ELR Citation: ELR 21526
No(s). 91-M-2047 (D. Colo. Jun 5, 1996)

The court holds that municipal and quasi-municipal water providers and distributors lack standing to challenge a U.S. Environmental Protection Agency (EPA) veto of a Federal Water Pollution Control Act (FWPCA) §404 permit for the construction of the proposed Two Forks Dam on the South Platte River near Denver, Colorado. EPA vetoed the permit on the grounds that the project had unacceptable environmental impacts and that other practicable, less environmentally damaging alternatives to the Two Forks site existed. The court first finds that construction of the dam and reservoir depends on participation by the city of Denver, because Denver is the holder of the U.S. Department of the Interior right-of-way for a reservoir in the area and holds conditional water rights for more than 330,000 acre-feet of water on the South Platte River. But Denver has not joined in this lawsuit and plaintiffs have not submitted anything to indicate that Denver has any present interest in the project. The court thus holds that there would be no effective remedy even if the court invalidated the EPA veto and EPA reversed itself on reconsideration, because there is nothing in the record to show that any dam would actually be constructed at Two Forks. The court also notes, in dicta, that plaintiffs have not shown that EPA acted in excess of its statutory authority or made an arbitrary and capricious decision. EPA had the authority to base its veto decision on recreational and fishery conditions not related to water quality changes and considered all the relevant impacts in conducting its alternatives analysis; EPA did not interfere with state laws allocating quantities of water in violation of the Wallop Amendment to the FWPCA or deprive the municipalities of due process; and plaintiffs have not shown that EPA's decision that the project had unacceptable environmental impacts was arbitrary or capricious.

Counsel for Plaintiffs
Marcia M. Hughes
390 Union Blvd., Ste. 415, Lakewood CO 80228
(303) 980-8668

Counsel for Defendants
Gary S. Guzy, Michael Zevenbergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000