Will Environmental Constraints Pass Into Oblivion?
Ski Area Management
Congress appears to be ready to deregulate everything -- including many environmental policies that affect ski areas. Will this remove the constraints that hamper expansion?
What will happen if Congress deconstructs the federal regulatory apparatus? Will ski resorts be freed, once and for all, from the environmental constraints symbolized by spotted owls, capshell snails, humpback chubs and wetlands? Will you be able to make snow when you want, how you want and in quantities of your own choosing?
The short answer is "No."
The longer answer is that environmental constraints do not arise solely from the handful of federal laws currently under consideration by Congress, but also from the policies and practices of the Forest Service, as well as from numerous state laws and local ordinances. Thus even if section 404 were expunged from the law books, it would not eliminate the wetlands protection statutes adopted by 31 states, or the wetlands ordinances adopted by more than 2,000 communities across the country.
This is particularly true with respect to snowmaking, which has recently become a major battleground in the continuing struggles over environmental protection and opposition to growth in resort communities.
Among the recent high-profile controversies have been Snowmass in Colorado, where such improvements are entangled in litigation over the state's minimum streamflow program; Sugarbush in Vermont, where such improvements were subjected to federal and state regulatory reviews; and Loon Mountain in New Hampshire, where improvements triggered a five-year review process.
Anchor ice and aquatic habitat have become the rallying cries of project opponents, and more than one government official has identified snowmaking as the major environmental issue facing ski areas during the coming decade.
The amount of water used for snowmaking is a tiny fraction of that diverted for municipal, industrial and irrigation uses. Moreover, a study by Wright Water Engineers, of Denver, Colo., found that relatively little water is lost during snowmaking, and that most machine-made snow returns to the watershed. Subsequent studies by Forest Service hydrologists indicate that the glading or clearing of timber, similar to that undertaken at ski areas, can actually increase the amount and duration of runoff. Thus, in many cases, the combined effect of snowmaking and trail clearing may be to increase annual yield and shift a portion of the winter flow to the spring and summer. In effect, snowmaking results in a form of water storage.
Nevertheless, on a local level, snowmaking diversions can be significant, and the shift in flow from winter to spring can raise several concerns. The two most frequently mentioned are: 1) adverse effects on the aquatic ecosystem from the lower winter flows; and 2) adverse effects on channel stability and water quality from the higher spring runoff. These concerns, along with issues of noise, visual impacts and wetlands conversion have attracted the attention, in recent years, of government regulators and local communities, as well as project opponents.
Lower Winter Flows
The potential impact of snowmaking depletions on the aquatic ecosystem was a major issue for both the Snowmass and Sugarbush projects.
At Sugarbush, the concern focused on fish, while at Snowmass it also encompassed vegetation, insects and wildlife. Fishery concerns included potential impacts on over-wintering fish and the survival of fish eggs. In both cases, the regulatory agencies ultimately relied on the minimum stream flow programs of the respective states to address these issues.
[Ed. Note: In the case of Sugarbush, it is worth noting the reality that the Mad River had never provided good fishing -- certainly not since the state had straightened and otherwise re-engineered it for flood control purposes, well before Sugarbush even came into being. But in the regulatory mind, reality is often not a viable currency. The same could be said of Snowmass.]
Unfortunately, at present there is no consistent approach within the regulatory community in establishing minimum winter flows. Government agencies use different methodologies, with some relying on habitat modeling and others on hydrologic computations. This can become particularly frustrating for a snowmaking proponent when multiple agencies seek to assert jurisdiction over a project.
For example, in Colorado, the State Water Conservation Board sets minimum flows based on the recommendations of the divisions of wildlife and parks, and after consultation with the public, the Forest Service and the Department of the Interior.
In practice, the state generally relies on a hydraulic model called R-2 Cross, which uses field data to predict the effect of flow changes on stream characteristics. But many federal agencies, as well as fishery consultants, also use the Instream Flow Incremental Methodology (IFIM), a hydraulic model that predicts the effect of flow changes on different types of fish habitat and life stages. By way of contrast, the New England region of the Fish and Wildlife Service has recommended maintaining the median February flow throughout the winter.
Underlying the concern over this issue is the assumption that low flows and ice formation mean less available habitat in winter, and therefore that any further reduction in streamflows would necessarily have an adverse impact on the fishery. However, site-specific studies have found this is not always true.
Fishery populations may be limited by high spring flows, that can flush young fish out of the system, or by water quality, that can prevent fish and other life forms from surviving. Under such circumstances, reductions in the available winter habitat may have little or no impact on fish populations.
Studies have also demonstrated that, since much of the riparian vegetation is dormant during the winter with limited water requirements, reductions in winter flows may have little adverse impact.
In addition, it is sometimes possible to compensate for the reduction in winter habitat associated with water withdrawals for snowmaking by undertaking habitat improvements along the stream. These improvements can range from strategic boulder placement to log drop structures to rock dams - all of which can create more pool habitat for low-flow periods. Some government agencies have relied on this type of mitigation in setting minimum streamflows or in allowing reductions in flows for limited periods.
