Legal Developments

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by Larry MacDonnell

Colorado Water Law
In one of the more eagerly anticipated decisions in recent years, the Colorado Supreme Court decided in Vance v. Wolfe that withdrawal of groundwater in association with coalbed methane development requires a water right. The Court reached this conclusion by deciding that such removal of water was a beneficial use under Colorado law. The State Engineer and industry had asserted the removal of this water was merely a byproduct of methane production. While the decision means that other water rights can seek protection from any harm resulting from such water withdrawals, it does not require any particular use of the withdrawn water.

In City of Aurora v. ACJ Partnership, the Colorado Supreme Court once again held the “can and will” doctrine requires applicants to demonstrate their legal ability to utilize lands proposed as water storage sites. Aurora had asserted rights to store water on state lands already obligated for use under lease to another entity. The city argued it might be able to use sites not ultimately developed by the lessee, but the Court found this did not meet the “substantial probability” test.

Clean Water Act
The U.S. Supreme upheld the Corps of Engineers’ determination it could issue a Section 404 permit for a discharge that would not meet EPA’s new source performance standards under Section 306 of the Act. In Coeur Alaska v. Southeast Alaska Conservation Council, the Court continued its trend since Chevron of deferring to an agency determination when applying ambiguous statutory language. At issue was the Corps’ approval of a Section 404 permit for discharge of a slurry containing 30 % solids into a lake. The Court found a 1986 memorandum of agreement between EPA and the Corps provided justification for the Corps’ action.

The Eighth Circuit Court of Appeals upheld the jurisdiction of the Corps respecting wetlands filled by the owner without a permit. In U.S. v. Bailey, the Court applied Justice Kennedy’s test of navigable waters from the Rapanos case (lands adjacent to waters navigable in fact) and found the lands were under the Corps jurisdiction. It upheld the requirement that the filled lands be restored.