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BOARD00408
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Last modified
8/16/2009 2:49:51 PM
Creation date
10/4/2006 6:37:48 AM
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Board Meetings
Board Meeting Date
5/21/2001
Description
Report of the Attorney General
Board Meetings - Doc Type
Memo
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<br />, . <br /> <br />Page 14 <br /> <br />adjudicating a change of water right case to allow the snowmaklng use, and the CWCR is a <br />party to that case because of Its decreed Instream !lows In the vicinity. <br /> <br />. <br /> <br />A-Basin also needs a 404 permit from the Corps of Engineers to construct the diversion <br />structure. To get the 404 permit they need a 401 c~rtiflcatlon from the state WQCD, <br />certifying that the project will comply with water 4uality standards, use classifications, and <br />the antidegradation standard. The WQCD issued ithe 401 certification, and Colorado Wild <br />and Trout Unlimited appealed to the WQCC. Th~y argued (1) that the diversion of water <br />for snowmaklng would cause adverse water quality effects by removing clean water that <br />dilutes metals contamination downstream on the main fork of the Snake, thereby <br />Increasing the concentrations (though not the load) of the metals contamination, and (2) <br />that the diversion of water would reduce flows anli therefore would reduce habitat for <br />trout downstream of the proposed diversion. Colorado Wild and TU argued that this <br />worsening of the water quality was a violation of the water quality standards, use <br />classifications, and antidegradatlon rule, so the WQCD should not have certified <br />compliance. . ; <br /> <br />With regard to the issue concerning reduction of habitat, the WQCD accepted the view <br />of the US Forest Service in Issuing Its special use permit that a 30% reduction in <br />habitat is acceptable. The WQCD's position with regard to the dilution issue, as stated <br />in the certlflcatlon, is: <br /> <br />, <br />Because the minor Increases (If existing metals concentrations In the <br />mainstem will be caused by the diversion of water Itself, the only way to . <br />prevent it would be to impose a condition reducing or precluding that <br />. diversion, thereby impairing the applicant's water right. The provision of <br />Section 25-8-104(1), C.R.S., . . . as well as Regulation 82, make clear that <br />the surface water classifications and standards may not lawfully be <br />Interpreted or applied so as to irO:palr the right to divert and apply water <br />to beneficlal use, and therefore s~ch regulations are not "applicable" to <br />the downstream water quality clranges for purposes of this certification <br />review. . <br /> <br />The WQCC dismissed the appeal, and Colorado Wild and TU flied a complaint in <br />Summit County District Court. The WQCC ~nd WQCD have filed their answer. <br />Pursuant to the clvll rules, counsel held a conference about the case and agreed. <br />tentatively that all parties would seek a 60-<iay stay of all activity in the case In order to <br />allow continued settlement negotiations. A mftion asking for the stay wlllllkely be filed <br />by May 14. If the Court grants the stay, the pl\rtles will attempt to reach settlement. If <br />settlement does not occur, plaintiffs will file their designation of record by mid-summer, <br />and the WQCC will have a few weeks to prepjtre and file the record with the court. <br />Allowing time for briefing, this case would be'before the court by late fall. <br /> <br />AOFile: <br /> <br />P:\NRINRGIMBILICWC8IAGREPORTS t 80 t .o~ <br /> <br />. <br />
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