[Senate Report 111-304]
[From the U.S. Government Publishing Office]
Calendar No. 590
111th Congress Report
SENATE
2d Session 111-304
======================================================================
SKI AREA RECREATIONAL OPPORTUNITY
ENHANCEMENT ACT
_______
September 27, 2010.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 607]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 607) to amend the National Forest Ski
Area Permit Act of 1986 to clarify the authority of the
Secretary of Agriculture regarding additional recreational uses
of National Forest System land that are subject to ski area
permits, and for other purposes, having considered the same,
reports favorably thereon with an amendment, and an amendment
to the title and recommends that the bill, as amended, do pass.
The amendments are as follows:
1. Strike out all after the enacting clause and insert in
lieu thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ski Area Recreational Opportunity
Enhancement Act of 2010''.
SEC. 2. PURPOSE.
The purpose of this Act is to amend the National Forest Ski Area
Permit Act of 1986 (16 U.S.C. 497b)--
(1) to enable snow-sports (other than nordic and alpine
skiing) to be permitted on National Forest System land, subject
to ski area permits issued by the Secretary of Agriculture
under section 3 of the National Forest Ski Area Permit Act of
1986 (16 U.S.C. 497b); and
(2) to clarify the authority of the Secretary of Agriculture
to permit appropriate additional seasonal or year-round
recreational activities and facilities on National Forest
System land, subject to ski area permits issued by the
Secretary of Agriculture under section 3 of the National Forest
Ski Area Permit Act of 1986 (16 U.S.C. 497b).
SEC. 3. SKI AREA PERMITS.
Section 3 of the National Forest Ski Area Permit Act of 1986 (16
U.S.C. 497b) is amended--
(1) in subsection (a), by striking ``nordic and alpine ski
areas and facilities'' and inserting ``ski areas and associated
facilities'';
(2) in subsection (b), in the matter preceding paragraph (1),
by striking ``nordic and alpine skiing operations and
purposes'' and inserting ``skiing and other snow sports and
recreational uses authorized by this Act'';
(3) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively;
(4) by inserting after subsection (b) the following:
``(c) Other Recreational Uses.--
``(1) Authority of secretary.--Subject to the terms of a ski
area permit issued pursuant to subsection (b), the Secretary
may authorize a ski area permittee to provide such other
seasonal or year-round natural resource-based recreational
activities and associated facilities (in addition to skiing and
other snow-sports) on. National Forest System land subject to a
ski area permit as the Secretary determines to be appropriate.
``(2) Requirements.--Each activity and facility authorized by
the Secretary under paragraph (1) shall--
``(A) encourage outdoor recreation and enjoyment of
nature;
``(B) to the extent practicable--
``(i) harmonize with the natural environment
of the National Forest System land on which the
activity or facility is located; and
``(ii) be located within the developed
portions of the ski area;
``(C) be subject to such terms and conditions as the
Secretary determines to be appropriate; and
``(D) be authorized in accordance with--
``(i) the applicable land and resource
management plan; and
``(ii) applicable laws (including
regulations).
``(3) Inclusions.--Activities and facilities that may, in
appropriate circumstances, be authorized under paragraph (1)
include--
``(A) zip lines;
``(B) mountain bike terrain parks and trails;
``(C) frisbee golf courses; and
``(D) ropes courses.
``(4) Exclusions.--Activities and facilities that are
prohibited under paragraph (1) include--
``(A) tennis courts;
``(B) water slides and water parks;
``(C) swimming pools;
``(D) golf courses; and
``(E) amusement parks.
``(5) Limitation.--The Secretary may not authorize any
activity or facility under paragraph (1) if the Secretary
determines that the authorization of the activity or facility
would result in the primary recreational purpose of the ski
area permit to be a purpose other than skiing and other snow-
sports.
``(6) Boundary determination.--In determining the acreage
encompassed by a ski area permit under subsection (b)(3), the
Secretary shall not consider the acreage necessary for
activities and facilities authorized under paragraph (1).
``(7) Effect on existing authorized activities and
facilities.--Nothing in this subsection afects any activity or
facility authorized by a ski area permit in effect on the date
of enactment of this subsection during the term of the
permit.'';
(5) by striking subsection (d) (as redesignated by paragraph
(3)), and inserting the following:
``(d) Regulations.--Not later than 2 years after the date of
enactment of this subsection, the Secretary shall promulgate
regulations to implement this section.''; and
(6) in subsection (e) (as redesignated by paragraph (3)), by
striking ``the National Environmental Policy Act, or the Forest
and Rangelands Renewable Resources Planning Act as amended by
the National Forest Management Act'' and inserting ``the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) and the Forest and Rangeland Renewable Resources Planning
Act of 1974 (16 U.S.C. 1600 et seq.)''.
