BOARD02010

• Board Meeting Date: 9/24/2001
• Description: Snowmass Water and Sanitation District 404 Permit
• Board Meetings - Doc Type: Memo

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The information provided by the COE at the August 13 meeting greatly alarmed many of those present
and resulted in an immediate written response from the Director of the CWCB to the Chief of the
Regulatory Branch, COE, Sacramento District, from the Chairman ofthe CWCB to the Commander and
Division Engineer, COE, South Pacific Division, and from the Executive Director of Department of
Natural Resources to a number of Colorado's congressional delegation (see Attachment C),
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Concerns Raised

As indicated in the letters in Attachment C a number of concerns were raised as a result of the August 13
meeting with the COE and the actions contemplated by the COB. These concerns are summarized
below.

Decision to Re-Open Permit
. The COE indicated that this is the first time they have cimsidered re-opening a 404 Permit on the
petition of a third party to provide bypass flows for environmental purposes. This is an extremely
dangerous precedent as there are thousands of such permits for existing water systems throughout the
United States,
. That the COE is considering re-opening a 404 Permit based solely on a third party petition without a
thorough evaluation of the facts by all parties involved and a unbiased evaluation of the facts is
wrong (see Attachment D).
. That the COE indicated that this decision, whether or n;ot to re-open a 404 Permit, is not governed by
a formal public involvement process, but rests solely with the COE is extremely troubling, A
decision of this consequence deserves a full public fact finding process,
. The "white paper" upon which this decision was being;based had received no peer or public review .
nor had it been released to the public,
. That the decision to re-open is not based on any observed degradation of the fishery resource, but
rather upon theoretical "what ifs", A decision ofthis.nature should not be based on such
assumptions. (It is our understanding that the conditio$s on Snowmass Creek show no evidence of
any such degradation, Snowmass Creek appears to support a viable fishery and has done so for the
past twenty-three years since the COE first issued its 404 Permit.)
. Perhaps the most troubling concern that came out oftne August 13 meeting with the COE and as
evidenced in Attachment D which was apparently written prior to the official submission of the
petition, was the feeling that the COE had already fon;ned a bias as to whether or not the penl.1it
should be re-opened,

Imposing Bypass Flow Requirements
. Should the COE re-open the permit and impose a bypass flow on the permitee this would have the
effect of "taking" the permitee's decreed and developed water and applying the water to instream
flow protection, This would violate of the McCarran'Ammenclment and the prior appropriation
doctrine, upon which Colorado water law is based,
. This action would also have the effect of the COE substituting itself for the CWCB in providing
instream flow protection on Snowmass Creek. This is a responsibility that has been assigned
exclusively to the CWCB by Colorado law, .
. The COE has indicated that the decision to re-open vYou1d trigger a re-permitting process that would
be no different than the processing of a new 404 Permit. Thus, the permit holder would incur .
significant expense as a result of are-opening,

Flood Protection. Water Project Planning and Fina)lcing. Stream and Lake Protection 2
Water Supply Protection. Conservation Planning