17 July 2006

Colorado Supreme Court Mulls Watershed Protection

The Colorado Supreme Court agreed to consider two questions related to whether the Town of Carbondale, Colorado, a municipality with home rule powers, has the power to enact a local watershed protection law, today. Opponents of the law claim that state statutes on water quality and agricultural chemicals override the local law.

Carbondale had attempted to prevent the property owner from using or storing herbicides or pesticides on the property near Nettle Creek, without a permit which would have entailed taking measures to prevent contamination of the local watershed, and to obtain compensation for the damage to the town's water main that resulted from it spilling dirt into the creek. When it then sought a permit, it was denied because the city felt that the proposed steps to deal with the problem were inadequate.

At trial, opponents of the law were not allowed to challenge it for procedural reasons. Then, in the Court of Appeals, this decision was overruled and the trial court was directed to consider the merits of the issue. It is not clear at this time if the Colorado Supreme Court's intervention goes to the merits of scope of a home rule local government to regulate watersheds, or will address merely the somewhat esoteric procedural issues presented by the case.

The merits of the proposal about particularly relevant now because Grand Junction voters will be considering their own watershed protection measure this fall. The general rule is that home rule governments may pass laws on any subject matter, but they cannot override a valid state statute and are not allowed to legislate on certain matters considered "statewide concerns." Court guidance on when a matter is a statewide concern has been less than clear.

While this case does not actually involve oil production activities, the $64,000 question is whether allowing home rule municipalities to enact local watershed protection ordinances could seriously impact oil and gas production activities in Colorado.

The case is Cabondale v. GSS Properties, L.L.C. The Court of Appeals decision can be found here.

Cross Posted at Colorado Confidential.

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