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Water Blog

A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.

  

Changes to Colorado Water Court Rule 11

Posted December 15, 2017

The Colorado Supreme Court recently announced a change to Rule 11 (Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues) of the Uniform Local Rules for All State Water Court Divisions.  The rule change was adopted by the Court on November 16, 2017 and will be effective for cases filed or re-referred on or after January 1, 2018.

The rule change alters the water court timelines established in Rule 11 regarding expert disclosures, settlement discussions, and pretrial motions.  Generally, the rule change requires the disclosure of expert evidence and filing of Rule 56 motions farther in advance of trial than was previously required.

First, the applicant’s expert disclosure shall now be made at least 280 days (previously 245 days) before trial; the applicant’s supplemental expert disclosure shall be made at least 217 days (previously 182 days) before trial; and an opposer’s expert disclosure shall be made at least 161 days (previously 126 days) before trial.  Rule 11(b)(5)(B)(I-III).  If an expert disclosure is intended to contradict or rebut evidence on the same subject identified by another party under subsection (b)(5)(B)(III) of the Rule, that disclosure shall now be made no later than 119 days (previously 91 days) before trial.  Id. at (b)(5)(B)(IV).

Additionally, parties shall jointly file a statement setting forth the specific disputed issues that will be the subject of expert testimony at trial no later than 84 days (previously 63 days) before trial.  Id. at (b)(6)(B).

Finally, unless otherwise ordered by the court, motions pursuant to C.R.C.P. 56 (Summary Judgment and Rulings on Questions of Law) shall be filed at least 91 days (previously 84 days) before trial.  Id. at (b)(9).

Colorado water lawyers will likely favorably embrace this rule change, as the new deadlines provide four weeks to review expert rebuttal disclosures prior to the deadline to file any Rule 56 motion, rather than the one week that was provided by the old rule.  The other changes similarly provide all parties with additional time to prepare for trial.


Navajo Nation Council votes down proposal to build resort development on tribal land at the Grand Canyon

Posted November 14, 2017

On October 31st, the Navajo Nation Council voted down a proposal to construct a resort development on tribal land at the East Rim of the Grand Canyon, ending a years-long battle that involved local residents, tribal officials, outside developers, environmentalists, and the U.S. National Park Service.

The Council voted 2-16 to oppose the legislation, “which sought the Navajo Nation’s approval of a master agreement for the development of the Grand Canyon Escalade Project, and funding in the amount of $65 million for the development of infrastructure for the project site.”

Development of the rural land surrounding the proposed site has only been possible since 2008, when the federal government lifted a moratorium on development for the area that had existed for nearly 50 years.  In 1962 a federal court declared that both the Hopi Tribe and the Navajo Nation had joint rights to large portions of land in Northern Arizona, and the U.S. Bureau of Indian Affairs responded by implementing “a freeze on any development on the disputed land . . . . including the building of houses, improvement to property, public work projects, power and water lines, publican agency improvements, and associated rights of way.”  S. Rep. No. 110-462, at 2 (2008).  The undeveloped character of the region can be traced back to the failed policy, and by 2008 “[o]nly three percent of the families affected by the Bennett Freeze [had] electricity, and only ten percent [had] running water.”  Id.  But that year, Congress put an end to the ban on development, and Phoenix-based developers immediately began to explore tourism opportunities on the land, which borders the Colorado River and Grand Canyon National Park.  Id.

The proposal included a gondola tramway to shuttle tourists from the Grand Canyon rim down to a boardwalk and café constructed on the shore of the Colorado River and called for the withdrawal of 420 acres perched high above the confluence of the Little Colorado and Colorado rivers on an area considered sacred and religious to many local tribes.  Press Release, The Hopi Tribe, Hopi Tribal Chairman Thanks Navajo Nation Tribal Council for Saving Land Sacred to Both Tribes (Nov. 1, 2017).

The vote comes as a victory for parties that fought against the development for many years, including Navajo Nation President Russell Begaye, the Hopi Tribe, the Zuni Tribe, the National Park Service, the Grand Canyon Trust, and Save the Confluence, a grassroots coalition of local residents.  Proponents of the legislation cited the economic potential of the tourism operation “to create thousands of jobs and millions of dollars in annual revenue for the Navajo Nation” and to replace the Navajo Generating Station, a coal-fired power plant slated to close in 2019, as the economic driver of the regional economy.  But Navajo Nation Council delegates found the legislation one-sided in favor of the developers, citing the non-revocable nature of the license to operate the project, a covenant not to compete with businesses located at the site, and a required waiver of sovereign immunity by the Navajo Nation.  Press Release, 23rd Navajo Nation Council, Office of the Speaker, Navajo Nation Council Votes Down the Grand Canyon Escalade Project Bill (Oct. 31, 2017).

