribes want the Forest
Service to ensure that water rights for ski areas in the State of
Washington are held by the Federal government and are specifically
limited to the term, place, and uses in the ski area permit. The
Tulalip Tribes believed that this restriction would ensure that waters
important for preservation of NFS lands and resources could not be
transferred to other uses. The Tulalip Tribes further noted that the
proposed directive addresses providing recreation opportunities,
economic benefit to holders of special use permits, and protecting the
public interest in water and other resources under the Agency's
jurisdiction, but fails to acknowledge the Agency's legal duty to
protect the Tulalip Tribes' water rights, which predate any other water
rights pursuant to the Treaty of Point Elliot and an E.O. dated
December 23, 1873.
Response: For the reasons stated above, the final directive
modifies the
[[Page 81526]]
Forest Service's approach to accomplishing the objective of long-term
availability of water to sustain ski area uses. In particular, the
final directive does not provide for ski area water rights to be
acquired in the name of the United States. With respect to ski area
water rights, the final directive emphasizes sufficiency of water for
ski area operations. In particular, the final directive includes a
definition for the term, ``sufficient quantity of water to operate the
ski area,'' and clarifies when and how the holder must demonstrate a
sufficient quantity of water to operate the ski area; provides that the
holder may not make changes that would adversely affect the
availability of the holder's solely or jointly owned original water
rights for ski area operations during the permit term, unless approved
in writing in advance by the authorized officer; requires the holder to
offer to sell the holder's interest in original water rights to the
succeeding permit holder; and provides that if a purchaser of the ski
area declines to buy the holder's interest in jointly owned original
water rights, the holder must offer to sell that interest to the United
States.
The Forest Service is committed to honoring Tribal treaty and other
reserved rights, including Tribal water rights. Nothing in the final
directive will infringe upon these rights. Water rights acquired under
State law in connection with ski area permits are subject to the valid
existing water rights of other water rights holders, including valid
existing Tribal treaty and other reserved water rights, if any.
Reference to the water rights of specific Tribes would be outside the
scope of this directive, which sets forth water clauses for ski area
permits.
Comment: The Winnebago Tribe of Nebraska stated that the proposed
directive may proceed, but asked to be notified if any burial sites or
cultural properties are found during construction, as the Tribe has
cultural properties on NFS lands. Similarly, the Ysleta Del Sur Pueblo
Tribe asked to be consulted if any human remains or artifacts that fall
under Native American Graves Protection and Repatriation Act (NAGPRA)
guidelines are unearthed in connection with the proposal. The Ysleta
Del Sur Pueblo Tribe stated that it does not have any other comments,
does not object to the proposed directive, and does not believe that it
would otherwise adversely affect any traditional, religious, or
culturally significant sites of the Tribe.
Response: The final directive does not implement any site-specific
decisions regarding the conditioning or construction of water
facilities at ski areas on NFS lands. If a Tribe requests consultation
on the final directive, the Forest Service will work with the Office of
Tribal Relations to ensure meaningful consultation is provided where
changes, additions and modifications identified herein are not
expressly mandated by Congress. The Forest Service will evaluate the
need for and conduct appropriate tribal consultation on such site-
specific projects if and when they are proposed. Prior to any permit
being issued or conditions being placed, the authorized officer must,
pursuant to Executive Orders 12898 and 13175 and NFS Directives,
consult with relevant populations, including tribes having a current or
historical interest in the NFS lands authorized by the permit or
condition. Additionally, in accordance with NAGPRA, an existing clause
in the standard ski area permit form states that if the holder
inadvertently discovers human remains, funerary objects, sacred
objects, or objects of cultural patrimony on NFS lands, the holder must
immediately cease work in the area of the discovery; make a reasonable
effort to protect and secure the items; and immediately notify the
authorized officer by telephone of the discovery and follow up with
written confirmation of the discovery.
