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<br />Page 13 <br /> <br /> <br />'. <br /> <br />Decision: Deprivation of water amounts to a physical taking for which plabitiffs should <br />be compensated. <br /> <br />Discussion: . This case concerns the delivery of water in Califoroia from the Central. <br />Valley Project, a federal project managed by the Bureau of Reclamation ("BOR"), and the <br />State Water Project, managed by the Department of Water 'Resources ("DWR"). The two <br />projects share a coordinated pumping system that requires the systems to be operated in <br />concert. The arrange men t is formalized by a federal statute and agreement between <br />California and the United States. BOR and DWR both hold state water permits for the <br />projects and contract to end-users. The plaintiffs in this case had water contracts with <br />DWR. The National Marine Fisheries Service and the Fish and Wildlife Service issued <br />biological opinions concluding that the operation of the projects jeopardized the existence <br />of tile delta smelt and the winter-run chinook salmon. The agencies issued reasonable and <br />prudent alternatives tbat restricted the time and manner of pumping tile water. Plaintiffs <br />alleged tbat they were deprived of over 370,000 acre-feet of water from 1992-1994. Tbe <br />Court stated tbat, in tbe context of water rigbts, a mere restriction of use of water <br />"completely eviscerates tbe right itself since plaintiffs' sole entitlement is to tbe use oftbe <br />water." To the extent that the federal government effected a pbysical taking when it <br />prevented plaintiffs from using tbe water to wbicb tbey are entitled, it rendered the <br />usufructuary rigbt to tbat water valueless. The Court found that the holding In O'Neill v. <br />United States, 50 F.3d 677 (9'b Cir. 1995) did not apply here. In O'Neill, the water users <br />had contracts with BOR that contained a broad exemption from liability. In the Tulare <br />Lake case tbe water users' contracts were witb tbe State and tbe federal government did <br />not have any immunity from liability. <br /> <br />. <br /> <br />20. Colorado Wild, Inc. and Trout Unlimited v. Colorado Department of Public Healtb and <br />Environmeilt, Water Quality Control Division, Colorado Water Quality Control <br />Commission, and Dundee Realty USA, Inc., Case No. 2001 CV 66,"Summit County <br />District Court [Arapaboe Basin 401 certification case]. <br /> <br />Issue: A-Basin wants to divert Clean water for snowmaking. If tbe diversion reduces <br />dilution and therefore Increases the concentration of pollutants downstream, and if the <br />diversion reduces aquatic habitat downstream, do these effects constitute adverse water <br />quality impacts such that the WQCD cannot certify under ~ 401 of the Clean Water Act <br />that the construction of the diversion structure will comply with water quality <br />standards, the ant/degradation regulation, and use classifications? <br /> <br />Decision: <br /> <br />Pending In Summit County District Court. <br /> <br />Discussion: Dundee Realty, the operator of Arapahoe Basin Ski Area, wants to develop a <br />snowmaking system. A-Basin would divert water out of the North Fork of the Snake River <br />near the ski area, put it temporarily in a pond, and then distribute it througb a <br />snowmaking system before and during tbe skiing season. A-Basin bas a special use permit <br />from the US Forest Service for the diversion and snowmaking. A-Basin is in tbe process of <br /> <br />.. <br /> <br />