Lawmakers in Colorado are considering a number of water bills for the 2013 legislative session.  The proposed bills come in the midst of a nation-wide drought that has hit Colorado particularly hard, and are aimed at increasing water conservation efforts.  According to Sen. Ellen Roberts, R-Durango, a sponsor of one of the bills, “we need the ability to respond to the drought.”  As a result, some of the proposals mark a departure from the traditional Colorado water doctrine, which involves maximizing water use and promotes a “use it or lose it” policy that has been in operation for more than a century.

BACKGROUND

Colorado has been a prior appropriations state since before statehood and during its territory days.  The prior appropriations doctrine calls for a “first in time, first in line” approach to water rights, whereby senior appropriators take priority over junior appropriators.   In other words, a person can claim a water right by being the first to use the unclaimed water, and people maintain the right as long as they are continuously using the water.  In an 1882 decision, the Colorado Supreme Court explained that the aridity of the land and the importance of irrigated agriculture was the rationale for the prior appropriations doctrine.  This is a departure from the common law riparian doctrine, which holds that running water is the property of the public and private landowners lay claim to the waters on the shores and banks of their property.   Colorado’s prior appropriations doctrine reflects the complicated nature of western water issues and some have even argued it is the most intricate system of water laws in the nation.

PROPOSED LEGISLATION

Senate Bill 19: Promote Water Conservation

Section 1 of Senate Bill 19 states that under the current system, a water user has no incentive to reduce the amount of water diverted (or consumed) because the amount of water that can be diverted is “is limited to the amount of water that was historically consumed by the original type and place of use.”  That is, there is a fixed amount of water that can be diverted or consumed which is determined by historical use.  Further, under the present system, water conservation results in a reduction of consumptive water rights—the ability to remove water from the source for agriculture, drinking water, irrigation, commercial uses, and other uses which do not return the water back to the source—because of the lack of incentive to conserve.  In other words, water conservation actually penalizes water users under the current system because it reduces the consumptive rights of those that conserve.  Senate Bill 19 aims to correct this issue by incentivizing appropriators to conserve water and allowing the diversion of water for conservation purposes without reducing water rights.

Senate Bill 41: Protect Water Storage Long-Term Use

The purpose of Senate Bill 41 is to have a long-term water storage system for firefighting and drought mitigation by increasing the definition of ‘beneficial use’ to encompass the storage of water for firefighting.  Further, the bill states that a water right is not abandoned if water is placed in storage.  This is a reversal of Colorado Supreme Court holdings which held that beneficial use does not include the storage of water.  For example, in a 2011 decision, the Court held that in order to store water there must be a demonstration that absolute storage rights have been exhausted before conditional storage rights can be perfected.  In other words, an appropriator must show that a water right which has been placed to beneficial use is complete (absolute) before the possibility of being granted the ability to store water for a conditional purpose (firefighting or drought mitigating).  But under Senate Bill 41, there does not need to be a showing that all absolute water rights have been perfected before conditional water rights can be exercised in order to ensure there is adequate water storage for firefighting and drought mitigation.

Senate Bill 75: Promote Water Conservation of Designated Ground Water

The purpose of this bill is to protect users of groundwater that conserve their water from losing their rights.  It states that “once the state engineer issues a final permit for the withdrawal of designated groundwater . . . a reduction in the amount of water used pursuant to the permit due to the conservation of water is not grounds to reduce.”  In other words, groundwater users should not be penalized through a reduction in overall rights due to the conservation of water.

House Bill 1018: Beneficial Use Produced Water Dust Suppression

This bill gives the solid and hazardous waste commission jurisdiction to regulate the groundwater used by oil and gas companies to suppress dust in rural areas and on dirt roads.  The commission is directed to promulgate regulations that would protect state waters from pollution and the public from exposure to toxic materials.  The regulations should conform to the federal environmental protection agency’s (“EPA”) standards regarding radioactive material in water used for dust suppression and should not exceed the EPA’s allowed maximum concentration for such material.

