Lower Arkansas Valley Water Conservancy v. U.S.

• Decision Date: 25 September 2008
• Docket Number: Civil Action No. 07-cv-02244-EWN-MEH.
• Citation: Lower Arkansas Valley Water Conservancy v. U.S., 578 F.Supp.2d 1315 (D. Colo. 2008)
• Parties: LOWER ARKANSAS VALLEY WATER CONSERVANCY DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado, Plaintiff, v. UNITED STATES of America; Dirk Kempthone, Secretary of the Interior, in his official capacity; Robert W. Johnson, Commissioner, Bureau of Reclamation, in his official capacity; Michael J. Ryan, Regional Director, Bureau of Reclamation, in his official capacity; and U.S. Bureau of Reclamation, a federal agency, Defendants, and City of Aurora, Defendant-Intervenor.
• Court: U.S. District Court — District of Colorado

578 F.Supp.2d 1315

LOWER ARKANSAS VALLEY WATER CONSERVANCY DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado, Plaintiff, v. UNITED STATES of America; Dirk Kempthone, Secretary of the Interior, in his official capacity; Robert W. Johnson, Commissioner, Bureau of Reclamation, in his official capacity; Michael J. Ryan, Regional Director, Bureau of Reclamation, in his official capacity; and U.S. Bureau of Reclamation, a federal agency, Defendants, and City of Aurora, Defendant-Intervenor.

Civil Action No. 07-cv-02244-EWN-MEH.

United States District Court, D. Colorado.

September 25, 2008.

Peter David Nichols, Gabriel Racz, Trout, Raley, Montano, Witwer & Freeman, P.C., Denver, CO, for Plaintiff.

James J. Dubois, U.S. Department of Justice-Co-Environmental Enforcement, Denver, CO, for Defendants.

Stuart Leslie Somach, Somach, Simmons & Dunn, PC, Sacramento, CA, for Defendant-Intervenor.

ORDER AND MEMORANDUM OF DECISION

EDWARD W. NOTTINGHAM, Chief Judge.

Plaintiff Lower Arkansas Valley Water Conservancy District seeks declaratory and injunctive relief in this action invalidating a contract between the United States of America and the other above-captioned federal defendants (collectively the "United States") and Defendant-Intervenor City of Aurora ("Aurora") permitting Aurora to store water in Pueblo Reservoir, a facility of the Fryingpan-Arkansas ("Fry-Ark") Project. This matter comes before the court on "United States of America's Motion to Dismiss" and "The City of Aurora's Motion to Dismiss," both filed on January 14, 2008. Jurisdiction is purportedly proper pursuant to the existence of a federal question under 28 U.S.C. § 1331.

FACTS

1. Factual Background

In this action, Plaintiff seeks to invalidate a contract (the "Contract") between the United States and Aurora (collectively "Defendants") permitting Aurora to store water in a facility of the Fry-Ark Project on the grounds that the United States lacked statutory authority to enter into this Contract, and the United States violated various environmental statutes and regulations in so doing. (See generally First Mot. to Amend Compl. for Declaratory and Inj. Relief [filed Mar. 24, 2008], Ex. 3 [Amend. Compl.] [hereinafter "Am. Compl."].)¹ Defendants move to dismiss Plaintiff's complaint for lack of constitutional and prudential standing, unreviewability of certain claims, and failure to state certain claims. (See Mem. in Supp. of United States of America's Mot. to Dismiss [filed Jan. 14, 2008] [hereinafter "United States' Br."]; Mem. of Points and Authorities in Supp. of City of Aurora's Mot. to Dismiss [filed Jan. 14, 2008] [hereinafter "Aurora's Br."].) The following facts relevant to Defendants' motions are taken from Plaintiff's first amended complaint and presumed true for the purposes of this motion.

a. Fry-Ark Project

The Fry-Ark Project is a transmountain diversion project authorized by Congress for the purpose of diverting water from the Fryingpan River and other tributaries of the Roaring Fork River on the west side of the Continental Divide for use in the water-short Arkansas River basin on the east side of the Continental Divide. (Am. Compl. ¶¶ 1, 29.) More specifically, the Fry-Ark Project is a reservoir project planned, surveyed, and constructed by the Bureau of Reclamation ("Reclamation"), as authorized by the Reclamation Act of 1902 as amended, and the Fryingpan-Arkansas Authorization Act of 1962. (Id. ¶¶ 2, 28.) Federal Reclamation law, including the 1902 and 1962 Acts, govern the Secretary of the Interior's construction, operation, and maintenance of the Fry-Ark Project. (Id. ¶ 28.)

There are five dams and reservoirs in the Fry-Ark Project. (Id. ¶ 29.) Ruedi Dam and Reservoir on the Fryingpan River is the only facility on the western slope; the other four facilities are on the eastern slope. (Id.) Sugar Loaf Dam and Turquoise Lake, Mt. Elbert Forebay Dam and Reservoir, and Twin Lakes Dam and Reservoir are all in the upper Arkansas River watershed. (Id.) Pueblo Dam and Reservoir, the largest facility in the project, is downstream from all the others on the Arkansas River. (Id.) Since the Fry-Ark Project first delivered water to the Arkansas River basin in 1975, it has delivered an average of about 55,000 acre-feet per year from the Colorado River basin to the Arkansas River basin for use by agricultural and municipal interests there. (Id.)

