Water Rights and Water Quality: Recent Developments
| Publication year | 1994 |
| Pages | 2343 |
| Citation | Vol. 23 No. 10 Pg. 2343 |
1994, October, Pg. 2343. Water Rights and Water Quality: Recent Developments
The U.S. and Colorado Supreme Courts have recently decided several cases that dramatically affect the potential conflict between water rights and water quality in Colorado. This article discusses the impact these cases may have on the water rights-water quality debate.
In Colorado, a water right allows the appropriator to withdraw for use a fixed quantity of water from a natural waterbody. This is among the most valuable and protected of property rights in this state.(fn1) Even the Colorado Constitution specifically declares that the right to store and divert water shall never be denied. Juxtaposed against this formidable property right is the Federal Clean Water Act ("Federal Act"),(fn2) which demands that both the federal Environmental Protection Agency ("EPA") and the state of Colorado attain and maintain a high degree of water quality. When federal or state water quality rules affect the exercise of a Colorado water right, a water rights-water quality conflict is inevitable.
This conflict seems most likely in one particular factual context: when a hydrologic modification (that is, a dam or diversion) pursuant to a valid Colorado water right has the potential to degrade water quality or interfere with designated uses of water. To prevent such an adverse water quality impact, Colorado or the EPA might theoretically seek to require the developer of the hydrologic modification (the owner of the water right) to guarantee a certain quantity of water in the waterbody affected by the modification.
This guarantee typically takes the form of a minimum stream flow requirement, which ensures that there will be adequate water for aquatic life to survive, despite the presence of a hydrologic modification that takes water from a watercourse. If the modification adds water to a waterbody (such as when a transbasin diversion takes water from one basin and puts it into another), there may even be a need for a maximum stream flow requirement. This might occur, for example, if designated recreational uses of the receiving waters would be harmed by the addition of too much water.
Either a minimum or maximum stream flow requirement might preclude the diversion of the full appropriated amount of water from a watercourse. This would conflict with the basic legal nature of a Colorado water right, which traditionally functions by permitting water depletions from one source or additions of water to another.
If Colorado or the EPA were to contemplate affixing flow conditions on the exercise of a water right, both the Federal Act and the Takings Clause of the U.S. and Colorado Constitutions(fn3) stand as potential barriers. The Federal Act establishes a policy that seems to immunize state-acknowledged water rights from water quality restrictions.(fn4) The Takings Clauses of the federal and state constitutions arguably restrict the ability of governments to "take" a water right by limiting the quantity of water available to appropriators.
Recently, the U.S. Supreme Court decided two cases that shed significant light on the potential role of the Federal Act and the federal Takings Clause as limitations on water quality rules that affect water rights. The first of these cases---PUD No. 1 of Jefferson County v. Washington Department of Ecology(fn5)---holds that minimum flow conditions are in some circumstances appropriate requirements under the Federal Act. The second case---Dolan v. City of Tigard(fn6)---establishes the test that must be satisfied under the Takings Clause before a government may impose requirements (such as a minimum stream flow otherwise subject to appropriation) as a condition to its approval of private party action.
In addition, in Central Colorado Water Conservancy District v. Simpson,(fn7) the Colorado Supreme Court concluded that the state Takings Clause was not violated by a statute that decreased the amount of water in a river available for use by appropriators. The remainder of this article considers the effect of these three decisions on the ability of Colorado and federal water quality regulators to impose
restrictions on water rights holders. The statutory framework of the key federal and state acts involved is discussed first.
The Federal Act establishes distinct roles for the EPA and Colorado. Under § 301, the EPA is required to establish and enforce technology-based limitations on individual effluent "discharges" into the nation's waters from "point sources" (pipes, ditches, tunnels and conduits).(fn8) Dischargers must receive a permit pursuant to § 402.(fn9) Although the EPA has delegated this permitting authority to the state of Colorado, if Colorado were to fail to comply with the demands of the Federal Act, the EPA would likely assume responsibility for achieving the Act's water quality goals in the state.(fn10)
Under § 303 of the Federal Act, each state must institute comprehensive water quality standards establishing water quality goals for all waters of the state.(fn11) A state's water quality standards
shall consist of the designated...
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