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

Colorado § 25-8-104

• Jurisdiction: Colorado
• Title 25: Public
• Art.: Water Quality Control

Text

(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.

Legislative History

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