Colorado River Pact Ensures Water, Power Delivery

Interior Secretary Gale Norton recently signed an agreement with representatives of Arizona, Nevada and California to protect wildlife and native species along the Colorado River. The Lower Colorado River Multi-Species Conservation Memorandum of Agreement stipulates $625 million over 50 years to protect rare fish and wildlife along a 300-mile section of the Colorado River from Lake Mead to Mexico.

The environmental protection plan was needed to avert possible water delivery delays and hydropower cutbacks that affect major water purveyors in California, Arizona and Nevada. The agreement is to ensure that habitat is protected while guaranteeing sufficient Colorado River supplies to meet the needs of the major water purveyors and to maintain power generation. The river provides water and power to 20 million people in the three states.

The agreement is the result of an eight-year effort to work out a broad conservation plan for the Lower Colorado River. The plan will create 8,100 acres of riparian, marsh and backwater habitat for 27 species of fish, birds, mammals, reptiles and plants including some endangered species. These include the southwestern willow flycatcher and several native fish, such as the bonytail and humpback chubs and the razorback sucker.

The plan has the distinction of being the largest river habitat project ever proposed under the Endangered Species Act.

Work on the plan began in response to concerns that the U.S. Fish and Wildlife Service’s 1994 designation of critical habitat for four endangered fish species could adversely affect power and water resources in the Lower Colorado River. The critical habitat designation imposes certain restrictions on federal activities in the designated area.

Officials say the agreement ensures ESA compliance for the three states over the next 50 years, in the face of existing and future Colorado River water transfers, potential drought and shortage river management operations, and hydropower operations. With efforts to share and relieve shortages of the drought-struck Colorado River intensifying, varied water management strategies will likely be implemented. Officials say having a broad recovery plan in place could help certain decisions withstand possible court challenges based on environmental concerns.

The agreement includes cost-sharing provisions. The Interior Department will pay half the $625 million cost, with the Metropolitan Water District of Southern California paying $150 million, and Arizona and Nevada paying roughly $77.5 million each. Arizona’s share will likely come from users of the Colorado River, increased water bills and added costs for fishing licenses or river trips. The Central Arizona Water Conservation District will make the initial Arizona payments, with later installments expected to be covered by other water providers and state agencies.

With the funding worked out, federal and state officials hope the conservation plan can be adopted by early January.

The plan is not to everyone’s liking. Some environmentalists question whether the proposed fish and wildlife recovery plan will in fact restore populations decimated by dams and extensive water diversions along the Colorado River. They say, for example, that rather than preserving wild river runs the plan calls for releasing hatchery-produced fish into the river. Some also question whether healthy habitat will take root in the damaged environment.

U.S. Supreme Court Debates Right to Sue for Cleanup Costs

The U.S. Supreme Court recently considered a case with significant implications to communities with toxic sites from abandoned plants, landfills and mines. The issue at hand is whether a company that voluntarily undertakes cleanup of its polluted site can sue former owners of the land to help with the costs.

The usual course of action would be to wait for the Environmental Protection Agency to designate a highly polluted area as a Superfund site. Officials could then contact current and former owners of the site for funds to help pay clean-up costs.

The justices are being asked whether owners of properties that the government has not yet identified as a polluted site can look to the Superfund law to allow them to sue former owners to share clean-up costs. In effect, a landowner could take the initiative in contacting responsible parties without having to wait for EPA to act, an event that might be a long while in coming.

The case involves Aviall Services Inc. suing Cooper Industries, a former owner of land now owned by Aviall, for $5 million for pollution clean-up costs. Aviall lawyers argue that a delay caused by waiting for government action could have serious consequences since the pollution is a threat to a nearby lake and groundwater.

Cooper’s lawyers argue that government involvement is necessary to ensure proper and thorough cleanup of the site.

The Bush administration position is that companies can take the initiative to clean up sites but must consult with government officials in advance to ensure that the job is done properly.

The 5th U.S. Circuit Court of Appeals in New Orleans ruled that Aviall could sue. The court also stated, however, that “reasonable minds can differ over” the wording of the Superfund law.

The Supreme Court Justices also appeared to be troubled by the law’s wording. Justice Sandra Day O’Connor said the section of the law at issue in the case did not seem to permit such lawsuits, although other sections of the Superfund law might be interpreted to allow the action. A Supreme Court decision in this case then may not resolve the issue.

Arizona is among the 23 states requesting the high court to uphold the lower court decision.
The case is Cooper Industries Inc. v. Aviall Services, Inc., 02-1192.

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