WSP03203

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 2/10/1995
• Author: Western States Water
• Title: Western States Water 1995 - Issues 1082-1121
• Water Supply Pro - Doc Type: Publication

commitments.... These commitments inciude a $1.8
billion repayment obligation for the Central Arizona
Project (CAP)." The district recently filed suit to have a
court affirm its CAP repayment obligation after
negotiations with the Department of Interior broke down,
rumored in part due to the concerns of other Lower
Basin interests (WSW# 1108).

John McFadden, Director of the Coachella Valley
Water District in California, writes, "We all know that
sooner or later the day may come when all those entitled
to Colorado River water will be ready to take their entire
allocations.... Exacerbating the water supply problem is
the necessity of our protecting endangered species in
and along the river.... Solutions exist in the lower basin
that will not require the loss of water supply by water
users.... It appears that in order for us to move ahead
with plans to ensure Colorado River water for future
demands whiie we meet our obligations regarding
endangered species, we'll have to work more closely...or
perhaps face court-imposed river restrictions that none.
of us could endure without making sacrifices." Gerry
Shoaf, an attorney representing a number of California
water districts, concludes, "Secretary Babbitt has
established an October 30 time frame for achieving a
regional solution... but there is a feeling by some that
further work needs to be done in determining the issues
that need to be resolved.... Stay tuned."

WATER RIGHTSIWATER QUALITY
Litigation

A sewer improvement district in Utah has sued the
Utah State Engineer and the Executive Director of
Utah's Department of Environmental Quality, urging the
court to set aside the state engineer's decisions in
authorizing water rights ~. . .~.:'~ ",. "'''Inges nec",. .:ary u
the construction of a watel ,., . "r.t pI2.nt, on the basis
that these actions w~,;" ,esuit 111 unlawfully reducing
and degrading the water quality of the stream. The
plaintiff bases its action, in part, upon the Supreme
Court's decision in P. U.D. No.1 of Jefferson County v.
Washington Department of Ecology (the Tacoma case).

Snyderville Basin Sewer Improvement District (SBSID)
sets forth as facts its right and obligation to operate the
system for collection and treatment of sewage in
Snyderville Basin, located in the southwestern corner of
Summit County. One of the facilities of SBSID is a
sewage treatment plant located on East Canyon Creek.
To operate the plant, SBSID obtained an NPDES permit
issued by DEQ, authorizing it to discharge its treated
effluent into East Canyon Creek, subject to water quality
standards designated by DEQ to protect aquatic life and
human health. According to the complaint, these

standards are based on the wasteioad and dilution
capacities of East Canyon:Creek. In order to meet these
water quality standards, the SBSID is in the process of
expending more than $500,000 to construct facilities to
treat and remove phosphorous.

.

The plaintiff alleges that in 1992 and 1993, without its
knowledge and without adequate public notice, the state
engineer considered and approved applications of the
Summit Water Distribution Company. The applications
were to exchange the annual use of 2, 190 acre-feet of
water from the lower Weber River, which is downstream
from SBSID's sewage treatment plant, to a location on
East Canyon Creek that Is upstream from SBSID's
treatment plant. SBSID charges that the removal of
stream water from East Canyon Creek will reduce water
quality, and counter its efforts to assure water quality
SBSID filed a "petition and request for agency action"
with the State Engineer challenging the decision.
Simultaneously, the district appealed to the Executive
Director of DEQ requesting that she conduct a full review
of the state engineer's decision, its impact on state and
federal law, including DEQ regulations and the holding
of the Supreme Court in the Tacoma case. Both
requests were refused.

Thus the suit was brought alleging a violation of
constitutional and statutory rights and interests. With
regard to the DEQ, the complaint alleges an affirmative
duty to enforce state laws, policies, rules and regulations
relating to water quality, and specifically to regulate any
man-made or man-induced alteration of the chemical,
physical, biological, or radiological integrity of any waters
of the state that is injurious to wildlife, fish and aquatic
life. "Diversions of water that diminish stream flow
harming designated uses constitutes water pollution.
[DE')] h'l,; die .juty to protect designated uses under
Utah law." For this proposition, the complaint again cites
the Tacoma decision.

.

The Supreme Court in the Tacoma case held that the
State of Washington could include a minimum
streamflow condition in a Section 401 certificate
associated with an application to construct a hydropower
project, in order to protect a designated use of the
stream, in this case, for fish habitat. In the holding, the
Court held that water quality standards contain two
components - designated uses and water quality criteria
-- and that Section 401 should be interpreted to require
a project to be consistent with both. In the opinion, the
Supreme Court rejected the utility district's assertion that
the Clean Water Act is concerned only with water
quality, not water quantity. The majority opinion referred
to the claim as "an artificial distinction."

.

The WESTERN STATES WATER COUNCIL Is an organization of representatives appointed by the Governors
of member states. Arizona, California, Colorado, Hawaii, Idaho, Nevada, New Mexico, North Dakota, Oregon,
South Dakota, Texas, Utah, and Wyoming. and associate member states Alaska, Montana and Washington.