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. , e e e -- OFFICE OF THE EXECUTIVE DIRECTOR STATE OF COLORADO ~ Department of Natural Resources 1313 Sherman Streett Room 718 Denver, Colorado 80203 Phone: (303) 866,3311 TDD: (303) 866-3'543 Fax: (303) 866,2115 DEPARTMENT OF NATURAL . RESOURCES August 20,2001 Bill Owens . Governor The Honorable Ben Nighthorse Campbell United States Senate Washington, D.C. 20510 Greg E. Walcher Executive Director Dear Sen. Campbell: Colorado has a potenlially explosive problem with the Corps of E~neers that we need to bring to your attention. In short, the Corps proposes to begin a dangerous precedent by le-llpening a 23-year-old 404 pennit 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 pennits 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 pennit to the Snowmass Water and Sanitation District (District) to construct its diversion facility on Snowmass Creek. The system has worked well without alteration ever since, the Colorado Water Conservation Board has an instream flow right protecting the enviroinment below that section, and a good fishexy 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 Pennit 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 pennitee, with the intent of supplying water for instream flow protection - a responsibility 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 CWCB, In a recent meeting with CWCB Director Rod Kuharich, the Corps asserted that the decision to reopen the pennit 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 pennit has a!relidy 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 & Cas Conservation' Commission. Colorado State Parks. State Forest Service IA'_.__ "'__~..._._.l_.... O.........J ~ n:..:,.:...... ...~\o\l.....".. D.........".............. n;":..i^,,, "'/ 'A/ilrll:f""