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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.


New Colorado Supreme Court decision re: corrections to water decree

Posted January 22, 2013

The Colorado Supreme Court opinion in Town of Minturn v. Tucker involved the issue of whether the trial court could correct substantive errors in a decree regarding consumptive use factors, and whether correction of those errors was an improper modification of a stipulation entered into with opposers of Minturn’s application.  Minturn had stipulated (agreed without a trial) to a decree that contained certain consumptive use factors used to limit diversions of Minturn’s water rights to new uses.  After entry of the decree, Minturn realized that some of the factors were incorrect, and petitioned the water court to correct the errors.  Only one opposer to Minturn’s application, Tucker, objected to the proposed correction, arguing that the change violated its stipulation with Minturn because it modified the stipulated terms.  The water court corrected the decree and Tucker appealed.

 The Colorado Supreme Court upheld the water court’s decision and concluded that a “no less restrictive” clause in a stipulation did not prohibit the water court from entering a decree with terms and conditions differing from those in the stipulation.  The Colorado Supreme Court held that the intent of the stipulation was to prevent injury by using consumptive use factors predicated on Minturn’s actual usage, so the correction of the factors to correspond to that actual usage was consistent with the stipulation.  Under this opinion, water courts may consider the intent of the parties in determining whether a decree is contrary to a stipulation and will not automatically find a violation if the decree differs from the stipulation.  Read the full court opinion here.

Minute Order 319 establishes new Colorado River sharing for U.S. and Mexico

Posted December 20, 2012

On November 20, 2012, the United States and Mexico signed Minute Order 319 (an amendment to the 1944 Water Treaty) and embarked on a five-year venture to improve Colorado River management.  Under Minute Order 319, the United States will allow Mexico to store limited volumes of water in Lake Mead, and both countries will share water in times of surplus and shortage.  The agreement also outlines mechanisms to promote environmental benefits, including restoration projects, and promises that a pulse flow will reach the Colorado River delta.  Minute Order 319 also provides for United States investment in water infrastructure in return for a one-time allotment of 124,000 acre-feet of water from Mexico.  Through these and other measures, both countries hope to increase regional climate change resilience.

While Colorado water users are unlikely to feel immediate effects from Minute Order 319, the bi-national agreement is an example of the same negotiated approach to water shortages that is taking place throughout Colorado.  Although certain water disputes will continue to require judicial resolution, we are encouraged whenever parties come together to develop agreements for sharing water resources.

Douglas County District Court ruling on water supply requirements for new subdivisions

Posted November 1, 2012

In what appears to be the first significant interpretation of a statutory scheme conditioning residential development on demonstration of adequate water supplies, the district court reversed the Douglas County Board of County Commissioners’ approval of Sterling Ranch, LLC’s planned unit development because C.R.S. § 29-20-301 to 306 requires an applicant to demonstrate adequate water supplies before issuance of a development permit.  Based on statutory language, the district court found that the Board had discretion to evaluate whether a water supply was adequate, but that its discretion did not extend to determining when in the process of permitting to make that determination.  Thus, Sterling Ranch’s proposal, accepted by the Board, to demonstrate water supply adequacy at the subdivision stage was in excess of its discretion and the Board’s approval of the PUD was improper.  Sterling Ranch moved for reconsideration and the case is still before the Douglas County District Court.

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