Legal Developments

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by Larry MacDonnell

Colorado water
On December 23, 2002, the Division One Water Court struck down State Engineer proposed rules and regulations authorizing continued out-of-priority pumping of tributary groundwater from the South Platte alluvium so long as stream depletions are replaced. The court held that the State Engineer’s statutory rulemaking authority does not include this power. Thus, with this decision (on expedited appeal to the Colorado Supreme Court) and the recent Empire Lodge decision, a court-approved plan for augmentation will be necessary to pump tributary groundwater out-of-priority.

Colorado River
As the deadline approached at the end of 2002, the Imperial Irrigation District (IID) balked at its part of the proposed deal for reducing California’s use of Colorado River water from over 5 million acre-feet per year down to its 4.4 million acre-foot basic apportionment. As the user of more than 3 million acre-feet of Colorado River water annually — more than 20% of the basin’s annual average supply, IID controls an enormously valuable resource in water-starved southern California. At the last minute, negotiations for transferring up to 200,000 acre-feet of water from IID to San Diego foundered on issues including protection of the Salton Sea and the 75-year term of the agreement. Deliveries of water to California for 2003 are likely to be reduced by over 700,000 acre-feet unless the parties can agree to a solution.

Montana water
In September 2002, the Montana Supreme Court determined that Montana water law fully recognizes fish, wildlife, and recreation as beneficial uses of water for which water rights may be established. A previous decision had suggested that such uses could not be the basis of appropriations established prior to legislation enacted in 1973. In this recent decision, the court also held that a diversion is not necessary to establish such a water right.

Clean Water Act
On January 15, 2003 the Army Corps of Engineers and the Environmental Protection Agency issued advance notice of proposed rulemaking respecting the regulatory definition of “waters of the United States” under the Clean Water Act. This action follows the U.S. Supreme Court decision in the “SWANCC” case in 2001, striking down application of Section 404 to proposed fill activities in so-called “isolated” wetlands. As reported in this column, courts have been struggling with the implications of this decision in determining the regulatory reach of the Section 404 program. According to the announcement, “The SWANCC holding eliminates CWA jurisdiction over isolated, intrastate, non-navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross State lines in their migrations.” It asks for comments on whether to amend existing regulations at 33 CFR 328.3(a)(3)(i)-(iii).

On January 13, 2003, EPA announced a new “Water Quality Trading Policy.” This statement provides considerably more detail than its 1996 publications on trading. In particular, EPA supports trades involving nutrients or sediment, though it will consider trading involving other (non-toxic) pollutants. It emphasizes use of trades in impaired waters (waters not meeting water quality standards) either to avoid the need for a TMDL or in support of implementation of a TMDL. A TMDL identifies the sources of water quality impairment for a stream segment and the pollutant loadings from the sources.

Endangered Species Act
In December 2002, a federal district court in the District of Columbia ordered the U.S. Fish and Wildlife Service to reconsider within 180 days its determination that the Northeast, Great Lakes, and Southern Rockies regions are not a “significant portion” of the range of the “distinct population segment” of the Canada lynx listed as threatened under the ESA in 2000. In addition, it ordered the FWS to designate critical habitat for the lynx. Until such habitat is designated, FWS must formally consult on any proposed federal action that “may affect” the lynx.

In January, 2003 a federal district court in Arizona ordered the FWS to re-propose critical habitat for the Mexican spotted owl in Arizona, Colorado, New Mexico, and Utah. FWS had decided not to include national forest lands in Arizona and New Mexico because it had already consulted with the Forest Service respecting long range management plans on these forests. The court rejected FWS’ position that the existence of such plans allows it to exclude these lands from critical habitat designation.