House Bill 1044: Authorize Graywater Use

Graywater is defined under Section 1 of House Bill 1044 “as that portion of wastewater that, before being treated or combined with other wastewater, is collected . . . for the purpose of being put to beneficial uses authorized by the water quality control commission.”  Graywater is water collected from sources authorized by the water quality control commission (“commission”), such as from bathroom and laundry room sinks, bathtubs, showers, and laundry machines.  However, the bill specifies that wastewater from toilets, kitchen sinks, urinals, utility sinks, and dishwashers are not permissible types of graywater.  The rationale for the bill is that the utilization of graywater for authorized purposed will maximize water conservation efforts.  Furthermore, the bill seeks to clarify under what circumstances graywater can be used.  In addition, the bill gives counties and municipalities the discretion to authorize graywater use in compliance with the minimum statewide standards that will be determined by the commission.  It also provides counties and municipalities with absolute authority to enforce resolutions and ordinances in regards to graywater use.

House Bill 1130: Reapprove Interruptible Water Supply Agreements

Under this bill, the state engineer can reapprove the operation of an interruptible water supply agreement a total of three times, whereas before the state engineer was only permitted to do so once.  Interruptible water agreements allow for the “temporary change in the point of diversion, location of use, and type of use of an absolute water right without the need for . . . adjudication.”  The underlying purpose of House Bill 1130 is to broaden water sharing agreements between private users and public users, such as between farmers and cities

CONCLUSION

Some of the proposed water bills are quite controversial because they represent a departure from Colorado’s traditional water doctrine.  For example, under the current system if a water user does not use their water they are deemed to have abandoned them and the water courts can reduce their water rights.  Senate Bill 75 addresses this matter by encouraging the users of groundwater to conserve their water without risk of reduction.  Moreover, Senate Bill 41 is in response to a Colorado Supreme Court decision which held drought mitigation and firefighting are not proper justifications for water storage.  According to Sen. Roberts, “The idea of it is to push back on those court cases and say, no, you can store water for firefighting and drought mitigation,” in order to promote better planning for  future droughts.   Another bill that encourages conservation is House Bill 1044, sponsored by Rep. Randy Fischer, D-Fort Collins, which allows for the use of graywater.  Regardless of whether the expressed objective of the bill is water storage or more broadly, water conservation, one thing is clear, water issues are a hot topic in Colorado this year.  It is likely the current drought and the prospect of another wildfire season like 2012 has prompted the legislature to dive into water issues.  With the existence of drought conditions continuing in the foreseeable future, it is also probable that we will see more changes proposed to the traditional Colorado water doctrine.

Lauren Joseph is an Experiential Educator and has worked with corporate clients, at-risk youth and adults with co-occurring disorders in dynamic learning programs designed to facilitate positive change.  She also is an outdoor enthusiast and is excited to bring her passion for the environment to the Water Law Review.


Sources:

Marianne Goodland, Water Issues Expected to be Big in the 2013 Legislative Session, The Holyoke Enterprise (Jan. 30, 2013), http://www.holyokeenterprise.com/index.php?option=com_content&view=article&id=6643:water-issues-expected-to-be-big-in-the-2013-legislative-session&catid=34:local-news&Itemid=34.

Joe Hanel, Water Bills on Tap, The Durango Herald (Jan. 25, 2013), http://durangoherald.com/article/20130125/NEWS01/130129721/-1/s.

Justice Gregory J. Hobbs Jr., Colorado Water Law: An Historical Overview, 1 U. Denv. Water L. Rev. 1, (1997).

Lawrence J. MacDonnell, Five Principles that Define Colorado Water Law, 165 Colo. Law., (1997).

H.B. 1018, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1130, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

H.B. 1044, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 19, 69th Gen. Assemb., Reg. Sess. (Colo. 2013).

S.B. 41, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).

S.B. 75, 69th Gen. Assemb. Reg. Sess. (Colo. 2013).


Background

In 2008, the Vermont legislature substantially revised its groundwater protection laws. Historically, the common law doctrine of absolute ownership governed groundwater. However, in 1985 it was replaced by the more modern correlative rights doctrine. Vermont’s groundwater laws changed again when Vt. Stat. Ann. tit. 10, § 1390(5) (West 2008) was enacted, designating groundwater as a public trust resource. As a result, groundwater now must be managed for the benefit of all Vermont citizens. In 2011 the Vermont Environmental Court (“court”) interpreted this statute for the first time when it examined the final certification of Omya Inc.’s (“Omya”) solid waste facility. While the court did not addresses every question the 2008 statute presents, the court established a baseline context in which to examine groundwater, both quantity and quality needs to be addressed.

