Legal Developments

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by Larry MacDonnell

Colorado Water Law
There have been three reported decisions since our last issue. North Sterling Irrigation District v. Simpson involved the authority of the State Engineer to administer the “one fill” rule for storage reservoirs on the basis of a fixed water year beginning November 1. The District argued it had operated North Sterling Reservoir in the South Platte Basin using so-called “low point” administration not tied to a set water year. The Colorado Supreme Court upheld the decision of the water court finding the State Engineer had the authority to utilize a water year approach and that such an approach did not interfere with the District’s decreed water rights.

Cornelius v. River Ride Ranch Landowners Association involved the power of a water court judge to dismiss a case with prejudice because of failure of the applicant to comply with disclosure requirements. Under facts in which the pro se applicant had provided insufficient information to support his claims, the Supreme Court upheld the judge’s decision.

Finally, in Kobobel v. Colorado Department of Natural Resources the Colorado Court of Appeals upheld the district court decision dismissing an action on the basis of lack of subject matter jurisdiction. Plaintiffs had filed the case seeking a determination that a State Engineer order curtailing their well pumping until it was included in a plan of augmentation was a taking of their water rights. The Court agreed this action constituted a “water matter” within the purview of Colorado’s water courts because it involved regulation of the use of the right, not its ownership.

Clean Water Act
In Entergy v. Riverkeeper, Inc., the U.S. Supreme Court upheld a determination by the Environmental Protection Agency that cost-benefit analysis could be used to determine the “best technology available.” At issue were rules promulgated by EPA addressing cooling water intakes for existing power plants. EPA determined such existing facilities might be able to satisfy requirements of the CWA without installing a closed-cycle cooling system, an environmentally preferable but economically much more expensive technology.