Legal Developments

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by Larry MacDonnell

Colorado Water
The growing interest of local governments in developing flow-control structures in their river channels to attract recreational uses got a boost from the Colorado Supreme Court in March. In Colorado Water Conservation Board v. Upper Gunnison River Water Conservancy District, the Court clarified the legal rules for obtaining a so-called recreational in-channel diversion (RICD) water right under Senate Bill 216, enacted in 2001. In particular, it emphasized the CWCB’s advisory role to the water court is limited to the 5 statutory criteria and to the specific use proposed in the application. The Board’s findings are to be given presumptive effect, which the applicant may rebut with contrary evidence, leaving it to the court to weigh the preponderance of the evidence. In addition, the court must find the proposed use will be satisfied with the “minimum” stream flow necessary to produce a “reasonable recreation experience.” Several such RICD applications are currently pending in different water courts.

The Colorado Supreme Court also ruled that contractual water delivery rights are not property rights that may, by right, be changed in use. East Ridge of Fort Collins v. The Larimer and Weld Irrigation Company involved contract rights for delivery of water to land for irrigation use dating back to 1878. The contracts were for perpetual delivery of water necessary to irrigate 80 acres without any expense and had been obtained in exchange for giving up an existing ditch and its shares. The Court’s decision turned on its view that the contract interest was specifically limited to irrigation use of water on particular lands.

Perhaps the most important water bill to emerge from the General Assembly this year was HB 1177. This bill provides for a continuation of the basin roundtables started under last year’s Statewide Water Supply Initiative, expanding the number of roundtables and formalizing their membership. These groups are to assess basin water needs and identify projects to accomplish these needs. A state-level Interbasin Compact Committee is established to facilitate development of compacted agreements between basins as necessary to achieve water needs. Ultimately legislative approval would be required for any interbasin compacts.

Colorado River
On May 2, 2005 Secretary of the Interior Gale Norton decided to maintain releases from Glen Canyon Dam at the currently established level for the balance of the 2005 water year. This decision came despite five consecutive years of well below normal runoff in the Upper Colorado River Basin, bringing storage levels in Lake Powell down to 34% of capacity. In her letter to basin state governors, the Secretary explained her decision as based on the improved snow pack this spring in the headwaters (slightly above average).

She has asked the basin states to work to develop a drought management strategy for the Colorado that would presumably include criteria for operation of Lake Powell under conditions of water shortage.

Endangered Species
Of note was the Federal District Court of Wyoming’s decision in State of Wyoming v. U.S. Department of the Interior. This case involved a challenge by Wyoming to the U.S. Fish and Wildlife Service’s rejection of its proposed wolf management plan. FWS had encouraged the States of Idaho, Montana, and Wyoming to develop state management plans that would further wolf recovery objectives and lead eventually to delisting of wolves under the Endangered Species Act. Wyoming’s plan included a predator status for wolves that would have allowed unlicensed killing under certain circumstances. FWS asserted this status was inconsistent with its recovery obligations. In rejecting Wyoming’s challenge, the court noted that the ESA substantially preempts traditional state control over wildlife that is listed as threatened or endangered.