A Roundtable Discussion on the No-injury Rule of Colorado Water Law
| Publication year | 2015 |
| Pages | 87 |
Articles
Natural Resource and Environmental Law—Water Law
A Roundtable Discussion on the No-Injury Rule of Colorado Water Law
By Britt Banks, Peter Nichols.
Coordinating Editors
Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP—(303) 443-6800, kkinnear@pbblaw.com; Melanie Granberg (Environmental), Denver, Gablehouse Granberg, LLC—(303) 572-0050, mgranberg@gcgllc.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham & Stubbs LLP—(303) 892-7470, joel.benson@dgslaw.com
About the Authors
Britt Banks is the executive director of Getches-Wilkinson Center for Natural Resources, Energy & the Environment, University of Colorado School of Law—(303) 564-8805, britt.banks@oldmont.com. Peter Nichols practices water and environmental law and is a partner of Berg Hill Greenleaf Ruscitti LLP and board member of Getches-Wilkinson Center by virtue of being Chair of the Center's Advisory Committee—(303) 345-2642, pdn@bhgrlaw.com.
This article reports on a workshop on the no-injury rule of Colorado water law sponsored by the Getches-Wilkinson Center for Natural Resources, Energy & fAie Environment of the University of Colorado School of Law.
Colorado, like many arid places in the world, faces an uncertain water future. Demand for water is projected to continue to accelerate due to an expanding economy, a growing population and associated urbanization, growth in the tourism and oil and gas sectors, and increasing international demand for agricultural products.
At the same time, pressures on water supplies are also expected to continue to accelerate, due in part to climate change impacts—for example, longer growing seasons, reduced average flows, increasingly frequent droughts, higher temperatures, and earlier melting of high-country snow pack—and ongoing depletion of groundwater aquifers. Increasing demand for water from powerful downstream states, such as California and Arizona, could also negatively affect future supplies available to Colorado users.
The potential for a water crisis in the Centennial State is real and growing every day. At some point soon, demands for water could substantially exceed available supplies, threatening significant economic, social, and environmental consequences. The fact that there are legal claims for more water than falls on Colorado in all but the snowiest years underscores the challenges facing the state. As the Colorado Supreme Court presciently observed:
As administration of water approaches its second century the curtain is opening upon the new drama of maximum utilization and how constitutionally that doctrine can be integrated into the law of vested rights.[1]
The goal of maximizing the use of our waters, however, must sometimes yield to the protection of vested rights.[2] That said, there is increasing discussion regarding whether Colorado water law, as it currently stands, is flexible enough to accommodate unmet current and forecast water demands to avoid a crisis, while at the same time protecting vested water rights.
Working within the system often requires hiring expensive engineering and legal advisors, and—in the view of some—overcoming a hard-wired resistance to the changes needed to promote maximum utilization, efficiency, conservation, and sustainable use.
In October 2014, the Getches-Wilkinson Center sponsored a roundtable discussion featuring a diverse group of expert water jurists, water lawyers, water engineers, state water officials, and academics on Colorado water law and Colorado water policy.[3] The workshop discussed one aspect of the state's water law that is seen by some as impeding the type of flexibility needed to avoid a crisis —namely, the "no-injury rule." The rule is of overriding importance because appropriators have claimed virtually all of the water available; therefore, accommodating new or additional demands generally requires adjudicating changes to existing irrigation water rights.[4]
The No-Injury Rule
Under Colorado water law, a water right cannot be changed unless the applicant can demonstrate that such action will not "injuriously affect" water rights held by others. This is the no-injury rule:
Injury involves diminution of the available water supply that a water right holder would otherwise enjoy at the time and place and in the amount of demand for beneficial use under the holder's decreed water right operating in priority.[5]
Moreover, "a change of water right proceeding precipitates quantification based on actual historical consumptive use, in order to protect other appropriators."[6]
As currently implemented, any type of impact, no matter how small or distant in the future, is deemed to be injurious. Thus, satisfying other water right owners' allegations of injury usually requires applicants to prove they can maintain the stream conditions that existed before the change—that is, they must guarantee that essentially every drop of water is present at the same "time, location, and amount" as before the change. Too often, the result is costly, years-long litigation over small amounts of water—so-called "teacup changes to stream conditions"—given overcrowded dockets and the extensive expert disclosure process in the court rules. Complicating matters for the applicant, it is hard to propose mitigation without a clear and accepted approach to evaluate injury. It is accordingly often easier and cheaper for applicants to simply relinquish or transfer part of their water right to the stream or objectors than to prove no injury.
A number of Colorado water lawyers, engineers, and managers—certainly not all—are concerned that this doctrine, as currently implemented in the state, limits the flexibility needed to manage water in a supply-constrained environment, especially in the South Platte and Arkansas river basins. Many of the participants in the roundtable noted that, under current law, there is no material or de minimis standard for injury. One participant cited an example of terms and conditions to protect a downstream water right from a stream depletion of less than a cup of water more than five years in the future.
Proving a lack of injury can lead to costly engineering and expensive and lengthy litigation, and can result in the imposition of burdensome terms and conditions. Many feel that recent changes in the court rules regarding expert disclosures have exacerbated this problem. And too often, and many times long after the objecting water users have settled with the applicant, the State and Division Engineers challenge changes irrespective of injury.[7] Increasingly, the risk of these negative effects can deter applicants from even attempting to change the use of a water right, and in other cases changes that would foster maximum utilization of the state's water resources do not proceed because the costs required are simply too high.
Some roundtable participants expressed the view that the no-injury rule must be reformed to permit and promote the flexibility and innovation that is needed now and will become critical to manage Colorado's water to meet future needs. As one jurist observed, we are boxed into a corner by climate change; preserving the past means a lack of flexibility to address the future.
Participants focused on three topics related to the no-injury rule in change cases in particular: (1) the role of data collection and modeling in determining injury; (2) whether a material or de minimis injury standard should be developed and how it could be applied; and (3) whether rules governing the burden of proof and standing in water court proceedings should be altered in some way. The discussion of each of these three topics follows.
Engineering and Data
To calculate whether a proposed change will reduce return flows of water to other holders of water rights, engineers employ various formulae, computerized spreadsheets, and mathematical models—for example, GLOVER, AWAS, State CU, or MODFLOW (models). These models produce long-term predictions of impacts, with results often quantified at a very high level of detail—for example, daily time steps extending for decades into the future. Although the science and the models are...
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