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The Regulated Riparian Model Water Code

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

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The Regulated Riparian Model Water Code

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  1. Water Conflict: Enforcement and Dispute Mechanisms in Statewide Water PolicyE. Vaughn McWilliams

  2. 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.

  3. Enforcement and Dispute Mechanisms • Hearings • Dispute Resolution • Judicial Review • Civil Enforcement • Criminal Enforcement

  4. 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.

  5. Parties to a Water Rights Dispute • One or more water users • State Regulatory Agency • Any other possibly affected party

  6. 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

  7. 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

  8. 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

  9. 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)

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

  11. 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

  12. 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

  13. 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

  14. Hypothetical examples • Farmer pumping without permit • Upstream municipality vs. downstream industrial manufacturer

  15. QUESTIONS? www.mcwilliamslawllc.com www.redmountainlawgroup.com vaughn@mcwilliamslawllc.com

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