CWAG 2010

WATER LAW CONFERENCE

The Broadmoor Colorado Springs, Colorado

April 29 – 30, 2010

Water Rights Ramifications of Water ReuseCWAG 2010 CONFERENCE

The Broadmoor, Colorado Springs, ColoradoBy Steven O. Sims

Brownstein Hyatt Farber Schreck

Introduction

Municipal water providers treat thousands of acre feet of sewage and discharge the treated effluent to streams, oceans and aquifers.

The fastest growing “new” water source for our growing cities is reused and reclaimed water.

While numerous speakers today will explain how cities have found technical solutions to water reuse, an equally important consideration is the legal entitlement to reuse treated effluent.

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Two Major Types of Regulatory Systems Governing the Reuse of Municipal Effluent

• Return flow may not be reused if subsequent use injures other water users• Return flows treated a waste product that can be disposed of in the reasonable discretion of the generator • Although there are two main approaches, most systems contain elements of each

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

State Regulation of Reuse

• Some states regulate through water quality regulations

• Some states regulate through water quantity regulations

• Many have adopted special rules for effluent

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Common themes in regulatory systems

• Status of the source water

• Right to dispose of effluent

• Dominion and Control

• Right to compel continued discharge

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Status of the First Use Water is important

• Surface Water

• Groundwater

• Developed water

• Native water

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Who has the right to dispose of the reused water

• Right to use and dispose distinguished

• Public ownership

• Right of the appropriator

• Downstream water user

• Sewer Treatment plant operator

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Dominion and Control

• Diversion after release to the stream

• Vested Rights of other appropriators on the stream

• Release to aquifer versus stream

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Right to compel continued discharge

• Abandonment

• Right to change practices

CWAG 2010 CONFERENCE The Broadmoor, Colorado Springs, Colorado

Summary

• Each state has some rules for effluent reuse

• Most rules developed from the general rules concerning use of non-sewered return flow

• States most dependent on reuse have the most extensive rules

CWAG 2010

WATER LAW CONFERENCE

The Broadmoor Colorado Springs, Colorado

April 29 – 30, 2010