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e - e .~ , . - OFFICE OF THE EXECUTIVE DIRECTOR STATE OF COLORADO ;rj Department of Natural Resources 1313 Sherman Street, Room 718 Denver, Colorado 8Q.203 Phone: (303) '866-3311 TDD: (303) 866,3S43 Fax: (303) 866,211 S DEPARTMENT Of' NATURAL RESOURCES August 20, 2001 BiIIOwefls Goyernor Greg E. Watcher Executive Director The Honorable Wayne Allard United States Senate Washington, D.C. 20510 Dear Sen. Allard: Colorado bas a potentially explosive problem with the Corps of Engineers that we need to bring to yonr 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 bas worked well without alteration ever since, the Colorado Water Conservation Board bas an instream flow right protecting the enviroinment below that section, and a .good fisheIY 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 modi1Y the District's permit. The petitioners claim the current instream flow is "inadequate to protect the public interest in the resonrces 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 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 respollSJbility. 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 tnake that case to the CWCB, . In a recent meeting with CWCB Director Rod Knharich, 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 II simple third party petition, with no public process. Board of Land Commissioners _ Division of Minerals & Geology/Geological Survey on & Gas Conservation Commission. Colorado State Parks. State Forest Service Water Conservation Board. Division of Water Resources _ Division of Wildlife