Federal and State Water Law. Jennifer Gimbel, CSU Grad592 October 29, 2018

Transcription

1 Federal and State Water Law Jennifer Gimbel, CSU Grad592 October 29, 2018

2 Desert Land Act and Homestead Act

3 Federal Lands and Indian Reservations

4 Federal Reserved Water Rights Doctrine Established for Tribal Reservations in Winters v. U.S., 207 U.S. 564 (1908) Applied to lands set aside by federal government in Arizona v. California, 373 U.S. 546 (1963)

5 State Adjudications of Water Rights Colorado Water Court System Exclusively state administrative agency adjudications (Wyoming, Nebraska, Kansas) Adjudications with significant administrative action followed by judicial consideration and confirmation (Arizona, California, Idaho, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Nevada, Wyoming (in Big Horn River adjudication)

6 43 USC 666 McCarran Amendment Waives sovereign immunity of U.S. in adjudication and administration of state water rights in federal or state courts.

7 Wild and Scenic Rivers Act of 1968 Preserved rivers with outstanding natural, cultural and recreations values in a free-flowing conditions as designated by Congress. Provides protection against bank and channel alterations. Creates a federal reserved water right. 12,754 miles of 209 rivers in 40 states.

8 Cache LaPoudre Wild and Scenic River 76 miles designated in 1986 Only Wild and Scenic River in Colorado

9 National Environmental Policy Act of 1970 Federal agencies must give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment. Federal agency prepares an Environmental Impact Statement (EIS) or Environmental Assessment(EA). Significant actions include building infrastructure and lending or granting federal dollars.

10 Clean Water Act Pollution control programs for surface water. Farming, ranching and silviculture; construction or maintenance of farm or stock ponds and irrigation ditches States and Tribes can assume responsibility of program and require stricter standards. Does not effect state water law. Applies as between states. Arkansas v. Oklahoma (1992)

11 Federal Agencies EPA-Office of Water Responsible for setting standards and enforcing CWA and Safe Drinking Water Act. Issues Permits. Certifies States and Tribes to issue CWA permits. Enforcer of environmental laws and permits.

12 Federal Agencies Army Corps of Engineers (USACE) Build dams and regulate flows of navigable waters Flood control projects Issue CWA 404 permits

13 Clean Water Act Permits NPDES permits: required for point source discharges into surface streams Section 401 permits: required for any activity which may result in discharge of pollutants into waters of the U.S. Section 404 permits: required for any dredged or fill material that may be discharged into waters of the U.S.

14 Exceptions to CWA 1. Farming, silviculture and ranching activities. 2. (Emergency) maintenance activities. 3. Construction and maintenance of farm ponds, stock ponds, or irrigation ditches or the maintenance of drainage ditches. 4. Construction of temporary sedimentation basins. 5. Any activity with respect to which a State has an approved program under section 208(b)(4). 6. Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment.

15 What is WOTUS? 1. Traditional navigable waters; 2. Interstate waters; and 3. All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.

16 New WOTUS Definition 1. Traditional navigable waters; 2. All interstate waters, including interstate wetlands; 3. The territorial seas; 4. All impoundments of water identified in 1 3 and 5; 5. All tributaries of waters identified in 1 4; 6. All waters, including wetlands, adjacent to a water identified in 1 5; and 7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in 1 3..

17 Endangered Species Act of 1973 Program for the conservation and protection of threatened and endangered plants and animals and their habitats Requires federal agencies to consult with the FWS regarding any actions they authorize, fund, or carry out

18 Endangered Species Act of 1973 Analysis performed by agency in a biological assessment (BA) with decision by FWS in a biological Opinion (BiOp). Requires conditions to protect endangered or threatened species before any federal action can be taken.

19 Bureau of Reclamation Established in 1902 with the mission to reclaim the West. Required to follow state water law. Constructed more than 600 dams and reservoirs and 8,000 miles of canals. Established Reclamation projects contracting with water user groups. Second largest producer of hydro power in the West.

20 Reclamation Reservoirs in Colorado

21 Colorado-Big Thompson Project

22 USGS

23 Spatial distribution of the annual evapotranspiration (mm) for 2013 using the SSEBop model based on Landsat 8 and other ancillary data. USGS Remote Sensing

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25 Questions?