by Scott Miller, Esq. miller@waterlaw.com WESTCAS 2018 Annual Conference Phoenix, AZ, October 22-24, 2018 Colorado State Report by Scott Miller, Esq. miller@waterlaw.com

Planned Reservoir Expansion Challenged on CWA grounds Audubon Society of Denver v US Army Corps Colo Dept Nat Res, CWCB and Water Dists in middle of $180M plan to expand Chatfield Reservoir by 587 acres Case in 10th Circuit on appeal Question: Is Corps required to conduct CWA review over the entire project? Corps did NEPA review for entire plan, but only CWA review for assessing alternative plans for environmental mitigation Audubon sued in Fed District Court in 2014 claiming 1) Corps failed to choose a less environmentally damaging alternative Reservoir expansion would endanger threatened birds and mammals 2) CWA assessment should have been done for entire project, not just env mitigation alternatives Corps readily admitted it did not to CWA assessment for entire plan, but insists that is correct reading of the law Remaining question: Does “project” when used in the CWA mean the entire plan, or can it only apply to certain parts of the overall project?

Western Slope Risk Study Two western slope water districts continuing third phase of study without state money Front range opposing because they want to be included in the study Questions for Phase III: 1) if water is restricted 10%, is that enough to keep Powell full and still fulfill Compact? 2) if so, how much cutback from each basin? First two phases given $72,000 by CWCB Those phases indicated an additional 1-2 million acre-feet of restrictions needed to bolster Lake Powell Western slope currently diverts 1.3 million acre-feet per year, plus 541,000 acre-feet in transmountain diversion to Front Range Western slope entities (Colorado River Water Conservation District and Southwestern Water Conservation District) trying to make the study an “open and transparent modeling process”

Colorado River District manifesto GM Andy Mueller outlined six principles to reduce Upper Basin use: 1) key is voluntary, compensated demand management programs 2) Not subject to interim guidelines 3) Must be voluntary, temporary, and compensated and equal to CO, WY, & UT 4) No injury 5) No disproportionate impact to any CO basin 6) Be consistent with 2015 CO Water Plan 1) Everything starts with demand management programs like Pilot System Conservation Program 2) the goal of such programs is to raise (at least sustain) Powell, but the interim guidelines would allow Lower Basin to keep sucking that water downriver 3) Trying to avoid mandatory curtailment, but must pay water users to encourage participation and sustain economies Also needs to be proportionate from all Upper Basin states (no single state should bear the burden of sustaining Powell) 4) no injury obviously a major tenant of western water law that must be respected 5) no disproportionate impact  see previous slide on western slope/front range conflict. Everyone needs to work together 6) CO Water Plan has outlined specific guidelines, especially re transmountain diversions, that any new plan should align with

Colorado Water Quality Control Commission Reg 82 Governs federal 401 certifications, but has not been updated since 2003 Proposed changes: Specify that potential impacts must be addressed during both construction and operation (long term and permanent) Expand project area to include sections of river both impacted and benefited by proposed project 401 has undergone many changes that have not been reflected in Regulation 82 401 cert is required for any project that needs an individual 404 permit Also revises certification fees (federal and state) to align with 401 Finally, amends antidegradation language to match that already changed in Regulation 31 (“basic standards” regulation)