Higher Spring Runoff
As noted above, the addition of machine-made snow, coupled with the clearing or glading of ski terrain, can increase runoff into the watershed. This could conceivably increase the volume and duration of high flows, and in turn lead to the widening and downcutting of stream channels and increased sedimentation. This could ultimately result in changes to the morphology of the stream channel, and possibly in diminished water quality.
Whether such results actually occur would depend on many variables. For many streams, the machine-made snow would probably not increase flows beyond the range of natural conditions. In addition, adverse impacts could usually be avoided or minimized through the implementation of best management practices (BMPs) and erosion control measures.
For example, at Sugarbush, the Forest Service found that the potential runoff from expanded snowmaking would be within the range of natural conditions, and would therefore have little if any impact on peak spring runoff.
At Snowmass, the Forest Service found that the proposed snowmaking and tail work would increase the water yield by up to nine percent for some watersheds, but concluded that stormwater permitting requirements and BMPs would minimize or eliminate the potential adverse impacts to the environment.
Worrisome Forest Service Directions
Several recent developments within the Rocky Mountain Region of the Forest Service may further complicate the ability of ski areas to develop or expand snowmaking on national forest system land in Colorado - and eventually in other states as well.
In one instance, as part of a ski area master development plan amendment, a Forest Supervisor suggested that existing ski area improvements should be evaluated retroactively for "consistency" with the amended Forest Plan. This could lead to serious complications where existing snowmaking operations, for instance, might not be "consistent" with more recently adopted Forest Plan standards. This issue portends to be a major source of controversy in the future if consistency requirements are taken literally and applied retroactively.
Second, in a non-ski area context, a Forest Supervisor has made the renewal of special use permits for existing water diversion and storage facilities conditional on the agreement of the permittee to bypass or release flows for the benefit of downstream fish habitat.
The legality and propriety of these conditions have been hotly debated, and former Secretary of Agriculture Madigan has previously indicated that bypass requirements would not be imposed on existing water supply facilities. Nevertheless, it is possible that the Forest Service could rely on this decision as precedent for imposing analogous requirements on ski area permittees who divert water for snowmaking. This, too, could affect existing snowmaking systems.
Third, the Colorado regional office of the Forest Service is currently preparing a watershed conservation practice handbook that will identify various methods for minimizing watershed impacts, including bypass flow. The current draft of the document reportedly distinguishes between existing and new facilities, and would rely on a range of methodologies, including R-2 Cross and IFIM.
Of course, this assumes that the Forest Service continues to exist in its present form, and continues to exercise jurisdiction over the use of national forest system land. If the Forest Service were eliminated - reportedly a devout hope of several federal legislators - then Forest Service plans and "consistency" determinations would be consigned to the history books. However, before celebrating, remember they would likely be replaced by new and similar initiatives at the state and local levels.
It is clear that snowmaking proposals can become a battleground with what seems like endless reviews, divergent scientific approaches and a parade of federal, state and local officials. These battles are likely to become tougher in the future as agencies scrutinize projects for their impacts on aquatic habitat and water quality.
While each project is unique, some guidelines can provide a framework for handling these issues:
Get all of the involved agencies to commit to a common and appropriate methodology. It will save time, money and headaches.
If adverse impacts on the fishery are anticipated, seek to mitigate them through limitations on diversions, release of water from other sources or through habitat improvements.
Retain experienced experts early so they can collect data on a timely basis that can underlie an informed expert opinion.
Be on top of everything, physical or regulatory, that might affect your snowmaking operations and plans. This could be other projects that might affect winter flows, or it could be state minimum stream flow proceedings.
Keep the public informed of the facts surrounding your ski area proposal. Respond promptly and factually to misrepresentations by opponents.
Do not rule out possible legal challenges of arbitrary and capricious agency action, or, in certain instances, of an unconstitutional taking of (water) rights. Recent U.S. Supreme Court and congressional reviews have sought to place parameters on how far an agency can reasonably go.
In sum, while Hollywood can go "back to the future," the ski industry cannot go forward to the past. Gone are the days of exercising untrammeled discretion over when, where and how much snow you make, if they every truly existed. As with many other water uses, snowmaking is, and will continue to be, subject to regulatory review and approval. However, with careful preparation and thoughtful planning of environmental issues, ski areas can still meet their needs.
The Regulatory Labyrinth
Snowmaking improvements often trigger a multitude of regulatory requirements at federal, state and local levels. While the particular requirements will be site-specific, they often include:
- State water rights decrees, permits or other authorizations for the use of water for snowmaking.
- A Corps of Engineers section 404 permit and State section 401 certificate if the improvements will involve work in a wetland, stream or other water of the U.S.
- If work on national forest land is involved, a Forest Service special use permit, master development plan approval and construction plan approval.
- A State Dam permit if the improvements involve a large impoundment.
- Local land use authorizations if the improvements involve work on private land, or if the local government has extended its regulations to National Forest System land.
- These requirements, in turn, can trigger the need for additional reviews and approvals. For example, Forest Service or Corps of Engineers approvals may trigger the need for an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA), while local land-use approvals may trigger a similar requirement under a state counterpart to NEPA.
Forest Service or Corps of Engineers approvals can also trigger the need for consultations with the U.S. Fish and Wildlife Service if the improvements might affect a threatened or endangered species. Or, it could trigger the need for an analysis of air quality conformity if the improvements might affect a non-attainment area under the Clean Air Act.