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Water Blog

A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.

  

Senate Bill 13-041 takes effect tomorrow

Posted 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.


The Western Watershed Enhancement Partnership: protecting people, forests, and water resources

Posted July 25, 2013

The U.S. Departments of the Interior and Agriculture just launched a pilot watershed management project in northern Colorado, the headwaters of the Colorado-Big Thompson River water system.  The goal of the project is to reduce the risk of wildfire and associated fire damage to watersheds, thereby protecting forests, drinking water, and water infrastructure. 

Last week, Secretary of the Interior, Sally Jewell, and Secretary of Agriculture, Tom Vilsack, signed a Memorandum of Understanding at Horsetooth Reservoir.  The agreement is known as the Western Watershed Enhancement Partnership (Partnership) and is part of the President’s Climate Action Plan.  It is a federal, local, and private partnership.  Federal agencies will work with local water users to identify and mitigate the risks of wildfire to watersheds. 

The Partnership will make it easier for the two federal agencies to thin forests and prescribe burns.  In addition, the Partnership provides for the rehabilitation of scorched areas by planting trees and improving forest habitat.  The Partnership’s members hope to improve western forest resilience, protect water quality, safeguard drinking water supplies, and reduce the potential for catastrophic damage from wildfires.  Secretary Jewell stated that the Partnership “can serve as a model for the West when it comes to collaborative and targeted fire threat reduction and restoration efforts to protect our critical water supplies” in the face of drier, hotter weather. 

The U.S. Departments of the Interior and Agriculture are also working with state and local stakeholders to formalize additional partnerships in Arizona, Idaho, Montana, Washington, and California watersheds.


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

Posted 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.


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