Chostner v. Colo. Water Quality Control Comm'n

• Decision Date: 18 July 2013
• Docket Number: Court of Appeals No. 12CA1117,Court of Appeals No. 12CA1116
• Citation: 2013 COA 111
• Parties: Jeff Chostner, in his official capacity as District Attorney for the Tenth Judicial District, Colorado; Office of the District Attorney for the Tenth Judicial District, Colorado; and Rocky Mountain Environment and Labor Coalition, Plaintiffs-Appellees, v. Colorado Water Quality Control Commission; Steven H. Gunderson, in his official capacity as the Director of the Colorado Water Quality Control Division of the Colorado Department of Public Health and Environment; and Colorado Springs Utilities, Defendants-Appellants.
• Court: Colorado Court of Appeals

2013 COA 111

Jeff Chostner, in his official capacity as District Attorney for the Tenth Judicial District, Colorado;

Office of the District Attorney for the Tenth Judicial District, Colorado;

and Rocky Mountain Environment and Labor Coalition, Plaintiffs-Appellees,

v.Colorado Water Quality Control Commission;

Steven H. Gunderson, in his official capacity as the Director of the Colorado Water Quality

Control Division of the Colorado Department of Public Health and Environment;

and Colorado Springs Utilities, Defendants-Appellants.

Court of Appeals No. 12CA1116

Court of Appeals No. 12CA1117

COLORADO COURT OF APPEALS

Announced July 18, 2013

Pueblo County District Court No. 11CV174

Honorable Victor I. Reyes, Judge

JUDGMENT REVERSED

Division II

Opinion by JUDGE DUNN

Casebolt and Lichtenstein, JJ., concur

John Barth, Hygiene, Colorado, for Plaintiffs-Appellees

John W. Suthers, Attorney General, Jerry W. Goad, First Assistant Attorney General, Annette M. Quill, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellants Colorado Water Quality Control Commission and Steven H. Gunderson

Hill & Robbins, P.C., David W. Robbins, Jennifer H. Hunt, Nathan P. Flynn, Denver, Colorado, for Defendant-Appellant Colorado Springs Utilities

¶1 The regulation of water quality in Colorado is the domain of the Colorado Water Quality Control Commission (Commission) and the Water Quality Control Division (Division).

¶2 These consolidated appeals arise from a decision of the Division to conditionally certify a municipal water delivery project under section 401 of the federal Clean Water Act, 33 U.S.C. § 1341(a)(1) (2006). The District Attorney for the Tenth Judicial District, the Office of the District Attorney for the Tenth Judicial District, and the Rocky Mountain Environment and Labor Coalition (collectively, the Coalition) appealed the Division’s 401 certification to the Commission.¹

¶3 The Commission affirmed the Division’s conditional certification. The Coalition then appealed the Commission’s decision to the district court. The district court reversed the Commission’s final agency action.

¶4 The Commission; Steven H. Gunderson, in his official capacity as the Director of the Division; and Colorado Springs Utilities (Colorado Springs), appeal the district court’s judgment.² We reverse.

I. Background A. The Southern Delivery System

¶5 The Southern Delivery System (SDS) is a municipal water delivery project involving the construction of a fifty-three-mile pipeline. The pipeline will transport raw water from the Pueblo Reservoir, through Pueblo County, and into El Paso County. The SDS also involves modifying an existing ditch and constructing the Upper and Lower Williams Creek Reservoirs. The SDS is intended to provide a reliable, future water supply to the City of Colorado Springs, the City of Fountain, the Security Water District, and the Pueblo West Metropolitan District. Given its scope and magnitude, the SDS is the most expansive project reviewed by the Division in several decades.

¶6 The SDS is expected to impact the Arkansas River from below the Pueblo Reservoir to an area near the confluence with the Apishapa River. The project is also expected to impact Fountain Creek from the City of Colorado Springs to the confluence with the Arkansas River at Pueblo.³ Possible long-term impacts are predicted to result from changing stream flows. In addition, possible groundwater impacts may result from the construction of the Lower Williams Creek Reservoir. Impacts from the construction phase of the SDS, however, are expected to be minimal and short-term.

