Exporting Colorado Water in Coal Slurry Pipelines

Abstract

The San Marco Pipeline Company has proposed a 1,000‐mile (1,610‐km) pipeline system to move coal slurry from southeastern Colorado to several electrical generating plants in the Texas Gulf Coast area. This area of Colorado is experiencing severe water shortage problems due to the large amount of water used for irrigation. Colorado statutes restrict the diversion of both surface and ground water for out‐of‐state use unless such water is credited to interstate compacts. Water has been found by the courts to be a commodity or article of commerce, therefore subject to federal constitutional scrutiny under the commerce clause. The constitutionality of Colorado's statutes depends upon the nature of the restrictions imposed, the severity of the burden created, and the local purposes served by the statutes. Statutes will be upheld only where they incidentally burden or discriminate against interstate commerce. States may impose severe restrictions on diverting water for out‐of‐state uses provided the same type of restrictions are imposed on in‐state use.