2013 COA 111
Colo. Ct. App.2013Background
- SDS is a large municipal water delivery project in Colorado, including a 53-mile pipeline and reservoir work, intended to supply multiple communities.
- The Division issued a conditional 401 certification under the Clean Water Act, which the Coalition challenged by appealing to the Commission.
- The Commission affirmed the Division; the Coalition then challenged the Commission’s final action in district court, which reversed.
- The project underwent extensive NEPA review by the Bureau, with EPA input and mitigation commitments, culminating in a record of decision and final environmental impact statement.
- The Division conducted antidegradation reviews, imposed conditions, and harmonized with other agency requirements; the Army Corps issued a section 404 permit incorporating Division conditions.
- During judicial review, the district court identified alleged defects in public notice, antidegradation analysis, methodology, and potential TMDL/future-growth considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court misapply the standard of review? | Coalition; district court wrongly reweighed evidence and credibility. | Colorado Springs and Commission; district court should defer to agency on weight of evidence. | No; the district court erred; appellate review deferential, but the agency record supports the decision. |
| Were the public notices for the 401 certification compliant? | Coalition; notices were deficient under Reg. 82.5 and 21.16. | Colorado Springs/Commission; notices were sufficient and any errors were harmless. | Harmless error; notices were sufficient and no prejudice established. |
| Did the Division conduct valid antidegradation reviews and use appropriate methodology? | Coalition; antidegradation reviews were inadequate or improperly documented. | Division conducted antidegradation reviews with reasonable methodology; written format not required. | Substantial evidence supports the Division's reviews and qualitative approach given no point-source discharge. |
| Is a TMDL required as a prerequisite to a 401 certification for SDS? | Coalition; TMDLs must be developed before certification. | Certification stands independent of TMDLs for non-point-source or non-discharge scenarios. | TMDLs not required for this 401 certification. |
| Did the Division have to consider future population growth in the 401 review? | Coalition; growth impacts should influence certification. | Regulations do not require consideration of future growth. | No requirement to assess future population growth in this context. |
Key Cases Cited
- Lobato v. State, 218 P.3d 358 (Colo.2009) (standing where another party has standing)
- In re Title for 1999-2000 No. 215, 3 P.3d 11 (Colo.2000) (avoid addressing overlapping standing when others have it)
- Schlapp v. Colo. Dep't of Health Care Policy & Fin., 2012 COA 105 (Colo.App.2012) (applies standard of review for administrative decisions)
- E.R. Southtech, Ltd. v. Arapahoe Cnty. Bd. of Equalization, 972 P.2d 1057 (Colo.App.1998) (substantial evidence standard; agency decision sustained if supported by record)
- Craddock v. El Paso Cnty. Bd. of Equalization, 850 P.2d 702 (Colo.1993) (deferring to agency interpretations of regulations when expertise involved)
- Port of Seattle v. Pollution Control Hrg Bd., 90 P.3d 659 (Wash. 2004) (reasonableness of agency's approach when high technical expertise involved)
- Friends of Pinto Creek v. U.S. E.P.A., 504 F.3d 1007 (9th Cir.2007) (distinguishes TMDL requirements from section 401 certification context)