Water Conflict: Enforcement and Dispute Mechanisms in Statewide Water Policy

E. Vaughn McWilliams

The Regulated Riparian Model Water Code

• Published by the American Society of Civil Engineers in 1997

• Developed by committee, edited by Joseph Dellapenna, Professor of Law at Villanova

• Intended to be a complete code, with optional sections.

Enforcement and Dispute Mechanisms

1. Hearings

2. Dispute Resolution

3. Judicial Review

4. Civil Enforcement

5. Criminal Enforcement

My qualifications

• Assistant Attorney General for the State of Colorado, Water Rights Unit: Litigated surface water and groundwater disputes.

• Water Resource Specialist for the Colorado Department of Natural Resources, Colorado Water Conservation Board, working on state water policy issues.

Parties to a Water Rights Dispute

• One or more water users• State Regulatory Agency• Any other possibly affected party

HEARINGS

• Water User vs. State Agency • Any person aggrieved by an order or decision

of the State Agency may receive a hearing• Public process, and any person with an

interest in fact may participate• Can include counsel, introduce evidence, etc.• State Agency can compel evidence, including

subpoena power

Dispute Resolution

• Water user vs. Water user• State Agency’s role in resolving a dispute

between water users• Less costly and time consuming than using the

courts• Negotiation, mediation, arbitration, all

facilitated by the State Agency

Judicial Review

• Courts keeping the State Agency in check• A person likely to be affected by a regulation

adopted or proposed by the State Agency can bring an action for declaratory judgment in court

• The State Agency must comply with court orders or judgments

Civil Enforcement

• State Agency inspections and investigations• Notice of violation to offender• Order to Cease or Restore• Other injunctions through the courts, if

necessary• Civil liability to the State Agency and other

injured parties(continued)

Civil Enforcement(continued)

• Civil penalties for violation of the Code• Or civil charges• Liens for monetary claims• Citizen suits (optional)

Criminal Enforcement - Crimes

• Knowing or intentional false statements• Noncompliance with orders• Each day of a continuing violation is a separate

crime• Fines of $1,000 - $10,000 per violation• Imprisonment of 1 year to 5 years per

violation

Criminal Enforcement – Revocation of Permits

State Agency is authorized to revoke a permit for:• Unlawful act under the Code• Willful violation of the Code or terms of a

permit• Whenever necessary to prevent an

unreasonable injury to a holder of another water right

Temporary Arrest Power (optional)

• State Agency employee is authorized to arrest any person if it is necessary to prevent imminent escape after a crime is committed under the Code

• Need probable cause

Hypothetical examples

• Farmer pumping without permit

• Upstream municipality vs. downstream industrial manufacturer

QUESTIONS?

www.mcwilliamslawllc.comwww.redmountainlawgroup.comvaughn@mcwilliamslawllc.com