SEC. 4. EFFECT.
Nothing in the amendments made by this Act establishes a legal
preference for the holder of a ski area permit to provide activities
and associated facilities authorized by section 3(c) of the National
Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b(c)) (as amended by
section 3).
2. Amend the title so as to read: ``A bill to amend the
National Forest Ski Area Permit Act of 1986 to clarify the
authority of the Secretary of Agriculture regarding additional
recreational uses of National Forest System land that is
subject to ski area permits, and for other purposes.''.
Purpose
The purpose of S. 607 is to amend the National Forest Ski
Area Permit Act of 1986 to authorize the Secretary of
Agriculture to permit additional recreational activities and
associated facilities on National Forest System land through
ski area permits.
Background and Need
The National Forest Ski Area Permit Act of 1986 (Public Law
99-522) authorizes the Secretary of Agriculture ``to issue
permits . . . for the use and occupancy of suitable lands
within the National Forest System for nordic and alpine skiing
operations and purposes.'' 16 U.S.C. 497b. The Forest Service's
regulations implementing that Act define a ``ski area'' as ``a
site and attendant facilities expressly developed to
accommodate alpine or nordic skiing and from which the
preponderance of revenue is generated by the sale of lift
tickets and fees for ski rentals, for skiing instruction and
trail passes for the use of permittee-maintained ski trails. A
ski area may also include ancillary facilities directly related
to the operation and support of skiing activities.'' 36 C.F.R.
251.51 (2009).
The Forest Service has permitted more than 120 ski areas on
National Forest System land in 13 States. Many of these areas
provide for uses other than nordic and alpine skiing, such as
snow-boarding and sledding, and some have been permitted to
provide for summer activities such as mountain biking, disc-
golf (or ``frisbee golf'') courses, and zip lines. The interest
in such non-skiing activities by the permit holders and the
public has grown significantly over the years, and the interest
in expanding summer uses is expected to grow in the future.
S. 607 would provide clear authority for the Secretary to
issue ski area permits that authorize a broader range of winter
and summer activities on National Forest System land, along
with direction regarding which activities would be appropriate.
Legislative History
S. 607 was introduced by Senator Udall of Colorado on March
17, 2009, and is cosponsored by 15 Senators. The Subcommittee
on Public Lands and Forests held a hearing on the bill on
October 29, 2009 (S. Hrg. 111-223). At its business meeting on
July 21, 2010, the Committee on Energy and Natural Resources
ordered the bill favorably reported with an amendment in the
nature of a substitute and an amendment to the title.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on June 21, 2010, by a voice vote of a quorum
present, recommends that the Senate pass S. 607, if amended as
described herein.
Committee Amendment
During the consideration of S. 607, the Committee adopted
an amendment in the nature of a substitute and an amendment to
the title. The substitute amendment removes the findings from
the bill, adds illustrative lists of seasonal activities that
could be permitted and a list of activities that could not be
permitted under the new authority, and makes other technical
and conforming changes. The amendment is explained in detail in
the section-by-section analysis below.
Section-by-Section Analysis
Section 1 provides the short title for the bill.
Section 2 provides the purpose for the bill.
Section 3 of the bill amends section 3 of the National
Forest Ski Area Permit Act of 1986 (``Ski Area Act'') (16
U.S.C. 497b).
Paragraphs (1) and (2) of section 3 of the bill amend
subsections (a) and (b) of section 3 of the Ski Area Act to
provide the Secretary of Agriculture with general authority to
issue permits for ski areas and associated facilities on
National Forest System land not only for nordic and alpine
skiing, but also for skiing and other snow sports and
recreational uses.
Paragraphs (3) and (4) provide for the addition of a new
subsection (c) in section 3 of the Ski Area Act. The new
subsection (c) provides specific authority to the Secretary to
authorize ski area permittees to provide to the public certain
seasonal and year-round natural resource-based recreational
activities and associated facilities on National Forest System
land. Each activity authorized under the new subsection would
have to meet specified requirements designed to ensure that the
new activities are appropriate for National Forest System land,
that they do not expand the developed footprint of the ski
area, and that they remain an ancillary use under the permit.
