San Francisco, CA – The 9th U.S. Circuit Court of Appeals in San Francisco on Monday heard arguments in a challenge to the approval of Arizona Snowbowl’s plan to use treated wastewater to cover its slopes in snow.

Snowbowl has negotiated an agreement to buy treated wastewater from the City of Flagstaff, Ariz., and pipe it to the resort. Attorney Howard Shanker, representing the Save the Peaks Coalition and other environmental groups and concerned individuals, argued that a more thorough environmental analysis of the health risks associated with using treated wastewater for snowmaking should take place before the project moves forward in the mountains above Flagstaff. Shanker argued before the three-judge panel that no analysis adequately considered the possibility of ingesting the snow.

Attorney Lane McFadden with the U.S. Department of Justice countered that the plaintiffs are merely using another tactic to try to delay or stop the development, which has already gained U.S. Forest Service approval.

Members of the Hopi, Navajo, Havasupai, Hualapai, Yavapai Apache and White Mountain Apache tribes have tried for more than a decade to stop the plan, as the ski area is located in the San Francisco Peaks that they consider sacred. The White Mountain Apaches operate a competing Arizona ski area, Sunrise Park Resort.

An earlier effort by the Plaintiffs to stop the plan on the grounds of religious freedom failed after the full Ninth Circuit Court of Appeals determined that the three-judge panel’s decision in favor of the tribes resulted from an erroneous analysis under the Religious Freedom Restoration Act that radically limited the government’s ability to manage millions of acres of federally-owned land considered sacred by some Native American religious practitioners.

The current litigation was filed after the U.S. Supreme Court in June 2009 refused to review the ruling over religious freedoms issued by the Ninth U.S. Circuit Court of Appeals. Arizona U.S. District Judge Mary Murguia ruled in December 2010 that the Forest Service and the Arizona Department of Environmental Quality adequately considered the impacts of the snowmaking plan and that the Plaintiffs waited to long to file their litigation, and upheld the plan’s approval. That decision is what is currently pending before the Ninth Circuit.

“As the Forest Service makes clear, the scientific data regarding the health effects of human exposure to reclaimed water is uncertain, with some studies suggesting that certain compounds in the water do have potential for some health impact and others indicating there is no impact on human health,” Marguia wrote. In her decision, Marguia also dismissed the Plaintiffs’ assertion that successive legal challenges to the plan could be filed until the project’s final permit is issued.

In the meantime, local tribe members have chained themselves to construction equipment to try to stop the plan from moving forward. The ski area’s owner, Eric Borowsky, asserts that Arizona Snowbowl is not economically viable without snowmaking, and as water is a scarce commodity in that region of the desert southwest the plan to use treated wastewater is the most practical solution.

Ski area officials hope to have the snowmaking system up and running in time for the 2012-13 ski and snowboard season.