U.S. Water News Online
DENVER -- Lawyers for the Arapahoe Basin ski resort and the U.S. Forest Service have argued in U.S. District Court that the ski area should be allowed to draw water from the Snake River for a proposed snowmaking operation.
A-Basin and the Forest Service say the resort should be allowed to draw water from the river, even though it would make pollution downstream worse. But lawyers for the Boulder-based environmental group Colorado Wild argued that the federal Clean Water Act prohibits causing further damage to the river, which is already contaminated by runoff from abandoned mines in another tributary.
The group is appealing the Forest Service's approval of a snowmaking system at A-Basin, the state's highest ski area.
``If they're allowed to degrade the stream, the Clean Water Act means nothing,'' said Colorado Wild's Rocky Smith. of Colorado Wild.
Justice Department attorneys asked Judge Clarence Brimmer to dismiss the case, arguing that pollution from the mines is not the ski area's problem and that snowmaking will not cause any additional pollution.
``They argue the withdrawal of water from the north fork will exacerbate the pollution problem in the main stem because there would be less water to dilute the pollution,'' said Forest Service attorney David Carson. ``We think it's a very novel claim, and they're really trying to make new law here.''
Carson noted that neither Colorado's historic water law nor the Clean Water Act regulate water-quality damage caused by diversions, only discharges.
A-Basin attorney Harris Sherman said water rights cannot be restricted because of concerns about water quality elsewhere.
``The plaintiffs are suggesting that the Clean Water Act requires someone to ... give up or compromise a water right in a river that's being polluted by someone else,'' Sherman said. ``If the plaintiff's theory would be adopted here, it would have a very, very far-reaching impact on water rights in the state of Colorado.''
Robert Wiygul, attorney for Colorado Wild, said state and federal water-quality standards are enforced without regard for the sources of pollution.
``What we're saying is, for heaven's sake, don't make it worse when it's already bad,'' he said. ``Their contention is that once water quality violates standards, then it's open season.''
Brimmer asking pointed questions of Justice Department attorneys.
``I think what they're saying is you're going to make it worse, that you're going to make it harder to get into compliance,'' the judge said. ``Aren't they arguing you have a responsibility not to make it worse?''
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