Assault on the Citadel, Part Ii: Dams, Diversions and Water Quality Regulations

• Publication year: 1988
• Pages: 2003
• Citation: Vol. 17 No. 10 Pg. 2003

17 Colo.Law. 2003 Colorado Lawyer 1988.

1988, October, Pg. 2003. Assault on the Citadel, Part II: Dams, Diversions and Water Quality Regulations

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2003

Vol. 17, No. 10, Pg. 2003

Assault on the Citadel, Part II: Dams, Diversions and Water Quality Regulations

by Jan G. Laitos

This is the second part of a two-part article. Part I, which was published in the July 1988 issue at page 1305, discussed how appropriators have a right to a degree of water quality unimpaired by the actions of upstream appropriators. It also reviewed the authority of local governments and the Colorado Water Quality Control Commission ("Commission") to impose regulations that have an impact on the exercise of valid water rights. Part II should be read in conjunction with Part I.

This article focuses on the scope of the Commission's regulation of the exercise of water rights involving two types of hydrologic modifications---dams and transbasin diversions---given the statutory limitations on the Commission's power to interfere with valid water rights.

Indirect Regulation

Because the Colorado legislature has exempted from Commission classification and water quality standards all water in "manmade conveyance structures" and because the legislature has excluded dams and diversions from direct regulation as "point source discharges,"(fn1) the Commission is limited to more indirect forms of regulation. The three remaining statutory "hooks" that allow the Commission to address the water quality impacts of these two hydrologic modifications are:

1) the Commission's responsibility to certify, pursuant to § 401 of the Federal Clean Water Act ("Federal Act"), that certain dams and diversions do not violate state water quality standards;(fn2)

2) the Commission's statutory ability to issue control regulations directed at the water quality impacts of diversions and "discharges" from dams;(fn3) and

3) the Commission's authority to approve regional § 208 Plans.(fn4)

The Commission's powers in these areas, however, are expressly limited by § 104 of the Colorado Water Quality Control Act ("Colorado Act"), discussed later in this article.(fn5) Interpretation of § 104 will ultimately establish how far the Commission may go in protecting water quality threatened by dams and diversions.

401 Certifications, Control Regulations and § 104

401 Certifications and Control Regulations

Section 401 certification is triggered when a water storage or diversion structure requires a 404 permit under the Federal Act. Because state 401 certification ensures protection of water quality from all the effects of these projects,(fn6) it has become the primary vehicle for Commission regulation of the non-discharge water quality impacts of dams and diversions.

In Colorado, the Commission obtains jurisdiction over the construction and operation of these hydrologic modifications when the Water Quality Control Division ("Division"), pursuant to Commission rule, imposes requirements on a project as a condition to state 401 certification.(fn7) This certification process may include a more intensive level of scrutiny when the project necessitates anti-degradation review and possible adoption of less degrading alternatives.(fn8)

The Commission's statutory authority also permits it to adopt control regulations ensuring that water quality standards are protected from the effects of diversions and discharges from dams.(fn9) This authority can be exercised with respect to any dam or diversion and, in theory, can address the non-discharge effects of a diversion.

Under Colorado law, water rights exercised as dams or diversions can be affected by either water quality conditions imposed to obtain state 401 certification or control regulations issued to protect water quality standards. A recent example was the Commission's January 22,

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2004

1988, adoption of an emergency control regulation governing the release of highly saline water from Cheraw Lake in Otero County. While at the time of that decision there were no adjudicated water rights to this water, different circumstances could have squarely presented the quality-quantity conflict that will be refereed by the limits found in § 104 of the Colorado Act

Section 104

Section 104 provides in pertinent part: No provision of this article shall be interpreted so as to supersede, abrogate, or impair rights to divert water and apply water to beneficial uses. . . . Nothing in this article shall be construed . . . so as to cause or result in material injury to water rights. . . . Nothing in this article shall be construed to allow the Commission or the Division to require minimum stream flows. . . .

The question for water lawyers, the state attorney general's office, and Colorado courts is...