4. Regulatory Certifications
Environmental Impact
This final directive revises 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 final
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 final directive has been reviewed under USDA procedures and
E.O. 12866 on regulatory planning and review. The Office of Management
and Budget (OMB) has determined that this final directive is
significant and therefore subject to OMB review under E.O. 12866. The
final directive is not economically significant because it will not
have an annual effect of $100 million or more on the economy; it will
not adversely affect productivity, competition, jobs, the environment,
public health and safety, or State or local governments; and it will
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 cost-benefit analysis prepared by the Agency for the final
directive concludes that the benefits of the final directive to the
Forest Service substantially outweigh the costs because the Agency has
corrected the procedural deficiencies associated with 2011 and 2012 ski
area water clauses and because the final directive will enhance
treatment of ski area water rights and administration of ski area water
facilities under ski area permits. The cost-benefit analysis also
concludes that the costs to permit holders associated with the final
directive are minimal and are substantially outweighed by the benefits
of enhanced sustainability of ski areas on NFS lands and improved
administration of ski area permits.
The Agency has considered the final 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 the final directive will not have a significant
economic impact on a substantial number of small entities as defined by
the Act because the final directive will impose only modest record-
keeping requirements on them; will not affect their competitive
position in relation to large entities; and will not affect their cash
flow, liquidity, or ability to remain in the market. The final
directive will likely have a positive economic effect on current and
future ski area permit holders and local communities close to ski areas
because the final directive addresses long-term sustainability of ski
areas. The basis for this determination is enumerated in the threshold
Regulatory Flexibility Act analysis for the final directive.
No Takings Implications
The Agency has analyzed the final directive in accordance with the
principles and criteria contained in E.O.12630 and has determined that
the final directive will not pose the risk of a taking of private
property.
Civil Justice Reform
The Agency has reviewed the final directive under E.O. 12988 on
civil justice reform. Upon adoption of the final directive, (1) all
State and local laws and regulations that conflict with the final
directive or that impede its full implementation will be preempted; (2)
no retroactive effect will be given to the
[[Page 81527]]
final directive; and (3) it will not require administrative proceedings
before parties file suit in court challenging its provisions.
Energy Effects
The Agency has reviewed the final directive under E.O. 13211,
entitled ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' The Agency has determined that
the final 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 final
directive on State, local, and Tribal governments and the private
sector. The final directive will 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
The information collection associated with the final directive is
different from the information collection associated with the proposed
directive. In particular, rather than requiring an inventory of 5
different types of water rights, the final directive requires an
inventory of only original water rights and ski area water facilities
authorized by the permit. In addition, the final directive requires an
applicant for a new or modified ski area permit to document a
sufficient quantity of water to operate the ski area and an applicant
for a new water facility to document a sufficient quantity of water to
operate the proposed water facility.
Therefore, through this Federal Register notice, the Agency is
providing an opportunity to comment on the information collection
associated with the final directive during the 30-day period between
the publication date and the effective date of the final directive.
When this information collection has been approved for use, it will be
incorporated into OMB control number 0596-0082, Special Uses
Administration. All other information collections associated with the
ski area permit are already covered by OMB control number 0596-0082.
The following summarizes the information collection associated with
the final directive:
OMB Control Number: 0596-0235.
Estimated Burden per Response: 1.5 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: 90 hours.
Comment is invited on (1) whether this information collection 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 associated with the information collection,
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 information
collection on respondents, including automated, electronic, mechanical,
or other technological collection techniques or other forms of
information technology. All comments received in response to the notice
of this information collection, including names and addresses when
provided, will be included in the record for the final directive. The
comments will be summarized and included in the package submitted to
OMB for approval.
5. Access to the Final 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 final directive, visit the Forest Service's
Web site at https://www.fs.fed.us/specialuses. Only the sections of the
FSH 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.
Dated: December 23, 2015.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2015-32846 Filed 12-29-15; 8:45 am]
BILLING CODE 3411-15-P