Water Law Requirements Affecting Environmental Compliance and Remediation Activities
| Publication year | 1993 |
| Pages | 299 |
| Citation | Vol. 22 No. 2 Pg. 299 |
1993, February, Pg. 299. Water Law Requirements Affecting Environmental Compliance and Remediation Activities
Measures taken to comply with environmental law requirements often involve the withdrawal, use, treatment, partial consumption, discharge or disposal of water. Treatment of contaminated groundwater is the most common, but by no means the only, example of such measures. Unless the water involved in these activities is provided from a public water supply system, Colorado law governing water rights may impose often-overlooked requirements that preclude or significantly limit, delay or increase the cost of a proposed environmental compliance or remedial measure.
This article briefly describes several ways in which the principles and procedures of Colorado water law may impact environmental compliance and remediation activities. It also identifies potential means for addressing water law requirements. The article is intended primarily to assist attorneys facing environmental issues who do not regularly practice in the field of water law.
Colorado water law was succinctly described in a recent article in this column.(fn1) In a nutshell, even before statehood, Colorado law developed a system for allocating scarce water resources based on the "doctrine of prior appropriation." That doctrine encompasses three cardinal principles:
1) a water right is obtained by the act of diverting water and applying it to a beneficial use;
2) an earlier initiated, or "senior," water right is entitled to be fully satisfied in times or conditions of shortage---it need not share to help satisfy any later, or "junior," priority; and
3) a water right may be changed as long as no other water users are injuriously affected.(fn2)
The prior appropriation doctrine has expanded over the years to encompass and govern most water in Colorado, including all surface and underground water that is in or is hydraulically connected (or "tributary") to any natural stream within the state.(fn3)
The net effect of these principles is that no water right can be initiated, changed or exercised if, as a result, any vested water right would be materially injured in any way. This is problematic for any environmental compliance measure in Colorado requiring the use or treatment of water because every existing drop of water is usually spoken for, or "appropriated," in the streams and aquifers of most developed areas. Accordingly, even minor water consumption or change of use would almost certainly cause injury and be prohibited, unless one or more of the measures described below is also taken and approved.
Matters related to water rights in Colorado are primarily governed by the Water Right Determination and Administration Act of 1969 ("1969 Act").(fn4) Under the 1969 Act, all matters relating to water rights, including the adjudication of new water rights and the approval of changes of existing rights, must be heard by a designated water judge in a state district court, commonly called "Water Court."(fn5) A Water Court is located in each of the seven major river basins in the state. A new water right or change of water right is adjudicated by filing an application with the appropriate Water Court and receiving a decree from the water judge. The State Engineer's Office in the Division of Water Resources administers decreed water rights and grants permits for all water wells.(fn6)
The prior appropriation doctrine has evolved over time to encompass various activities that impact water resources but were not formerly considered a "beneficial use" of water, including environmental compliance measures. One illustration
To continue reading
Request your trial