BOARD02476

• Board Meeting Date: 9/13/2004
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

OEPT OF PUBLIC HEALTH Fax:[phone]D2

Aug 11 2004 9:21

P.03

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Rbbert Roberts
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Apgust 5, 2004
P~e2

Ii demand that a water-body be listed based upon impacts directly associate with the flow regime can
oilly result in a Region 8 attempt to demand the release of flows on a basis 0 tside of the nonnal release
p~tterns. Weare concerned that if this were to occur those who have the ri to use this water for
~~ing, or for other beneficial uses, would be deprived oftbat use. Obvious y, if that were to occur
dl;lring a drought it could cause great disruption.
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~e also have serious legal concernS with respect to this action. We believe egion 8's attempt to read
thf federally delegated Clean Water Act in a fashion to control water quanti is beyond your authority,
contrary to state and federal law, and should be left to the delegated state. S, cifically, we would direct
y6ur attention to Colorado Revised Statutes at 25-8-104, which states in part:

No provision of this article [state Clean Water Act] shall be interprete~ so as to
supercede, abrogate, or impair rights to divert water and apply wat:r.:e. beneficial
uses in accordance with the provisions of section 5 and 6 of article ~ y 1 of the
Constitution of the State of Colorado, compacts entered into by the St e of Colorado,
or the provisions of article 80-93 of Title 37. eRS, or Colorado court eterminations
I with respect to the determination and administration of water rights.

~js same statutory provision goes on to provide that neither the Water Quali
the Water Quality Control Division "shall require an in-stream flow for any
like to bring to your attention section 10 I (g) of the federal Clean Water Act,
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Control Conunission nor
ose." We would also
hich provides that;

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It is the pol.icy of Congress that the authority of each state to allocate uantities of water
within its jurisdiction shall not be superceded, abrogated or otherwise impaired by this
chapter. It is the further policy of Congress that nothing in this ~hapt r shall be construed
to superceded or abrogates rights to quantities of water, which have b en established by
any rate. Federal agencies shall cooperate with state and local agenci s to develop
comprehensive solutions to prevent, reduce and eliminate pollution i concert with
programs for managing water resources.

ouglas H. Benevento
Etecutive Director
C Ilorado Department of Public
Health and Environment

Don Ament
Commissioner 0
Colorado Dep

the other five listings.
. s matter as well.

V,je hope that you will reconsider your staff's actions on this listing as well
npe Water Quality Control Commission will no doubt be contacting you on
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Sipcerely,

i {)
lYPf-

Agriculture
ent of Agriculture