White Jankowski Lawyers

Division 2 Water Court holds pre-1969 changes in place of use unlawful

July 11, 2013

The Division 2 Water Court recently held that any change in place of use of an irrigation right that occurred prior to 1969 without a court decree is unlawful.  In Case No. 08CW47, Widefield Water and Sanitation District (Widefield) (represented by White & Jankowski) and the City of Fountain (Fountain) sought changes of three senior ditch rights in the Wet Mountain Valley known as the W.A. Bell Ditches.  Widefield and Fountain presented evidence that while the original adjudication of the W.A. Bell Ditches described the irrigated acreages for each ditch, the places of use of the rights were shuffled prior to 1969, although the total acreage irrigated was not expanded and the points of diversion remained the same.  Prior to 1969, Colorado statutes provided for a court proceeding for changes in points of diversion or places of storage, but not for changes in place of use.  These pre-1969 changes in place of use were subsequently confirmed in two change cases decreed in the Division 2 Water Court which ordered Widefield and Fountain’s predecessors to operate the W.A. Bell Ditches in conformity with the pre-1969 changed place of use. 

The Division 2 Water Court concluded that, the originally decreed acreage must be used in an historical consumptive use analysis regardless of whether any pre-1969 act change enlarged or did not enlarge the use of the water rights.  The court relied on the Colorado Supreme Court’s opinion in In re Water Rights of Central Colorado Water Conservancy District, 147 P.3d 9, 11 (Colo. 2006) to conclude that because the original decree explicitly listed the lands to be irrigated by the W.A. Bell Ditches, the fact that pre-1969 statutes did not require a court proceeding for a change in place of use could not trump the provisions of the original decree.  The Division 2 Water Court also concluded that the recently enacted Senate Bill 13-074 confirms this result. 

This order appears to have sweeping effects for water rights in Colorado.  There are likely to be numerous instances where water rights owners changed the place of use prior to 1969 without changing the point of diversion and did not obtain a court decree.  Under the Division 2 Water Court’s order, use on these changed lands cannot be considered in an historical consumptive use analysis, suggesting that the consumptive use for these rights may be severely curtailed in a change case.  Further, it appears that diversion and use under a water court decree that requires irrigation consistent with pre-1969 changed place of use acres is irrelevant.  Widefield and Fountain are pursuing an appeal of the Division 2 Water Court’s order.