Amendments to the Colorado Water Quality Control Act
| Publication year | 1981 |
| Pages | 2758 |
1981, November, Pg. 2758. Amendments to the Colorado Water Quality Control Act
The lower owners were entitled to have the waters preserved in their purity, that fish might swim, that their stock might drink, and that the water might be applied to domestic uses.(fn1)
This established principle of common law was first recognized in Colorado law in 1897.(fn2) Since then, common law protection of water quality continued to develop and substantial statutory law has been adopted. In 1966, the Colorado legislature adopted the first comprehensive water quality control act,(fn3) which was extensively amended in 1973 ("1973 Act")(fn4) and again in 1981 ("1981 Act").(fn5)
The 1981 Act, better known as Senate Bill 10, became effective July 1, 1981, making extensive amendments to the 1973 Act. Many of these amendments affect practice in the areas of municipal and real estate law, as well as environmental and natural resources law. Perhaps the greatest impetus for change came from those who felt that the relationship between water quality regulation and water rights law should be clarified.(fn6)
In the past, many have perceived water quality regulation to be entirely separate from water rights. Logic and experience dictates, however, that the right to use water, the manner of allowed diversion and use and the quality of water discharged back to the stream must all be regulated for the state's water rights system to work. A water right is worth very little if the water received is so polluted that it cannot be applied to its intended beneficial use.
Proceedings before the Water Quality Control Commission ("Commission") are well attended by water attorneys who are representing their clients' concerns as to adequate regulation of water discharged upstream of them as well as the effects of water quality regulation on their own discharge of water. These attorneys are often joined by attorneys or officials from municipalities, special districts or homebuilder associations concerned about the implications and effects of plans, grants or other water quality decisions on the ability to construct new buildings and expand services.
This article first summarizes the development of water quality law in Colorado and then reviews the major changes made by the adoption of the amendments. Senate Bill 10 is complex and controversial. This article is intended only as a general overview and attorneys are cautioned to review the implications of the major amendments in detail.
Article XVI, Section 5, of the Colorado Constitution, establishes the basic premise
of water law in Colorado:
The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.
Section 6 further provides:
The right to divert the unappropriated water of any natural stream to beneficial uses shall never be denied.
The Colorado Supreme Court has held that implicit in these constitutional provisions is the notion that "there shall be maximum utilization of the water of this state."(fn7) Inherent in the concept of maximum utilization of "our most precious natural resource"(fn8) is the principle that water users do not have a right to discharge pollutants into the waters.
In 1897, the Colorado Court of Appeals ruled that water rights holders were "obligated to so use the water that subsequent locators might, like lower riparian owners, receive the balance of the stream unpolluted, and fit for the uses to which they might desire to put it."(fn9) The court reasoned that the common law rule will govern the discharge of pollutants because it
undoubtedly carries out the intention and the purpose of our constitutional provision which in general terms reserves to the people of the state the right to all the waters of its streams for the purposes to which the citizens may apply them.... It is ... quite consonant with the apparent purpose and declared will of the people to subject the rights of the appropriators of the public waters of the state to such limitations as shall tend not only to conserve the property interests which the appropriators may require, but to preserve the remaining unappropriated waters in their original condition for the use and benefit of late comers....(fn10)
applied by the Colorado courts in other cases involving pollution by mining or milling companies municipalities and even a state fish hatchery."(fn11) As set forth by the Supreme Court in Wilmore v. Chain O'Mines: "Whatever rights might be claimed by defendant owners, they cannot justify the claim of a right to pollute the waters of this natural stream."(fn12)The same general principle has been
Recently, the Colorado Supreme Court was asked to determine whether downstream users could establish a right to rely on a pollutant in the water. This is the reverse side of the question of the ability to rely on a certain quality of clean water. In A-B Cattle Co. v. United States,(fn13) the court determined that a water right holder does not acquire the right to receive and utilize pollutant constituents being carried in the stream even though a particular constituent may enhance the productivity or economic benefit of the water's application. Thus, the constitutional protection is for the water itself and not for silt, a constituent in that water.
With this decision, two main water pollution questions have been answered: no one has the right to rely on the ability to discharge pollutants, at least under the common law in Colorado, and no one has the right to rely on a pollutant in the water.
The major supplementation of common law by statutory law to protect water quality occurred with adoption of the Colorado Water Pollution Control Act of 1966.(fn14) This Act paralleled the Federal Water Quality Act of 1965,(fn15) which established a system based on identifying the uses on a stream and the levels of quality necessary to protect the uses. Since very few enforceable mechanisms were included with these water quality standards,(fn16) this approach did not work
well, resulting in substantial amendments a few years later.
Again in response to Congressional action, Colorado significantly amended its Water Quality Act in 1973.(fn17) In 1972, Congress adopted the Federal Water Pollution Control Act Amendments of 1972 ("Federal Act"),(fn18) which significantly changed the administrative focus for controlling water pollution. Paralleling the Federal Act, Colorado established a mandatory program requiring a permit for the discharge of pollutants from a point source. A point source is defined as "any discernible, confined and discrete conveyance," such as a pipe.(fn19) The discharge was to be subject to both nationally applicable conditions based upon a determination of technological treatment capability by a particular industry and whatever other conditions might be necessary to protect uses on a specific stream.
In addition, Colorado's 1973 Act, in § 25-8-205, gave the Commission authority to adopt regulations for various categories of activities including "non-point" sources of pollution. Such sources include urban run-off, silvicultural practices and a multitude of agricultural practices. Furthermore, § 25-8-702 provided that prior to construction of any domestic wastewater treatment facility or the expansion of such facility, approval must be received for its location and design. As noted below, this has had an impact on home building in Colorado.
Senate Bill 10 made seven primary changes to the Colorado Water Quality Control Act: (1) it amended the legislative declaration to reflect a more practical emphasis; (2) it imposed a requirement of consideration of economic effects by the
Amendments to the legislative declaration of the Act reflect the close tie established with water rights law and the concern that water quality decisions be made in the context of other societal concerns. Substantive change may have been made by the following new language:
(I)t is declared to be the policy of this state to prevent injury to beneficial uses made of state waters, to maximize the beneficial uses of water, and to develop waters to which Colorado and its...
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