DU Water Law Review Spring 2015 Symposium

“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

Denver, Colorado                          April 10, 2015

Environmental Protection & State Water Law

At the 8th Annual DU Water Law Review Symposium, Professor Frederico Cheever moderated a panel of three professionals in the field of water and environmental law, focused on the nexus between environmental protection and state water law. The panel discussed the evolution of water law in Colorado, focusing heavily on instream flow rights, and considered the use of the Endangered Species Act as a compliment to existing water conservation efforts.

David Robbins, president and co-founder of Hill & Robbins, P.C., spoke first. Mr. Robbins was named the 2012 Colorado Water Leader of the Year, and currently serves as a board member of the Colorado Water Trust. Mr. Robbins first discussed his time at the EPA, where he first met and worked with Justice Hobbs. Robbins then laid out what he believed to be the fundamental issue of water today: how to place new social interests into a system based upon vested property rights.

Mr. Robbins discussed three ways the state of Colorado has modified prior appropriation law, and the legal difficulties they faced, in order to balance social interests with existing water rights. First was the instream flow law, which came about in the 1970s after an unfavorable water court ruling; the legislature declared that the Colorado Water Conservation Board (“CWCB”) could obtain instream flow rights to protect the natural environment to the minimum amount necessary. This presented the legislature with an issue: how to codify instream flow rights without inherently adopting parts of the riparian doctrine. Mr. Robbins commended the legislature for adopting the solution of vesting the sole power to obtain instream flow rights with an independent state agency.

Next, Mr. Robbins explained the evolution of the recreational in-channel diversion (“RICD”) law. In another creative solution, the Colorado Supreme Court held that an appropriator could satisfy the diversion and beneficial use requirements by constructing an “in-channel” structure able to control and manage the flow. Mr. Robbins pointed out, however, that he believes the inherent tension between the RICD law and prior appropriation will eventually force the court to address the legality of a large recreational right that would preclude any future development on a particular reach or system.

Finally, Mr. Robbins discussed the link between water quality and the environment. Both Colorado and the federal government have statutes suggesting that water quality laws should not prevent the exercise of existing water rights. Mr. Robbins pointed out that, while this is sound policy, everyone must remember that water rights are not absolute; the government has to play a role in water regulation for environmental protection.

Next to speak was Amy Beatie, Executive Director of the Colorado Water Trust. Ms. Beatie is a former clerk for Justice Hobbs and helped found the DU Water Law Review. Ms. Beatie first spoke about her connection with DU and the challenges she and her classmates faced in founding the DU Water Law Review. She then thanked Justice Hobbs for his efforts and contributions to the DU Water Law Review as it evolved over the years.

Ms. Beatie then shifted her focus to the development of the instream flow program as a means to preserve the natural environment. She spoke about the CWCB’s ability to protect against future development, and the program’s 1500 water rights covering some twenty-five percent of the perennial streams in Colorado. However, the majority of the CWCB’s instream flow rights are junior and often ineffective. The Colorado Water Trust became involved to help amplify the CWCB’s acquisition program that focuses on the leasing and acquisition of vested senior rights—the backbone of the state’s instream flow program. The Colorado Water Trust’s activities also include habitat and structural restoration, including a dam removal in the Poudre River. Lastly, Ms. Beatie urged the audience to not confuse progress with success in the arena of preservation. Specifically, she pointed out the need to increase funding among conservation groups and water trusts for improving flow outcomes. She applauded the state’s efforts as well as the efforts of other stakeholders in encouraging water and environmental preservation, while pointing out that there remained much work to be done.

The final speaker was Professor Sandra B. Zellmer of the University of Nebraska College of Law, where she teaches and writes about natural resources, water, and environmental law. Prior to her career in academia, Ms. Zellmer was an attorney in the Environment and Natural Resources Division of the U.S. Department of Justice, where she litigated public lands and wildlife issues. Additionally, she practiced at Faegre & Benson, and clerked for the Honorable William W. Justice, in the U.S. District Court, Eastern District of Texas. Ms. Zellmer began her presentation by thanking the DU Water Law Review for organizing the event and giving her the opportunity to thank Justice Hobbs for his contributions to the field.

Ms. Zellmer’s presentation focused on whether the Endangered Species Act (“ESA”) could coexist with state water law and existing vested rights. She began by discussing Section 7’s no-jeopardy requirement, and the Supreme Court’s holding in TVA v. Hill that the language of the Endangered Species Act is very clear: federal actions must avoid jeopardy of endangered species at all cost. As an example of how Section 7 can affect state water law, Ms. Zellmer explained the case of the Rio Grande silvery minnow. In response to a severe drought, the Fish and Wildlife Service (“FWS”) proposed to allow the Bureau of Reclamation to continue delivering water to irrigators, causing a stretch of the Rio Grande to go dry and possibly jeopardize the endangered silvery minnow population. The FWS’s biological opinion found jeopardy, but neglected to offer reasonable and prudent alternatives. Accordingly, the Tenth Circuit vacated the biological opinion, refused to allow the irrigation deliveries, and required the flow of water to continue in the Rio Grande. Ms. Zellmer pointed to the silvery minnow case and Ninth Circuit case law to illustrate that when vested water rights are dependent on a federal nexus, the Bureau of Reclamation may, and may even be required to, shift water from established uses to protect species.

Ms. Zellmer then discussed Section 9 of the ESA, which prohibits the “taking” of endangered or threatened species. Courts have interpreted irrigation to constitute a taking where it was reasonably foreseeable that irrigation would harm endangered species and their habitats. Therefore, under the “no take” provision, parties with vested rights can be precluded from exercising those rights in order to protect a species. However, this might result in another kind of “taking”—under the Fifth Amendment—requiring the government to compensate the private party for the “loss” of its water right. Additionally, Section 9 of the Act offers some relief in the form of incidental take permits, whereby actors who may otherwise cause jeopardy will be free from liability if that jeopardy is incidental to an otherwise lawful action.

Professor Cheever thanked the panel and opened the floor to questions. First, Zellmer fielded a question about applying the ESA to the Ogallala Aquifer. Ms. Zellmer opined that, since there are several endangered species within the area of the aquifer, there is the possibility that the ESA may be invoked. However, both Ms. Zellmer and Mr. Robbins suggested that the connection between groundwater depletion, surface flows, and any harm to endangered species would be so attenuated that courts would not likely find the proximate cause necessary to support a violation of Section 9. The final question concerned whether water law can change quickly enough to accommodate the evolving issues that climate change presents. Ms. Beatie suggested that the current framework of law is flexible enough to handle emerging issues. If anything, Ms. Beatie suggested, laws would only need to be tweaked (and funds raised) in order to respond to unforeseen issues. Mr. Robbins added to this response by pointing out that climate change, while serious, may not have a direct effect on annual stream flows in Colorado, but could create serious issues for water managers by altering the traditional timing of those flows.