Excerpt FSH 2709.11, chapter 50, Ski Area Water Rights Clause – Riparian States - Proposed 06/2014
Instruction for Ski Area Water Rights Clause
D-31. Water Facilities and Water Rights ‒ Ski Areas in Riparian States. Clause D-31
supersedes clauses XII.F.1 through XII.F.3 in the 10-09 version of Form FS-2700-5b, Ski Area
Term Special Use Permit, and clause D-30 in id_2709.11-2011-3 and id_2709.11-2012-2 in the
riparian States of Michigan, Vermont, and New Hampshire. Include clause D-31 in ski area
permits in Michigan, Vermont, and New Hampshire when these permits are reissued or modified
under 36 CFR 251.61. Do not use clause D-31 in western states utilizing a prior appropriation
system.
Before issuing a new or modified ski area permit in a riparian State, ensure that the holder is in
compliance with all water facility and water use requirements in clause D-31.
Optional paragraph F.3 should be added when restrictions on withdrawal and use of water are
required by a regulation or policy, an adjudication, or a settlement agreement or are based on a
decision document supported by environmental analysis. Specify the restrictions in accordance
with the table in paragraph F.3.
Only water facilities that are necessary for and that primarily support operation of the ski area
being authorized may be included in a ski area permit. All water facilities that meet these
criteria, regardless of whether they are for diversions on National Forest System (NFS) lands
inside or outside the permit boundary, should be included in the ski area permit. “Necessary” in
relation to a water facility means that but for that water facility, the ski area would not be able to
operate. “Primarily supports” in relation to a water facility means that the water facility serves
the ski area improvements on NFS lands significantly more than any other use.
Any other water facilities must be authorized under a separate permit.
Prior to authorizing a permit amendment for a new water facility at a ski area, ensure that
sufficient water is available to operate the water facility.
F. WATER FACILITIES AND WATER RIGHTS.
1. Water Facilities.
a. For purposes of paragraph F.1, “necessary” in relation to a water facility means
that but for that water facility, the ski area would not be able to operate. “Primarily
supports” in relation to a water facility means that the water facility serves the ski
area improvements on NFS lands significantly more than any other use.
b. The term “water facility” means a ditch, pipeline, reservoir, well, tank, spring,
seepage, or any other facility or feature that withdraws, stores, or distributes water.
c. No water facility for which the point of withdrawal, storage, or distribution is on
National Forest System (NFS) lands may be initiated, developed, certified, or
permitted by the holder unless expressly authorized in a special use authorization.
Excerpt FSH 2709.11, chapter 50, Ski Area Water Rights Clause – Riparian States - Proposed 06/2014
d. 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.
e. Only water facilities that are necessary for and that primarily support operation of
the ski area authorized by this permit may be included in this permit.
f. Any change in water facilities authorized by this permit shall result in termination
of the authorization for those water facilities, unless the change is expressly
authorized by amendment to this permit. Examples of such a change include (1) use
of the water in a manner that does not primarily support operation of the ski area
authorized by this permit or (2) a change in the beneficial use, location, or season of
use of the water.
g. 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 this permit.
2. Water Rights. This permit does not convey, dispose of, extinguish, or otherwise effect
a transfer of any right, title, or interest of the United States as a riparian or littoral
landowner. The United States retains all rights, title, and interests it has as a riparian or
littoral landowner.
<USER NOTE FOR PARAGRAPH F.3>
<Include paragraph F.3 in permits where restrictions on withdrawal and use of
water are required by a regulation or policy, an adjudication, or a settlement
agreement or are based on a decision document supported by environmental
analysis. If there are no restrictions on water withdrawal, omit this paragraph.>
3. Water Use. This permit documents restrictions on withdrawal and use of water
located on NFS lands as required by a regulation or policy, an adjudication, or a
settlement agreement or based on a decision document supported by environmental
analysis:
Location
Source
Timing
Limits on
Amount
Minimum Amount to
be Maintained in the
Source