Southeastern Colorado Water Conservancy District Minutes August 18 2005

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SECWCD August 18, 2005 10 RECORD OF PROCEEDING prepare these comments. As he discussed last month with the Board, several of the proposed rules would require that the CWCB consider the reasonableness of an applicant's intended recreation experience and the minimum flow that would meet that experience, even though the Colorado Supreme Court in the Upper Gunnison decision ruled that those determinations are not within the CWCB's purview. The District's comments generally will reflect the position that if the CWCB wants to undertake these actions in the RICD process, it should seek the authority to do so through the legislative process instead of adopting rules that conflict with the Supreme Court's ruling in Upper Gunnison. In the proposed rule revisions evaluating Compact entitlements, legal counsel plans to comment favorably on the revisions providing that the CWCB will consider whether the basin is over - appropriated in evaluating the reasonableness of an appropriator's sought recreation experience, as this is consistent with the Supreme Court's ruling in Upper Gunnison and the District's comments in the prior RICD rulemaking and RICD hearings. Mr. Lee Miller reported as legal counsel has discussed in the last few months, the Water Quality Control Commission (WQCC) adopted temperature criteria and implementation regulations with a delayed effective date of December 31, 2007. Further, the WQCC directed the Division to continue work on the temperature criteria and return in 2007 with a revised proposal that addresses the issues that were raised during the hearing process. The Division has set the following target dates to reach this goal: the proposed methodology for developing temperature criteria would be completed by February 15, 2006. An administrative action hearing in front of the WQCC would be held on April 10, 2006. The proposal for rulemaking would be completed by August 26, 2006, with a rulemaking hearing occurring on January 8, 2007. The Division has proposed the "Colorado Temperature Criteria Project" to address issues to be resolved on this timeline. The Board was provided a copy of the Division's proposal. At a meeting of the water and wastewater users' "Temperature Group" that Mr. Lee Miller attended earlier this month, the Temperature Group members expressed concerns with the Division's proposal. The WQCC discussed the Temperature Group's memo and the two responses (Trout Unlimited and Division of Wildlife) at WQCC meeting. After a long discussion, the WQCC decided to continue with the process as described by the Division. Mr. Lee Miller reported in other water quality matters, on August 8, EPA released an Agency interpretation that sets forth its position that water transfers should not require Clean Water Act discharge permits. EPA issued its interpretation in conjunction with the remand of the Supreme Court's ruling in South Florida Water Management District v. Miccosukee. In that case, the Supreme Court vacated the order for the water management district to obtain a permit and remanded the case back to the Eleventh Circuit for further fact finding. Meanwhile, the Court left open the broader issue of whether water transfers should require Clean Water Act permits. This Agency interpretation, and the forthcoming rulemaking, should reduce uncertainty created by the Miccosukee decision and hopefully allow water managers to avoid the costs of permitting and litigation.