DERR-2024-007709

NRD Trustee – Comment Response Summary – Response to Common Comment No. 11 11-1
SOUTHWEST JORDAN VALLEY GROUND WATER CLEANUP PROJECT
STATE OF UTAH NATURAL RESOURCE DAMAGE TRUSTEE

COMMENT RESPONSE SUMMARY
AUGUST 31, 2004

Response to Common Comment No. 11 – Allocation of Treated Water

The Joint Proposal allocates the treated water produced from the reverse osmosis (RO) water
treatment plants among the municipalities in the Affected Area. Some commenters
questioned that allocation, including asking questions about how the allocation was derived
and others suggesting that other entities should be allocated some portion of the treated
water. The Trustee has reviewed the proposed allocation and has determined that it
conforms to the terms of the Consent Decree and applicable state and federal law.

Under the Joint Proposal, four municipalities in the Affected Area (West Jordan City, South
Jordan City, Riverton City, and Herriman City) will be given a priority in the allocation of
the drinking water produced from the Zone A and Zone B/Lost Use water treatment plants.
The process and formula for allocating treated water is described in Sections 11 and 14 of
the Joint Proposal. The allocation is based on the terms of the Consent Decree and
provisions of Utah water law.

The Consent Decree specifies that the Trust Fund monies and monies from the Irrevocable
Letter of Credit (ILC) will be used only to restore, replace, or acquire the equivalent of the
resources for the benefit of the public in the Affected Area. Section V.D.1 and V.D.4 of the
Consent Decree. The Consent Decree does not specify any particular formula or method for
allocating the water, so parties proposing restoration projects to be funded by the Trust Fund
have some flexibility in developing a method of allocating the water.

The Trustee has determined that the method for allocating water that is defined in the Joint
Proposal is reasonable, in part because it is based upon relevant factors that include
population of the municipality, area of the municipality encumbered by the contaminated
plume, and municipal water rights held by the municipalities within the Affected Area. The
proposal also provides an efficient distribution of the treated water by using the existing
distribution network of the JVWCD and the existing process for contracting for the sale and
distribution of water in the area.

A few individuals expressed concerns that the Joint Proposal does not resolve all potential
claims of injury, because it fails to allocate water to all who may claim to be affected. In this
regard, it is important to note that the Consent Decree was not intended to nor does it resolve
or bar claims for interference with the quantity or quality of water rights of an individual
who is not a party to the Consent Decree. Consent Decree, Section VIII.C. As explained in
Response to Common Comment No. 12, the damages paid to the Trustee do not resolve
claims of private water rights holders. Some commenters questioned why treated water was
not allocated to other individuals or water companies that may be affected. Further,
commenters raised issues that the resulting costs to different municipalities may not be
equitably based on location of distribution points and charges by JVWCD. The Consent

NRD Trustee – Comment Response Summary – Response to Common Comment No. 11 11-2
Decree does not require the Trustee or any proposal evaluated by the Trustee to make an all-
encompassing or precise equal-cost proportional distribution of water to those who may be
“affected.” Given the growth and change in the population in the Affected Area, such a
requirement could not be met. However, the Trustee believes that the Joint Proposal
represents a reasonable allocation of municipal-quality drinking water for the benefit of the
public in the Affect Area. The Consent Decree also does not require nor is the Trustee
authorized to arbitrate claims of individuals or entities asserting that they have been
“affected” by the groundwater contamination. Claims by third parties, to include
governmental entities not a party to the Consent Decree, are not resolved by the Consent
Decree or the Joint Proposal. The Joint Proposal relies on the municipalities as the
representatives of the public in the Affected Area and proposes an allocation formula that
will distribute the water (and the benefits of the restoration project) broadly to members of
the public in the Affected Area. The relationship between JVWCD and these municipalities
is a matter of negotiated contract that must be consistent with the provisions of the Joint
Proposal. It should also be noted that individuals and entities could contract for water with
the JVWCD or the Municipalities (depending upon jurisdiction). No entities within the
Affected Area are barred or excluded from receiving treated water, if there is surplus water
beyond the priority allocation among the affected municipalities.

Some commenters suggested that the proposed allocation formula might not be appropriate
because the Affected Area is not properly defined. The Affected Area is defined by the
Consent Decree and the Trustee does not have discretion to change that definition. The
studies conducted as a part of the Consent Decree evaluated contamination caused by
Kennecott’s mining and leaching operations, including increased levels of total dissolved
solids (sulfates), lower pH levels, and other contamination. Those studies relied on a
substantial amount of water quality data. The studies were used to define the area of
contamination and to establish the Natural Resource Damage claim. See Attachment 10 of
the Supporting Document to the Consent Decree. Finally, to the extent that there is an injury
to the groundwater resource outside of the Affected Area, the Trustee has reserved those
claims. The commenters have not provided conclusive, substantive data regarding injury
outside of the Affected Area; nor has the Trustee identified such an injury based on water
quality monitoring data. Future water quality data will be reviewed on an ongoing basis.

A few commenters questioned whether Kennecott would receive or beneficially use water
provided under the Joint Proposal, contrary to Section V.D.5 of the Consent Decree.
Section V.D.5 provides that “Kennecott shall not receive or beneficially use any of the
surface or ground water resources provided to the public, and which are developed for credit
or developed by expenditures of the Trustee pursuant to Section V.D of this Decree.”
Kennecott Land Company, acting as the agent for OM Enterprises Company (collectively
Kennecott Land), both subsidiaries of Kennecott Utah Copper Corporation, is developing a
master-planned community, Daybreak Development, within the municipal boundaries of the
South Jordan City and within the Affected Area. Municipal quality drinking water (culinary
water) is being provided to businesses, and will be provided to residents, of Daybreak by the
City of South Jordan through a contract that the City has with Jordan Valley Water
Conservancy District (JVWCD). This arrangement is consistent with the wholesale
contracting for municipal water service as provided in the JVWCD rules. This arrangement
for providing culinary water is similar to arrangements among businesses or residents and
cities and JVWCD throughout the Affected Area. Furthermore, it is an arrangement that
operates independent of the source of the water. The Trustee has determined that the
arrangement for providing drinking water to the Daybreak Development will not violate
Section V.D.5 of the Consent Decree if the Joint Proposal is approved.