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<br />01 <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />~ <br /> <br />Ditch Bill applications awaiting a Colorado Attorney General decision on how to meet <br />the Federal requirement to indemnify the Federal Government against liability for <br />operation of the reservoir. <br /> <br />. Medicine Bow / Routt National Forest - (82 applications) <br />The Medicine Bow / Routt had 82 applications open as of January, 2005 of which 14 <br />have been closed to date and another 33 are undergoing environmental analysis. A <br />number of Medicine Bow / Routt Ditch Bill applications are awaiting on the US Fish & <br />Wildlife Service procedures for complying with the Platt River endangered species <br />biological opinion. <br /> <br />. Pike San Isabel National Forest - (24 applications) <br />The Pike San Isabel had 24 applications open as of January, 2005 of which 13 have been <br />closed to date and another 10 are undergoing public comment and environmental <br />analysis. The remaining applicant has been sent a letter asking for additional information <br />or clarification of their application. <br /> <br />. Arapaho Roosevelt National Forest - (20 applications) <br />The Arapaho Roosevelt had 20 applications open as of January, 2005 of which 14 have <br />been closed to date and another 3 have either been prepared and awaiting applicant <br />signature or are undergoing public comment and environmental analysis. A number of <br />Arapaho Roosevelt Ditch Bill applications are awaiting on the US Fish & Wildlife <br />Service procedures for complying with the Platt River endangered species biological <br />opinion. <br /> <br />Catskill Mountains Decision and Miccosukee Update: The Second Circuit Court of Appeals <br />issued its decision in Catskill Mountains Chaoter of Trout Unltd. v. NYC on June 13, 2006 (No. <br />03-7203) (Catskill II) The three-judge panel upheld its earlier decision that New York City's <br />(NYC) water transfer is subject to NPDES permitting under the Clean Water Act. NYC stores <br />runoff in a reservoir and transfers it through a tunnel to a creek, which ultimately supplies <br />drinking water to the City. <br /> <br />In Catskill I, the Second Circuit held that the unpermitted water transfer violated the Clean Water <br />Act, and remanded the case for a determination of penalties. The trial court calculated potential <br />penalties of $63+ million, but reduced the fine to $5+ million because of mitigating factors, <br />including a lack of environmental harm. NYC appealed. <br /> <br />In Catskill II, the Court rejected NYC's request to reconsider its holding in Catskill I. The court <br />reviewed intervening developments in the law, including the Supreme Court's decision in <br />Miccosukee and EP A's 2005 Agency Interpretation addressing the applicability of the Clean <br />Water Act to water transfers. The Court concluded that Miccosukee recognized a legally <br />significant distinction between inter- and intra-basin transfers, a part of the court's rationale in <br />Catskill I. <br /> <br />The court discussed the Western States' amicus brief, but cited the Supreme Court's earlier dicta <br />regarding the Western States similar brief in Miccosukee, i.e., that requiring permits for water <br />transfers could raise costs prohibitively and violate the Act's preservation of state authority over <br />water allocations, such permits might be necessary to protect water quality. Finally, the court <br />noted that the Clean Water Act provides flexibility for NYC to comply with a permit. <br /> <br />NYC has not decided to, but is expected to, appeal the decision to the U.S. Supreme Court. <br /> <br />5 <br />