The City of Aurora is not within the natural drainage basin of the Arkansas River, and is not within the area benefitted by the Fry-Ark Project. (Id. ¶ 30.)

b. Lower Arkansas Valley Water Conservancy District

Plaintiff, created in 2002 by election, is a quasi-municipal corporation and political subdivision of the State of Colorado organized pursuant to the laws of the state. (Id. ¶ 9.) Plaintiff encompasses Pueblo, Crowley, Otero, Prowers, and Bent counties, all of which are entirely within the natural drainage basin of the Arkansas River, (Id. ¶¶ 9-10.) Plaintiff was "established for the purposes of conservation of the water resources within the [boundaries of the Lower Arkansas Valley Water Conservancy District (`Lower District')], for their greatest beneficial use, and for other matters authorized under the Water Conservancy Act." (Id. ¶ 10.) Plaintiff's mission is to "acquire, retain and conserve water flowing in the Arkansas River and its tributaries; to insure that all water will remain in the valley for the socio-economic benefit of the District citizens; and to participate in water-related projects that will embody thoughtful conservation, responsible growth, and beneficial water usage within the Lower Arkansas Valley." (Id. ¶ 12.) Plaintiff levies and collects property taxes from real property owners in the counties it encompasses on an annual basis. (Id. ¶ 13.)

Plaintiff asserts standing in this matter based upon alleged injuries to both itself and its constituent water users, taxpayers, and inhabitants allegedly caused by the Contract. (See generally Resp. to Mots, to Dismiss Filed by the Federal Defs. and the City of Aurora at 14, 20-24 [filed Mar. 24, 2008] [hereinafter "Pl.'s Resp."].) I first describe Plaintiff's alleged direct and associational interests in Arkansas River and Fry-Ark Project water before discussing the Contract and the alleged injuries Plaintiff claims flow therefrom. As used throughout this order, "Arkansas River water" refers to all water in the Arkansas River regardless of source, "Fry-Ark Project water" refers to all water in the Arkansas River that is diverted from the western slope under the Fry-Ark Project, and "non-project water" refers to Arkansas River water that is native, non-Fry-Ark Project water.

i. Plaintiff's Direct Interests in Arkansas River and Fry-Ark Project Water

Plaintiff has signed a letter of intent to lease water to the Pikes Peak Regional Water Authority ("PPRWA"), which is located outside the boundaries of the Southeastern Colorado Water Conservancy District ("SECWCD"), another water district relevant to the Contract and discussed below. (See id. ¶ 16.) Plaintiff is engaged in similar discussions with other water users who lie outside the boundaries of the SECWCD. (Id.) To lease water under these prospective agreements, Plaintiff will need to enter into storage and exchange contracts with the United States relating to the exchange and diversion of water within the reach of the Arkansas River from Turquoise Lake to Pueblo Reservoir. (Id.)

Plaintiff also owns water rights, including shares in various ditch and canal companies, within the natural drainage basin of the Arkansas River, making it a beneficiary of the Fry-Ark Project eligible to receive Fry-Ark Project water. (Id. ¶ 15.) Plaintiff uses water from its decreed water rights and Fry-Ark Project water for irrigated agriculture and has continuously used Fry-Ark Project water since approximately 2004 for uses such as farming and ranching. (Id.) Some of Plaintiff's water rights are junior to Aurora's water rights in Arkansas River basin water. (Id.)

ii. Plaintiff's Associational Interests in Arkansas River and Fry-Ark Project Water

In addition to its direct interests in Arkansas River and Fry-Ark Project water, Plaintiff represents water users and other constituents, inhabitants, and taxpayers of the Lower District who are both beneficiaries of the Fry-Ark Project and users of Arkansas River water. (See id. ¶¶ 3, 15.) Such water users, constituents, inhabitants, and taxpayers realize economic, social, and environmental benefits from Fry-Ark Project and Arkansas River water, including: (1) agricultural and economic output from irrigated lands; (2) living in socially diverse rural agricultural communities; (3) enjoying the aesthetics of water flowing in the Arkansas River and the vegetation and wildlife along its banks; and (4) engaging in water-related recreational activities such as observing wildlife, hunting, and fishing. (Id. ¶ 15.)

Like Plaintiff, some of the Lower District's water users own water rights within the natural drainage basin of the Arkansas River, making them beneficiaries of the Fry-Ark Project eligible to receive Fry-Ark Project water. (Id. ¶ 15.) Some of these water users have continuously used Fry-Ark Project water since project deliveries began in 1972 and rely on such water for farming and ranching. (Id.) Moreover, some of these users' water rights are also junior to water rights Aurora owns in the Arkansas River basin. (Id.)

c. The Contract

In September 2007, The United States and Aurora signed the Contract allowing Aurora to use Fry-Ark Project facilities to store and exchange Arkansas River basin water for export to the South Platte River basin. (Id. ¶ 4.) Aurora is located within the natural drainage basin of the South Platte River, entirely outside of the boundaries of the natural drainage basin of the Arkansas River, and thus outside of the boundaries of the Fry-Ark Project or service area. (Id. ¶ 42....