In the end, the Navajo Nation Council voted to disapprove the agreement despite several attempts to amend it.  The vote effectively ends the developers’ immediate hopes to build the resort and gondola; however, a new measure could be proposed after next year’s elections if more development-friendly officials are elected.  Interest in the undeveloped land will likely continue given its scenic location in the tourist-rich Grand Canyon region.  However, Save the Confluence, the Grand Canyon Trust, and other interested parties plan to continue the fight for permanent protection of the confluence area.


United States and Mexico agree to new plan for cooperative management of the Colorado River

Posted October 20, 2017

On September 27, the Governments of the United States (U.S.) and Mexico announced the signing of Minute No. 323, an addendum to the United States-Mexico Treaty on Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (1944 Water Treaty), which governs how the two nations cooperatively manage the Colorado River.  The agreement builds on and mostly supersedes Minute No. 319, a prior agreement from 2012.

The official report acknowledges “greater uncertainty in the outlook for basin conditions” and recognizes that these “changed conditions” necessitate “a clear need for continued and additional actions due to the impacts on Colorado River storage resulting from various factors, including meeting system demands, the effects of hydrologic conditions, and increased temperatures.”  The report applauds “the results achieved in the Minute 319 pilot program on water for the environment, in particular the pulse flow of 2014,” and commits additional resources to further environmental restoration projects.

The report acknowledges the “continued interest of both governments in cooperating with regards to the riparian and estuarine ecology of the Colorado River Limitrophe and Delta.”  To that end, the report “recommend[s] as a target an average annual volume of 45,000 acre-feet (55 mcm) and restoration funding of up to $40 million dollars over the term of the Minute . . . to maintain existing environmental restoration sites and to benefit other sites in the Colorado River Delta riparian corridor and estuary.”  The report also recommends expanding the existing 1,076 acres of restored native habitat to 4,300 acres.  Minute No. 323 establishes “a binational coalition of nongovernmental organizations (NGOs)” as part of the restoration team, and that coalition has pledged to provide an equivalent one-third portion of water and funding for environmental projects as compared to the two countries.  The report also establishes a Binational Environmental Work Group made up of federal and state representatives from the U.S. and Mexico, as well as representatives from the coalition of NGOs.

One of the most well-known features of Minute No. 319 was the 2014 “pulse flow,” which was designed to mimic historic spring floods on the Colorado River and involved a large release of water from Morelos Dam, located on the U.S.-Mexico border, which reunited the Colorado River with the Sea of Cortez for the first time in nearly fifteen years.  Minute No. 323, however, does not specifically mention any future pulse flow; although the report does include an increased amount of water set aside for restoration purposes.  According to High Country News, the timing and specific size of each release under Minute No. 323 is still to be decided and a second pulse flow is not out of the question. 

Minute No. 323 contains specific amounts of water to be delivered to Mexico, which varies depending on changing reservoir conditions.  The report acknowledges that “voluntary conservation measures [are] not sufficient to reduce the risk of temporary or prolonged interruptions in water supplies that would result in adverse impacts on the society, environment, and economy of the Colorado River system” and declares that the two countries “need to take additional immediate measures to protect and benefit the Colorado River system by seeking to avoid reaching critical reservoir elevations at Lake Mead.”  Accordingly, Minute No. 323 establishes a Binational Water Scarcity Contingency Plan, which “provides for each country to save specified volumes of water at certain low reservoir elevations for recovery at a later date when reservoir conditions improve.”  The report reasons that “[b]y saving agreed-upon amounts of water through this plan, [the two countries] will significantly reduce the risk of critically low reservoir elevations.”  The report also discusses Mexico’s concerns related to the salinity and the variable, inconsistent flow of water flowing across the border from the U.S.  The report reaffirms that both nations will cooperate to resolve such issue and proposes numerous solutions, including the establishment of a Binational Flow Variability Work Group.


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