White Jankowski Lawyers

Senate Bill 13-041 takes effect tomorrow

August 6, 2013

Colorado Senate Bill 13-041 (“Concerning the Protection of Stored Water, and, in Connection Therewith, Preserving Supplies for Drought and Long-Term Needs”) takes effect on August 7, 2013.  This bill reverses the holdings of Upper Yampa Water Conservancy District v. Wolfe, 255 P.3d 1108 (Colo. 2011).  The bill explains that in Yampa, the Supreme Court of Colorado “held that the storage of water is not a beneficial use, at least where flood control and fire or drought protection are not the stated uses of the water, and that to perfect a conditional storage right, the water must be released from storage and put to beneficial use.  Further, an applicant must show that is has exhausted its absolute storage rights before its conditional storage rights can be perfected.”

The bill explicitly reverses the court’s holdings.  In short, the bill expands the definition of “beneficial use” to include the impoundment of water for firefighting or storage for any decreed purpose.  Furthermore, the bill explains that an applicant does not have to demonstrate that all existing absolute decreed water rights that are part of an integrated system have been utilized to their full extent in order to establish the need to exercise a conditional water storage right or to make it absolute.  In addition, carrying water over in storage from one year to another is not grounds for a determination of abandonment.  Governor Hickenlooper signed the bill into law on April 8, 2013.

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