Quality Versus Quantity: the Continued Right to Appropriate-part I
| Publication year | 1986 |
| Pages | 1035 |
1986, June, Pg. 1035. Quality Versus Quantity: The Continued Right to Appropriate-Part I
Anyone familiar with the Colorado water appropriation system is aware that the Colorado Constitution bestows upon diverters a seemingly unrestricted right to appropriate.(fn1) However, as early as 1897, this right was conditioned upon protection from pollution of the remaining water flows so as to reserve their utility for subsequent users.(fn2) A priority to the use of water is a property right, and any damage thereto, whether by an individual or an agency of the state, is actionable.(fn3)
Traditional notions of water degradation have more recently been addressed by specific statutory enactments---in particular, the Federal Water Pollution Control Act and the Colorado Water Quality Control Act.(fn4) These statutory provisions, along with traditional tort theories,(fn5) have provided some measure of redress for the more commonplace pollution episodes. However, what remains to be addressed is the problem which arises when the simple fact of withdrawal of water creates an unacceptable water quality condition. The construction of transbasin diversions, the implementation of more fully consumptive uses, and the development of environmental values allegedly dependent upon near bank-full conditions have served to propel this dilemma to the forefront.
Part I of this article explains in more detail the sources of this friction. Part II, which will be published in the July issue, will discuss related federal enactments and some tentative solutions that could alleviate the problem.
When water is appropriated and diverted from a stream without adequate return flows to replenish it, water quality problems may arise if the water withdrawn has traditionally served to mask pollutant concentrations. The removal of dilution flows may leave behind unacceptably high concentrations of metals or other contaminants. Thus, the water may be unfit for municipal or domestic use by exceeding safe drinking water standards,(fn6) or it may be ill-suited for agricultural use or livestock watering. Although the Colorado legislature has addressed this problem relative to the provision of substitute supplies and augmentation waters,(fn7) the Colorado courts have not yet had the opportunity squarely to confront the dilution dilemma from a strictly prior appropriation perspective.
In Mt. Emmons Mining Co. v. Town of Crested Butte,(fn8) the plaintiff challenged on summary judgment the validity of a municipal ordinance designed to protect the integrity of Crested Butte's water supply. The ordinance was ostensibly based upon the provisions of CRS § 31-50-707(1)(b), which grants authority to a home rule city to protect its water works from injury. This is accomplished by extending the municipality's jurisdiction to include the territory occupied by its water works, as well as the stream or source from which water is taken for five miles above the point from which it is taken. The plaintiff's argument was premised in part upon the assertion that the ordinance ". . . unlawfully impaired AMAX'S right to appropriate water and thus violated Article XVI, Sections 5 and 6 of the Colorado Constitution."(fn9)
The district court ruled in favor of AMAX, but the Supreme Court was of the opinion that there was an inadequate factual basis for summary judgment and remanded the action to the district court. However, the Supreme Court did state in passing:
We also note that the ordinance does not purport to control the appropriation of water rights, but only deals with water pollution control measures incident to various activities within the watershed permit district. Nothing in the record warrants...
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