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Last modified
1/25/2010 6:50:02 PM
Creation date
10/5/2006 1:43:44 AM
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Floodplain Documents
County
Statewide
Community
State of Colorado
Basin
Statewide
Title
Water Quality/Quanity Relationships
Date
6/1/1989
Floodplain - Doc Type
Educational/Technical/Reference Information
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<br />1989] <br /> <br />WATER RIGHTS PROTECfION <br /> <br />3. Accommodating Federal Environmental Law and Sta. <br />Water Law <br /> <br />Section 10 I (g) has yet to undergo rigorous interpretation by I <br />courts. Riverside Irrigation District v. Andrews IS' appeared to be 1 <br />definitive case, but none of the three sentences of section 10 I (g) VI <br />actually analyzed or applied there. Rather, the decision turned <br />whether an irrigation district was entitled to utilize a "nation wid <br />permit for its proposed water storage project, IS6 free from most str <br />tures of the 404 permitting program. The government prevailed in <br />argument that a site-specific permit application was necessary in li~ <br />of the alleged potential impact on the endangered whooping cra <br />downstream. The permit application never materialized because Pu <br />lic Service Company of Colorado, which had agreed to fund the da <br />and share the water with the ditch company, dropped the project d <br />to costs and an indefinite delay in the construction of its power pIal <br />Nevertheless, Riverside Irrigation is instructive on a number <br />points. First, it is apparent that, despite the apparent clash of impc <br />tant principles of state water law and federal environmental law, tl <br />courts are rightfully reluctant to intercede in the absence of a factu <br />record and proceeding by which to test the specific extent of the co <br />flict and the manner and means for its resolution. Second, it appea <br />that the Corps' public interest review may be the best available foru <br />for joining issue in the context of a particular controversy. All inte <br />ested persons receive notice and can articulate their viewpoint. <br />clash of views often leads to negotiated permit conditions, which bol <br />accommodates the national interest and allows the construction aT <br />operation of structures necessary for the exercise of water rights. <br />Third, sometimes water users protest too much about alleged il <br />terference with their water rights. Unless the owner of a water right <br />actually deprived of his source of supply, priority, quantity, or bene! <br />cial use of the water right, those reasonable measures that are include <br />as conditions of a permit necessary to protect public health, oth( <br />water rights, and the environment are within the intent of the lay <br />The purpose of section 10 I (g) is to steer federal agencies towards <br />resolution that ameliorates adverse impacts without superseding or at <br />rogating the water right. '" <br /> <br />155. 758 F.2d 508 (10th Cir. 1985). <br />156. 33 C.F.R. !! 320.0-.4 (1988). <br />157. United States v. Akers, 785 F,2d 814, 819.20 (9th Cir.), ceTI denied, 479 U.S. 828 (1986), <br />an example of a water user protesting too much. The farmer there really wanted to converl wetlands t <br /> <br />~.... 1__.:1 :_ __..l.< ~_ ,,__. <br />
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