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Until this decision came down, many people felt that section <br /> 101 (g) would prevent permit decisions from being based solely on III <br /> water quantity considerations . Section 101 (g) is the language <br /> sponsored by Senators Hart and Wallop in 1977 which states that <br /> nothing in the act "shall be construed to supersede or abrogate <br /> rights to quantities of water which have been established by any <br /> state." The court summarily dismissed this provision as a policy <br /> statement not intended to impair or diminish the substantive <br /> portions of the balance of the act, in particular the scope of <br /> jurisdiction conferred by section 404. <br /> The court's ruling has prompted broad concern among water <br /> interests that the concept of section 101(g) will have to be <br /> added directly to section 404. Senator Wallop has indicated that <br /> he intends to address the problem. The Northern Colorado Water <br /> Conservancy District has proposed the following section 404 <br /> amendment to Senators Hart and Wallop: <br /> No determination under subsections (b) or <br /> (c) (1 ) shall be based upon the depletive <br /> effects of diversion, storage, or consumptive <br /> use of water when such diversion, storage, or <br /> consumptive use has been authorized by the <br /> laws of any state, except when the purpose of <br /> such diversion, storage, or consumptive use <br /> is to drain wetlands and convert them to <br /> drylands . <br /> As of this date, neither of these senators nor any others have <br /> announced how they will address this issue. <br /> Irrigation Ditch Exemption <br /> The exemption from section 404 for construction or <br /> maintenance work on irrigation ditches has had a checkered <br /> history of regulatory interpretation and application since it was <br /> added to the act in 1977 under Senator Hart ' s sponsorship. It <br /> • <br /> has been a constant struggle to get the Corps to interprete <br /> "irrigation ditches" to include associated features such as <br /> headgates, wing walks, flumes, and appurtenant diversion dams. <br /> The Northern Colorado Water Conservancy District has <br /> recommended to Senator Hart that the Act ' s exemption be clarified <br /> by adding the language "and appurtenant facilities" after <br /> "irrigation ditches . " This would make it clear that the <br /> facilities associated with a ditch which are needed in order to <br /> use the ditch are also covered by the exemption. <br /> JWM/gl <br /> cc: Gary Broetzman <br /> MEMORANDUM -6- September 6, 1983 <br />