Legal Developments

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by Larry MacDonnell

Editor’s Note: Legal Developments is generously provided by Larry MacDonnell who is Of Counsel with Porzak Browning & Bushong LLP in Boulder, Colorado where he practices primarily water law. He is a past president of CRA. Larry can be reached at lmacdonnell@pbblaw.com.

Wetlands
The U.S. Supreme Court decision in Rapanos v. U.S. has further muddled the matter of jurisdictional wetlands under Section 404 of the Clean Water Act. The nine Justices offered three different interpretations of “water of the U.S.” in this opinion, pushing the matter back to the U.S. Army Corps of Engineers and the Environmental Protection Agency for further definition. Justice Scalia proposed that wetlands must be physically adjacent to streams and lakes and have a continuous surface connection. Justice Stevens proposed keeping the definition as it is. Justice Kennedy suggested jurisdictional wetlands must have a “significant nexus” to navigable water, measured primarily by their importance to the water’s chemical, physical, and biological integrity. Agency guidance is expected soon.

Colorado Water
In High Country Citizens’ Alliance v. Norton, the U.S. District Court for Colorado ruled the U.S. illegally relinquished a portion of its reserved right to flows of the Gunnison River for the Black Canyon of the Gunnison National Park by its 2003 agreement with the State of Colorado. The agreement provided the U.S. would limit its claims to a base flow of 300 cfs and that any additional flows would be provided by a state appropriation of instream flows with a 2003 priority date. The Federal District Court judge agreed with plaintiffs that the 2003 agreement required an environmental impact statement, that the agreement constituted an unlawful delegation of national responsibilities to a state government, that the agreement constituted a disposal of property without Congressional authorization, and that the agreement violated nondiscretionary duties to protect the Black Canyon.

In another case involving the Gunnison River, the Colorado Supreme Court upheld the water court’s dismissal of the long-contested water right for Union Park Reservoir. The application for Union Park was first filed in 1982. The owner of the conditional right, Natural Energy Resources Company, sought to maintain this right in a diligence proceeding. The water court dismissed its application, holding that previous decisions had rendered the project infeasible so that NECO could not satisfy Colorado’s “can and will” requirement. In particular, the water court decided NECO could not obtain the approvals necessary from the U.S. to use Taylor Park Reservoir as would be necessary to construct and operate the project. Applying the doctrine of issue preclusion, the Colorado Supreme Court upheld the water court.

The courts continue to face challenging questions of interpretation in determining matters of historical use for purposes of changes of water rights. The Central Colorado Water Conservancy District sought to change the use of 77 shares (out of a total of 200) in the Jones Ditch. The 1882 adjudication for the Jones Ditch purported to approve a diversion rate of 931 cfm of water from the Cache La Poudre to irrigate an area subsequently determined to be 344 acres of land. Central presented evidence to the water court showing water from the Jones Ditch ultimately irrigated roughly 700 acres of land. The water court found, however, and the Supreme Court agreed, the 1882 adjudication only decreed water for 344 acres and that irrigation of additional land was an unauthorized expansion of the 1882 right. The Supreme Court further determined ditch-wide analysis for the 344 acres of land was appropriate for evaluating claims to historic consumptive use and remanded the case back to the water court for such analysis. [Editor’s Note: This opinion can be found at http://www.cobar.org/opinions/opinion.cfm?OpinionID=5855.]

In Gallegos v. Colorado Ground Water Commission, the Colorado Supreme Court considered the relationship between surface water and ground water in designated ground water basins. Under the Colorado Ground Water Management Act, areas of substantial groundwater development in which the ground water is not measurably linked to surface water systems can be designated as ground water basins. Groundwater development in such basins is managed under a modified prior appropriation system. Here the Gallegos family asserted the Ground Water Commission needed to regulate withdrawals of designated ground water to protect their senior surface water rights on Upper Crow Creek within a designated basin. The Supreme Court held the surface user must prove the pumping is taking ground water with more than a de minimis connection to a surface source and that the pumping injures their water rights. Upon such showing the Commission then must redraw the boundaries of the ground water basin to exclude such areas. At that point, jurisdiction to remedy injury rests with the water court.