The amendment includes illustrative lists of activities that
may--and would not--be permissible. For example, the Secretary
is precluded from permitting amusement parks, but may, in
appropriate circumstances that meet the requirements of the
amendment, permit a collection of features such as zip lines,
mountain-bike trails, and other recreational activities. The
new subsection also includes a provision clarifying that it
does not affect any activities or facilities authorized in a
current ski area permit during the term of that permit. For
example, an activity that currently is authorized in a ski area
permit but that would not be permissible under the proposed
amendment would not be precluded by the amendment from
continuing for the remainder of the term of that permit.
Paragraph (5) amends section 3 of the Ski Area Act to
direct the Secretary to promulgate regulations for ski area
permits.
Paragraph (6) makes conforming changes to a number of
citations of existing laws in the Ski Area Act.
Section 4 of the bill clarifies that the new authority
provided to the Secretary to permit additional recreational
activities under the new subsection (c) of the Ski Area Act
does not create a legal preference for the permittee to provide
those activities to the public on the National Forest System
land subject to the permit.
Cost and Budgetary Considerations
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
S. 607--Ski Area Recreational Opportunity Enhancement Act of 2010
S. 607 would clarify the authority of the Forest Service to
allow ski concessioners to offer additional recreational
services on public lands. Based on information provided by the
agency, CBO estimates that enacting the legislation would have
no significant effect on the federal budget. The Forest Service
already has authority to allow its concessioners to provide
off-season and other recreational services at ski resorts.
Clarifying that authority could facilitate the agency's
collection of fees from ski concessioners (currently yielding
offsetting receipts to the Treasury of about $30 million a
year).
Because enacting the legislation could result in additional
offsetting receipts (a credit against direct spending), pay-as-
you-go procedures apply, but CBO estimates that any increase
would total less than $500,000 a year.
The legislation contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would impose no costs on state, local, or tribal
governments.
On February 1, 2010, CBO transmitted a cost estimate for
H.R. 2476, the Ski Area Recreational Opportunity Enhancement
Act of 2010, as ordered reported by the House Committee on
Natural Resources on December 16, 2009. On July 8, 2010, CBO
transmitted a cost estimate for H.R. 2476 as ordered reported
by the House Committee on Agriculture on June 30, 2010. S. 607
and the two versions of H.R. 2476 are similar, as is CBO's
estimate of their costs.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 607.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 607, as ordered reported.
Congressionally Directed Spending
S. 607, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
Executive Communications
The testimony provided by the Forest Service at the October
29, 2009, Subcommittee hearing on S. 607 follows:
Statement of Joel Holtrop, Deputy Chief, National Forest System, Forest
Service, Department of Agriculture
Chairman Wyden and Members of the Subcommittee, thank you
for inviting the U.S. Department of Agriculture to appear
before you today to present our views on S. 607, the ``Ski Area
Recreational Opportunity Enhancement Act of 2009.'' The
Administration supports this legislation with technical
amendments. We would appreciate the opportunity to work with
the Committee to refine the bill to provide the appropriate
natural resource-based experience for visitors to the National
Forests while ensuring the protection of the natural
environment.
The bill would amend the National Forest Ski Area Permit
Act of 1986 to authorize the Secretary to permit seasonal and
year-round natural resource-based, outdoor-developed
recreational activities and associated facilities at ski areas,
in addition to those that support Nordic and alpine skiing and
other snow sports that are currently authorized by the Act.
The Act authorizes issuance of permits for Nordic and
alpine ski operations and appropriate ancillary facilities (16
U.S.C. 497b(b)(3)). Congress intended the term ``appropriate
ancillary facilities to include ``only those facilities
directly necessary for the operation and support of a winter
sports facility . . . '' (S. Rep. No. 99-449, 99th Cong., 2d
Sess. 5 (1986)).
The additional seasonal and year-round recreational
activities and associated facilities authorized by the bill
would encourage outdoor recreation and have to harmonize with
the natural environment. The bill would make clear that the
primary purpose of the authorized use and occupancy would
continue to be skiing and other snow sports.
background and need for legislation
Current law does not authorize activities other than Nordic
and alpine skiing, snow sports, and their ancillary facilities
at ski areas. Ski areas serve as portals to national forest
recreation. There are 121 ski areas operating under permit on
national forests. These ski areas occupy a fraction of 1
percent of the total National Forest System land base.
Nevertheless, about one-fifth of all recreation on national
forests occurs at these ski areas. For many Americans, ski
areas are gateways to our national forests and a means to
greater appreciation of the natural world. Further, these
recreational opportunities provide a great avenue for visitors
to reconnect to the land, a core tenet of Secretary Vilsack's
vision for forests.
