[Senate Report 112-55]
[From the U.S. Government Publishing Office]
Calendar No. 135
112th Congress Report
SENATE
1st Session 112-55
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SKI AREA RECREATIONAL OPPORTUNITY ENHANCEMENT ACT
_______
August 30 (legislative day, August 2), 2011.--Ordered to be printed
Filed under authority of the order of the Senate of August 2, 2011
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 382]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 382) 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, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
Purpose
The purpose of S. 382 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 that is
subject to a ski area permit.
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. 382 would provide clear authority for the Secretary to
issue ski area permits that authorize a broader range of winter
and summer activities for the public at ski areas on National
Forest System land, along with some general direction regarding
which activities would be appropriate.
Legislative History
S. 382 was introduced by Senators Udall of Colorado and
Barrasso on February 17, 2011, and is cosponsored by 10 other
Senators. The Subcommittee on Public Lands and Forests held a
hearing on the bill on May 18, 2011 (S. Hrg. 112-39). At its
business meeting on July 14, 2011, the Committee on Energy and
Natural Resources ordered S. 382 favorably reported without
amendment. In the 111th Congress, the Committee reported an
identical bill (S. 607; S. Rept. 111-304) and the House of
Representatives passed a similar bill (H.R. 2476, by voice vote
on July 30, 2010).
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on July 14, 2011, by a voice vote of a quorum
present, recommends that the Senate pass S. 382.
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 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. 382--Ski Area Recreational Opportunity Enhancement Act of 2011
S. 382 would expand 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 impact on the federal budget. The Forest Service
already has authority to allow its concessioners to provide
certain off-season and other recreational services at ski
resorts. Expanding that authority could increase the agency's
collection of fees from ski concessioners (currently yielding
offsetting receipts to the Treasury of about $30 million a
year), but CBO estimates that any increase would total less
than $500,000 a year.
Because enacting the legislation could result in additional
offsetting receipts ( a credit against direct spending), pay-
as-you-go procedures apply. Enacting S. 382 would not affect
revenues.
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 June 27, 2011, CBO transmitted a cost estimate for H.R.
765, the Ski Area Recreational Opportunity Enhancement Act of
2011, as ordered reported by the House Committee on Natural
Resources on June 15, 2011. The two pieces of legislation are
similar, and CBO's estimate of their budgetary impact is the
same.
The CBO staff contact for this estimate is Jeff LaFave. 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. 382.
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. 382, as ordered reported.
Congressionally Directed Spending
S. 382, 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 May 18,
2011, hearing on S. 382 follows.
Statement of Mary Wagner, Associate Chief, Forest Service Department of
Agriculture
Mr. Chairman and Members of the Subcommittee, I am Mary
Wagner, Associate Chief for the U.S. Forest Service. Thank you
for the opportunity to appear before you to provide the views
of the U.S. Department of Agriculture (USDA) on S. 382, the Ski
Area Recreational Opportunity Enhancement Act of 2011.
S. 382 would amend the National Forest Ski Area Permit Act
of 1986 to authorize the Secretary to permit seasonal or year-
round natural resource-based 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 Department supports S. 382 and wishes to thank the
Members of the Committee for addressing the concerns expressed
when we testified last Congress on S. 607. Like its
predecessor, S. 382 would promote seasonal or year-round
recreation opportunities at ski resorts on National Forest
System lands and, by doing so, would expand the opportunities
for ski areas to attract visitors during all four seasons.
The additional seasonal or year-round recreational
activities and associated facilities authorized by the bill
would have to encourage outdoor recreation and enjoyment of
nature and, to the extent practicable, would have to harmonize
with the natural environment. The bill specifies certain
recreational activities and facilities that could, under
appropriate circumstances, be authorized and those that would
be excluded from authorization. The bill would make clear that
the primary purpose of the authorized use and occupancy would
continue to be skiing and other snow sports.
There are 122 ski areas operating under permit on National
Forest System lands. These ski areas occupy less than 1 percent
of all National Forest System lands. Nevertheless, about one-
fifth of all recreation in national forests occurs at these sik
areas. The ski areas are some of the most developed sites in
the national forests. However, for many Americans, ski areas
are portals to the national forests and a means to greater
appreciation of the natural world.
Focusing more of developed outdoor recreational activities
within ski areas is appropriate and would reduce impacts on
less developed areas in the national forests. If S. 382 is
enacted, we would develop criteria for the types of seasonal or
year-round activities that would be appropriate at ski areas to
provide a basis for case-specific proposals at the local level
in accordance with established law, regulations, and procedures
including the Secretary's duties to involve the public in his
decision-making and planning for the national forests.
In summary, this legislation would encourage greater
recreational use of the national forests and would concentrate
highly developed recreation in areas that are currently among
the most develooped sites in national forests. In addition, the
legislation would enhance the long-term viability of the ski
areas on National Forest System lands and the adjoining rural
economies.
Mr. Chairman and Members of the Subcommittee, this
concludes my testimony. I'll be happy to answer any of your
questions.
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. 382 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
* * * * * * *
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.