Section 404 Regulation of Irrigation Ditches in Colorado
| Publication year | 2011 |
2011, February, Pg.31. Section 404 Regulation of Irrigation Ditches in Colorado
Fabruary 2011
Vol. 40, No. 2 [Page 31]
Natural Resource and Environmental Law articles are sponsoredby the CBA Environmental Law, Water Law, and Natural Resources and Energy Law Sections. The Sections publish articles of interest on local and international topics.
Coordinating Editors
Melanie Granberg (Environmental), Denver, Gablehouse Calkins and Granberg, LLC-(303) 572-0050, mgranberg@gcgllc.com; Kevin Kinnear (Water), Boulder, Porzak Browning and Bushong LLP-(303) 443-6800, kkinnear@pbblaw.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham and Stubbs LLP-(303) 892-7470, joel.benson@dgslaw.com
About the Author
Jessica L. Pault is an Assistant City Attorney for the City of Greeley focusing exclusively on water-related matters for the City's Water Department. Her practice includes water law, contract law, real estate law, and environmental law-jessica.pault@greeleygov.com.
This article discusses the implications of potential federal regulation of irrigation ditches under Section 404 of the Clean Water Act following the issuance of guidanceby the Corps of Engineers regarding specific application in Colorado.
On September 15, 2009, the U.S. Army Corps of Engineers (Corps) issued a guidance document regarding maintenance of irrigation ditches in Colorado (Colorado Guidance). The Colorado Guidance limits application of the statutory exemption from regulation for maintenance of irrigation ditches under Section 404 of the federal Clean Water Act (CWA) to maintenance activities performed for the purpose of delivering water for agricultural irrigation. In other words, the Colorado Guidance excludes from the scope of the exemption maintenance work performed to deliver water for municipal and other nonagricultural uses, including lawn irrigation. This article discusses the implications of the Colorado Guidance for municipal water service providers and other nonagricultural water users, and addresses regulatory concerns for ditch companies with any municipal or other nonagricultural ownership or use.
Historical Background
In the late 1800s, groups of pioneer settlers in Colorado began to organize themselves into cooperative ventures to construct complex irrigation systems and put more land into agricultural production.(fn1) The Union Colony, for instance, was established in 1869 in what presently is the City of Greeley.(fn2) The Union Colony was created with an emphasis on cultivation of lands under the Cache la Poudre River, and served as a model for the development of mutual ditch companies.(fn3) Mutual ditch companies are responsible for the construction of major irrigation systems throughout the state and still control significant water rights.(fn4)
With population growth in Colorado, municipalities have grown over historically irrigated lands and often have acquired the historical water rights of the annexed lands. The networks of irrigation ditches and related facilities often become integrated into municipal water systemsby either complete or partial municipal ownership, and can provide important means of water conveyance and redundancy. This existing infrastructure can add tremendous value to the water rights and operational flexibility of a municipal water service provider or other nonagricultural water user, not only in terms of water supply, but also in the development of nonpotable irrigation systems. Increasingly, municipal water service providers and other nonagricultural water users are pursuing nonpotable irrigation for new development to maximize the use of treatable water supplies and to offset future water demands.
Municipal water service providers and other nonagricultural water users, in addition to mutual ditch companies with municipal and other nonagricultural stock ownership, regularly are faced with the need to construct, maintain, or make improvements to these ditch systems to efficiently deliver and use their water rights. This work may involve the repair or installation of control structures at the river diversion or along the course of the ditch, excavation to restore or increase ditch capacity, piping or lining to reduce seepage losses in the ditch, and other activities to properly manage the delivery and use of water in the ditch. Potential federal regulation of irrigation ditches under Section 404 of the CWA can greatly complicate and increase the costs of such work and has other far-reaching implications.
Irrigation Ditch Exemption Under Section 404(f)
Pursuant to Section 404 of the CWA, the Corps and the U.S. Environmental Protection Agency (EPA) jointly regulate the discharge of dredged and fill material and certain excavation activities in the waters of the United States.(fn5) "Waters of the United States" regulated under the CWA can include ephemeral, intermittent, and perennial streams; their surface connected wetlands and adjacent wetlands; and certain lakes, ponds, drainage ditches, and irrigation ditches that have a nexus to interstate commerce.(fn6) As discussed in greater detail below, an irrigation ditch specifically can constitute jurisdictional waters subject to regulation under Section 404. Nevertheless, Section 404(f)(1)(C) of the CWA provides an exemption to the Section 404 permitting requirements for discharges of dredged or fill material related to the construction or maintenance of irrigation ditches.(fn7) Discharges associated with facilities appurtenant and functionally connected to irrigation ditches, such as siphons, pumps, headgates, wingwalls, weirs, and diversion structures, also fall within the exemption for irrigation ditches.(fn8)
A Regulatory Guidance Letter (RGL) issuedby the Corps on July 4, 2007, defines an irrigation ditch as a man-made feature or upland swale that conveys irrigation water to an ultimate irrigation use, or that moves water away from irrigated lands.(fn9) Irrigation ditches, as so defined, may include the related distribution system or parts.(fn10) The RGL further provides that "a ditch that diverts water from an open body of water (e.g., stream, lake, or reservoir) for irrigation purposes is an irrigation ditch, even if a substantial portion of the flow or volume is diverted."(fn11)
"Construction" generally is described in the RGL as new work or work that results in an extension or expansion of an existing structure and includes, but is not limited to, ditch relocation, ditch conversion into pipe, ditch lining, and placement of new control structures.(fn12) On the other hand, the RGL characterizes maintenance work as repair work to an existing structure or feature to keep the ditch in its existing state or proper condition-that is, to restore the ditch to its original function and approximate capacity-or to preserve the ditch from failure or decline.(fn13) Maintenance activities can include excavation of accumulated sediments back to original contours, reshaping of the side-slopes, bank stabilization, and replacement of existing control structures.(fn14) According to the RGL, district offices should allow maintenance of ditches to be performed under the exemption based on current engineering standards, as long as such work is consistent with the original design and function of the ditch and does not result in the drainage of additional areas.(fn15)
Exceptions to the Exemption
There are limitations on the availability of the exemption under the regulations. The regulations provide that a Section 404 permit still is required if the discharge of dredged or fill material into waters of the United States contains any toxic pollutant listed under Section 307 of the CWA.(fn16) Also, the exemption does not apply: (1) if any discharge related to work on the ditch, which is otherwise allowed under the exemption, is incidental to or part of an activity to convert an area containing waters of the United States into a new use; and (2) where the flow or circulation may be impaired or the reach of such waters reduced.(fn17) The RGL refers to this latter exception to the exemption as the "recapture provision" and characterizes it as the last step in determining if the exemption applies to a proposed activity.(fn18)
Part one of the recapture provision is to identify whether the discharge is...
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