Organizing for Endangered and Threatened Species Habitat Draft

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flow of only about 1.1 cfs at its confluence with tlie South Platte near I3rush, Colorado (MacDonnell 1985), (Tyler 1992). By that moment, construction of a dam virtually anywhere in the U.S. required a permit from the Army Corps of Engineers under section 404 of the Clean Water Act. For the purpose of the ESA, the federal action was a dredge-and-fill permit for the construction of a dam on an intermittent stream at a site located 250 miles upstream from the designated critical habitat for the whooping crane in Nebraska. Once the applicatinn was filed with the Corps of Engineers, an ESA review from the Fish and Wildlife 5ervice was in order. The Wildcat project was then stymied by a FWS "jeopardy" opinion that left the Corps with no choice but to stop the Riverside Irrigation Company from proceeding given its potential harm to whooping crane habitat far downstream in another state. The FWS had deterinined that peak water flows were necessary downstream in Nebraska to clear out woody vegetation in a 50-mile riparian habitat supporting the whooping crane and other listed species. Wildcat would be just another cork in the South Platte drainage stopping up flood surges. The Riverside Irrigation Campany and the Public Service Company of Colarado, with the help of Northern Colorado Water C;onservancy District, filed suit in Federal District Court challenging the ruling of the Fish and Wildlife Service and the Army Corps of Engineers. Proponents of Wildcat contended fhat the FWS decision was a blatant attack on the water rights structure of the state of Colorado under the guise of section 404 of the Clean Water Act. They argued that, according to section 101 (G) of the Clean Water Act, states have the authority to allocate water and the states contral over water was not to be superseded by the or impaired in any way. In essence, proponents conte:nded that the Corps of Engineers had no authority to regulate water rights under state appropriations doctrine. Eventually, the Fish and Wildlife Service reconsidered its original impact assessment and decided to allow Wildcat to be built, but the federal court overruled the Fish and Wildlife Service. The court ruled that the effects of downstream depletions would have to be considered when determining whether or not endangered species would, or would not, be affected by this water project (Tyler 1992). In the end, the Federal District Judge decided that the denial of a 404 permit by the Corps of Engineers was a proper exercise of federal policing powers. The Wildcat Project proponents were left with no other recourse but to go through the expensive, time-consuming, process of individual permitting with the FWS, an agency that already filed against the project prior to the court decision. Hopes for Wildcat reservoir were, for all 13ractical purposes, dashed. Two Forks The story of Two Forks is a tale of how a contemporary Denver Water invested heavily in its proposed project on South Platte, hit a wall composed of environmental considerations, picked up the pieces, and re-made itself. When the history of Denver Water is written, it will be a story told in two parts--before Two Fork:s and after. The defeat of the Two Forks Dam and Reservoir project changed everything about the way the city of Denver has managed its resource. Before the Two Forks project proposal failed, Denver Water's mission was to provide water for the greater metropolitan area, and promote eaonomic growth in the metropolitan area. After the failure of Two Forks, Denver Water would trim and re-configure its mission substantially. Before Two 31