Colorado § 25-8-104 - Interpretation and construction of water quality provisions.

§ 25-8-104. Interpretation and construction of water quality provisions.

(1) No provision of this article shall be interpreted so as to supersede, abrogate, or impair rights to divert water and apply water to beneficial uses in accordance with the provisions of sections 5 and 6 of article XVI of the constitution of the state of Colorado, compacts entered into by the state of Colorado, or the provisions of articles 80 to 93 of title 37, C.R.S., or Colorado court determinations with respect to the determination and administration of water rights. Nothing in this article shall be construed, enforced, or applied so as to cause or result in material injury to water rights. The general assembly recognizes that this article may lead to dischargers choosing consumptive types of treatment techniques in order to meet water quality requirements. Under such circumstances, the discharger must comply with all of the applicable provisions of articles 80 to 93 of title 37, C.R.S., and shall be obliged to remedy any material injury to water rights to the extent required under the provisions of articles 80 to 93 of title 37, C.R.S. The question of whether such material injury to water rights exists and the remedy therefor shall be determined by the water court. This section shall not be interpreted so as to prevent the issuance of a permit pursuant to sections 25-8-501 to 25-8-503 which is necessary to protect public health. Nothing in this article shall be construed to allow the commission or the division to require minimum streamflows or minimum water levels in any lakes or impoundments.

(2) The following criteria, in addition to those otherwise prescribed by law, shall apply to any policy, rule-making, adjudicatory, administrative, or executive decision of the water quality control commission or to any judicial decision related thereto:

(a) All state waters shall be presumed to be available for beneficial uses under and in accordance with the constitution and laws of the state; and a water right includes the right to divert as defined in section 37-92-103 (7), C.R.S., the waters of the state for application to beneficial use.

(b) The commission or division shall not require an instream flow for any purpose.

(c) Mixing zones in state waters shall be allowed in accordance with other provisions of this article in calculating the necessary degree of source pollutant control, so long as water rights are not materially injured.

(d) The commission and division shall 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.

(e) Underground water may be extracted from state waters in order to treat or remove pollutants from the water extracted; except that any material injury to water rights resulting therefrom shall be remedied as required by law.

(3) The state engineer shall issue well permits pursuant to section 37-90-137 (2), C.R.S., necessary to accomplish the purposes of paragraph (e) of subsection (2) of this section. Well construction shall be in accordance with article 91 of title 37, C.R.S.

Source: L. 81: Entire article R&RE, p. 1313, § 1, effective July 1. L. 89: Entire section amended, p. 1171, § 1, effective June 8.

ANNOTATION

Law reviews. For article, "Oil Shale and Water Quality: The Colorado Prospectus Under Federal, State, and International Law", see 58 Den. L.J. 715 (1981). For article, "The Emerging Relationship Between Environmental Regulations and Colorado Water Law", see 53 U. Colo. L. Rev. 597 (1982). For article, "Quality Versus Quantity: The Continued Right to Appropriate — Part I", see 15 Colo. Law. 1035 (1986). For article, "The Burden of Maintaining Colorado's Water Quality", see 18 Colo. Law. 23 (1989). For article, "Water Rights Protection In Water Quality Law", see 60 U. Colo. L. Rev. 841 (1990). For article, "What is a 'Material Injury' to a Water Right?", see 19 Colo. Law. 1333 (1990).

The water court is not required to consider environmental factors to determine whether to grant conditional water right decree. Matter of Bd. of County Comm'rs, 891 P.2d 952 (Colo. 1995).

Water quality regulation that affects water rights without causing material injury or impairment is not necessarily prohibited. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

The legislative water quality scheme is not designed to protect against quality impacts unrelated to discharges or substitute water and specifically prohibits the water court from imposing the protective measures necessary to remedy depletive impacts of upstream appropriations on a downstream appropriator who is concerned that decreased water quantity caused by city's upstream appropriation will result in water quality problem. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

The legislature prohibited the Colorado water quality control commission and the water quality division from imposing minimum instream flows in the course of their water quality protection activities. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

Under Colorado law, water quality standards apply to discharges of pollution and not to withdrawals or appropriations of water. Colo. Wild, Inc. v. U.S. Forest Serv., 122 F. Supp. 2d 1190 (D. Colo. 2000).