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Riverside Irrigation Dist. v. Andrews

ELR Citation: 13 ELR 21091
Nos. No. 80-K-624, 568 F. Supp. 583/19 ERC 1550/(D. Colo., 07/31/1983) Permit denial upheld

The court upholds the Army Corps of Engineers' denial of a nationwide permit under §404 of the Federal Water Pollution Control Act (FWPCA) for construction of a dam, based on the potential adverse downstream impacts of the altered water flow on the whooping crane's, an endangered species, habitat. The case was before the court following a court of appeal's determination, 12 ELR 20243, that the Corps' denial of a general permit pursuant to §404 was reviewable.

The court first holds that the Corps' subsequent decision to require plaintiffs to apply for an individual permit does not render the case moot and that such decision is reviewable. Next, the court holds that the FWPCA authorizes federal agencies to consider the effects of a project on the downstream environment and that the Endangered Species Act (ESA) requires agencies to take all steps necessary to protect an endangered species and its habitat. Since the ESA mandate extends to the indirect effect of a project on a species, the Corps acted within its authority when it denied the general permit. The court rules that the scope of §404 as it affects state water rights is not limited by §101(g) of the FWPCA, which contains a congressional policy not to supersede, abrogate, or otherwise impair state water quantity rights, but was not intended to change existing law. In addition, the conditions on the dam's construction limit the exercise of, but do not abrogate, state water rights. Finally, the court rules that Congress did not limit its authority to enact the FWPCA when, prior to passage of the Act, it approved the South Platte Compact, which allocates state water rights.

Counsel for Plaintiffs
John M. Sayre, Gregory J. Hobbs Jr., Jeffrey C. Fereday
Davis, Graham & Stubbs
P.O. Box 185, Denver CO 80201
(303) 892-9400

Timothy J. Flanagan, James R. McCotter
Kelly, Stansfield & O'Donnell
550 15th St. NW, Denver CO 80202
(303) 825-3534

Counsel for Plaintiffs-Intervenors
Donald H. Hamburg, General Counsel
Colorado River Water Conservation District P.O. Box 1120, Glenwood Springs CO 81601
(303) 945-8522

Frank E. Maynes
Maynes, Bradford & Shipps
P.O. Box 2717, Durango CO 81301
(303) 247-1755

Counsel for Defendants
Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361

Richard D. Jost, Ass't U.S. Attorney
Fed. Office Bldg., Drawer 3615, Denver CO 80294
(303) 837-2081