It is well-established under Colorado water law that a water right owner is entitled to a right-of-way to build facilities on the private and public lands of others to transport water from its source to its place of use. Colorado Constitution, Article XVI, § 7; C.R.S. § 37-86-102.
In 2012, the United States Forest Service issued Interim Directive 2709.11-2012-2, which requires that ski resorts with special use permits to operate their resorts on federal lands transfer their water rights to the Forest Service without compensation as a condition to the special use permit. The National Ski Areas Association, Inc. filed a lawsuit against the Forest Service arguing that the directive constituted a taking of private property without due compensation. In December 2012, the United States District Court for the District of Colorado vacated the Forest Service directive and ruled that the Forest Service violated federal law by not providing for public input prior to issuing the directive. The Court did not rule on the takings claim.
In response to this directive, Colorado Representative Jerry Sonnenberg (R-Sterling) is sponsoring House Joint Resolution 13-1004 and Colorado House of Representatives Bill 13-1013. Unanimously approved by the House Agriculture, Livestock and Natural Resources Committee, HJR 13-1004 encourages the Forest Service to withdraw the 2012 directive stating that it is unconstitutional under Colorado water law’s doctrine of prior appropriation. HJR 13-1004 also states that, in addition to imposing conditions on ski resort permits, the Forest Service has delayed issuing permits in connection with ranching activities in Colorado in order to pursue obtaining water rights. At a March Committee hearing, the Forest Service’s Daniel Jirion told the Committee that the Forest Service would begin a public process to develop a directive regarding water rights on federal lands this spring and that the Forest Service “fully supports” the ski industry and Colorado water laws.
HB 13-1013 would amend C.R.S. 37-86-102 to prohibit the federal government from demanding that a water right owner transfer to the government a partial or joint ownership interest in a water right as a condition to the government’s granting of right-of-way or special use permit. HB 13-1013, as currently amended, has support from the Colorado Farm Bureau, Colorado Water Congress and Colorado Counties, Inc. The Agriculture, Livestock and Natural Resources Committee has referred the bill to the House Committee on Appropriations.