COLORADO WATER LAW



WATER LAW IN A NUTSHELL --- Aaron Clay

Categories of problems in appropriative water law

1. Acquisition of surface or groundwater right

2. Perfection of right within priority system

3. Protection of that right from other claimants

4. Modification - change of location or type of use or diversion;

5. Transfer of right

6. Valuation of right

I. INTRODUCTION

A. Measurement of water

1. Terminology

a. Acre foot (43,560 c.f. or 325,850 gal. 1 mg = 3.07 a.f.)

b. Cubic foot per second (1.98 a.f./day)

448.8 gpm, 38.4 miner's inches

rule of thumb - 1 cfs = 40 acres

1 c.f. = 7.48 gal

c. Gallon per minute

1. 15 gpm adequate for single family residence

2. 1 gpm for 24 hrs = 1440 gal.

2. Practice

a. Parshall flume - constructed in such a way that the cfs can be read from a gauge on its side

b. Water meter - closed pipelines and wells

totalizing flow meter keeps record

c. Volumetric - reservoirs and tanks

reservoir cross section

d. Gauging station - for whole stream

satellite transmission system

physical calibration and adjustment

snowpack measurement

B. Technical terminology

1. Hydrologic

a. Groundwater - in pores and cracks in rock and soil; underground - Colo. definition is anything below surface – 10 ft. rule

b. Aquifer - any area containing groundwater in strata porous enough to hold water and permeable enough to transmit water

c. Water table - top of the aquifer

d. Hydrologic cycle - precipitation, surface, ground, surface, vapor, precipitation

e. Tributary - water (ground or surface) which flows into another water course; presumption is all water is tributary;

f. Nontributary - groundwater trapped in a deep acquifer e.g. Ogallalah, Dakota

g. Alluvial groundwater - supports a live stream

h. Consumptive use - the amount of water not returned to the stream

2. Legal

a. Adjudication - judicial decree confirming a water right

b. Appropriation - the act of establishing a water right (comes before adjudication)

c. Developed - would not have been in the stream system but for the actions of a developer

d. Salvaged - would be lost to the stream

e. Imported - developed water coming from another basin

f. Navigable - tributary to natural stream, public use for "saw log" test; ability to use for commercial purposes -- Army Corps jurisdiction

g. Usufructuary - right of use without ownership

h. Point of diversion - where water is removed from stream

II RIPARIAN RIGHTS

A. Acquisition

1. Ownership of land adjacent to a natural watercourse

a. Split in authority re: ownership to thread of stream; ownership of bottom; ownership to high water mark

b. Accretion and ademption create ownership problems

c. Right may be lost is stream changes course.

2. Extent of right does not depend on use, but on amount of land owned, either by acreage or by stream frontage.

B. Attributes of ownership Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 88 P. 978 (Trelease 241) 1907

1. Right to equal use of water with all other riparians(correlative use)

2. Right of dry up stream if "reasonable" use

3. Right to entire stream for access and navigation

4. Right to wharf out

C. Limitations on the exercise of the right

1. Use must be "reasonable" as judicially compared to the rights of others

2. Appurtenant to the land, so can't be sold or transferred as water right

3. Cannot harm downstream users

4. Must be used within the basin of origin

5. Subject to public rights (public trust doctrine)

D. Public rights (varies from state to state)

1. May depend on navigability and/or on bed ownership

2. Boating, fishing, hunting, passage

3. Distinct from public rights arising from riparian ownership

III APPROPRIATIVE RIGHTS

A. Acquisition 37-92-305(9); Coffin v. Left Hand Ditch, Trelease 78; Constitution, ART 16, SEC. 6

1. Intent to appropriate

2. Diversion and control except instream flow

3. Application to beneficial use

a. Absolute - already applied to use

b. Conditonal - will be applied to use within a reasonable time

1. Relation back doctrine - reasonable diligence

c. Types of use (categories of rights)

1. Irrigation

2. Domestic - personal, family, household use only

3. Industrial or commercial - mining and milling

4. Stockwater

5. Wildlife propagation/ fish culture

6. Power

7. Municipal - only by entity with municipal powers

8. Instream flow - only by CWCB

a. Protect environment to a reasonable degree 9. In-house use - especially exempt wells

10. Geothermal

11. Not aesthetic or dilution

4. Without waste

a. 37-92-103(3) speculation

b. CRCD v. CWCB (Corbridge 3)

B. Perfection (Decree)

1. Pre-1969 Water Rights Determination and Tabulation

a. 1881 - General and supplemental adjudications in 70 water districts

b. Decrees recorded in State and Division Engineer Office

c. Plats and surveys required

d. Testimony transcribed

e. General decree for all rights in adjudication

1. Assigned priority numbers (and letters)

2. Postponement doctrine (supplemental jr.)

2. Post-1969 37-92-101 et. seq.

a. Water Court has exclusive jurisdiction

b. Seven water divisions (Montrose is 4)

c. Standard application forms

d. Monthly resume published and mailed

e. Statement of opposition

f. Referee's roles

g. Judge's approval if no protest

h. Protest procedure

i. Appeal directly to Sup.Ct.

j. Each year is separate adjudication for priority (Postponement doctrine)

C. Attributes of ownership of water right

1. Property right protected by Constitution

a. Right of transfer

b. Right to protection of law

c. Has elements of real and personal property

2. Usufructuary right only, not complete ownership

a. Use to extinction, but only on land decreed

1. Developed water may be consumed

b. Need not be used in basin of origin

c. Extent of historic use defines value

3. Protections unique to water rights

a. Protection of priority of use sr. v. jr.

