Legal Developments

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by Larry MacDonnell

Colorado Water Law
The Colorado Supreme Court decided only one case since our last report, Trail’s End Ranch v. Colorado Division of Water Resources. In this case the Division 2 Engineer had ordered Trail’s End to cease diversions on Spruce Creek from points other than its decreed point of diversion. The Court agreed that such diversions require a court-approved change of point of use, upholding the order.

Other Water Litigation
The on-going effort to better integrate ecological values into river management continues across the West. In California’s Trinity River, the 9th Circuit allowed a plan to restore flows to go forward against a challenge asserting a need for a supplemental environmental impact statement. A federal reclamation project diverts approximately 70% or more of the water out of the Trinity for use in the Central Valley of California. Consequent losses in salmon and steelhead populations prompted a series of efforts to restore flows and habitat.

The battle over the fate of the Missouri River continues, with the most recent federal court decision essentially upholding the river operating plan (“Master Manual”) developed by the Army Corps of Engineers. Litigation in different circuits was consolidated for this decision. Corps’ management of the Missouri is governed by the 1944 Flood Control Act. Under this law the Corps is to manage storage and flows for a wide range of benefits including flood control, navigation, water supply, and fish and wildlife. Because the court found the weight to be given to particular benefits is to be determined by the Corps, it deferred to the Corps’ determination in the Master Manual.

Endangered Species Act
Because of the decision of the Federal District Court in Spirit of the Sage Council v. Norton, the director of the U.S. Fish and Wildlife Service has issued a revised directive precluding the use of the “no surprises” assurance in the issuance of any incidental take permit. The Service is under order to complete its rulemaking eliminating the no surprises policy by December 10, 2004.

A petition for certiorari has been filed with the U.S. Supreme Court in a case holding Congress has power to regulate species of invertebrates found only in caves in a limited portion of Texas. In GDF Realty Investments v. Norton, plaintiffs assert Congress’s power to regulate interstate commerce does not extend to regulation of such species.

Public Lands
The Forest Service has proposed some modifications of existing policies that may be of interest to readers of The Greenline. Related to water, the Forest Service has issued an interim directive relating to easements for water facilities on national forest lands. Congress in 1986 sanctioned all such easements in existence as of 1976, subject to periodic renewal. A backlog in applications for such easements prompted the directive. Emphasis is placed on the need to recognize the role of state law in allocation of water. When the application meets all requirements under the 1986 law, issuance of the easement is non-discretionary. Nevertheless, the use must comply with federal laws such as the Endangered Species Act. A separate directive creates a categorical exclusion from NEPA for special use applications not involving any change in facilities or operations.

The U.S. Supreme Court unanimously upheld actions of the Bureau of Land Management respecting management of certain wilderness study areas in southern Utah against a challenge the agency was failing to protect their wilderness characteristics. In Norton v. Southern Utah Wilderness Alliance the Court found no mandatory requirement to limit the use of off road vehicles in these wilderness study areas — reflecting the more hands-off posture taken by this Court in recent years. The Court characterized land use plans as guiding and constraining actions but not prescribing them.

Clean Water Act — Section 404
The ongoing litigation relating to so-called mountaintop mining produced an interesting decision from a federal district court in West Virginia, holding that Nationwide Permit 21 does not meet the requirements of the Clean Water Act. In particular, the court ruled that such general permits cannot be based on case-by-case review but must be self-executing.