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
``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,
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
``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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