Legal Developments

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by Larry MacDonnell

Colorado Water
In a much-watched case, the Colorado Supreme Court held that Central City’s plan for augmentation allowing out-of-priority use of water rights senior to, and upstream of, an instream flow right on North Clear Creek must protect the instream flow. Colorado Water Conservation Board v. City of Central. The Court determined that plans for augmentation are subject to the same no-injury standard as changes of water rights.

In companion cases involving applications to change the use of water from the Fort Lyon Canal Company in the lower Arkansas Valley to urban uses, the Colorado Supreme Court held that such applications must specifically identify the new users and places of use to ensure the change is for a beneficial use. Hi Plains A & M, LLC v. Southeastern Colorado Water Conservancy District; ISG, LLC v. Arkansas Valley Ditch Association. It based this holding on the anti-speculation doctrine that heretofore had been applied only to new appropriations of water. Non-governmental entities not intending to use appropriated water themselves have needed to have contracts in place with actual users. This is the first case, however, to apply the anti-speculation doctrine to changes of an already vested water right.

Endangered Species Act
On September 29, 2005 the U.S. House of Representatives passed a reauthorization bill for the Endangered Species Act that would significantly change existing law. H.R. 3824. Among other things the bill would eliminate the requirement to designate critical habitat, would establish a procedure by which the Secretary of the Interior could provide a land owner with a written determination that a proposed use will not cause take, and would provide monetary compensation for the value of the property to any landowner whose proposed use would result in take. The Senate has not yet begun consideration of ESA reauthorization.

Reconciling competing demands for the water of the Klamath River continues to be elusive. In October, the 9th Circuit Court of Appeals struck down the National Marine Fisheries Service’s 2002 biological opinion for operations of the Klamath Project. Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation. The Court concluded that the proposed reasonable and prudent alternative was not supported by the evidence in the record and was not sufficiently protective of the coho salmon.

The U.S. Fish and Wildlife Service has proposed critical habitat for the threatened Canada lynx. The units are in northern Maine, northeastern Minnesota, the northern Rocky Mountains, and the Northern Cascades. No habitat was designated in Colorado, nor in national forests that operate under the Lynx Conservation Assessment and Strategy, a 2000 interagency document.

Wetlands
The U.S. Supreme Court granted certiorari in two cases involving the question of the jurisdictional reach of Section 404 of the Clean Water Act as it applies to requiring permits to dredge or fill wetlands. Numerous cases have been decided at the circuit court of appeals level since the Supreme Court’s SWANCC decision in 2001. At issue has been the required linkage between water supporting wetlands and navigable waters to establish federal jurisdiction under the Commerce Clause. Oral argument is set for mid-February 2006, and the Court will render its decision prior to the end of its session in June 2006.