1. "Calling the stream"

2. Non-injury from others' changes

b. Priorities of use in time of shortage XVI, 6

c. Right to store until used - reservoirs or water banks - may need second fill decree

D. Special rules for groundwater

1. Tributary outside designated basins

(most of western Colo. --- alluvial and shallow acquifers

a. Just like surface water after 1969

b. Earlier "non-decreed" rights grandfathered in priority

c. Well permits required

1. no material injury to other water right

2. delayed return flow effect-- cone of depression

3. presumption of injury if within 600 ft. of another well

4. Late registration if drilled before 1972

2. Non-tributary outside designated basins

a. all water is presumed to be tributary (100 yr)

b. Permit is only requirement -- no injury to other surface users

3. Designated groundwater basins

a. Power to administer given to a groundwater commission, then to management districts

b. Permit system outside the priority system

1. mining the water

4. Exempt wells 37-92-602

a. Outside the priority system

b. 15 gpm for household, fire, stock and irrigation of one acre of lawn and garden, not more than 3 single family dwellings

1. 35 acre tract

2. used prior to May 22, 1971

c. 15 gpm for household purposes inside a single-family dwelling; no animals, no commercial, no irrigation, return flow to same drainage --- presumption of no injury

1. can't be used in subdivision after 6.1.72

5. Notification of State Engineer on transfer

E. Limitations on the exercise of the right Rominiecki

1. Amount of historic use (lesser of actual or decreed)

2. Excess must be returned to the stream

a. No right of recapture after it leaves property

b. Consumptive use, not diversion, defines the right

3. Limitations on change of right (use, pt/div, pt/ret)

a. Non-injury rule

b. Junior entitled to stream as he found it. (riparian concept)

1. plan for augmentation to compensate

2. terms and conditions to prevent injury

4. Seepage (wastewater) appropriator has no right to continuation

5. Reservoir owner entitled to one filling

a. Off-stream: one fill to gauge height

1. owner absorbs evaporation loss

b. On-stream: inflow = outflow when out of priority

6. Loss of right

a. Abandonment

1. distinguish from "never put to use"

2. distinguish from forfeiture

3. Intent is major element

4. 10 years' non-use rebuttal presumption of intent

b. Prescription

1. only applies down-ditch (after leaving stream)

2. open, hostile, adverse use under claim of right for statutory period (18 years)

7. Public rights in appropriated waters

a. Constitution -- all water belongs to the people

b. Right to navigate with all incidents thereto

c. No right to access

d. Right to fish and hunt?

e. Right to recreation?

f. Bed ownership is deciding factor

IV Practical application

A. Constitution and Statutory provisions

1. Const. XVI, Sec. 6,

2. Water Rights Act of 1969 37-92-101 et. seq.

3. Responsibility of user 37-84-101

4. Rights of way and ditches 37-86-101

B. Water Court jurisdiction and procedure 37-92-302,303,304

1. Application form, place, time, method, cost,

2. Court process after filing

C. Enforcement

1. Calling the stream

a. futile call

2. State engineer system

a. Division engineer, water commissioners

3. Court action

a. Injunction

b. Damages for lost crop, replacement well, etc.

4. Right to participate in water court actions

a. Presumption of injury

b. Standing (exempt well may not have standing)

5. Tabulation

a. Compilation

b. Interpretation

c. Practical use

D. Mutual Ditch Companies

1. Organization

2. By-laws and rules

3. Attributes of personal and real property

E. Transfer of water right

1. Deed

2. Stock certificate/collateral assignment

F. Water rights title opinion

1. Very limited

2. Use is most important

G. Appraisal

V Federal/Interstate Conflicts

1. Colorado River Compact (1922)

a. Upper basin = Colo. Wyo., Utah, NM, Above lee's ferry

b. Lower basin = Ariz Cal, Nev., Utah NM below lees ferry

c. Upper must release 75 million a.f. on a rolling ten year period

d. Mexico guaranteed 1.5 million a.f. in 1954, shared by upper and lower

2. Kansas v. Colorado

a. Arkansas River compact

b. status of case

3. Federal Reserved rights

a. Theory is reservation does not make sense without sufficient water to fulfill the purposes of the reservation

b. Reservation created by treaty, Act of Congress, or executive order

1. priority date is date of instrument

2. does not depend on beneficial use

3. does not depend on state law

a. except under water court jurisdiction

c. Indian rights

1. sovereign nation -- not subject to prior approp. law

2. water needs may project into future

3. priority date from time immemorial

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