PUB00004 - Laserfiche WebLink

Home Browse Search

. 30 . The land and Water Fund af the Rackies @ Moving Blue Mesa's Marketable Yield: A Myth 1. Veto Authority under Section 404 of the Clean Water Act A trans-mountain diversion project almost certainly would require a Section 404 permit by the Army Corps of Engineers (Corps) pursuant to the Clean Water Act (CWA).'" Constructing a dam or building a pipeline that impacts a stream nearly always requires such a permit.'" A permit for discharging dredged or fill material into the nation's waters may be obtained only if there is no feasible alternative that would be less damaging to the environment.'" The U.S. Environmental Protection Agency (EPA) is heavily involved in the permit process, too. An applicant for a permit must show compliance with the EPA guidelines, under CWA S 404(b)(1), which include: (1) Avoiding impacts to aquatic resources and wetlands where practicable (2) minimizing potential impacts, and (3) providing compensation for any unavoidable impacts.'" Under S 404(c), the EPA reviews all permits issued by the Corps, and has the authority to overrule a Corps decision if it "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."'" Though rarely used, this provision of the act grants the EPA tremendous veto power. no The EPA's veto authority is perhaps most significant with respect to the sec- tion 404(b)(1) mandate of considering less-damaging alternatives to the proposed action. These guidelines require not only that less-damaging alternatives be exam- ined, but dictate that the Corps may only issue a permit for the least damaging practi- cable alternative. '" The proposed Two Forks Project, an ill-fated dam proposal on Colorado's Front Range, supplies an excellent example of the reach of EPA's veto power, and illustrates the complex interplay of environmental laws and government entities when section 404 is triggered. When it was all over, the Two Forks controversy spanned several decades, cost more than $50 million, and ultimately was defeated because the EPA determined that there were potential alternatives to the dam proposal that would be far less damaging to the environment. no The Two Forks story hints at the significant challenges any proposal to divert Gunnison Basin water to the Front Range likely would face. In the case of Two Forks, the Denver Water Board had held water rights since 1902 to construct a dam in the river valley downstream from the confluence of the South Platte River and the North Fork of the South Platte."" Denver also had a dam construction right obtained from the Forest Service in 1931. ,"u But the most impor- tant authorization needed to construct the dam was a S 404 permit. Although the EPA concluded independently that Two Forks could not be permitted under S 404 because it didn't satisfy EPA guidelines, the Corps thereafter announced that it would issue the permit because it found the environmental damage could be mitigated.'" The EPA, however, had the final say, and that was a blunt denial.'" The EPA determined that mitigation was simply not enough to comply with the demanding guidelines of S 404.'"' Noting that the dam would have flooded more