Q: Anything important happening so far this year in water law?
A: Well, yes – a possible "killer" decision as viewed by cities and many water user entities, but apparently little noticed and under-appreciated by the general public when the accounts appeared in some newspapers.
But first, a tip of the fedora to Bill Fischer who represents the Water Supply and Storage Company (WSS) in assisting me with this column.
Our area was right in the eye of this legal storm. About ten years ago a lawsuit was filed by Trout Unlimited after the Forest Service renewed a permit to allow our own Water Supply and Storage Company (WSS) to continue to operate an existing enlarged reservoir. As background, and in general terms, certain water structures on federal lands (here, the national forest) must have a permit to use federal lands. The permit is renewed and renegotiated periodically.
An enlargement of a reservoir known as Long Draw Reservoir occurred in the 1970’s, after the Forest Service conducted an environmental impact statement. A Forest Service permit was issued for the enlargement. The permit did not include a requirement that WSS release water from the reservoir to the stream during the winter months. The term for such a requirement is called a "bypass flow provision." The Forest Service looked at including a bypass flow provision in the permit, but elected not to include such a provision.
When the permit came up for renewal, the bypass flow provision again surfaced. WSS and the Forest Service agreed to a Joint Operations Plan, or "JOP." Here, the cities of Greeley and Fort Collins, with WSS, cooperatively agreed to work together to release water from other reservoirs (such as Chambers Lake) which would flow down the Poudre River during the winter. The Forest Service included the JOP as a condition of the new authorization, but not a bypass flow provision.
In a nutshell, the decision holds that the Forest Service has the authority to impose bypass flows, and that the Forest Service erred in including the JOP in the permit, rather than bypass flows, to protect the stream environment below the reservoir. Thus, the efforts of water districts, irrigation companies, and cities to store water during the winter months remains up in the air pending a possible appeal.
As a sidelight, several times a federal judge with Wyoming ties has helped determine Colorado’s water fate with, at least in one case, devastating economic consequences. And so also this time a Wyoming Judge was given the case to lessen the caseload of the Colorado federal judges. An examination of the importance to the course of water law in Colorado by Wyoming federal judges will be explored in a later column. But in defense of the Judge’s decision, a very similar decision had recently been rendered in New Mexico.
But note that several arguments are made that all of this amounts to a tempest in a teapot. First, it is argued that most of the water in fact flows into streams during the "magic" 60 to 75 day window in late spring. The mandatory release of water may lower water availability for part of the year when it is not needed, but will be replaced during the spring runoff (although not necessarily in dry years).
Secondly, most of the water is subject to "exchanges" so with a bit of creative negotiation, the companies that must release water can trade that water flowing downstream to others who will catch the water downstream and exchange water that they own to the first entity at a point where the first entity needs it. But water from Long Draw must be used and the exchanges for Long Draw water made thereafter. Doing an initial exchange of non-Long Draw water to satisfy the bypass flow requirement was not acceptable to the Court.
It will be interesting to see the effect next winter, especially if the drought continues.