Citizen's Guide to Colorado's Environmental Era

• Year: 2005
• Title: Citizen's Guide to Colorado's Environmental Era
• Author: Colorado Foundation for Water Education
• Publications - Doc Type: Other

and how well they enforce against "mid-
night dumpers."
No Mucking in the Stream,
and Don't Hurt the Wetlands
The federal statute —and accompany-
ing regulations —that probably have had
the most impact on water resource devel-
opment in the West is Section 404. This
law, which appears as a section of the
Clean Water Act, requires any proposed
developer of a water resource within the
natural bounds of a federally recognized
stream to obtain a permit from the Army
Corps of Engineers —a so- called "dredge
and fill" permit. This permitting system
governs everything from placing a culvert
in a streambed to construct a road, to the
damming of a stream to create reservoirs.
In the early days of Section 404 regula-
tion, the destruction of naturally existing
wetlands was a significant issue. Permit
requirements mandated wetlands preser-
vation if at all possible, and many water
projects were stymied by this requirement.
Eventually, the regulations were amended
to what is known as the "no net loss"
approach, which means that if there is a
natural wetland which would be lost due
to new development, the proponents can
simply rehabilitate that wetland after con-
struction, or, where this is not possible, can
propose to build a new wetland equal in
size somewhere else.
In the early 1970s, the federal govern-
ment also adopted a series of laws which
have significantly changed how we con-
struct water supply projects. The National
Environmental Policy Act (NEPA) adopted
in 1970, requires any project funded with
federal funds or any private project located
on federal lands, to go through an envi-
ronmental assessment to see what impacts
on the environment may be created by
the project. Where there are significant
impacts, a full environmental protection
study must be undertaken, and alternatives
to the project must be explored. If the proj-
ect is permitted, it is subject to conditions
imposed by the Environmental Protection
Agency (EPA).
Unlike most other federal laws, the
Endangered Species Act adopted (ESA)
in 1973 applies to virtually all lands and
waters of the United States both private
and public. It requires analysis of the exis-
tence of threatened or endangered species
and mandates that future land manage-
ment be consistent with maintaining the
viability of the endangered species popula-
tion, excepting only "incidental takes" (i.e.
the unintentional killing of individuals of
the species by development activity that
does not destroy critical habitat or threaten
the viability of the species.)
More recently, the ESA has been amend-
ed to permit the destruction of a species
and its habitat in particular development
locations where an alternative habitat and
relocation of the species can be arranged.
Many local jurisdictions have cooperat-
ed to create regional habitat conservation
plans in order to permit some development
of sensitive lands and waters while ensur-
ing that appropriate conditions exist for
species to thrive in other locations.
Management of federal lands is regu-
lated by the Federal Land Policy and
Management Act ( FLPMA). More than one
third of Colorado's land is owned by the
federal government, primarily managed
by the Forest Service and the Bureau of
Land Management. FLPMA mandates a
"multiple use" doctrine for federal lands,
and directs that land use plans developed
by the Secretary of the Interior, e.g, for
a national forest, "...shall be consistent
with state and local plans to the maximum
extent [the Secretary] finds consistent with
federal law..."
To put a new or expanded water facil-
ity on these lands requires a FLPMA per-
mit. Since federal lands comprise a large
amount of Colorado's upper watersheds,
which are the source of a great deal of our
water supply, this act enables federal agen-
cies to have significant power to refuse or
condition the construction and operation
of some water projects.
Other newcomers on the federal stage
were the Resource Conservation and
Recovery Act of 1976 (RCRA) and the
Comprehensive Environmental Response
and Liability Act of 1980 (CERCLA or
"Superfund "). RCRA requires generators
and transporters of certain listed hazardous
materials /chemicals to obtain permits and
to file plans for emergency containment and
disposal. CERCLA, originally the Superfund
law, holds liable landowners and other
"potentially responsible parties" (mostly
prior users of properties) for toxic and
other hazardous materials that migrate —or
have the likelihood of migrating — off -site,
generally as water pollution. Superfund
got its name from the large appropriations
of federal funds made in the early years of
cleanup. Declining federal appropriations
now put the emphasis on establishing the
liability of parties for cleanup.
Section 404 of the Clean Water Act requires a
U.S. Army Corps of Engineers permit to place
dredged or fill material in waters of the United
States, which includes rivers and wetlands.
This means that virtually all dams require fed-
eral approval.
Conclusion
Vestiges of the Wild West remain in
Colorado. Most property owners don't
like being limited in their use —or in how
they use —their property and water rights.
At the same time, the need for land use
regulation and pollution prevention and
control is well accepted. A constant ten-
sion exists between the regulators and the
regulated in the areas of environmental and
land use laws, including those applied to
water resource development.
In the end, the job of government, law
and the courts is always to balance the
needs of society for inexpensive resources,
with the need for a livable and desirable
environment.❑
About the Author: Lawrence Hoyt has
served as Boulder County Attorney since 1986.
He has lectured extensively on local govern -
ment law issues, with a particular emphasis on
government finance, environmental law and
intergovernmental relations.
CITIZEN'S GUIDE T ❑ THE ENVIRONMENTAL ERA 1 27