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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 - PowerPoint PPT Presentation
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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