by Larry MacDonnell

Colorado Water Law
In the ongoing war between Central City and Black Hawk, the Colorado Supreme Court gave Black Hawk a victory in one battle. The Court upheld the water court’s award to Black Hawk of a conditional water storage right in Chase Gulch Reservoir. The conditional right essentially duplicates a decree previously awarded to Central City. Central City, as owner of the land underlying the proposed reservoir, argued that Black Hawk failed the “can and will” test because the city would not give Black Hawk permission to use the land. The Court distinguished other decisions in which government entities had made final decisions that would preclude private use of land they controlled from this case involving two governmental entities in which it said such finality did not exist.
In a case involving the U.S. reserved water right for the Black Canyon of the Gunnison National Park, the Colorado Supreme Court upheld a stay order issued by the water court. The stay had been granted pending resolution in federal court of a challenge to the federal administrative process that resulted in reducing the amount of water claimed for quantification. Petitioners requesting the Court to throw out the stay claimed irreparable harm because of delay and uncertainty and because the federal proceeding would, in effect, make the quantification rather than the water court. Noting the quantification process has already taken 30 years, the court found the additional-delay argument unpersuasive and favored allowing the federal law issues to be resolved before completing the state proceeding.
Endangered Species
In Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, the 9th Circuit upheld the jeopardy analysis in biological opinions allowing timber harvests in Pacific Northwest national forests but rejected the critical habitat analysis as based on an unlawful definition of “adverse modification. The court upheld use of a “habitat proxy” developed as part of the Northwest Forest Plan rather than a site-specific analysis of harvesting impacts on individual spotted owls. However, agreeing with decisions in the 5th and 10th circuits, the court stated that determination of destruction or adverse modification of critical habitat, as required by Section 7 of the Endangered Species Act, cannot be limited to consideration of survival needs but also must take into account habitat required for recovery.
Clean Water Act
The 9th Circuit, in National Wildlife Federation v. U.S. Army Corps of Engineers, rejected arguments that operation of the four Corps dams on the Lower Snake River impermissibly violated Washington State temperature standards. The court concluded that, short of removing the dams, the Corps had done all that it could do to meet temperature standards. The Clean Water Act requires only the implementation of discretionary operational changes to meet its requirements, the Court concluded, not the removal of the dams. The dissent argued that all possible operational changes had not been fully explored. On November 30, 2004 the National Marine Fisheries Service made clear the Administration’s intention to keep the four dams in place.
In Florida Public Interest Research Group v. Environmental Protection Agency, the 11th Circuit remanded to the federal district court an attempt by the Florida Department of Environmental Protection to adopt an “impaired waters rule” without following the procedures required to change state water quality standards, including formal approval by EPA. The rule adopted particular nutrient concentrations to be used to assess nutrient impairment, resulting in the removal of more than 100 water bodies from the state’s impaired waters list under Section 303 of the Clean Water Act. The Circuit Court directed an examination of whether the rule in fact constituted a modification of state water quality standards.
Finally, in the continuing fallout of attempting to apply the U.S. Supreme Court’s SWANCC holding in determining the legal reach of the Clean Water Act, two more circuit court decisions have been published. In a wetlands case in the 6th Circuit, Carabell v. U.S. Army Corps of Engineers, the court upheld Corps authority as applied to an area separated from a manmade ditch that ultimately connects to a navigable water body by a four-foot wide manmade berm. An 11th Circuit Court decision, Parker v. Scrap Metal Processors, Inc., found polluted storm water runoff passing through erosion gullies to a small non-navigable stream before reaching a navigable water body to be subject to Clean Water Act regulation.

Colorado Riparian Association