the green line Online

The Newsletter of the Colorado Riparian Association

Volume 13, Number 3, Fall 2002

Legal Developments

by Larry MacDonnell

Faithful readers will recall that the Colorado Supreme Court in Empire Lodge Homeowners' Association v. Moyer (December 2001) significantly narrowed the use of existing authority providing for substitute water supply plans. The Colorado General Assembly responded with HB 1414 in the 2002 legislative session, allowing their continued use under more limited circumstances. In particular, the State Engineer may approve such a plan on an annual basis so long as an application for a plan for augmentation has been filed with water court and notice of the request for a substitute supply plan has been given to all parties who have filed statements of opposition to the proposed plan for augmentation. Substitute supply plans not connected to a water right application are authorized in two situations. The first is for uses with a depletion limited to not more than five years. The second is for an emergency use for up to 90 days.

Endangered Species Act:
On July 17, 2002 the U.S. Fish and Wildlife Service proposed the designation of critical habitat in Colorado and Wyoming for the Preble's meadow jumping mouse. In total, 19 "critical habitat units" are identified, encompassing about 57,000 acres. According to the Service, these are lands known to be currently occupied by the mouse and deemed to be essential to their recovery. Not all presently occupied lands are included, and no lands outside those currently occupied are included. Acreage by county in Colorado is as follows: Boulder - 740; Douglas - 12,545; El Paso - 3,110; Jefferson - 3,073; Larimer - 17,352; Teller - 85; and Weld - 486. Federal actions potentially affecting these lands are subject to consultation under Section 7 of the Endangered Species Act to assure that they will not result in their adverse modification or destruction.

The Special Rule issued in 2001 under Section 4(d) exempting certain activities from the "take" prohibition of the ESA has been amended effective October 1, 2002 to extend this exemption to specified noxious weed control and ditch maintenance activities. This exemption is effective until May 2004.

Continued drought in the Rio Grande prompted another federal district court decision in New Mexico respecting the silvery minnow. On September 18, Judge Parker ordered the Bureau of Reclamation to release water from upstream facilities to maintain at least 50 cubic feet per second of water through the primary stream reach occupied by the minnow. The week before, the U.S. Fish and Wildlife Service had issued a biological opinion finding that Bureau operations are jeopardizing the continued existence of the minnow but that there were no reasonable and prudent alternatives available. Finding that only the Endangered Species Committee (the "God Squad") can authorize a federal agency to act contrary to the clear mandates of the Act, the judge reversed the BO, required releases of project water, ordered the Federal Government to compensate anyone whose contractual rights to water are reduced in order to meet the release requirements, and required reinitiation of consultation to plan for 2003. The State of New Mexico has appealed the decision to the Tenth Circuit.

Clean Water Act:
On May 31, 2002 the Ninth Circuit Court of Appeals upheld the federal district court's decision that total maximum daily loads must be established for waters not meeting water quality standards even if the pollution comes entirely from non-point sources. Total maximum daily loads are the specified maximum quantities of a given pollutant that can be added to a water body in a given period of time and still achieve or maintain the established water quality standard. In Pronsolino v. Nastri, the court found statutory support for the view that this requirement applies to non-point pollutants as well as point source pollutants. In reaching its decision, the court also deferred to the Environmental Protection Agency as the expert in this area.

In a decision further developing state water quality certification authority under Section 401 of the Clean Water Act, the Washington Supreme Court upheld a decision of the Department of Ecology conditioning federal issuance of a hydropower license upon a bypass flow that would impact the applicant's existing water right. In Public Utility District No. 1, of Pend Oreille County v. State of Washington, Department of Ecology, the court moved a step beyond the U.S. Supreme Court's decision in Public Utility District No. 1 of Jefferson County v. Washington Department of Ecology in 1994. There the Court had upheld the action of the Department of Ecology imposing a bypass flow onto a new water use permit as necessary to certify a FERC-issued hydroelectric power license. Section 401 requires an applicant for a Federal license or permit involving a discharge into waters of the U.S. to obtain a certification from the state that such discharge will comply with state water quality standards. The Washington Supreme Court, in upholding the extension of this authority to affect an existing water right, stated: "Bypass flow requirements as conditions in a water quality certificate do not reflect or establish an applicant's proprietary right to water, but merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act."