Environmental Court’s Interpretation

In Omya Solid Waste Facility Final Certification, No. 69-6-10 Vtec., 2011 WL 1055575, (Vt. Feb. 28, 2011), Omya applied to The Vermont Agency of Natural Resources (“ANR”) for a 5-year, final certification of a lined tailings disposal facility, a solid waste permit. Omya operates a calcium carbonate processing facility and the groundwater within the site has tested for elevated levels of iron, manganese, arsenic, and aminoethylethanolamine. ANR granted Omya’s application for a final certification based on the requirements set forth in its 2005 Groundwater Protection Rule and Strategy (“2005 Rule”). The Appellant, concerned about the disposal facility, appealed the ANR decision to grant the final certification.

The court, in a decision and order on motion for summary judgment, determined whether the final certification issued by ANR took into account the new public trust statute, Vt. Stat. Ann. tit. 10 § 1390(5). The court first examined what the public trust doctrine required for a groundwater analysis. Looking at the plain meaning and relationship to related sections, the court found that the public trust is not limited to solely managing groundwater quantity. The public trust should also manage groundwater quality. Next, the court looked at the 2005 Rule used to issue the final certification to see if ANR took into consideration the public trust doctrine with regards to groundwater quantity and quality. Because the 2005 Rule was created before Vt. Stat. Ann. Tit. 10 § 1390, the court held that use of the 2005 Rule is not sufficient to ensure that ANR is carrying out its public trust responsibilities. The court, however, did not find the 2005 Rule to explicitly violate Vt. Stat. Ann. Tit. 10 § 1390.

After the summary judgment decision issued by the court, the Appellants submitted a motion for clarification, asking if the decision required ANR to develop a new policy for certification. The court clarified its original decision and stated that ANR had the responsibility to develop the process of how to perform a public trust analysis. The court only determined that ANR’s 2005 Rules had not specifically considered groundwater as within public trust and therefore must be revisited. This decision, however, did not require that the final certification result be changed or the 2005 rule be changed.

In July 2011 ANR finalized an interim procedure for implementing the new public trust doctrine for groundwater called the Agency of Natural Resources, Interim Procedure for Implementation of Groundwater Public Trust Principles for Groundwater Quality Summary of Changes (July 20, 2011). The interim procedure recognizes that the ANR needed to protect both quantity and quality of groundwater with a dynamic set of rules designed to react to changes in public needs. Activities are now categorized into two tiers, recognizing that some activities are more harmful to groundwater then others. Tier I activities are high-risk activities that require a more stringent permitting process and a public benefit showing. Tier II activities pose a much lower risk to groundwater and therefore the permitting process is much easier. Tier II activities also include remedial activities directed to contaminated sites. Additionally, ANR set up a public comment process for participation in the permitting process.

Effects

Vermont, by identifying groundwater as within the public trust doctrine, is trying to balance public interest and individual property rights for an ever more important natural resource. The public trust doctrine allows for environmental concerns to be addressed with an eye towards future generations. This type of consideration is necessary for important and vital natural resources like water. Interpreting a broad law like Vt. Stat. Ann. Tit. 10 § 1390, however, has its own unique challenges and it will take years to generate a clear picture of how protecting groundwater, as part of the public trust, will be done through Vermont’s legal system. It took three years from the time the statute was enacted for a court to be faced with a decision where it needed to interpret the statute, and additional administrative action is still needed. While the public trust doctrine may take some time to fully realize the scope of protections, future generations should be better protected.

The extent of a public trust doctrine is determined by a state-to-state basis; therefore, Vermont can serve as a basis for other states that wish to implement similar groundwater policies. Colorado, for example, though a prior appropriation state, could easily work those policies into any public trust statute. Implementing a public trust to protect groundwater will not change groundwater laws overnight as Vermont has shown. Most public trust laws can be worked into a state’s existing legal framework.