B. Environmental Reviews

¶7 Because operation of the SDS involves federal contracts with the United States Bureau of Reclamation (Bureau), the project was required to go through an extensive environmental review, including analysis of potential water quality impacts, under the National Environmental Policy Act (NEPA). During its NEPA review, the Bureau conducted water quality analyses, received nearly 400 public comments on a variety of topics, imposed numerous mitigation measures and conditions on the SDS, and required the participants to develop adaptive management practices. The Bureau conducted its review over a five-year period, resulting first in a draft environmental impact statement. After receiving comments from the United States Environmental Protection Agency (EPA), in which the EPA indicated concerns about the configuration of the SDS and a lack of mitigation commitments to offset potential water quality impacts, the Bureau requested changes to the SDS configuration and then issued a supplemental information report. That report analyzed the changed configuration and incorporated a revised water quality assessment methodology suggested by the EPA.

¶8 As part of its review, the Bureau considered seven different alternatives for supplying the participant communities’ future water needs, including the SDS. Of the alternatives studied, six were “action” alternatives and one was a “no action” alternative. The latter served “as a benchmark against which effects of the other alternatives [were] compared.” The no action alternative represented the most likely future action in the absence of a major federal water development project.

¶9 After reviewing the seven alternatives, the Bureau ultimately identified the SDS as the “environmentally preferred alternative” because, in comparison to the other six alternatives, it would cause “the least damage to the biological and physical environment.” After the Bureau published its final environmental impact statement, the EPA stated that it was “satisfied with the detailed mitigation commitments . . . to offset the water quality impacts that are projected to result from [the] SDS.”

¶10 A record of decision documented the Bureau’s entire NEPA review process.

C. Permitting

¶11 In order to construct the SDS, Colorado Springs was required to obtain many federal, state, and local permits. Included among the required permits was a dredge and fill permit from the Army Corps of Engineers under section 404 of the Clean Water Act, 33 U.S.C. § 1344 (2006). In order to obtain a section 404 permit, however, Colorado Springs needed a certification from the state under section 401 of the Clean Water Act. The 401 certification constitutes the state’s finding that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards. See 33 U.S.C. § 1341(a)(1); 40 C.F.R. § 121.2(a)(3) (2012).

D. The Section 401 Certification Process

¶12 Colorado Springs – on behalf of all of the SDS participants – submitted an application to the Division, seeking a 401 certification. The Division issued a preliminary determination, concluding that the SDS could cause “potential long-term water quality impacts associated with flow changes” in the Arkansas River. In conjunction with this preliminary determination, the Division solicited public comments regarding the SDS.

¶13 The Division reviewed the public comments, including those submitted by the Coalition. It requested that Colorado Springs address issues raised by the public comments. The Division then engaged in a year-long review of the project. Specifically, the Division conducted antidegradation reviews of certain reviewable stream segments, and considered a host of conditions and mitigation requirements imposed on the project by federal, state, and local agencies. In particular, the Division analyzed the Bureau’s final environmental impact statement, record of decision, and associated reference materials; Pueblo County’s mitigation requirements; and other agencies’ mitigation plans.

¶14 The Division ultimately concluded that, given the short-term impacts of the construction activities, and the numerous conditions and mitigation measures imposed by other agencies, “the project [would] comply with all applicable provisions [of] the Basic Standards for Surface Waters, the Basic Standards for Ground Water, surface and ground water classifications and water quality standards, effluent limitations[,] and control regulations.” Accordingly, the Division conditionally certified the SDS under section 401 of the Clean Water Act.

¶15 The 401 certification specifically imposed a number of conditions on the SDS, including (1) the development of an adaptive management program, (2) all conditions “placed on the SDS . . . by other applicable regulatory agencies,” (3) flow maintenance plans to minimize water quality impacts due to potential reduced flows in the Arkansas River, and (4) the installation of groundwater monitoring wells both up and downstream of the new Williams Creek Reservoirs. The certification also requires water quality sampling and data collection, as well as reporting measures.

¶16 After the Division issued its conditional 401 certification, the Army Corps of Engineers issued the section 404 dredge and fill permit, incorporating all of the Division’s conditions as enforceable provisions of the section 404 permit.

E. The Administrative Appeal

¶17 The Coalition appealed the Division’s 401 certification to the Commission. At an adjudicatory hearing, the Coalition asserted that the Division’s certification was arbitrary, not in accord with its own procedures, unsupported by the record, and otherwise contrary to law.

¶18 After the hearing, the Commission issued a written order affirming the Division’s 401 certification. The Commission found that the Coalition “ha[d] not met [its] burden to prove that the Division’s conditional . . . 401 certification for the SDS . . . does not meet the federal standard of providing ‘reasonable assurance’ that the activity will be conducted in a manner which will not violate applicable water quality standards.”

F. Judicial Review

¶19 The Coalition sought judicial review of the Commission’s final agency action under section 24-4-106(4), C.R.S. 2012. After the parties submitted briefing, the district court invited...