Legal Developments

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by Larry MacDonnell

Colorado Water
The sometimes uncertain meaning of “water matters” that are the exclusive jurisdiction of the water court was at issue in Archuleta v. Gomez, a case decided by the Colorado Court of Appeals in May. This dispute between neighbors with water rights in shared ditches resulted in a district court decision finding, in part, that adverse possession precluded claims for damages. The Court of Appeals found the dispute turned primarily on a determination of the right to use water, a subject exclusively reserved for the water courts.

The 2006 Colorado General Assembly enacted Senate Bill 37, concerning recreational in-channel diversions. RICDs divert stream flows for recreational use at boating parks. The bill reduces the administrative review role of the Colorado Water Conservation Board for new RICD applications. Applications that appropriate no more than 50% of the total volume of water historically available at the structures avoid a provision that would deny RICDs the right to place a call for water in times of shortage unless the call produces at least 85% of the decreed rate of flow. A presumption of no injury is applied to subsequent appropriations that take less than 1/10th of one percent of the RICD’s decreed water.

Clean Water Act
The U.S. Supreme Court, in a unanimous decision, held that the discharge of water from a hydroelectric dam triggers Section 401 of the Clean Water Act under which an applicant for a federal permit or license must obtain certification from the state of compliance with state water quality and related requirements. S.D. Warren Co. v. Maine Board of Environmental Protection. Maine had required bypass flows and fish passage in its certification. On appeal, the applicant argued the term “discharge” implied discharge of a pollutant. The Supreme Court determined Congress intended the term to apply in its more general meaning.

Montana Water
Montana Trout Unlimited successfully challenged the refusal of the Montana Department of Natural Resources and Conservation to stop issuing new groundwater permits until it completed a required statutory evaluation whether the groundwater was “immediately and directly connected to surface water.” Montana Trout Unlimited v. Montana Department of Natural Resources and Conservation. The Montana Supreme Court noted the hydrologic connection between groundwater and surface water and the measurable effect withdrawals of groundwater can have on the availability of surface water.