Legal Developments

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by Larry MacDonnell

Colorado Water
It’s been a quiet period since our last report, with the Colorado Supreme Court issuing only one opinion related to water rights. In City of Golden v. Simpson, decided January 12, 2004, the Court upheld the September 2002 decision of the Division I Water Court requiring Golden to stop diverting its Oulette Ditch Priority No. 5. In a 1966 change case, this right had been moved six miles upstream on Clear Creek to Church Ditch and had been changed from seasonal irrigation use to year-round municipal use. Terms negotiated with the Farmers High Line Canal and Reservoir Company restricted Golden’s ability to divert at the upstream location if, under stream conditions existing at that time, Golden would not have been able to call out at the original point of diversion certain rights held by Farmers. Finding that these conditions existed in the 2002 drought, the Court determined that Golden was appropriately required to cease its diversions.

ESA
In Spirit of Sage Council v. Norton, a federal district court remanded the “no surprises” rule back to the U.S. Fish and Wildlife Service and NOAA Fisheries because of procedural deficiencies in the rulemaking process. The no-surprises rule sought to encourage landowners to enter into habitat conservation plans by ensuring them that future scientific or regulatory changes would not invalidate their incidental take permit or require additional mitigation. Environmentalists particularly opposed the rule limiting permit revocations to situations threatening the maintenance or recovery of a species.

Clean Water Act
A Federal District Court judge in California has ruled that sediment resulting from timber harvesting activities passing through culverts, ditches, erosion gullies, and other channels into a stream constitutes the discharge of a pollutant from a point source and thus requires an NPDES permit. In Environmental Protection Information Center v. Pacific Lumber Company, issued January 24, 2004, Judge Marilyn Patel determined that EPA regulations defining silvicultural point sources more narrowly does not preclude this result.

Wetlands
The Fifth Circuit has determined that ditches cannot be tributaries to waters of the U.S. under the Clean Water Act, contrary to decisions rendered in two other circuits and described here. In U.S. v. Needham, the Court found that federal jurisdiction under the Clean Water Act and the Oil Pollution Control Act does not extend to the spill of oil into a drainage ditch that is not navigable nor adjacent to a navigable body of water.

Meanwhile, EPA has withdrawn its advance notice of proposed rulemaking to revisit the current regulatory definition of “waters of the United States.” Thus the uncertainties raised by the SWANCC decision continue, perhaps awaiting clarification by the U.S. Supreme Court. Stay tuned.