We have become concerned about trends showing a decline in
appreciation and understanding of the natural environment among
our youth. However, we still see strong visitation by youth and
families at ski areas. The Forest Service has developed strong
partnerships with many ski area operators that enhance
visitors' understanding and appreciation of the environment
through interpretive signing, programs, and exhibits. Expanding
opportunities for year-round use will encourage more of the
public to experience and appreciate the national forests. Ski
areas introduce the national forests to our increasingly urban
population.
Ski areas are some of the most developed sites on the
national forests. Focusing more of the developed outdoor
recreational activities in these areas could reduce negative
impacts in other areas of the national forests. One example of
a popular developed outdoor recreational activity is freestyle
mountain biking. By focusing this activity at ski areas, ski
area operators would be able to increase utilization of
existing infrastructure, and the impacts on surrounding
National Forest System lands caused by freestyle biking may be
minimized.
Across the country we have received numerous proposals by
ski areas to add off-season recreational activities. Some we
have approved, perhaps without fully understanding the current
limitations of the 1986 Ski Area Permit Act, while others we
have denied, or not acted upon. We're aware that summer
activities at a number of ski areas that operate summer
facilities on non-National Forest Service land are very
popular. Whistler-Blackcomb Ski Area in British Columbia has
become a very popular destination for biking. In the Northeast,
Bretton Woods Ski area offers an array of summer activities
which reportedly ``sell out'' at times. We believe we'd see the
most interest for summer uses at ski areas that are either
located near large population centers or are near communities
with large hotel capacities that tend to be underutilized in
the summer.
Because of longer summers and higher temperatures due to
climate change, it is possible that ski areas in some locations
may see somewhat shorter winter operating seasons. Increasing
the scope of activities and facilities that may be authorized
under a ski area permit, where appropriate and in conformance
with environmental law, could help ski areas remain
economically viable by more fully utilizing their significant
investment in infrastructure, such as ski lifts, in the off-
season or year-round.
recommended changes to s. 607
We would like to work with the committee to develop
amendments in two areas:
While we support allowing additional
activities and infrastructure for year-round
activities, activities should be appropriate to the
natural resource setting and should contrast with an
urban environment. Excluding facilities such as
amusement and water parks, golf courses, tennis courts,
and skateboard parks is consistent with Forest Service
policy.
Ski area boundaries should continue to
encompass only the acreage the Secretary deems
sufficient and appropriate to accommodate the permit
holder's needs for snow sports and appropriate
ancillary facilities for winter operations. Permit
boundaries should not be expanded to accommodate
recreational activities and facilities that are not
related to skiing and snow sports, which are the
primary purpose of these resorts.
In addition, consistent with the discretion afforded the
Secretary in the bill, we would develop directives that would
establish criteria for implementing the expanded authority,
based on case-specific review of proposals from ski areas in
accordance with applicable regulations and environmental law.
The criteria would likely include (1) availability and
suitability of private lands as alternative sites for the
activities; (2) the proposed location within the permitted
area, including proximity to existing areas of concentrated
development; (3) consistency with the applicable land
management plan and applicable federal, state, and local law;
(4) impacts on soil, water, wildlife, aesthetics, and other
national forest resources; (5) effects on the primary purpose
of the resort for alpine and Nordic skiing; (6) tribal
interests; and (7) visitor safety.
If the bill is enacted, we would envision that more highly
developed summer facilities would be focused in areas which
already support extensive resort infrastructure, while lesser
developed parts of ski areas would primarily be for hiking,
mountain biking, and other activities that require more limited
facilities.
The legislation does not provide a blanket approval for any
particular summer facility or use. Proposals would be subject
to the Agency's requirements for site-specific environmental
review and public involvement. In those environmental reviews
we would look very carefully at the sometimes sensitive nature
of high elevation ecologic conditions before approving a
proposal. While we might approve an activity or facility at one
location at a given ski area, we might not at a different
location at another ski area or even at a different location
within the same ski area.
In summary, this legislation would concentrate highly
developed recreation in those areas that are currently the most
developed sites on the national forests and enhance the long
term viability of these ski areas and the adjoining rural
economies. For these reasons, the legislation is a positive
step and one which the Administration supports, with the
suggested clarifications.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 607 as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
NATIONAL FOREST SKI AREA PERMIT ACT OF 1986
(Public Law 99-522; Approved October 22, 1986)
[16 U.S.C. 497b]
AN ACT to establish a ski area permit system on national forest lands,
and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Forest Ski Area
Permit Act of 1986''.
* * * * * * *
SEC. 3. SKI AREA PERMITS.
