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Environmental Blog

  • 18
  • October
  • 2013

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U.S. Forest Service – Colorado Ski Area Friend or Foe?

Water rights have traditionally been the province of states. There is no national system of water rights in the United States; rather, the law varies in different regions of the country. Colorado, for example, applies the appropriation doctrine, whereas many eastern states use a system of riparian rights. While water rights tend to be under state control, the federal government maintains some authority over the use and allocation of water. First, the federal government has a number of powerful regulatory tools for protecting water quality, which inevitably impact water rights, including, for example, the Endangered Species Act and the Clean Water Act. In addition, the federal government holds water rights on some federal lands. Congress impliedly reserved such rights when it reserved the lands for specific uses. Finally, and most relevant here, the U.S. Forest Service (“USFS”) can use its permitting system to require holders of private water rights on National Forest land to transfer those rights to the federal government. USFS claims that the transfer will protect the land and secure its continued use for skiing and recreation. However, application of these federal water rights is often perceived as an intrusion on states’ rights and has a tendency to create conflict.

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