BOARD02010

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

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OFFICE OF THE EXECUTIVE DIRECTOR

STATE OF COLOMDO
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Department of Natural Resources
1313. Sherman Street, Room 718
Denver, Colorado 80203
Phone: (303) 866,3311
TDD: [phone]
Fax: [phone]

DEPARTMENT OF
NATURAL
. RESOURCES

August 20,2001

Bill Owens
Governor
Greg E. Walcher
Executive Director

The Honorable Scott McInnis
U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman McInnis:

Colorado bas a potentially explosive problem with the Corps of Engineers that we need to bring to your
attention. In short, the Corps proposes to begin a dangerous precedent by re-opening a 23-year-old 404 permit on
an existing water system in order to consider imposing bypass flows -- not because of any change in the system, but
because of a petition from a third party.

As you know, there are thousands of such permits for existing water systems throughout the United States,
so this precedent could be extremely dangerous, The Corps appears to be relying on language in the Clean Water
Act for authority, but ignoring the McCarron Amendment, and the dangerous confrontation with states that could
result.

,
In 1978 the Corps issued a 404 permit to the Snowmass Water and Sanitation District (District) to
construct its diversion facility on Snowmass Creek. The system has wotked well without alteration ever since, the
Colorado Water Conservation Board has an instream flow right protecting the enviroinment below that section,
and a good fishery exists there. Nevertheless, a new group called the Snowmass-Capitol Creek Caucus and several
others (see attached petition for the list) have filed a petition requesting that the Corps re-examine and modify the
District's permit. The petitioners claim the current instream flow is "inadequate to protect the public interest in
the resources of Snowmass Creek, and in fact endangers the viability of those resources."

According to the Corps, this is the first time it has considered reopening a 404 Permit based on a third
party petition to impose bypass flows. It could have the affect of "taking" the decreed and developed water rights
of the permitee, with the intent of supplying water for instream flow protection - a respollSibiIity under the law that
rests exclusively with the Colorado Water Conservation Board (CWCB). We believe the petitioners' request is
beyond the Corps' authority and responsibility, The McCarron amendment binds the Federal Government to State
water laws, and Colorado law protects the environment in that stream. Any organization claiming otherwise
should make that case to the ewCR

In a recent meeting with CWCB Director Rod KulIarich, the Corps asserted that the decision to reopen the
permit is not governed by any formal procedures and rests solely with the Corps. Even more alarming was the
statement that the decision to re-open this permit has already been made, with no input of any kind from anyone
but the petitioners. The gravity of this decision and the precedent it could set warrants a more thoughtful process.
The Corps should not have the arbitrary authority to make such decisions based on a simple third party petition,
with no public process.

Board of land Commissioners. Division of Minerals & Geology/Geological Survey
Oil & Gas Conservation Commission _ Colorado State Pa'rks . State Forest Service
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