by Larry MacDonnell
Colorado Water Law
The Colorado Supreme Court issued two decisions on September 8, 2003. Colorado Ground Water Commission v. North Kiowa-Bijou Groundwater Management District involved the rules applying to withdrawals of groundwater within a “designated” portion of the Denver Basin aquifers. The Court held that the landowner properly sought and obtained a determination of his right to use underlying groundwater from the Colorado Ground Water Commission without first seeking approval of the Groundwater Management District. Justice Bender’s opinion provides a good summary (if you are a lawyer) of Colorado’s complex law governing uses of groundwater. Of interest, the Court held that the anti-speculation doctrine applies to a determination of a use right to withdraw designated groundwater in the Denver Basin. Justice Coats dissented from this part of the decision.
East Twin Lakes Ditches and Water Works, Inc. v. Board of County Commissioners of Lake County involved the issue of abandonment of a water right. Owners of a ranch in the upper Arkansas Basin, who had purchased the ranch with the intent of reselling it for residential development, had failed to put its most senior water right to use for a period of 26 years because of the inability of the ditch to effectively carry water to ranch lands. Owners had declined to make the necessary investment in ditch improvements. By a 4-3 decision, the Court through Justice Rice held that the right had not been abandoned because of evidence of actions taken over the period demonstrating an intention not to abandon the right. The dissent, authored by Justice Hobbs, argued that these actions merely evidenced an ongoing interest in selling the right, not using the water.
On October 10, 2003 the U.S. and various California parties signed agreements intended to resolve disputes that had stalled efforts to wean California from its extra use of Colorado River water. The key was agreement to transfer use of a portion of the water historically used by the Imperial Irrigation District to cities in the South Coast area of the state. Sticking points had been quantification of IID’s water rights and protection of the Salton Sea. With these matters apparently resolved the U.S. agreed to continue to allow California to use water beyond its basic apportionment for a period of years during which the quantity of water shifted from irrigation to urban use would increase. IID’s rights were fixed at 3.1 million acre-feet per year — representing approximately 20 percent of the average annual flows of the Colorado River.
Clean Water Act
Opinions testing the effects of the SWANCC decision on the jurisdictional reach of Section 404 continue to find that wetlands only indirectly hydrologically-connected to “waters of the U.S.” are still subject to federal regulation. United States v. Deaton involved wetlands bordering a roadside ditch that connected to other ditches through culverts for eight miles until reaching navigable waters. Holding that this water was tributary to navigable water, the Court determined that Section 404 constitutionally reached to these wetlands. U.S. v. Rapanos, decided by the 6th Circuit Court of Appeals in August, reached a similar conclusion respecting wetlands located at least 11 miles from a navigable river. This case involved a criminal prosecution for filling the wetlands without a permit. In Treacy v. Newdunn, decided September 10, 2003, the Fourth Circuit Court of Appeals held that a connection involving intermittent flows of surface water through 2.4 miles of natural streams and manmade ditches constituted the necessary nexus for federal jurisdiction under the Clean Water Act. A common rationale in these decisions is the need to control pollution at its source to protect water quality in navigable waters.
The U.S. Supreme Court has denied certiorari in the case of Northern Plains Resource Council v. Fidelity Exploration and Development Co., leaving intact the 9th Circuit’s decision reported in the last issue of Greenline that discharge of water from coalbed methane wells into waters of the U.S. requires an NPDES permit.
Endangered Species Act
In National Association of Home Builders v. Norton, the Ninth Circuit on August 19, 2003 held that the Arizona population of the cactus ferruginous pygmy-owl did not qualify as a “distinct population segment” of this species. Arizona is apparently the northernmost extension of this species. The Court found the Fish and Wildlife Service had failed to demonstrate that loss of the Arizona population of pygmy-owls would result in a “significant gap in the range of a taxon” as required by agency policy. A primary rationale for listing the pygmy-owl in the United States as endangered was the limited population of this species residing in this country. While the decision does not directly challenge the notion that an international boundary can be a basis for listing a species as a distinct population segment, it does appear to raise the bar on demonstrating that loss of the U.S. population will have a significant effect on the taxon as a whole.