by Larry MacDonnell
The U.S. Supreme Court ruled on April 23, 2002 that delays in the land use planning process essentially prohibiting all development in the Lake Tahoe area for 32 months did not constitute a taking of property requiring compensation under the U.S. Constitution. In the case of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court rejected the argument that a temporary ban on development necessarily amounts to a physical taking of the entire property for that period of time. Rather it reaffirmed its case-by-case approach of evaluating the regulation’s economic impact on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.
Court decisions respecting jurisdictional wetlands under Section 404 of the Clean Water Act following the SWANCC case are moving in two contrary directions. One line of cases, following the 9th Circuit Court decision in Headwaters, Inc. v. Talent Irrigation District in 2001, views SWANCC as only eliminating wetlands regarded as jurisdictional because of their use by migratory birds. These decisions continue to apply the test of whether there is a hydrological connection to waters of the U.S.
The other line, however, views jurisdiction more narrowly. These cases are requiring that the wetland be directly adjacent to a navigable waterway or its tributaries or that the hydrological connection be direct and continuous. In U.S. v. Newdunn, a federal district court judge in Virginia held on April 3, 2002 that Corps of Engineers’ jurisdiction did not extend to 38 acres of wetlands separated from navigable water by man-made ditches and non-navigable tributaries.
Several court decisions in the past two years have considered the degree to which federal reclamation projects must be operated to meet legal responsibilities under the Endangered Species Act. Most recently, the federal district court for New Mexico reviewed a Biological Opinion issued by the Fish and Wildlife Service for operation of the Middle Rio Grande and San Juan-Chama projects. The BO found that their operations are likely to jeopardize the continued existence of the silvery minnow, a 3.5 inch fish listed as endangered in 1994. As a “reasonable and prudent alternative,” FWS proposed maintaining flows in much, but not all, of the Rio Grande inhabited by the minnow year-round in a normal precipitation year. In Rio Grande Silvery Minnow v. Keys, the court determined that the BO met the requirements of the ESA. The court also determined, however, that the Bureau of Reclamation has the potential discretion to reduce water deliveries to those holding contracts if necessary to meet its legal responsibilities under the ESA. Decisions in the 1999 case of Klamath Water Users Protective Association v. Patterson and the 2001 cases of Pacific Coast Federation of Fishermen’s Associations v. U.S. Bureau of Reclamation and Kandra v. U.S. reached similar conclusions.
Finally, the Colorado General Assembly enacted two bills this session of potential interest to members of the Colorado Riparian Association. SB87, sponsored in Senate by John Evans and in the House by Carl Miller, establishes a watershed protection fund. Money for this fund is to come from voluntary donations of state income tax refunds. Disbursements of funds will be made through a competitive grant program that will be operated by the Colorado Watershed Assembly. Grant decisions will be made by a committee consisting of two representatives of the Colorado Water Conservation Board and two representatives of the Colorado Water Quality Control Commission.
The second bill is SB156, sponsored by Senator Ken Gordon. This bill strengthens the ability of the CWCB to hold and protect existing water rights that have been changed to instream flow protection. It eliminates the reference to “minimum” flows and adds the purpose of “improved” flows as a basis for holding such rights. The newly formed Colorado Water Trust plans to acquire existing consumptive use rights and to work with the CWCB to change their use to instream flow protection. The CWCB remains the only entity authorized to hold a water right for instream flow purposes.