(a) Law Applicable to Permits.--The provisions of the Act
of March 4, 1915 (16 U.S.C. 497) notwithstanding, the term and
acreage of permits for the operation of [nordic and alpine ski
areas and facilities] ski areas and associated facilities on
National Forest System lands shall henceforth be governed by
this Act and other applicable law.
(b) Authority.--The Secretary of Agriculture (hereinafter
referred to as ``the Secretary'') is authorized to issue
permits (hereinafter referred to as ``ski area permits'') for
the use and occupancy of suitable lands within the National
Forest System for [nordic and alpine skiing operations and
purposes] skiing and other snow sports and recreational uses
authorized by this Act. A ski area permit--
(1) may be issued for a term not to exceed 40 years;
(2) shall ordinarily be issued for a term of 40 years
(unless the Secretary determines that the facilities or
operations are of a scale or nature as are not likely
to require long-term financing or operation), or that
there are public policy reasons specific to a
particular permit for a shorter term;
(3) shall encompass such acreage as the Secretary
determines sufficient and appropriate to accommodate
the permittee's needs for ski operations and
appropriate ancillary facilities;
(4) may be renewed at the discretion of the
Secretary;
(5) may be cancelled by the Secretary in whole or in
part for any violation of the permit terms or
conditions, for nonpayment of permit fees, or upon the
determination by the Secretary in his planning for the
uses of the national forests that the permitted area is
needed for higher public purposes;
(6) may be modified from time to time by the
Secretary to accommodate changes in plans or operations
in accordance with the provisions of applicable law;
(7) shall be subject to such reasonable terms and
conditions as the Secretary deems appropriate; and
(8) shall be subject to a permit fee based on fair
market value in accordance with applicable law.
(c) Other Recreational Uses.--
(1) Authority of secretary.--Subject to the terms of
a ski area permit issued pursuant to subsection (b),
the Secretary may authorize a ski area permittee to
provide such other seasonal or year-round natural
resource-based recreational activities and associated
facilities (in addition to skiing and other snow-
sports) on National Forest System land subject to a ski
area permit as the Secretary determines to be
appropriate.
(2) Requirements.--Each activity and facility
authorized by the Secretary under paragraph (1) shall--
(A) encourage outdoor recreation and
enjoyment of nature;
(B) to the extent practicable--
(i) harmonize with the natural
environment of the National Forest
System land on which the activity or
facility is located; and
(ii) be located within the developed
portions of the ski area;
(C) be subject to such terms and conditions
as the Secretary determines to be appropriate;
and
(D) be authorized in accordance with--
(i) the applicable land and resource
management plan; and
(ii) applicable laws (including
regulations).
(3) Inclusions.--Activities and facilities that may,
in appropriate circumstances, be authorized under
paragraph (1) include--
(A) zip lines;
(B) mountain bike terrain parks and trails;
(C) frisbee golf courses; and
(D) ropes courses.
(4) Exclusions.--Activities and facilities that are
prohibited under paragraph (1) include--
(A) tennis courts;
(B) water slides and water parks;
(C) swimming pools;
(D) golf courses; and
(E) amusement parks.
(5) Limitation.--The Secretary may not authorize any
activity or facility under paragraph (1) if the
Secretary determines that the authorization of the
activity or facility would result in the primary
recreational purpose of the ski area permit to be a
purpose other than skiing and other snow-sports.
(6) Boundary determination.--In determining the
acreage encompassed by a ski area permit under
subsection (b)(3), the Secretary shall not consider the
acreage necessary for activities and facilities
authorized under paragraph (1).
(7) Effect on existing authorized activities and
facilities.--Nothing in this subsection affects any
activity or facility authorized by a ski area permit in
effect on the date of enactment of this subsection
during the term of the permit.
[(c) Rules and Regulations. Within one year after the date
of enactment of this Act, the Secretary shall promulgate rules
and regulations to implement the provisions of this Act, and
shall, to the extent practicable and with the consent of
existing permit holders, convert all existing ski area permits
or leases on National Forest System lands into ski area permits
which conform to the provisions of this Act within 3 years of
the date of enactment of this Act.] (d) Regulations.--Not later
than 2 years after the date of enactment of this subsection,
the Secretary shall promulgate regulations to implement this
section.
[(d)] (e) Nothing in this Act shall be deemed to amend,
modify or otherwise affect the Secretary's duties under [the
National Environmental Policy Act, or the Forest and Rangelands
Renewable Resources Planning Act as amended by the National
Forest Management Act] the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and the Forest and Rangeland
Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et
seq.), including his duties to involve the public in his
decisionmaking and planning for the national forests.