Legal Developments

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by Larry MacDonnell

Colorado Water
The Colorado Supreme Court has only decided one water case since our last issue: round three (and, presumably, the last) of the Park County Sportsmen’s Ranch case. At issue was the Division I Water Court’s dismissal of Sportmen’s Ranch’s application for determination of conditional water rights and for approval of an augmentation plan, as well as its award of costs and attorneys’ fees to opposers. The Supreme Court upheld the dismissal of the application for water rights and the augmentation plan and the award of costs but reversed, in part, the award of attorneys’ fees.

Ranch owners proposed a project that would pump 140,000 acre-feet of groundwater per year using 26 wells located on its property in South Park for delivery to Aurora. Surface water would be stored in the cone of depression created by the pumping and would serve to replace out-of-priority depletions to avoid injury to existing water users. The Supreme Court supported the trial court’s determination that project proponents had failed to provide sufficient evidence relating to replacement of depletions to support its application.

Nebraska Water
Nebraska law historically has segregated groundwater from surface water, an issue that has been a source of contention in the three-state effort to establish a recovery program for endangered species in the Platte River Basin. In its January 2005 Spear T Ranch decision, the Nebraska Supreme Court took a small step in the direction of legal integration of the physically-integrated water resource.

Spear T, a surface water appropriator from Pumpkin Creek, filed a complaint against upstream groundwater pumpers, asserting they were converting his rights to their use without compensation or otherwise harming his legally protected rights. The Nebraska Supreme Court adopted the approach set forth in Section 858 of the Restatement (Second) of Torts recognizing liability for withdrawal of groundwater that has a direct and substantial effect unreasonably causing harm to another entitled to use water. The Court then allowed Spear T to amend its complaint in accordance with this standard.

Endangered Species Act
The U.S. Fish and Wildlife Service has initiated the process to delist the Preble’s meadow jumping mouse as a threatened species under the ESA. This action resulted from a study of the mouse’s genetics, and a determination that the Preble’s is not genetically distinctive from the Bear Lodge meadow jumping mouse, a more widely distributed species found in Wyoming, South Dakota, and Montana. The process is expected to take approximately one year. As part of the delisting process, FWS will consider whether the Preble’s may nonetheless warrant protection as a Distinct Population Segment of the Bear Lodge mouse. In the meantime, the Preble’s remains a protected species under the law.

A federal district court in Oregon has rejected the FWS’s final rule creating three Distinct Population Segments (DPS) for the gray wolf and downlisting the wolf’s status from endangered to threatened in two of the segments. The court found the FWS had failed to adequately explain its conclusion that the wolf was no longer in danger of extinction throughout all or a significant portion of its range, as required under the ESA. It also held that the DPS had not been properly established. The effect of the court’s decision to vacate the rule is to leave the wolf in its present endangered status wherever it might be found.

Section 404 of the Clean Water Act
The federal district court for Wyoming in early January threw out a general permit issued by the Army Corps of Engineers covering certain types of dredge and fill activities in the Powder River Basin associated with coalbed methane development. The described activities could not fill more than three tenths of an acre of wetlands under the general permit. The court found the permit failed to consider the cumulative impacts of the authorized activities and provided inadequate assurance that satisfactory mitigation would occur to offset impacts.