Fry-Ark Water Not for Outside Use, Lower Ark Argues
By Robert Boczkiewicz, The Pueblo Chieftain, Colo.
Mar. 26–DENVER — The Lower Arkansas Valley Water Conservancy District contends that a federal agency’s legal position would allow the federal government to export unlimited native water out of the Arkansas River Basin.
“This could ultimately leave the Arkansas River Basin with less water than it had before the (Fryingpan-Arkansas) Project, a paradoxical result that Congress clearly did not intend,” the water district contends.
The district’s allegation that the agency, the U.S. Bureau of Reclamation, is subverting the project is in a new U.S. District Court filing.
It is in response to requests by the U.S. Bureau of Reclamation and by Aurora for a judge to throw out the district’s lawsuit intended to keep basin water for the valley.
“The central issue of this case is whether the (Bureau of Reclamation has) jurisdiction to use Fryingpan-Arkansas Project water for purposes directly contrary to Congress’ authorization,” the district argues in the 42-page response.
The district contends the bureau’s reading of the 1962 act of Congress authorizing the water project ignores the fundamental purpose of the act, to construct, operate and maintain water facilities, such as reservoirs, for the benefit of the Arkansas Valley.
“Congress clearly intended the project to increase the water supply in the Arkansas Valley and, by doing so, to increase the economic activity” of the valley, the Lower Arkansas district argues.
“Congress specifically incorporated provisions that require the project to be ‘operated in such a manner as to secure the greatest benefit for the use and reuse of project waters with the project boundaries,’ ” the district said. “Such boundaries do not extend to the city of Aurora.”
The district sued the city and the federal agency in October, seeking to overturn a new contract between Aurora and the bureau. The lawsuit claims the bureau had no authority to sign the contract that leases water storage space within the project which would allow water to be exported from the valley.
In January, the city and the agency asked Chief U.S. District Judge Edward Nottingham to dismiss the lawsuit. The defendants contend, among other things, that the district does not have the legal right, known as standing, to bring the lawsuit.
The requests to throw out the suit argue that the district does not have standing because it has not shown it has suffered actual or threatened injury as a result of the contract.
The district’s response alleges the bureau seeks “to evade (its) subversion of the Fry-Ark Project by claiming that — so long as Project water is delivered — Project beneficiaries like (the district) have no standing to challenge how Project facilities are used.”
“If adopted by the court, this reasoning would allow the United States to use the Project to export unlimited native water out of the Arkansas River Basin,” the district argues. The United States and the bureau are both defendants.
The district said the Aurora contract “alone will result in the export of 14,000 acre-feet of native water — equivalent to a quarter of the 55,000 acre-feet of water imported” by the Project.
The Project is a transmountain diversion of water from the Fryingpan River and other river tributaries on the west side of the Continental Divide to the water-short areas of the basin on the east side of the Divide. The district said the Project, starting in 1975, has delivered an average of about 55,000 acre-feet of water annually from the Colorado River Basin to the Arkansas River Basin for agricultural and municipal uses.
“The storage, exchange and export of water under the Aurora Contract reduces the amount of water available for use within the Arkansas River Basin, with corresponding socioeconomic and environmental impacts,” the district told the judge.
If he declares the contract null and void, the basin will receive the socioeconomic and environmental benefits “as Congress intended,” the district’s response states.
Lower Ark contends it has standing to sue because:
It is injured by the loss of the use of water that would be exchanged and exported.
It is injured by reduced agricultural production and economic activity.
It is injured by reduced property taxes.
The injuries “are particular and imminent, and not conjectural or hypothetical.”
The injuries “are not a matter of state water law, but are fairly traceable to” the Bureau of Reclamation.
A favorable decision by the judge will redress the district’s injuries.
The district also contends its case is within the “zone of interests” of reclamation law and of the National Environmental Policy Act.
Lower Ark further contends the Reclamation Projects Act of 1939 does not allow the bureau the discretion to change the purposes of projects.
The district argues that Congress would have to modify the statutory purposes of the Fry-Ark Project in order for the contract to be legal.
The Lower Ark’s court filing is signed by attorney Peter Nichols of a Denver law firm that represents the district.
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