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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.

  

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.


New amendment to affect development planning

Posted June 25, 2013

Back in 2008, a state law was passed that required developers to prove upfront that they had enough water to supply their entire project.  See C.R.S. § 29-20-301 to -306 (2012).  This statute brought the Sterling Ranch development in Douglas County to a halt; a judge found that Sterling Ranch failed to show it had enough water to sustain the large-scale project.  The 2008 law upset developers who felt the law would force smaller developments, with fewer water-reliant amenities like recreation centers and parks.

However, during this legislative session, the General Assembly passed an amendment to section 29-20-301 (Senate Bill 13-258), which gives developers the ability to phase-in water requirements whenever a development stage of a project is up for approval by a local government entity.  Instead of developers having to show they have enough water in advance, developers now must only prove water availability each time a project enters a new stage of development.  Under section 29-20-301(d), “the stages of the development permit approval process are any of the components, or any combination of the components,” as determined by local government.  The amendment added that none of these stages are intended to constitute a separate development permit approval process under section 29-20-303.  A new term on definitions was also added to section 29-20-103.  Notably, “each application included in the definition of development permit constitutes a stage in the development permit approval process.”


A national and local pattern of groundwater depletion

Posted May 30, 2013

On May 20, the USGS released a report that detailed groundwater depletion in the United States from 1900−2008.  The USGS found that between 1900 and 2008, U.S. groundwater reserves have depleted by a volume of water sufficient to fill Lake Erie twice. 

The USGS studied 40 major aquifer systems including the High Plains (or Ogallala) Aquifer, Dakota Aquifer, western alluvial basins, and deep confined bedrock aquifers like the Black Mesa Aquifer.  Four groundwater systems in Colorado were studied: the High Plains, Dakota, Denver Basin, and San Luis Valley aquifers.  Of those, only the Denver Basin and San Luis Valley aquifers are located exclusively in Colorado.  The USGS found that the High Plains Aquifer experienced a rate of depletion between 2001 and 2008 equal to 32% of the cumulative depletion during the entire 20th century!  The greatest depletions occurred in Texas.  The total depletion of the Dakota Aquifer was determined to be 20.3 cubic kilometers (km3) between 1900 and 2008, or 16,457,478 acre-feet.  (This volume is equal to approximately 400,000 Olympic-size swimming pools.)  The Dakota Aquifer was analyzed separately from the Denver Basin since it extends across five states.  Depletions in the Denver Basin totaled approximately 1.30 km3 between 1900 and 2008 (equal to approximately 1,053,927 acre-feet).  The San Luis Valley experienced a net depletion of about 3.6 km3 between 1900 and 2008 (approximately 2,918,568 acre-feet).  In short, Colorado’s large aquifers that were studied by the USGS are all part of the national trend of substantial depletion.

The USGS concluded that national groundwater use is on an unsustainable course, with water removal outpacing water recharge.  During the 20th century the volume of groundwater depletion totaled approximately 800 km3 (approximately 648,570,555 acre-feet), which increased by an additional 25% between 2001 and 2008.  This recent spike in groundwater withdrawal may be due to changes in weather such as more severe droughts, which cause communities to use more groundwater.  The report stated that “[i]n addition to widely recognized adverse environmental effects of groundwater depletion, the depletion also impacts communities dependent on groundwater resources . . . . the observed rates of depletion must eventually decrease as economic and physical constraints lead to reduced levels of extraction.”  However, the USGS noted that the rate of depletion was “leveling-off” and “self-limiting” in a few areas, particularly smaller western alluvial basins.


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