What Is a Material Injury to a Water Right?
| Publication year | 1990 |
| Pages | 1233 |
| Citation | Vol. 19 No. 7 Pg. 1233 |
1990, July, Pg. 1233. What Is a Material Injury To a Water Right?
Some key phrases that occur repeatedly in natural resources statutes or case law are not defined by the statutes or cases that use the language. For example, many federal public land statutes make their provisions "subject to valid existing rights," yet do not explain what constitutes a "valid existing right."(fn1) Additionally, in western water law, courts have sanctioned the idea of a "duty of water" without describing how it should be quantified in practice.(fn2)
A similar undefined phrase found in several Colorado statutes is the prohibition against actions that cause "material injury" to the exercise of a water right. This statutory prohibition limits the State Engineer,(fn3) Division Engineers,(fn4) the Ground Water Commission,(fn5) water courts(fn6) and the Colorado Water Conservation Board.(fn7) It also protects existing water rights from other appropriators(fn8) and from the operation of the Arkansas River Recreation Act.(fn9)
This article considers the meaning of the "material injury" phrase as used in the Water Quality Act(fn10) to protect water rights from actions of the Colorado Water Quality Control Commission ("Commission") and Division ("Division").(fn11)
The Commission and Division are prevented by the Water Quality Act from doing anything that might "cause or result in material injury to water rights."-(fn12) This prohibition is undefined in the statute, and no one knows definitively whether there is a material injury if Commission or Division actions either (1) alter the quantity, timing or location of water available for use or (2) cost the appropriator money. It is not even clear if an appropriator's decision to hire an attorney or engineer to assess a possible material injury claim is, in itself, a material injury.
The Colorado legislature recently underscored its concern about material injury to water rights by requiring the Commission and Division to
consult with the State Engineer and the Water Conservation Board or their designees before making any decision or adopting any rule or policy which has the potential to cause material injury to water rights.(fn13)
This new statutory consultation requirement does not clarify what is meant by the concept of a material injury. Instead, it mandates an inter-agency consultation process, which has been more fully set out in Memoranda of Agreement ("MOAs") between the Commission, the Division, the State Engineer and the Water Conservation Board ("Conservation Board").(fn14) Pursuant to these MOAs, (1) the Commission and Division will "provide" to the State Engineer and Conservation Board any allegation or information regarding a material injury claim; (2) the State Engineer and Conservation Board will then, in writing, forward to the Commission or Division their "comments" on whether there has been a material injury; and (3) the Commission and Division will "take [these comments] into account" before taking any final action.
This process suggests that the meaning of the material injury concept will be decided initially by the State Engineer and Conservation Board. These two agencies will provide comments, which may be adopted without change by the Commission and Division, especially if the comment concludes that the proposed action will result in material injury. Over time, these comments by the State Engineer and Conservation Board and decisions by the Commissioners may form a kind of administrative common law of "material injury." However, the Commissioners may choose to adopt a different view. In light
of the well-established rule of judicial...
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