by Larry MacDonnell

Colorado Water Law
The Colorado Supreme Court decided only one case since our last issue: Tonko v. Mallow. This case involved a dispute between a land owner and a party seeking to condemn a right of way for a ditch across the owner’s property. Under Colorado law, the owner of a water right has the right to construct a ditch across the property of others if necessary to move water from the point of diversion to the place of use, essentially a private right of eminent domain. The property owner asserted, however, that the party seeking to build the ditch did not have a valid water right. The district court denied the proposed condemnation.
The party desiring the ditch then filed an application with water court to obtain a determination of ownership of a water right and a change of use. The water court denied the application, holding the district court had already decided the matter.
The Colorado Supreme Court remanded the case back to the water court for further consideration, holding the district court cannot determine the existence of a water right. This is a matter under the exclusive jurisdiction of Colorado’s water courts.
The effort to clarify the Rapanos decision shifted to Congress with the introduction of H.R. 2421 in May. The bill would clarify the meaning of “waters of the United States” as all waters subject to the authority of Congress under the Constitution and would eliminate the reference to “navigable” water in the Clean Water Act.
The long struggle over Section 404 regulation of use of mechanized equipment to remove soils and vegetation that form wetlands hit another setback in federal district court in the District of Columbia. In a case brought by the National Association of Home Builders, the court rejected the latest effort by the Corps of Engineers and the EPA to regulate such activities. The court held the regulation exceeded the statutory authority, which only regulates the discharge of dredged or fill material.
Endangered Species Act
In Oregon Natural Resources Council v. Allen, the Federal 9th Circuit Court of Appeals ruled invalid an incidental take statement prepared by the U.S. Fish and Wildlife Service in association with proposed timber sales in the Pacific Northwest. In particular, the Court found the incidental take statement, which authorized the take of northern spotted owls “associated with the removal and downgrading of 22,227 acres of suitable spotted owl habitat,” insufficient because of lack of support from a biological opinion, failure to explain why it did not quantify the number of owls likely to be taken, and lack of a triggering mechanism for reinitiation of consultation.
A Solicitor’s Opinion, issued in March 2007, determined that the phrase in the ESA, “in danger of extinction throughout all or a significant portion of its range,” refers to the range presently occupied by the species, not its historical range. This is the statutory standard for determining whether a species is in danger of extinction and thus requires listing.
Reclamation Projects and the ESA
Two recent Court of Claims cases address the responsibility of the Bureau of Reclamation for reduced deliveries of water from federal projects in order to comply with the ESA. In Klamath Irrigation District v. U.S., the Court determined irrigators in the Klamath Project could not sue the U.S. for a breach of contract because of the “sovereign acts doctrine.” This doctrine distinguishes the role of the U.S. as a sovereign from its role as a contractor and provides immunity from liability for contract-based injury resulting from actions, such as implementation of the ESA, that are general and sovereign in nature.
In Stockton East Water District v. U.S., the Court rejected claims of water users from the Central Valley Project that reductions of water deliveries in 1994 and 1995 to meet requirements of the ESA constituted a breach of contract for which the U.S. was liable to pay damages. In this proceeding the Court relied on provisions in the contracts that protected the Bureau of Reclamation from liability for shortages of water “because of drought, or other causes which, in the opinion of the Contracting Officer, are beyond the control of the United States.”

Colorado Riparian Association