Legal Developments

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by Larry MacDonnell

Colorado Water
The Colorado Supreme Court has been relatively quiet on water matters since our last report. In Hammel v. Simpson, decided February 2, 2004, the court considered the water court’s finding of abandonment of a water right based on evidence of non-use during a 24-year period. Restating the standard that a finding of non-use for 10 years creates a presumption of abandonment shifting the burden of overcoming this presumption to the owner of the water right, the court determined this burden was not met by “mere subjective declarations of a lack of intent to abandon the water right.”

In Fort Morgan Reservoir & Irrigation Co. v. Groundwater Appropriators of the South Platte, the court upheld a decision by the water court awarding costs for copying and witness fees to GASP under Rule 54(d) of the Colorado Rules of Civil Procedure in defending an application for a water storage right. The court agreed that once an objection moves from the referee to the judge, the proceeding becomes sufficiently like other civil litigation to be subject to this provision.

Water Quality
In the much anticipated decision of South Florida Water Management District v. Moccosukee Tribe of Indians, the U.S. Supreme Court held that a conveyance system such as a pump used to discharge water can constitute a point source requiring a permit under the Clean Water Act even if the conveyance is not associated with the original source of the pollution. It remanded the case, however, for further consideration of whether the Clean Water Act permitting requirement applies to movement of already polluted water between waterbodies or whether it only applies to the original addition of a pollutant to any waters of the U.S. This so-called “unitary waters” argument had only been raised following the district and circuit court decisions.

Western states opposed such a permit requirement because of the widespread transfer of water from one watershed to another in this region that might become subject to such a requirement. To the argument such a requirement might make such transfers too costly, the Court stated: “On the other hand, it may be that such permitting is necessary to protect water quality, and that the States or EPA could control regulatory costs by issuing general permits to point sources associated with water distribution programs.”

Wetlands
The U.S. Supreme Court decided not to review three circuit court decisions addressing the matter of jurisdictional wetlands following the SWANCC decision. Each of these decisions, discussed in previous newsletters, had found the necessary nexus of the wetlands to waters of the U.S. under the Clean Water Act to require a Section 404 permit. In the meantime, the General Accounting Office issued, Waters and Wetlands: Corps of Engineers Needs to Evaluate its District Office Practices in Determining Jurisdiction, a report that found considerable variation in approaches among district offices.

Endangered Species
On April 28, 2004, the Assistant Secretary for Fish and Wildlife and Parks issued a guidance letter respecting determination of critical habitat. The letter characterized critical habitat as a “legal construct” that provides little conservation benefit to a listed species and which creates “tremendous” social and economic disruption. The guidance emphasized basing critical habitat designations on the best available science rather than speculation or reliance on the precautionary principle. It also emphasized giving full weight to existing protected areas, such as national forests not needing special management, and use of sound economic analysis.

Finally, the National Research Council’s Committee on Endangered and Threatened Species in the Platte River Basin issued its report. The committee generally validated the science applied to the critical habitat designations in the Nebraska portion of the basin and in developing current proposals for supporting recovery of the listed species. Presumably the three-state/federal cooperative recovery program will now move forward with its decision-making process on implementation actions.