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<br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />Page II <br /> <br /> <br />14. Colorado Wild, Inc. and Trout Unlimited v. Colorado Department of Public Health and <br />Environment, 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 [Arapahoe Basin 401 certification case]. <br /> <br />Issue: A-Basin wants to divert clean water for snowmaking. If the 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 S 401 of the Clean Water Act that <br />the construction of the diversion structure will comply with water quality standards, the <br />anti degradation regulation, and use classifications? <br /> <br />Decision: Pending in Summit County District Court. The parties are reportedly very <br />close to agreeing on a settlement ofthe case. <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 near <br />the ski area, put it temporarily in a pond, and then distribute it through a snowmaking system <br />before and during the skiing season. A-Basin has a special use permit from the US Forest <br />Service for the diversion and snowmaking. A-Basin is in the process of adjudicating a change of <br />water right case to allow the snowmaking use, and the CWCB is a party to that case because of <br />its decreed instream flows in the vicinity. <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 certification from the state WQCD, certifying <br />that the project will comply with water quality standards, use classifications, and the <br />antidegradation standard. The WQCD issued the 401 certification, and Colorado Wild and Trout <br />Unlimited appealed to the WQCC. They argued (1) that the diversion of water for snowmaking <br />would cause adverse water quality effects by removing clean water that dilutes metals <br />contamination downstream on the main fork of the Snake, thereby increasing the concentrations <br />(though not the load) of the metals contamination, and (2) that the diversion of water would <br />reduce flows and therefore would reduce habitat for trout downstream of the proposed diversion. <br />Colorado Wild and TU argued that this worsening of the water quality was a violation of the <br />water quality standards, use classifications, and antidegradation rule, so the WQCD should <br />not have certified compliance. <br /> <br />With regard to the issue concerning reduction of habitat, the WQCD accepted the view of the <br />US Forest Service in issuing its special use permit that a 30% reduction in habitat is <br />acceptable. The WQCD's position with regard to the dilution issue, as stated in the <br />certification, is: <br /> <br />Because the minor increases of existing metals concentrations in the mainstem <br />will be caused by the diversion of water itself, the only way to prevent it <br />would be to impose a condition reducing or precluding that diversion, thereby <br />impairing the applicant's water right. The provision of Section 25-8-104(1), <br />C.R.S., . . . as well as Regulation 82, make clear that the surface water <br />